Commission of the European Communities v Italian Republic.
Date: 2006-11-23
36. The Member States must implement Directive 85/337 in a manner which fully corresponds to its requirements, having regard to its fundamental objective which, as is clear from Article 2(1), is that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location should be made subject to an assessment with regard to their effects (see, to that effect, Case C‑287/98 Linster  [2000] ECR I‑6917, paragraph 52).
37. In addition, it follows from the Court’s case-law that the scope of Directive 85/337 is wide and its purpose very broad (see Case C‑72/95 Kraaijeveld and Others  [1996] ECR I‑5403, paragraphs 31 and 39, and Case C ‑ 227/01 Commission  v Spain  [2004] ECR I‑8253, paragraph 46).
The complaint relating to the failure to subject the Massafra installation for electricity production through the incineration of CMW and biomass to the environmental impact assessment procedure
40. It is common ground that Directive 85/337 does not define the concept of waste disposal, Annexes I and II to that directive merely referring to some waste disposal installations. Furthermore, it is also common ground that Directive 75/442 does not include any general definition of the concepts of waste disposal and recovery, but merely refers to Annexes II A and II B to the directive, in which various operations falling within the scope of those concepts are listed (see Case C‑6/00 ASA   [2002] ECR I‑1961, paragraph 58).
41. The essential characteristic of a waste recovery operation, such as is apparent from Article 3(1)(b) of Directive 75/442 and from the fourth recital to that directive, is that its principal objective is that the waste can serve a useful purpose in replacing other materials which would have had to be used for that purpose, thereby conserving natural resources (see, inter alia, ASA , paragraph 69; Case C‑458/00 Commission  v Luxembourg  [2003] ECR I‑1553, paragraph 36; and Case C‑103/02 Commission  v Italy  [2004] ECR I-9127, paragraph 62).
45. As a result, the establishment in Massafra, which generates electricity from the incineration of biomass and CMW and has a capacity exceeding 100 tonnes per day, comes into the category of disposal installations for the incineration or chemical treatment of non‑hazardous waste in point 10 of Annex I to Directive 85/337. As such, before being authorised, it should have undergone the environmental impact assessment procedure, since the projects which fall within Annex I must undergo a systematic assessment under Articles 2(1) and 4(1) of that directive (see, to that effect, Case C‑431/92 Commission  v Germany  [1995] ECR I‑2189, paragraph 35).
53. In this connection, the Court has already held that Member States may establish the criteria and/or thresholds necessary to determine which of the projects covered by Annex II to Directive 85/337, in its original version, are to be subject to an assessment. However, the discretion thus granted to the Member States is limited by the obligation, set out in Article 2(1) of that directive, to subject projects likely to have significant effects on the environment, particularly by virtue of their nature, size or location, to an assessment with regard to their effects (see, to that effect, Kraaijeveld and Others , paragraph 50, and judgment of 16 March 2006 in Case C‑332/04 Commission  v Spain , not published in the ECR, paragraph 76). Accordingly, when establishing those thresholds and/or criteria, Member States must take account not only of the size of projects, but also of their nature and location (see, to that effect, Case C‑392/96 Commission  v Ireland  [1999] ECR I-5901, paragraph 65, and Commission  v Spain , paragraph 76).