Commission of the European Communities v Italian Republic (C-255/05)

Contents

Judgment of the Court (Second Chamber)5 July 2007^noteIn Case C-255/05,ACTION under Article 226 EC for failure to fulfil obligations, brought on 16 June 2005,Commission of the European Communities, represented by M. Konstantinidis, acting as Agent, and F. Louis and A. Capobianco, avocats, with an address for service in Luxembourg,vItalian Republic, represented by I.M. Braguglia, acting as Agent, and M. Fiorilli, avvocato dello Stato, with an address for service in Luxembourg,United Kingdom of Great Britain and Northern Ireland, represented by T. Harris, acting as Agent, and J. Maurici, Barrister,THE COURT (Second Chamber),composed of C.W.A. Timmermans, President of the Chamber, P. Kūris, J. Makarczyk (Rapporteur), L. Bay Larsen and J.-C Bonichot, Judges,Advocate General: M. Poiares Maduro,Registrar: R. Grass,having regard to the written procedure,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following

Judgment

1By its application, the Commission of the European Communities requests that the Court declare that:— by not making the project to implement a ‘third line’ of the incinerator belonging to ASM Brescia SpA (‘the third incinerator line’) — an installation covered by Annex I to Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40), as amended by Council Directive 97/11/EC of 3 March 1997 (OJ 1997 L 73, p. 5) (‘Directive 85/337’) — subject to the environmental impact assessment procedure provided for in Articles 5 to 10 of that directive before construction consent was given, and— by not making the application for a permit to operate the third incinerator line available for an appropriate period at one or more locations accessible to the public to enable it to comment on the application before the competent authority reached a decision and by not making the decision on that application, including a copy of the permit, available to the public,the Italian Republic has failed to fulfil its obligations under Articles 2(1) and 4(1) of Directive 85/337 and Article 12(1) of Directive 2000/76/EC of the European Parliament and of the Council of 4 December 2000 on the incineration of waste (OJ 2000 L 332, p. 91).

Legal context

Community legislation

Directive 75/442

2Article 1 of Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39), as amended by Commission Decision 96/350/EC of 24 May 1996 (OJ 1996 L 135, p. 32) (‘Directive 75/442'), is worded thus:Tor the purposes of this Directive:(a) “waste” shall mean any substance or object in the categories set out in Annex I which the holder discards or intends or is required to discard....(d) “management” shall mean the collection, transport, recovery and disposal of waste, including the supervision of such operations and aftercare of disposal sites;(e) “disposal” shall mean any of the operations provided for in Annex IIA;(f) “recovery” shall mean any of the operations provided for in Annex IIB;...’

3Under Article 4 of Directive 75/442:‘Member States shall take the necessary measures to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment, and in particular:— without risk to water, air, soil and plants and animals,— without causing a nuisance through noise or odours,— without adversely affecting the countryside or places of special interest...’

4Under Article 9(1) of Directive 75/442:‘For the purposes of implementing Articles 4, 5 and 7, any establishment or undertaking which carries out the operations specified in Annex IIA must obtain a permit from the competent authority referred to in Article 6....’

5According to Article 10 of Directive 75/442:‘For the purposes of implementing Article 4, any establishment or undertaking which carries out the operations referred to in Annex IIB must obtain a permit.’

6Article 11(1) of Directive 75/442 provides:‘Without prejudice to Council Directive 78/319/EEC ... the following may be exempted from the permit requirement imposed in Article 9 or Article 10:...(b) establishments or undertakings that carry out waste recovery.This exemption may apply only:— if the competent authorities have adopted general rules for each type of activity laying down the types and quantities of waste and the conditions under which the activity in question may be exempted from the permit requirements,and— if the types or quantities of waste and methods of disposal or recovery are such that the conditions imposed in Article 4 are complied with’.

7Annex IIA to Directive 75/442, headed ‘Disposal operations’, is intended to list disposal operations such as they occur in practice. It is stated in that annex that, in accordance with Article 4 of the directive, waste must be disposed of without endangering human health and without the use of processes or methods likely to harm the environment.

