C-318/98

B — National legislation I - 4792

III — Facts I-4792

IV — Questions referred for a preliminary ruling I - 4794

V — Answers to the questions referred for a preliminary ruling I - 4795

A — Admissibility I - 4795

B — Substance I-4796

the issue of the validity or otherwise of the provisions of Directive 91/689 I - 4806

(i) Answer to the first question I-4806

(ii) Answer to the sixth question I - 4808

(iii) Answer to the second and third questions I-4808

(iv) Answer to the fourth and fifth questions I-4810

(c) Proposed solution I-4810

I I— Legal framework

4. Under the third recital in the preamble to A — Community legislation Directive 91/689/EEC, 'the general rules applying to waste management which are laid down by Council Directive 75/442/ EEC [...] also apply to the management of hazardous waste'. However, under the 2. The provisions of Directive 91/689 were fourth recital 'the correct management of adopted in the context of the Community hazardous waste necessitates additional, rules on waste laid down by Council

3 —Council Directive 75/442/EEC of 15 July 1997 on waste (OJ 1975 L 194, p. 39). 1 — OJ 1991 L 337, p. 20. 4 — Council Directive 91/156/EEC of 18 March 1991 amending 2 — OJ 1994 L 356, p. 14. Directive 75/442/EEC on waste (OJ 1991 L 78, p. 32).

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— wastes featuring on a list to be drawn up in accordance with the procedure laid down in Article 18 of Directive 75/442/EEC on the basis of Annexes I 7. Under the fifth recital in the preamble to and II to this Directive, not later than Directive 91/689, 'it is necessary, in order six months before the date of imple- to improve the effectiveness of the manage- mentation of this Directive. These ment of hazardous waste in the Commu- wastes must have one or more of the nity, to use a precise and uniform definition properties listed in Annex III. The list of hazardous waste based on experience'. shall take into account the origin and The definition of these categories acts as composition of the waste and, where the common denominator for the definition necessary, limit the values of concen- of hazardous waste across the Community. tration. This list shall be periodically reviewed and if necessary [revised] by the same procedure,

5 — That directive replaced Council Directive 78/319/EEC of 8. Council Decision 94/904 established the 20 March 1978 on toxic and dangerous waste (OJ 1978 L 84, p. 43). list of hazardous waste (hereinafter 'the 6 — The preceding directive, Directive 78/319, was autonomous Community list') referred to in the first legislation not legislation complementary to Directive indent of Article 1(4) of Directive 91/689. 75/442/EEC.

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To date the Community list has never been particular origin of the waste does not need amended. to be taken into account. 8

7 — Under Article 18(1), as amended by Article 1(1) of Directive 91/156, the Commission is to be assisted within the 8 — The properties which render waste hazardous under framework of this procedure by a committee composed of Annex III are the following: 'explosive', 'oxidising', 'highly the representatives of the Member States and chaired by the flammable' and 'flammable', 'irritant', 'harmful·, 'toxic', representative of the Commission. The representative of the 'carcinogenic', 'corrosive', 'infectious', 'teratogenic', 'muta- Commission is to submit to the committee a draft of the genic', substances and preparations which release toxic or measures to be taken. The committee is to deliver its opinion very toxic gases in contact with water, air or an acid, on the draft within a time-limit that the chairman may lay substances and preparations capable by any means, after down according to the urgency of the matter. The Commis- disposal, of yielding another substance, e.g. leachate, which sion is to adopt the measures envisaged if they are in possesses any of the characteristics listed above. The last accordance with the opinion of the committee. If the property is waste characterised as 'ecotoxic'. measures envisaged are not in accordance with the opinion 9 — The Commission reports in its written observations that it of the committee or no opinion is delivered, the Commission has received a large number or notifications from the is to submit to the Council without delay a proposal relating national authorities of the Member States concerning the to the measures to be taken. If the Council has not acted classification of waste as hazardous and will proceed to within a period of three months from the date of referral, update the list for the first time. However, no such the Commission is to adopt the proposed measures. notification was submitted by the Italian Republic.

