Court of Justice 30-09-1999 ECLI:EU:C:1999:468

(1) Articles 130s and 130t of the EC Treaty

31. Article 130s of the EC Treaty (now, after amendment, Article 175 EC)⁽²¹⁾ constitutes the legal basis for Directive 91/689, which was enacted in the context of action taken by the Community to implement the objectives set out in Article 130r, concerning Community policy on the environment. Article 130r describes this policy and establishes the criteria and parameters within which Community institutions can intervene to protect the environment.

32. In particular, Article 130r(2), which lists the general principles of this Community policy, should be mentioned. It states ‘Community policy on the environment shall aim at a high level of protection [...]’. In this way, it determines the content of the legislation to be enacted by Community legislature in the sensitive area of environmental protection by adopting a qualitative criterion. The notion of a high level of protection — which of course does not oblige the Community legislature to seek the highest possible level of protection⁽²²⁾ — is binding on the latter and could constitute grounds for the annulment of a Community rule that does not meet that qualitative criterion.

33. Under the precautionary principle, expressly referred to in Article 130r(2), the Community must take action even in cases where there is not an existing, but a potential risk to the environment. The Court has for that matter recognised the binding nature of this general principle.⁽²³⁾

34. Of particular interest for the resolution of this case is the reference to a specific (negative) manifestation of the precautionary principle. It implies that the competence of public authorities to adopt for a particular purpose the measures deemed necessary to avert a risk to the environment cannot be restricted, particularly where this risk has not been ascertained or ‘charted’ by prior regulation. In other words, determining in advance and in a limitative manner the circumstances requiring the intervention of public authorities to avert a specific risk to the environment, even if it is impossible to define that risk in advance in a concrete manner, would be contrary to the precautionary principle.

35. Article 130t of the EC Treaty specifically implements, in the context of environmental protection, the principle of subsidiarity, which governs Community policy in this field. That article allows Member States to maintain or introduce more stringent protective measures, even if in doing so they deviate from the existing Community protective measures adopted under Article 130s, subject to the measures being compatible with the EC Treaty and notified to the Commission.

(2) Directive 91/689

36. Directive 91/689 lays down the specific rules for the correct management of hazardous waste in an environmentally safe way.⁽²⁴⁾ Given that this is the type of waste most likely to present a risk of serious damage to the environment, these rules are more stringent than the rules regarding the management of solid waste, as stated in the fourth recital of the preamble to Directive 91/689. Moreover, the sixth recital of the preamble to Directive 91/689 states that ‘it is necessary to ensure that disposal and recovery of hazardous waste is monitored in the fullest manner possible’.

37. Directive 91/689 aims to regulate the matter at issue in an exhaustive manner. The Community legislature does not define the waste considered hazardous on the basis of a general provision that might have provided an indicative list of the properties under which waste could be classified as hazardous.⁽²⁵⁾ On the contrary, it adopts two categories of hazardous waste. The first category covers waste featuring on a limitative Community list (first indent of Article 1(4) of Directive 91/689).⁽²⁶⁾ The second category covers waste that is considered hazardous by a Member State, provided that the limitative but widely worded conditions in Annex III to that directive (second indent of Article 1(4) of Directive 91/689) are met. It should be noted that Member States are required to notify the Commission of waste they classify as hazardous pursuant to Annex III to the directive. That waste is considered hazardous only in the territory of the Member State that has classified it as such. However, the Commission also assesses the extent to which it would be appropriate to adapt the abovementioned list by adding the waste classified as hazardous by one or more Member States, pursuant to the second indent of Article 1(4) of Directive 91/689, to the list.

38. The abovementioned Community system for dealing with hazardous waste that is enacted by Directive 91/689 raises three issues of interpretation regarding its compatibility with the provisions of the primary Community legislation. These issues will be examined below, in order of increasing legal significance.

39. First, I consider that neither the need to classify waste as hazardous in advance nor the prior communication of that classification by a Member State as abovementioned can be considered essential elements for recognising such waste as hazardous under the directive.⁽²⁷⁾ Such an interpretation would go directly against the precautionary principle and the principle of preventive action. A situation where an individual Member State, acting as a Community authority and following a specific Community procedure, could ascertain that a particular waste was hazardous under Annex III to Directive 91/689 but the measures adopted by that directive for the protection of the environment did not immediately apply cannot be accepted. In other words, the fact that national authorities of a Member State ascertain that a type of waste fulfils the criteria of Annex III to Directive 91/689 per se, suffices for that directive to apply directly, even if that waste has not previously been classified as hazardous under a specific national procedure and/or the Commission has not been notified of that classification.

