«(Failure of a Member State to fulfil obligations – Article 7(2) and (4) of Regulation (EEC) No 259/93 – Classification of the purpose of a shipment of waste (recovery or disposal) – Incinerated waste – Point R1 of Annex II B to Directive 75/442/EEC – Concept of use principally as a fuel or other means to generate energy)»

In Case C-41/24,

REQUEST for a preliminary ruling under Article 267 TFEU from the High Court (Ireland), made by decision of 1 December 2023, received at the Court on 22 January 2024, in the proceedings

Waltham Abbey Residents Association

An Bord Pleanála,

Ireland,

The Attorney General,

notice party:

O’Flynn Construction Co. Unlimited Company,

THE COURT (Tenth Chamber),

composed of D. Gratsias, President of the Chamber, J. Passer (Rapporteur) and B. Smulders, Judges,

Advocate General: J. Kokott,

Registrar: A. Calot Escobar,

having regard to the written procedure,

* Language of the case: English.

EN ECLI:EU:C:2025:140

JUDGMENT OF 6. 3. 2025 – CASE C-41/24 WALTHAM ABBEY RESIDENTS ASSOCIATION

after considering the observations submitted on behalf of:

Waltham Abbey Residents Association, by J. Devlin, Senior Counsel, J. Kenny, Barrister-at-Law, and D. Healy, Solicitor,

An Bord Pleanála, by. B. Foley, Senior Counsel, A. Carroll, Barrister-at-Law, and P. Reilly, Solicitor,

Ireland, by M. Browne, Chief State Solicitor, S. Finnegan, K. Hoare and A. Joyce, acting as Agents, and by D. McGrath, Senior Counsel, F. Valentine, Senior Counsel, and E. O’Callaghan, Barrister-at-Law,

the European Commission, by M. Noll-Ehlers and N. Ruiz García, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

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’).

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:

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. …

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

ECLI:EU:C:2025:140

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:

…

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:

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

Subject to Article 2(4), for projects listed in Annex II, Member States shall determine whether the project shall be made subject to an assessment in accordance with Articles 5 to 10. Member States shall make that determination through:

a case-by-case examination;

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:

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

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.’

A description of the project, including in particular:

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

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

A description of the aspects of the environment likely to be significantly affected by the project.

A description of any likely significant effects, to the extent of the information available on such effects, of the project on the environment resulting from:

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

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

ECLI:EU:C:2025:140

JUDGMENT OF 6. 3. 2025 – CASE C-41/24 WALTHAM ABBEY RESIDENTS ASSOCIATION

The criteria of Annex III shall be taken into account, where relevant, when compiling the information in accordance with points 1 to 3.’

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:

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)]

…

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:

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

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

deliberate destruction or taking of eggs from the wild;

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

Article 7(4)(a) of the Regulation provides: The competent authorities of destination and dispatch may raise reasoned objections to the planned shipment:

in accordance with Directive 75/442/EEC, in particular Article 7 thereof, or

if it is not in accordance with national laws and regulations relating to environmental protection, public order, public safety or health protection, or

if the notifier or the consignee has previously been guilty of illegal trafficking. In this case, the competent authority of dispatch may refuse all shipments involving the person in question in accordance with national legislation, or

if the shipment conflicts with obligations resulting from international conventions concluded by the Member State or Member States concerned, or

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 under economic and environmental considerations.

The German legislation

Circulars were issued by the Ministry of the Environment of Land North Rhine-Westphalia on 19 June and 8 December 1995, and by the Ministry of the Environment of Land Baden-Württemberg on 24 March 1995, concerning the shipment to other Member States of waste intended for incineration in cement kilns.

Those circulars lay down distinguishing criteria in order to determine whether a shipment of waste is part of a recovery operation or a disposal operation.

They are based on the general criteria laid down in the Kreislaufwirtschafts- und Abfallgesetz (Law on recycling and waste) of 27 September 1994 (BGBl. 1994 I, p. 2705) for distinguishing energy recovery from heat treatment, that is to say disposal, during purely national operations.

The circulars mentioned in paragraph 13 above stipulate that, in order to be classified as an operation referred to in point R1 of Annex II B to the Directive, waste must:

be intended to be used principally as a fuel;

have a calorific value of at least 11 000 kJ/kg;

have a calorific value of at least 75%;

be such that any impurities must be capable of being recovered without causing harm;

meet the thresholds of polluting substances, and

fulfil the conditions laid down above without requiring to be mixed or processed with highly inflammable waste.

The German Government stated furthermore that the Länder of Lower Saxony and Rhineland-Palatinate also took the Kreislaufwirtschafts- und Abfallgesetz as a basis for laying down the criteria for distinguishing between recovery and disposal where waste is incinerated.

Pre-litigation procedure

Following a complaint that had been referred to it, the Commission, by a letter of formal notice sent to the Federal Republic of Germany on 3 July 1997, requested the latter to submit its observations within a period of two months on the charge that the competent German authorities had infringed the provisions of Article 7(2) and (4) of the Regulation by objecting to shipments of waste to Belgium on the ground that the waste was intended for disposal and not intended for recovery, as indicated by the notifying party. According to the Commission, the waste in question was to be used principally as a fuel in cement kilns in Belgium and was indeed therefore intended for recovery, so the German authorities could object to their shipment only on the basis of Article 7(4) of the Regulation.

