C-304/94

O P I N I O N O F MR J A C O B S — J O I N E D CASES C-304/94, C-330/94, C-342/94 A N D C-224/95

O P I N I O N O F ADVOCATE GENERAL JACOBS delivered o n 24 O c t o b e r 1996 *

1. The present cases form part of a large Council Directive 75/442/EEC on waste, 2 number of cases currently pending before required Member States to establish a general the Court concerning the Community legis- system of authorization and supervision of lation on waste. ' In these cases the Pretura waste disposal operations (Article 5). Any Circondariale di Pescara and the Pretura Cir- installation or undertaking treating, storing condariale di Terni seek guidance on the or tipping waste on behalf of third parties extent to which industrial residues fall to be was required to obtain a permit from the classified as 'waste' and hence are subject t o competent authority (Article 8). Undertak- the system of regulation introduced by the ings transporting, collecting, storing, tipping Community rules. or treating their own waste, and those which collected or transported waste on behalf of third parties, were also subject to supervision by the competent authority designated by the Member State (Article 10). 'Waste' was broadly defined in Article 1(a) of the Direc- tive as 'any substance or object which the The relevant Community legislation holder disposes of or is required to dispose of pursuant to the provisions of the national law in force'. 'Disposal' was defined in Article 1 (b) as:

2. Notwithstanding the absence of a specific legal basis for environmental legislation in the original EEC Treaty, the Council adopted in the 1970s and early 1980s a series of directives on waste on the basis of Articles 100 and 235. The main directive,

7. O n 18 March 1991 the Council adopted 4 Directive 91/156/EEC 7 substantially amend- 4. Council Directive 76/403/EEC laid ing Directive 75/442. The Directive, which down specific rules for the disposal of poly- was adopted on the basis of Article 130s chlorinated biphenyls and polychlorinated inserted by the Single European Act, intro- terphenyls. duces a more detailed definition of waste and reinforces the obligations on Member States with respect to waste management. In keep- ing with the requirements of Article 130r of the Treaty the amendments made by the Directive 'take as a base a high level of envi- ronmental protection' (first recital in the pre- 5. Council Directive 84/631/EEC, 5 as amble). The Directive recognizes the need to amended by Council Directive ensure a 'common terminology and a defini- 86/279/EEC, 6 established a system of super- tion of waste' in order to improve the effi- vision and control of the transfrontier ship- ciency of waste management (third recital) ment of hazardous waste. 'Hazardous waste' and notes that 'any disparity between Mem- meant essentially toxic and dangerous waste ber States' laws on waste disposal and recov- as defined in Article 1(b) of Directive 78/319. ery can affect the quality of the environment and interfere with the functioning of the internal market' (fifth recital). The preamble also notes the need to complement respon- 3 — Council Directive 78/319/EEC of 20 March 1978 on toxic and dangerous waste, OJ 1978 L 84, p. 43. sible removal and recovery of waste by mea- 4 — Council Directive 76/403/EEC of 6 April 1976 on the dis- sures restricting production of waste (fourth posal of polychlorinated biphenyls and polychlorinated ter- phenyls, OJ 1976 L I 08, p. 41. recital) and emphasizes the desirability of 5 — Council Directive 84/631/EEC of 6 December 1984 on the encouraging the 'recycling of waste and supervision and control within the European Community of the transfrontier shipment of hazardous waste, OJ 1984 L 326, p. 31. 6 — Council Directive 86/279/EEC of 12 June 1986 amending Directive 84/631/EEC on the supervision and control within the European Community of the transfrontier shipment of 7 — Council Directive 91/156/EEC of 18 March 1991, OJ 1991 hazardous waste, OJ 1986 L 181, p. 13. L 78, p. 32.

