Ministère public v Oscar Traen and others (372/85, 373/85, 374/85)

Contents

Judgment of the Court (Fourth Chamber)12 May 1987^noteIn Joined Cases 372 to 374/85REFERENCE to the Court under Article 177 of the EEC Treaty by the Rechtbank van Eerste Aanleg (Court of First Instance), Bruges, for a preliminary ruling in the criminal proceedings pending before that court betweenMinistère publicandOscar Traen, residing at Varsenare-Jabbeke,Camiel Quicke, residing at St. Andries-Brugge,Quicke PVBA, whose registered office is at St. Andries-Brugge (Case 372/85),Edouard Quicke, residing at St. Andries-Brugge (Case 373/85),Remi Vanhove, residing at Zedelgem (Case 374/85),THE COURT (Fourth Chamber),composed of: C. Kakouris, President of Chamber, T. Koopmans and G. C. Rodriguez Iglesias, Judges,Advocate General: G. F. ManciniRegistrar: J. A. Pompe, Deputy Registrarafter considering the observations submitted on behalf of— the Procureur des Konings attached to the Rechtbank van Eerste Aanleg, Bruges,— Remi Vanhove, the accused in the main proceedings in Case 374/85, by Patrick Arnou, of the Zedelgem Bar,— the Commission of the European Communities, by its Legal Adviser, Jean Amphoux, and by Luc Gyselen, a member of its Legal Department,having regard to the Report for the Hearing and further to the hearing on 23 October 1986,after hearing the Opinion of the Advocate General delivered at the sitting on 5 February 1987,gives the following

Judgment

1By three judgments of 30 October 1985, which were received at the Court on 27 November 1985, the Rechtbank van Eerste Aanleg, Bruges, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty five questions on the interpretation of several provisions of Council Directive 75/442/EEC of 15 July 1975 on waste (Official Journal 1975, L 194, p. 39).

2The questions were raised in three criminal actions against three operators of waste-disposal undertakings, and a driver. The accused were charged with infringing the Decree of 2 July 1981 of the Flemish Community, which implemented the abovementioned directive, and numerous implementing orders, by discharging waste in fields without being in possession of a permit.

3Having doubts as to the compatibility of the Flemish legislation with Directive 75/442, the Rechtbank van Eerste Aanleg submitted the following questions to the Court for a preliminary ruling:1. According to what criteria should it be determined whether an undertaking is subject to the provisions of Articles 8 to 12 of Directive 75/442/EEC because it carries on waste-disposal activities covered by those provisions? Is a casual or isolated operation sufficient or must other criteria be satisfied, concerning for example: the objects of the company, the operations actually carried out in the field of waste disposal (main or subsidiary activity, or repeated operations), the likely effect on the environment, and so forth?2. Is the carrier obliged to obtain a permit — because he also deposits waste — even if he acts on the instructions, at the request or with the permission of the owner or occupier of land who in law has acquired ownership of the waste,and conversely,is the occupier or owner required to obtain a permit, owing to the fact that he permits the waste to be deposited (and thus does not deposit waste himself)?3. Does a discharge permit issued by the director of a water-purifying company set up by the authorities of a Member State comply with the requirements of Articles 5 and 8 of the EEC Directive of 15 July 1975 on waste?4. To what extent are the Member States free to organize the supervision referred to in Article 10 of the aforesaid EEC directive?5. Do the obligations imposed by Articles 8 and 12 of Directive 75/442/EEC apply directly to undertakings or does their application depend upon the prior creation or designation by the Member State of the competent authority to which undertakings may apply, inter alia in order to obtain the necessary permit, and upon the adoption of the necessary implementing rules, regarding such matters as the forms to be used on the deposit of waste, for example, for the purpose of ensuring supervision, in view of the fact that the directive entered into force (by virtue of Article 191 of the EEC Treaty and Article 13 of the directive) by notification to the Member States and not by publication in the Official Journal of the European Communities'?’

