C-206/88

OPINION OF MR JACOBS—JOINED CASES C-206/88 AND C-207/88

OPINION OF MR ADVOCATE GENERAL JACOBS delivered on 13 December 1989 *

My Lords, each of which it found the defendants guilty. Other courts, however, had taken the view that salvaged material which was capable of reuse did not constitute waste for the purposes of the decree. The referring 1. These cases come before the Court by court states that, in 1987, the Court of way of references for preliminary rulings by, Cassation delivered a ruling (judgment of in Joined Cases C-206/88 and C-207/88, 14 April 1987 Perino) upholding the the Pretura di Asti, and, in Case C-359/88, approach of that court. In spite of this, the Pretura di San Vito al Tagliamento. however, the referring court considers it They each concern the interpretation of desirable to seek the guidance of this Court, Directives 75/442/EEC on waste (Official as the decree was adopted to give effect to Journal 1975, L 194, p. 39) and 78 / 319 / three EEC directives, including the two EEC on toxic and dangerous waste (Official mentioned above. The question referred is Journal 1978, L 84, p. 43) and the effect of the same in both cases and asks: these directives in criminal proceedings before national courts. In view of the simi­ larity between the issues raised, I can consider all three cases in one Opinion.

Has the Italian legislature, in providing for the issue of individual regional author­ 5. The defendants, who are all based in the izations for the transportation of waste, region of Friuli Venezia-Giulia, undertake complied with the terms of Article 5 of the transportation of spent acid from that Directive 75/442 in the sense that the region to other regions of Italy. They are competent authorities would appear to be being prosecuted, again under the decree, limited to those responsible for a "given for having done so without the author­ zone"?' ization of the Friuli Venezia-Giulia regional administration.

is, or is intended to be, abandoned'. I note defendants in Case C-359/88 argue that in passing that Article 1 of the decree, since there is no precisely corresponding which is concerned with 'General Prin­ provision dealing with special waste, the ciples', refers to the reuse and recycling of transportation of such waste does not need waste within the meaning of Article 2, thus to be authorized. implying that a substance does not cease to be waste for the purposes of the decree simply because it can be dealt with in this way. 12. The opposing view is that the disposal (and therefore transportation) of special waste is, as a result of Articles 6(d) and 25 of the decree, always subject to author­ 10. Under Article 2(2) of the decree, waste ization in the case of waste produced by is divided into three categories: third parties. Article 25 of the decree provides for the imposition of criminal penalties on those who are responsible for the disposal of urban and special waste produced by third parties without having (a) urban waste, i.e. basically bulky waste obtained authorization in accordance with and waste discarded in public places; Article 6(d). This provision gives to the regions responsibility for authorizing under­ takings to carry out the disposal of urban and special waste produced by third parties.

(b) special waste, i.e. industrial residues and agricultural and commercial waste;

The directives

15. Article 5 of Directive 75/442 provides The Court's case-law that 'Member States shall establish or designate the competent authority or auth­ orities to be responsible, in a given zone, for the planning, organisation, authorization 18. This is not the first time the Court has and supervision of waste disposal oper­ had to consider Community legislation on ations'. waste. In Joined Cases 372/85 to 374/85 Ministère public v Traen and Others [1987] ECR 2141, the Court observed that Directive 75/442 was, as a result of the definition of waste given in Article 1, broad 16. Article 8 of Directive 75/442 provides in scope. However, it acknowledged that that '. . . any installation or undertaking the directive drew a distinction between treating, storing or tipping waste on behalf authorization and supervision, pointing out of third parties must obtain a permit from that the obligation to obtain a permit laid the competent authority referred to in down in Article 8 applied only to under­ Article 5, relating in particular to: takings disposing of waste on behalf of third parties. Undertakings which disposed of their own waste were, in accordance with Article 10, only 'subject to supervision by (i) the type and quantity of waste to be the competent authority referred to in treated, Article 5'.

19. As far as Article 5 was concerned, the (ii) general technical requirements, Court observed that no restrictive criteria as to the competent authorities to be estab­ lished or designated by the Member States were laid down. Member States therefore (iii) precautions to be taken, remained free in their choice of authority. Similarly, the discretion enjoyed by Member States in organizing the supervision required by Article 10 was limited only by the (iv) the information to be made available at requirement that the objectives of the the request of the competent authority directive, namely the protection of human concerning the origin, destination and health and the environment, be respected.

