Report for the Hearing delivered in Joined Cases 372 to 374/85

I — Pacts and procedure

1. The Community provisions

In addition to the directives concerning special types of waste and those governing certain aspects of the protection of surface water and ground water, the matter of waste disposal is dealt with generally by Directive 75/442/EEC of 15 July 1975 on waste (Official Journal 1975, L 194, p. 39).

That directive defines waste as any substance or object which the holder disposes of... (Article 1 (a)). It defines disposal as, inter alia, the collection, sorting, transport and treatment of waste as well as its storage and tipping above or under ground (first indent of Article 1 (b)).

Article 2 (1) enables Member States to adopt specific rules for particular categories of waste. Article 2 (2) specifies various types of waste which are excluded from the scope of the directive, in particular:

The third recital in the preamble to the directive indicates that its essential purpose is to protect human health and the environment against harmful effects caused by the disposal of waste. Article 4 requires the Member States to take the necessary-measures to achieve that aim. For that purpose the Member States must, pursuant to Article 5, establish or designate the competent authority or authorities to be responsible, in a given zone, for the plannning, organization, authorization and supervision of waste-disposal operations.

Article 8 provides that, in order to comply with the measures taken pursuant to Article 4, any installation or undertaking treating, storing or tipping waste on behalf of third parties must obtain a permit from the competent authority referred to in Article 5.

Under Article 9, the installations and undertakings referred to in Article 8, that is to say those which are obliged to hold a permit, are to be periodically inspected by the competent authority referred to in Article 5, to ensure, in particular, that the conditions of the permit are being fulfilled. Article 10, on the other hand, provides in more general terms that undertakings transporting, collecting, storing or treating their own waste and those which collect or transport waste on behalf of third parties are to be subject to supervision by the competent authority referred to in Article 5.

Finally, Article 12 provides, with respect to the planning and organization of waste-disposal operations, that the Member States are to forward to the Commission every three years a situation report on waste disposal in their respective countries and that, for that purpose, the installations or undertakings referred to in Articles 8 and 10 must supply the competent authority referred to in Article 5 with the particulars on the disposal of waste.

2. The national legislation

The Council of the Flemish Community implemented Directive 75/442 by a Decree of 2 July 1981 on waste management {Moniteur belge of 25. 7. 1981, p. 9340). The Flemish Executive has adopted a number of orders to implement that decree.

Article 25 of the decree provides as follows: It shall be prohibited to set up, organize, enlarge, operate, transfer, modify or convert an installation in which waste is treated or to change the methods employed in that installation without authorization. Under Article 26 (1), that authorization is to be granted, withheld or withdrawn by the Permanent Delegation of the Provincial Council. Pursuant to Article 26 (2), the Flemish Executive set out in its order of 21 April 1982 listing the institutions responsible for issuing an opinion on any application for a permit made to the Permanent Delegation {Moniteur belge of 15. 5. 1982, p. 5928) the bodies which are to be consulted in connection with applications for permits; they include in particular the water-purification companies as regards matters relating to the protection of surface waters against pollution and the Openbare Afvalstoffenmaatschappij (Public Waste Company) for the Flemish region (OVAM) for all matters.

Article 56 (1) of the decree contains the criminal-law provisions applicable to any person who fails to comply with the provisions of the decree or the requirements of the permit granted. Article 62 treats as aiding and abetting an infringement of a provision laid down by or under the decree or a provision of the permit granted any person empowered to give orders or instructions to the offender unless it is established that he was unable to prevent the infringement.

As regards supervision, Article 54 of the decree provides that the officials designated by the Flemish Executive are to supervise the application of the decree and of the orders implementing it and that the governor of the province or the mayor of any municipality in which waste has been abandoned in contravention of the decree or the implementing orders thereunder may order that it be disposed of and may adopt all measures necessary for that purpose. Article 55 defines the investigative powers of the governor, mayor and officers responsible for supervision.

In order to facilitate supervision, Article 7 of the decree lays down certain obligations concerning information in the following terms: (1) The producers of waste, with exception of household refuse, shall give notice thereof to the waste company. (2) A receipt shall be issued whenever any waste, with the exception of household refuse, is delivered. The judgments of the national court point out that the form of the document covering deliveries has not yet been decided upon by the competent minister.

