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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Commission v Italy (Environment and consumers) [2007] EUECJ C-255/05 (05 July 2007) URL: https://www.bailii.org/eu/cases/EUECJ/2007/C25505.html Cite as: [2007] EUECJ C-255/5, [2007] EUECJ C-255/05 |
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(Failure of a Member State to fulfil obligations Assessment of the effects of certain projects on the environment Waste recovery Implementation of the 'third line' of the Brescia waste incinerator Publicity for the application for a permit Directives 75/442/EEC, 85/337/EEC and 2000/76/EC)
In 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, assisted by F. Louis and A. Capobianco, avocats, with an address for service in Luxembourg,
applicant,
v
Italian Republic, represented by I.M. Braguglia, acting as Agent, assisted by M. Fiorilli, avvocato dello Stato, with an address for service in Luxembourg,
defendant,
supported by:
United Kingdom of Great Britain and Northern Ireland, represented by T. Harris, acting as Agent, and J. Maurici, Barrister,
intervener,
composed of C.W.A. Timmermans, President of the Chamber, P. Klūris, 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
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 1 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
'For 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 after-care 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;
...'
'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.
...'
'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.
...'
'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.'
'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.'
Directive 85/337
-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.'
-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.'
'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.'
'Subject to Article 2(3), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.'
Directive 2000/76
''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'.
'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.'
'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
'The projects referred to in Annex A are subject to the environmental impact assessment procedure.'
'In Annex A to the DPR of 12 April 1996, points (i), (l) ... 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...
(l) 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 ...'
The pre-litigation procedure
The action
Admissibility
Arguments of the parties
Findings of the Court
Substance
The first head of complaint: breach of Articles 2(1) and 4(1) of Directive 85/337
Arguments of the parties
Findings of the Court
The second head of complaint: breach of Article 12(1) of Directive 2000/76
Arguments of the parties
Findings of the Court
Costs
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.
[Signatures]
* Language of the case: Italian.