4Reference is made to the Report for the Hearing for the facts of the cases before the national court, the relevant Community provisions and the observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

5It should be noted at the outset that the purpose of Directive 75/442 is to harmonize the legislation of the various Member States concerning waste disposal in order, on the one hand, to prevent the disparities between those provisions giving rise to obstacles to intra-Community trade and unequal competitive conditions and, on the other, to contribute to the attainment of the objectives of the Community regarding the protection of health and the environment.

6For that purpose, Articles 8 to 12, of which the national court seeks interpretation, require the Member States to establish a system of supervision and control over waste-disposal activities.

7Subject to the exclusions provided for in Article 2 (2), Article 1 attributes a broad scope to the directive by stating that, for the purposes of the directive, ‘waste’ is to mean any substance or object which the holder disposes of or is required to dispose of pursuant to the provisions of national law in force, and that ‘disposal’ means the collection, sorting, transport and treatment of waste, as well as its storage and tipping above or under ground, and in addition, the transformation operations necessary for its re-use, recovery or recycling.

The first question

8With respect to the first question, it must be observed that Articles 8 to 12 of Directive 75/442 cover all waste-disposal activities and do not lay down any limitation relating to the legal status of the operator or the frequency or purpose of the activities concerned.

9The essential objective of the directive, specified in the third recital in the preamble thereto and in Article 4, namely the protection of human health and the environment, would in any event be endangered if the application of measures for the control and supervision of such activities were to be conditional upon distinctions based on criteria such as the company objects of the undertaking, whether the disposal of waste is a main or subsidiary activity or the foreseeable impact on the environment.

10It must therefore be stated in reply to the first question that any operator engaging in any of the activities referred to in Articles 8 to 12 of Directive 75/442 is subject to the measures provided for in those provisions.

The second question

11The second question concerns the role and the position of the owner or occupier of the land on which the waste is tipped in relation to the requirement of a permit under Article 8 of the directive.

12It should be noted that the consent of the owner or occupier of the land where waste is tipped cannot be substituted for the permit to be issued by a competent authority designated by the Member State in accordance with Article 5 of the directive. It is clear from the very terms of Article 8 that ‘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’.

13As regards the question whether an owner or occupier of land is obliged to hold a permit in view of the fact that he becomes the owner of the waste tipped on his land, it is apparent from the aforementioned Article 8 that the requirement to hold a permit applies only to an undertaking operating on behalf of third parties. Persons who dispose of their own waste are subject only to ‘supervision by the competent authority referred to in Article 5’ (Article 10 of the directive); however, the ‘necessary measures’ to be taken by the Member States under Article 4 of the directive may include imposing upon such persons the obligation to obtain a permit.

14It must therefore be stated in reply to the second question that the permit provided for in Article 8 of Directive 75/442 is issued by the competent authority established or designated by the Member States pursuant to Article 5 of the directive and cannot be replaced by the consent of the owner or occupier of the land where the waste is discharged; an owner or occupier of land, as an operator tipping his own waste on that land, does not need a permit under Article 8 of the directive but a measure subjecting him to such a requirement may be adopted as one of the necessary measures to be taken by the Member States under Article 4 of the directive.

The third question

15In its third question, the national court asks essentially whether Directive 75/442 prevents a Member State from designating the director of a water-purifying company, set up by the public authorities, as the competent authority within the meaning of Article 5 of the directive to issue the permit required under Article 8 of the directive.

16In their observations, the Commission and the Procureur des Konings have pointed out that, in asking that question, the national court in fact has in mind a permit provided for by the Law of 26 March 1971 on the protection of surface waters against pollution, which should not be confused with the permit provided for in Article 5 of the directive.

17No view will be expressed on that matter, since it falls within the purview of the national court, but it must be stated that Article 5 of the directive does not lay down any restrictive criteria concerning the ‘competent... authorities to be responsible, in a given zone, for the planning, organization, authorization and supervision of waste-disposal operations’, which are to be established or designated by the Member States. The Member States are therefore unrestricted in their choice of such authorities.

