JUDGMENT OF THE COURT

18 December 1997 (1)

(Directive 91/156/EEC — Period for transposition — Effects — Definition of waste)

In Case C-129/96,

REFERENCE to the Court under Article 177 of the EC Treaty by the BelgianConseil d'État for a preliminary ruling in the proceedings pending before that courtbetween

Inter-Environnement Wallonie ASBL

and

Région Wallonne

on the interpretation of Articles 5 and 189 of the EEC Treaty and Article 1(a) ofCouncil Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39), asamended by Council Directive 91/156/EEC of 18 March 1991 (OJ 1991 L 78,p. 32),

THE COURT,

composed of: G.C. Rodríguez Iglesias, President, C. Gulmann, H. Ragnemalm andR. Schintgen (Presidents of Chambers), G.F. Mancini, J.C. Moitinho de Almeida,P.J.G. Kapteyn, J.L. Murray, D.A.O. Edward, J.-P. Puissochet, G. Hirsch, P. Jannand L. Sevón (Rapporteur), Judges,

Advocate General: F.G. Jacobs,

Registrar: H. von Holstein, Deputy Registrar,

after considering the written observations submitted on behalf of:

—    Inter-Environnement Wallonie ASBL, by Jacques Sambon, of the BrusselsBar,

—    the Belgian Government, by Jan Devadder, Senior Adviser in the Ministryof Foreign Affairs, External Trade and Development Cooperation, actingas Agent,

—    the German Government, by Ernst Röder, Ministerialrat in the FederalMinistry of Economic Affairs, and Bernd Kloke, Oberregierungsrat in thesame ministry, acting as Agents,

—    the French Government, by Jean-François Dobelle, Deputy Director in theLegal Directorate of the Ministry of Foreign Affairs, and Romain Nadal,Assistant Foreign Affairs Secretary in that directorate, acting as Agents,

—    the Netherlands Government, by Adriaan Bos, Legal Adviser in the Ministryof Foreign Affairs, acting as Agent;

—    the United Kingdom Government, by John E. Collins, Assistant TreasurySolicitor, acting as Agent, and Derrick Wyatt QC, and

—    the Commission of the European Communities, by Maria Condou-Durande,of its Legal Service, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of Inter-Environnement Wallonie ASBL,represented by Jacques Sambon; the French Government, represented by Jean-François Dobelle and Romain Nadal; the Netherlands Government, representedby Johannes Steven van den Oosterkamp, Deputy Legal Adviser in the Ministry ofForeign Affairs, acting as Agent; the United Kingdom Government, represented by

Derrick Wyatt QC; and the Commission, represented by Maria Condou Durande,at the hearing on 5 February 1997,

after hearing the Opinion of the Advocate General at the sitting on 24 April 1997,

gives the following

Judgment

1.

    By judgment of 29 March 1996, received at the Court on 23 April 1996, the BelgianConseil d'État referred to the Court for a preliminary ruling under Article 177 ofthe EC Treaty two questions on the interpretation of Articles 5 and 189 of theEEC Treaty and Article 1(a) of Council Directive 75/442/EEC of 15 July 1975 onwaste (OJ 1975 L 194, p. 39), as amended by Council Directive 91/156/EEC of 18March 1991 (OJ 1991 L 78, p. 32).

2.

    Those questions were raised in proceedings brought by Inter-EnvironnementWallonie, a non-profit-making association, for annulment of the Order of theWalloon Regional Executive of 9 April 1992 on toxic or hazardous waste ('theOrder‘).

The relevant Community provisions

3.

    The object of Directive 75/442 is to approximate the laws of the Member States onthe disposal of waste. It has been amended by Directive 91/156.

4.

    Directive 75/442, as amended by Directive 91/156, defines waste in Article 1(a) asfollows:

'For the purposes of this Directive:

(a)    ”waste” shall mean any substance or object in the categories set out inAnnex I which the holder discards or intends or is required to discard.

    The Commission, acting in accordance with the procedure laid down inArticle 18, will draw up, not later than 1 April 1993, a list of wastesbelonging to the categories listed in Annex I. This list will be periodicallyreviewed and, if necessary, revised by the same procedure.‘

5.

