1. By orders dated 8 February 2002 (C-53/02) and 28 May 2002 (C-217/02), received at the Court on 21 February 2002 and 13 June 2002, respectively, the Conseil d’État (Council of State) submitted to the Court for a preliminary ruling under Article 234 EC several questions on the interpretation of Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39), as amended by Council Directive 91/156/EEC of 18 March 1991 (OJ 1991 L 78, p. 32) (hereinafter ‘the Directive’).
2. Those questions arose in the course of actions brought by, respectively, the commune of Braine-le-Château (C-53/02) and Mr Tillieut, the association des habitants de Louvain-la-Neuve ASBL and Mr Grégoire (C-217/02; hereinafter ‘Mr Tillieut and Others’) against the Région wallonne (the Walloon Region) concerning permits to operate waste disposal sites. Legal framework Community legislation
3. It is apparent from Article 1(e) of the Directive in conjunction with Annex IIA thereto that, for the purposes of the Directive, ‘disposal’ of waste means, among other operations, ‘tipping above or underground (e.g. landfill, etc.)’, ‘land treatment’, ‘deep injection’ or ‘surface impoundment’.
4. Article 3(1) of the Directive provides: ‘Member States shall take appropriate measures to encourage: (a) firstly, the prevention or reduction of waste production and its harmfulness, in particular by: - the development of clean technologies more sparing in their use of natural resources, - the technical development and marketing of products designed so as to make no contribution or to make the smallest possible contribution, by the nature of their manufacture, use or final disposal, to increasing the amount or harmfulness of waste and pollution hazards, - the development of appropriate techniques for the final disposal of dangerous substances contained in waste destined for recovery, …’
5. Article 4 of the Directive states: ‘Member States shall take the necessary measures to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment, and in particular: - without risk to water, air, soil and plants and animals, - without causing a nuisance through noise or odours, - without adversely affecting the countryside or places of special interest. Member States shall also take the necessary measures to prohibit the abandonment, dumping or uncontrolled disposal of waste.’
6. Article 5 of the Directive provides: ‘1. Member States shall take appropriate measures, in cooperation with other Member States where this is necessary or advisable, to establish an integrated and adequate network of disposal installations, taking account of the best available technology not involving excessive costs. The network must enable the Community as a whole to become self-sufficient in waste disposal and the Member States to move towards that aim individually, taking into account geographical circumstances or the need for specialised installations for certain types of waste. 2. The network must also enable waste to be disposed of in one of the nearest appropriate installations, by means of the most appropriate methods and technologies in order to ensure a high level of protection for the environment and public health.’
7. Article 7 of the Directive is worded as follows: ‘1. In order to attain the objectives referred to in Article 3, 4 and 5, the competent authority or authorities referred to in Article 6 shall be required to draw up as soon as possible one or more waste management plans. Such plans shall relate in particular to: - the type, quantity and origin of waste to be recovered or disposed of, - general technical requirements, - any special arrangements for particular wastes, - suitable disposal sites or installations. Such plans may, for example, cover: - the natural or legal persons empowered to carry out the management of waste, - the estimated costs of the recovery and disposal operations, - appropriate measures to encourage rationalisation of the collection, sorting and treatment of waste. 2. Member States shall collaborate as appropriate with the other Member States concerned and the Commission to draw up such plans. They shall notify the Commission thereof. 3. Member States may take the measures necessary to prevent movements of waste which are not in accordance with their waste management plans. They shall inform the Commission and the Member States of any such measures.’
8. Article 9 of the Directive provides: ‘1. For the purposes of implementing Articles 4, 5 and 7, any establishment or undertaking which carries out the operations specified in Annex IIA must obtain a permit from the competent authority referred to in Article 6. Such permit shall cover: - the types and quantities of waste, - the technical requirements, - the security precautions to be taken, - the disposal site, - the treatment method. 2. Permits may be granted for a specified period, they may be renewable, they may be subject to conditions and obligations, or, notably, if the intended method of disposal is unacceptable from the point of view of environmental protection, they may be refused.’
9. Pursuant to the first subparagraph of Article 2(1) of Directive 91/156, Member States were to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive not later than 1 April 1993 and forthwith to inform the Commission thereof.
10. Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste (OJ 1999 L 182, p. 1) entered into force on 16 July 1999, and Member States were to adopt the laws, regulations and administrative provisions necessary to comply with it not later than two years after that date. Article 8(b) states: ‘Member States shall take measures in order that: ... (b) the landfill project is in line with the relevant waste management plan or plans referred to in Article 7 of Directive 75/442/EEC’. National legislation
11. According to Article 24 of the Décret du 27 juin 1996 relatif aux déchets (Decree of 27 June 1996 on waste) ( Moniteur belge of 2 August 1996; hereinafter ‘the Decree’): ‘1. The Government shall draw up a waste management plan in accordance with Articles 11 to 16 of the Decree of 21 April 1994 on environmental planning with a view to sustainable development. That plan shall be a sectoral programme for the purposes of the Decree. It may comprise planning by type of waste or by sectoral activity. The plan shall include in particular: (1) a description of the type, quantity and origin of the waste, of the methods employed in the management of the waste produced and transported each year, and of the installations currently in operation and the occupied sites; (2) an inventory of the legislative and general measures in force which affect the management of waste; (3) a description of likely trends in the sector and the objectives to be met as regards waste management; (4) project and initiatives to be developed as regards prevention, recovery and disposal, recommended technical methods of waste management and the natural or legal persons authorised to undertake the management of waste. The plan shall be accompanied by information on its budgetary implications for the public authorities, its foreseeable general economic effects in the short, medium and long term and its expected effects on the environment. 2. The Government shall establish, following the procedure laid down in Articles 25 and 26, a plan for landfills which includes sites likely to be allocated for setting up and operating landfills, with the exception of those landfills reserved for the exclusive use of the producer of the waste. No landfills other than one intended for the exclusive use of the producer of waste may be authorised aside from those provided for in the plan referred to in this paragraph.’
12. In order to implement Article 24(1) and (2) of the Decree, the Wallonia Government adopted on 15 January 1998 the Wallonia waste plan ‘Horizon 2010’ ( Moniteur belge of 21 April 1998, p. 11806; hereinafter ‘Horizon 2010’) and, on 1 April 1999, a plan for landfill sites (centres d’enfouissement technique) ( Moniteur belge of 13 July 1999, p. 26747; hereinafter ‘the CET’) which entered into force on 13 July 1999. Both plans were notified to the Commission as part of the transposition of Article 7 of the Directive.
13. The first paragraph of Article 70 of the Decree states: ‘Until such time as the landfill plan referred to in Article 24(2) has entered into force, applications for permits within the meaning of Article 11 in order to set up and operate landfills and applications for building permits as provided for in Article 41(1) of the Wallonia Town and Country Planning and Heritage Code which were held to be admissible before this Decree was adopted by Parliament may result in a permit being granted in industrial, agricultural and extraction zones as defined in Articles 172, 176 and 182 of that code.’ The main proceedings and questions submitted for a preliminary ruling Case C-53/02
14. By decision of 21 May 1999, the Wallonia Government granted BIFFA Waste Services SA (hereinafter ‘BIFFA’) a permit to extend and operate a landfill in Braine-le-Château (Belgium). That permit covered, inter alia, the extension of the Cour-au-Bois Nord waste disposal site to the neighbouring site of Cour-au-Bois Sud.
15. The commune of Braine-le-Château, supported by Mr Feron and Mr De Codt, brought an action before the Conseil d’État for annulment of the permit issued on 21 May 1999. In support of its application, it alleges, among other things, infringement of Articles 4, 5, 7 and 9 of the Directive. It submits that, despite Article 7 of the Directive and Article 24(2) of the Decree, the Wallonia Government had not adopted any waste management plan on the date when that permit was issued. First, Horizon 2010 does not constitute such a plan and, secondly, the CET was not yet in force on the aforementioned date. Braine-le-Château adds that the site at Cour-au-Bois Sud is not included in the CET and that, accordingly, the permit was issued for a site not listed in any plan for waste disposal sites.
16. The Wallonia Government contends that Horizon 2010 contains spatial planning for the purposes of Article 7(1) of the Directive and includes the site at issue. BIFFA, an intervener in the main proceedings, contends that it is in no way established that Article 7 of the Directive necessarily entails landfill planning such as that in the CET.
