C-58/95

* Original language: English. B. In particular, this court seeks to ascertain 1 — OJ 1991 L 78, p. 32. whether the existence of criminal penalties,

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OPINION OF MR FENNELLY — JOINED CASES C-58/95, C-75/95, C-112/95, C-119/95, C-123/95, C-135/95, C-140/95, C-141/95, C-154/95 AND C-157/95 and in particular those provided for in Directive 78/319/EEC of 20 March 1978 on Article 25 et seq. of Presidential Decree toxic and dangerous waste (hereinafter 'the N o 915/82 for failure to observe the Italian 1978 Toxic Waste Directive'). 5 Article 1 of rules, may be considered to conflict with DPR 915/82 lays down a number of general Community legislation intended to ensure principles, while Article 2 provides a classifi- uniform treatment for operators in the Single cation of types of waste, distinguishing Market including as regards penalties.' between urban waste, special waste and toxic and dangerous waste. In accordance with Article 6(d), a permit is required for certain activities connected with waste disposal, and the setting up and management of tips and plants to render harmless and dispose of spe- cial waste. Article 25, first paragraph, pre- 4. Identically worded questions were scribes imprisonment of from three months referred to the Court by the same court in to one year and a fine, of from Cases C-75/95 Censi, C-112/95 Salinaggi, LIT 1 000 000 to LIT 5 000 000, for the car- C-123/95 Zappone, C-135/95 Segna and rying out, without such a permit, of the fol- Others, C-140/95 Cernetti, C-141/95 lowing activities: Gasbarri, C-154/95 Narducci, and C-157/95 Smaldone, and by the Pretura Circondariale, Rome, Castelnuovo di Porto Division, in Case C-119/95 Pasquire. These cases were joined by order of the President of the Court of 19 June 1995. 2

6. Law N o 475 of 9 November 1988 6 has, however, not asked any question con- (hereinafter 'Law 475/88') establishes certain cerning the 1978 Toxic Waste Directive, 7 and urgent provisions concerning the disposal of I do not therefore propose to deal with it. industrial waste. Article 3(3) of Law 475/88 requires those who produce certain types of waste, or who own plants for the disposal of such waste, to give notice to the Region or Province of the quantity and quality of waste disposed of in a given year. Article 3(5) (a) The 1975 Waste Directive extends the obligation to keep loading and discharge registers to producers of special waste derived from industrial processing and the activities of artisans. Article 9 octies (3) provides for imprisonment not exceeding six months and a fine not exceeding LIT 10 000 000 for breaches of the obligation 8. This Directive is based on Arti- to give notice under Article 3(3) or the obli- cles 100 and 235 of the EEC Treaty. The gation to keep the loading and discharge reg- third recital in the preamble notes that 'the isters under Article 3(5). essential objective of all provisions relating to waste disposal must be the protection of human health and the environment against harmful effects caused by the collection, transport, treatment, storage and tipping of waste'. Its central provision, Article 4, reads as follows:

IV — The relevant Community provisions

'Member States shall take the necessary measures to ensure that waste is disposed of without endangering human health and without harming the environment and in particular:

— without adversely affecting the country- side or places of special interest.' 11. Installations or undertakings which treat, store or tip waste on behalf of third parties must be duly authorized, and are subject to periodic inspections (Articles 8 and 9). Undertakings which transport, collect, store, tip or treat their own waste, and those which collect or transport waste on behalf of third 9. Article 1 of the 1975 Directive defines the parties, though they do not require a permit, terms 'waste' and 'disposal'. Article 2(1) are 'subject to supervision by the competent allows Member States to adopt specific rules authority' (Article 10). Finally, '[in] accord- for particular categories of waste, while Arti- ance with the "polluter pays" principle, the cle 2(2) excludes listed types of waste from cost of disposing of waste, less any proceeds the scope of the Directive. Member States are derived from treating the waste' must be obliged to 'take appropriate steps to encour- borne by the holder or producer of such age the prevention, recycling and processing waste (Article 11). of waste, the extraction of raw materials and possibly of energy therefrom and any other process for the re-use of waste' (Article 3). As regards the management of waste, the Member States are to 'establish or designate the competent authority or authorities to be responsible, in a given zone, for the plan- (b) The 1991 Waste Directive ning, organization, authorization and super- vision of waste disposal operations' (Arti- cle 5); these authorities must then draw up waste disposal plans (Article 6).

