C-175/98

OPINION OF MR LÉGER — JOINED CASES C-175/98 AND C-177/98

OPINION OF ADVOCATE GENERAL LÉGER delivered on 16 September 1999 *

1. By the orders of 20 April 1998, le Article 175 EC), aims to achieve a high Giudice per le Indagini Preliminari (Inves- level of protection of the environment. 4To tigating Judge) of the Pretura Circondariale that end, the Member States must ensure (District Magistrates Court), Udine (Italy) 'the responsible removal and recovery of has asked for an interpretation of certain waste ... [the limitation of] the production provisions of Council Directive 91/156/ of waste', 5recycling and reuse of waste, 6a EEC of 18 March 1991, 1amending Direc- reduction in movements of waste 7 and tive 75/442/EEC on waste 2 (hereinafter 'provide for authorisation and inspection of 'Directive 91/156' or the 'waste directive'), undertakings which carry out waste dispo- and Council Directive 91/689/EEC of sal and recovery'. 8 12 December 1991 on hazardous waste 3 (hereinafter 'Directive 91/689' or 'hazar- dous-waste directive'). What he is seeking, essentially, is to determine the meaning of 'temporary storage' and what is the legal regime applicable to that concept.

3. Article 1 of Directive 91/156 defines certain concepts. Thus, it specifies that 'waste' is to mean any substance or object in the categories set out in Annex I which the holder discards or intends or is required The legislative background to discard [Article 1(a)].

The relevant Community legislation on non-hazardous waste 4. Pursuant to Article 1(a) of Directive 91/156, a harmonised and non-exhaustive list of waste, commonly known as the 2. Directive 91/156, based on article 130s 'European Waste Catalogue', belonging to of the EC treaty (now, after amendment,

5. Article 1(b) of Directive 91/156 states 10. Commission Decision 96/350/EC of that 'producer' is to mean anyone whose 24 May 1996 1 0adapted Annexes IIA and activities produce waste (Original produ- IIB of Directive 75/442. cer') and/or anyone who carries out pre- processing, mixing or other operations resulting in a change in the nature or composition of that waste. 11. Directive 91/156 grants a wide discre- tion to the Member States in determining both the content and the system of the instruments needed for the achievement of its aims. 6. Article 1(c) of the abovementioned directive provides that 'holder' is to mean the producer of the waste or the natural or legal person who is in possession of it. 12. Thus, Article 4 provides: 'Member States shall take the necessary measures to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which 7. In accordance with Article 1(d), 'man- could harm the environment, and in parti- agement' is to mean the collection, trans- cular: port, recovery and disposal of waste, including the supervision of such opera- tions and after-care of disposal sites.

— without risk to water, air, soil and plants and animals,

8. In accordance with Article 1(g), 'collec- tion' is to mean the gathering, sorting and/ or mixing of waste for the purpose of transport. — without causing a nuisance through noise or odours,

9 — Decision establishing a list of waste, pursuant to Article 1(a) of Directive 75/442 (OJ 1994, L 5, p. 15). 10 — OJ 1996 L 135, p 32.

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16. Decision 96/350 provides that the dis- posal operations listed in Annex II A, Item 11 — The emphasis is mine.

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Directive 91/156 and by various judgments obtain a permit to carry out their activities, of the Court. 12From an analysis of Direc- but are to be subject to appropriate peri- tives 91/156 and 91/689 it is apparent not odic inspections by the competent autho- only that the concept 'materials' is not rities. defined therein but also that it does not appear anywhere other than at point R 13 of Annex II B to Directive 91/156. By this amendment, the Community legislature has resolved some of the definition problems 23. Those inspections are to consist, in and corrected the inaccuracies and impré- particular, according to Article 14, as cisions of the previous legislation. regards the competent authorities within the meaning of Article 6, in obtaining from any establishment or undertaking referred to in Articles 9 and 10 production of the record, which must mention the quantity, nature, origin, and, where relevant, the 20. According to Directive 91/156, some destination, frequency of collection, mode activities can be carried out without any of transport and treatment method in permit being necessary. respect of the waste referred to in Annex I and the operations referred to in Annex II A or B.