— recovers or disposes of it himself in accordance with the provisions of this Directive.' — without causing a nuisance through noise or odours,

— without adversely affecting the country- 10. Articles 9 and 10 of the amended Direc- side or places of special interest. tive provide for the issue by the competent

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national authorities of permits to establish- 12. The term 'waste' is defined in the first ments or undertakings which carry out waste subparagraph of Article 1 (a) of the amended disposal or recovery operations within the Directive as: meaning of Annex IIA or Annex IIB. Article 11(1) provides, without prejudice to Directive 78/319 on toxic and dangerous waste, that Member States may exempt from the permit requirement establishments or undertakings carrying out their own waste disposal at the place of production and car- 'any substance or object in the categories set rying out waste recovery. However, that out in Annex I which the holder discards or exemption applies only if the competent intends or is required to discard'. authorities have adopted general rules for each type of activity laying down the types and quantities of waste and the conditions for exemption and if the types or quantities of waste and methods of disposal or recov- ery are such that the conditions imposed in Article 4 are complied with. Article 11(2) provides that exempt undertakings must be 13. The second subparagraph of Article 1(a) registered with the competent authorities, adds that: and Article 11(3) requires Member States to inform the Commission of the general rules adopted under paragraph 1.

'Rl solvent reclamation/regeneration,

'the E W C is an harmonized, non-exhaustive list of wastes, that is to say, a list which will be periodically reviewed and if necessary revised in accordance with the committee procedure. R2 recycling/reclamation of organic substances which are not used as sol- vents,

However, the inclusion of a material in the E W C does not mean that the material is a waste in all circumstances. The entry is only R3 recycling/reclamation of metals and relevant when the definition of waste has metal compounds, been satisfied.'

16. As already noted, the system of permits R4 recycling/reclamation of other inor- introduced by Articles 9 and 10 of the Direc- ganic materials, tive applies to both disposal and recovery of waste. Article 1(e) of the amended Directive defines 'disposal' as any of the operations

8 — Commission Decision 94/3/EC of 20 December 1993, OJ 1994 L 5, p. 15. R5 regeneration of acids or bases,

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Rl 1 use of wastes obtained from any of the 9 — OJ 1991 L 377, p. 20. The Directive was itself modified by Council Directive 94/31/EC, OJ 1994 L 168, p. 28. operations numbered R1-R10, 10 — OJ 1993 L 30, p. 1

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15) and waste intended for recovery appears from the orders for reference that (Articles 6 to 11 and Articles 16 and 17). the Italian Court of Cassation has inter- preted that decree-law as merely laying down a legal framework, so that Presidential Decree N o 915 continues to apply until such time as specific rules are laid down; the Court of Cassation has also held that the lat- The relevant Italian legislation ter decree does not envisage a separate cat- egory comprising secondary raw materials.

11 — Gazzetta Ufficiale della Repubblica Italiana (GURI) 14 — The final decree-law with that title, Decree-Law N o 246 of N o 343 of 15 December 1982, p. 9071. 3 May 1996 (GURI N o 106 of 8 May 1996), was replaced 12 — GURI N o 213 of 10 September 1988, p. 3. by Decree-Law N o 352 of 8 July 1996 on rules governing 13 — GURI N o 264 of 10 November 1988, p. 3. waste recovery activities (GURI N o 158 of 8 July 1996).

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22. The decree-laws distinguish between Decree of the Minister of the Environment 'waste' and 'residues' and provide for simpli- of 5 September 1994' (see Article 3(3)). fied procedures for the collection, transport, Annex 1 of the latter decree, cited above, sets treatment and re-use of residues as defined out residues considered to be secondary raw by Decree of the Minister of the Environ- materials. ment. For example, Decree-law N o 246 of 3 May 1996, in force at the time of the hear- ing before this Court, applies by virtue of Article 1 to 'activities aimed at the re-use of residues derived from production or con- sumption cycles'. Article 2(1 )(b) of the Decree-law defines 'residue' as a 'residual 24. By virtue of Article 8 of the Decree-Law substance or material deriving from a pro- operations involving the treatment, storage duction or consumption process capable of and re-use of residues deriving from produc- re-use'. Article 5 lays down a mere notifica- tion or consumption cycles not referred to in tion (rather than authorization) requirement Article 5 remain subject to the legal and for the treatment, storage and re-use of resi- authorization regime laid down by Presiden- dues listed in Annexes 2 and 3 of the Decree tial Decree N o 915 of 10 September 1982 and of the Minister of the Environment of 5 Sep- Presidential Decree N o 203 of 24 May 1988. tember 1994 15 and the Decree of the Minis- ter of the Environment of 16 January 1995. 16

(6) The provisions of Presidential Decree N o 915 ... do not apply in so far as they regulate and punish activities which the present Decree regulates and classifies as '(1) Does the EEC legislation provide for being aimed at the re-use of residues. The the exclusion from the definition of penalties provided for by Presidential Decree waste and the relevant rules relating to N o 915 ... apply where the residues are not the protection of health [and] of the actually and objectively destined for re-use.' environment of substances and objects which are capable of economic reutiliza- tion?