as 'producer', 'holder of waste', and 'man- 14. Article 5 requires the Member States, in agement' (of waste), and refers to Annexes to cooperation with each other, 'to establish an the Directive for the determination of the integrated and adequate network of disposal scope of 'waste', 'disposal' and 'recovery'. installations ... [which] must enable the Apart from gaseous effluents, other cate- Community as a whole to become self- gories of waste are to be excluded only 'where sufficient in waste disposal and the Member they are already covered by other legisla- States to move towards that aim individually tion'; specific rules for particular categories ...'. The Member States must establish or of waste, which the 1975 Directive left to the designate the authority responsible for discretion of the Member States, are to be implementing the Directive, in particular the laid down by means of individual directives drawing up of a waste management plan or and hence would have a Community charac- plans (Articles 6 and 7). Furthermore, the ter (Article 2). Member States are obliged to authority so designated is responsible — a give priority to 'the prevention or reduction matter of particular relevance in this case — of waste production and its harmfulness' by for granting permits to establishments or encouraging the development of clean tech- undertakings carrying out activities governed nologies and less polluting production prac- by the Directive. tices, the harmless disposal of dangerous substances in waste for recovery, and the responsible removal and recovery of waste (Article 3).

16. Articles 9 to 14, at least in their amended 17. Written observations have been submit- form, are central to the approach of the ted only by the French Government and the national court, particularly as regards the Commission, but not by either the Italian first question. Articles 9 to 11 concern per- Government or any of the numerous defen- mit requirements, and are examined in detail dants in the main proceedings. In accordance below. 9 Article 12 governs the stages of with Article 104(4) of its Rules of Procedure, waste treatment prior to disposal or recov- the Court decided not to hold an oral hear- ery, and certain ancillary activities. It pro- ing. vides that '[establishments] or undertakings which collect or transport waste on a profes- sional basis or which arrange for the disposal or recovery of waste on behalf of others (dealers or brokers), where not subject to authorization, shall be registered with the competent authorities'. In accordance with 18. Both the French Government and the Article 13, all establishments or undertakings Commission have laid emphasis on the lack which collect, transport, dispose of or of information, in the orders for reference, recover waste, including dealers and brokers, on the factual background to the main pro- are subject to periodic inspections. Those ceedings. The former considers some such who carry out disposal or recovery opera- details to be essential for a proper under- tions must also keep certain records of the standing of the exact nature of the legal waste they treat, and make these available to problem referred to the Court, but it the competent authorities; producers of deduces from the orders for reference that waste may also be required to comply with the national court is seeking a ruling on the these obligations, at the option of the Mem- possible incompatibility of the Italian legisla- ber States (Article 14). In application of the tion with the 1991 Waste Directive. The 'polluter pays' principle, Article 15 provides Commission assumes from the Italian legal provisions cited that most of the alleged offences concern the failure to obtain a per- 9 — See paragraphs 23 and 27 of the present Opinion. mit for the disposal and transfer of waste, or