40. Second, the following issue of interpretation is clearly more significant. The wording of Directive 91/689 implies a contrario that Member States cannot classify waste as hazardous and adopt the appropriate measures where Annex III to the directive does not also apply. In other words, Annex III is the legislative framework within which Member States may take more stringent measures in relation to the existing Community list of hazardous waste. In this way, the Community legislature is aspiring to regulate hazardous waste in an exhaustive manner. This solution cannot be accepted, as it would be directly contrary to the provisions of Article 130t of the EC Treaty. Directive 91/689 may of course provide that within the specific Community system for environmental protection that it creates (the drawing up of a limitative Community list that will also be supplemented by contributions of Member States as abovementioned) Member States are given the opportunity of classifying waste that falls within the scope of Directive 91/689 and Annex III in particular, as hazardous, albeit within the meaning of that Directive. In that way the specific Community system for the protection of the environment and dealing with hazardous waste is supplemented. However, this power to classify waste can in no way exclude the competence of Member States, based directly on Article 130t, first to maintain or introduce their own autonomous definition of hazardous waste⁽²⁸⁾ and, secondly, to take the necessary measures for the protection of the environment from hazardous waste. It suffices that the conditions stipulated by Article 130t of the EC Treaty are satisfied, in other words, that the measures concerned achieve a more stringent protection of the environment that complies with the other Treaty provisions.

41. Therefore, if it were to be accepted that the present Community legislation aimed to restrict the possibility of the Member States' classifying certain waste as hazardous and taking measures for the protection of the environment by requiring the competent national authorities of the Member States, first, to classify this waste as hazardous in advance and, secondly, only to classify waste displaying the properties set out in Annex III to Directive 91/689, then the directive would infringe Article 130t of the EC Treaty.

42. In any event, if Directive 91/689 is interpreted in the light of Article 130t of the EC Treaty, it must be recognised that, apart from the specific Community system for the protection of the environment from hazardous waste established by that directive, there is always the possibility of creating an autonomous national system for protection against hazardous waste under Article 130t. In other words, a Member State that considers the list under the first indent of Article 1(4) of the Directive unsatisfactory has two options. It could, first of all, characterise waste displaying the properties listed in Annex III to the directive as hazardous and notify the Commission, so that the Directive will apply to the waste in question and the Commission will examine the possible adaptation of the list. Under Article 130t of the EC Treaty, however, the Member State is still able to adopt its own measures for more stringent protection of the environment from the hazardous waste outside the framework of Directive 91/689. That solution is imposed by the subsidiarity principle on the one hand and by the precautionary principle and the principle that preventive action should be taken by Community institutions in the field of environmental protection on the other.

43. Thirdly, the extent to which the abovementioned specific Community system for the protection of the environment from hazardous waste created by Directive 91/689 is compatible with the requirements and principles of primary Community law as formulated by Article 130r of the EC Treaty should be examined. This issue is of great practical significance, particularly where a Member State has not created an independent national system to deal with the issue of hazardous waste but relies exclusively on the Community protection established by that directive.

44. I consider that Directive 91/689 does not implement the objectives of Article 130r of the EC Treaty correctly and in compliance with the requirements of that article and the fundamental principles of Community environmental law. As mentioned above, that directive creates a specific system for managing hazardous waste characterised by the following four features: (a) the absence of a general definition of hazardous waste and of a general prohibition of the free disposal of hazardous waste; (b) the establishment of a limitative Community list of hazardous waste throughout the Community, to which the provisions of that directive apply; (c) a provision for supplementing that list, which remains limitative in any event; (d) the competence of Member States to classify certain waste as hazardous, specifically within their territory, provided it displays the properties limitatively laid down in Annex III to the directive. I consider that the abovementioned system infringes the principles of a high level of protection for the environment and the precautionary principle.

