C-53/02

A — Community legislation — the development of clean technol- ogies more sparing in their use of natural resources, 2. For the purposes of the Directive, 'dis- posal' of waste means, among other opera- tions, tipping above or underground (e.g. landfill), land treatment, deep injection or surface impoundment. 5 — the technical development and marketing of products designed so 1 — Original language: French. as to make no contribution or to 2 — OJ 1975 L 194, p. 39. make the smallest possible contri- 3 — OJ 1991 L 78, p. 32. bution, by the nature of their 4 — From a practical perspective, I should point out that almost manufacture, use or final disposal, all the provisions of Directive 75/442 have been replaced by Directive 91/156 and that reference should therefore be made to the latter directive if an overview of the legislation is to increasing the amount or harm- to be obtained. fulness of waste and pollution 5 — See Article 1(e) and Annex IIA. hazards, I - 3254

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— the development of appropriate Member States shall also take the necessary techniques for the final disposal measures to prohibit the abandonment, of dangerous substances contained dumping or uncontrolled disposal of in waste destined for recovery; waste.'

5. Article 5 of the Directive provides:

4. Article 4 of the Directive provides:

'1. Member States shall take appropriate 'Member States shall take the necessary measures, in cooperation with other Mem- measures to ensure that waste is recovered ber States where this is necessary or or disposed of without endangering human advisable, to establish an integrated and health and without using processes or adequate network of disposal installations, methods which could harm the environ- taking account of the best available tech- ment, and in particular: nology not involving excessive costs. The network must enable the Community as a whole to become self-sufficient in waste disposal and the Member Stales to move towards that aim individually, taking into account geographical circumstances or the — without risk to water, air, soil and need for specialised installations for certain plants and animals, types of waste.

2. Member States shall collaborate as — the type, quantity and origin of waste appropriate with the other Member States to be recovered or disposed of, concerned and the Commission to draw up such plans. They shall notify the Commis- sion thereof.

— general technical requirements,

3. Member States may take the measures necessary to prevent movements of waste which are not in accordance with their — any special arrangements for particular waste management plans. They shall inform wastes, the Commission and the Member States of any such measures.'

— suitable disposal sites or installations. 7. Article 9 of the Directive provides:

Such plans may, for example, cover:

' 1 . For the purposes of implementing Articles 4, 5 and 7, any establishment or undertaking which carries out the opera- — the natural or legal persons empow- tions specified in Annex IIA must obtain a ered to carry out the management of permit from the competent authority waste, referred to in Article 6.

— the treatment method.

(a) the competent authority does not issue a landfill permit unless it is satisfied 2. Permits may be granted for a specified that: period, they may be renewable, they may be subject to conditions and obligations, or, notably, if the intended method of disposal is unacceptable from the point of view of environmental protection, they may be refused.' (i) without prejudice to Article 3(4) and (5), the landfill project com- plies with all the relevant require- ments of this Directive, including 8. In Directive 91/156, which inserted into the Annexes; Directive 75/442 all the provisions which I have cited directly above, Article 2(1) provides: 'Member States shall bring into 6 — OJ 1999 L 182, p. 1.

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(b) the landfill project is in line with the (d) the risk of flooding, subsidence, relevant waste management plan or landslides or avalanches on the plans referred to in Article 7 of site; Directive 75/442/EEC;

...'

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'1. The Government shall draw up a waste waste management and the natural or legal management plan in accordance with Arti- persons authorised to undertake the man- cles 11 to 16 of the Decree of 21 April 1994 agement of waste. on environmental planning with a view to sustainable development. That plan shall be a sectoral programme for the purposes of the Decree. It may comprise planning by type of waste or by sectoral activity. The plan shall be accompanied by informa- tion on its budgetary implications for the public authorities, its foreseeable general economic effects in the short, medium and The plan shall include in particular: long term and its expected effects on the environment.

(1) a description of the type, quantity and origin of the waste, of the methods 2. The Government shall establish, follow- employed in the management of the waste ing the procedure laid down in Articles 25 produced and transported each year, and of and 26, a plan for landfills which includes the installations currently in operation and sites likely to be allocated for setting up and the occupied sites; operating landfills, with the exception of those landfills reserved for the exclusive use of the producer of the waste.