17. In reply, Braine-le-Château points out, inter alia, that Horizon 2010 constitutes a general policy document which does not satisfy the requirements of Article 7 of the Directive and that that plan repeats the list of existing controlled landfill sites, to the exclusion of potential sites, so that it includes the site at Cour-au-Bois Nord but not that at Cour-au-Bois Sud. Similarly, as regards the CET, only the site at Cour-au-Bois Nord is included in the list of authorised landfills, while that at Cour-au-Bois Sud is not mentioned in the list of new sites selected under the plan. Article 70 of the Decree cannot in any way constitute the spatial planning required by the Directive, inasmuch as a provision of that kind does not amount to a determination of ‘suitable sites’ in accordance with the first subparagraph of Article 7(1) of the Directive: such a determination presupposes that the proposed site will be measured against the other requirements of the Directive, in particular the protection of human health and the environment.
18. In those circumstances, the Conseil d’État decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: ‘1. Does the obligation imposed on Member States by Article 7 of Directive 75/442/EEC of 15 July 1975 on waste, as amended by Directive 91/156/EEC of 18 March 1991, to draw up one or more waste management plans relating in particular to “suitable disposal sites or installations” mean that the States to which the Directive is addressed are required to mark on a geographical map the precise locations of the planned waste disposal sites or to determine location criteria which are sufficiently precise to enable the competent authority responsible for issuing a permit under Article 9 of the Directive to ascertain whether the site or installation falls within the management framework prescribed by the plan? 2. Do Articles 4, 5 and 7 of Directive 75/442/EEC of 15 July 1975 on waste, as amended by Directive 91/156/EEC of 18 March 1991, whether or not read in conjunction with Article 9 of Directive 75/442, preclude a Member State which has not adopted within the period prescribed one or more waste management plans relating to “suitable disposal sites or installations” from issuing individual permits to operate waste disposal installations, such as landfills?’ Case C-217/02
19. By Ministerial Order of 16 December 1998, Propreté, Assainissement, Gestion de l’environnement SA (hereinafter ‘PAGE’) was issued a permit to continue to operate a landfill at ‘Les trois burettes’ in Mont‑Saint-Guibert (Belgium). That order lays down aftercare conditions and sets up a support committee and a scientific committee for the landfill.
20. Mr Tillieut and Others and the association l’Épine blanche ASBL brought actions before the Conseil d’État for the annulment of the Ministerial Order. Since the causes of action were connected, the two cases were joined for the purpose of the decision on the merits. However, the association subsequently withdrew its application.
21. Mr Tillieut and Others claim that the permit granted under the Order was issued for a site not listed in a plan for waste disposal sites, contrary to Articles 7(1) and 9 of the Directive and Article 24(2) of the Decree. They in essence submit that Article 7 of the Directive requires spatial planning of disposal sites, that the time-limit for transposition has been exceeded, that Horizon 2010 does not amount to the spatial planning required by the Directive and that the CET was only in draft form at the time the Order in question was adopted. They add that Article 70 of the Decree does not satisfy the planning requirement laid down by the Directive, the implementation of which requires that ‘suitable sites’ be determined and that proposed sites be measured against the other requirements of the Directive, that is, the protection of human health and the environment.
22. The Région wallonne contends that Articles 7 and 9 of the Directive do not have direct effect. In addition, waste management plans have no binding effect and the Directive leaves it to Member States to decide whether a plan must identify the sites chosen or whether it may simply set out the criteria which establish the suitability of sites. It also points out that Horizon 2010 includes various provisions relating to spatial planning which the site that is the subject-matter of the Ministerial Order of 16 December 1998 satisfies. The Région wallonne also refers to the draft CET, provisionally adopted by order of 30 April 1998, which takes account of the landfill at Mont-Saint-Guibert. Finally, it considers that by designating the zones in sectoral plans which can be used provisionally for landfill, Article 70 of the Decree adequately transposes Article 7 of the Directive.
23. PAGE, the intervener in the main proceedings, takes the view that Article 7 of the Directive does not entail spatial planning of waste management installations. That provision in fact refers to technical rather than geographical planning. The Directive does not specify the legal effect of waste management plans and PAGE infers from this, first, that those plans do not necessarily have a regulatory effect and, secondly, that the issue of a permit need not necessarily be made subject to compliance with any spatial planning. It also contends that the Decree complies with the requirement for spatial planning laid down in Article 7 of the Directive and that the same is true as regards Horizon 2010. Finally, PAGE points to the absence of a time-limit for the transposition of Article 7 of the Directive and the fact that the European Commission has not taken steps against the Kingdom of Belgium by way of infringement proceedings under the EC Treaty.