14. In particular, Article 7(4) of Legislative Decree No 22/97 provides that 'hazardous waste is non-domestic waste specified in the list referred to in Annex D on the basis of Annexes G, H and I'. 12 Annex D reproduces verbatim the Community list 17. The officials carrying out the inspection of hazardous waste adopted by Council noticed a number of tin cans and a drum Decision 94/904 and Annexes G, H and I marked 'ICI polyurethane'. The material correspond to Annexes I, II and III to was seized, samples were taken, and it was Directive 91/689. handed over to the public prosecutor's office as classifiable as toxic-harmful waste within the meaning of Presidential Decree 1 0 — GURI, supplemento ordinario No 33 or 15 February No 915/82. Criminal proceedings were 1997. instituted against those legally responsible 11—Presidential Decree No 915/82 of 10 September 1982, under Article 26 of Presidential Decree GURI No 343 of 15 December 1982, p. 9071. The national court further explains that Legislative Decree 915/82, 13 who were charged with disellar- No 22/97 was subsequently amended by Legislative Decree No 389/97 of 8 November 1997, following which Ministerial Decree No 141/98 of 11 March 1998 ('Reg- ulation laying down rules for the disposal of waste by dumping and for the classification of hazardous waste 13 — Fornasar and his co-defendants state in their written disposed of by dumping') was issued. observations that criminal proceedings were instituted 12 — The reference to Annexes G, H and I was introduced by against two employees of Fincantieri, the head of the Legislative Decree No 389/97. transport company and two waste tip managers.

ging 'toxic and harmful' waste, under the highly dangerous for human health, as even description 'special waste', without a prior very small concentrations of them in the air, permit. of the order of one part per billion, may provoke very serious, and sometimes fatal, asthma attacks. The expert also referred to the difficulty of classifying that substance under the list in Annex D to Legislative 18. In the course of the proceedings, Direc- Decree No 22/97, since those classifica- tive 91/689 and Legislative Decree tions refer to the origin of the waste, which No 22/97, as amended by Legislative according to the national court cannot be Decree No 389/97, entered into force. identified with certainty in this case. Under Article 2 of the Italian Criminal Code, 'no person may be punished for an act which, in accordance with a subsequent law, does not constitute an offence'. There- fore, the national court had to examine whether the conduct of the accused, charged under Article 26 of Presidential Decree No 915/82, which had in the mean- 21. The national court notes that in this time been repealed, constituted an offence case the origin of the waste, and conse- under Article 50 of Legislative Decree quently the identification of the production No 22/97 and in particular whether the process from which it derives, cannot be waste discovered in the Verdeindustria ascertained with certainty. The documenta- waste tip constituted hazardous waste in tion accompanying the waste and the respect of which the waste tip was unli- witness statements show that the entire censed. load of waste taken to the tip came from the Fincantieri Navali Italiani Spa works at Monfalcone. The size of and the multi- plicity of activities carried out at the works make it impossible to establish what use the 19. During the hearing, it became neces- substance might have had. 14 sary to ascertain the nature of the sub- stances contained in the drum and an expert report was commissioned. The expert was required to carry out analyses of the waste and to state whether or not it was classifiable as hazardous waste and whether the origin of the waste was of relevance to that classification. 22. Nor, according to the national court, does the type of substance found in the drum allow for its use to be determined

23. First, the national court raises the issue of how Article 1(4) of Directive 91/689 and Decision 94/904 are to be interpreted with ' —For the purposes of classifying waste as regard to the term 'hazardous waste' and hazardous within the meaning of Arti- ask whether or not the list laid down by cle 1(4) of Council Directive 91/689/ Decision 904/94 is exhaustive/binding. 16 EEC and Council Decision 904/94/EC, is it necessary in each particular case to identify the origin of the waste, refer- red to for the purposes of classification by the list of hazardous waste adopted in that decision, or is it sufficient for 24. Secondly, it considers that it is neces- such purpose that, by reason of its sary to ascertain how the procedure for composition, the substance can only be making additions to the list of hazardous used in theory in a given production waste, laid down by the second indent of process, or is derived as a final product Article 1(4) of Directive 91/689, operates from that process? and whether it is possible to envisage automatic additions to the list, with effects extending to a single Member State.