(2) an inventory of the legislative and general measures in force which affect the management of waste; No landfills other than one intended for the exclusive use of the producer of waste may be authorised aside from those provided for in the plan referred to in this paragraph.' (3) a description of likely trends in the sector and the objectives to be met as regards waste management;

'Until such time as the landfill plan referred to in Article 24(2) has entered into force, applications for permits within the meaning of Article 11 in order to set up and operate landfills and applications for building 15. The commune of Braine-le-Château permits as provided for in Article 41(1) of (hereinafter 'Braine-le-Château') brought the Wallonia Town and Country Planning an action for annulment of the decision in and Heritage Code which were held to be question before the Conseil d'État. In admissible before this Decree was adopted support of its application, Braine-le-Châ- by Parliament may result in a permit being teau pleads, inter alia, breach of Articles 4, granted in industrial, agricultural and 5, 7 and 9 of the Directive. It takes the view extraction zones as defined in Articles that, in spite of Article 7 of the Directive, 172, 176 and 182 of that code.' which provides for the drawing up of waste management plans, and in spite of Article 24(2) of the Decree of 27 June 1996 on waste, under which the Wallonia Govern- ment is required to undertake spatial planning of sites likely to be used for the setting up and operation of a landfill and I I— The main proceedings which states that no landfill site other than those provided for by the plan may be authorised, no plan had been adopted by the Wallonia Government at the time when the contested permit was issued. First of all, A — Case C-53/02 Horizon 2 0 1 0 , it maintains, does not amount to such planning and, secondly, the CET was not in force when the contested measure was adopted. As a final 14. By decision of 21 M a y 1999, the point it notes that the site at issue is not Wallonia G o v e r n m e n t granted BIFFA included in the CET and, accordingly, that

the c o n t e s t e d p e r m i t w a s issued in respect Association des h a b i t a n t s de L o u v a i n - l a - of a site w h i c h is n o t identified in a n y N e u v e ASBI. (Association of the i n h a b i t a n t s p l a n n i n g of w a s t e disposal sites. of L o u v a i n - l a - N e u v e ) a n d (ii) Willy G r é - goire a n d the association l'Epine b l a n c h e ASBL. Since t h e causes of a c t i o n w e r e c o n n e c t e d , t h e t w o cases w e r e joined for t h e p u r p o s e of t h e decision o n the merits. T h e association l'Epine b l a n c h e ASBL h a s since w i t h d r a w n from the p r o c e e d i n g s . 16. T h e W a l l o n i a G o v e r n m e n t c o n t e n d s t h a t H o r i z o n 2 0 1 0 c o n t a i n s spatial p l a n - n i n g as prescribed by Article 7( 1 ) of the Directive a n d includes the site at issue. BIFFA, an intervener in t h e a c t i o n , s u b m i t s t h a t it is in n o w a y established t h a t Article 7 19. T h e plaintiffs in the m a i n p r o c e e d i n g s of t h e Directive necessarily requires such m a i n t a i n in p a r t i c u l a r t h a t the contested p l a n n i n g of landfills as is u n d e r t a k e n in the a u t h o r i s a t i o n w a s g r a n t e d for a site n o t CET. identified in a plan for w a s t e disposal sites, c o n t r a r y , first, to Articles 7(1) a n d 9 of t h e Directive a n d , secondly, to Article 24(2) of the Decree of 2 7 J u n e 1996. In essence they s u b m i t t h a t Article 7 of t h e D i r e c t i v e requires t h a t disposal sites be subject t o spatial p l a n n i n g , t h a t the period prescribed for t r a n s p o s i t i o n has e x p i r e d , t h a t H o r i z o n 2 0 1 0 does not a m o u n t to the spatial B — Case C-217/02 p l a n n i n g required by the Directive a n d t h a t the C E T w a s only in draft at t h e time w h e n the contested m e a s u r e w a s a d o p t e d . T h e y a d d t h a t Article 7 0 of the Decree of 2 7 June 1996 d o e s n o t meet the p l a n n i n g require- 17. By Ministerial O r d e r of 16 D e c e m b e r m e n t laid d o w n in t h e D i r e c t i v e , t h e 1 9 9 8 , P r o p r e t é , Assainissement, Gestion de i m p l e m e n t a t i o n of w h i c h p r e s u p p o s e s t h e l ' e n v i r o n n e m e n t SA (hereinafter ' P A G E ' ) ' d e t e r m i n a t i o n of suitable sites' a n d t h e was authorised to continue operating a assessment of the p r o p o s e d site in the light landfill a t 'Les trois b u r e t t e s ' in M o n t - S a i n t - of t h e o t h e r r e q u i r e m e n t s of the Directive, G u i b e r t (Belgium). T h a t o r d e r lays d o w n n a m e l y t h e p r o t e c t i o n of h u m a n health a n d t h e a f t e r c a r e c o n d i t i o n s a n d sets u p a the environment. s u p p o r t c o m m i t t e e a n d a scientific c o m m i t - tee for t h e landfill.

