OPINION OF ADVOCATE GENERAL
SAUGMANDSGAARD ØE
delivered on 20 June 2019 (1)
Case C‑212/18
Prato Nevoso Termo Energy Srl
v
Provincia di Cuneo,
ARPA Piemonte,
intervener:
Comune di Frabosa Sottana
(Request for a preliminary ruling
from the Tribunale amministrativo regionale per il Piemonte (Regional Administrative Court for Piedmont, Italy))
(Reference for a preliminary ruling — Environment — Directive 2008/98/EC — Waste — Used vegetable oils having undergone chemical treatment — Article 6(1) and (4) — End-of-waste status — Conditions — Discretion of the Member States — Directive 2009/28/EC — Promotion of energy from renewable sources — Application for authorisation to use, in an installation for the production of thermal and electrical energy, without being subject to the national legislation on energy recovery from waste, a bioliquid produced from used vegetable oils having undergone chemical treatment — Rejection — Article 13(1) — Authorisation procedure — Proportionality)
I. Introduction
1. By its request for a preliminary ruling, the Tribunale amministrativo regionale per il Piemonte (Regional Administrative Court for Piedmont, Italy) asks the Court about the interpretation of Article 6 of Directive 2008/98/EC on waste and repealing certain Directives (2) and of Article 13 of Directive 2009/28/EC on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC. (3)
2. That request was submitted in the context of proceedings between Prato Nevoso Termo Energy Srl (‘PNTE’) and the Provincia di Cuneo (Province of Cuneo, Italy) concerning the rejection of an application, submitted by PNTE, for authorisation to alter the source of power of a thermal and electrical energy production plant which it operated by replacing the methane then used by a fuel obtained by the chemical treatment of used vegetable oils.
3. The referring court seeks, in essence, to ascertain whether Article 6(1) and (4) of Directive 2008/98 and Article 13(1) of Directive 2009/28 preclude national legislation under which the use of such fuel in an installation producing emissions into the atmosphere is subject to normative constraints applicable to energy recovery from waste, unless and until such time as a ministerial decree, a domestic measure of general application, provides otherwise.
II. Legal framework
A. European Union law
4. Article 3(1) of Directive 2008/98 defines ‘waste’ as ‘any substance or object which the holder discards or intends or is required to discard’.
5. Article 6 of that directive, entitled ‘End-of-waste status’, provides;
‘1. Certain specified waste shall cease to be waste within the meaning of point (1) of Article 3 when it has undergone a recovery, including recycling, operation and complies with specific criteria to be developed in accordance with the following conditions:
(a) the substance or object is commonly used for specific purposes;
(b) a market or demand exists for such a substance or object;
(c) the substance or object fulfils the technical requirements for the specific purposes and meets the existing legislation and standards applicable to products; and
(d) the use of the substance or object will not lead to overall adverse environmental or human health impacts.
The criteria shall include limit values for pollutants where necessary and shall take into account any possible adverse environmental effects of the substance or object.
2. The measures designed to amend non-essential elements of this Directive by supplementing it relating to the adoption of the criteria set out in paragraph 1 and specifying the type of waste to which such criteria shall apply shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 39(2). End-of-waste specific criteria should be considered, among others, at least for aggregates, paper, glass, metal, tyres and textiles.
…
4. Where criteria have not been set at Community level under the procedure set out in paragraphs 1 and 2, Member States may decide case by case whether certain waste has ceased to be waste taking into account the applicable case-law. …’
6. Article 2(h) of Directive 2009/28 defines ‘bioliquids’ as ‘liquid fuel for energy purposes other than for transport, including electricity and heating and cooling, produced from biomass’.
7. Article 13 of that directive, entitled ‘Administrative procedures, regulations and codes’, provides in paragraph 1:
‘Member States shall ensure that any national rules concerning the authorisation, certification and licensing procedures that are applied to plants and associated transmission and distribution network infrastructures for the production of electricity, heating or cooling from renewable energy sources, and to the process of transformation of biomass into biofuels or other energy products, are proportionate and necessary.
Member States shall, in particular, take the appropriate steps to ensure that:
(a) subject to differences between Member States in their administrative structures and organisation, the respective responsibilities of national, regional and local administrative bodies for authorisation, certification and licensing procedures including spatial planning are clearly coordinated and defined, with transparent timetables for determining planning and building applications;
(b) comprehensive information on the processing of authorisation, certification and licensing applications for renewable energy installations and on available assistance to applicants are made available at the appropriate level;
(c) administrative procedures are streamlined and expedited at the appropriate administrative level;
(d) rules governing authorisation, certification and licensing are objective, transparent, proportionate, do not discriminate between applicants and take fully into account the particularities of individual renewable energy technologies;
(e) administrative charges paid by consumers, planners, architects, builders and equipment and system installers and suppliers are transparent and cost-related; and
(f) simplified and less burdensome authorisation procedures, including through simple notification if allowed by the applicable regulatory framework, are established for smaller projects and for decentralised devices for producing energy from renewable sources, where appropriate.’
B. Italian law
8. Article 184-ter(1) of Legislative Decree No 152 of 3 April 2006 establishing rules in environmental matters (4) transposes Article 6(1) of Directive 2008/98 into Italian law.
9. Article 268(eee-bis) of that decree defines ‘fuel’ as ‘any solid, liquid or gaseous matter, the use of which for the production of energy by combustion is provided for in Annex X to Part V, with the exception of waste’.
10. Article 293(1) of that decree provides that ‘installations regulated by Title I and Title II of Part V, including civil thermal installations whose power is below the threshold value, can use only fuels intended for those categories of installations by Annex X to Part V, under the conditions specified therein. The materials and substances listed in Annex X to Part V of this Decree may not be used as fuel within the meaning of this Title if they constitute waste within the meaning of Part IV of this Decree. The combustion of materials and substances which are not consistent with Annex X to Part V of this Decree or which in any event constitute waste … shall be subject to the legislation on waste in force’.
