C-65/00

OPINION OF MR MISCHO — CASE C-65/00

OPINION OF ADVOCATE GENERAL MISCHO delivered on 20 September 2001 1

1. The Commission of the European Com- I — Legal framework munities asks the Court to declare that, by exempting undertakings and establish- ments which carry out hazardous waste recovery operations covered by Council Directive 91/689/EEC of 12 December 1991 on hazardous waste 2from the permit Community legislation requirement laid down by Article 10 of Council Directive 75/442/EEC of 15 July 1975 on waste, 3as amended by Council Directive 91/156/EEC of 18 March 1991 4 (hereinafter: 'Directive 75/442'), without Directive 75/442 making such exemption conditional upon satisfaction of the requirements laid down by the first and second indents of Article 3(2) of Directive 91/689, the Italian Republic has failed to fulfil its obligations under Article 11 of Directive 75/442 and 2. The purpose of Directive 75/442 is to Article 3 of Directive 91/689. ensure the disposal and recovery of waste and to encourage the adoption of measures designed to limit the production of waste, particularly by promoting appropriate technology and recyclable and reusable products.

3. Article 4 of Directive 75/442 provides:

'Member States shall take the necessary 1 — Original language: French. measures to ensure that waste is recovered 2 — OJ 1991 L 377, p. 20. 3 _ OJ 1975 L 194, p. 39. or disposed of without endangering human 4 — OJ 1991 L 78, p. 32. health and without using processes or

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4. Under Article 10 of Directive 75/442: This exemption may apply only:

— if the competent authorities have 'For the purposes of implementing adopted general rules for each type of Article 4, any establishment or undertaking activity laying down the types and which carries out the operations referred to quantities of waste and the conditions Annex II B must obtain a permit'. under which the activity in question

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OPINION OF MR MISCHO — CASE C-65/00

may be exempted from the permit 7. Article 3 of Directive 91/689 provides: requirements,

' 1 . The derogation referred to in and Article 11(1)(a) of Directive 75/442/EEC from the permit requirement for establish- ments or undertakings which carry out their own waste disposal shall not apply to hazardous waste covered by this Directive. — if the types or quantities of waste and methods of disposal or recovery are such that the conditions imposed in Article 4 are complied with.

3. The establishments or undertakings obliged to notify the relevant province, referred to in paragraph 2 shall be regis- attaching a report establishing that all the tered with the competent authorities. conditions for access to the simplified procedure (the conditions set out in Article 33 of Decree-Law No 22/97) have been complied with. A declaration that the conditions for using the simplified pro- 4. If a Member State intends to make use of cedure are satisfied entails exemption from the provisions of paragraph 2, the rules the permit required by Directive 75/442. referred to in that paragraph shall be sent The competent provincial authority verifies to the Commission not later than three compliance with these conditions and months prior to their coming into force. requirements on the basis of that declar- The Commission shall consult the Member ation. Given the complexity and the tech- States. In the light of these consultations nical nature of the relevant rules, Decree- the Commission shall propose that the rules Law No 22/97 neither describes nor ident- be finally agreed upon in accordance with ifies in any detail those conditions and the procedure laid down in Article 18 of requirements; it provides for them by Directive 75/442/EEC.' reference, stating that the technical rules determining the type, quantity and con- ditions for recovery under the simplified procedures regime will be adopted by ministerial Decree.

National legislation

14. The Italian Government does not dis- 11. In accordance with the procedure laid pute this. It maintains that it will, as soon down by the first paragraph of Article 226 as possible, remedy its failure to implement EC, the Commission, having given the properly Article 11 of Directive 75/442 and Italian Government the opportunity to Article 3 of Directive 91/689. It adds that submit its observations, sent a reasoned the relevant departments of the Ministries opinion to that Member State in a letter of the Environment and Industry will, in dated 14 July 1999, calling on it to take the good time, forward the final version of the necessary measures to comply with the interministerial decree on activities for the obligations imposed by Article 11 of Direc- recovery of hazardous waste within the tive 75/442 and Article 3 of Directive meaning of Articles 31 to 33 of Decree- 91/689 within two months of notification Law No 22/97. of that opinion.

15. It must be observed that, as the minis- terial decrees of 5 September 1994 and 16 January 1995 do not meet the require- 12. As the information given to the Com- ments laid down by the first and second mission by the Italian authorities, in indents of Article 3(2) of Directive 91/689, response to that opinion, concerned only the Italian Republic is allowing undertak- an interministerial decree on activities for ings and establishments which carry out the recovery of hazardous waste within the hazardous waste recovery operations meaning of Articles 31 and 33 of Decree- covered by Directive 91/689 to be Law No 22/97, the Commission decided to exempted from the permit requirement in institute the present proceedings. Article 10 of Directive 75/442 without this

17. In my view, it follows ineluctably from that wording that exemption from the permit requirement laid down in Article 10 of Directive 75/442 is only possible if the 21. In my view, Article 3 of Directive requirements laid down by Article 3(2), 91/689 and Article 11 of Directive 75/442, first and second indents, of Directive which are not formulated identically, des- 91/689 are met. pite reference in Article 3 to Article 11, are in a relationship of lex specialis to lex generalis. Bearing in mind the principle: lex specialis derogat legi generali, I am of the opinion that only the specific rule, in this instance Article 3 of Directive 91/689, 18. The Italian Republic having failed, by applies when it is a question of determining the expiry of the period prescribed in the which are the conditions in which under- reasoned opinion, to ensure that permit takings and establishments which carry out exemptions were granted in accordance hazardous waste recovery operations can with the above requirements, I take the be exempt from the permit requirement in view that the action brought by the Com- Article 10 of Directive 75/442, and mission for failure to fulfil obligations Article 3 of Directive 91/689 and under Article 3 of Directive 91/689 must Article 11 of Directive 75/442 cannot apply be upheld. at the same time.

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OPINION OF MR MISCHO — CASE C-65/00

22. As the Commission gave no reason, obligations under Article 11 of Directive other than that connected with the failure 75/442, in my view, the application of the to fulfil obligations under Article 3 of Commission on this point should be dis- Directive 91/689, why the Italian Republic missed. should be held to have failed to fulfil its