    The list mentioned in that last provision was laid down in Commission Decision94/3/EC of 20 December 1993 establishing a list of wastes pursuant to Article 1(a)of Directive 75/442 (OJ 1994 L 5, p. 15). Paragraph 3 of the introductory note to

that list states, first, that the list is not exhaustive and, second, that the fact that amaterial appears in it is only relevant when the definition of waste has beensatisfied.

6.

    Articles 9(1) and 10 of Directive 75/442, as amended, provide that anyestablishment or undertaking which carries out the operations specified in AnnexIIA or Annex IIB must obtain a permit from the competent authority. Annex IIAconcerns disposal operations whilst Annex IIB lists the operations which may leadto recovery.

7.

    Article 11 of Directive 75/442, as amended, provides an exception to therequirement of a permit:

'1.    Without prejudice to Council Directive 78/319/EEC of 20 March 1978 ontoxic and dangerous waste [OJ 1978 L 84, p. 43], as last amended by the Act ofAccession of Spain and Portugal, the following may be exempted from the permitrequirement imposed in Article 9 or Article 10:

(a)    establishments or undertakings carrying out their own waste disposal at theplace of production;

    and

(b)    establishments or undertakings that carry out waste recovery.

This exemption may apply only:

—    if the competent authorities have adopted general rules for each type ofactivity laying down the types and quantities of waste and the conditionsunder which the activity in question may be exempted from the permitrequirements,

    and

—    if the types or quantities of waste and methods of disposal or recovery aresuch that the conditions imposed in Article 4 are complied with.

2.    The establishments or undertakings referred to in paragraph 1 shall beregistered with the competent authorities.

(...)‘

8.

    Article 4 of Directive 75/442, as amended, provides:

'Member States shall take the necessary measures to ensure that waste isrecovered or disposed of without endangering human health and without usingprocesses or methods which could harm the environment, and in particular:

—    without risk to water, air, soil and plants and animals,

—    without causing a nuisance through noise or odours,

—    without adversely affecting the countryside or places of special interest.

...‘

9.

    According to the first indent of Article 2(1) of Directive 91/156, the Member Stateswere to bring into force the laws, regulations and administrative provisionsnecessary to comply with that directive not later than 1 April 1993 and forthwithto inform the Commission thereof. The second indent provides: 'When MemberStates adopt these measures, the measures shall contain a reference to thisDirective or shall be accompanied by such reference on the occasion of theirofficial publication. The methods of making such a reference shall be laid down bythe Member States.‘

10.

    Article 1(3) of Council Directive 91/689/EEC of 12 December 1991 on hazardouswaste (OJ 1991 L 377, p. 20) refers, for the definition of waste, to Directive 75/442.Article 1(4) defines 'hazardous waste‘.

11.

    Article 3 of Directive 91/689 provides:

'1.    The derogation referred to in Article 11(1)(a) of Directive 75/442/EEC fromthe permit requirement for establishments or undertakings which carry out theirown waste disposal shall not apply to hazardous waste covered by this Directive.

2.    In accordance with Article 11(1)(b) of Directive 75/442/EEC, a MemberState may waive Article 10 of that Directive for establishments or undertakingswhich recover waste covered by this Directive:

—    if the Member State adopts general rules listing the type and quantity ofwaste and laying down specific conditions (limit values for the content ofhazardous substances in the waste, emission limit values, type of activity)and other necessary requirements for carrying out different forms ofrecovery, and

—    if the types or quantities of waste and methods of recovery are such that theconditions laid down in Article 4 of Directive 75/442/EEC are compliedwith.‘

12.

    Article 11 of Directive 91/689 repealed Council Directive 78/319/EEC of 20 March1978 on toxic and dangerous waste (OJ 1978 L 84, p. 43) with effect from 12December 1993. However, Article 1 of Council Directive 94/31/EC of 27 June 1994amending Directive 91/689 (OJ 1994 L 168, p. 28) deferred the repeal of Directive78/319 until 27 June 1995.

The relevant national provisions

13.

    The Decree of the Walloon Regional Council of 5 July 1985 on waste, as amendedby the Decree of 25 July 1991 ('the Decree‘), defines waste at Article 3(1) asfollows:

'waste: all substances or objects in the categories set out in Annex I which theholder discards or intends or is required to discard‘.

14.