8Annex IIB to Directive 75/442, headed ‘Recovery operations’, is intended to list those operations as they occur in practice. In that annex it is likewise stated that, in accordance with Article 4 of the directive, waste must be recovered without endangering human health and without the use of processes or methods likely to harm the environment.

Directive 85/337

9Article 1(2) and (3) of Directive 85/337 is worded thus:2. For the purposes of this Directive:“project” means:— the execution of construction works or of other installations or schemes,— other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources;“developer” means:the applicant for authorisation for a private project or the public authority which initiates a project;“development consent” means:the decision of the competent authority or authorities which entitles the developer to proceed with the project.3. The competent authority or authorities shall be that or those which the Member States designate as responsible for performing the duties arising from this Directive’.

10Under Article 2(1) and (2) and the first subparagraph of Article 2(3) of Directive 85/337:1. ‘Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects. These projects are defined in Article 4.2. The environmental impact assessment may be integrated into the existing procedures for consent to projects in the Member States, or, failing this, into other procedures or into procedures to be established to comply with the aims of this Directive....3. Without prejudice to Article 7, Member States may, in exceptional cases, exempt a specific project in whole or in part from the provisions laid down in this Directive.’

11Article 3 of Directive 85/337 provides:‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case and in accordance with Articles 4 to 11, the direct and indirect effects of a project on the following factors:— human beings, fauna and flora;— soil, water, air, climate and the landscape;— material assets and the cultural heritage;— the interaction between the factors mentioned in the first, second and third indents’.

12Article 4(1) of Directive 85/337 provides:‘Subject to Article 2(3), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10’.

13Point 10 of Annex I to Directive 85/337 mentions waste disposal installations for the incineration or chemical treatment as defined in Annex IIA to Directive 75/442 under heading D9 of non-hazardous waste with a capacity exceeding 100 tonnes per day.

Directive 2000/76

14According to Article 3(12) of Directive 2000/76, for the purposes of this directive:“permit” means a written decision (or several such decisions) delivered by the competent authority granting authorisation to operate a plant, subject to certain conditions which guarantee that the plant complies with all the requirements of this Directive. A permit may cover one or more plants or parts of a plant on the same site operated by the same operator.

15Article 4(1) of Directive 2000/76 is worded thus:‘Without prejudice to Article 11 of Directive 75/442/EEC or to Article 3 of Directive 91/689/EEC, no incineration or co-incineration plant shall operate without a permit to carry out these activities.’

16Article 12(1) of Directive 2000/76, relating to access to information and public participation, is worded thus:‘Without prejudice to Council Directive 90/313/EEC and Directive 96/61/EC, applications for new permits for incineration and co-incineration plants shall be made available at one or more locations accessible to the public, such as local authority offices, for an appropriate period to enable it to comment on them before the competent authority reaches a decision. That decision, including at least a copy of the permit, and any subsequent updates, shall also be made available to the public’.

National legislation

17Article 6 of Law No 349 of 8 July 1986 establishing the Ministry of the Environment (GURI No 59 of 15 July 1986) transposed Directive 85/337 into Italian law. Subsequently, Article 40 of Law No 146 of 22 February 1994 concerning provisions on the assessment of environmental impact (ordinary supplement to GURI No 52 of 4 March 1994) entrusted the Italian Government with the task of defining, by an express policy and coordination measure, the conditions, criteria and technical standards for the application of the environmental impact assessment procedure to projects covered by Annex II to that directive.

18Article 1(3) of the Decree of the President of the Republic of 12 April 1996 entitled ‘Policy and coordination measure for the implementation of Article 40(1) of Law No 146 of 22 February 1994 concerning provisions on the assessment of environmental impact’ (GURI No 210, p. 28) (‘the DPR’) states:‘The projects referred to in Annex A are subject to the environmental impact assessment procedure’.

