Criminal proceedings against Antonio Niselli.

• Jurisdiction: European Union
• Celex Number: 62002CC0457
• ECLI: ECLI:EU:C:2004:365
• Date: 10 June 2004
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-457/02

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 10 June 2004 (1)

Case C-457/02

Antonio Niselli

(Directive 75/442/EEC – Definition of waste – Scrap metal – National definition excluding consumption residue from the definition of waste where intended for a production purpose – Direct effect of directives in criminal proceedings – Principle of the retroactivity of the more lenient criminal law)

I – Introduction

1. In criminal proceedings pending before the Tribunale penale di Terni (Criminal Court, Terni, Italy), Antonio Niselli is accused of transporting scrap metal in a vehicle not authorised for transporting waste. By the present request for a preliminary ruling, the Tribunale asks the Court about the interpretation of Council Directive 75/442/EEC of 15 July 1975 on waste (2) (hereinafter ‘Directive 75/442’ or ‘the Directive’), in order to determine whether the Italian implementing provisions, which define waste more precisely, are in conformity with the Directive.

2. The national court concluded that under the provisions of national law in force at the material time, the scrap metal was ‘waste’. However, certain provisions adopted subsequently excluded materials such as scrap metal from the definition of waste in cases where they were reutilised for the same production or consumption purposes. If this exception is incompatible with Directive 75/442, the question arises as to what consequences this has for the criminal proceedings.

II – Legal framework

A – Community law

3. In the first subparagraph of Article 1(a) of Directive 75/442, waste is defined as follows:

‘any substance or object in the categories set out in Annex I which the holder discards or intends or is required to discard.’

4. Annex I to the Directive specifies ‘Products for which the holder has no further use …’ (Q14). Annex I also includes two catch-all categories, namely Q1 which specifies ‘Production or consumption residues not otherwise specified below’ and Q16 which specifies ‘Any materials, substances or products which are not contained in the above categories’.

5. Articles 9 and 10 of Directive 75/442 provide that establishments or undertakings which carry out the waste disposal operations specified in Annex IIA to the Directive or the recovery operations under Annex IIB need a permit. Article 12 of the Directive imposes a registration requirement on installations or undertakings which collect or transport waste on a professional basis.

B – National law

6. Article 6(1)(a) of Decreto Legislativo No 22 of 5 February 1997 (3) (hereinafter ‘Legislative Decree 22/97’) transposes into Italian law the definition of waste laid down in Directive 75/442. Annexes A, B and C to Legislative Decree 22/97 correspond to Annexes I, IIA and IIB to Directive 75/442.

7. Article 51 of Legislative Decree 22/97 makes it an offence to contravene the permit, application or notification requirements laid down in Articles 27 to 33.

8. By Article 14 of Decreto Legge No 138 of 8 July 2002 (4) (hereinafter ‘Decree-Law 138/02’), converted into Law No 178 of 8 August 2002, (5) the Italian legislature laid down an ‘authentic interpretation’ of the term ‘waste’. The provision states:

‘1. The words “discards”, “intends [to discard]” and “is required to discard” in Article 6(1)(a) of Legislative Decree [No 22/97] and subsequent amendments thereof … shall be interpreted as follows:

(a) “discards”: any conduct whereby, directly or indirectly, substances, materials or goods are disposed of or subjected to disposal or recovery, in accordance with Annexes B and C to Legislative Decree [No 22/97];

(b) “intends [to discard]”: the intention to subject substances, materials or goods to disposal or recovery, in accordance with Annexes B and C to Legislative Decree [No 22/97];

(c) “is required to discard”: the obligation to submit substances, materials or goods to recovery or disposal, required by a statutory provision, by a measure laid down by a public authority or by the nature of the substances, materials or goods themselves, or because they are included in the list of hazardous waste set forth in Annex D to Legislative Decree [No 22/97].

2. The provisions of paragraph 1(b) and (c) shall not apply to materials, goods or substances which are production or consumption residues where:

(a) they can be and are in fact and objectively reused in the same or a similar or different production or consumption cycle, without undergoing any prior treatment and without causing harm to the environment;

(b) they can be and are in fact and objectively reused in the same or a similar or different production or consumption cycle, after undergoing prior treatment, without requiring any of the recovery operations listed in Annex C to Legislative Decree [No 22/97].’

