Criminal proceedings against Antonio Niselli.
Date: 2004-11-11
26. Those two arguments must be rejected. It is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law or the assessment of the validity of a Community rule that is sought bears no relation to the facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, in particular, Case C-379/98 PreussenElektra  [2001] ECR I‑2099, paragraphs 38 and 39).
29. In that regard, it must be noted that a directive may indeed not of itself impose obligations on a private individual and may not therefore be relied on as such against him (see, among others, Case C-343/98 Collino and Chiappero  [2000] ECR I‑6659, paragraph 20). Likewise, a directive cannot, of itself and independently of a national rule of law adopted by a Member State for its implementation, have the effect of determining or aggravating the liability in criminal law of persons who act in contravention of the provisions of that directive (see, in particular, Case 80/86 Kolpinghuis Nijmegen  [1987] ECR 3969, paragraph 13, and Case C‑168/95 Arcaro  [1996] ECR I‑4705, paragraph 37).
30. However, in this case, it is clear that, at the time of the facts which gave rise to the criminal proceedings against Mr Niselli, they could, in an appropriate case, constitute offences under criminal law. In those circumstances, it is inappropriate to enquire into such consequences as might derive, for the application of Directive 75/442, from the principle that penalties must have a proper legal basis (see, to that effect, Joined Cases C‑304/94, C-330/94, C-342/94 and C-224/95 Tombesi and Others  [1997] ECR I‑3561, paragraph 43).
33. The scope of the meaning of ‘waste’ depends on the meaning of the verb ‘to discard’. That verb must be interpreted in light of the aim of Directive 75/442, which, according to its third recital, is the protection of human health and the environment against harmful effects caused by the collection, transport, treatment, storage and tipping of waste, and Article 174(2) EC, which provides that Community policy on the environment is to aim at a high level of protection and is to be based, in particular, on the precautionary principle and the principle that preventive action should be taken (see, among others, Case C-9/00 Palin Granit and Vehmassalon kansanterveystyön kuntayhtymän hallitus  [2002] ECR I‑3533, (hereinafter ‘ Palin Granit ’), paragraphs 22 and 23).
34. No decisive criterion is, however, suggested by Directive 75/442 to determine the holder’s intention of discarding a given substance or object. In the absence of Community provisions, Member States are free to choose the modes of proof of the various matters defined in the directives which they transpose, provided that the effectiveness of Community law is not thereby undermined (see, among others, Joined Cases C-418/97 and C-419/97 ARCO Chemie Nederland and Others  [2000] ECR I‑4475, paragraph 41).
36. By defining the action of ‘discarding’ a substance or an object solely by reference to the putting in train of a disposal or recovery operation mentioned in Annexes II A and II B to Directive 75/442, that construction makes the characterisation as ‘waste’ depend on an operation which cannot itself be described as disposal or recovery unless it applies to ‘waste’. Consequently, that construction does not clarify the meaning of ‘waste’.
37. In that regard, the fact that a substance undergoes an operation referred to in Annexes II A or II B to Directive 75/442 does not justify the conclusion that that substance has been discarded and may therefore be regarded as waste ( Palin Granit , cited above, paragraph 27). Thus, if the construction in question meant that any substance or any object which was subject to one of the types of operations mentioned in Annexes II A and II B to Directive 75/442 must be classified as ‘waste’, it would lead to the classification as such of substances or objects which are not ‘waste’ within the meaning of that directive. For example, on that construction, fuel oil used in combustion is always ‘waste’, since it is subject, when it is burnt, to the operation in category R 1 of Annex II B to Directive 75/442.
38. But above all, if the construction set out by the national court meant that a substance or object which is discarded otherwise than as mentioned in Annexes II A and II B to Directive 75/442 is not ‘waste’, it would restrict the meaning of ‘waste’ arising from the first subparagraph of Article 1(a) of that directive. Thus, a substance or object not subject to a disposal or recovery requirement whose holder discards it by simple abandonment, without subjecting it to such an operation, would not be classified as ‘waste’ although it would be such within the meaning of Directive 75/442.
43. As the Court has held, the fact that a used substance is a production residue is, as a rule, evidence that it has been discarded or of an intention or requirement to discard it, within the meaning of Article 1(a) of Directive 75/442 (see ARCO Chemie Nederland , cited above, paragraph 84). The same appraisal must apply as regards consumption residues.
44. It is possible to consider, however, that goods, materials or raw materials resulting from a manufacturing or extraction process, the primary aim of which is not the production of that item, may be regarded not as a residue but as a by-product which the undertaking does not wish to ‘discard’, within the meaning of the first subparagraph of Article 1(a) of Directive 75/442, but intends to exploit or market on terms which are advantageous to it, in a subsequent process, without any further prior processing. That approach is not, indeed, incompatible with the aims of Directive 75/442 because there is no reason to hold that the provisions of the directive, which are intended to regulate the disposal or recovery of waste, apply to goods, materials or raw materials which have an economic value as products regardless of any form of processing and which, as such, are subject to the legislation applicable to those products (see Palin Granit , paragraphs 34 and 35).
45. However, having regard to the obligation to interpret the concept of waste widely in order to limit its inherent undesirable or harmful effects, recourse to the reasoning applicable to by-products should be limited to situations in which the reuse of the goods, materials or raw materials is not a mere possibility but a certainty, without any prior processing and as an integral part of the production process (see Palin Granit , paragraph 36).
46. In addition to the criterion of whether a substance constitutes a production residue, a second relevant criterion for determining whether or not that substance is waste for the purposes of Directive 75/442 is, therefore, the degree of likelihood that that substance will be reused without any prior processing. If, in addition to the mere possibility of reusing the substance, there is also a financial advantage for the holder in so doing, the likelihood of such reuse is high. In such circumstances, the substance in question must no longer be regarded as a burden which its holder seeks to ‘discard’, but as a genuine product (see Palin Granit , paragraph 37).
47. It is clear from the foregoing that, in the light of the objectives of Directive 75/442, it is acceptable to classify goods, materials or raw materials, resulting from a process of manufacture or extraction the primary purpose of which is not their production, not as ‘waste’, but as by-products whose holder does not wish to ‘discard’ them within the meaning of the first subparagraph of Article 1(a) of that directive, provided that their reuse is a certainty, without any prior processing, and an integral part of the production process (see Case C‑114/01 AvestaPolarit Chrome  [2003] ECR I‑8725).
48. However, the latter analysis is not valid as regards consumption residues which cannot be regarded as ‘by-products’ of a manufacturing or extraction process which are capable of being reused as an integral part of the production process.
52. In that regard, materials such as those at issue in the main proceedings are not reused definitely and without prior processing as an integral part of the same process of production or use, but are substances or objects whose holders discarded them. According to Mr Niselli’s evidence, the contentious materials were then sorted, and sometimes treated, and they constitute a secondary raw material to be used in steelmaking. In such a context, they must however continue to be classified as ‘waste’ until they have actually been recycled into steel products, that is to say, until the constitution of the finished products derived from the reprocessing for which they are intended. In the earlier phases, they cannot yet be regarded as recycled, since the reprocessing has not been concluded. Conversely, subject to the case where the products obtained are in their turn abandoned, the point at which the materials in question cease to be classified as ‘waste’ cannot be fixed at an industrial or commercial stage subsequent to their reprocessing into steel products, because, from that point, they can hardly be distinguished from other steel products made from primary raw materials (see, for the particular case of recycled packaging waste, Case C‑444/00 Mayer Parry Recycling  [2003] ECR I‑6163, paragraphs 61 to 75).