19Article 3(1) of the Decree of the President of the Council of Ministers of 3 September 1999 entitled ‘Policy and coordination measure amending and supplementing the earlier policy and coordination measure for the implementation of Article 40(1) of Law No 146 of 22 February 1994 concerning provisions on the assessment of environmental impact’ (GURI No 302 of 27 December 1999, p. 17) (‘the DPCM’), which amended the initial version of Annex A to the DPR, is worded thus:‘In Annex A to the DPR of 12 April 1996, points (i), (1) ... are replaced by the following points:(i) Installations for the disposal and the recovery of hazardous waste through the operations in Annex B and points R1 to R9 of Annex C to Legislative Decree No 22 of 5 February 1997 [GURI No 38 of 15 February 1997, ‘the Legislative Decree’] excluding recovery installations subject to the simplified procedures of Articles 31 and 33 of that legislative decree ...(1) Installations for the disposal and the recovery of non-hazardous waste, with a capacity exceeding 100 tonnes per day, through the incineration and treatment operations in points D2 and D8 to D11 of Annex B and points R1 to R9 of Annex C to [the Legislative Decree], excluding recovery installations subject to the simplified procedures of Articles 31 and 33 of that legislative decree ...’

20The provisions of the Legislative Decree, which describe the characteristics of waste and the operations for which the simplified procedure may be used, were adopted in order to transpose Article 11 of Directive 75/442.

21It is apparent, in particular from Article 33(1) of the Legislative Decree, that, subject to compliance with certain technical standards, waste recovery operations may be carried out on the expiry of a period of 90 days from notification of the commencement of those operations to the province which has territorial jurisdiction.

22Article 33(2) of that decree specifies, for both hazardous waste and non-hazardous waste, the content of the technical standards.

23According to Article 33(3) of that decree, the province enters the undertakings which notify it of the commencement of operations in a special register and, within the period provided for in Article 33(1), it checks on its own initiative that the necessary conditions are met.

24Lastly, it is apparent from Article 33(4) of the Legislative Decree that, as soon as the province notices that the technical standards and the conditions referred to in Article 33(1) have not been complied with, it has to make a reasoned order prohibiting the commencement or continuation of the operations, unless the party concerned complies with the legislation in force in the period previously laid down by the authorities.

The pre-litigation procedure

25By letter of 28 April 2003, the Commission requested information from the Italian Republic, inter alia in respect of the application of the procedures provided for by Directives 85/337 and 2000/76 to the third incinerator line.

26That Member State indicated, first, that it had excluded the project for the third incinerator line from the environmental impact assessment procedure since it is covered by the exception referred to in point 1 of Annex A to the DPR, as amended by the DPCM, and, secondly, that it had carried out various measures to publicise the project and various consultative measures in accordance with Article 12 of Directive 2000/76.

27In the light of the answers provided by the Italian Republic, which it deemed to be unsatisfactory, the Commission initiated the pre-litigation procedure by sending a letter of formal notice dated 19 December 2003.

28By letter of 8 June 2004, the competent Italian authorities informed the Commission of the willingness on the part of the operator of the third incinerator line to make that incinerator line, the putting into service of which had been authorised in December 2003, subject to an impact assessment.

29Then, by a reasoned opinion of 9 July 2004, the Commission called on the Italian Republic to take the necessary measures to comply in particular with the obligations under Directive 85/337 within a period of two months from the receipt of that opinion.

30In a letter of 31 January 2005, the Italian Republic confirmed that the operator of the third incinerator line had submitted a formal request for an environmental impact assessment, which had been published on 11 December 2004. Then, by letter of 3 May 2005, it produced documents on the stage which the ongoing assessment procedure had reached and stated that it was nearing the end.

31As the Commission was of the opinion that the position adopted by the Italian Government in the letters of reply mentioned above was unsatisfactory, it brought this action under the second paragraph of Article 226 EC.

The action

Admissibility

Arguments of the parties

32The Italian Republic submits that the Commissions action is inadmissible on account of its lack of legal interest in bringing proceedings. The Commission has no interest in demanding the performance of an obligation which has already been fulfilled. Given the positive view on the environmental compatibility of the third incinerator line which is apparent from the Interministerial Decree of 3 June 2005, adopted at the end of the assessment procedure which was initiated under the circumstances noted in paragraph 30 of this judgment, the delay in carrying out the environmental impact study caused no harm to the environment. There was only a state of procedural irregularity connected with the absence of an environmental impact study, which has been remedied.

