61988J0359

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1 . Approximation of laws - Waste - Directives 75/442 and 78/319 - Concept - Objects capable of economic reutilization - Included

( Council Directives 75/442, Art . 1, and 78/319, Art . 1 )

2 . Approximation of laws - Waste - Directive 75/442 - Requirement of prior authorization for transport of waste - Discretion of the Member States - Authorizations issued by authorities not having competence at a national level - Permissible

( Council Directive 75/442, Arts 4, 5 and 10 )

1 . National legislation which defines waste as excluding substances and objects which are capable of economic reutilization is not compatible with Directives 75/442 and 78/319 .

2 . National legislation which does not make the transport of waste covered by Directive 75/442 subject to a system of prior authorization is compatible with Article 10 of that directive . However, the Member States may make the transport of waste covered by that directive subject to a system of prior authorization if they consider this necessary in order to achieve the aims of the directive .

The vesting in authorities which do not have competence at the national level of the power to issue authorizations for the transport of waste is compatible with Article 5 of the directive .

In Case C-359/88

REFERENCE to the Court under Article 177 of the EEC Treaty by the Pretura ( Magistrate' s Court ), San Vito al Tagliamento, Italy, for a preliminary ruling in the criminal proceedings pending before that court against

E . Zanetti and Others

on the interpretation of Council Directive 75/442/EEC of 15 July 1975 on waste ( Official Journal 1975, L 194, p . 39 ) and Council Directive 78/319/EEC of 20 March 1978 on toxic and dangerous waste ( Official Journal 1978, L 84, p . 43 ),

THE COURT ( First Chamber )

composed of : Sir Gordon Slynn, President of Chamber, R . Joliet and G . C . Rodríguez Iglesias, Judges,

Advocate General : F . G . Jacobs

Registrar : H . A . Ruehl, Principal Administrator

after considering the observations submitted on behalf of

the Government of the Italian Republic, by P . G . Ferri, avvocato dello Stato

the Commission of the European Communities, by S . Fabro, a member of its Legal Department, acting as Agent,

having regard to the Report for the Hearing and further to the hearing on 21 November 1989,

after hearing the Opinion of the Advocate General delivered at the sitting on 13 December 1989,

gives the following

Judgment

1 By order dated 14 July 1988, which was received at the Court on 13 December 1988, the Pretura di San Vito al Tagliamento referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty three questions on the interpretation of Council Directive 75/442/EEC of 15 July 1975 on waste ( Official Journal 1975, L 194, p . 39 ) and Council Directive 78/319/EEC of 20 March 1978 on toxic and dangerous waste ( Official Journal 1978, L 84, p . 43 ).

2 Those questions arose in the context of criminal proceedings brought against a number of haulage contractors who are charged with transporting used dilute hydrochloric acid on behalf of third parties without obtaining prior authorization, thereby infringing Decree No 915 of the President of the Italian Republic of 10 September 1982 ( GURI ( Italian Official Gazette ) No 343, 15.12.1982, p . 9071 ), hereinafter referred to as "the Presidential Decree ". That decree, which was adopted for the purpose of transposing the two abovementioned directives into national law, lays down penalties under criminal law for persons who transport or dispose of waste on behalf of third parties without obtaining the authorization of the competent Italian regional authority .

3 In their defence, the defendants maintained, first, that the substances transported did not constitute waste within the meaning of the Presidential Decree, Article 2 of which defines waste as including "any substance or object produced by human activity or natural processes which is, or is intended to be, abandoned"; they claimed that in this case the substances transported were capable of economic reutilization and were not therefore abandoned or intended to be abandoned . In their view, since the activity to which the charges related did not fall within the scope of the Presidential Decree, the criminal penalties laid down therein were not applicable .

4 The Pretura noted, in that regard, that Article 1 of both Directive 75/442 and Directive 78/319, which Article 2 of the Presidential Decree is intended to transpose into national law, defines waste as including "any substance or object which the holder disposes of or is required to dispose of pursuant to the provisions of national law in force ". It was uncertain whether an interpretation of the concept of waste excluding substances and objects capable of economic reutilization, as proposed by the defendants, would be compatible with the two directives in issue .

5 The defendants also pointed out that Article 16 of the Presidential Decree made it compulsory to obtain authorization only for the transport of toxic and dangerous waste within the meaning of Directive 78/319, and contained no comparable provision for the transport of waste covered by Directive 75/442 . They inferred that if the substances transported had been waste within the meaning of Directive 75/442 no authorization would have been required for their transport .

6 In that regard, the Pretura found that the substances transported by the defendants were not toxic or dangerous waste within the meaning of Directive 78/319 because they were not included among the substances and materials listed in the annex thereto . The Pretura considered, however, that the substances transported might be covered by Directive 75/442 . It took the view that it could not interpret the Presidential Decree in the manner suggested by the defendants unless Directive 75/442 did not oblige the Member States to make the transport of waste subject to a system of prior authorization .

7 Finally, the Pretura considered that the Presidential Decree did not clearly indicate whether an authorization to transport waste must be issued only by the regional authority within whose area the haulage contractor had its main place of business or by each region to be crossed . It stated that, in its view, the latter interpretation should be followed, since decisions taken by Italian regional authorities are valid only within their own respective areas .