the breach of the obligation to maintain reg- Court has no jurisdiction under Arti- isters, both of which attract criminal sanc- cle 177 of the Treaty to provide consultative tions under the relevant provisions of opinions on general or hypothetical ques- DPR 915/82 and Law 475/88. 1 0It proposes tions, or which would not assist the national that, in order to provide the national judge court in resolving the case before it. 13 By the with a useful interpretation of the Commu- same token, the Court must take note of any nity provisions, the Court should establish inherent assumptions regarding the interpre- whether the 1991 Waste Directive has sub- tation of Community law which are appar- stantially modified the regime of the ent from the orders for reference. 1975 Waste Directive by no longer obliging the Member States to require a permit for the discharge, disposal and recovery of waste, and hence to apply sanctions where such permit has not been obtained. I agree that this matter is central to the approach of the national court. 20. The orders for reference in the present proceedings make a number of assumptions concerning the interpretation of the 1991 Waste Directive; these in turn qualify the meaning which should be attributed to the questions put to the Court, and the answers the Court can give which would most assist the referring court in applying national provisions giving effect to Commu- 19. Since the orders for reference have pro- nity law. I therefore propose to examine the vided little information concerning the assumptions underlying each of the ques- national provisions in question and none on tions before making a recommendation as to the factual background, it is appropriate at the answers which should be given. the outset to interpret the questions in the light of the context in which they were referred. In accordance with its consistent case-law, the Court is, in principle, bound to provide a ruling 'where the questions put by the national court concern the interpretation of a provision of Community law'. 1 1The 21. This approach corresponds with that fol- Court is, however, entitled to examine the lowed by the Court in its judgment in Dela- conditions in which a request for a prelimi- vant. 14 There the question referred by the nary ruling has been referred to it, especially national court proceeded from a particular in order to decide whether, and to what assumption concerning the interpretation of extent, it has jurisdiction to answer the ques- the relevant provisions of Council Regu- tions submitted to it. 12 In particular, the lation (EEC) N o 1408/71 regarding the

Similarly, Article 10 reads as follows: 22. The orders for reference proceed from the key assumption that, in accordance with the 1991 Waste Directive, a Member State is not allowed to require a permit for the car­ rying out of recovery or disposal operations. From this it concludes that, as the relevant national rules do impose a permit require­ 'For the purposes of implementing Article 4, ment, Italy has failed to transpose the Direc­ any establishment or undertaking which car­ tive. It is in the light of this conclusion that ries out the operations referred to in Annex the Court is requested to provide 'a prelimi­ II Β must obtain a permit' (emphasis added). nary ruling on the legal effect of the Italian Republic's failure to bring into force the nec­ essary measures to implement Council Directive 91/156/EEC within the prescribed time-limit'. 24. The national court clearly considers that these provisions do not apply to 'the prelim­ inary stages such as collection, storage, tem­ porary tipping and transport of waste'. It further states:

23. The interpretation of the 1991 Waste Directive thus adopted by the national court fails to take account of the wording of the Directive, and particularly of Articles 9 'It [the 1991 Waste Directive] renders the system of authorization regarding recovery less rigorous in content than that regarding 15 — Paragraphs 12 to 19 of the judgment. disposal, making it possible for anyone

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involved in recovery or a producer disposing should also be subject to authorization or of his own waste to do so without a permit.' registration and appropriate inspection'.

26. This approach ignores a number of key factors of the 1991 Waste Directive, but above all ignores its character as a directive, which leaves to the Member States a certain liberty of choice as to the form and methods of implementation, in accordance with Arti- 27. Most revealingly, Article 11 allows cle 189 of the Treaty. Furthermore, the Member States to provide for an exemption Directive itself contains several indications of from the permit requirement for establish- the intention that Member States should ments or undertakings carrying out their ensure control of all forms of activity in the own waste disposal at the place of produc- handling of waste. In particular, the twelfth tion (Article ll(l)(a)), and for establishments recital in the preamble states the Council's or undertakings which carry out waste view that: recovery (Article ll(l)(b)). This is, however, merely an option for the Member States, which is, furthermore, subject to the three conditions laid down by Article 11(1):

'In order that waste can be monitored from its production to its final disposal ... under- takings [other than those exempted from the — any exemption granted shall be 'without permit requirement] involved with waste, prejudice' to the 1978 Toxic Waste such as waste collectors, carriers and brokers Directive;