18It must therefore be stated in reply to the third question that Directive 75/442 does not prevent a Member State from designating the director of a water-purifying company, set up by the public authorities, as the competent authority within the meaning of Article 5 to issue the permit required under Article 8 of the directive.

The fourth question

19In its fourth question, the national court seeks to determine the scope of the discretionary power enjoyed by Member States regarding organization of the supervision provided for in Article 10 of Directive 75/442.

20That article 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.’

21That provision does not therefore lay down any particular requirement restricting the freedom of the Member States regarding the way in which they organize the supervision of the activities referred to therein. That freedom must, however, be exercised having due regard to the objectives mentioned in the third recital in the preamble to the directive and in Article 4 thereof, namely the protection of human health and of the environment.

22It is therefore appropriate to state in reply to the fourth question that, subject to the usual limitations upon the exercise of a discretionary power, the power vested in the Member States regarding organization of the supervision provided for in Article 10 of Directive 75/442 is qualified only by the requirement that the objectives of the directive, namely the protection of human health and of the environment, must be complied with.

The fifth question

23In its fifth question, the national court essentially seeks to determine whether Articles 8 and 12 of the directive directly impose obligations on operators or whether implementing measures must be adopted by the Member States.

24It should be noted that the Court has already held ‘that a directive may not of itself impose obligations on an individual and that a provision of a directive may not be relied upon as such against such a person’ (Case 152/84 Marshall [1986] ECR 723).

25Moreover, it is apparent from the very wording of Articles 8 and 12 that their implementation requires the Member States to establish or designate the competent authority referred to in Article 5. Article 8 provides that any undertaking treating, storing or tipping waste on behalf of third parties must obtain a permit ‘from the competent authority referred to in Article 5’, and Article 12 provides that undertakings are required to supply certain information ‘to the competent authority referred to in Article 5’. Moreover, those articles contain no rules as to the procedural and substantive conditions to be fulfilled in order to obtain the permit referred to in Article 8 or specific details of the information referred to in Article 12. It is therefore necessary for provisions to be adopted for that purpose by the Member States.

26It must therefore be stated in reply to the fifth question that Articles 8 and 12 of Directive 75/442 do not directly impose obligations upon persons or undertakings.

Costs

27The costs incurred by the Commission, which has submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the actions pending before the national court, the decision on costs is a matter for that court.

Operative part

On those grounds,THE COURT (Fourth Chamber),in reply to the questions submitted to it by the Rechtbank van Eerste Aanleg, Bruges, by judgments of 30 October 1985, hereby rules:

(1).Any operator engaging in any of the activities referred to in Articles 8 to 12 of Directive 75/442 is subject to the measures provided for in those provisions;

(2).The permit provided for in Article 8 of Directive 75/442 is issued by the competent authority established or designated by the Member States pursuant to Article 5 of the directive and cannot be replaced by the consent of the owner or occupier of the land where the waste is discharged; an owner or occupier of land, as an operator tipping his own waste on that land, does not need a permit under Article 8 of the directive, but a measure subjecting him to such a requirement may be adopted as one of the necessary measures to be taken by the Member States under Article 4 of the directive;

(3).Directive 75/442 does not prevent a Member State from designating the director of a water-purifying company, set up by the public authorities, as the competent authority within the meaning of Article 5 to issue the permit required under Article 8 of the directive;

(4).Subject to the usual limitations upon the exercise of a discretionary power, the power vested in the Member States regarding organization of the supervision provided for in Article 10 of Directive 75/442 is qualified only by the requirement that the objectives of that directive, namely protection of human health and of the environment, must be complied with;

(5).Articles 8 and 12 of Directive 75/442 do not directly impose obligations upon persons or undertakings.

Delivered in open court in Luxembourg on 12 May 1987.