8 The Pretura wondered, however, whether such an interpretation of the Presidential Decree would be compatible with Article 5 of Directive 75/442, which provides : "Member States shall establish or designate the competent authority or authorities to be responsible, in a given zone, for the planning, organization and supervision of waste disposal operations ". In the Pretura' s view, that article necessarily implied that the Member States must designate authorities having competence at the national level to issue authorizations for the transport of waste . Any dispersal of competence among different local authorities would render the authorization system impracticable, since the requirements laid down by the various authorities might be different .

9 The Pretura therefore stayed the proceedings and sought a preliminary ruling from the Court on the following questions :

"( 1 ) Has the Italian legislature adopted in Article 2(1 ) of Presidential Decree No 915 of 1982 a definition of waste which is compatible with Directives 75/442 and 78/319?

( 2 ) Has the Italian legislature complied with Article 10 of Directive 75/442 in imposing the requirement of authorization solely for the disposal of toxic and harmful waste, whereas ( Article 16 of Presidential Decree No 915 of 1982 ) it does not provide for the issue of individual authorizations in respect of similar operations involving special waste?

( 3 ) Has the Italian legislature, in providing for the issue of individual regional authorizations for the transportation of waste, complied with the terms of Article 5 of Directive 75/442 in the sense that the competent authorities would appear to be limited to a 'given zone' ?"

10 Reference is made to the Report for the Hearing for a fuller account of the facts of the case in the main proceed ings, the applicable legislation and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

The first question ( concept of waste )

11 The Pretura' s first question seeks, essentially, to ascertain whether national legislation which defines waste as excluding substances and objects capable of economic reutilization is compatible with Council Directives 75/442 and 78/319 .

12 In its judgment of 28 March 1990 in Joined Cases C-206/88 and C-207/88 Vessoso and Zanetti (( 1990 )) ECR 1461, the Court ruled that the concept of waste within the meaning of Article 1 of Council Directive 75/442 and Article 1 of Council Directive 78/319 was not to be understood as excluding substances and objects which were capable of economic reutilization .

13 The answer to the first question must therefore be that national legislation which defines waste as excluding substances and objects which are capable of economic reutilization is not compatible with Council Directives 75/442 and 78/319 .

The second question ( requirement of authorization for the transport of waste )

14 The Pretura' s second question seeks, essentially, to ascertain whether national legislation which does not make the transport of waste covered by Council Directive 75/442 subject to a system of prior authorization is compatible with Article 10 of that directive .

15 Article 10 of Directive 75/442 provides that "undertakings transporting, collecting, storing, tipping or treating their own waste and those which collect or transport waste on behalf of third parties shall be subject to supervision by the competent authority referred to in Article 5 ". That provision thus requires Member States to make the transport of waste subject to the supervision of the authorities they appoint for that purpose, but does not oblige them to make such transport subject to a system of prior authorization .

16 However, Article 4 of Directive 75/442 provides : "Member States shall take the necessary measures to ensure that waste is disposed of without endangering human health and without harming the environment ". Member States may therefore make the transport of waste covered by that directive subject to a system of prior authorization if they consider this necessary in order to achieve the aims of the directive .

17 The answer to the second question must therefore be that national legislation which does not make the transport of waste covered by Council Directive 75/442 subject to a system of prior authorization is compatible with Article 10 of that directive . However, the Member States may make the transport of waste covered by that directive subject to a system of prior authorization if they consider this necessary in order to achieve the aims of the directive .

The third question ( authorities which may be designated to issue the authorizations provided for in Directive 75/442 )

18 The Pretura' s third question seeks, essentially, to ascertain whether the vesting in authorities which do not have competence at the national level of the power to issue authorizations for the transport of waste is compatible with Article 5 of Council Directive 75/442 .

19 It is clear from Article 5 of the directive that the authorities designated by the Member States to be responsible for "the authorization ... of waste disposal operations" may be competent only "in a given zone ". That provision therefore allows for the power to issue authorizations to transport waste to be vested in authorities which do not have competence at the national level .

20 The answer to the third question must therefore be that the vesting in authorities which do not have competence at the national level of the power to issue authorizations for the transport of waste is compatible with Article 5 of Council Directive 75/442 .

Costs

21 The costs incurred by the Italian Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable . Since these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings pending before the national court, the decision on costs is a matter for that court .

On those grounds,

THE COURT ( First Chamber ),

in answer to the questions referred to it by the Pretura di San Vito al Tagliamento, by order of 14 July 1988, hereby rules :

( 1 ) National legislation which defines waste as excluding substances and objects which are capable of economic reutilization is not compatible with Council Directives 75/442/EEC and 78/319/EEC .

( 2 ) National legislation which does not make the transport of waste covered by Council Directive 75/442/EEC subject to a system of prior authorization is compatible with Article 10 of that directive . However, the Member States may make the transport of waste covered by that directive subject to a system of prior authorization if they consider this necessary in order to achieve the aims of the directive .

( 3 ) The vesting in authorities which do not have competence at the national level of the power to issue authorizations for the transport of waste is compatible with Article 5 of Council Directive 75/442/EEC .