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30. The answer to the first question should therefore, in my view, be that the 1991 Waste Directive obliges the Member States to 28. This article, read together with the ensure that establishments and undertakings twelfth recital in the preamble, shows that which carry out recovery operations or the obligation to obtain a permit is not which carry out their own waste disposal at restricted under the Directive in the manner the place of production obtain a permit to do assumed by the national court. In any event, so, and that these activities may only be car- no provision prohibits the Member States ried out without a permit where the Member imposing such a requirement. State has opted to grant an exemption from the permit requirement, in accordance with the conditions fixed by Article 11(1) of the 1991 Waste Directive. Nothing in the Direc- tive would preclude a Member State from also requiring a permit for the carrying out of other activities in connection with the 29. The national court has not supplied any recovery and disposal of waste which are information on whether the conditions for covered by the Directive. the granting by the relevant authorities in Italy of permit exemptions were fulfilled. It must be emphasized in this regard that, under the terms of the Directive, the Mem- ber States enjoy a discretion as to whether or not to avail themselves of the permit exemp- tion facility; no question of a breach of a given Member State's obligations would 31. Should the Court decline to follow the arise, should it not grant such an exemption. analysis of the first question proposed above, One could even go so far as to say that, if the it would be necessary to examine whether granting of permit exemptions in a particular the orders for reference have, in relation to Member State would undermine the level of this question, complied with the basic the protection of human health and of the requirements of Article 177 regarding the

definition by the national court of 'the fac- proceedings occurred, which could be tual and legislative context of the questions it important, for example, for the question of is asking or, at the very least ... the factual the legal consequences of any failure by Italy premisses on which those questions are properly to implement the provisions of the based'. 16 Clearly, the provision of such Directive. They do not even indicate which information is not an end in itself, but 'serves provisions of the Directive are germane to [both] to enable the Court to give helpful the proceedings before it; clearly, the 'legal answers [and] to enable the Governments of effect' of any such alleged failure depends on the Member States and other interested par- the wording and context of the particular ties to submit observations in accordance provision or provisions of the Directive. with Article 20 of the Protocol on the Statute of the Court (EEC)'. 17 If no conclusions may usefully be drawn from the fact that only one Government — and not the one most directly concerned — and the Commis- sion submitted observations in the proceed- ings before this Court, it is, in my view, sig- 33. The Court has indicated that the require- nificant that the French Government has ment for the national court to define the fac- proposed an answer phrased in the most tual and legal context 'is less pressing where general terms, while the Commission has the questions relate to specific technical suggested that the Court should not answer points and enable the Court to give a useful the first question referred by the national reply even where the national court has not court. given an exhaustive description of the legal and factual situation'. 18 The very general question posed regarding the 'legal effect' of the provisions of the 1991 Waste Directive does not appear to me to be either specific or technical; on the contrary, the Court's treat- ment of this question cannot, in my view, be completely disassociated from that of any possible liability under Community law of the Member States for their failure to imple- 32. The orders for reference contain no ment environmental measures, and, more information at all regarding the activities generally, the issue of the effectiveness of alleged against the defendants in the main environmental law. proceedings, other than a recital that, in each case, they are charged with an offence contrary to specified provisions of DPR 915/82 and/or Law 475/88. N o r do the orders for reference indicate the date at which the facts giving rise to the main 34. The French Government, notwithstand- ing what it regards as the very general char- 16 — Order in Case C-167/94 Grau Gomis and Others [1995] acter of the first question, has interpreted ECR I-1023, paragraph 8; see also order in Case C-307/95 Max Mara Fashion Group [1995] ECR I-5083, paragraphs 6 to 9, and order in Case C-257/95 Bresle [1996] ECR I-233, paragraph 16. 17 — Joined Cases 141/81 to 143/81 Holdijk [1982] ECR 1299, 18 — Case C-316/93 Vaneetveld [1994] ECR 1-763, para- paragraph 6 of the judgment. graph 13 of the judgment.

(b) The second question

37. The second question is based on the 36. The second question submitted by the express premiss that the 1991 Waste Direc- national court, which seeks essentially a rul- tive is intended to ensure uniform treatment ing on whether Italy is entitled to maintain of operators in the internal market as regards criminal sanctions for breaches of its legisla- penalties for breaches of national implement- tion on waste, is in my view similarly based ing provisions on waste. Upon this hypoth- on a questionable interpretation of the esis, it asks whether the criminal sanctions 1991 Waste Directive. The orders for refer- provided for by the relevant national provi- ence describe the Directive as 'Community sions are compatible with the Directive. In legislation intended to ensure uniform treat- my opinion, the view of the national court ment for operators in the Single Market, on this point is misconceived.

