C-236/92

2. It is apparent from the order for reference that the national court wonders whether the 4. The Court has always declined to give a national implementing legislation is compat­ ruling on abstract legal questions, having ible with Community law, in so far as no emphasized in that connection that: measure intended to encourage the recycling of waste has been adopted, so that it will be now necessary to use tips for waste disposal. On the other hand, says the national court, if Italy had taken the measures necessary to '... the need to provide an interpretation of encourage waste disposal by recycling as Community law which will be of use to the soon as the directive came into force, there national court makes it essential to define the would not now be any need to establish legal context in which the interpretation requested should be placed ... in that respect, it may be convenient, in certain circum­ stances, for the facts in the case to be estab- * Origina! language: French. 1 — The wording of the questions appears in the Report for the Hearing, at 1.5. 2 — OJ 1975 L 194, p. 39. 3 — Order for reference, paragraph A.1. 4 — Ibid-, paragraphs 6.1. to 6.3.

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lished and for questions of purely national '... the need to arrive at an interpretation of law to be settled at the time the reference is Community law which is helpful to the made to the Court, so as to enable the latter national court makes it necessary for that to take cognizance of all the features of fact court to define the factual and legislative and of law which may be relevant to the background to the questions which it sub­ interpretation of Community law which it is mits or at least explain the factual hypotheses called upon to give'. 5 on which the questions are based'. 8

9. It should be borne in mind that the dis­ pute concerns the siting of waste tips within 10 the territory of Lombardy and the allega­ 7. Furthermore, in the Telemarsicabruzzo tion that the Italian regulations, providing 7 case, the Court held that it was inappropri­ only for the disposal of waste by tipping, are ate to give a ruling where inimical to the directive, which requires mea­ sures to be adopted to encourage recy­ 1 cling. 1 5 — Judgment in Case C-83/91 Meilicke v ADV/ORGA A. C. [1992] ECR 1-4871, paragraph 26. 6 — Judgment in Case C-343/90 Lourenço Dias [1992] ECR I- 4673, paragraph 19. See also the judgments in Case 244/80 8 — Paragraph 6. Foglia v Novello [1981] ECR 3045 and Joined Cases 98,162 and 258/85 Bertini [1986] ECR 1885. 9 — Ibid., paragraph 7. 7 — Judgment in Joined Cases C-320/90, C-321/90 and C-322/90 10 — Paragraph A.1. Of the order for reference. [1993] ECR I-393. 11 — Ibid., paragraphs 6.1 to 6.3.

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10. The first question concerns the direct 13. The Court has consistently held that: effect of Article 4 of the directive, which provides that:

'... wherever the provisions of a directive 'Member States shall take the necessary mea­ appear, as far as their subject-matter is con­ sures to ensure that waste is disposed of cerned, to be unconditional and sufficiently without endangering human health and precise, those provisions may be relied upon without harming the environment, and in by an individual against the State where the particular: State fails to implement the directive in national law by the end of the period pre­ scribed or where it fails to implement the 3 directive correctly'. 1 — without risk to water, air, soil and plants and animals,

16. It will therefore be for the national court 'in unequivocal terms'. to make certain — and to do so will not be difficult as it is the Lombardy region that is involved in this case — that the person against whom the directive is relied upon is 19. No party or intervener has pleaded in in fact 'the State', in the widest sense of the this Court that that provision has direct term, which includes all its agencies, even 17 effect, and I am of the same opinion. those that are decentralized.

20. It will be recalled that the directive has been the subject of numerous proceedings 17. Let us now examine the directive, and before this Court, both Treaty-infringement more particularly Article 4 thereof, in order actions and preliminary-ruling proceedings, to establish whether, being 'unconditional' with the result that, although it has not been and 'sufficiently precise', it can be relied on asked any question relating directly to the by any individual. contested provision, it has, on the other hand, already given judgments concerning its purpose.

