(Regulation (EEC) No 259/93 on the supervision and control of shipments of waste – Directive 75/442/EEC on waste – National measure providing for objections to shipments of waste for recovery where 20% of the waste is recoverable in the Member State and the percentage of waste recoverable in the country of destination is lower – Measure of a Member State classifying an operation under point R1 (recovery by incineration) of Annex IIB to Directive 75/442 or under point D10 (disposal by incineration) of Annex IIA to that directive not according to the criterion of actual use but according to the calorific value of the incinerated waste)

Summary of the Judgment

(Council Regulation No 259/93, Art. 7(4)( a), fifth indent)

(Council Directive 75/442, as amended by Commission Decision 96/350, Annex IIB, point R1)

1.The fifth indent of Article 7(4)(a) of Regulation No 259/93 on the supervision and control of shipments of waste within, into and out of the European Community, pursuant to which the competent authorities of destination and dispatch may raise reasoned objections to a planned shipment of waste for recovery if the ratio of the recoverable and non‑recoverable waste, the estimated value of the materials to be finally recovered or the cost of the recovery and the cost of the disposal of the non-recoverable fraction do not justify the recovery from the economic and environmental point of view, precludes national rules on shipments of waste which refer only, for the purposes of making that assessment, to the first of those three criteria, namely the ratio of recoverable and non‑recoverable waste. That provision also precludes national rules on shipments of waste which refer only for the purposes of making that assessment to a comparison of the percentage of recoverable waste in the States of destination and dispatch. It is irrelevant in that regard that the competent national authorities retain the power to assess each application to ship on a case-by-case basis or that the rules on shipments in question apply both to imports and exports of waste and seek to achieve the highest possible degree of recovery in the Community.

(see paras 17-21, 23-25)

2.The use of waste as a fuel is a recovery operation of the kind referred to in point R1 of Annex IIB to Directive 75/442 on waste, as amended by Decision 96/350, provided that three conditions are satisfied. First, the essential purpose of the operation referred to must be the generation of energy. Secondly, the energy generated by, and recovered from, combustion of the waste must be greater than the amount of energy consumed during the combustion process and that part of the surplus energy generated during combustion must effectively be used, either immediately in the form of the heat produced by incineration or, after processing, in the form of electricity. Thirdly, the greater part of the waste must be consumed during the operation and the greater part of the energy generated must be recovered and used.

Criteria such as the calorific value of the waste, the amount of harmful substances contained in the incinerated waste or whether or not the waste has been mixed cannot, by contrast, be taken into consideration.

(see paras 31-32)

JUDGMENT OF THE COURT (First Chamber) 14 October 2004(1)

In Case C-113/02, ACTION under Article 226 EC for failure to fulfil obligations, brought on 27 March 2002,

Commission of the European Communities, represented by H. van Lier, acting as Agent, and M. van der Woude and R. Wezenbeek-Geuke, advocaten, with an address for service in Luxembourg,

applicant,

Kingdom of the Netherlands, represented by H. G. Sevenster, acting as Agent,

defendant,

THE COURT (First Chamber),

composed of: P. Jann (Rapporteur), President of the Chamber, A. Rosas, R. Silva de Lapuerta, K. Lenaerts and S. von Bahr, Judges,

Advocate General: F.G. Jacobs, Registrar: R. Grass,

having regard to the written procedure,

after hearing the Opinion of the Advocate General at the sitting on 6 May 2004,

gives the following

1 This request for a preliminary ruling concerns the interpretation of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).

2 The request has been made in proceedings between, on the one hand, Waltham Abbey Residents Association and, on the other hand, An Bord Pleanála (Planning Board, Ireland; ‘the Board’), Ireland and the Attorney General (Ireland), concerning authorisation granted by the Board for a strategic residential housing development.

Legal context

European Union law

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development 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 on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

In support of its application, the Commission puts forward two complaints in relation to the Netherlands legislation regarding hazardous waste.