11. Annex X to Part V of Legislative Decree No 152/2006 lists, in Title II, Section 4, the biomass fuels the use of which is authorised for the production of energy, in the following terms:
‘(a) plant material produced from dedicated crops;
(b) plant material produced from exclusively mechanical treatment, washing with water or drying of non-dedicated agricultural crops;
(c) plant material produced from forestry operations, forest maintenance and pruning;
(d) plant material produced from exclusively mechanical treatment and treatment with air, steam or even super-heated water of virgin wood consisting of bark, sawdust, wood shavings, wood chips, trimmings and logs of virgin wood and virgin wood granules and waste, virgin cork granules and waste, logs, not contaminated by pollutants;
(e) plant material produced from exclusively mechanical procedures, cleaning with water or drying of agricultural products;
(f) olive pulp …;
(g) black liquor obtained in paper mills …;
(h) crude or refined products consisting mainly of glycerides originating from animals classed … as animal by-products or derived products that may be used in combustion procedures …’
12. In accordance with Article 281(5) and (6) of that decree, amendments and updating of the annexes to Part V of that decree ‘shall be adopted by Decree of the Minister for the Environment, the Protection of the Territory and of the Sea [(‘the Minister for the Environment’)], together with the Minister for Health, the Minister for Economic Development and, in matters of concern to him, the Minister for Infrastructures and Transport, after the Unified Conference … has been heard’.
13. Article 2(1)(h) of Legislative Decree No 28 of 3 March 2011 (5) transposes Article 2(h) of Directive 2009/28 into Italian law.
14. In the words of Article 5(1) of that decree, ‘the construction and operation of electrical energy production installations powered by renewable sources, the associated works and the infrastructures essential for the construction and operation of the installations, and also substantial alterations to the installations themselves, shall be subject to the single authorisation provided for in Article 12 of Legislative Decree No 387 of 29 December 2003. (6)’
III. The main proceedings, the questions for a preliminary ruling and the procedure before the Court
15. PNTE operates a power plant for the production of thermal energy and electricity powered by methane. On 8 November 2016 it asked the Province of Cuneo to issue it, on the basis of Article 12 of Legislative Decree No 387/2003, with a permit to alter the source of power of that plant. PNTE wishes to use instead a vegetable oil, produced by ALSO Srl, derived from the collection and chemical treatment of used frying oil, residues from the refining of vegetable oils and residues from the washing of the tanks in which those oils were stored (‘the vegetable oil’).
16. ALSO has a permit to market the vegetable oil as an end-of-waste product within the meaning of Article 184-ter of Legislative Decree No 152/2006, on condition that it has the physico-chemical characteristics indicated in that permit and that the commercial documents indicate ‘produced from recovered waste for use in biodiesel production’.
17. PNTE was refused the requested authorisation on the ground that the vegetable oil does not come within any of the categories of fuels authorised in plants producing emissions into the atmosphere set out in the list provided for in Annex X, Part II, Section 4 to Part V of Legislative Decree No 152/2006. The only vegetable oils in those categories are those from dedicated crops or produced by means of exclusively mechanical processes. The Province of Cuneo concluded that, in accordance with Article 293(1) of that decree, the vegetable oil must be considered to be waste.
18. PNTE lodged an action against that decision before the Tribunale amministrativo regionale per il Piemonte (Regional Administrative Court for Piedmont). In support of its action, it claims that the refusal to grant authorisation infringes certain provisions of Directive 2008/98 and of Directive 2009/28.
19. In that context, that court observes that the administration to which PNTE’s request for authorisation was submitted was required, pursuant to Article 293(1) of Legislative Decree No 152/2006 read with Annex X to Part V of that decree, to treat the vegetable oil as waste.
20. That conclusion was inevitable in spite of the fact, first of all, that the vegetable oil complies with technical standard UNI/TS 11163:2009 on ‘biofuels, animal and vegetable oils and fats, their intermediaries and derivatives — Classification and specifications for the purpose of energy use’, which was not contested by the administration. (7)
21. Next, the vegetable oil has, according to that court, its own market as a fuel, as may be seen from PNTE’s desire to acquire it in order to power the plant at issue in the main proceedings.
22. Last, the referring court considers that the replacement, for that purpose, of methane by the vegetable oil does not, overall, appear to be capable of having adverse effects on the environment. In the context of the authorisation procedure, PNTE submitted a technical report which shows that the environmental bottom line is on the whole positive, which the administration did not dispute.
23. Furthermore, the referring court observes that the procedure for authorisation of plants for the production of energy from biomass, laid down in the combined provisions of Legislative Decrees No 28/2011 and No 387/2003, is not coordinated with the modification procedure laid down in Annex X to Part V of Legislative Decree No 152/2006. Under Article 281(5) and (6) of that decree, that annex may be revised only by decree of the Minister for the Environment, together with the other competent ministries.
24. Nor is the definition of ‘fuel’ in Article 268(eee-bis) of that decree harmonised with the definition of ‘bioliquid’ in Article 2(h) of Legislative Decree No 28/2011, which transposes Article 2(h) of Directive 2009/28.
25. Having regard to those considerations, the Tribunale amministrativo regionale per il Piemonte (Regional Administrative Court for Piedmont), by decision of 14 February 2018, received at the Court on 26 March 2018, stayed proceedings and referred the following questions to the Court for a preliminary ruling:
‘(1) Do Article 6 of Directive [2008/98] and, in any case, the principle of proportionality, preclude provisions of national law, such as Article 293 of Legislative Decree No 152/2006 and Article 268(eee-bis) of Legislative Decree No 152/2006, which provide that, even in the ambit of a procedure for authorisation of a biomass-powered plant, a bioliquid that fulfils the technical requirements in that respect and is requested for production purposes as fuel must be considered waste if and so long as it is not included in Annex X, Part II, Section 4, paragraph 1 to Part V of Legislative Decree [No 152/2006], irrespective of any adverse environmental impact assessments, or of any dispute as to the technical characteristics of the product, arising in the context of the authorisation procedure?
(2) Do Article 13 of Directive [2009/28] and, in any case, the principles of proportionality, transparency and simplification preclude a provision of national law such as Article 5 of Legislative Decree No 28/2011, [in that], when the applicant requests authorisation to use biomass as fuel in a plant producing emissions into the atmosphere, it does not provide for any coordination with the procedure for authorisation of that use as fuel under Legislative Decree No 152/2006, Annex X to Part V, or provide for the possibility of specifically assessing the solution proposed in the context of the single authorisation procedure and having regard to pre-defined technical specifications?’