The facts and the national courts' questions

without authorization a load of marble has a sought a ruling on the following mat- rubble and debris from marble worked by a ters: firm of which they are the proprietors and legal representatives. They are also charged with failing to keep the required records of loading and unloading and with making false declarations. 'The Pretura di Terni asks the Court of Jus- tice of the European Communities to give a preliminary ruling by way of interpretation to establish whether the definitions of "waste" and "waste destined for recovery" laid down in Council Directive 91/156/EEC of 18 March 1991 and Council Directive 91/689/EEC of 12 December 1991 and Regulation (EEC) N o 259/93 of 1 Feb- 29. In Case C-330/94 Roberto Santella is ruary 1993 should at present continue to be charged under Articles 16 and 26 of Presi- understood and interpreted in the light of dential Decree N o 915/82 for causing with- the previous case-law of the Court and out authorization toxic and dangerous waste, whether at the same time those two defini- consisting of pitch obtained from the emis- tions may in every case be regarded as sions produced by electro-static filters used including all materials, in so far as they are in cooking ovens, to be disposed of by burn- residual, derived from production or con- ing. sumption cycles in a manufacturing or com- bustion process and, if so, whether those materials as well are to be regarded from the point of view of Community rules as being subject to the system established by the abovementioned directives.

30. Finally, in Case C-342/94 Giovanni and Paolo Astori Muzi are charged with inter In addition, this court refers that question to alia an offence contrary to Article 25(1), in the Court of Justice for a ruling on the inter- conjunction with Article 6, of Presidential pretation of the abovementioned Commu- Decree N o 915/82 concerning specific waste nity legislation, in particular as to: called 'Sansa' (olive oil residues).

32. The Commission questions the admissi- bility of the last five questions put by the Pretura Circondariale di Terni in Cases C-304/94, C-330/94 and C-342/94 on the ground that the orders for reference fail to explain their link with the facts of the cases. — whether waste incineration may be included among the recovery of materials simply because marketable residues are obtained therefrom and may conse- quently fall outside the system laid down by the Community legislation on waste and in particular outside the incineration rules; 33. It seems to me that the questions con- cerning landfill and incineration relate to the prosecutions in the Tombesi and Santella cases respectively. The penultimate question, which is of more general relevance, appears to be prompted by the national court's con- cern that the decree-laws envisage the exclu- sion of re-usable residues from the rules on waste without any guarantee of re-use. — whether waste may be classified as a re-usable residue without its characteris- tics or purpose being defined to that end and may thus fall outside the scope of the E E C legislation on waste;

34. Admittedly, the precise connection with the facts of the present cases of the second question, concerning a deactivation process intended to render waste harmless, and the final question, concerning the grinding of waste, is unclear (although the former ques- — whether waste which is merely ground tion appears to be directly relevant to the without its characteristics being altered in facts of a more recent identically worded ref- any way may become a residue falling erence from the Pretura di Terni in Case outside the E E C legislation on waste C-26/95 Ivana Rosi, in which the accused is where the future reutilization of such charged with operating without authoriza- ground residue has not been established.' tion a plant rendering harmless and dispos-

35. There are however two other matters which can conveniently be dealt with here. 36. There is however secondly a point of First, it is clear that in at least three of the Community law to which the national cases the facts took place before the adoption courts' attention should be drawn. As of the first of the abovementioned decree- already noted, the national courts' questions laws, namely Decree N o 443 of November appear to be intended to test the compatibil- 1993, and before the final date for implemen- ity with Community law of the decree-laws tation of Directive 91/156, namely 1 April adopted in derogation from the general rules 1993. It might therefore be wondered why on waste laid down by Presidential Decree the national courts should have put ques- N o 915. Thus the national courts appear to tions designed to test the compatibility of assume that, if the decree-laws were incom- the provisions of decree-laws not yet patible with Community law, they should be adopted with those of a directive which had set aside, allowing the prosecutions to pro- not yet taken effect. The explanation appears ceed on the basis of Presidential Decree to lie in the third paragraph of Article 2 of N o 915. the Italian Penal Code, which lays down the principle — known to a number of legal sys- tems — that, where the provisions applicable at the time of the facts and later provisions differ, the provisions which are more favour- able to the accused take precedence. Under the fifth paragraph of Article 2 of the Penal 37. The Court has held that, in the absence Code the more favourable provision prin- of proper implementation in national law, a ciple applies even where a decree-law is not directive cannot of itself impose obligations approved or is converted with amendments. on individuals and in particular cannot 'have