20. Directive 75/442 was also at issue, Government and the Commission and there along with three other directives, in Joined is a large measure of agreement between Cases 227/85 to 230/85 Commission them. On the interpretation of 'waste' for v Belgium [1988] ECR 1. There the the purposes of the directives, I agree with Commission had instituted proceedings them: the response to the questions referred under Article 171 of the Treaty against in Cases C-206/88 and C-207/88 and to Belgium for failure to comply with earlier the first question referred in Case C-359/88 judgments of the Court in which the Court must in my view be that 'waste' does cover had declared that, by failing to implement a things which are capable of reutilization and number of directives within the prescribed that the intention of the holder is not periods, Belgium was in breach of its obli­ relevant. gations under the Treaty. One of the arguments put forward by Belgium in its defence was that the delay in giving effect to the Court's earlier rulings resulted from difficulties arising from the transfer of a substantial number of powers to new 22. As the Court emphasized in Traen, the regional institutions. The Court observed: definition of waste laid down in Directive 75/442 is broad in scope and the same is necessarily true of the equivalent definition contained in Directive 78/319. Neither defi­ nition contains any suggestion that the intention of the holder is relevant. For them to do so would, in my view, be inconsistent 'As the Court stated in its judgments of with the purpose of the directives, for the 25 May 1982 (Cases 96/81 and 97/81 question whether a substance or object Commission v Netherlands [1982] ECR 1791 poses a threat to human health or the en­ and 1819 respectively), each Member State vironment is an objective, not a subjective, is free to delegate powers to its domestic one. It has nothing to do with the intention authorities as it considers fit and to of the person disposing of the substance. implement directives by means of measures Nor is the possibility of such a threat adopted by regional or local authorities. affected by whether or not the product can That division of powers does not however be recycled or reused. No one denies that release it from the obligation to ensure that the spent acid solution at issue in the provisions of the directives are properly Case C-359/88 is highly dangerous, implemented in national law' (paragraph 9). notwithstanding the fact that there are certain undertakings which can make use of it. Indeed, in view of the objectives of the directives, the Council had every reason to require that such a substance be subjected to the control procedures laid down in them. It is clear, in any event, from Articles 1(b) and The questions 3(1) and (2) of Directive 75/442 and Articles 1(c) and 4 of Directive 78/319, all of which refer in various terms to the reuse or recycling of 'waste', that the fact that a substance or object can be dealt with in this way does not affect the question whether it 21. Observations have been submitted in constitutes 'waste' for the purposes of the each of the present cases by the Italian directives in the first place.

23. Accordingly in my view a substance or 26. It is established that, in the absence of object may constitute waste within the implementing legislation, a directive cannot, meaning of the directives even if it is of itself, have the effect of determining or capable of being reused and regardless of aggravating the liability in criminal law of the holder's intention or purpose in persons who act in contravention of the disposing of it. But I think it is necessary in directive: see Case 14/86 Pretore di Salò v this case to add a qualification to the Persons Unknown [1987] ECR 2545 and answer which I have reached to the question Case 80/86 Kolpinghuis Nijmegen [1987] of interpretation. ECR 3969.

to them. In other circumstances, that be to impose criminal liability which would assumption would certainly be correct. The not otherwise arise. It is for the referring Court has stated that, in applying national courts to consider whether the national law, and in particular the provisions of a legislation at issue here can be interpreted national law specifically introduced in order consistently with the relevant directives, to implement a directive, national courts are without resorting to an extensive inter required to interpret their national law in pretation which would be contrary to the light of the wording and purpose of the the principle of legality. directive: see Case 14/83 Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891.

25. But that rule must, in my view, be were free to insist on permits in cases which qualified in criminal proceedings where the the directive only requires to be subject to effect of interpreting national legislation in supervision. that way would be to impose criminal liability in circumstances where such liability would not arise under the national legis lation taken alone. The reason for that qualification is that an extensive interpret ation of penal legislation runs counter to the 28. The transport of waste within the fundamental principle of legality (nullum meaning of Article 1 of the directive is not crimen, nulla poena sine lege). referred to in Article 8 as one of the oper-

31. I am therefore of the view that the questions referred in Joined Cases C-206/88 and C-207/88 and the first question referred in Case C-359/88 should be answered as follows:

'Article 1(a) of Directive 75/442 of the Council of 15 July 1975 and Article 1(a) of Directive 78/319 of the Council of 20 March 1978 must be interpreted as meaning that a substance or object may constitute waste for the purposes of those provisions even if it is capable of being reused and regardless of the holder's intention or purpose in disposing of it.

A court of a Member State is not required to interpret its national legislation in the light of the wording and purpose of a directive where the result would be to impose criminal liability in circumstances where such liability would not otherwise arise.'

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VESSOSO AND ZANETTI

32. The second question referred in Case C-359/88 should be answered as follows : 'Article 10 of Directive 75/442 must be interpreted as meaning that Member States are not required to subject the transport on behalf of third parties of waste within the meaning of Article 1(a) to prior authorization by the competent authority referred to in Article 5. Member States are not, however, precluded by the directive from requiring prior authorization in such cases.'