Commission of the European Communities v Italian Republic.
Date: 2007-12-18
19. In that regard, it is sufficient to observe, first, that the Court has repeatedly held that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion and the Court cannot take account of any subsequent changes (see, in particular, Case C‑168/03 Commission  v Spain  [2004] ECR I‑8227, paragraph 24, and Case C‑23/05 Commission  v Luxembourg  [2005] ECR I‑9535, paragraph 9).
20. Secondly, the subject-matter of an action under Article 226 EC for failure to fulfil obligations is delimited by the pre-litigation procedure provided for by that article, so that the application cannot be founded on any objections other than those stated in that procedure (see, to that effect, Case C‑152/98 Commission  v Netherlands  [2001] ECR I‑3463, paragraph 23, and Case C‑221/03 Commission  v Belgium  [2005] ECR I‑8307, paragraph 38).
32. The annex referred to clarifies and illustrates that definition by providing a list of categories of substances and objects which may be classified as ‘waste’. That list is intended only as guidance, however, and the classification of a substance or object as waste is to be inferred primarily from the holder’s actions and the meaning of the term ‘discard’ (see, to that effect, Case C‑129/96 Inter-Environnement Wallonie  [1997] ECR I‑7411, paragraph 26, Case C‑1/03 Van de Walle and Others  [2004] ECR I-7613, paragraph 42, and Case C‑252/05 Thames Water Utilities  [2007] ECR I‑3883, paragraph 24).
33. The term ‘discard’ must be interpreted in the light not only of the fundamental aim of the directive, which, according to the third recital in the preamble thereto, is ‘the protection of human health and the environment against harmful effects caused by the collection, transport, treatment, storage and tipping of waste’, but also of Article 174(2) EC. The latter provision states that ‘Community policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Community. It shall be based on the precautionary principle and on the principles that preventive action should be taken …’. It follows that the term ‘discard’ – and, accordingly, the concept of ‘waste’, within the meaning of Article 1(a) of the directive – cannot be interpreted restrictively (see, to that effect, inter alia, Joined Cases C‑418/97 and C‑419/97 ARCO Chemie Nederland and Others  [2000] ECR I‑4475, paragraphs 36 to 40, and Thames Water Utilities , paragraph 27).
34. Certain circumstances may constitute evidence that the holder has discarded a substance or object, or intends or is required to discard it, within the meaning of Article 1(a) of the directive ( ARCO Chemie Nederland and Others , paragraph 83). That is the case in particular where a substance is a production or consumption residue, that is to say, a product which it was not, as such, sought to produce (see, to this effect, ARCO Chemie Nederland and Others , paragraph 84, and Niselli , paragraph 43).
35. Thus, the Court has stated that leftover stone from a granite quarry, which is not the product primarily sought by its operator, is, in principle, waste (see, to that effect, Case C‑9/00 Palin Granit and Vehmassalon kansanterveystyön kuntayhtymän hallitus  [2002] ECR I‑3533, ‘ Palin Granit ’, paragraphs 32 and 33).
36. Moreover, neither the method of treatment reserved for a substance nor the use to which that substance is put determines conclusively whether or not it is to be classified as waste (see ARCO Chemie Nederland and Others , paragraph 64, and Case C‑176/05 KVZ retec  [2007] ECR I‑1721, paragraph 52).
37. The Court has thus stated, first, that the fact that a substance or object undergoes one of the disposal or recovery operations listed, respectively, in Annexes II A and II B to the directive does not, by itself, mean that a substance or object involved in such an operation is to be classified as waste (see, to that effect, inter alia, Niselli , paragraphs 36 and 37); and, secondly, that the concept of waste does not exclude substances and objects which are capable of economic re-use (see, to that effect, inter alia, Joined Cases C‑304/94, C‑330/94, C‑342/94 and C‑224/95 Tombesi and Others  [1997] ECR I‑3561, paragraphs 47 and 48). The system of supervision and control established by the directive is intended to cover all objects and substances discarded by their owners, even if they have a commercial value and are collected on a commercial basis for recycling, recovery or re-use (see, inter alia, Palin Granit , paragraph 29).
38. However, it is also clear from the case-law of the Court that, in certain situations, goods, materials or raw materials resulting from an extraction or manufacturing process, the primary aim of which is not their production, may be regarded not as residue, but as by-products which their holder does not seek to ‘discard’, within the meaning of Article 1(a) of the directive, but which he intends to exploit or market on terms advantageous to himself in a subsequent process – including, as the case may be, in order to meet the needs of economic operators other than the producer of those substances –, provided that such re-use is a certainty, does not require any further processing prior to re-use and forms an integral part of the process of production or use (see, to that effect, Palin Granit , paragraphs 34 to 36; Case C‑114/01 AvestaPolarit Chrome  [2003] ECR I‑8725, paragraphs 33 to 38; Niselli , paragraph 47; and also Case C‑416/02 Commission  v Spain  [2005] ECR I‑7487, paragraphs 87 and 90, and Case C‑121/03 Commission  v Spain  [2005] ECR I‑7569, paragraphs 58 and 61).