    Article 5(1) of the Order provides:

'Authorization is required for the setting-up and running of an installation intendedspecifically for the collection, pre-treatment, disposal or recovery of toxic ordangerous waste which is not an integral part of an industrial production process...‘.

15.

    The preamble to the Order makes particular reference to the Decree, Directive75/442, as amended, and to Directives 78/319 and 91/689. Article 86 of the Orderstates that it is to come into force on the day of its publication in the MoniteurBelge. Publication took place on 23 June 1992.

Facts of the case in the main proceedings

16.

    By application lodged on 21 August 1992, Inter-Environnement Wallonie requestedthe Belgian Conseil d'État to annul the Order in its entirety or, in the alternative,certain of its provisions.

17.

    In its order for reference, the Conseil d'État has already ruled on five of the sixpleas raised by Inter-Environnement Wallonie and has annulled various provisionsin the Order.

18.

    In its remaining plea, Inter-Environnement Wallonie maintains that Article 5(1) ofthe Order infringes, in particular, Article 11 of Directive 75/442, as amended, andArticle 3 of Directive 91/689, inasmuch as it excludes from the permit system theoperations of setting up and running an installation intended specifically for thecollection, pre-treatment, disposal or recovery of toxic or dangerous waste, wherethat installation forms 'an integral part of an industrial production process‘.

19.

    In the first part of that plea, Inter-Environnement Wallonie claims that Article 11of Directive 75/442, as amended, in conjunction with Article 3 of Directive 91/689,allows exemptions from the permit requirement for undertakings carrying out wasterecovery only on the conditions laid down by those provisions and only where thoseundertakings are registered with the competent authorities.

20.

    On that point, the Conseil d'État considers that Article 5(1) of the Order is indeedcontrary to Article 11 of Directive 75/442, as amended, in conjunction with Article3 of Directive 91/689.

21.

    Finding that the Order was adopted at a time when the period allowed by thedirective for its transposition had not yet expired, the Conseil d'État questions towhat extent a Member State may, during that period, adopt a measure contrary tothe directive. It adds that a negative reply to that question, as proposed by Inter-Environnement Wallonie, would be incompatible with the rule that the validity ofa measure is to be assessed at the time of its adoption.

22.

    In the second part of its plea, Inter-Environnement Wallonie claims that theexception in Article 5(1) of the Order is contrary to the Decree which, it states,does not provide for any derogation for operations forming part of an industrialprocess.

23.

    On that point, the Conseil d'État finds that Article 3(1) of the Decree and theannex to which it refers are intended to be a faithful transposition of Directive75/442, as amended. While the case-law of the Court makes it clear that wastemeans any substances and objects which the holder discards or is required todiscard without intending thereby to exclude their economic reutilization by otherpersons, it does not make it possible to establish whether a substance or objectreferred to in Article 1 of Directive 75/442, as amended, which directly or indirectlyforms an integral part of an industrial production process is waste within themeaning of Article 1(a) of that directive.

24.

    In those circumstances, the Conseil d'État has referred the following questions tothe Court for a preliminary ruling:

'(1)    Do Articles 5 and 189 of the EEC Treaty preclude Member States fromadopting a provision contrary to Directive 75/442/EEC of 15 July 1975 onwaste, as amended by Directive 91/156/EEC of 18 March 1991, before theperiod for transposing the latter has expired?

    Do those same Treaty articles preclude Member States from adopting andbringing into force legislation which purports to transpose theabovementioned directive but whose provisions appear to be contrary to therequirements of that directive?

(2)    Is a substance referred to in Annex I to Council Directive 91/156/EEC of18 March 1991 amending Directive 75/442/EEC on waste and which directlyor indirectly forms an integral part of an industrial production process to beconsidered ”waste” within the meaning of Article 1(a) of that directive?‘

Question 2

25.

    By its second question, which it is appropriate to consider first, the national courtis in essence asking whether a substance is excluded from the definition of wastein Article 1(a) of Directive 75/442, as amended, merely because it directly orindirectly forms an integral part of an industrial production process.

26.

    First of all, it follows from the wording of Article 1(a) of Directive 75/442, asamended, that the scope of the term 'waste‘ turns on the meaning of the term'discard‘.

27.