21. Article 11 of Directive 91/156 thus provides that, without prejudice to the specific provisions for hazardous waste (Directive 91/689), establishments or The relevant Community legislation on undertakings carrying out their own waste hazardous waste disposal at the place of production [Arti- cle 11(a)] and establishments or undertak- ings that carry out waste recovery [Arti- cle 11(b)] may be exempted from the 24. Directive 91/689, which entered into permit requirement imposed in Article 9. force on 27 June 1995, 1 3aims to approx- imate the laws of the Member States on the controlled management of hazardous wastes (Article 1(1)).

27. Article 4(1) and (2) of Directive 91/689 provides that Articles 13 and 14 of Direc- tive 91/156 on inspections and keeping records are to apply to producers of hazardous waste. Article 4(2) of Directive 91/689 adds that undertakings transporting The relevant national legislation hazardous waste must be subject to the obligations of Article 14 of Directive 91/156. 30. On 5 February 1997, the Italian legis- lature transposed Directives 91/156, 91/689 and also Directive 94/62/EC of 20 December 1994 of the European Parlia- ment and of the Council, on packaging and 28. Specifically in relation to the general packaging waste, 15 by Decree-Law [DL] provisions on waste, Article 5 of Directive No 22/97, implementing the directives,16 91/689 provides that the Member States are as amended by Decree-Law No 389 of to take the necessary measures to ensure 8 November 1997. 1 7 that, in the course of collection, transport and temporary storage, waste is properly packaged and labelled in accordance with the international and Community stan- dards in force (paragraph 1). Moreover, in the case of hazardous waste, inspections 31. Article 6(1) of DL No 22/97, as amen- concerning collection and transport opera- ded, provides that storage ('stoccaggio') tions made on the basis of Article 13 of means 'disposal comprising storage pend- Directive 91/156, are to cover more parti- cularly the origin and destination of such 15 — OJ 1994 L 365, p 10. waste (paragraph 2). 16 — GURI, ordinary supplement No 37 of 15 February 1997, hereinafter 'DL No 22/97'. 17 — GURI No 261 of 8 November 1997; see consolidated text in GURI, ordinary supplement No 278 of 28 November 14 — See point 61 of this Opinion. 1997.

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OPINION OF MR LÉGER — JOINED CASES C-175/98 AND C-177/98

5. The rules governing packaging and Facts and procedure labelling of hazardous wastes must be observed.'

37. Mr Lirussi and Mrs Bizzaro are man- agers, respectively, of a workshop and a laundry in the Udine region (Italy). They obtained permits from the Assessore Regio- 34. Article 28 of DL No 22/97, as amen- nale all'Ambiente (Regional Counsellor ded, inserted in Chapter VI, on authorisa- responsible for environmental issues) for tions and registrations, provides, in parti- the provisional storage of toxic and hazar- cular, that 'authorisation for the disposal dous waste resulting from the activities of and recovery of waste is granted by the their undertakings and comprising, in the competent region at territorial level within first case, lead batteries and, in the second the 90 days following submission of the case, sludge, produced by distillation, from application by the person concerned.' a dry-cleaning machine.

40. In the criminal proceedings which fol- lowed, the Public Prosecutor pointed out that these unauthorised storage operations could be considered, in both cases, as 3. Is temporary storage subject to super- 'temporary storage' within the meaning of vision and, if so, to what type of the Italian legislation, since the time-limits measures; in that regard do the princi- and quantities prescribed for this type of ples contained in Article 4 of Directive storage were not exceeded. The Public 91/156/EEC apply and to what Prosecutor considered that, in accordance extent?' with Italian law, those operations were not subject to the obligation to obtain a permit or punishable as criminal offences. How- ever, entertaining doubts as to the compat- ibility of the Italian legislation with the 41. In Case C-175/9 8, the fourth question provisions of Community law — and hence is worded as follows: wishing to verify that the Community and national concepts on 'temporary storage' were the same — he requested the Giudice per le Indagini Preliminari (Investigating Judge) to refer the matter to this Court under Article 177 of the EC Treaty (now '4. Does the activity carried on by the Article 234 EC). The Investigating Judge person under investigation, namely the has thus referred to the Court the following storage of 160 kg of lead batteries for questions for a preliminary ruling: more than one moth, without any notification to the supervisory autho- rities, constitute temporary storage under the terms of the directive?'