18. It need only be recalled in that connec­ 21. As is apparent from its preamble, the tion that a Community provision is uncondit­ directive pursues two objectives: first, to ional where it is not ensure the requisite harmonization of national legislation on the disposal of waste so as to preclude obstruction of intra- Community trade and any adverse effect on 2 conditions of competition, 0 and, secondly, to protect 'human health and the environ­ 'subject, in its implementation or effects, to ment against harmful effects caused by the the taking of any measure either by the insti­ collection, transport, treatment, storage and 21 tutions of the Community or by the Mem­ tipping of waste'. 18 ber States',

'For the purpose of realizing those objec­ tives, the directives require the Member 24 States to adopt a number of measures', — supervision of undertakings engaged in the collection of waste (Article 10);

which are laid down in Article 5 et seq.:

— the 'polluter pays' principle (Article 11) . — designation of authorities responsible, in particular, for planning, authorization and supervision of waste disposal opera­ tions (Article 5);

24. As correctly pointed out by the United Kingdom in its observations, the sole pur­ — the drawing up of plans relating in pose of Article 4, which merely reiterates the particular to 'suitable disposal sites' third recital, is to define the objectives of the (Article 6); more specific measures contained in Articles 5 toll , but it cannot, in isolation, constitute a measure of that kind.

— delivery of waste to a disposal undertak­ ing (Article 7);

25. That is the view taken by the Court in — authorization of all undertakings 2 its judgment in Traen, 5in which, when called on to define the extent of the

28. In the present case — and contrary to 26. I therefore consider that, being neither the position where a directive has direct precise nor unconditional, the provisions of effect — the possibility of relying on it is not Article 4 cannot directly confer rights for the limited merely to actions brought against the benefit of individuals enabling them to rely State or agencies thereof since the national on it as against the public authorities. court applies its domestic law, which is thus interpreted in a manner such as to make it conform with the requirements of Commu­ nity law — which has prompted certain legal 27. That analysis must, however, be taken authors to take the view that, in such cases, 29 further since the Court's case-law has never­ 'indirect horizontal effect' is recognized. theless expounded the principle that national law should, as far as possible, be interpreted so as to conform with the requirements of Community law:

36. That provision confines itself to encour­ aging recourse to that method, and no obli­ 32. That question, in my view, should be gation in that regard can be inferred from it. answered in the negative — the date of adop­ tion of the directive and the terms used mili­ tate in favour of a flexible interpretation, as the Commission in fact acknowledged at the hearing. 37. On the other hand, as far as the location of tips is concerned, Article 6 requires the competent authorities to draw up plans for 'suitable disposal sites'. After the sites are 33. Adopted in 1975, the directive represents decided upon, the authorities must make cer­ the first joint action by the Member States, tain that waste is disposed of without endan­ as industrialized countries, in response to the gering human health and without harming pollution caused by poor management of the environment, for which purposes the waste or, in some cases, no management at objectives laid down in Article 4 must be all. observed. Those are the limits to which the freedom of action of those authorities is sub­ ject, although any measure for the disposal of waste is inherently liable to produce pol­ lution, whatever the method adopted. 34. It was for that reason that it was decided to establish a procedure for the inspection, by the public authorities or their appointees, of waste disposal operations. The legislation is concerned with plans for disposal rather than the imposition of one method of treat­ 38. As Article 4 does not require the Mem­ ment rather than another. ber States to dispose of waste by recycling it,

39. Let us move on to the second question 32 referred by the national court, concerning 43. However, in its judgment in Ferwerda, the legality of a system which, it is submit­ the Court stated that ted, does not adequately protect the rights of individuals under Community law, since, because those rights are assimilated to 'interessi leggitimi' (protected interests), the court is required, if it considers that an expert's report is necessary in order to give 'it is for the courts of the Member States to judgment, to appoint an agent of the admin­ provide, in pursuance of the requirements of istration, even though the latter is itself a cooperation embodied in Article 5 of the party to the dispute. Treaty, the legal protection made available as a result of the direct effect of the Commu­ nity provisions both when such provisions create obligations for the subject and when they confer rights on him. It is, however, for 40. My views on this point, as on the fol­ the national legal system of each Member lowing questions, will be set out in the alter­ State to determine the courts having jurisdic­ native since, in my opinion, Article 4 must tion and to fix the procedures for applica­ be interpreted as not placing the Member tions to the courts intended to protect the States under any obligation to give prefer­ rights which the subject obtains through the ence to the treatment of waste by recycling direct effect of Community law but such and accordingly individuals cannot claim procedures may not be less favourable than that a right vested in them has been similar procedures concerning internal mat­ infringed. ters and may in no case be laid down in such a way as to render impossible in practice the exercise of the rights which the national 33 courts must protect'. 41. The national court asks this Court for a ruling in an area which is customarily referred to as the procedural autonomy of the Member States.