— Is the list adopted by Council Decision 904/94 exhaustive, so that waste which is not referred to in the list, but which IV — Questions referred for a preliminary nevertheless displays the characteristics referred to in Annexes I, II and III to ruling Directive 91/689/EEC, is excluded?

25. To resolve the case pending before it, the Pretura di Udine, Sezione Distaccata di

15 — The national court explains that MDI is a basic substance — If the Court finds that the list of for the production of many synthetic resins, subsequently hazardous waste is not exhaustive, used for the manufacture of parts of motor vehicles, furniture, plastics, coatings, paint components, etc., thus must automatic addition of hazardous having a very broad range of uses for companies operating in different areas of manufacture. waste to the list be deemed to operate 16 — The national court states that Italian legal theory and case- on the basis of Annexes I, II and HI to law tend to regard that listing as exhaustive for the purpose of classifying waste as hazardous. Directive 91/689/EEC?

17 — They cite in particular Case C-168/95 Arcaro [1996] ECR I-4705, paragraph 36. 18 — See for example Case C-6/64 Costa v ENEL [1964] ECR 26. Two of the co-defendants in the main 1141 and Joined Cases C-304/94, C-330/94, C-342/94 and C-224/95 Tombesi and Others [1997] ECR I-3561, proceedings raised an objection to admis- paragraph 36.

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OPINION OF MR COSMAS — CASE C-318/98

the compatibility of rules with Community B — Substance law for the purposes of the case before it. 19

29. I consider that the national court explains the reasons why the replies given by the Court of Justice will help it to resolve the case before it and it does not (1) Articles 130s and 130t of the EC Treaty appear that those replies will bear no relation to the subject-matter of the main action. Therefore, in the light of the above, the questions referred for preliminary rul- 31. Article 130s of the EC Treaty (now, ing are admissible and I would suggest that, after amendment, Article 175 EC) 21 con- the Court proceed to examine them. stitutes the legal basis for Directive 91/689, which was enacted in the context of action taken by the Community to implement the 19 — See for example C-223/78 Grosoli [1979] ECR 2621, objectives set out in Article 130r, concern- paragraph 3, and Tombest, paragraph 36, cited above. 20 — See in particular C-67/91 Asociación Española de Banca Privada and Others [1992] ECR I-4785, paragraphs 25 and 26; Joined Cases C-332/92, C-333/92 and C- 335/92 Eurico Italia and Others [1994] ECR I-711, paragraph 17; 21 — The Greek version of that directive mistakenly states that Case C-62/93 BP Supergas [1995] ECR I-1883; and Article 130r is the legal basis rather than Article 130s, Tombesi, cited above in footnote 18, paragraph 38. which is correct.

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ing Community policy on the environment. Court has for that matter recognised the Article 130r describes this policy and estab­ 2 binding nature of this general principle. 3 lishes the criteria and parameters within which Community institutions can inter­ vene to protect the environment.

35. Article 130t of the EC Treaty specifi­ cally implements, in the context of envir­ onmental protection, the principle of sub­ sidiarity, which governs Community policy in this field. That article allows Member 33. Under the precautionary principle, States to maintain or introduce more strin­ expressly referred to in Article 130r(2), gent protective measures, even if in doing the Community must take action even in so they deviate from the existing Commu- cases where there is not an existing, but a potential risk to the environment. The 23 — See Case C-157/96 National Farmers Union (1998) ECR I-2211 and the Opinion of Advocate General Tesauro. Also of interest are the Opinions of Advocate General Gulmann, point 28, in Case C-405/92 Mondiet v Arme­ 22 — See, to that effect, G. Dellis 'Κοινοτικό Δίκαιο Περιβάλ­ ment Islais [1993] ECR I-6133 and Advocate General λοντος. Οι διαστάσεις της προστασίας του περιβάλλον­ Fennelly in Case C- 67/97 Bluhme [1998] ECR 8033, τος στην κοινοτική έννομη τάξη' (Community Law of the which clearly indicate that even in the absence of tangible Environment. The extent to which the environment in evidence of an existing risk to the environment the protected in the Community legal order); Athens, Pub. precautionary principle justifies the adoption of protective A.N. Sakkoulas, 1988 (431 pp.), para. 112. Community measures.