' 1 . What is the difference (if any) between "temporary storage" and storage of waste pending further operations (or storage of materials) within the produ- 42. In Case C-l77/98, the fourth question cer's premises, and what are the criteria is worded as follows: for determining in a given case which of those forms of storage is involved ?

45. A certain amount of information can, in fact, be derived from an analysis of Annexes II A and II Β (points D 15 and R Answers to the questions before the Court 13) in the versions resulting from the revision by Decision 96/350, a relevant measure in this case. Annexes II A and II B list specific waste disposal and recovery 43. By his first question and part of his operations and, in particular, provide as second question, the national judge is follows : asking for a definition of the concept of 'temporary storage'. The Court is, in parti- cular, consulted with respect to the criteria for distinguishing between the concepts of 'storage pending further operations' and 'temporary storage'. It is also asked to say 'NB: This Annex is intended to list disposal whether the concept at issue falls within operations [Annex II A] or recovery opera­ 'waste management' within the meaning of tions [Annex II B] as they occur in practice. Article 1(d) of Directive 91/156. Moreover, in his second and third questions, the national judge questions the Court on the regime applicable to temporary storage. Finally, by his fourth questions, raised in Cases C-175/98 and C-177/98, the national judge wishes to know if the provisions of the directives in respect of which an interpretation is sought are applicable to the particular cases before him. D 15 Storage pending any of the opera­ tions numbered D 1 to D 14 (excluding temporary storage, pending collection, on the site where it is produced) [Annex II A] The first question and part of the second question

52. Point D 15 of Annex II A, and point R 13 of Annex II B, specify that the tempor- ary storage is carried out on the site of production of the waste or on a site which 49. Finally, point D15 of Annex II A, and produces waste. The concept of 'produc- point R 13 of Annex II B, expressly state tion' is not defined in Directive 91/156. It that temporary storage is carried out 'pend- can only be understood by comparing it ing collection, on the site where it is with the concept of 'producer', as defined produced' 19 , which constitutes informa- in Article 1(b), which, let me recall, states tion enabling that concept to be situated that producer shall mean 'anyone whose in time and space. activities produce waste ("original produ- cer") and/or anyone who carries out pre- processing, mixing or other operations 19 — My emphasis. resulting in a change in the nature or

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OPINION OF MR LÉGER — JOINED CASES C-175/98 AND C-177/98

composition of this waste'. 20 It must there- 55. In conclusion, temporary storage must fore be concluded that the temporary be defined as the operation, preparatory to storage of waste is linked to the activity waste management within the meaning of of a producer within the meaning of Article 1(d) of Directive 91/156 and dis- Article 1(b) of Directive 91/156. tinct from it, which:

— precedes storage pending further operations, and collection;

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defendants in the main proceedings, before ensure the disposal or recovery of waste on carrying out the temporary storage opera­ behalf of third parties (dealers and bro­ tions for waste resulting from their activ­ kers). 2 4 ities, must comply with particular obliga­ tions or principles. Thus, he asks the Court whether the competent national authorities are required, on the one hand, to inspect and supervise this type of operation and, on the other hand, to ensure that the principles 59. In the light of the facts set out by the laid down in Article 4 of Directive 91/156 national judge, it seems that the defendants are observed. in the main proceedings are waste produ­ cers who neither recover nor dispose of, on the site of production, the waste resulting from the activity which they carry out. As regards these persons, Directive 91/156 does not impose any particular obligation. However, under the terms of Article 14(1), 57. From an analysis of the Directives 91/156 and 91/689, it may be that the second indent, the Member States may, regime applicable to waste differs accord­ optionally, require those persons to keep ing to the activity carried out by the the records provided for in Article 14(1), persons storing it and the nature of the first indent, and oblige them to produce the waste. information contained in those records to the competent authorities within the mean­ ing of Article 6 of Directive 91/156.