24. In those circumstances, the Conseil d’État decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling: ‘1. Does the obligation imposed on Member States by Article 7 of Directive 75/442/EEC of 15 July 1975 on waste, as amended by Directive 91/156/EEC of 18 March 1991, to draw up one or more waste management plans relating in particular to “suitable disposal sites or installations” mean that the States to which the Directive is addressed are required to mark on a geographical map the precise locations of the planned waste disposal sites or to determine location criteria which are sufficiently precise to enable the competent authority responsible for issuing a permit under Article 9 of the Directive to ascertain whether the site or installation falls within the management framework prescribed by the plan? 2. Does Article 7 of Directive 75/442, as amended by Directive 91/156, whether or not read in conjunction with Article 9 of Directive 75/442 or with any other provision of the same directive, preclude a Member State which has not adopted within the period prescribed one or more waste management plans relating to “suitable disposal sites or installations” from issuing individual permits to operate waste disposal installations, such as landfills? 3. Does Article 7(1) of Directive 75/442, as amended by Directive 91/156, mean that the plan or plans relating inter alia to “suitable disposal sites or installations” must be drawn up not later than 1 April 1993, or does it mean that they must be drawn up within a reasonable period, which may exceed the period prescribed for transposing the Directive into national law?’
25. By order of the President of the Court of 7 January 2003, the two cases were joined for the purposes of the oral procedure and the judgment. Consideration of the questions referred for a preliminary ruling First question (Cases C‑53/02 and C‑217/02)
26. By its first question, the national court in essence asks whether Article 7 of the Directive must be interpreted to mean that the management plan or plans which the competent authorities of the Member States are required to draw up under that provision must include a geographical map which specifies the exact location of waste disposal sites or whether that provision merely requires those authorities to establish location criteria which are sufficiently precise to enable the competent authority responsible for issuing a permit under Article 9 of the Directive to determine whether the site or installation in question falls within the management framework provided for by the plan.
27. Pursuant to the first subparagraph of Article 7(1) of the Directive, the competent authorities of the Member States are required to draw up as soon as possible one or more waste management plans in order to attain the objectives referred to in Articles 3, 4 and 5 of the Directive. That same paragraph states that such plans are to relate in particular to the type, quantity and origin of waste to be recovered or disposed of, general technical requirements, any special arrangements for particular wastes and suitable disposal sites or installations.
28. Although the wording of that provision makes clear that management plans must relate to ‘suitable disposal sites or installations’ for waste, it is nevertheless not possible, in the absence of any indication as to how those sites are designated, to infer from that wording that such plans must necessarily contain the precise location of waste disposal sites.
29. Moreover, Article 9(1) of the Directive provides that individual permits issued to establishments or undertakings which carry out disposal operations specified in Annex IIA to the Directive are to cover, inter alia, the ‘disposal site’. That provision does not preclude that the precise location of such a site could be decided only at the stage when the individual permit is issued.
30. In any event, management plans cannot in all cases be the only factor which determines the exact location of waste disposal sites, inasmuch as the final decision concerning location in some circumstances depends on the relevant rules relating to land-use planning and, in particular, the consultation and decision-making procedures implemented pursuant to Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40), as amended by Council Directive 97/11/EC of 3 March 1997 (OJ 1997 L 73, p. 5), or Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control (OJ 1996 L 257, p. 26).
31. Nevertheless, the argument put forward by PAGE at the hearing that management plans need not even contain location criteria for disposal sites cannot be accepted if the first subparagraph of Article 7(1) of the Directive is not to be rendered redundant in so far as it provides that management plans are to relate in particular to ‘sites’ which are suitable for waste disposal, a term which implies a geographical dimension to such plans.
32. In the absence of a geographical map specifying the location of future waste disposal sites, such location criteria must be chosen in the light of the objectives pursued by the Directive and be expressed with sufficient precision so that the authority to which an application for an individual permit under Article 9 of the Directive is made may in due course clearly determine the site which best meets those objectives, in the light, inter alia, of the most recent scientific and technical knowledge and the specific technical processes chosen for disposal.
33. Chief among those objectives is the protection of public health and the environment, which is the essence of Community legislation relating to waste (Case C-292/99 Commission v France [2002] ECR I-4097, paragraph 44). Those objectives also include the establishment of an integrated and adequate network of disposal installations, taking account of the best available technology not involving excessive costs, a network which must also enable waste to be disposed of in one of the nearest appropriate installations (Article 5(1) and (2) of the Directive).