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nity protective measures adopted under classified as hazardous. 25 On the contrary, Article 130s, subject to the measures being it adopts two categories of hazardous compatible with the EC Treaty and notified waste. The first category covers waste to the Commission. featuring on a limitative Community list (first indent of Article 1(4) of Directive 91/689). 26 The second category covers waste that is considered hazardous by a Member State, provided that the limitative but widely worded conditions in Annex III to that directive (second indent of Arti- cle 1(4) of Directive 91/689) are met. It (2) Directive 91/689 should be noted that Member States are required to notify the Commission of waste they classify as hazardous pursuant to Annex III to the directive. That waste is

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FORNASAR AND OTHERS

considered hazardous only in the territory Annex III to Directive 91/689 but the of the Member State that has classified it as measures adopted by that directive for the such. However, the Commission also protection of the environment did not assesses the extent to which it would be immediately apply cannot be accepted. In appropriate to adapt the abovementioned other words, the fact that national autho- list by adding the waste classified as rities of a Member State ascertain that a hazardous by one or more Member States, type of waste fulfils the criteria of Annex III pursuant to the second indent of Arti- to Directive 91/689 per se, suffices for that cle 1(4) of Directive 91/689, to the list. directive to apply directly, even if that waste has not previously been classified as hazardous under a specific national proce- dure and/or the Commission has not been notified of that classification.

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28 — This means that under Article 130t of the Treaty, they may classify as hazardous waste that is proven to have certain other properties which scientific research (subsequent or not) has considered hazardous, or increase the scope of the criteria provided to establish whether the properties rendering waste hazardous listed in Annex III are present in waste. For example, Member States may consider that waste is 'corrosive' not only where it is made up of 'substances and preparations which may destroy living tissue on contact', as provided for by Annex III (H8) but 43. Thirdly, the extent to which the above- also where it may simply harm living tissue. Regarding this interpretation, see N. de Sadeleer, op. cit., p. 307 et seq. mentioned specific Community system for

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44. I consider that Directive 91/689 does not implement the objectives of Arti- cle 130r of the EC Treaty correctly and in compliance with the requirements of that article and the fundamental principles of Community environmental law. As men- tioned above, that directive creates a spe- 46. I do, however believe that the Court cific system for managing hazardous waste has available to it all the necessary inter- characterised by the following four fea- pretative material to rule on whether the tures: (a) the absence of a general definition provisions of that Directive 91/689 are of hazardous waste and of a general compatible with the precautionary princi- prohibition of the free disposal of hazar- ple and the principle of preventive action. dous waste; (b) the establishment of a On this issue, one can only consider that limitative Community list of hazardous the simple fact that Directive 91/689 waste throughout the Community, to attempts to establish when specific mea- which the provisions of that directive sures should be taken to avert certain risks apply; (c) a provision for supplementing to the environment in an exhaustive man- that list, which remains limitative in any ner — since, even if it were ascertained event; (d) the competence of Member States today that certain waste presented a serious to classify certain waste as hazardous, danger to the environment, the necessary specifically within their territory, provided restrictive measures laid down by that it displays the properties limitatively laid directive could not be applied throughout down in Annex III to the directive. I the Community — suffices for a finding

