Report for the Hearing delivered in Case C-359/88

I — Facts and procedure

A — The Community provisions

The Council provided for the harmonization of national laws concerning the disposal of waste by means 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).

Pursuant to Article 1(a) of each of those directives, waste means, for the purposes of the directives, any substance or object which the holder disposes of or is required to dispose of pursuant to the provisions of national law in force.

As is apparent from the preamble to the two directives, their essential aim is the protection of human health and the environment against harmful effects caused by the collection, transport, treatment, storage and tipping of waste.

Article 4 of Directive 75/442 and Article 5 of Directive 78/319 require the Member States to take appropriate steps to achieve that aim.

To that end, the Member States are to designate or establish the competent authority or authorities to be responsible, in a given area, for the planning, organization, authorization and supervision of operations for the disposal of waste (Article 5 of Directive 75/442 on waste and Article 6 of Directive 78/319 on toxic and dangerous waste).

To ensure compliance with the measures taken by the Member States under Article 4, Article 8 of Directive 75/442 on waste provides that every installation or undertaking treating, storing or tipping waste on behalf of third parties must obtain a permit from the competent authority designated by the Member States under Article 5. Article 9 provides that such installations and undertakings are to be periodically inspected by the same authority.

Article 10 provides that undertakings transporting, collecting, storing, tipping or treating their own waste or collecting or transponing waste on behalf of third parties are to be subject to supervision by the competent authority referred to in Article 5.

Directive 78/319 on toxic and dangerous waste also provides — in Article 9 — for a system for authorization and control of the disposal of waste.

B — The national legislation

Italy transposed Directives 75/442 and 78/319 into national law by means of Decree No 915 of the President of the Republic of 10 September 1982 (GURI (Italian Official Gazette) No 343, 15.12.1982, p. 9071).

Pursuant to Article 2(1) of that decree, waste means, for the purposes of the decree, any substance or object produced by human activity or natural processes which is, or is intended to be, abandoned.

Article 2(2) of the decree divides waste into three categories: urban waste (essentially bulk waste and waste tipped on public land); special waste (comprising residues of industrial processes and waste deriving from agricultural, craft, commercial and other activities); and toxic and dangerous waste (waste containing substances listed in an annex to the decree).

Urban and special waste, as defined by the Italian decree, are covered by Directive 75/442 whilst toxic and dangerous waste, as defined by the decree, are covered by Directive 78/319.

Article 25 of the decree lays down penalties to be imposed on the management of undertakings which dispose of urban and special waste produced by third parties without first obtaining the authorization provided for in Article 6(d) of the decree. The latter provision makes the regions responsible for issuing authorizations for the disposal of urban and special waste produced by third parties.

C — The proceedings before the national court

The proceedings before the national court are concerned with the transport of baths of used hydrochloric acid by Mr Zanetti and other hauliers for a zinc plant. The zinc plant uses the acid baths for the polishing of metal surfaces. After a time, the acid is no longer fit for the purpose. The plant then sends it to other undertakings which are able to reuse it, in particular for the production of ferric chloride.

It is not in dispute that the used hydrochloric acid is special waste within the meaning of Presidential Decree No 915 (residues of industrial processes).

The hauliers involved, who are all established in the Friuli Venezia-Giulia Region, transported used acid from that region to other regions of Italy. They are the subject of criminal proceedings before the Pretura di San Vito al Tagliamento for doing so without first obtaining the requisite authorization from the Friuli Venezia-Giulia Region.

A number of the accused contended in their defence that they had applied to the Friuli Venezia-Giulia Region for the authorization in question but had been told that no authorization was necessary for the transport of special waste produced by third parties. Others produced authorizations which had been issued to them by other regions. Finally, some of the accused drew attention to the fact that in the case-law different views had been taken on whether authorization was required for the transport of special waste produced by third parties.

