C-304/94

Giovanni Muzi and Others (C-342/94),

Anselmo Savini (C-224/95),

on the interpretation of Council Directive 91/156/EEC of 18 March 1991, amend- ing Directive 75/442/EC on waste (OJ 1991 L 78, p . 32), of Council Directive 91/689/EEC of 12 December 1991 on hazardous waste (OJ 1991 L 377, p. 20), and of Council Regulation (EEC) N o 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Commu- nity (OJ 1993 L 30, p. 1),

Language of the case: Italian.

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JUDGMENT OF 25. 6.1997 —JOINED CASES C-304/94, C-330/94, C-342/94 AND C-224/95

— the Danish Government (C-304/94, C-330/94 and C-342/94), by Peter Bier- ing, Kontorchef, acting as Agent,

— The French Government (C-304/94, C-330/94 and C-342/94), by Edwige Bel- liard, Deputy Director, Directorate for Legal Affairs, Ministry of Foreign Affairs, and by Jean-Louis Falconi, Secretary for Foreign Affairs in the same Directorate, acting as Agents,

— the Netherlands Government (C-304/94, C-330/94, C-342/94 and C-224/95), by Johannes G. Lammers. acting Legal Adviser, acting as Agent,

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TOMBESI AND OTHERS

— the United Kingdom Government (C-224/95), by John E. Collins, of the Treasury Solicitor's Department, acting as Agent, and Derrick Wyatt, Q C ,

1 By orders of 27 October (C-304/94), 14 November (C-342/94), 23 November (C-330/94) and 15 December 1994 (C-224/95), received at the Court Registry on 17 November (C-304/94), 12 December (C-330/94), 30 December (C-342/94) and 27 June 1995 (C-224/95), the Pretura Circondariale di Terni (C-304/94, C-330/94 and C-342/94) and the Pretura Circondariale di Pescara (C-224/95) referred to the

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JUDGMENT OF 25. 6.1997 —JOINED CASES C-304/94, C-330/94, C-342/94 AND C-224/95

Court of Justice for a preliminary ruling under Article 177 of the EC Treaty a number of questions on the interpretation of Council Directive 91/156/EEC of 18 March 1991, amending Directive 75/442/EEC on waste (OJ 1991 L 78, p. 32), of Council Directive 91/689/EEC of 12 December 1991 on hazardous waste (OJ 1991 L 377, p. 20), and of Council Regulation (EEC) N o 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community (OJ 1993 L 30, p. 1).

2 Those questions were raised in criminal proceedings against Euro and Adini Tombesi, Roberto Santella, Giovanni Muzi and Others, and Anselmo Savini, who are accused of transporting, discharging, disposing of or incinerating urban and special waste produced by third parties without first obtaining authorization from the competent Region.

The Community legislation on waste

7 That list, commonly referred to as the European Waste Catalogue, applies to all waste, whether intended for disposal or recovery. However, the fact that a substance is mentioned on it does not mean that it is waste in all circumstances. A n entry is only relevant when the definition of waste has been satisfied (see introduc- tory notes 2 and 3 to the European Waste Catalogue).

8 Council Directive 78/319/EEC of 20 March 1978 on toxic and dangerous waste (OJ 1978 L 84, p. 43) was repealed with effect from 12 December 1993 by Direc- tive 91/689. Council Directive 94/31/EC of 27 June 1994 amending Directive 91/689 (OJ 1994 L 168, p. 28) deferred the repeal of Directive 78/319 until 27 June 1995.

9 The fifth recital in the preamble to Directive 91/689 indicates that it is necessary, in order to improve the effectiveness of the management of hazardous waste in the Community, to use a precise and uniform definition of hazardous waste based on experience.

io To that end, Article 1(3) of Directive 91/689 refers to the definition of waste given in Directive 75/442 and Article 1(4) particularizes the definition of hazardous waste. Council Decision 94/904/EC of 22 December 1994 establishing a list of hazardous waste pursuant to Article 1(4) of Council Directive 91/689/EEC on hazardous waste (OJ 1994 L 356, p. 14) supplements Directive 91/689 and also refers, in the annex thereto, to the definition of 'waste' in Article 1(a) of Directive 75/442.

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JUDGMENT OF 25. 6.1997 — JOINED CASES C-304/94, C-330/94, C-342/94 AND C-224/95

H Decree-Law N o 397 of 9 September 1988 {GURI N o 213 of 10 September 1988, p. 3), converted into Law N o 475 of 9 November 1988 (GURI N o 264 of 10 November 1988, p . 3), lays down special rules concerning industrial waste, together with penalties for infringements (see Article 9 octies). That decree-law

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introduced for residues from production processes capable of re-use as substitute raw materials ('secondary raw materials') arrangements which differed from those applicable to waste in general.

is According to the orders for reference, the Corte Suprema di Cassazione has inter- preted that decree-law as simply defining a legal framework, so that D P R 915/82 continues to apply until specific rules have been adopted. The Corte Suprema di Cassazione considered that that decree-law did not treat substitute raw materials as a specific category.

ie A series of decree-laws entitled 'Provisions concerning the re-use of residues deriv- ing from production or consumption cycles in a production or combustion process and concerning the disposal of waste' have, however, been adopted as from November 1993 (Decree-Law N o 443 of 9 November 1993 (GURI N o 264 of 10 November 1993)) in order to complete that legal framework.