45. First of all, a system that does not provide for a general prohibition of free disposal of hazardous waste into the environment, a prohibition that presupposes a general definition as to what constitutes ‘hazardous waste’, cannot be considered to provide a ‘high’ level of environmental protection. I shall not dwell further on this issue, given that the level of environmental protection achieved is primarily determined through scientific and technical data, which are not available to the Court.

46. I do, however believe that the Court has available to it all the necessary interpretative material to rule on whether the provisions of that Directive 91/689 are compatible with the precautionary principle and the principle of preventive action. On this issue, one can only consider that the simple fact that Directive 91/689 attempts to establish when specific measures should be taken to avert certain risks to the environment in an exhaustive manner — since, even if it were ascertained today that certain waste presented a serious danger to the environment, the necessary restrictive measures laid down by that directive could not be applied throughout the Community — suffices for a finding that the directive infringes the precautionary principle and principle of preventive action. These fundamental principles do not allow for the situation, which Directive 91/689 accepts, where, if it is ascertained ad hoc that the free disposal of a given waste is especially dangerous for the environment, nevertheless the general restrictive measures provided for under that directive cannot be taken, throughout the territory of the Community, against such disposal unless the Commission includes the waste in question within the limitative Community list under the first indent of Article 1(4), either on its own initiative or at the request of the Member States. In my opinion, only the formulation of a general prohibition of free disposal of any waste hazardous to the environment would be compatible with the fundamental principles of primary Community environmental law.

47. It should also be noted that it is not be possible to contend, in response to the above reasoning, that the formulation of a general provision prohibiting the free disposal of hazardous waste would jeopardise the protection of trade and that the existing system created by Directive 91/689 reconciles the protection of the environment with ensuring freedom of the market.

48. First, the protection of the legal interest of the environment in this case overrides the legal interest in the protection of trade, which is why Directive 91/689 was adopted under Article 130s rather than Article 100a (now, after amendment, Article 95 EC) of the EC Treaty.⁽²⁹⁾ Moreover, Directive 91/689 unsuccessfully attempts to combine the two, to the extent that, as analysed above, the protection it affords the environment is insufficient under Article 130r. The combination of environmental protection with the protection of the financial interests linked to the disposal, management and movement of hazardous waste (which fall under the Community legislation on the free movement of goods) could perfectly well be achieved through the enactment of a general prohibition of free disposal of hazardous waste on the one hand and an indicative list of the waste considered by the Community legislature to be hazardous at the time of its constitution on the other.

(1) Finding the relevant provisions of Directive 91/689 invalid

50. I would like to point out that a finding of invalidity can relate only to those provisions of the Directive 91/689 and the Community list that define hazardous waste and in particular the four abovementioned features.

51. Such a finding would render the relevant provisions of that directive, as well, of course, as the provisions of Decision 94/904 and the national legislation that introduced these provisions into the Member States' legal system inapplicable. In such a case, however, the issue arises as to what the applicable law would be and whether there is any leeway for the direct applicability of Article 130r of the EC Treaty.

52. Before attempting to analyse this issue, I consider that certain preliminary observations should be made regarding the outcome of the questions referred for a preliminary ruling, in view of the changes that would necessarily occur under national law. More specifically, a finding that the abovementioned Community provisions were invalid, and consequently also the national law provisions transposing them into the Italian legal system, would appear to remove the grounds which, according to the order for reference, justified the questions referred for a preliminary ruling. In other words, once the legislative amendment which came into force in the course of the criminal proceedings were to be regarded as never implemented, there would, in principle, be no reason to apply Article 2 of the Italian Criminal Code, whereby ‘no person may be punished for an act which, in accordance with a subsequent law, does not constitute an offence’. Therefore, should the Court rule that the provisions of Directive 91/689 and Decision 94/904 are invalid as discussed above, there would appear to be no need for an answer to the questions referred by the national court.

53. However, at this point the question arises as to whether the national court is bound to review the national legal framework that would result from a finding that the Community provisions were invalid, in view of the above analysis of Articles 130r and 130t of the EC Treaty. I would point out that, under Italian criminal law, as well as the general principles of criminal law common to all Member States, such review could affect the course of the criminal proceedings pending only to the extent that it may be considered to result in a legal situation more favourable to the defendant. I shall now attempt to answer the above questions by examining whether it is possible for these articles of the Treaty to apply directly.

