C-372/85
ECLI:EU:C:1987:69
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OPINION OF MR MANCINI — JOINEDCASES 372 TO 374/85
OPINION OF MR ADVOCATE GENERAL MANCINI delivered on 5 February 1987 *
Mr President, a permit and, as a result, operating a waste- Members of the Court, disposal plant without authorization.
1. The questions to be considered by the The questions submitted by the Bruges court Court, which were submitted under Article are as follows: 177 of the EEC Treaty in three judgments of 30 October 1985 of the Seventh Chamber of the Rechtbank van Eerste Aanleg (Court of First Instance), Bruges, call for an inter 1. According to what criteria should it be pretation of certain rules of Council determined whether a waste-disposal Directive No 75/442 of 15 July 1975 on undertaking is subject to the provisions waste (Official Journal 1975, L 194, p. 47). of Articles 8 to 12 of Directive No The questions were raised in the course of 75/442? Is a casual or isolated operation three criminal actions against Oscar Traen, sufficient or must other criteria be Camiel Quicke, Edouard Quicke and Remi satisfied, concerning for example the Vanhove, the private limited company objects of the company, the operations Quicke PVBA being joined to the actually carried out (main or subsidiary proceedings as the party liable to pay any activity or repeated operations), the costs and fines. likely effect on the environment and so forth?
Quicke PVBA is a waste-disposal under taking; Camiel Quicke, the proprietor, 2. Is a carrier who discharges waste on the Oscar Traen, his driver, Edouard Quicke instructions, at the request or with the and Remi Vanhove, who operate two other permission of the owner or occupier of companies, collected, transported, and on ¡and who has acquired ownership of the some occasions processed and then waste, required to obtain a permit and discharged on property in the country, with does a similar obligation fall upon an the permission of the occupants or owners, owner or occupier who, without himself waste deriving mainly from septic tanks, discharging waste, gives his consent cesspits, settlement tanks, soakaways, thereto? rainwater tanks, sawmills and granite- washing plants. They are charged with infringement of the Flemish Regional Law of 2 July 1981, which gave effect to Directive No 75/442, and numerous 3. Does a discharge permit issued by the implementing decrees, by discharging waste director of a water-purifying company individually or together, failing to apply for set up by the authorities of a Member
* Translated from the Italian.
MINISTÈRE PUBLIC v TRAEN
State comply with the requirements of It is based on Articles 100 and 235 of the Articles 5 and 8 of the directive? Treaty and is designed both to avoid any disparity between conditions of competition between undertakings and — in particular — to protect human health and the environ ment from the harmful effects of waste 4. To what extent are the Member States disposal (first and third recitals in the free to organize the supervision referred preamble). The terms 'waste' and 'disposal' to in Article 10 of the directive? are defined in Article 1. Waste means 'any substance or object which the holder disposes of or is required to dispose of pursuant to the provisions of national law in 5. Do the obligations imposed by Articles 8 force' (paragraph (a)); disposal includes 'the and 12 of the directive apply directly to collection, sorting, transport and treatment undertakings or does their application of waste as well as its storage and tipping depend upon the prior creation or desig above or under ground' and also 'the trans nation by the Member State of the formation operations necessary for its competent authority to which under re-use, recovery or recycling' (paragraph takings may apply, inter alia in order to (b)). obtain the necessary permit, and upon the adoption of the necessary implementing rules, regarding such matters as the forms to be used for the deposit of waste, in view of the fact that the directive entered into force by virtue Next, a number of obligations are imposed of its notification to the Member States upon the Member States. Article 3 requires and not by publication in the Official them to take appropriate steps to encourage Journal of the European Communities the prevention, recycling and processing of (Article 191 of the EEC Treaty and waste, the extraction of raw materials and Article 13 of the directive)? possibly of energy from it; they must inform the Commission of any draft rules and comply with the rules contained in Article 4 which embody the principal objective of the directive. Accordingly, waste must be By order of 4 December 1985 the Court disposed of without risk to human health joined the three cases for the purposes of and without damage to the environment. the oral procedure and judgment. The Other measures are prescribed in Article 7: Procureur des Konings attached to the Member States are required to ensure that referring court, the accused, Mr Vanhove, any holder of waste has it handled by a and the Commission of the European private or public waste collector or disposes Communities have submitted observations of it himself in accordance with the prin which concur to a considerable extent. ciples laid down in Article 4.