26. PNTE, the Province of Cuneo, the Italian and Netherlands Governments and the European Commission submitted written observations to the Court. PNTE, the Italian Government and the Commission were represented at the hearing on 13 February 2019.
IV. Analysis
A. Preliminary considerations
27. As is apparent from the order for reference and from the file submitted to the Court, the vegetable oil is produced by chemical treatment by esterification, in particular, of certain used edible oils. (8) It is common ground that, before undergoing that treatment, those oils constituted waste within the meaning of Article 3(1) of Directive 2008/98.
28. ALSO obtained authorisation under which the vegetable oil obtained through that treatment may be marketed as an end-of-waste product, for use in connection with the production of biodiesel (that is to say, a biofuel used in diesel engines). (9) However, according to the information supplied in the order for reference, PNTE obtained the vegetable oil and wishes to use it for another purpose, namely as fuel in a co-generation plant coming within the category of plants producing emissions into the atmosphere.
29. In accordance with Article 268(eee-bis) and Article 293(1) of Legislative Decree No 152/2006, read with Annex X to Part V of that decree (together ‘the national legislation at issue in the main proceedings’), the combustion of vegetable oils derived from the chemical treatment of waste in plants in that category is subject to the national legislation on energy recovery from waste. That is the position unless and until such time as a ministerial decree adds oils of that type to the list in that annex. The Province of Cuneo has made clear that energy recovery from waste requires specific authorisation and is subject to strict rules relating, in particular, to the limits of emissions into the atmosphere.
30. The omission of chemically treated used vegetable oils from the list of categories of fuels that can be used in a plant producing such emissions, outside the energy recovery from waste regime, has the consequence of excluding any assessment on a case-by-case basis of the end-of-waste status of those oils when they are intended for such use. The order for reference does not specify the grounds on which such exclusion is justified although the end-of-waste status of those oils may be recognised following an individual examination when they are used to produce biodiesel. The explanations supplied by the referring court tend to indicate that it considers that that choice is not based on an assessment of the risks for the environment and health linked with the combustion of oils of that type in a plant producing emissions into the atmosphere.
31. The Province of Cuneo and the Italian Government, on the other hand, put forward reasons of an environmental and health-related nature in support of the non-inclusion of chemically treated waste vegetable oils on the abovementioned list. In essence, they claim that, when such oils are burnt in a plant of that type, the chemical reagents which they contain are released into the atmosphere in much greater proportions than when they are consumed as components of biodiesel in a diesel engine. They contend that the available scientific works do not rule out the absence of risks for the environment or human health linked with the combustion of esterified vegetable oils in a plant generating emissions into the atmosphere and submit that those risks are potentially greater than the risks associated with the use of oils of that type to produce biodiesel. PNTE and the Commission dispute the merits of that justification.
32. Those considerations will constitute the backdrop to my analysis of the questions for a preliminary ruling.
B. First question, relating to the interpretation of Article 6(1) and (4) of Directive 2008/98
1. Introductory remarks
33. The first question concerns the compatibility with Article 6(1) and (4) of Directive 2008/98 of national legislation which prevents the authorities to which application has been made for authorisation to use as a fuel, in a plant producing emissions into the atmosphere, a substance obtained from the treatment of biomass waste, such as a chemically treated used vegetable oil, from assessing, in the light of its technical characteristics and its environmental impact, whether that substance is an end-of-waste substance when it does not come within any of the categories on the list of fuels authorised for use in a plant of that type under that legislation.
34. In that regard, I recall that recognition that waste has acquired end-of-waste status may be given in three distinct ways. First, such recognition may be based on the application of end-of-waste status criteria, referring to the specific categories of waste defined, at EU level, in Article 6(2) of Directive 2008/98. (10)Second, in the absence of such criteria, such recognition may be given by means of a ‘case-by-case’ decision — that is to say, an individual decision referring to the streams of specific waste recovered in a specific plant — adopted by a Member State under Article 6(4) of that directive. Third, as is apparent from the judgment in Tallinna Vesi, (11) that provision authorises Member States to draw up themselves, in the absence of criteria laid down at EU level, the criteria according to which waste in a certain category ceases to be waste, by means of a domestic measure of general application. (12)
35. In the present case, end-of-waste status criteria were not fixed, for used vegetable oils, either at EU level or at national level. The national legislation at issue in the main proceedings also represents an obstacle to any assessment on a case-by-case basis of the end-of-waste status of those oils when they are chemically treated and intended for use as fuels in a plant producing emissions into the atmosphere. (13) In fact, their end-of-waste status assumes the adoption of a ministerial decree placing them on the list of fuels authorised for such use outside the regime applicable to waste incineration, while specifying, where necessary, the criteria that must be satisfied for that purpose.
36. In that context, the first question invites the Court to determine whether, and if so to what extent, a Member State is required, in the absence of end-of-waste status criteria defined at EU level or at national level concerning a certain type of waste, to permit the case-by-case assessment of specific streams of that type of waste. Although the Court has already held that Article 6(4) of Directive 2008/98 imposes on Member States more than a simple option to examine whether certain waste has ceased to be waste and to recognise, where appropriate, end-of-waste status (Section 2), the scope of the discretion which the Member States enjoy for that purpose will have to be clarified (Section 3) in order to allow the referring court to assess the compatibility of the national legislation at issue with that provision (Section 4).
2. The obligation on Member States not to treat as waste a substance which has ceased to be waste
37. The wording of Article 6(4) of Directive 2008/98 might give the impression, by the use of the word ‘may’, that recognition of end-of-waste status of waste which is not in a category covered by criteria defined at EU level falls within the discretion of each Member State. However, that interpretation does not correspond with the interpretation that emerges from the Court’s case-law. As the Court recently emphasised in the judgment in Tallinna Vesi, (14) the Member States are required, in the absence of such criteria, to recognise end-of-waste status for waste which has ‘undergone a recovery operation, which enables it to be used without endangering human health and without harming the environment’.