33The Italian Republic adds that the Commission is calling for compliance with illogical obligations and has, consequently, exceeded its powers by acting in disregard of the principles of good administration and of proportionality.

34The Commission states that it retains a direct, specific and real interest in this action. As regards its interest in pursuing the action on account of infringement of Directive 85/337, it submits that it is of little importance that the competent authorities carried out an assessment of the environmental impact of the third incinerator line because that assessment does not meet the requirements of the directive. It is before consent is given that projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location have to be subject to a development consent procedure and an assessment with regard to their effects.

35According to the Commission, the mere fact that the operator of the third incinerator line was willing to request that that installation be made subject to an environmental impact assessment when it had already been constructed and put into service is consequently irrelevant, particularly because the request for assessment was submitted only on 7 December 2004 and the assessment was not carried out until after the expiry of the period laid down in the reasoned opinion.

36Furthermore, the Commission submits that it is apparent from the case-law of the Court that when the Commission exercises its powers under Article 226 EC it does not have to show that there is a specific interest in bringing an action.

Findings of the Court

37According to settled case-law, when exercising its powers under Article 226 EC, the Commission does not have to show that there is a specific interest in bringing an action. The Commissions function is to ensure, of its own motion and in the general interest, that the Member States give effect to Community law and to obtain a declaration of any failure to fulfil the obligations deriving therefrom with a view to bringing it to an end (see Case C-333/99 Commission v France [2001] ECR I-1025, paragraph 23; Case C-394/02 Commission v Greece [2005] ECR I-4713, paragraphs 14 and 15 and the case-law cited; and Case C-33/04 Commission v Luxembourg [2005] ECR I-10629, paragraph 65).

38Furthermore, it is for the Commission to determine whether it is expedient to take action against a Member State and what provisions, in its view, the Member State has infringed, and to choose the time at which it will bring an action for failure to fulfil obligations; the considerations which determine its choice of time cannot affect the admissibility of the action (see Case C-35/96 Commission v Italy [1998] ECR I-3851, paragraph 27, and Commission v Luxembourg, paragraph 66).

39The Court must consider whether or not there has been a failure to fulfil obligations as alleged, without its being part of its role to take a view on the Commissions exercise of its discretion (see Case C-474/99 Commission v Spain [2002] ECR I-5293, paragraph 25, and Commission v Luxembourg, paragraph 67).

40In any event, even if the carrying-out of a subsequent assessment regarding the environmental impact of the third incinerator line were capable of bringing the alleged failure to fulfil obligations to an end, clearly such an assessment had not been initiated at the end of the period laid down in the reasoned opinion, the date by reference to which the situation prevailing in the Member State has to be examined with a view to determining whether it has failed to fulfil its obligations (see, inter alia, Case C-433/03 Commission v Germany [2005] ECR I-6985, paragraph 32).

41It follows from the above considerations that the plea of inadmissibility concerning the Commissions lack of legal interest in bringing proceedings must be rejected.

Substance

42In support of its action, the Commission relies on two heads of complaint.

The first head of complaint: breach of Articles 2(1) and 4(1) of Directive 85/337

—Arguments of the parties

43According to the Commission, the third incinerator line, which is categorised as an installation carrying out recovery operations within the meaning of Annex IIB to Directive 75/442, and has a capacity exceeding 100 tonnes per day, is covered by point 10 of Annex I to Directive 85/337 and should therefore have been made subject to the environmental impact assessment procedure before being authorised and then constructed. The Commission maintains that, if the project was not subject to an environmental impact assessment, that was on account of the Italian legislation itself which does not require that waste recovery installations subject to the simplified procedures be made subject to such an assessment.

44The Commission adds that, in so far as it excludes from the environmental impact assessment procedure all installations carrying out waste recovery operations which are granted an authorisation under the simplified procedure, the DPCM infringes the obligations which stem from Directive 85/337.