Those complaints are based, in essence, on:

–the incompatibility with Article 7(4)(a) of Regulation No 259/93 of the Netherlands rules which provide that an objection may, in principle, be raised against a shipment of waste where at least 20% of the waste is recoverable in the Netherlands and the percentage of recoverable waste in the Member State of destination is lower than that in the Member State of dispatch (‘the Netherlands rules in question on the shipment of waste’);

–the incorrect transposition into national law of Article 1(e) and (f) of Directive 75/442 by the Netherlands measure which provides that recovery (by incineration) must be distinguished from disposal (by incineration) according to a criterion which combines a requirement relating to calorific value linked to the combustion of waste coupled with its chlorine content (‘the measure in question dealing with the distinction between recovery (by incineration) and disposal (by incineration)’).

The first complaint

Arguments of the parties

The Commission argues that, inasmuch as the Netherlands rules relating to the shipment of waste are based on the percentage of the waste recoverable in the Netherlands and in the country of destination, they are inconsistent with the criteria laid down under Article 7(4)(a) of Regulation No 259/93, which they purport to apply, and are accordingly incompatible with it.

In relation to the previous Netherlands rules on the shipment of waste, under which objections had been raised against exports of waste where treatment abroad was no more effective, unless treatment capacity in the Netherlands was inadequate or non-existent, the current Netherlands rules do no more than replace the criterion relating to the absence of ‘more effective’ treatment with that of a ‘lower degree of recovery’.

The Netherlands Government maintains that the rules in question on the shipment of waste comply with the parameters laid down in the fifth indent of Article 7(4)(a) of Regulation No 259/93.

Findings of the Court

According to settled case-law, Member States may adopt rules for the application of a regulation if they do not obstruct its direct applicability, do not conceal its Community nature and specify that a discretion granted by the regulation is being exercised, and provided that they adhere to the parameters laid down under it (see, to that effect, Case 94/77 Zerbone [1978] ECR 99, paragraph 27).

It must be pointed out that the fifth indent of Article 7(4)(a) of Regulation No 259/93 states that the competent authorities of destination and dispatch may raise reasoned objections to a planned shipment of waste if the ratio of the recoverable and non-recoverable waste, the estimated value of the materials to be finally recovered or the cost of the recovery and the cost of the disposal of the non-recoverable fraction do not justify the recovery from the economic and environmental point of view.

In order to determine whether a recovery operation can be justified from an economic and environmental point of view, the fifth indent of Article 7(4)(a) thus refers to three criteria, namely the ratio of recoverable and non-recoverable waste, the estimated value of the materials to be finally recovered and the cost of disposal of the non-recoverable fraction.

In the present case, it must be held that the Netherlands rules on shipments of waste contravene Article 7(4)(a) of Regulation No 259/93 inasmuch as they go beyond the provision which they are intended to clarify.

The Netherlands rules on shipments of waste refer only to the ratio of recoverable and non-recoverable waste.

Moreover, by focusing on a comparison of the percentage of recoverable waste in the States of destination and dispatch, the Netherlands rules on shipments of waste allow an objection to be raised against a shipment of waste for recovery on the basis not only of an independent evaluation of the economic and environmental aspects of the recovery operation in the State of destination, but also of the treatment capacity available in the State of dispatch. The Court has held that, in the context of the Community rules on shipments of waste, considerations of self‑sufficiency and proximity do not apply to shipments of waste for recovery (Case C-203/96 Dusseldorp and Others [1998] ECR I-4075, paragraphs 27 to 34).

In those circumstances, the arguments put forward by the Netherlands Government to justify the compatibility of the rules in question on the shipment of waste with Article 7(4)(a) of Regulation No 259/93 cannot be accepted.

According to the Netherlands Government, the assessment should comprise a comparison of the quality of the treatment plants in the Member State of dispatch with those in the Member State of destination, because the fifth indent of Article 7(4)(a) of Regulation No 259/93 is to be interpreted in the light of the objectives laid down under the first indent of Article 3(1)(b) of Directive 75/442 and Article 174(2) EC, so that the highest possible degree of recovery in the Community may be achieved. It must be held in that regard that the objective pursued does not justify a comparison purely between the ratio of recoverable and non‑recoverable waste and between the treatment plants available in the Member State of dispatch and the Member State of destination, with no account being taken of the other criteria laid down under the fifth indent of Article 7(4)(a) of the regulation.