34. As pointed out before the Court, the location criteria for disposal sites should therefore, where relevant, relate to geological and hydrogeological conditions, the distance of such sites from inhabited areas, the prohibition on establishing installations in the vicinity of sensitive areas or the existence of adequate infrastructure, such as connections to transport networks.
35. In those circumstances, the answer to the first question must be that Article 7 of the Directive must be interpreted to mean that the management plan or plans which the competent authorities of the Member States are required to draw up under that provision must include either a geographical map specifying the exact location of waste disposal sites or location criteria which are sufficiently precise to enable the competent authority responsible for issuing a permit under Article 9 of the Directive to determine whether the site or installation in question falls within the management framework provided for by the plan. Third question (Case C-217/02)
36. By this question, the national court asks whether Article 7(1) of the Directive must be interpreted to mean that Member States may draw up waste management plans without being bound by the time-limit for transposition laid down in the first subparagraph of Article 2(1) of Directive 91/156.
37. In that regard, the Court observed in paragraph 41 of Commission v France , cited above, that the words ‘as soon as possible’ in Article 7(1) of the Directive are an indication that the time-limit laid down in the first subparagraph of Article 2(1) of Directive 91/156 for the transposition of that directive does not relate to the obligation to draw up waste management plans. If that were the case, the words would be meaningless. The Court accordingly inferred that the words ‘as soon as possible’ are to be interpreted as stipulating, in principle, a reasonable period for compliance by the competent authorities of each Member State with that particular obligation, that period being unconnected with the period laid down for transposition of Directive 91/156.
38. The answer to the third question must therefore be that Article 7(1) of the Directive must be interpreted as requiring Member States to draw up waste management plans within a reaso nable period, which may go beyond the time-limit for transposing Directive 91/156 laid down in the first subparagraph of Article 2(1) of the latter. Second question (Cases C-53/02 and C-217/02)
39. By that question, the national court asks whether Articles 4, 5 and 7 of the Directive, read in conjunction with Article 9 thereof, preclude a Member State which has not adopted, within the period prescribed, one or more waste management plans relating to suitable sites or installations for waste disposal from issuing individual permits to operate such sites and installations.
40. The first subparagraph of Article 9(1) of the Directive states that it is ‘for the purposes of implementing Articles 4, 5 and 7’ that any establishment or undertaking which carries out the disposal operations specified in Annex IIA to the Directive must obtain a permit from the competent authority.
41. Those words denote that the implementation of management plans for the purpose of Article 7 of the Directive is meant to be carried out by issuing individual permits consistent with those plans. It does not, however, follow that the failure to adopt such plans necessarily prevents the competent authority from issuing any individual permit.
42. It is true that failure to draw up management plans may lead to an infringement procedure under Article 226 EC against the Member State concerned, seeking to have the Court declare that the Member State has failed to fulfil its obligations under Article 7 of the Directive. The Court has indeed held that a failure to fulfil the obligation to draw up waste management plans must be regarded as serious ( Commission v France , cited above, paragraph 44).
43. Nevertheless, the fact that transposition of Article 7 of the Directive may occur after the expiry of the time-limit laid down for the transposition of Articles 4, 5 and 9 of the Directive (see paragraphs 37 and 38 of this judgment) shows that an operating permit may be issued despite the failure to adopt a management plan beforehand. To require that an individual permit can be issued only after management plans which comply with the requirements of Article 7 of the Directive have been drawn up would result in the implementation of other provisions of the Directive, in particular Articles 4 and 5, being unduly delayed, to the detriment of achieving the objectives pursued by the Directive.
44. Such a delay would be particularly unacceptable in that it could lead to a situation where the disposal of waste would be seriously compromised as the result of an inadequate number of lawfully available disposal sites.
45. It is true that Article 8(b) of Directive 1999/31 provides that a landfill permit may not be issued unless the landfill project is in line with the relevant waste management plan or plans referred to in Article 7 of the Directive. None the less, Directive 1999/31 is not applicable to the main proceedings, inasmuch as both the permit issued on 21 May 1999 and the Ministerial Order of 16 December 1998 were formalised before the time-limit for transposing that directive expired.
46. In the light of the foregoing considerations, the answer to the second question must be that Articles 4, 5 and 7 of the Directive, read in conjunction with Article 9 thereof, must be interpreted as not precluding a Member State which has not adopted, within the period prescribed, one or more waste management plans relating to suitable sites or installations for waste disposal from issuing individual permits to operate such sites and installations.