2. For a better understanding of the questions, it is appropriate to describe the purposes and the main provisions of the Article 5 is of fundamental importance. It directive which the Court is called upon to requires the Member States to designate one interpret. or more authorities to plan, authorize and
OPINION OF MR MANCINI—JOINED CASES 372 TO 374/85
supervise waste disposal, specifying in and, in the latter case, must it be carried out particular the 'natural or legal persons' on a continuing basis? empowered to carry out the disposal of waste (Articles 5 and 6). Among such persons, a distinction is drawn between operators acting on behalf of third parties The answer is not difficult. As I have said, and those who treat their own waste. the directive is intended principally to secure Undertakings of both kinds are subject to the adoption of national rules to ensure that supervision by the competent authorities waste disposal does not threaten human (Article 10), but only the former are health or damage the environment. Such a required to obtain a permit (Article 8), and wide-ranging objective necessarily implies must undertake to satisfy certain conditions, that the directive applies to all kinds of periodical inspections being carried out operators, regardless of their legal classifi (Article 9) to ensure that they are being cation and the greater or lesser frequency of fulfilled. their disposal activities. Moreover, the wording of several parts of the directive favours that interpretation. Thus, as regards the tipping of waste, the directive draws no By virtue of Article 11 and of the 'polluter distinction between regular, sporadic or pays' principle, the cost of disposal, less any single instances of tipping and attaches no proceeds derived from treating it, are to be importance to the manner (spreading, borne by (a) the holder who has waste discharging, and so forth) in which tipping handled by a waste collector or duly auth is carried out. Of even more importance is orized undertaking; (b) the previous holders the fact that it is apparent from Articles 7 or the producer of the product from which and 11 that the disposal operations may be the waste came. carried out not only by an undertaking in the technical sense but also by the actual holder of the waste or a public or private collector. Finally, Article 12 provides that every three years the Member States are to forward to the Commission a situation report on waste disposal and, for that purpose, the under Of course, what I have said is subject, in the takings referred to in Articles 8 and 10 are case of Article 8, to the condition that the to supply the competent authorities with undertaking must dispose of waste on behalf particulars of the operations carried out by of third parties. them.
4. The second question is intended to 3. I shall now consider the questions establish (a) whether, where waste is submitted to the Court. As will be recalled, deposited on behalf of third parties on land the first concerns the criteria for establishing on the instructions, at the request or with to whom and, in particular, to what under the consent of the owner or occupier of the takings the directive applies. The central land, the carrier is obliged to obtain a issue is the degree of intensity with which permit; and (b) whether, by reason of his the disposal operations are carried out. Is it consenting to waste being deposited, the sufficient if that activity is occasional or owner or occupier who has acquired must waste disposal necessarily be one of ownership of the waste is also required to the objects of the undertaking and therefore obtain a permit from the authorities constitute its main or a subsidiary activity indicated in Article 5.