47. It should also be noted that it is not be possible to contend, in response to the above reasoning, that the formulation of a 29 — The legal basis for Commission Proposal (88/C 295/04) general provision prohibiting the free dis- was Article 100a but the Council regarded Article 130s as the legal basis. See Proposal for a Council Directive on posal of hazardous waste would jeopardise hazardous waste COM(88) 391 Final, cited above, sub- the protection of trade and that the existing mitted by the Commission to the Council on 16 August 1988. system created by Directive 91/689 recon- Also, regarding the question of choice of legal basis (as ciles the protection of the environment with between Article 100a and 130s) see Case C-155/91 Commission v Council [1993] ECR I-939, regarding the ensuring freedom of the market. legal basis of Council Directive 91/156. The Commission considered that the Council erroneously selected Arti- cle 130s rather than Article 100a. The Court rejected the Commission's application, however, holding that Directive 91/156 on waste has as its main object to ensure the effective management of waste with a view to protecting the environment and, accordingly, could be adopted on the sole basis of Article 130s of the Treaty (paragraphs 20 and 21). See also the Opinion of Advocate General Tesauro in the above case. Also on that question of the choice between Article 100a and Article 130s as the legal basis for the adoption of Community legislation concerning the envir- onment (inter alia), see the earlier Case C-300/89 Com- mission v Council [1991] ECR I-2867 together with the Opinion of Advocate General Tesauro. That case con- 48. First, the protection of the legal interest cerned a directive on waste from the titanium dioxide industry and the Court held (paragraph 25) that Arti- of the environment in this case overrides cle 100a should have constituted the legal basis rather than Article 130s, which had been chosen by the Council. the legal interest in the protection of trade,

49. On conclusion of the foregoing analy- sis, however, the Court is faced with the following dilemma: it could either find Directive 91/689 incompatible with the overriding provisions of Articles 130r and 51. Such a finding would render the rele- 130t of the EC Treaty and consequently, in vant provisions of that directive, as well, of its collateral review of the legality of that course, as the provisions of Decision directive, be led to remove the 'defective' 94/904 and the national legislation that provisions of the latter from secondary introduced these provisions into the Mem- Community legislation (a), or attempt to ber States' legal system inapplicable. In answer the questions referred for a pre- such a case, however, the issue arises as to liminary ruling without touching upon the what the applicable law would be and issue of the directive's validity (b). At first whether there is any leeway for the direct sight, both options present drawbacks. applicability of Article 130r of the EC Should the Court follow the first option, Treaty. that is, find that the provisions in question are invalid, it will be faced with the issue of determining the legislation that would then be applicable to hazardous waste (1). Should it follow the second option, it will be faced with the equally delicate process of giving an interpretation of the directive 52. Before attempting to analyse this issue, compatible with the EC Treaty (2). There- I consider that certain preliminary observa- fore, before presenting my opinion to the tions should be made regarding the out- Court, I shall examine in more detail the come of the questions referred for a pre- aspects of both options. liminary ruling, in view of the changes that would necessarily occur under national law. More specifically, a finding that the abovementioned Community provisions were invalid, and consequently also the national law provisions transposing them into the Italian legal system, would appear to remove the grounds which, according to the order for reference, justified the ques- (1) Finding the relevant provisions of tions referred for a preliminary ruling. In Directive 91/689 invalid other words, once the legislative amend- ment which came into force in the course of the criminal proceedings were to be regar- ded as never implemented, there would, in principle, be no reason to apply Article 2 of the Italian Criminal Code, whereby 'no 50. I would like to point out that a finding person may be punished for an act which, of invalidity can relate only to those in accordance with a subsequent law, does

54. At first glance, it would not appear easy to support the view that Article 130r of the EC Treaty could apply directly. First, measures of Community policy established in Articles 130r(2) and 130s appear to be 56. The said core legislative content of technical in nature, and rendered necessary Article 130r can be considered sufficiently for the specification and implementation of clear and specific. As already mentioned, the provisions of Article 130r in the domes- tic law of the Member States. Secondly, even though the Court may declare provi- 30 — See point 49 of my Opinion in Case C-360/97 Nijhuis 11999] ECR 1919. sions of secondary Community legislation 31 — Regarding the issues of altering such a core, see, for to be invalid, it may not assume the role instance Meyer-Bisch (ed.), Le noyau intangible des droits de l'homme, 1991, Editions Universitaires, Fribourg, assigned to the Community institutions, Switzerland.