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'The fifth recital therefore simply makes it clear that the provision of a Community sys­ tem of waste management may have positive effects on the functioning of the market, but 39. The absence from the Directive of any this is not tantamount to indicating that spe­ significant internal market intention is cific reasons amounting to competition and trade constituted one of the grounds which prompted the institutions to adopt the rules 19 — The English version of the Directive refers to 'Article 103s', in question.' 2 1 one of a number of typographical errors in the text of the Directive published in the Official Journal. 20 — This article has subsequently been amended to provide for a Community 'policy', rather than 'action', and specifically to allow the Community to promote measures at the interna­ 21 — Case C-155/91 Commission ν Council [1993] ECR I-939, tional level. paragraph 7 of the Opinion.

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41. This view of the Directive is confirmed 43. In the light of the foregoing, I consider by the material content of its provisions. At that the answer to the second question no point does the Directive even mention the should be that the 1991 Waste Directive does question of the sanctions the Member States not seek to ensure the equal treatment of must impose in order to ensure the enforce- operators in the internal market as regards ment of the implementing measures they the sanctions which may be imposed for adopt. The matter is regulated by Article 2 of breaches of national implementing law on the Directive, 23 which merely requires the waste. In these circumstances, the question Member States to 'bring into force the laws, as formulated by the national court does not, regulations and administrative provisions in my view, fall to be answered at all, having necessary to comply with this Directive not been based on a misunderstanding of the later than 1 April 1993'. 1991 Waste Directive.

42. The argument that the Directive sought in general to ensure that the burdens on 44. Should the Court decline to accept the economic operators should henceforth be analysis of the second question presented equivalent, upon which the referring court's above, it would be necessary to examine the second question is based, has, furthermore, issue of whether a useful answer can be given already been rejected by the Court in its to the national court. The paucity of infor- judgment in the 'Waste Directive' case. There mation on the factual and legislative back- ground in the orders for reference would be

VI — C o n c l u s i o n

46. I n view of the foregoing, I p r o p o s e that the questions s u b m i t t e d b y the P r e t u r a Circondariale, R o m e ( R o m e District Magistrates' C o u r t ) , Tivoli and C a s t e l n u o v o di P o r t o Divisions, be answered as follows:

(1) C o u n c i l Directive 91/156/EEC of 18 March 1991 amending Directive 7 5 / 4 4 2 / E E C o n waste obliges M e m b e r States t o ensure t h a t estab­ lishments and u n d e r t a k i n g s w h i c h carry o u t recovery o p e r a t i o n s o r w h i c h carry o u t their o w n waste disposal at t h e place of p r o d u c t i o n o b t a i n a p e r m i t

25 — The French Government has suggested that this question 26 — Case 50/76 Amsterdam Bulb ν Produktschap voor Sierge­ could also be interpreted as referring to the imposition of wassen [1977] ECR 137, paragraphs 31 and 32 of the judg­ criminal sanctions either for obligations which arc incom­ ment. patible with the Directive or for breaches of a directive 27 — Case 823/79 Cardati [1980] ECR 2773, paragraph 11 of the which has not yet been transposed. Neither interpretation judgment. is borne out by the orders for reference.

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OPINION OF MR FENNELLY — JOINED CASES C-58/95, C-75/95, C-112/95, C-119/95, C-123/95, C-135/95, C-140/95, C-141/95, C-154/95 AND C-157/95 to do so; these activities may only be carried out without a permit where the Member State has opted to grant an exemption from the permit requirement, and only in accordance with the conditions laid down by Article 11(1) of the Directive. Nothing in the Directive would preclude a Member State from requiring a permit for the carrying out of other activities in connection with the recovery and disposal of waste which are covered by the Directive.