III – Facts and questions referred

9. In Terni on 18 July 2000, the carabinieri (police) seized an articulated vehicle belonging to ILFER SpA because of a failure to comply with certain formalities laid down by Legislative Decree 22/97. The person at ILFER SpA legally responsible for the transport operation was Antonio Niselli.

10. The lorry was carrying approximately 10 m³ of scrap iron, such as machine parts, sheets of metal, tubing/beams, partly painted sections, partly painted metal netting, oily and greasy cogs, small metal parts, cast iron pipes, parts of tubes with protective covers, empty containers, motor vehicle wheels, rolled sheet metal grids and steel rods. All of the material was the result of the dismantling of machinery or motor vehicles or the collection of waste material.

11. Criminal proceedings were brought against Mr Niselli before the Tribunale penale di Terni charging him with an offence under Article 51(4) and (1)(a), in conjunction with Article 28, of Legislative Decree 22/97. By order dated 18 December 2002, the Tribunale referred the following questions to the Court for a preliminary ruling:

‘(1) May the meaning of “waste” be governed by the following condition: that the words “discards”, “intends” and “is required to discard”, introduced into Italian law by Article 6(1)(a) of Legislative Decree [No 22/97], are to be interpreted as follows:

(a) “discards”: any conduct whereby, directly or indirectly, substances, materials or goods are disposed of or subjected to disposal or recovery, in accordance with Annexes B and C to Legislative Decree [No 22/97];

(b) “intends to discard”: the intention to subject substances, materials or goods to disposal or recovery, in accordance with Annexes B and C to Legislative Decree No [22/97];

(c) “is required to discard”: the obligation to submit substances, materials or goods to recovery or disposal, required by a statutory provision, by a measure laid down by a public authority or by the nature of the materials, substances or goods themselves, or because they are included in the list of hazardous waste set forth in Annex D to Legislative Decree No [22/97]?

(2) Is it possible to exclude definitively from the definition of “waste” goods, substances and materials which are production or consumption residues where:

(a) they can be and are in fact and objectively reused in the same or a similar or different production or consumption cycle, without undergoing any prior treatment and without causing harm to the environment;

(b) they can be and are in fact and objectively reused in the same or a similar or different production or consumption cycle, after undergoing prior treatment without requiring any of the recycling operations listed in Annex C to Legislative Decree No 22/97, in force in Italy (which reproduces the wording of Annex IIB to Directive 91/156/EEC)?’

12. The national court states that the legislature intended the disputed provision to remove scrap metal from the definition of waste. According to the decree’s preamble, the provision was a reaction to the too narrow interpretation of the term by various public prosecutors, whose actions had endangered the viability of the steel industry and other economic sectors.

13. If the definition of waste laid down by Decree-Law 138/02 applies to the scrap metal in question, the accused must be acquitted. However, the Tribunale doubts that the Italian legislature’s definition of waste in Article 14 of Decree-Law 138/02 is compatible with Directive 75/442. This doubt is based not least on the fact that the Commission has initiated infringement proceedings against the Italian Republic in respect of this provision.

14. In the proceedings before the Court, the accused, the Italian and Austrian Governments and the Commission made submissions. In so far as is necessary, the parties’ submissions are recounted in the following legal analysis.

IV – Legal analysis

A – Admissibility of the request for a preliminary ruling

15. The Italian Government submitted that the reference was inadmissible, on the ground that the questions referred were not relevant to the main proceedings. The Commission was of the view that the request was admissible. However, in its written observations it argued that the answer to the questions would not be of any use to the national court in making its decision.

16. In this connection, the Commission referred to the case-law of the Court, according to which ‘a directive cannot, of itself and independently of a national law adopted by a Member State for its implementation, have the effect of determining or aggravating the liability in criminal law of persons who act in contravention of the provisions of that directive’. (6)

17. According to the Commission, the disputed provision precluded criminal liability on the part of the accused. Even if the Court concluded that such a provision was incompatible with Directive 75/442, the national court would have to apply it. Otherwise, criminal liability would rest on the direct application of the Directive.

18. However, at the oral hearing the Commission took the opposite view...