17 — See, most recently, the judgment of 26 September 1996 in Case C-168/95 Luciano Aratro, where the Court re-affirmed its judgments in Case 152/84 Marshall [1986] ECR 723, Case 14/86 Pretore di Salò [1987] ECR 2545 and 19 — Joined Cases C-206/88 and C-207/88 [1990] ECR 1-1461, Case 80/86 Kolpinghuis Nijmegen [1987] ECR 3969. paragraph 8 of the judgment. See also Case C-359/88 Zanetti & Others [1990] ECR 1-1509, paragraphs 12 and 13. 18 — Sec the Opinion of Advocate General Ruiz-Jarabo Colomcr of 18June 1996 in Joined Cases C-74/95 and C-129/95 20 — See paragraph 8 of the judgment in Vessoso. Criminal proceedings against X, at paragraph 43 et seq. 21 — Case C-422/92 [1995] ECR 1-1097.

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44. The Danish Government, on the other hand, contends that the notion of waste cov- ers all residual products. Residual products are by definition not the goal sought by a production process. They do not have a con- stant economic value. Their use depends on what markets are available for them. The Danish Government adds that an apparently 42. Before turning to those questions it is innocuous substance may prove dangerous necessary to examine a little more closely for the environment. than in previous cases the scope of the notion of waste in the Community legisla- tion. In that connection it may be helpful first to review the submissions made to the Court. Written observations were submitted by Mr Savini, by the Danish, French, Italian, Netherlands and United Kingdom Govern- ments and by the Commission. With the exception of the French Government, all of 45. Although less explicit, the French Gov- the foregoing also presented oral argument at ernment also seems to take a broad view of the hearing. the notion of waste, observing that waste,

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47. The Netherlands and United Kingdom 48. The United Kingdom argues that a Governments take an intermediate view. The substance is to be regarded as waste if it Netherlands Government points out that the leaves the normal commercial cycle or the term 'discard' is used in two separate ways normal chain of utility and is consigned to a since the Directive covers both disposal and specialized recovery operation such as those recovery of waste. The Directive does not in Annex IIB, a matter which must be extensively set out when a substance is to be decided on a case-by-case basis. The United regarded as a secondary raw material and Kingdom illustrates its approach by refer- when it is to be described as waste. The envi- ence to the facts of the main proceedings. ronmental objectives underlying the waste With reference to scrap metal, for example, directives mean that very stringent condi- the United Kingdom observes that metallic tions must be fulfilled before a substance can residues which can be used as a raw material be categorized as a secondary raw material without further processing and high-grade and that that is possible only in exceptional steel and non-ferrous scrap meeting the tech- cases. In the Netherlands the following crite- nical specifications necessary for smelting in ria have been laid down for that purpose: the a furnace operation do not constitute waste.

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However, it points out that in practice fur- on what is meant by 'disposal operation' and ther processing will in most cases be 'recovery operation'. required before smelting is possible.