45The Italian Republic does not admit the failure to fulfil obligations of which it is accused and states that it adopts, in its defence, the arguments which it expounded in Case C-486/04 Commission v Italy [2006] ECR I-11025.

46Thus, its main submission is that, in so far as the third incinerator line carries out waste recovery and is subject to the simplified procedures put in place by Articles 31 and 33 of the Legislative Decree, provisions which were adopted for the purpose of transposing Article 11 of Directive 75/442, it is not covered by the environmental impact assessment procedure. By establishing, first, a link between Directive 85/337 and Directive 75/442 as regards the technical terms used concerning waste and by referring, second, to the actual wording of point 10 of Annex I and of point 11(b) of Annex II to Directive 85/337, which rely on the single concept of waste disposal, the Italian Republic concludes that the latter directive excludes waste recovery installations from its scope.

47The Italian Republic also submits that the amendments made to Directive 75/442 by Council Directive 91/156/EEC of 18 March 1991 (OJ 1991 L 78, p. 32) had the aim of laying down a common terminology and a harmonised definition of waste, enabling comparison of the various provisions which, both at national and at Community level, deal with waste. Therefore, when Directive 97/11 refers to the concept of waste, the terms and definitions which it uses are bound to be borrowed from the legislation specific to that sector, namely Directive 91/156.

48The Italian Republic adds that, where, so far as waste recovery is concerned, the emissions do not exceed the limits permitted by the Community legislation, it is not necessary to implement the assessment procedure inasmuch as the very aim of waste recovery is to protect the environment

49In a statement in intervention of 7 April 2006, the United Kingdom of Great Britain and Northern Ireland supports the form of order sought by the Italian Republic in respect of the first head of complaint

—Findings of the Court

50It should be noted at the outset that, in Case C-486/04 Commission v Italy, the Court held that the Italian Republic had failed to fulfil its obligations under Articles 2(1) and 4(1), (2) and (3) of Directive 85/337 by adopting Article 3(1) of the DPCM, allowing projects for the recovery of hazardous waste and of non-hazardous waste with a capacity exceeding 100 tonnes per day which are covered by Annex I to Directive 85/337 and are subject to a simplified procedure for the purpose of Article 11 of Directive 75/442 to avoid the environmental impact assessment procedure provided for in Articles 2(1) and 4(1) of Directive 85/337.

51The failure to fulfil obligations which is alleged by the Commission in this head of complaint is merely the result of the application to a specific case of national legislation which has, as was stated in the preceding paragraph, already been found to be contrary to Community law.

52The application of that legislation, by virtue of which waste recovery installations covered by the simplified procedures referred to in Articles 31 and 33 of the Legislative Decree are not subject to the environmental impact assessment procedure, has resulted in no environmental impact study being required for the third incinerator line, although it falls within the category of disposal installations for the incineration or chemical treatment of non-hazardous waste with a capacity exceeding 100 tonnes per day in point 10 of Annex I to Directive 85/337. As such, before being authorised, the third incinerator line should have undergone the environmental impact assessment procedure, since projects which fall within Annex I must undergo a systematic assessment under Articles 2(1), 4(1) and 5 to 10 of that directive (see Case 0486/04 Commission v Italy, paragraph 45).

53In view of the above, it must be held that, by not making the project to implement the third incinerator line subject to the environmental impact assessment procedure provided for in Articles 5 to 10 of Directive 85/337 before consent was given for its construction, the Italian Republic has failed to fulfil its obligations under Articles 2(1) and 4(1) of that directive.

The second head of complaint: breach of Article 12(1) of Directive 2000/76

—Arguments of the parties

54The Commission alleges that, in breach of the provisions of Article 12 of Directive 2000/76, the Italian Republic did not make public either the application for an authorisation to operate the third incinerator line or the corresponding authorisation.

55The Italian Republic submitted, in the course of the pre-litigation procedure, that Article 12 does not apply to this case, since no application for an authorisation to operate the third incinerator line was made. That line was the subject only of a declaration of 24 July 2003 that it was being put into service, in accordance with the procedure laid down by the Legislative Decree.