    It is also clear from the provisions of Directive 75/442, as amended, in particularfrom Article 4, Articles 8 to 12 and Annexes IIA and IIB, that the term 'discard‘covers both disposal and recovery of a substance or object.

28.

    As the Advocate General has pointed out in paragraphs 58 to 61 of his Opinion,the list of categories of waste in Annex I to Directive 75/442, as amended, and thedisposal and recovery operations listed in Annexes IIA and IIB to that directivedemonstrate that the concept of waste does not in principle exclude any kind ofresidue, industrial by-product or other substance arising from production processes. This finding is further supported by the list of waste drawn up by the Commissionin Decision 94/3.

29.

    First, Directive 75/442, as amended, applies, as is apparent in particular fromArticles 9 to 11, not only to disposal and recovery of waste by specialistundertakings, but also to disposal and recovery of waste by the undertaking whichproduced them, at the place of production.

30.

    Second, while Article 4 of Directive 75/442, as amended, provides that waste is tobe recovered or disposed of without endangering human health or using processesor methods which could harm the environment, there is nothing in that directiveto indicate that it does not apply to disposal or recovery operations forming partof an industrial process where they do not appear to constitute a danger to humanhealth or the environment.

31.

    Finally, it should be borne in mind that the Court has already held that thedefinition of waste in Article 1 of Directive 75/442, as amended, is not to beunderstood as excluding substances and objects which were capable of economicreutilization (Case C-359/88 Zanetti and Others [1990] ECR I-1509, paragraphs 12and 13; C-422/92 Commission v Germany [1995] ECR I-1097, paragraphs 22 and

23, and Joined Cases C-304/94, C-330/94, C-342/94 and C-224/95 Tombesi andOthers [1997] ECR I-3561, paragraphs 47 and 48).

32.

    It follows from all those considerations that substances forming part of an industrialprocess may constitute waste within the meaning of Article 1(a) of Directive 75/442,as amended.

33.

    That conclusion does not undermine the distinction which must be drawn, as theBelgian, German, Netherlands and United Kingdom Governments have correctlysubmitted, between waste recovery within the meaning of Directive 75/442, asamended, and normal industrial treatment of products which are not waste, nomatter how difficult that distinction may be.

34.

    The answer to the second question must therefore be that a substance is notexcluded from the definition of waste in Article 1(a) of Council Directive 75/442,as amended, by the mere fact that it directly or indirectly forms an integral part ofan industrial production process.

Question 1

35.

    By its first question, the national court is in substance asking whether Articles 5 and189 of the EEC Treaty preclude the Member States from adopting measurescontrary to Directive 91/156 during the period prescribed for its transposition.

36.

    According to Inter-Environnement Wallonie, it follows from the primacy ofCommunity law and from Article 5 of the Treaty that, even where a Member Statedecides to transpose a Community directive before the end of the period prescribedtherein, such transposition must be consistent with the directive. Consequently,since it chose to transpose Directive 91/156 on 9 April 1992, the Région Wallonneshould have complied with that directive.

37.

    The Commission endorses that position and maintains that Articles 5 and 189 ofthe Treaty preclude Member States from adopting a provision contrary to Directive91/156 during the period prescribed for its transposition. It states that in thisrespect it is irrelevant whether or not a particular measure is specifically intendedto transpose the directive.

38.

    On the other hand, the Belgian, French and United Kingdom Governmentsconsider that until the period prescribed for transposition of a directive has expired,the Member States remain free to adopt national rules which are at variance withit. The United Kingdom Government adds, however, that it would be contrary toArticles 5 and 189 of the Treaty for a Member State to adopt measures whichwould have the effect of making it impossible or excessively difficult for that Stateto transpose the directive correctly into national law.

39.

    The Netherlands Government is of the opinion that the adoption of a directivemeans that the Member States are no longer free to undertake anything whichmight make it more difficult to achieve the result prescribed. None the less, itconsiders that a Member State cannot be regarded as being in breach of Articles5 and 189 of the Treaty where, as in the present case, it is not certain that thenational provisions are inconsistent with the directive concerned.

40.