39. Accordingly, in addition to the criterion of whether a substance constitutes a production residue, a relevant criterion for determining whether or not that substance is waste within the meaning of the directive is the degree of likelihood that that substance will be re-used without any prior processing. If, beyond the mere possibility of re-using the substance, there is also a financial advantage for the holder in so doing, the likelihood of such re-use 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, and Niselli , paragraph 46).
40. However, if such re-use requires long-term storage operations which constitute a burden to the holder and are also potentially the cause of precisely the environmental pollution which the directive seeks to reduce, that re-use cannot be described as a certainty and is foreseeable only in the longer term, and accordingly the substance in question must, as a general rule, be regarded as waste (see, to that effect, Palin Granit , paragraph 38, and AvestaPolarit Chrome , paragraph 39).
41. Whether a substance is in fact ‘waste’ within the meaning of the directive must be determined in the light of all the circumstances, account being taken of the aim of the directive and the need to ensure that its effectiveness is not undermined (see ARCO Chemie Nederland and Others , paragraph 88; KVZ retec , paragraph 63; and the order in Case C‑235/02 Saetti and Frediani  [2004] ECR I‑1005, paragraph 40).
44. Since the directive does not provide any single decisive criterion for discerning whether the holder intends to discard a given substance or object, Member States are free, in the absence of Community provisions, to choose the modes of proof of the various matters defined in the directives which they are transposing, provided that the effectiveness of Community law is not thereby undermined (see ARCO Chemie Nederland and Others , paragraph 41, and Niselli , paragraph 34). Thus Member States may, for example, define different categories of waste, in particular to facilitate the organisation and control of waste management, provided that the obligations arising under the directive or other provisions of Community law relating to such waste are complied with and that the exclusion of any categories from the scope of legislation enacted in order to transpose obligations under the directive is in compliance with Article 2(1) of the directive (see, to that effect, the judgment of 16 December 2004 in Case C‑62/03 Commission  v United Kingdom , not published in the ECR, paragraph 12).
49. Moreover, as is clear in particular from paragraphs 36 and 37 of this judgment, the use to which a substance is put does not determine conclusively whether or not that substance is to be classified as waste. Consequently, the mere fact that the materials in question will be re-used does not support the inference that they do not constitute ‘waste’ within the meaning of the directive.
50. What subsequently happens to an object or a substance is not in itself determinative of its nature as waste, which, in accordance with Article 1(a) of the directive, is defined in terms of the holder of that object or substance discarding it or intending or being required to discard it (see, to that effect, ARCO Chemie Nederland and Others , paragraph 64, and KVZ retec , paragraph 52).
52. However, although in some cases that may actually reflect the true position, there cannot be a general presumption that a holder of excavated earth and rocks should derive from the fact that they are intended for re-use an advantage over and above that of simply being able to discard them.
53. Consequently, even assuming that it could be ensured that materials covered by the provisions at issue really are re-used for filling, backfilling, embanking or as aggregates – the Italian Republic not having pointed to any specific rule to that effect –, it must be held that those provisions result in the exclusion of residue which nevertheless meets the definition in Article 1(a) of the directive from being treated as waste in Italian law.
54. Article 1(a) of the directive not only sets out the definition of the concept of ‘waste’ for the purposes of the directive, but also – in conjunction with Article 2(1) – defines the scope of the directive. Article 2(1) lists the forms of waste that are excluded from the scope of the directive, as well as those that may be excluded, and the circumstances in which that is possible, whereas in principle the directive covers all waste which corresponds to the definition set out in Article 1(a) thereof. Any provision of national law which limits in general terms the scope of the obligations arising under the directive, to a greater degree than is permitted under Article 2(1), is necessarily disregarding the scope of the directive (see, to that effect, Commission  v United Kingdom , cited above, paragraph 11), thus undermining the effectiveness of Article 174 EC (see, to that effect, ARCO Chemie Nederland and Others , paragraph 42).
56. Finally, as regards the argument put forward by that Member State that application of the waste regime would mean that waste-disposal undertakings or undertakings licensed to transport or collect waste would have to be involved in the works in question and that that might increase their costs considerably, the Commission rightly pointed out that this situation stems from the Italian legislation rather than from the directive. Subject to the requirements as to registration, or, as the case may be, of a permit, the holder of the waste may simply recover it or dispose of it himself in accordance with the provisions of the directive. In that regard, it should be added that the directive applies not only to disposal and recovery of waste by specialist undertakings, but also to disposal and recovery of waste by the undertaking which produced it, at the place of production ( Inter-Environnement Wallonie , cited above, paragraph 29).