52. It may nevertheless be inferred from the term 'recovery operation' itself and from the 50. The necessary starting point in apprais- list in Annex IIB set out above that what is ing those arguments is the definition given to entailed by 'recovery' is a process by which the term 'waste' in Article 1(a). That provi- goods are restored to their previous state or sion states that waste is any substance or transformed into a useable state or by which object in the categories set out in Annex I certain usable components are extracted or which the holder 'discards or intends or is produced. It follows that, as the Italian, required to discard'. It seems to me that little Netherlands and United Kingdom Govern- is to be gained by considering the normal ments suggest, goods which are transferred meaning of the term 'discard'. It is clear from to another person and put to continued use the provisions of the Directive, in particular in their existing form are not 'recovered' in Article 4, Articles 8 to 12 and Annexes IIA the above sense. 21 Thus a second-hand and B, that the term 'waste' and the regula- motor vehicle sold to another person for tory system of the Directive extend both to continued use as a motor vehicle does not substances or objects which are disposed of constitute waste. and to those which are recovered. Thus the term 'discard' employed in the definition of waste in Article 1(a) has a special meaning 22 — Sec also Jürgen Fluck, T h e term "waste" in EU law', Euro- encompassing both the disposal of waste and pean Environmental Law Review, 1994, p. 79. For a discus- sion of Fluck's and the United Kingdom's approach see its consignment to a recovery operation. The Ilona Chcyne and Michael Purdue, 'Fitting definition to purpose; the search for a satisfactory definition of waste', scope of the term 'waste' therefore depends Journal of Environmental Law, 1995, p. 149.

53. However, the distinction implicit in the those listed in Annex IIB, it must be Directive between goods which are the sub- regarded as waste until such time as it is ject of continued use in their existing form recovered. and those which are subject to a recovery operation seems somewhat artificial. Cer- tainly it is easy to see that recovery would include, for example, the recycling of glass from broken bottles by returning it to a fur- nace. Such an operation is readily recogniz- able as a recovery operation because it involves the recycling of the components of an existing end product in order to produce another end product. In other cases, how- 54. The problem, however, is that the dis- ever, it may be difficult to distinguish tinction between recovery of waste and nor- between recovery and continued processing mal processing of raw materials is somewhat of raw materials or intermediate products. fragile. In economic terms waste which is That is particularly so in relation to residues destined for recovery and use as a substitute or by-products from production processes. raw material in an industrial process is a raw Although residues are not expressly referred material even before it is recovered. It is, for to in Annex IIB, they are mentioned as spe- example, conceivable that a producer might, cific categories of waste in Annex I. Clearly, depending on commercial conditions, switch if residues are disposed of by their holder to the use of a substitute raw material and they constitute waste. However, by analogy even adapt his process to accommodate a with the operations listed in Annex IIB, it residue or by-product directly, integrating also seems that the consignment of a residue the 'recovery' operation into the normal pro- to a process designed to transform it or cer- cess. Equally a manufacturer may need to treat or refine a naturally occurring primary tain of its components into a usable raw raw material before he uses it in a produc- material constitutes a recovery process tion process; yet this would presumably not within the meaning of the Annex. Indeed be considered a recovery process. Article 3(l)(b)(i) of the Directive requires Member States to take appropriate measures to encourage 'the recovery of waste by means of recycling, re-use or reclamation or any other process with a view to extracting secondary raw materials' (my emphasis). Moreover, many of the items listed in Annex IIB, for example Rl ('Solvent recla- mation'), R2 ('Recycling/reclamation of organic substances 'which are not used as sol- vents'), R3 ('Recycling/reclamation of metals 55. The difficulty therefore arises in inter- and metal compounds'), would be capable of preting and applying the Directive that the including recovery of residues from indus- concept of 'recovery operation', upon which trial processes. Thus I share the French Gov- the definition of waste in part depends, is not ernment's view that, where a residue cannot exhaustively defined in the Directive and be used in a normal industrial process with- may be inherently difficult to apply in some cases. Moreover there is an element of circu- out undergoing a recovery operation such as larity: whether there is 'recovery' depends on