    It should be recalled at the outset that the obligation of a Member State to takeall the measures necessary to achieve the result prescribed by a directive is abinding obligation imposed by the third paragraph of Article 189 of the Treaty andby the directive itself (Case 51/76 Verbond van Nederlandse Ondernemingen vInspecteur der Invoerrechten en Accijnzen [1977] ECR 113, paragraph 22; Case152/84 Marshall v Southampton and South-West Hampshire Area Health Authority[1986] ECR 723, paragraph 48, and Case 72/95 Kraaijeveld and Others vGedeputeerde Staten van Zuid-Holland [1996] ECR I-5403, paragraph 55). That dutyto take all appropriate measures, whether general or particular, is binding on allthe authorities of Member States including, for matters within their jurisdiction, thecourts (see Case C-106/89 Marleasing v Comercial Internacional de Alimentación[1990] ECR I-4135, paragraph 8, and Kraaijeveld, cited above, paragraph 55).

41.

    The next point to note is that, in accordance with the second paragraph of Article191 of the EEC Treaty, applicable at the material time, '[d]irectives and decisionsshall be notified to those to whom they are addressed and shall take effect uponsuch notification‘. It follows from that provision that a directive has legal effectwith respect to the Member State to which it is addressed from the moment of itsnotification.

42.

    Here, and in accordance with current practice, Directive 91/156 itself laid down aperiod by the end of which the laws, regulations and administrative provisionsnecessary for compliance are to have been brought into force.

43.

    Since the purpose of such a period is, in particular, to give Member States thenecessary time to adopt transposition measures, they cannot be faulted for nothaving transposed the directive into their internal legal order before expiry of thatperiod.

44.

    Nevertheless, it is during the transposition period that the Member States musttake the measures necessary to ensure that the result prescribed by the directiveis achieved at the end of that period.

45.

    Although the Member States are not obliged to adopt those measures before theend of the period prescribed for transposition, it follows from the second paragraphof Article 5 in conjunction with the third paragraph of Article 189 of the Treatyand from the directive itself that during that period they must refrain from takingany measures liable seriously to compromise the result prescribed.

46.

    It is for the national court to assess whether that is the case as regards the nationalprovisions whose legality it is called upon to consider.

47.

    In making that assessment, the national court must consider, in particular, whetherthe provisions in issue purport to constitute full transposition of the directive, aswell as the effects in practice of applying those incompatible provisions and of theirduration in time.

48.

    For example, if the provisions in issue are intended to constitute full and definitivetransposition of the directive, their incompatibility with the directive might give riseto the presumption that the result prescribed by the directive will not be achievedwithin the period prescribed if it is impossible to amend them in time.

49.

    Conversely, the national court could take into account the right of a Member Stateto adopt transitional measures or to implement the directive in stages. In suchcases, the incompatibility of the transitional national measures with the directive,or the non-transposition of certain of its provisions, would not necessarilycompromise the result prescribed.

50.

    The answer to the first question must therefore be that the second paragraph ofArticle 5 and the third paragraph of Article 189 of the EEC Treaty, and Directive91/156, require the Member States to which that directive is addressed to refrain,during the period laid down therein for its implementation, from adopting measuresliable seriously to compromise the result prescribed.

Costs

51.

    The costs incurred by the Belgian, German, French, Netherlands and UnitedKingdom Governments and by the Commission of the European Communities,which have submitted observations to the Court, are not recoverable. Since theseproceedings are, for the parties to the main proceedings, a step in the proceedingspending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT,

in answer to the questions referred to it by the Belgian Conseil d'État by judgmentof 29 March 1996, hereby rules:

1.    A substance is not excluded from the definition of waste in Article 1(a) ofCouncil Directive 75/442/EEC of 15 July 1975 on waste, as amended by

Council Directive 91/156/EEC of 18 March 1991, merely because it directlyor indirectly forms an integral part of an industrial production process.

2.    The second paragraph of Article 5 and the third paragraph of Article 189of the EEC Treaty, and Directive 91/156, require the Member States towhich that directive is addressed to refrain, during the period laid downtherein for its implementation, from adopting measures liable seriously tocompromise the result prescribed.

Rodríguez IglesiasGulmann Ragnemalm Schintgen Mancini Moitinho de Almeida Kapteyn Murray Edward Puissochet            Hirsch            Jann Sevón

Delivered in open court in Luxembourg on 18 December 1997.

R. Grass

G.C. Rodríguez Iglesias

Registrar

President

1: Language of the case: French.