38. That approach is in line with the case-law that preceded the introduction, with the adoption of Directive 2008/98, of the concept of ‘end-of-waste status’. That case-law, which has its origin in the judgment in ARCO Chemie Nederland and Others, (15) already established a test, based on the interpretation of ‘waste’ (16) — which assumes an action, an intention or an obligation to discard the substance in question — designed to distinguish waste from a substance which has ceased to be waste following recovery operations. (17)
39. In that judgment and subsequently, the Court held that, where waste has been fully recovered, having the consequence of conferring on the resulting substance the same properties and characteristics as a raw material, so that it can be used in the same conditions of precaution for the environment, that substance loses its quality as waste. That applies, however, only in so far as its holder does not discard it in turn or have the intention or obligation to do so. (18) In a number of subsequent judgments, the Court has applied those principles for the purpose of determining from what point the recovery of a waste — such as its recycling (19) or its retreatment for use as fuel (20) — is deemed to be complete.
40. The approach that acknowledging the end-of-waste status of waste that has undergone a complete recovery operation is more than a mere option open to the Member States can also be understood in the light of the purpose of Directive 2008/98. As is apparent, in particular, from Article 1 and from recitals 6 to 9, the objective of environmental protection pursued by that directive is broken down into two aspects, namely, first, preventing or reducing the adverse impacts caused by waste and, second, improving the efficiency of the management of resources. From that aspect, the Court has admittedly repeatedly held that the concept of ‘waste’ must be given a broad interpretation, (21) with the aim of protecting the environment from the first of those aspects. The scope of that concept should not however be extended so far as to discourage waste recovery and thus to impede the achievement of that environmental objective under its second aspect. However, the uncertainty surrounding the status of waste that has undergone a recovery operation is likely to encourage holders of waste to eliminate it, thus ignoring the waste hierarchy, (22) instead of recovering it. (23)
41. Article 6(1) of Directive 2008/98, as amended by Directive 2018/851, now clarifies the obligation on Member States to ‘take appropriate measures’ to ensure that waste which has undergone a recovery operation is considered to have ceased to be waste if it complies with the conditions which that directive lays down. (24)
42. That legislative amendment in my view indicates not a break with the earlier system but rather a strengthening of the obligation already borne by Member States to recognise the end-of-waste status of substances which have already undergone a complete recovery operation. (25) As is apparent in particular from recital 17 of Directive 2018/851, the strengthening of that obligation is intended to increase legal certainty in the interest of operators in markets for secondary raw materials in order to facilitate the shift towards a circular economy.
43. However, the extent of the scope for manoeuvre which the Member States enjoy in order to evaluate, pursuant to Article 6(4) of Directive 2008/98, whether a certain type of waste or a specific waste stream is capable, following recovery operations, of being used without endangering human health and without harming the environment requires clarification.
3. The extent of the Member States’ discretion to determine whether waste has ceased to be waste
44. The wording of Article 6(4) of Directive 2008/98 means, as the Court had observed in the judgment in Lapin ELY-keskus, liikenne ja infrastruktuuri, (26) that, in the absence of end-of-waste status criteria set at EU level, it is solely in the light of the ‘case-law’ that the Member States may decide whether certain waste has ceased to be waste. (27) However, the Court has subsequently held, in the judgment in Tallinna Vesi, (28) that both the end-of-waste status criteria and the decisions adopted by the Member States on a case-by-case basis must also ensure that they comply with the conditions laid down in Article 6(1) of Directive 2008/98. I observe, in that regard, that although paragraph 4 of that article refers only to the ‘case-law’, the conditions laid down in paragraph 1 of that article are, as the Commission asserted at the hearing, themselves inspired by the judgments of the Court. (29)
45. That interpretation corresponds, moreover, with what are now the express requirements of Article 6(4) of that directive, as amended by Directive 2018/851. (30)
46. That being clear, I propose that the Member States should be recognised as having a broad discretion as regards both the substantive examination of compliance with the conditions laid down in Article 6(1) of Directive 2008/98 and the choice of the method — the establishment of criteria for categories of waste or case-by-case assessment for specific waste streams — and of the procedure followed.
47. As regards, first of all, the rules relating to the procedures, to the competent authorities and also to the burden of proving the elements defined in Directive 2008/98, it is apparent from the case-law that, in the absence of specific provisions to that effect in that directive, the establishment of those rules is a matter for the national law of the Member States, provided that the objective and the effectiveness of that directive are not undermined. In particular, a Member State may place the burden of proving those elements on the person who relies on them, provided that it does not make such proof excessively difficult. (31) Those principles govern, in particular, the choice of the procedural methods of assessing compliance with the conditions relating to end-of-waste status laid down in Article 6(1) of that directive.
48. Next, Article 6(4) of Directive 2008/98 does not specify the nature of the measures which a Member State must favour in order to determine the time when waste ceases to be waste in the absence of criteria defined at EU level. In those circumstances, the choice of those measures — criteria of general application relating to the type of waste in question or individual decisions for streams of waste of that type — also comes, in my view, within the autonomy of the Member States. (32)
49. As regards, last, the assessment of compliance with the conditions laid down in Article 6(1) of Directive 2008/98, the Court has held, in the judgment in Tallinna Vesi, (33) that, at least in certain circumstances, (34) a Member State may, for a given type of waste, decide not to lay down criteria or to make provision for an individual decision recognising end-of-waste status. Such a decision assumes that the Member State in question has considered, taking into account ‘all relevant elements and the most recent scientific and technical knowledge’, that that type of waste cannot be considered to have undergone a recovery operation enabling it to be used without endangering the environment and human health — or, accordingly, to have satisfied the abovementioned conditions. (35)
50. For the purposes of such an assessment, it seems necessary to me to recognise that the Member States have a considerable, although not absolute, margin of discretion.
51. I recall, in that respect, that, as the Court has already held, the conditions set out in Article 6(1) of Directive 2008/98 do not as such, where they have not been given specific form by means of general criteria or a case-by-case decision, make it possible directly to establish that waste has ceased to be waste. (36) Being couched in still more generous terms, the test set out in the ‘case-law’ referred to in paragraph 4 of that article, which served as the inspiration for those conditions, is even less capable of directly authorising the recognition that waste has ceased to be waste.
52. Likewise, the end-of-waste status criteria established at EU level and by the Member States, like the individual decisions adopted by the Member States, are generally supported, in order to ensure compliance with those conditions, by a very specific framework, in particular by specific rules governing the waste recovery process.