must identify sites or must simply set out III— Questions referred for a preliminary the criteria establishing the suitability of ruling sites. It also submits that Horizon 2010 includes various provisions concerning spa- tial planning which are satisfied by the site which is the subject of the contested measure. The Région wallonne also refers 22. The Conseil d'État decided to stay the to the draft CET, provisionally adopted by proceedings in the two cases, referring the order of 30 April 1998, which takes following questions to the Court for a account of the landfill at Mont-Saint- preliminary ruling in Case C-53/02: Guibert. Finally, the Région wallonne con- siders that Article 70 of the Decree of 27 June 1996 adequately transposes Article 7 of the Directive by designating in sectoral plans the zones which can be used provi- sionally for landfill. '(1) Does the obligation imposed on Mem- ber States by Article 7 of Directive 75/442/EEC of 15 July 1975 on waste, as amended by Directive 91/156/EEC of 18 March 1991, to draw up one or more waste management plans relating in particular to "suitable disposal sites or installations" mean that the States to which the Directive is addressed are required to mark on a geographical 21. PAGE, the intervener in the main map the precise locations of the proceedings, considers that Article 7 of the planned waste disposal sites or to Directive does not involve spatial planning determine location criteria which are of waste management installations; on the sufficiently precise to enable the com- contrary, it in fact concerns planning of a petent authority responsible for issuing technical rather than of a geographical a permit under Article 9 of the nature. PAGE maintains that the Directive Directive to ascertain whether the site does not define the legal effect of waste or installation falls within the manage- management plans and thus concludes, ment framework prescribed by the first, that such plans do not necessarily plan? have a regulatory effect and, secondly, that the issue of a permit need not necessarily be made subject to compliance with any spatial planning. It also maintains that the Decree of 27 June 1996 meets the require- ment for spatial planning laid down in (2) Do Articles 4, 5 and 7 of Directive Article 7 of the Directive and that the same 75/442/EEC of 15 July 1975 on waste, is true as regards Horizon 2010. Lastly, as amended by Directive 91/156/EEC PAGE dwells on the fact that there is no of 18 March 1991, whether or not time-limit for transposing Article 7 of the read in conjunction with Article 9 of Directive and that the Commission has not Directive 75/442, preclude a Member taken steps against the Belgian State in the State which has not adopted within the form of infringement proceedings. period prescribed one or more waste I - 3262

25. That view is shared by Mr Tillieut, the Association des habitants de Louvain-la- 'Does Article 7(1) of Directive 75/442, as Neuve ASBL and Mr Grégoire, plaintiffs in amended by Directive 91/156, mean that the main proceedings (Case C-217/02), as the plan or plans relating inter alia to well as by Philippe Feron and Philippe De "suitable disposal sites or installations" Codi, interveners in the main proceedings must be drawn up not later than 1 April (Case C-53/02) (hereinafter 'Mr Tillieut, 1993, or does it mean that they must be Mr Feron and Others'). It is their view that drawn up within a reasonable period, the Directive leaves to the Member States which may exceed the period prescribed the decision whether the plan must identify for transposing the Directive into national suitable prospective sites and installations law?' or whether it must simply set out the criteria establishing the suitability of those sites and installations. If the latter alter- native is applied, the criteria must none the less be sufficiently precise to enable the authority responsible for issuing a permit- IV — Analysis under Article 9 of the Directive to ascertain whether the site or installation concerned falls within the management framework prescribed by the plans. As regards location A — The first question referred for a criteria, these parties refer to criteria such as preliminary ruling in Cases C-53/02 and geological and hydrogeological conditions, C-217/02 proximity to residential areas, winds and distance between sites and installations.