20 The decree-laws draw a distinction between 'waste' and 'residues' and provide for simplified procedures for the collection, transport, treatment and re-use of residues as defined by decrees of the Minister of the Environment. For example, Decree- Law N o 246 applies by virtue of Article 1 thereof to 'activities aimed at the re-use of residues derived from production or consumption cycles'. Article 2(1 )(b) of the decree-law defines a 'residue' as a 'residual substance or material deriving from a production or consumption process and capable of re-use'.

2i Article 5 of D L 246/96 contains simplified rules for the treatment, storage and re-use of residues listed in Annexes 2 and 3 to Decree of the Minister of the Envi- ronment of 5 September 1994 (Supplemento Ordinario N o 126 to GURI N o 212 of 10 September 1994, hereinafter 'the D M of 5 September 1994') and to the Decree of the Minister of the Environment of 16 January 1995 (Supplemento Ordi- nano to GURI N o 24 of 30 January 1995).

22 The abovementioned decree-laws exclude from their scope 'materials quoted with specific commodity characteristics in commodity exchanges or official lists drawn up by the Chambers of Commerce, Industry, Craft and Agriculture ... as set out in Annex 1 to the Decree of the Minister of the Environment of 5 September 1994' (see Article 3(3) if D L N o 246/96). Annex 1 to the latter decree, cited above, lists the residues considered to be secondary raw materials.

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23 By virtue of Article 8 of DL 246/96, operations involving the treatment, storage and re-use of residues deriving from production or consumption cycles not referred to in Article 5 remain subject to the authorization regime laid down by DPR 915/82.

25 In Case C-304/94 Euro Tombesi and Adino Tombesi are charged inter alia under Article 25(11) of D P R N o 915/82 with the offence of discharging without autho- rization marble rubble and debris from marble worked by Sotema, a firm of which they are the proprietors and legal representatives. They are also charged with fail- ing to keep the required records of loading and unloading and with making false declarations.

26 In Case C-330/94 Roberto Santella is charged under Articles 16 and 26 of DPR N o 915/82 with producing without authorization toxic and dangerous waste, con- sisting of pitch obtained from the emissions produced by electro-static filters used in cooking ovens, to be disposed of by burning.

27 Finally, in Case C-342/94 Giovanni Muzi and Others are charged with inter alia an offence contrary to Article 25(1), in conjunction with Article 6, of DPR N o 915/82 concerning specific waste known as 'sansa' (olive oil residues).

28 Before the Pretura Circondariale di Terni, the defendants in the main proceedings claimed that the substances and objects involved were no longer regarded as waste under rules introduced by a later legislative measure, which meant that the conduct complained of no longer constituted an offence.

29 The Pretura Circondariale di Terni considered that the urgent adoption of DL N o 530/94 was contrary to the applicable Community directives, in so far it removed an entire category of waste from the scope of DPR 915/82 and the Com- munity legislation.

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5. Whether waste may be classified as a re-usable residue without its character- istics or purpose being defined to that end and may thus fall outside the scope of the EEC legislation on waste;

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JUDGMENT OF 25. 6.1997 — JOINED CASES C-304/94, C-330/94, C-342/94 AND C-224/95

6. Whether waste which is merely ground without its characteristics being altered in any way may become a residue falling outside the EEC legislation on waste where the future reutilization of such ground residue has not been established.'

Case C-224/95

3i In Case C-224/95 Anselmo Savini is charged under Article 25(1) of Presidential Decree N o 915/82 with the offence of transporting, until 1 October 1991, without the authorization of the Region of Abruzzo special waste produced by Elios Sri (hereinafter 'Elios') and sold to SIA Sri (hereinafter 'SIA'), a company authorized by the Region of Marche to collect and transport such materials. Elios, which manufactures electro-mechanical assemblies and electrical machinery, sold its scrap, consisting of unsheathed copper left over from the manufacture of copper windings, fragments of cable, ferrous material, ferrous scrap and mixed scrap, to SIA.

(2) Does the concept of waste arising out of Directives 91/156/EEC and 91/689/EEC and Regulation (EEC) N o 259/93 cover any substance which the addressee disposes of, has decided to dispose of or is under a duty to dispose of, regardless of the fact that the substance to be reutilized may be the subject of a legal transaction or quoted on public or private commercial lists?'

35 By order of the President of the Court of 26 January 1995, Cases C-304/94, C-330/94, C-342/94 were joined for the purposes of the written and oral p r o - cedure and the judgment. By order of 7 February 1996, those cases and Case C-224/95 were joined for the purposes of the written and oral procedure and the judgment.