53. Thus, the rules establishing end-of-waste status criteria at EU level lay down detailed criteria applicable to waste entering the recovery process, the materials obtained following that process, the treatment procedures and the conditions to be satisfied by those responsible for those processes. A similar scheme characterises, in particular, the instruments, adopted in France (37) and in the United Kingdom, (38) setting end-of-waste status criteria for used vegetable oils. Article 6(2) and (3) of Directive 2008/98, as amended by Directive 2018/851, now provides that the end-of-waste status criteria to be adopted at EU level or by the Member States are to be based on a similar structure. (39)
54. The drawing up of such criteria constitutes, in practice, a technical exercise that frequently requires consultation with industry and the other stakeholders and also the preparation of studies to assess the impact on the environment and human health of the removal of the substances concerned from the waste regime. Where no criteria are defined for a specific type of waste, a case-by-case assessment of compliance with the conditions determining end-of-waste status for specific waste streams of that type also requires strict control of the characteristics of those streams that makes it possible to ensure that those conditions are met. (40)
55. In short, the adoption of criteria, just like the adoption of individual decisions, relating to end-of-waste status implies complex technical and scientific assessments by the competent national authorities. (41) Such assessments may also underlie a Member State’s choice not to lay down criteria or to make provision for a case-by-case assessment of the end-of-waste status of specific waste. Neither the Court nor the national courts can be in a position to substitute their own evaluation.
56. From that aspect, I consider, on the one hand, that, in the absence of harmonised criteria, a Member State should not, in principle, be required to initiate a procedure for the adoption of criteria or to make provision for an individual assessment of end-of-waste status when the national legislature considers that the conditions laid down in Article 6(1) of Directive 2008/98 cannot be satisfied in the case of a certain type of waste. (42) To my mind, the same applies for even stronger reasons when the absence of criteria and the refusal to carry out any case-by-case assessment relates to waste of that type only when it has undergone a specific treatment and is intended for a particular use, notwithstanding that it may cease to be waste following a separate treatment and/or treatment for other uses.
57. In my view, the decision not to make provision for criteria to be established or for the possibility of a case-by-case assessment of end-of-waste status should, however, be censured where the premiss on which it is based — relating to failure to meet the conditions laid down in Article 6(1) of Directive 2008/98 — is the result of a manifest error of assessment. That restricted judicial review seems necessary in order to reconcile the necessary margin of discretion of the Member States with the objective of promoting the circular economy pursued by that directive. (43) In addition, that discretion must be restricted owing to the risk, which it inevitably entails, of discrepancies between national practices concerning the assessment of the time when waste ceases to be waste, which may hinder trade between Member States. (44)
58. For even more compelling reasons, on the other hand, a Member State may, also subject to review of a manifest error of assessment, (45) consider, for a certain type of waste, that, although it cannot reasonably be precluded at the outset that the conditions laid down in Article 6(1) of Directive 2008/98 are satisfied, compliance with those conditions can be guaranteed only by the definition of criteria in a domestic measure of general application to be adopted following a procedure involving the appropriate consultations and studies.
59. That being the case, in the latter scenario the competent national authorities cannot in my view adopt a passive approach that would impede the adoption of such criteria or, at the very least, the initiation of a procedure that would permit the examination of the elements put forward by the waste holders concerned. The attainment of the objective of promoting waste recovery requires that the establishment of end-of-waste status criteria may be studied in the context of a procedure whose rules, laid down by national law, comply with the principle of the effectiveness of EU law. That principle means, in my view, that the waste holders concerned may request that the procedure for the adoption of such criteria be initiated and may have remedies available where such a request is rejected or where the competent national authorities fail to act. The principle of effectiveness also assumes that that procedure will be subject to reasonable time limits. (46)
4. Review of the manifest error of assessment in the present case
60. It will be for the referring court, which alone has jurisdiction to assess the relevant facts, to determine whether the national legislation at issue in the main proceedings is the result of a manifest error of assessment in the application of Article 6(1) and (4) of Directive 2008/98.
61. A finding of such an error would mean that that court has established that the national legislature manifestly erred either in considering that at least one of the conditions laid down in paragraph 1 of that article could not be satisfied in the case of the chemically treated waste vegetable oils used as fuel in a plant generating emissions into the atmosphere, or in considering that the satisfaction of those conditions could be verified only by the prior adoption, by way of regulation, of end-of-waste status criteria for oils of that type.
62. The considerations relating to the scope of those conditions, set out below, (47) will be capable of enlightening that court in the context of that assessment. Before developing those considerations, I consider that it will be useful to make two general observations.
63. In the first place, the fact that the competent national authority establishes that, provided that certain criteria are met, a specific waste ceases to be waste for a certain use does not mean that that waste ceases to be waste when it is used for other purposes. In fact, compliance with the conditions laid down in Article 6(1) of Directive 2008/98 depends on the specific uses envisaged and must therefore be verified separately for each of those uses. (48)
64. From that aspect, the fact that the competent authority, in application of paragraph 4 of that article, recognised in the authorisation issued to ALSO that the vegetable oil ceases to be waste when it is used to produce biodiesel, does not mean that the Italian legislature exceeded the limits of its discretion by precluding the individual assessment of the end-of-waste status of that oil for use in a plant producing emissions into the atmosphere.
65. In the second place, unless I am wrong, the end-of-waste status criteria established for used vegetable oils in France and in the United Kingdom (49) make it possible to recognise the end-of-waste status of oils of that type, when they are chemically treated, solely for use as a biofuel and also, in the United Kingdom, as domestic heating oil. (50) Although compliance with the conditions of end-of-waste status must be evaluated by each Member State in the exercise of its discretion, the criteria and decisions adopted in other Member States may nonetheless provide certain helpful indications.
(a) The application of Article 6(1)(a) and (b) of Directive 2008/98
66. Subparagraphs (a) and (b) of Article 6(1) of Directive 2008/98 make end-of-waste status subject to the current nature of the use of the waste in question for specific purposes and to the existence of a market or demand for the waste. Those conditions seem to reflect the case-law according to which the status as waste of a specific substance depends on the degree of likelihood that it will be reused, which is higher when there is also a financial advantage. (51)
67. In that regard, the Commission document ‘Guidance on the Interpretation of Key Provisions of Directive 2008/98/EC on Waste’ (52) states, correctly in my view, that compliance with those conditions, which are related, may be verified with the help of indicia such as the existence of firmly established market conditions related to supply and demand, a verifiable market price being paid for the material in question or the existing of trading specifications or standards.