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there is no doubt that the free disposal of be reformulating the provisions of the waste should be prohibited in all Member invalid directive in accordance with the States. In the specific context in which the aims of the Treaty. Specifically, the Court's issue is raised in this case, that prohibition intervention would result in the addition to constitutes, in a negative manifestation, the the Community system as originally envi- direct consequence of the precautionary saged, to which Directive 91/689 attempted principle and the principle of preventive to give shape, of a general prohibition on action analysed above. the free disposal of hazardous waste on the one hand, and the transformation of the exhaustive Community list into an indica- tive list on the other. 33

slot into the semantic field of the core would enable the Court, abiding by all the provisions, having direct effect, of Arti- technical matters decided upon by the cle 130r. However, the Court may not, in legislative initiative of the competent Com- establishing such a definition (and nor does munity institutions which, despite appear- it need to) act as the initiator of rules. The ing in the provisions of the directive found most appropriate solution would be a to be invalid, cannot be regarded as con- definition based on the elements of the trary to the Treaty, to fill the gap seemingly definition provided by the directive found invalid which, insofar as they do not infringe the Treaty, may be regarded as 33 — That reformulating in essence, of the rules of secondary Community law by the recognition of a core content the technical basis for drawing up both a general definition and an indicative list of protecting social rights is analogous to the standard case- law of national courts when reviewing the constitutionality of legislation. The constitutional provisions that protect hazardous waste. 32 social rights, whilst first and foremost imposing obliga- tions for the State, do not generate actionable claims that are effective in practice against State authorities which have omitted to initiate the procedure to implement those rights, in the sense that the possible invalidity of that omission could not lead to the implementation sought, given the fact that there is no previous regime applicable and the courts may not assume the role assigned to the legislative or administrative authorities.

In particular, such wastes are those included the Council had not previously initiated legislation on that in the Community list of hazardous waste. particular matter.

60. It must therefore be accepted that, should the relevant provisions of Directive (2) Answering the questions referred for a 91/689 be found invalid, the national court preliminary ruling irrespective of the issue should apply the national legislation which of the validity or otherwise of the provi- it deems valid — either the previously sions of Directive 91/689 applicable legislation in revived form or the later legislation reformulated in accor- dance with the Community legislation, as reformulated through the 'quasi' direct application of the Treaty articles — once 62. I consider it best to deal with the it has reviewed the national legislation on questions referred for a preliminary ruling the basis of the directly applicable core of in the following order: the first question Article 130r as defined above. 34 will be answered first, then the sixth question. Questions two and three will be answered together, and, lastly, so will questions four and five, this being necessary given that the issues raised are linked.

61. That review falls exclusively within the jurisdiction of the national court, which, in (i) Answer to the first question 34 — In prohibiting measures of secondary Community legisla- tion from preventing any Member State from maintaining or introducing more stringent measures to protect the environment, Article 130t of the Treaty in no way prevents Member States from adopting such measures even where no Community measures have been adopted and, in any 63. By the first question referred for a case, where measures of that type which were adopted initially have been annulled. preliminary ruling the national court seeks

66. In any event, in view of Article 130t of the Treaty as interpreted above, the criteria employed by the Community legislature for the classification of certain waste as hazar- dous cannot be binding for Member States in the sense that it must be shown in actual 64. It appears from the wording of Direc- tive 91/689 that the Community legislature 35 — For certain waste to be classified as hazardous under the attached great importance to the origin of system established by Directive 91/689 and Decision the waste, laying down that the process or 94/904 a specific three-stage procedure must be followed. First the origin of the waste must be determined in activity it derived from should be taken accordance with the type of sectoral activity from which it derives, the type of process or the type of waste.

Conversely, if it does not appear in the list, the waste must be examined on the basis not of the chapter headings (categories) pertaining to origin, but of those relating to type of waste, such as those referred to in chapter headings 13 (oil wastes (except edible oils. . .)) and 14 (wastes from organic substances employed as solvents). The specific chapter headings for types of waste include 65. However, the fact that inclusion in the waste that may be classified under several categories/ Community list is initially based on chapter headings according to their origin. If in this case it is impossible to classify waste according to its origin, the waste's origin does not mean that the because of the large number of possible different sectoral origins, ultimately the classification must be made, as precise ascertainment of the waste's origin pointed out by the German Government, not according to sector but according to type of waste, and the waste should is the only decisive factor as regards its be classified under the group whose typical properties it classification as hazardous. This is evi- displays. The German Government uses the example of deposits produced by oil/water separators which are denced by the interpretation of the relevant soaked up by suction vehicles in various operations used in the chemical industry (those operations fall under provisions of Directive 91/689. Under the chapter headings 06 (wastes from inorganic chemical first indent of Article 1(4) the list features processes) and 07 (wastes from organic chemical pro- cesses)) which should be classified under different sectoral waste that meets the conditions of Annex- origins. Because these sludges are collected in only one tank, they cannot be classified under any of the headings es I, II and III to that directive. According regarding origin. They should therefore be classified under to the wording of the list, account is taken heading 13 according to the type of waste (oil wastes, except edible oils), subheading 1305 (oil/water separator not only of the origin but also of the contents), type 130502 (oil/separator sludges).