The admissibility of the preliminary questions

36 It must be noted at the outset that, although the Court may not, under Article 177 of the Treaty, decide upon the validity, in regard to Community law, of a provision of domestic law, as it would be possible for it to do under Article 169 of the EC Treaty (see, for example, Case 6/64 Costa v ENEL [1964] ECR 585), it neverthe- less has jurisdiction to supply the national court with an interpretation of Com- munity law on all such points as may enable that court to determine that issue of

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JUDGMENT OF 25. 6.1997 — JOINED CASES C-304/94, C-330/94, C-342/94 AND C-224/95

40 Furthermore, whilst it seems that some of the events in the main proceedings pre- date the entry into force of Directives 91/156 and 91/689, the orders for reference contain an explanation of those events and the national courts have expressly referred in their questions to those Community measures. It is therefore appropri- ate to consider all the questions referred to the Court.

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TOMBESI AND OTHERS

Substance

4i By their questions, which it is appropriate to consider together, the Preture Cir- condariali of Terni and Pescara seek to ascertain essentially whether the concept of 'waste' referred to in the Community rules must be taken to exclude substances or objects capable of economic re-use.

42 First, it must be borne in mind that, according to settled case-law (see, in particu- lar, Case C-168/95 Arcaro [1996] ECR 1-4705, paragraph 36), a directive which has not been transposed may not create obligations for an individual and a provision of a directive may not therefore be relied upon as such against such a person.

46 Accordingly, it must be concluded that, in order to ensure that the national sys- tems for supervision and control of shipments of waste conform with minimum criteria, Article 2(a) in Title I of Regulation N o 259/93, referring to Article 1 (a) of Directive 75/442, as amended, laid down a common definition of the concept of waste which is of direct application, even to shipments within any Member State.

47 As regards the interpretation of the Community legislation on waste, it must be borne in mind that, according to settled case-law, the concept of waste within the meaning of Article 1 of Directive 75/442, in its original version, and Article 1 of Directive 78/319 was not to be understood as excluding substances and objects which were capable of economic reutilization. National legislation which defines waste as excluding substances and objects which are capable of economic reutiliza- tion is not compatible with Directive 75/442, in its original version, and Directive 78/319 (Case C-359/88 Zanetti and Others [1990] ECR 1-1509, paragraphs 12 and 13, and Case C-422/92 Commission v Germany [1995] ECR 1-1097, paragraph 22).

48 That interpretation is not affected either by Directive 91/156, which amended the first of those two directives, or by Directive 91/689, which repealed the second (see Germany v Commission, cited above, paragraph 23), or by Regulation N o 259/93.

49 Thus, under Article 3(1) of Directive 75/442, as amended, the Member States are to take measures to encourage, first, the prevention or reduction of waste production and its harmfulness and, second, the recovery of waste by means of recycling, re-use or reclamation or any other process with a view to extracting secondary raw materials or the use of waste as a source of energy. The sixth recital in the

53 As the Advocate General points out in paragraphs 60 and 61 of his Opinion, a deactivation process intended merely to render waste harmless, landfill tipping in

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JUDGMENT OF 25. 6.1997 — JOINED CASES C-304/94, C-330/94, C-342/94 AND C-224/95

hollows or embankments and waste incineration constitute disposal or recovery operations falling within the scope of the Community legislation. The fact that a substance is included in the category of re-usable residues without any details being given as to its characteristics o r use is irrelevant in that regard. The same applies to the grinding of waste.

54 The answer to the questions referred to the Court must therefore be that the con- cept of 'waste' in Article 1 of Directive 75/442, as amended, referred to in Article 1(3) of Directive 91/689 and Article 2(a) of Regulation N o 259/93 is not to be understood as excluding substances and objects which are capable of economic reutilization, even if the materials in question may be the subject of a transaction or quoted on public or private commercial lists. In particular, a deactivation pro- cess intended merely to render waste harmless, landfill tipping in hollows or embankments and waste incineration constitute disposal or recovery operations falling within the scope of the abovementioned Community rules. The fact that a substance is classified as a re-usable residue without its characteristics or purpose being defined is irrelevant in that regard. The same applies to the grinding of a waste substance.

Costs

The concept of 'waste' in Article 1 of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC of 18 March 1991, referred to in Article 1(3) of Council Directive 91/689/EEC of 12 December 1991 on hazardous waste and Article 2(a) of Council Regulation (EEC) N o 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community, is not to be under- stood as excluding substances and objects which are capable of economic reuti- lization, even if the materials in question may be the subject of a transaction or quoted on public or private commercial lists. In particular, a deactivation pro- cess intended merely to render waste harmless, landfill tipping in hollows or embankments and waste incineration constitute disposal or recovery opera- tions falling within the scope of the abovementioned Community rules. The fact that a substance is classified as a re-usable residue without its characteris- tics or purpose being defined is irrelevant in that regard. The same applies to the grinding of a waste substance.

Mancini Kapteyn Ragnemalm

Delivered in open court in Luxembourg on 25 June 1997.

R. Grass G. F. Mancini

Registrar President of the Sixth Chamber

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