68. Contrary to the suggestion of PNTE, the Netherlands Government and the Commission, the fact that PNTE acquired the vegetable oil in order to use it as a fuel in a plant producing emissions into the atmosphere does not necessarily justify of itself the conclusion that the conditions being examined here are fulfilled. Such a conclusion would mean that it is established either that the demand of a single user is, owing to its size, sufficient to ensure compliance with those conditions, or that there is, for chemically treated waste vegetable oils, a wider market or demand in connection with that use.
(b) The application of Article 6(1)(c) of Directive 2008/98
69. The condition laid down in Article 6(1)(c) of Directive 2008/98 reflects the case-law according to which waste ceases to be waste where, following a recovery operation, it is capable of being used in the same conditions as a raw material. Compliance with that condition implies that, once recovered, the waste complies with the standards applicable to virgin materials used for the same purpose as the waste. (53)
70. In that respect, while the fact that the vegetable oil meets the UNI technical standard applicable to liquid biofuels is an indication that that condition is met, it cannot in itself compel a finding to that effect.
71. To my mind, compliance with the condition laid down in Article 6(1)(c) of Directive 2008/98 depends largely on whether an esterified vegetable oil which is not obtained from waste comes within the categories of fuels listed in Annex X to Part V of Legislative Decree No 152/2006. An affirmative reply to that question would support the conclusion that the vegetable oil meets the standards applicable to the products within the meaning of Article 6(1)(c) of Directive 2008/98. Conversely, if all chemically treated vegetable oils, whether the product of the refining of virgin oils (from dedicated crops or not) or of the treatment of used oils, were prohibited for such use, that might indicate that the condition laid down in that provision is not satisfied. (54)
72. In the latter scenario, PNTE’s claims would amount to challenging the standard applicable to the products which that prohibition represents. In my view, Article 6(1) of Directive 2008/98 does not constitute a legal basis on which to call into question the regulatory choices, relating in particular to the level of protection of the environment and health, that underlie the regulation of the products.
73. The question of the compatibility of such a standard with EU law would then arise not with regard to Directive 2008/98 but indeed with regard to the free movement of goods enshrined in Article 34 TFEU. It might, as PNTE claims, impede the free movement of chemically treated vegetable oils by making their use in the abovementioned plants subject to the severe constraints of the law on waste. Such an obstacle would be acceptable only in so far as it was justified, taking account of the Member States’ broad discretion to evaluate, in particular, the risks associated with waste use and management. (55)
74. To my mind, the order for reference does not contain sufficient information to allow the Court to take a position on that particularly complex question. In particular, the Italian Government has not made clear whether the omission of chemically treated vegetable oils from the list in Annex X to Part V of Legislative Decree No 152/2006 was based solely on the risks associated with combustion emissions or whether it also meets other objectives, such as that of complying with the waste hierarchy (by encouraging, where appropriate, the recycling of the oils in question rather than their re-treatment for energy recovery) (56) or of promoting the use of used vegetable oils as biofuel rather than as fuel. (57) Nor does the Court have sufficient information to determine whether the legislation at issue in the main proceedings is proportionate to the aim or aims pursued.
(c) The application of Article 6(1)(d) of Directive 2008/98
75. Article 6(1)(d) of Directive 2008/98, in that it provides that waste may cease to be waste only in so far as its use will not lead to overall adverse environmental or human health impacts, also reflects the case-law that preceded its adoption. (58)
76. To my mind, the fact that the Province of Cuneo has not disputed the assessment, carried out by PNTE, that the environmental bottom line of the replacement, as a source of power in the co-generation plant at issue in the main proceedings, of methane by the vegetable oil would be positive overall, cannot in itself show that that condition is met.
77. Admittedly, as PNTE observes, the energy recovery of used vegetable oils may produce ecological benefits in that it makes it possible to dispose of waste while substituting it for a fossil fuel or a bioliquid produced from dedicated crops, the environmental bottom line of which is controversial owing to the indirect land-use change which they may entail. (59)
78. However, I doubt that it is necessarily sufficient to compare the bottom line of the use of biofuel produced from waste with that of the use of the substituted fuel as regards the emissions normally associated with the combustion of the substituted fuel. That problem concerns the identification of the relevant comparator in the context of the application of Article 6(1)(d) of Directive 2008/98.
79. In the words of the Commission guidance document, compliance with that condition assumes that it is established that the use of the substance outside the regime applicable to waste does not have a negative environmental and health impact higher than that of its use under that regime. (60) It would thus be a matter of comparing the risk to the environment and health that would be incurred if the substance in question were considered to be waste or as a product that had ceased to be waste.
80. In the present case, it is apparent from the documents annexed to the written observations submitted by PNTE and by the Province of Cuneo that the competent national authorities accepted that the environmental bottom line of the change of fuel was positive in that the change would bring about a reduction in emissions associated with the combustion of methane. (61) However, according to those documents, and subject to verification by the referring court, that bottom line does not deal with the possible environmental impacts resulting from the combustion of the vegetable oil as regards possible emissions of other polluting substances that may be associated with the burning of waste. Likewise, the fact that the vegetable oil meets the UNI technical standard applicable to liquid biofuels does not necessarily guarantee that it will not present environmental or health risks specifically linked with the fact that it is the result of waste treatment. (62)
81. In those circumstances, the Province of Cuneo and the Italian Government invoke the precautionary principle. They maintain that a negative overall environmental and health impact of the use of the vegetable oil as a fuel in a co-generation plant, for the reasons stated in point 31 of this Opinion, cannot be precluded with a reasonable degree of scientific certainty.
82. On the other hand, PNTE and the Commission claim that the Italian authorities have not shown either that the combustion of esterified vegetable oil is more harmful to the environment than the combustion of mechanically treated vegetable oil or that the use of esterified vegetable oil as a fuel in a co-generation plant is more harmful than its use as a biofuel. According to PNTE and the Commission, that lack of proof means, in essence, that the condition laid down in Article 6(1)(d) of Directive 2008/98 should be deemed to be fulfilled.