68. I shall first reply with regard to the specific framework of Directive 91/689. First, let us note that MDI is not included in 70. By the second question referred for a the Community list of hazardous waste in preliminary ruling, the national court seeks Decision 94/904. Nonetheless, it is clear to ascertain whether the list adopted under from the second indent of Article 1(4) of Decision 94/904 is exhaustive and binding, Directive 91/689 that Community law is in which case waste not included in the list not opposed to a Member State's classifying is excluded, despite displaying the proper- MDI as hazardous waste provided that it ties set out in Annexes I, II and III to displays one or more of the properties listed Directive 91/689. By the third question, in Annex III to Directive 91/689 which which arises should the answer to the render it hazardous. The experience of second question be negative, the national Member States other than Italy leads to court asks the Court to rule on whether it is the conclusion that this waste satisfies the possible for the Community list to be criteria of Annex III. 36 supplemented automatically on the basis of Annexes I, II and III to Directive 91/689. In other words, the national Court wishes 36 — The Commission states, for instance that the Kingdom or Denmark, relying on the properties listed in Annex III to to ascertain in substance whether it is Directive 91/689, did in fact consider MDI to be hazardous possible for the Community list to be waste and notified the Commission accordingly. The Republic of Austria states in its written observations that adapted without the procedure established it has asked for MDI specifically to be added to the by Article 18 of Directive 75/442. Community list.

75. The omission of a Member State to fulfil its obligation of prior classification of waste as hazardous and notification thereof to the Commission could result in the Member State being liable for failing to 73. In the interests of clarity, I would repeat comply with the particular obligations that the answer to the second and third flowing from Directive 91/689. However, questions referred for a preliminary ruling once it is recognised at national level that is founded on the supposition that the waste displays the properties listed in provisions of Directive 91/689 are not Annex HI, the said omission in no way invalid in the light of Articles 130r and prevents the provisions for the protection 130t of the Treaty. On that view, it should of human health and the environment be accepted that, even if the Community adopted by that directive from applying list provided for by the directive is limita- with regard to that waste. To adopt a tive, it does not prevent Member States contrary interpretation would be incompa-

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79. In conclusion, in view of the foregoing analysis of the issues raised by the system adopted by Directive 91/689 and the 77. By the fourth question the national options available to the Court if it adopts court asks the Court to rule on what either solution suggested, I consider that it procedure, for the purposes of Article 1(4), is certainly possible to rule that the provi- second indent, of Directive 91/689, an sions of Directive 91/689 at issue are individual Member State must follow at invalid. However, given the facts of this national level in classifying waste as hazar- case and the nature of the questions dous and what body is competent to make referred for a preliminary ruling I consider that assessment, in accordance with that it is not necessary to adopt such a Annex III to the directive, and subsequently radical solution and that the interpretation to notify the Commission. In the fifth given under the second option enables the question it asks the Court whether the Court to provide the required answers to judicial authorities of a Member State are the questions referred by the national court also required to notify the Commission. for a preliminary ruling.

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VI — Conclusion

80. In view of the above, I propose that the Court answer the questions referred to it for a preliminary ruling by the Pretura Circondariale di Udine, Sezione Distaccata di Cividale del Friuli, as follows:

(1) The origin of waste cannot be of decisive importance for the purposes of classifying it as hazardous within the meaning of Council Directive 91/689/ EEC of 12 December 1991 on hazardous waste and Council Decision 904/94 of 22 December 1994 establishing a list of hazardous waste pursuant to Article 1(4) of Council Directive 91/689.

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