By order of 14 July 1988, the Pretura di San Vito al Tagliamento stayed the proceedings and referred the following questions to the Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty:

With respect to the first question, the national court observes that Italian Presidential Decree No 915 defines waste as objects or substances which have been, or are intended to be, abandoned. According to the decisions of some Italian courts, objects or substances which the holder disposes of but which are nevertheless capable of economic reuse are not abandoned and are not therefore covered by the rules on waste. Other courts, however, and in particular the Corte di cassazione (judgment of 14 April 1987 in Perino) have taken the opposite view, namely that objects or substances which a holder disposes of because they are no longer of any use to him are waste, even if they are economically exploitable by others. The latter view is based on the definition of waste laid down in Directives 75/442 and 78/319. That definition relates only to the conduct of the holder disposing of an object or substance and not to his intention or to the potential for economic reutilization of the object or substance in question.

With regard to the second question, the Pretura states that it is not clear from the Italian presidential decree whether or not the transport of special waste produced by third parties is subject to authorization. The fact that Article 16 of the decree expressly requires an authorization to be obtained for the transport of toxic and dangerous waste, whereas there is no similar provision regarding the transport of special waste, appears to indicate that transport of special waste is not subject to authorization. However, Article 25 of the decree imposes a general requirement of authorization, in general, for the disposal of urban and special waste produced by third parties. Since transport is a stage in the disposal of waste, that provision appears to imply that the transport of special waste produced by third parties is subject to authorization. To enable it to reach a decision, the national court considers it necessary to determine whether Article 10 of Directive 75/442 requires the national legislature to impose the requirement of a prior authorization for the transport of waste.

To clarify its third question, the national court points out that Article 5 of Directive 75/442 requires the Member States to establish or designate a competent authority or authorities responsible, in a given zone, for authorizing waste disposal operations. According to the national court, that provision implies that the Member States must designate authorities which are competent on a supraregional or national basis. Indeed, if the authorities in question have purely regional competence, then it will be necessary, in the case of interregional transport, for as many authorizations to be issued as there are regions to be crossed. Such a system would not be practicable since each of the competent authorities might subject the grant of authorization to different conditions. The Pretura also states that Article 9 of Directive 75/442 subjects undertakings to periodical inspections, particularly with regard to the destination and the treatment of waste. However, the regions could not effectively monitor all the undertakings whose lorries cross their territory for a distance of a few kilometres. The system of authorizations and control provided for in Directive 75/442 therefore necessarily presupposes a competent authority operating at national, not regional, level.

D — Procedure before the Court

The order from the Pretura di San Vito al Tagliamento was received at the Court Registry on 13 December 1988.

Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the European Communities, written observations were submitted on 7 March 1989 by the Commission of the European Communities, represented by S. Fabro, a member of its Legal Department, acting as Agent, and on 4 April 1989 by the Government of the Italian Republic, represented by L. Ferrari Bravo, Head of the Department for Contentious Diplomatic Affairs of the Ministry of Foreign Affairs, acting as Agent, assisted by P. G. Ferri, avvocato dello Stato.

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.

By order of 4 October 1989 the Court assigned the case to the First Chamber, pursuant to Article 95(1) and (2) of the Rules of Procedure.

II — Written observations submitted to the Court

First question (definition of waste)

The Italian Government refers to its observations in Case C-206/88, which it annexed to its observations.

In Case C-206/88, the Italian Government states first that the definition of waste contained in Article 1(a) of Directive 75/442 centres essentially on the conduct of the person disposing of an object or substance and not on the intention underlying such disposal. The fact that the person disposing of the object or substance wishes to receive some consideration in return does not alter the fact that it is waste.

It then observes that, pursuant to Article 1(a) of Directive 75/442, not only objects or substances which a holder disposes of by his own decision but also those which he disposes of because he is required to by national legislation constitute waste. Waste of the latter type may certainly have a potential for economic reuse. Moreover, the second indent of Article 1(b) and Article 3(1) of the same directive make it clear that reuse is one of the primary purposes for which waste is collected and disposed of. Waste therefore clearly embraces objects and substances which are capable of economic reuse.