49. How can this principle of effective pro­ tection be reconciled with the lack of any guarantee of neutrality on the part of the expert, whose role is to provide clarification '... where Community law confers rights on for the court with absolute impartiality, individuals, national courts must provide an when the expert is employed by the admin­ appropriate and effective remedy in respect istration and the latter is a party to the pro­ of infringement by the national authorities of ceedings? 3 those rights'. 5

50. The principle of effective protection is 47. Similarly, I consider that where the thereby compromised since, principally in Community provision confers rights, genu­ technical matters where the administration is ine protection for them necessarily implies the other party, an ordinary individual has that experts appointed by the court must be no standing to challenge what the adminis­ independent so that the inquiries can be tration says. The expert must thus reflect the

34 — Case 380/87 [I989] ECR2491. 36 — Case 179/84 [1985] ECR2301. 35 — Paragraph 19, at p. 2509. 37 — Paragraph 17, emphasis added.

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independence of the judge, the need for conflicting provision of national legislation, which has been recognized by this Court. even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such provision by 40 legislative or other constitutional means'.

40 — Paragraph 24. 41 — Case 61/79 Amministrazione delle Finanze dello Stato v 38 — See, most recently, the judgment in Case C-24/92 Corbiatt [1993] ECR0000. Denkavit Italiana [1980] ECR 1205. 39 — Case 106/77 Amministrazione delle Finanze dello Stato v 42 — Paragraph 16, emphasis added. Simmenthal [1978] ECR 629. 43 — Paragraph 17.

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and it concluded: since Article 4 does not in itself confer any rights on individuals and that provision, read in conjunction with Article 6, cannot be 'Such a restriction may, however, be allowed interpreted as preventing Member States only in the actual judgment ruling upon the from having recourse to tipping for the dis­ interpretation sought. The fundamental need posal of waste or limiting their power to do for a general and uniform application of so — quite the contrary. Community law implies that it is for the Court of Justice alone to decide upon the temporal restrictions to be placed on the 44 57. Let us now consider the fourth question, interpretation which it lays down', in which the national court asks whether, restrictions which may be imposed only where it considers that a law is contrary to exceptionally. Community law, it must guarantee the rights of defence of the national or regional legis­ lature, so that the latter must, for that pur­ 55. In the more specific context of the ques­ pose, come before it. tion submitted, namely the possibility of leaving intact the application of national rules that are incompatible with Community law, it need only be stated that a national 58. This, as the observations submitted to court could not be allowed to take such a the Court make clear, is a question which course without compromising both the pri­ falls entirely within the scope of Italian macy and the uniform application of Com­ national law and, therefore, is not within the munity law. jurisdiction of this Court under Article 177.

national courts in order to obtain the annulment of a decision of a national authority adopted within the scope of that provision on the ground that the internal rules did not provide for the measures needed to encourage recycling as a method of disposing of waste.

(2) In the alternative,

(a) Community law precludes national rules which limit the protection of rights duly granted to individuals by a Community provision by requiring the appointment, as expert, of an employee of the administration, the latter being a party to the dispute;

(b) where, in order to ensure the full effectiveness of a Community provision which vests rights in individuals, a national court is prompted, on its own initiative, to disapply a conflicting provision of national law, it cannot restrict the effects of its decision, any such restriction, in so far as it is based on the second paragraph of Article 174 of the EEC Treaty, being a matter within the exclusive jurisdiction of the Court of Justice of the European Communities.

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