83. In that context, I recall that the Member States have in my view a broad discretion to assess whether the conditions of end-of-waste status are satisfied. In particular, that assessment depends on the choices made by each Member State, in the absence of criteria defined at EU level, relating to the level of environmental protection which it wishes to achieve (63) and also to the need to decide between the two objectives which that article pursues. (64)
84. What is more, such an assessment often takes place in a context characterised by a certain degree of scientific uncertainty with respect to the environmental risks associated with the end-of-waste status of certain substances. In my view, a Member State is permitted — in application, specifically, of the precautionary principle (65) — to define the degree of certainty of the absence of a significant negative effect for the environment or human health that is required, and likewise the level of risk deemed acceptable, for the purpose of authorising end-of-waste status. Its decision must, however, be based on an examination of the relevant technical and scientific elements, it being understood that the Member States may place the burden of proving compliance with the conditions of end-of-waste status on the waste holders claiming such compliance. (66)
5. Intermediate conclusion
85. The foregoing considerations lead me to conclude that Article 6(1) and (4) of Directive 2008/98 would not preclude the national legislation at issue in the main proceedings if the referring court should consider that the national legislature was entitled to conclude, without making a manifest error of assessment, that the chemically treated waste vegetable oils could not satisfy the conditions laid down in paragraph 1 of that article when they are used as fuel in a plant producing emissions into the atmosphere.
86. The same would apply if that court should consider that the national legislature was entitled, without that conclusion being vitiated by a manifest error of assessment, to consider that the verification of compliance with those conditions, in the light of its complex and technical nature, assumed the adoption of end-of-waste status criteria for oils of that type in a domestic measure of general application, on condition that the adoption of such a measure guaranteed the effectiveness of Article 6(1) of Directive 2008/98.
C. Second question, relating to the interpretation of Article 13(1) of Directive 2009/28
87. By its second question, the referring court seeks, in essence, to ascertain whether Article 13(1) of Directive 2009/28 precludes the national legislation at issue in the main proceedings in that the list of categories of fuels produced from biomass that may be used in a plant producing emissions into the atmosphere without being required to obey the rules on energy recovery from waste can be amended only by a ministerial decree, the adoption procedure for which is not coordinated with the administrative procedure for authorisation of the use of a substance produced from biomass as fuel. (67) The referring court emphasises that, in addition, the adoption of such a ministerial decree is not supported by certain and transparent timetables.
88. The problem thus raised concerns the connection between, on the one hand, the national procedures for recognising end-of-waste status under Article 6(4) of Directive 2008/98 and, on the other hand, the requirements derived from Article 13(1) of Directive 2009/28. The Court is in fact being asked to determine whether, and if so to what extent, the fact that the substance which the holder seeks to have recognised as having end-of-waste status is a bioliquid within the meaning of Article 2(h) of that directive affects the requirements placed on the Member States with regard to the evaluation of compliance with the conditions laid down in Article 6(1) of Directive 2008/98.
89. Placed in the context of the analysis proposed in response to the first question, this problem means, on the one hand, determining whether Article 13(1) of Directive 2009/28 calls in question the conclusion that the Member States may, subject to review of a manifest error of assessment, preclude any possibility of end-of-waste status for a specific type of waste, if necessary where it has undergone specific treatment and/or it is intended for a specific use.
90. On the other hand, it is necessary to clarify whether, where a Member State considers that, although that possibility cannot reasonably be precluded at the outset, compliance with the end-of-waste status conditions can be verified only if there are defined criteria for that type of waste, Article 13(1) of Directive 2009/28 places on that Member State obligations in addition to the obligation to establish a procedure that complies with the principle of effectiveness that would allow such criteria to be drawn up.
91. Those questions call for a negative reply on my part.
92. That is so since, on the one hand, the provisions of national law under which certain categories of waste produced from biomass do not cease to be waste when they have undergone a specific treatment in order to be used as fuel should, in my view, be understood as substantive conditions applicable to the use of certain types of renewable energy. Such provisions do not impede the authorisation to use the waste in question as sources of renewable energy. They merely make such use subject to the regulatory constraints applicable to energy recovery from waste. For the reasons set out above, I consider that the substantive conditions relating to the use of renewable energy do not come within the scope of Article 13(1) of Directive 2009/28.
93. On the other hand, the referring court’s doubts concern the compatibility with that provision of the procedure for authorisation to operate a plant powered by biomass only in so far as it is not coordinated with the procedure for drawing up a domestic measure of general application allowing the end-of-waste status of the bioliquid which it wishes to authorise. That court wonders, moreover, about the necessity and the proportionality of the latter procedure. In my view, and also for the reasons stated below, the regulatory procedures for the adoption of end-of-waste status criteria are not governed by Article 13(1) of Directive 2009/28 either.
94. In that regard, first of all, it follows from the wording of the first subparagraph of that provision that any national rules concerning the ‘authorisation, certification and licensing procedures’ that are applicable to plants producing, transporting or distributing energy from renewable sources and to the transformation of biomass into energy products must be ‘proportionate and necessary’. (68) The second paragraph requires Member States to adopt a series of measures designed, in a non-exhaustive manner, to give concrete form to that requirement. Those specific obligations, seen in the light of the first subparagraph of that provision, cannot be interpreted as having a wider scope than that of the general requirement of proportionality and necessity which they implement. (69)
95. Next, the reading according to which that general requirement is to apply exclusively to provisions of a procedural nature also follows from the genesis of the adoption of Article 13(1) of Directive 2009/28. The preparatory documents show, in fact, that that provision was designed to reduce the administrative barriers linked with the delays, administrative costs and uncertainties relating to the procedures for the grant of authorisation and licences for renewable energy operation projects. (70)
96. Last, the objectives and the general scheme of Directive 2009/28 corroborate that interpretation.
97. As is apparent from Article 1 thereof, that directive is confined to establishing a common framework for the promotion of energy from renewable sources. To that effect, its sets mandatory national targets for the overall share of energy from renewable sources in gross final consumption of energy and for the share of energy used in transport. The attainment of those objectives is itself aimed at permitting the attainment of the overall target of ensuring that the share of energy from renewable sources within the Union comes to at least 20% in 2020. (71)
98. In that regard, the preparatory works show that the legislature intended to preserve the Member States’ freedom to develop the renewable energy sector that was most appropriate to their situation and thus to make up their energy mix according to their own priorities, (72) provided that they achieve the mandatory national objectives assigned to them.