The Italian Government therefore suggests the following answer to the question submitted by the national court:

According to the Commission, it is apparent from the terms of Article 1 of Directives 75/442 and 78/319 that the concept of waste covers all objects and substances which a holder disposes of, regardless of the method of disposal and regardless of the holder's intention in disposing of it. In particular, it is of little importance whether the thing is to be disposed of permanently or is capable of economic reutilization. That interpretation is in conformity with the objectives pursued by the directives in question which are, as is apparent from their preambles, to protect the environment and improve the quality of life.

As regards the definition of waste contained in Article 2 of Presidential Decree No 915, the Commission points out that it is based essentially on the concept of abandonment of the thing in question. Disposal and abandonment— the terms used in Article 1 of the directives and in Article 2 of the Italian decree respectively — are sufficiently similar to each other for the Italian provision to be regarded as compatible with the directives.

The Commission therefore proposes that the question be answered as follows:

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

The Italian Government observes that the second question relates exclusively to ordinary waste (as opposed to toxic or dangerous waste), that is to say waste covered by Directive 75/442.

It emphasizes that Article 8 of the latter directive imposes the requirement of an authorization for the treatment, storage and tipping of waste on behalf of third parties. By contrast, Article 10 of the directive provides only for supervision of undertakings which engage in the transport of waste, whether on their own account or for third parties. Directive 75/442 does not therefore make the activity of transporting waste subject to a system of authorization.

According to the Commission, Article 10 of Directive 75/422 does not require the Member States to subject the transport of waste to a system of authorization, but it enables them to do so.

To explain that view, the Commission states first that, under Article 4 of the directive, it is incumbent on the Member States to take the necessary measures to ensure that waste is disposed of without danger to human health or harm to the environment.

It is apparent from Article 8 of the directive that the reason for making the activities of treatment, storage and tipping of waste on behalf of third parties subject to a system of authorization is to ensure that the measures adopted by the Member States under Article 4 are complied with.

Moreover, under Article 1(b) of the directive, the transport of waste is a stage in the disposal of waste. The Member States are therefore required, by virtue of Article 4, to take the measures necessary to ensure that waste is transported in a manner consonant with the objectives of the directive.

Accordingly, the Member States are entitled to subject the transport of waste to the requirement of notification of particulars and even to a system of authorization if they consider it necessary to do so to enable them to discharge their duty of supervision under Article 10 of the directive.

On the basis of the foregoing considerations, the Commission is of the opinion that the Italian legislature has not contravened Article 10 of Directive 75/442.

It proposes that the second question be answered as follows:

The third question (as to which authorities may be designated for the issue of the authorizations covered by the directive)

The Italian Government is of the opinion that Directive 75/442 leaves the Member States absolute freedom regarding the choice of the authorities to be responsible for issuing authorizations and carrying out the supervision provided for in the directive.

As regards the activity specifically referred to in the question, namely the transport of waste, the Italian Government states that that activity is not subject to authorization, as already pointed out in its observations on the second question. It is therefore unnecessary to ask which authority may be designated by the Member States for the purpose of issuing such authorizations.

In the Commission's view, Article 5 of Directive 75/442 enables the Member States to choose the authorities which they consider most appropriate to issue the authorizations and to exercise the functions of control and supervision provided for by the directive.

The Commission points out, however, that if a Member State decides to subject the activity of transport of waste to the requirement of a prior authorization, it must not allocate the powers relating thereto to an excessive number of bodies. Since the criteria applied by each local authority may be different, excessive fragmentation of the relevant powers would be likely to create obstacles to the transport of waste over long distances.

The Commission considers that by vesting powers in the regions for authorizing the transport of waste, the Italian legislature has complied with Article 5 of the directive.

It considers that the third question should be answered as follows:

1 Language of the case: Italian.