3. The main proceedings

These are criminal proceedings before the Seventh Chamber of the Rechtbank van Eerste Aanleg, Bruges. The accused are three operators of private waste-disposal undertakings and a driver engaged in waste disposal. In essence, they are accused of one or more of the following infringements: the discharging of waste contrary to the decree and the orders mentioned above; failure to apply to the competent authority for a waste-disposal permit; setting up and operating a waste-disposal establishment without being in possession of a permit.

The facts described by the national court may be summarized as follows. The accused collected, transported, sometimes treated, and subsequently discharged waste. The waste came mainly from septic tanks, grease tanks, slurry tanks, soakaways, rainwater tanks, sawmills and granite-washing plants. In general, the waste was spread as fertilizer on land belonging to farmers who had given their permission. Two of the accused were apprehended while committing the offence. Although the accused held tipping permits for certain approved purification plants, they rarely or never used them, since the transport costs were too high.

According to the Public Prosecutor's Office, the operations constitute waste disposal within the meaning of Article 3 (b) of the decree, carried out without the prior authorization from a competent authority prescribed by Article 25 of the decree. The national court, on the other hand, is of the opinion that, under the Flemish legislation, no authorization was necessary for the disposal of the waste in question. In reaching that conclusion it relies on a number of provisions relating to certain special types of waste.

Accordingly, since it had doubts as to the compatibility of that legislation with Directive 75/442, the Rechtbank van Eerste Aanleg, Bruges, by judgments of 30 October 1985, submitted the following questions to the Court under Article 177 of the EEC Treaty for a preliminary ruling:

The judgments of the national court were received at the Court Registry on 27 November 1985.

Under Article 20 of the Protocol on the Statute of the Court of Justice of the European Economic Community, written observations were submitted on 13 February 1986 by the Procureur des Konings attached to the Rechtbank van Eerste Aanleg, Bruges, on 13 February 1986 by R. Vanhove, the accused in the main proceedings in Case 374/85, represented by Mr Arnou, of the Zedelgem Bar, and on 18 February 1986 by the Commission of the European Communities, represented by Jean Amphoux, its Legal Adviser, and by Luc Gyselen, a member of its Legal Department.

By order of 4 December 1985, the Court joined the cases for the purposes of the procedure and judgment.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry and, pursuant to Article 95 (1) of the Rules of Procedure, assigned the cases to the Fourth Chamber.

II — Written observations submitted to the Court

1. The first question

The Commission considers that the directive, by virtue of its aim of protecting human health and the environment, is applicable regardless of the frequency or nature of the waste-disposal operations.

The Procureur des Konings is of the same opinion and adds that the directive is not confined to commercial profit-making undertakings.

Mr Vanhove also considers that even a single operation requires a permit under Article 8 of the directive.

The Commission suggests the following reply:

2. The second question

Whereas the Procureur des Konings considers that the owner of the land is required to hold a permit, as well as the disposal undertaking, the Commission and Mr Vanhove take the view that the undertaking's permit is sufficient, and Mr Vanhove draws attention to the fact that the spreading of a substance on land does not constitute storage.

The Commission suggests the following reply:

3. The third question

The Commission and Mr Vanhove regard the choice of the competent authority to issue the permit as a matter for the Member States. The Procureur des Konings explains why, under Belgian law, a permit issued by a water-purifying company would not cover all cases.

The Commission proposes the following answer:

4. The fourth question

The Commission, the Procureur des Konings and Mr Vanhove all share the view that the Member States have considerable freedom regarding arrangements for the supervision referred to in Article 10 of the directive.

The Commission and the Procureur des Konings nevertheless perceive a number of reference points in the general objectives of the directive: protection of human health and the environment. According to the Commission, the Member States may also take action prompted by Article 9, which provides for supervisory measures relating to other types of undertakings.

The Commission proposes the following answer:

5. The fifth question

In Mr Vanhove's view, Article 15 of the directive (This directive is addressed to the Member States) and Article 189 of the EEC Treaty prevent the directive from having direct effect.

The Commission considers that, although a directive may confer rights directly, it would hardly be conceivable that it could impose a direct obligation on private undertakings to adopt a particular course of conduct. Moreover, having regard to the content of Articles 8 and 12 of the directive, it is doubtful whether they are unconditional and sufficiently precise.

The Procureur des Ronings has no objection in principle to the imposition by a directive of obligations directly upon private individuals. Although most of the obligations contained in the directive in question require prior action by the Member State, a prohibition which did not involve intervention by an authority (for example, clandestine discharging of waste or illegal operation of a tip) is directly applicable.

The Commission proposes the following answer:

1 Language of the Case: Dutch.