whether there is 'waste', which in turn Directive stands at present, I think it must to depends on whether there is 'recovery'. It some extent be left to Member States to seems to me that the way to overcome that develop more detailed criteria to apply the difficulty is not to seek to lay down a com- term 'recovery operation' to the various situ- prehensive definition but to work by ations which may occur in practice. Such an example, in other words to examine whether approach is consistent with the division of the holder of an object or substance consigns responsibilities between the Court and the or intends to consign it to one of the opera- national courts under the Treaty. It is for the tions listed in Annex IIB or to an analogous national courts to apply the Directive to the operation. facts of the potentially large number of bor- derline cases which may arise in practice. The role of the Court should be limited to providing national courts with the interpre- tative guidance which they require. In that regard it is clear that 'waste' must be inter- preted broadly in the light of the objective of ensuring a high level of environmental pro- tection and in particular covers objects o r substances even where they have a commer- cial value and are destined for further use if 56. Contrary to the Commission's view, it they must first undergo a recovery operation seems to me therefore that the approach of listed in, or analogous to those listed in, the Netherlands and United Kingdom Gov- Annex IIB. ernments of distinguishing between goods belonging to the normal commercial cycle and waste by examining 'whether an object or substance is consigned to a recovery operation is entirely in keeping with the Directive. I accept the Commission's argu- ment that to some extent a case-by-case approach is necessary. However, I think the Commission perhaps overlooks the Member States' need to lay down practical rules and guidelines for the day-to-day application of the Directive providing the necessary degree 57. It is in fact probably unnecessary in the of legal certainty for individuals; that is par- present cases to determine the extent of any ticularly so since failure to respect national discretion left to the Member States since it implementing rules may lead to the imposi- is clear that the Italian decree-laws which tion of criminal penalties. The definition of prompted'the national courts' questions are 'waste' in the Directive is imprecise and inconsistent with the Directive. A residue open-ended, and it is clear that the Member cannot be removed from the scope of the States have found it difficult to apply to the Directive simply because it is quoted with various situations which may occur in prac- specific commodity characteristics in com- tice. The Italian Government has stated that modity exchanges or official lists drawn up the problem of distinguishing between sec- by Chambers of Commerce and Industry. ondary raw materials and residues has been That a recognized market exists for a the subject of discussion in the committee set substance is not sufficient even to raise a pre- up under Article 18 of the Directive. As the sumption that it does not constitute waste.

Under the Directive the sole question is residual product may prove dangerous for whether the substance in issue is subject to a the environment and that such products do disposal or recovery operation within the not have a constant economic value. H o w - meaning of Annex IIA or B. ever, the same may be true of the substances •which are the primary goal of a production process. The Directive does not seek to regu- late the processing, transport and storage of all products which may be harmful to the environment — it merely regulates waste, i. e. substances or objects which are disposed of or which undergo a recovery process. Moreover, it seems to me that the concept of 58. I also disagree with Mr Savini's sugges- a product which is the primary goal of a pro- tion that the classification of an object or duction process would be unworkable. A substance depends on the manner in which production process may result in a range of the holder treats it. The fact that a seller of products with individual markets and fluctu- scrap metal treats the scrap as goods sold in ating market values. the normal course of its business and applies its normal invoicing and accounting routines is immaterial. For example, the turnover of a garage 'which fits new batteries in motor cars might consist in part in the sale of used bat- teries which it removes from its customers' cars to a company which extracts and regen- erates the acids which they contain; the income from the sale of the old batteries may even affect the pricing of the new batteries. There can however be no doubt that the regeneration of the acids contained in the batteries constitutes a recovery operation •within the meaning of Item R5 of Annex IIB and that the old batteries used for that pur- 60. I now turn to the more specific ques- pose constitute waste within the meaning of tions put by the Pretura di Terni in the sec- the Directive; that is so regardless of how the ond paragraph of its questions. It seems to garage treats such sales for accounting and me that the essential point to bear in mind in budgetary purposes. replying to those questions is that the accused in the main proceedings are seeking to have the substances in question classified as re-usable residues rather than waste des- tined for disposal in order to be able to evade the application of the rules laid down by Presidential Decree N o 915. The main point to be conveyed to the Pretura, there- fore, is that under the Community legislation 59. I do not, on the other hand, share the there is no separate category of re-usable Danish Government's view that all residual residues and that a substance destined for products that are not the primary goal of a either disposal or recovery is subject to the production process constitute waste. I accept rules on waste. While I broadly agree with its point that an apparently innocuous the views 'which the Commission expresses

Conclusion

62. I am therefore of the opinion that the Court should reply as follows to the questions put by the Pretura di Pescara (Case C-224/95) and the Pretura di Terni (Cases C-304/94, C-330/94 and C-342/94):

In Case C-224/95

The Community rules on waste, in particular those laid down in Council Directive 75/442/EEC (as amended by Council Directive 91/156/EEC), Council Directive 91/689/EEC and Regulation (EEC) N o 259/93, apply to any substances or objects which the holder discards or intends or is required to discard, even where

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