In its response to that letter of formal notice, sent on 30 December 1997 after an extension of the time-limit for response, the German Government maintained that since the principal objective of the incineration of the waste concerned could not, according to a number of criteria, be regarded as the generation of energy, that waste was the subject not of a recovery operation as referred to in point R1 of Annex II B to the Directive, but merely a disposal operation as referred to in point D10 of Annex II A to that Directive.

Dissatisfied with that response, the Commission sent the Federal Republic of Germany a reasoned opinion by letter of 19 February 1999 in which it repeated, whilst also referring to another complaint it had received concerning shipments of waste to Belgium, its view, first, that the waste shipments in question were indeed recovery operations and, second, that the criteria used by the competent German authorities for classifying a waste treatment operation did not comply with Community law. In conclusion, the Commission stated that it considered that the Federal Republic of Germany had infringed the provisions of Article 7(2) and (4) of the Regulation and called upon it to comply with that reasoned opinion with a period of two months from its notification.

Having requested an extension of that time-limit, the Federal Republic of Germany sent its response to the Commission on 23 July 1999. In that response the German authorities repeated in essence the arguments they had made earlier, emphasising the point that national authorities must be able to lay down criteria for distinguishing disposal operations from recovery operations in the case of incineration of waste since no precise criteria had been laid down at Community level regarding that matter.

In those circumstances, the Commission brought the present proceedings.

Admissibility

The Federal Republic of Germany submits that the action against it is inadmissible on the basis that neither in the pre-litigation procedure nor in the application to the Court does the Commission specify the precise object of the proceedings sufficiently clearly to enable it to defend itself against the charges made against it.

The German Government maintains in that connection that the Commission did not identify clearly the individual administrative decisions which were at issue. The three circulars from the Länder of North Rhine-Westphalia and Baden-Württemberg referred to in paragraph 13 above do not contain objections to certain shipments of particular waste since they merely set general criteria for distinguishing thermic disposal from the recovery of energy.

In that regard, it should be pointed out that it is settled case-law that the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity, on the one hand, to comply with its obligations under Community law and, on the other, to avail itself of its right to defend itself against the charges formulated by the Commission (see, in particular, Case C-152/98 Commission v Netherlands [2001] ECR I-3463, paragraph 23, and Case C-439/99 Commission v Italy [2002] ECR I-305, paragraph 10).

It follows that, first, the subject-matter of the proceedings under Article 226 EC is delimited by the pre-litigation procedure governed by that provision ( Commission v Netherlands , cited above, paragraph 23). Accordingly, the application must be founded on the same grounds and pleas as the reasoned opinion (see, in particular, Case C-35/96 Commission v Italy [1998] ECR I-3851, paragraph 28).

Second, the reasoned opinion must contain a cogent and detailed exposition of the reasons which led the Commission to the conclusion that the Member State concerned had failed to fulfil one of its obligations under the EC Treaty (see, in particular, Case C-207/96 Commission v Italy [1997] ECR I-6869, paragraph 18).

It is found that those requirements have been met in this case.

Both during the pre-litigation procedure and in its application to the Court the Commission clearly stated that it accused the Federal Republic of Germany of failing to comply with the provisions of Article 7(2) and (4) of the Regulation by raising unjustified objections to certain shipments of waste to another Member State for use principally as a fuel. The Commission stated that it was referring in that connection to the administrative practices of certain Länder and gave the dates of certain individual administrative decisions adopted by the competent German authorities, together with the dates on which those authorities adopted the circulars on which those administrative practices were based.

During the pre-litigation procedure the German Government did not deny the existence of those administrative practices, but put forward arguments seeking to demonstrate that those practices were in accordance with the provisions of the Regulation.

In those circumstances, even though the Commission neither produced nor identified with detailed references the individual administrative decisions to which it was referring, it must be considered to have placed the Federal Republic of Germany in a position to state effectively its grounds of defence against the charges made by the Commission.

The action must therefore be declared admissible.

Substance

It should be noted first of all that under the system established by the Regulation all the competent authorities to which notification of a proposed shipment of waste is addressed must check that the classification by the notifier is consistent with the provisions of the Regulation and object to a shipment which is incorrectly classified (Case C-6/00 ASA [2002] ECR I-1961, paragraph 40).

If the competent authority of dispatch considers that the purpose of a shipment has been incorrectly classified in the notification, the ground for its objection to the shipment must be the classification error itself, without reference to one of the specific provisions of the Regulation setting out the objections which the Member States may raise against a shipment of waste ( ASA , cited above, paragraph 47).

Article 7(2) of the Regulation, which provides that the competent authorities of the Member States may not object to a shipment of waste intended for recovery except in the cases exhaustively listed in Article 7(4), does not therefore in principle preclude those authorities from objecting to a particular shipment on the grounds that it is in reality a shipment of waste intended for disposal, nor does it preclude Member States from laying down, in acts having general scope, criteria for distinguishing between a recovery operation and a disposal operation.

