Futura Immobiliare srl Hotel Futura and Others v Comune di Casoria.
Date: 2009-07-16
28. As regards, first, the Italian Government’s arguments, it must be remembered that, although the Court does not, in a reference for a preliminary ruling, have jurisdiction to give a ruling on the compatibility of a national measure with Community law, it does have jurisdiction to supply the national court with a ruling on the interpretation of Community law so as to enable that court to determine whether such compatibility exists with a view to deciding the case before it (see Case C‑439/06 citiworks  [2008] ECR I‑3913, paragraph 21 and the case-law cited).
29. Also, it is indeed settled case-law that the need to provide an interpretation of Community law which will be of use to the national court makes it necessary that the national court should define the factual and legislative context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based (Case C-345/06 Heinrich  [2009] ECR I-0000, paragraph 30 and the case-law cited).
34. Furthermore, contrary to the submissions of the Comune di Casoria, under Article 234 EC the Court has jurisdiction to give preliminary rulings concerning the interpretation of acts of the institutions of the European Community regardless of whether they are directly applicable (see, to this effect, Case 111/75 Mazzalai  [1976] ECR 657, paragraph 7, and Case C-261/95 Palmisani  [1997] ECR I‑4025, paragraph 21).
44. Accordingly, in circumstances such as those in the main proceedings, where holders of waste have it handled by a collector, Article 15(a) of Directive 2006/12 provides that, in accordance with the ‘polluter pays’ principle, the cost of disposing of the waste must be borne by those holders.
45. That financial obligation is imposed on those holders because of their contribution to the production of the waste (see Case C-188/07 Commune de Mesquer  [2008] ECR I‑4501, paragraph 77).
46. So far as concerns the financing of the cost of management and disposal of urban waste, inasmuch as a service provided on a collective basis to a body of ‘holders’ is involved, the Member States are obliged, under Article 15(a) of Directive 2006/12, to ensure that, in principle, all the users of that service, in their capacity as ‘holders’ within the meaning of Article 1 of the directive, collectively bear the overall cost of disposing of the waste.
47. While the Member States as the addressees of Directive 2006/12 are bound as to this result to be achieved in terms of financial liability for the cost of disposing of waste, in accordance with Article 249 EC they may, however, choose the form and the methods to be applied in order to attain that result (see Commune de Mesquer , paragraph 80).
48. The Commission has rightly observed that, as Community law currently stands, there is no legislation adopted on the basis of Article 175 EC imposing a specific method upon the Member States for financing the cost of the disposal of urban waste, so that the cost may, in accordance with the choice of the Member State concerned, equally well be financed by means of a tax or of a charge or in any other manner.
50. Accordingly, recourse to criteria founded, first, on the waste-production capacity of the ‘holders’, calculated on the basis of the surface area of the property which they occupy and of its use, and/or, second, on the nature of the waste produced can provide a means of calculating the costs of disposing of that waste and allocating them among the various ‘holders’, since those two parameters are such as to have a direct impact on the amount of the costs.
51. From this point of view, national legislation which, for the purposes of financing the management and disposal of urban waste, provides for a tax or charge calculated on the basis of an estimate of the volume of waste generated and not on the basis of the quantity of waste actually produced and presented for collection cannot, as Community law currently stands, be considered contrary to Article 15(a) of Directive 2006/12.
52. Second, the ‘polluter pays’ principle does not preclude the Member States from varying, on the basis of categories of users determined in accordance with users’ respective capacities to produce urban waste, the contribution of each of those categories to the overall cost necessary to finance the system for the management and disposal of urban waste.
53. In the main proceedings, it is apparent with regard to calculation of the waste tax that hotel establishments constitute a category of ‘holders’ and that, in the submission of Futura Immobiliare and Others, hotel establishments are treated less favourably than individuals.
54. In that regard, it must be found that, when calculating a waste disposal tax or charge, a distinction drawn for fiscal purposes between categories of users of the urban waste collection and disposal service – like that drawn by the national legislation at issue in the main proceedings between hotel undertakings and individuals – which is based on objective criteria having a direct relationship with the cost of the service, such as their waste-production capacity or the nature of the waste produced, may prove appropriate for achieving the objective of financing the service.
55. While the distinction drawn for fiscal purposes must not go beyond what is necessary in order to achieve that financing objective, it is however to be noted that here, as Community law currently stands, the competent national authorities have a broad discretion when determining the manner in which such a tax or charge is calculated.
56. Thus, it is incumbent upon the national court to review, on the basis of the matters of fact and law placed before it, whether the waste tax at issue in the main proceedings results in the allocation to certain ‘holders’, in the case in point hotel establishments, of costs which are manifestly disproportionate to the volumes or nature of the waste that they are liable to produce.