61. However, if the waste is hazardous, the Community legislature requires compliance with an alternative, more rigorous, regime.

Under Article 1(4), second indent, of Direc­ tive 91/689, any other waste which a Member State considers possesses one of 62. Under Directive 91/689, 'hazardous the characteristics listed in Annex III must waste' means waste included on the list also be regarded as hazardous. These cases established in accordance with Article 18 are notified to the Commission and re­ of the 'waste' directive and on the basis of examined in accordance with the procedure Annexes I and II to the 'hazardous waste' provided for in Article 18 of the 'waste' directive. Annexes I A and I Β make up directive with a view to adapting the Annex I. Annex Ι Β relates to '[W]astes aforementioned list. which contain any of the constituents listed in Annex II and having any of the proper­ ties listed in Annex III and consisting of: 19) animal or vegetable soaps, fats, waxes ... 37) batteries and other electrical cells.' Annex II contains the 'constituents of the wastes in Annex I. B. which render them hazardous when they have the prop­ erties described in Annex III'. This list 63. On the basis of the facts submitted by contains, under point C18: lead, lead the national judge, it seems that the defen­ compounds; C29: chlorates; C40: haloge- dants in the main proceedings are produ­ nated solvents, and C41: organic solvents, cing hazardous waste. He indicates that the excluding halogenated solvents. waste produced by Mr Lirussi and Mrs Bizzaro is, specifically, toxic and hazardous waste made up of lead batteries and sludge produced by distillation from dry clean­ ing. 2 5 In any case, it is for the national judge to determine the hazardous nature of the waste produced, taking account of the That same provision specifies that hazar­ dous waste must show one or several of the characteristics listed in Annex III (for 25 — See also the wording of the four questions put by the example, be irritant, harmful, toxic, carci­ national judge which refer to 'halogenated solvents' and 'lead batteries', which, under the terms of Article 1 of nogenic, corrosive, infectious, teratogenic, Directive 91/689, constitute hazardous waste.

65. First, in accordance with Article 4(1) and (2) of Directive 91/689, producers of hazardous waste must be made subject to 68. Article 4(1) of Directive 91/156 gives the obligations laid down in Articles 13 expression to the prevention principle and 14 of Directive 91/156, in particular, which is to be found in Article 130R(2), the obligation concerning regular inspec- first subparagraph, second sentence, of the tions and supervision and the obligation to EC Treaty (now, after amendment, Arti- keep a record containing adequate infor- cle 174(2) EC, first subparagraph, second mation and to submit the information sentence). By this principle, the Community contained in that record to the competent and the Member States are recommended authorities. to prevent, from the outset, the creation of pollution or nuisance by adopting measures to eradicate a known risk. 26 The action of the national or Community legislature consists, therefore, in planning and guiding technical progress in order to respond to environmental concerns and improve the quality of life. These preventive measures 66. Second, the Member States must take the measures necessary to ensure that, in the course of collection, transport and 26 — See, in particular, the definition of this principle given in temporary storage, waste is properly pack- the first plan of action (declaration of the Council of the European Communities and representatives of the Gov- aged and labelled in accordance with the ernments of the Member States gathered within the international and Community standards in Council, on 22 November 1973, with regard to a plan of action for the European Communities with regara to the force (Article 5 of Directive 91/689). environment, OJ 1973 C 112, p. 1).

27 — See, for example, Council Directive 85/337/EEC of 27 June 1985, on the assessment of the effects of certain 72. The concern is therefore to introduce public and private projects on the environment (OJ 1985 L 175, p. 40), and, in particular, the judgments in Case preventive measures to enable pollution, in C-81/96 Gedeputeerde Staten van Noord-Holland [1998] its widest sense, to be avoided, that is to ECR I-3923, paragraph 27, and Case C-293/97 Standley and Others [1999] ECR I-2603 paragraph 35). say, to prescribe measures which prevent

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the creation of damage, not only to human those, who hold waste — in particular the health, but also to the quality of life. producer — send it to a private or public collector or to an undertaking which carries out the operations referred to in Annexes II A or II Β or themselves carry out recovery or disposal, in accordance with the provi­ sions of the directive and, in particular, Article 4 thereof. The methods for achiev­ ing these aims have not been defined. It is therefore, for the Member States to pre­ scribe them.