54. At first glance, it would not appear easy to support the view that Article 130r of the EC Treaty could apply directly. First, measures of Community policy established in Articles 130r(2) and 130s appear to be technical in nature, and rendered necessary for the specification and implementation of the provisions of Article 130r in the domestic law of the Member States. Secondly, even though the Court may declare provisions of secondary Community legislation to be invalid, it may not assume the role assigned to the Community institutions, particularly where the latter have the a broad discretion with regard to the choice of the most appropriate technical measures.⁽³⁰⁾

55. Nonetheless, in exceptional circumstances such as this case, it can be accepted that there is a core content in the above articles of the Treaty which has become apparent through judicial review of the measures already adopted at Community level. This core forms part of the legislative content of those articles and it does not appear possible to subvert it by any subsequent provision of secondary Community legislation.⁽³¹⁾ The possibility of direct application of the articles of the Treaty is based precisely on that core content, which in this case concerns the existence of a general prohibition on free disposal of hazardous waste and the possibility of drawing up a list of hazardous waste that is only indicative. That direct application of the articles of the Treaty, which is limited in scope, is not contrary to the general requirements for the direct application of the provisions of the Treaty or to the separation of institutional powers as between the Court and the other Community institutions.

56. The said core legislative content of Article 130r can be considered sufficiently clear and specific. As already mentioned, there is no doubt that the free disposal of waste should be prohibited in all Member States. In the specific context in which the issue is raised in this case, that prohibition constitutes, in a negative manifestation, the direct consequence of the precautionary principle and the principle of preventive action analysed above.

57. However, how will hazardous waste be defined? Does such a definition not constitute a technical matter within the exclusive competence of the Council? It is my view that the Court may provide guidelines for such a definition which will have all the characteristics stipulated by the Treaty and slot into the semantic field of the core provisions, having direct effect, of Article 130r. However, the Court may not, in establishing such a definition (and nor does it need to) act as the initiator of rules. The most appropriate solution would be a definition based on the elements of the definition provided by the directive found invalid which, insofar as they do not infringe the Treaty, may be regarded as the technical basis for drawing up both a general definition and an indicative list of hazardous waste.⁽³²⁾

58. In practice, in defining the potential components for the classification of hazardous waste as above, the Court would only be reformulating the provisions of the invalid directive in accordance with the aims of the Treaty. Specifically, the Court's intervention would result in the addition to the Community system as originally envisaged, to which Directive 91/689 attempted to give shape, of a general prohibition on the free disposal of hazardous waste on the one hand, and the transformation of the exhaustive Community list into an indicative list on the other.⁽³³⁾

59. Such determination of the elements of the core content of Article 130r of the Treaty would render it directly applicable, protecting in this case the effectiveness of that Treaty article. At the same time it would enable the Court, abiding by all the technical matters decided upon by the legislative initiative of the competent Community institutions which, despite appearing in the provisions of the directive found to be invalid, cannot be regarded as contrary to the Treaty, to fill the gap seemingly left by the defects in the secondary Community legislation until the adoption of new measures, without unlawfully taking on a primary legislative role. It should be emphasized that in reality this would not be filling a legal lacuna but would be the recognition required of the core legislative content of Article 130r which is directly applicable.

60. It must therefore be accepted that, should the relevant provisions of Directive 91/689 be found invalid, the national court should apply the national legislation which it deems valid — either the previously applicable legislation in revived form or the later legislation reformulated in accordance with the Community legislation, as reformulated through the ‘quasi’ direct application of the Treaty articles — once it has reviewed the national legislation on the basis of the directly applicable core of Article 130r as defined above.⁽³⁴⁾

61. That review falls exclusively within the jurisdiction of the national court, which, in view of the rules and principles of the national criminal law applicable, is the sole body competent to establish accurately the national law applicable and define the issues requiring interpretation that may arise with regard to the above determination of the applicable Community law. In the context of that determination, the national court may again refer questions for a preliminary ruling to the Court if it considers it necessary to do so.

(2) Answering the questions referred for a preliminary ruling irrespective of the issue of the validity or otherwise of the provisions of Directive 91/689

62. I consider it best to deal with the questions referred for a preliminary ruling in the following order: the first question will be answered first, then the sixth question. Questions two and three will be answered together, and, lastly, so will questions four and five, this being necessary given that the issues raised are linked.