30. According to the Republic of Austria, it cannot be inferred from Article 7 of the 27. The Région wallonne does not share Directive that Member States are required that view. It contends that Horizon 2010 to specify in their national waste manage- provides a recapitulation of the locations of ment plans the precise locations (on a existing sites in the various communes of geographical map) of the various possible the Walloon Region, even though it does waste disposal sites and of other installa- not specify the registered plots. Those plots tions. Since the Directive does not contain have to be marked on a plan drawn to a any indication to the contrary or any more scale of 1:2 500 that is submitted when detail on this matter, it must be regarded as applying for town planning consent. In its sufficient to lay down general, abstract view, such detail need not necessarily be criteria such as the prohibition on setting given in drawing up the waste management up waste disposal installations in certain plan referred to in Article 7 of the Directive sensitive areas (for example, in water provided that it is given in the process for protection zones, flooding zones, zones obtaining the permit referred to in Article 9 subject to frequent atmospheric inversion, of the Directive. alpine regions, nature protection zones and so forth), geological and hydrogeological conditions, prohibitions imposed with a view to creating residential or vacation areas, the situation with regard to nui- sances, infrastructure and, in particular, 28. As to the correct interpretation of possible integration with transport net- Article 7 of the Directive, the Région works and prohibitions imposed because wallonne considers that the obligation of historic monuments or sites of nature imposed on Member States by that provi- interest. sion to draw up one or more waste management plans relating in particular to suitable disposal sites or installations does not mean that Member States are required to indicate on a geographical map the precise locations of the planned waste disposal sites. It means that Member States are required to determine location criteria 31. According to the Kingdom of the which are sufficiently precise to enable the Netherlands, under Article 7 of the Direc- competent authority responsible for issuing tive Member States are supposed to draw a permit under Article 9 of the Directive to up, by means of management plans, a ascertain whether the site or installation general policy framework for adopting falls within the management framework more detailed decisions. That framework prescribed by the plan. must be comprehensive and constitute an I - 3264

34. The United Kingdom Government con- siders it appropriate to indicate the location of a planned disposal installation when plans have reached a sufficiently advanced stage for it to be said with confidence that the installation in question will be able to 36. According to the Frenali Government, receive waste on a reasonably specific date a requirement that Member States identify in the future. It is at this stage that planned sites geographically is not apparent from installations can be said to comprise poten- Article 7 of the Directive. A management

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plan is a programme giving guidance. — drawing up a list identifying precisely However, in accordance with Article 7 it the sites and installations intended to has to have a geographical dimension, be used for waste disposal purposes; or which necessarily entails the setting of criteria by means of which it is possible to ascertain whether a permit is consistent with the management plan. In setting those criteria, account must be taken of waste disposal needs and capacity and of the envisaged location areas. — establishing a series of factors and criteria, including location criteria, which make it possible to identify specific sites.

37. The Commission considers that waste management plans must identify sites suffi- ciently precisely to implement the objectives 39. In the Commission's view, the last set out in Articles 4 and 5 of the Directive method listed can be regarded as the easiest and ensure that the requirements of Article for determining future sites already envi- 9 of the Directive are met. Furthermore, it is saged in the plan. essential that the location of sites that are considered 'suitable' by the authority which draws up the plan can be determined precisely so that the authorities responsible for issuing permits can ascertain whether an intended site is indeed a site covered by the existing waste management plan. 2. Assessment

in particular to suitable disposal sites or 4 5 . Moreover, as the United Kingdom installations'. 7 Government points out, the final decision to build and operate a waste disposal installation in a particular location may be subject to a consultation and decision- making process which requires account to be taken of an environmental impact a s s e s s m e n t u n d e r Council Directive 85/337/EEC of 27 June 1985 on the 42. All the parties likewise agree that assessment of the effects of certain public Article 7 of the Directive does not require and private projects on the environment, 8 a management plan to contain precise maps as most recently amended by Council or any other precise description of the Directive 97/11/EC of 3 March 1997. 9 A location of existing and future disposal similar observation was made by the French sites. Government in connection with Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control. 10 Hence it is not always possible to establish as early as at the waste management plan stage the exact location of a future waste disposal site.