73. It seems to go without saying that, even if stored temporarily, hazardous waste can cause significant, indeed irreparable, damage to the environment. Such would be the case if the premises of a garage owner who 'produces' waste comprised of lead batteries, were situated near a river or a children's play area and did not contain any prevention equipment or if no precau­ tions were taken to prevent lead from discharging into the soil or water. It must therefore be concluded that the prevention principle also applies to temporary storage.

76. In other words, I consider that Article 4 of Directive 91/156 places an obligation on the Member States to observe the preven- tion principle by adopting the necessary measures to ensure the recovery or disposal of waste. I therefore think that this obliga- tion is, as such, unconditional and suffi- ciently precise. On the other hand, that 78. From all these considerations it follows provision does not state the content of that the regime applicable to waste does those measures. As a result, it is for the not depend on the nature of the storage, Member States to define it. 30 I maintain but, on the one hand, on the activity in that my reasoning is not contradicted by which the persons managing it are engaged the judgment in Comitato di Coordina- and, on the other hand, on the nature of the mento per la Difesa della Cava and waste in question. It is for the national Others.31 That judgment, in my view, is judge to categorise the activity carried out confined to replying to the question whe- by the defendants in the main proceedings ther Article 4 contains obligations which and the nature of the waste that their are sufficiently clear, precise and uncondi- activities generate. If it appears that those tional with regard to the content of the persons are producers of hazardous waste, measures that the Member States must it is for the national judge to verify, in adopt in order to ensure compliance with accordance with Articles 4 and 5 of Direc- the prevention principle. Like the Court, I tive 91/689, on the one hand, that those believe that the answer to that question activities are subject to the obligations, laid must be in the negative. down in Articles 13 and 14 of Directive 91/156, for periodic inspection and super- vision, to the keeping of a record contain- 29 — See, in particular, the judgments in Case C-284/95 Safety Hi-Tech [1998] ECR I-4301, paragraph 57, in Case ing the prescribed information and to C-341/95 Bettati [1998] ECR I-4355, paragraph 55, and submission of that information to the in Case C-389/96 Aher-Waggon [1998] ECR I-4473, paragraph 20. competent authorities referred to in Arti- 30 — Similarly, see the reasoning adopted by the Court in its cle 6 and, on the other hand, that, in the judgment in Case C-131/97 Carbonari and Others [1999] ECR I-1103, paragaphs 44 to 47. course of collection, transport and tempo- 31 — Case C-236/92 [1994] ECR I-483. rary storage, the hazardous waste is suita-

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OPINION OF MR LÉGER — JOINED CASES C-175/98 AND C-177/98

Conclusion

82. In the light of the foregoing considerations, I propose that the Court give the following answers to the questions put by Pretura Circondariale, Udine (Ufficio del Giudice per le Indagini Preliminari):

(1) Temporary storage operation must be defined as the operation prior to and distinct from a waste management operation, within the meaning of Article 1(d) of Directive 91/156 of 18 March 1991, amending Directive 75/442/EEC on waste, which:

— precedes operations of storage pending collection and of collection;

— the activities in which those producers are engaged are subject, in accordance with Articles 13 and 14 of Directive 91/156:

— to the obligations of periodic inspection and supervision by the competent authorities within the meaning of Article 6 of that directive;

— to the requirement to keep a record and to submit the information that it contains to the competent authorities referred to in Article 6 of the directive;

— in the course of collection, transport and temporary storage, the hazardous waste is suitably packaged and labelled in accordance with the international and Community standards in force.

In any case, all the operations listed in Directive 91/156 [temporary storage and storage pending collection, management operations within the meaning of I - 6903

OPINION OF MR LÉGER — JOINED CASES C-175/98 AND C-177/98