However, such administrative practices accord with the provisions of Article 7(2) and (4) of the Regulation only where they put in place criteria for distinguishing between the disposal and recovery of waste which comply with the criteria laid down by the provisions of the Directive to which Article 2(i) and (k) of the Regulation refer in order to define those terms.

Thus, in order to determine whether the Federal Republic of Germany failed to fulfil its obligations under Article 7(2) and (4) of the Regulation by adopting the administrative practices in question, it is necessary to consider whether the objections which the German competent authorities raised against certain shipments of waste to another Member State, and the circulars which lay down the general criteria under which those objections were made, accord with the distinction between disposal operations and recovery operations established in Annexes II A and II B to the Directive.

The Commission argues that the use of a mixture of wastes as fuel in cement kilns is a recovery operation, as referred to in point R1 of Annex II B to the directive.

According to the German Government, the shipments in question were of waste intended for incineration on land, the operation referred to in point D10 of Annex II A to the Directive, and therefore relate to disposal operations within the meaning of that Directive.

In that regard, it should be observed that point R1 of Annex II B to the Directive includes among waste recovery operations their use principally as a fuel or other means to generate energy.

That provision should be interpreted as meaning that it covers the use of waste as a fuel in cement kilns since, first, the main purpose of the operation concerned is to enable the waste to be used as a means of generating energy. The term use in point R1 of Annex II B to the Directive implies that the essential purpose of the operation referred to in that provision is to enable waste to fulfil a useful function, namely the generation of energy.

Second, the use of waste as a fuel in cement kilns is an operation referred to in point R1 of Annex II B to the Directive where the conditions in which that operation is to take place give reason to believe that it is indeed a means to generate energy. This assumes both that the energy generated by, and recovered from, combustion of the waste is greater than the amount of energy consumed during the combustion process and that part of the surplus energy generated during combustion should effectively be used, either immediately in the form of the heat produced by incineration or, after processing, in the form of electricity.

43

Third, it follows from the term principally used in point R1 of Annex II B to the Directive that the waste must be used principally as a fuel or other means of generating energy, which means that 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.

That interpretation is in accordance with the concept of recovery which comes from the Directive.

45

It follows from Article 3(1)(b) and the fourth recital of the Directive that the essential characteristic of a waste recovery operation is that its principal objective is that the waste serve a useful purpose in replacing other materials which would have had to be used for that purpose, thereby conserving natural resources (ASA, cited above, paragraph 69).

46

The combustion of waste therefore constitutes a recovery operation where its principal objective is that the waste can fulfil a useful function as a means of generating energy, replacing the use of a source of primary energy which would have had to have been used to fulfil that function.

47

Since the use of waste as a fuel meets the conditions referred to in paragraphs 41 to 43 above, it constitutes a recovery operation as referred to in point R1 of Annex II B to the Directive, without the need to take into consideration 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.

48

It should be observed in that regard that even if a particular operation to use waste as a fuel can be classified as recovery, the competent authorities of destination and dispatch may raise objections with regard to a shipment of waste carried out in connection with such an operation in the cases referred to in Article 7(4)(a) of the Regulation.

49

In particular, the fifth indent of that provision permits the competent authorities concerned to object to a shipment of waste intended 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 under economic and environmental considerations.

50

Those authorities may in particular take into consideration criteria such as those referred to in paragraph 47 above in order to show in each case that the conditions laid down in Article 7(4)(a), fifth indent, of the Regulation are met so that they may raise an objection to a particular shipment of waste.

51

In the present case it is clear that the administrative practices of the German competent authorities do not meet the requirements of the Regulation as set out above.

52

In the context of those administrative practices the German competent authorities have objected to shipments of waste intended for use as a fuel in cement industry kilns in Belgium on the ground that such shipments are being made in connection with a disposal operation and not a recovery operation, although their objection is not justified by failure to comply with any of the conditions referred to in paragraphs 41 to 43 above.

53

Although the waste concerned was intended for use as a fuel in Belgium, where they were to replace sources of primary energy in heating cement kilns, the competent German authorities refused to consider that the shipments in question constituted a recovery operation as referred to in point R1 of Annex II B to the Directive, solely on the ground that the operations concerned did not meet certain general criteria laid down in the circulars it had adopted, such as the minimum calorific value of the waste.

54

As is made clear in paragraph 47 above, those criteria are not relevant for the purposes of determining whether the use of waste as a fuel in a cement kiln constitutes a disposal operation or a recovery operation within the meaning of the Directive and the Regulation.

55

In those circumstances, it must be declared that, by raising unjustified objections to certain shipments of waste to other Member States to be used principally as a fuel, the Federal Republic of Germany has failed to fulfil its obligations under Article 7(2) and (4) of the Regulation.

Costs

56

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 asked for costs against the Federal Republic of Germany, which failed in its submissions, the latter must be ordered to pay the costs.

On those grounds,

hereby:

Delivered in open court in Luxembourg on 13 February 2003.

Registrar

President of the Fifth Chamber

ECLI:EU:C:2025:140

Language of the case: German.