As for the argument that the rules in question on the shipment of waste do not prevent the Netherlands authorities assessing each application to ship waste individually and that objections remain the exception and not the rule, it must be pointed out that, since the Netherlands rules on the shipment of waste are not compatible with the Community legal framework, such a consideration is irrelevant for the purposes of assessing whether the fifth indent of Article 7(4)(a) of Regulation No 259/93 has been contravened.

With respect to the argument that the rules in question on shipments of waste are neutral to the extent that they apply both to imports and to exports of waste, it must be held that, as the Advocate General rightly pointed out at paragraph 49 of his Opinion, that point is irrelevant to an assessment of whether there has been a contravention of the fifth indent of Article 7(4)(a) of the regulation. In each case, the criteria laid down under the Netherlands rules on shipments of waste go beyond the grounds of objection exhaustively laid down by the Community legal framework.

In those circumstances, the first complaint is well founded.

The second complaint

Arguments of the parties

The Commission argues that the Netherlands measure in question dealing with the distinction between recovery (by incineration) and disposal (by incineration) incorrectly transposes into national law Article 1(e) and (f) of Directive 75/442, read in conjunction with points D10 of Annex IIA and R1 of Annex IIB to that directive.

The Netherlands Government submits that the distinction between recovery (by incineration) and disposal (by incineration) established by the measure in question conforms to the classification set out in Directive 75/442.

Findings of the Court

According to Article 1(e) and (f) of Directive 75/442, ‘disposal’ means ‘any of the operations provided for in Annex IIA’ and ‘recovery’ means ‘any of the operations provided for in Annex IIB’.

According to point D10 of Annex IIA to Directive 75/442, ‘incineration on land’ is considered to be a ‘disposal’ operation. By contrast, point R1 of Annex IIB to that directive provides that there is ‘recovery’ (by incineration) in cases of ‘use principally as a fuel or other means to generate energy’.

In Case C-228/00 Commission v Germany [2003] ECR I-1439, paragraphs 41 to 43, the Court laid down three conditions for establishing whether the use of waste as a fuel is a recovery operation of the kind referred to in point R1 of Annex II B to Directive 75/442. First, the essential purpose of the operation referred to by that provision must be the generation of energy. Secondly, the energy generated by, and recovered from, combustion of the waste must be greater than the amount of energy consumed during the combustion process and that part of the surplus energy generated during combustion must effectively be used, either immediately in the form of the heat produced by incineration or, after processing, in the form of electricity. Thirdly, the greater part of the waste must be consumed during the operation and the greater part of the energy generated must be recovered and used.

According to the Court, criteria such as the calorific value of the waste, the amount of harmful substances contained in the incinerated waste or whether or not the waste has been mixed cannot, by contrast, be taken into consideration (Commission v Germany, paragraph 47).

In the present case, since the Court has expressly declared criteria based on the calorific value or composition of waste to be incompatible with Directive 75/442, the arguments of the Netherlands Government in that regard must be rejected.

Accordingly, the Netherlands measure in question dealing with the distinction between recovery (by incineration) and disposal (by incineration) is not consistent with Article 1(e) and (f) of that directive, read in conjunction with points D10 of Annex IIA and R1 of Annex IIB to the directive. The Kingdom of the Netherlands has thus failed to fulfil its obligation to transpose Article 1(e) and (f) of Directive 75/442 into internal law.

In those circumstances, the second complaint is well founded.

In the light of the above, it must be held that the Kingdom of the Netherlands has failed to fulfil its obligations under Article 7(4) of Regulation No 259/93 and under Article 1(e) and (f) of Directive 75/442.

Costs

Under 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 Kingdom of the Netherlands has essentially been unsuccessful, the Kingdom of the Netherlands must be ordered to pay the costs.

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

1.Declares that the Kingdom of the Netherlands has failed to fulfil its obligations under Article 7(4) of Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community and under Article 1(e) and (f) of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC of 18 March 1991 and Commission Decision 96/350/EC of 24 May 1996;

2.Orders the Kingdom of the Netherlands to pay the costs.

Signatures.

Language of the case: Dutch.