4 3 . Although the United Kingdom Govern- ment is right to point out that Member States may undertake such precise identifi- cation if they so wish and if it is possible to do so in the particular circumstances, Article 7 does not contain any obligation to that effect.

46. Similarly, the Netherlands Government is right to note that management plans which are too precise lack flexibility and adaptability. They have to be capable of 44. As the Région wallonne, PAGE and the adapting to scientific and technical progress French Government rightly observe, if there and to changes in circumstances, for were such an obligation, Article 9 of the example, as PAGE observes, the creation Directive, which provides that the permit of new waste disposal processes which were 'shall cover the disposal site', would be unknown when the management plan was almost redundant. It is, in fact, at the permit adopted. stage that the precise location of the relevant site should be determined.

52. Accordingly, as Mr Tillieut, Mr Feron and Others maintain, the factors must, first, make it possible to locate waste disposal sites in compliance with environmental and public health requirements. As the Court 49. The answer to that question is sug- held in paragraph 44 of its judgment in gested by the Conseil d'État itself and by Commission v France, 13 '[c]hief among some of the parties submitting observa- [the] objectives [set out in Articles 3, 4 tions. A management plan must lay down a and 5 of the Directive] is the protection of series of criteria or, as the Commission public health and the environment, which is suggests, factors enabling the authority the essence of Community legislation relat- dealing with an application for a permit ing to waste'. under Article 9 of the Directive subse- quently to pinpoint the most suitable location for a waste disposal site.

53. Secondly, as the Commission rightly pointed out at the hearing, those factors

50. In this way, a management plan, first, does in fact display a geographical dimen- 12 — See Article 7(1) of the Directive: 'In order to attain the objectives referred to in Article[s] 3, 4 and 5, the competent authority or authorities referred to in Article 6 shall be required to draw up as soon as possible one or more waste management plans' (emphasis added). 11 — Case C-387/97 [2000] ECR I-5047. 13 — Case C-292/99 [2002] ECR I-4097.

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must also satisfy the other objectives of the reference framework for the competent Directive, including '[establishing] an inte- authorities which are in due course required grated and adequate network of disposal to determine the precise location of a waste installations, taking account of the best disposal site. available technology not involving exces- sive costs'. 14 They must therefore also take account of the nature and quantity of the types of waste likely to be produced in the different parts of a country and of the need to avoid transporting it over excessively long distances.

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waste disposal site, cannot be accepted. In 60. Secondly, the fact that it is impossible support of its argument, it relied on the to be aware of all waste disposal or ASA judgment 15 in which the Court held recovery operations when a waste plan is at paragraph 60 that '[i]t must be con- drawn up may affect not only the sites but cluded that the intention of Annexes IIA also all other aspects covered in a manage- and IIB to the Directive is to list the most ment plan. PAGE's line of argument there- common disposal and recovery operations fore puts in issue the purpose of the entire and not precisely and exhaustively to management plan and not just its geogra- specify all the disposal and recovery opera- phical dimension. It cannot be argued that a tions covered by the Directive'. In PAGE's management plan is pointless merely view, that excerpt confirms that it is because it cannot take account of all the impossible to be alive to all waste disposal new developments which are still unknown and recovery operations when a waste plan on its adoption. is drawn up and that there is therefore no point in requiring that the management plan determine the waste disposal sites or location criteria.

63. It is not apparent from Directive B — The second question referred for a 1999/31 that the requirements laid down preliminary ruling in Cases C-53/02 and in Section 1 of Annex I thereto for C-217/02 determining the location of a landfill con- stitute, as BIFFA claims, 'criteria supple- menting and defining more precisely the arrangements in the general plans adopted on the basis of Article 7 of Directive 65. By its second question, the Conseil 75/442, as amended by Directive 91/156'. d'État is asking whether Articles 4, 5 and Directive 1999/31 merely provides, in 7 of the Directive, whether or not read in Article 8(a)(i) thereof, read in conjunction conjunction with Article 9 thereof, preclude with Section 1 of Annex I thereto, that a a Member State which has not adopted permit cannot be granted unless the require- within the period prescribed one or more ments laid down in that annex are met. On waste management plans relating to suita- the other hand, it by no means precludes ble disposal sites or installations from transposition of those requirements into issuing individual permits to operate waste national law in the management plans disposal installations, such as landfills. which Member States are supposed to adopt under Article 7 of Directive 75/442, as amended by Directive 91/156.