MINISTÈRE PUBLIC v TRAEN
As regards the first limb of the question, all I should point out that Article 10 speaks in that need be said is that according to the general terms of 'supervision by the undoubtedly binding rule contained in competent authority". From this, it seems to Article 8 an undertaking may dispose of me, it must be inferred that the Member waste on behalf of third parties only if it is States enjoy a considerable degree of ' authorized to do so by a public authority; as freedom in determining the measures to be a result, there is no question of its being taken — provided, of course, that such possible for the latter to be replaced by a measures do not conflict with the objectives private individual such as the owner of the of the directive as laid down in Article 4. property where the discharging takes place. The solution to the second problem is to be found in the fact that Article 8 itself requires permits to be obtained only by 7. In the fifth question, the national court undertakings operating on behalf of third raises the age-old problem of whether
parties. However, in connection with the directives which have not been implemented measures referred to in Articles 3, 4 and 7, in due time or in the proper manner by a the Member States may extend that obli Member State are to be recognized as gation to others and in particular to the effective; in other words, it asks whether holders of waste who themselves carry out Articles 8 and 12 apply directly to under disposal. It is the responsibility of the takings which dispose of waste. Member States to decide whether a measure of that kind is necessary for the attainment of the objectives pursued by the directive. In the present case — it is true — the provisions at issue do not confer rights, but impose obligations; and in a recent
5. Thirdly, the Bruges court asks whether judgment (of 26 February 1986 in Case the authorities empowered to grant permits 152/84 Marshall v Southampton and may include the director of a public water- South-West Hampshire Health Authority purification company. (Teaching) [1986] ECR 723) the Court held that provisions of that kind did not have direct effect. However, I shall not refer the Here too the answer is easy. As we know, national court to that judgment, the scope the directive merely requires the Member of which is a matter for further reflection; I States to designate one or more authorities shall answer its question in a more practical responsible for authorizing the disposal way by pointing out that, for the obligations operations in a given zone (Articles 5 and laid down in the two articles in question to
8). There is, therefore, nothing to prevent be given effect, it is necessary to enact the authority to issue permits for certain national legislation. The function of the types of waste (for example, effluents) from obligation laid down in Article 8 is to ensure being vested in the person mentioned in the compliance with the 'measures taken question. pursuant to Article 4'; and the purpose of the obligation laid down in Article 12 is to enable Member States to discharge their duty to forward a report on waste disposal
6. The fourth question concerns the extent to the Commission every three years. Deter of the discretion enjoyed by Members States mination of the scope and of the regarding organization of the supervision of arrangements to be adopted for undertakings which dispose of their own implementing such provisions is therefore waste and of those which dispose of waste the duty, and the right, of the Member on behalf of third parties. States.
OPINION OF MR MANCINI — JOINEDCASES 372 TO 374/85
8. In view of all the foregoing considerations, I propose that the Court should give the following answers to the questions submitted by the Seventh Chamber of the Rechtbank van Eerste Aanleg, Bruges, by judgments of 30 October 1985 in proceedings against Oscar Traen, Camiel Quicke, Edouard Quicke, Remi Vanhove and Quicke PVBA:
'1. Articles 8 to 12 of Directive No 75/442 of 15 July 1975 are to be interpreted as being applicable to all persons engaged in waste-disposal operations, subject, as regards Article 8, to the condition that such persons are acting on the instructions of third parties. The legal classification of such persons and the frequency with which they dispose of waste are irrelevant.
2. Article 8 of Directive No 75/442 is to be interpreted as meaning that the permit provided for therein must be granted by the public authority designated for that purpose by the Member States in accordance with Article 5 thereof and may not be replaced by an order, request or authority from the owner or occupier of the land on which the waste is discharged.
Even though that article imposes the obligation to obtain a permit only on installations or undertakings which dispose of waste on behalf of third parties, the Member States may, by adopting the measures provided for in Article 4, extend that obligation to the holders of waste who dispose of it themselves.
3. Pursuant to Article 5 of Directive No 75/442, it is incumbent upon the Member States to designate one or more competent authorities to issue permits for the disposal of waste. Therefore, there is nothing to prevent a public water- purification undertaking from being designated for that purpose.
4. Article 10 of Directive No 75/442 is to be interpreted as meaning that the Member States enjoy a considerable degree of discretion in organizing the supervision to be exercised by the competent authorities over all waste-disposal undertakings. However, the measures adopted must be in conformity with the objectives of the directive as laid down in Article 4.
5. Articles 8 and 12 of Directive No 75/442 are to be interpreted as meaning that no obligations are directly imposed by them upon the undertakings involved. The latter fulfil their obligations by complying with the implementing measures adopted by the Member States.'