—Findings of the Court

56It is apparent from Article 33(1) of the Legislative Decree that waste recovery operations may be carried out on the expiry of a period of 90 days from notification of the commencement of those operations to the province which has territorial jurisdiction. In that period, under Article 33(3) of the Legislative Decree, the relevant provincial authorities check on their own initiative whether the necessary conditions for recovery to be carried out are met.

57In the present case, the third incinerator line was the subject, under the simplified procedure established by the Legislative Decree, of a declaration in respect of the commencement of operations dated 24 July 2003. That declaration was followed by two decisions taken by the competent provincial authorities, a prohibition against commencing of 21 October 2003 and then an authorisation of 19 December 2003.

58It is apparent from Article 12(1) of Directive 2000/76 that applications for new permits have to be made available at locations accessible to the public for an appropriate period to enable it to comment on them before the competent authority reaches a decision. That decision, including at least a copy of the permit, and the subsequent updates also have to be made available to the public.

59The purpose of that provision, as is apparent in particular from the 31st recital in the preamble to Directive 2000/76, is to ensure the transparency of the process by allowing the public to be involved in decisions to be taken following applications for the grant of authorisations.

60Therefore, it must be held that the concept of ‘application for a new permit’ must be given a meaning which fully satisfies the objective pursued by Article 12(1) of Directive 2000/76. Accordingly, that term must be construed broadly as covering any procedure comparable to a procedure for granting permits or authorisation.

61The declaration in respect of the commencement of operations referred to in paragraph 56 of this judgment to which the third incinerator line gave rise must, having regard to its characteristics and in particular to the role allotted to the provincial authorities, be equated with an application for a new permit for the purposes of Directive 2000/76.

62As such, that declaration should have been made available at one or more locations accessible to the public, for a period which would have enabled the public to make comments to the competent provincial authorities before the expiry of the 90-day period which is given to those authorities to check whether the necessary legal conditions for recovery to be carried out are met. It is common ground that, in disregard of the provisions of Article 12(1) of Directive 2000/76, the declaration in question was not publicised.

63Moreover, the decisions taken by the province concerned as regards the third incinerator line, namely the prohibition against commencing and the authorisation mentioned in paragraph 57 of this judgment, were not, contrary to the requirements of Article 12(1) of Directive 2000/76, made available to the public either.

64In view of the above, it must be held that, by not making the declaration in respect of the commencement of the operations of the third incinerator line available at one or more locations accessible to the public for an appropriate period, to enable the public to comment on it before the competent authority reached a decision, and by not making the decisions relating to that declaration, including a copy of the authorisation, available to the public, the Italian Republic has failed to fulfil its obligations under Article 12(1) of Directive 2000/76.

Costs

65Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission has applied for costs and the Italian Republic has been unsuccessful, the latter must be ordered to pay the costs.

66Pursuant to Article 69(4) of the Rules of Procedure, the United Kingdom must bear its own costs.

Operative part

On those grounds, the Court (Second Chamber) hereby:

1.Declares that, by not making the project to implement a ‘third line’ of the incinerator belonging to ASM Brescia SpA subject to the environmental impact assessment procedure provided for in Articles 5 to 10 of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directive 97/11/EC of 3 March 1997, before consent was given for its construction, the Italian Republic has failed to fulfil its obligations under Articles 2(1) and 4(1) of that directive;

2.Declares that, by not making the declaration in respect of the commencement of the operations of the ‘third line’ of that incinerator available at one or more locations accessible to the public for an appropriate period, to enable the public to comment on it before the competent authority reached a decision, and by not making the decisions relating to that declaration, including a copy of the authorisation, available to the public, the Italian Republic has failed to fulfil its obligations under Article 12(1) of Directive 2000/76/EC of the European Parliament and of the Council of 4 December 2000 on the incineration of waste;

3.Orders the Italian Republic to pay the costs;

4.Orders the United Kingdom of Great Britain and Northern Ireland to bear its own costs,