99. That description of the objectives and the general scheme of Directive 2009/28 underlies the approach followed in the judgment in Elecdey Carcelen and Others. (73) The Court held in that case that Article 13(1)(e) of that directive is intended solely to control the costs relating to the administrative authorisation, certification and licensing procedures and that it is not intended to limit the possibilities for the Member States to impose taxes such as a levy on wind turbines. The Court emphasised that, while the Member States are bound by an obligation to produce a specific result under Article 3(1) and (2) of that directive, namely the obligation to attain their mandatory national objectives, they have a discretion as to the choice of the means implemented for that purpose. From that aspect, the Court recognised that it was not precluded that such a levy would make the development of wind energy less attractive and even jeopardise it. However, according to the Court, even on the assumption that the levy at issue had been capable of preventing the Member State concerned from attaining its mandatory national objective, it would at most have resulted in a breach of that obligation to produce a specific result. The measure imposing the levy could not, however, be regarded in itself as infringing that directive. That measure was, however, required to observe the fundamental freedoms guaranteed by the FEU Treaty. (74)
100. In my view, the logic underpinning that judgment seems to confirm that Article 13(1) of that directive cannot be interpreted as limiting the ability of the Member States to control, by regulatory measures of a non-procedural nature, the development of renewable energies.
101. To my mind, that judgment calls in question the approach taken in the judgment in Azienda Agro-Zootecnica Franchini and Eolica di Altamura, (75) which the Commission cited in support of the interpretation contrary to the one I recommend. The Court had held in that judgment, in the context of a dispute in which Directive 2009/28 was not yet applicable ratione temporis, that Article 13 of that directive represented an expression of the general principle of proportionality in EU law. It therefore examined the conformity to that principle of national legislation that prohibited the installation in Natura 2000 sites of wind turbines not for commercial purposes. Although that judgment would suggest that the principle of proportionality laid down in that provision refers to all rules, both procedural and substantive, governing the production of renewable energy, that approach seems to me to have been abandoned in the judgment in Elecdey Carcelen and Others. (76)
102. I conclude that Article 13(1) of Directive 2009/28 does not preclude national legislation that makes the use of chemically treated waste vegetable oils as fuel in a plant producing emissions into the atmosphere subject to observance of the standards on the burning of waste, unless and until such time as a ministerial decree provides otherwise. Even if such legislation would jeopardise the attainment of the mandatory national objective assigned to Italy (which the order for reference does not in any way suggest), the result would only be a breach of the obligation to produce a specific result imposed on that Member State.
103. That conclusion is not undermined by the argument, put forward by PNTE, that the legislation at issue in the main proceedings fails to comply with Article 13(1) of Directive 2009/28 in so far as the list of authorised fuels set out therein is not coordinated with the definition of ‘bioliquids’ laid down in the provision of national law that transposes Article 2(h) of that directive.
104. Nor is it called in question by the argument, put forward by the Commission at the hearing, that Article 17(8) of Directive 2009/28 precludes a Member State from making the combustion of a bioliquid such as the vegetable oil, which satisfies the criteria of sustainability defined in Article 17(1) of that directive, subject to the legislation on the burning of waste.
105. I observe, in that regard, that Article 2(h) of Directive 2009/28 merely defines ‘bioliquids’, as used in other provisions of that directive. In particular, Article 17(1) of that directive sets out ‘sustainability criteria’ for biofuels and bioliquids.
106. Contrary to the Commission’s contention, the harmonisation brought about by Article 17 of Directive 2009/28, as is clear from paragraph 8 of that article and as the Court has already held, (77) is limited to defining the sustainability criteria to be met by biofuels and bioliquids ‘for the purposes referred to in points (a), (b) and (c) of paragraph 1’ of that article. Those purposes designate, on the one hand, the taking into account of the energy produced from biofuels and bioliquids in order to verify the extent to which a Member State complies with its mandatory national objectives and also its renewable energy obligations and, on the other hand, eligibility for financial support for the consumption of biofuels.
107. It follows, according to the Court, that Article 17 of Directive 2009/28 does not require Member States unconditionally to authorise imports of sustainable biofuels from other Member States. (78) Nor, following the same logic, does that provision, in my view, require a Member State to allow without restriction the use of sustainable biofuels and bioliquids, whether produced on its own territory or in another Member State.
V. Conclusion
108. Having regard to all of the foregoing, I propose that the questions for a preliminary ruling referred by the Tribunale amministrativo regionale per il Piemonte (Administrative Court for Piedmont, Italy) be answered as follows:
(1) Article 6(1) and (4) of Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives does not preclude national legislation, such as that at issue in the main proceedings, under which a substance derived from the chemical treatment of used vegetable oils which does not appear in the list of categories of substances produced from biomass authorised for use as a fuel — a list which can be altered only by the adoption of a domestic measure of general application — must be considered to be waste when it is used for that purpose in a thermal and electrical energy production installation. That is the position, however, only in so far as the national legislature has deemed, without making a manifest error of assessment:
– that the conditions laid down in Article 6(1) of that directive could not be fulfilled in the case of used vegetable oils when they undergo such treatment for the purpose of that use, which it is for the referring court to assess, or indeed
– that compliance with those conditions could be verified only by the prior adoption of end-of-waste status criteria for the substances of that type in a domestic measure of general application and that the procedure for the adoption of such a measure provided for in national law guaranteed the effectiveness of Article 6(1) of that directive, in particular by being supported by reasonable time limits, by being capable of being initiated at the request of the waste holders concerned and by making provision for remedies against the refusal of the competent national authorities to grant such a request, which it is for the national court to determine.
(2) Article 13(1) of Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC does not preclude national legislation, such as that at issue in the main proceedings, under which the use as fuel in an installation for the production of thermal and electrical energy of a bioliquid derived from waste which does not come within any of the categories on the list of fuels authorised for that purpose under that legislation — a list which can be altered only by a domestic measure of general application, the procedure for the adoption of which is not coordinated with the procedure for authorisation to operate the installation in question — is made subject to the national legislation on energy recovery from waste.