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68. As the Netherlands and Austrian Gov- 'as soon as possible'. It is clear from ernments point out, it cannot be inferred paragraph 41 of the judgment in Commis- from either the wording or the purpose of sion v France, cited above, 18 that the latter Article 9 of the Directive that issuing an period for transposition extends beyond the individual permit where there is no manage- former. To require that the plan be drawn ment plan would be prohibited. up before individual permits meeting the requirements of the Directive can be granted would mean deferring the actual entry into force of Article 9 in conjunction with Articles 4 and 5 to an unspecified date, as is provided for exclusively in relation to the transposition of Article 7. Such an outcome would be contrary to the Direc- 69. Admittedly, Article 9 of the Directive tive's aim of ensuring the protection of does refer to Article 7 with the words '[f]or human health and the environment. the purposes of implementing [Article] 7'. However, as the Région wallonne and the Commission correctly point out, although those words require that permits be granted for the purpose of implementing manage- ment plans, this does not mean that granting a permit in the absence of a management plan would be prohibited.

72. Secondly, PAGE is right to question how a State could rely on its own failure to 70. That interpretation is, in my view, act in order to produce legal effects reinforced by various arguments raised by consisting, in this case, in the refusal of parties which have intervened. permits. Community law after all prohibits States from invoking the direct effect of an untransposed directive against individuals or undertakings, irrespective of whether the legal effects sought are positive (grant of a permit) or negative (refusal of a permit).

73. Thirdly, as the United Kingdom Gov- 76. The Commission, while proposing that ernment observes, if expiring permits could the second question referred should be not be renewed, and no new permits could answered in the negative, adds that the be issued merely on account of a competent situation would be otherwise if Directive authority's failure to adopt a waste man- 1999/31 applied. However, that is not the agement plan, waste disposal sites might case, as the Commission itself acknowl- become legally inoperable, and no alter- edges, since the period prescribed for native waste disposal sites might be avail- transposing that directive expired alter the able. Alternatively, the inability of national date of adoption of the measure at issue in authorities to issue permits might have the the main proceedings. Therefore, 1 see no effect of invalidating national rules requir- reason to take a view on how the second ing undertakings to possess permits, which question would be answered it Directive would lead to deregulation of the operation 1999/31 applied. of waste disposal sites in the Member State concerned.

77. 1 therefore propose that the answer to this question should be that Articles 4, 5 and 7 of the Directive, whether or not read in conjunction with Article 9 thereof, do 74. Those are situations which are indis- not preclude a Member State which has not putably contrary to the main objective of adopted within the period prescribed one or the Directive, namely the protection of more waste management plans relating to public health and the environment. suitable disposal sites or installations from issuing individual permits to operate waste disposal installations, such as landfills.

V — Conclusion

82. In the light of the foregoing considerations, I propose that the questions referred for a preliminary ruling by the Conseil d'État should be answered as follows:

(1) The obligation imposed on Member States by Article 7 of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive I - 3274

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91/156/EEC of 18 March 1991, to draw up one or more waste management plans relating in particular to suitable disposal sites or installations means that Member States are required either to mark on a geographical map the precise locations of the planned waste disposal sites or to determine location criteria which are sufficiently precise to enable the competent authority responsible for issuing a permit under Article 9 of the Directive to ascertain whether the site or installation falls within the management framework prescribed by the plan.

(2) Articles 4, 5 and 7 of Directive 75/442, as amended by Directive 91/156, whether or not read in conjunction with Article 9 thereof, do not preclude a Member State which has not adopted within the period prescribed one or more waste management plans relating to suitable disposal sites or installations from issuing individual permits to operate waste disposal installations, such as landfills.