Case Law: Euro Tombesi

4 Colum. J. Eur. L. 166 (1998)

Geert Van Calster. LL.M., Research Fellow, Institute of Environmental and Energy Law, Collegium Falconis, K. U. Leuven; Recognised Student, University of Oxford; SJ Berwin & Co., London/Brussels.

Joined Cases C-304/94, C-330/94, C-342/94, and C-224/95. Criminal Proceedings against Euro Tombesi et al. (Eur. Ct. J. June 25, 1997) (not yet reported).

Facts and Procedure

The ECJ was asked by an Italian Court to clarify the meaning of “waste” as it may be found in Directive 75/4421 and Regulation 259/93.2 This question arose in criminal proceedings against Italian entrepreneurs, who were prosecuted for failing to comply with the permit requirements of the Italian legislation which implements inter alia Directive 75/442 and Regulation 259/93.

Italy introduced arrangements for residues from production processes capable of re-use as substitute raw materials (“secondary raw materials”), which differed from those applicable to waste in general. The decree-laws draw a distinction between “waste” and “residues” and provide for simplified procedures for the collection, transport, treatment and re-use of residues as defined by decrees of the Minister of the Environment. For example, Decree-Law No. 246 applies by virtue of Article 1 thereof to “activities aimed at the re-use of residues derived from production or consumption cycles.” Article 2(1)(b) of the decree-law defines a “residue” as a “residual substance or material deriving from a production or consumption process and capable of re-use.”

These decree-laws exclude from their scope “materials quoted with specific commodity characteristics in commodity exchanges or official lists drawn up by the Chambers of Commerce, Industry, Craft and Agriculture . . . as set out in Annex 1 to the Decree of the Minister of the Environment of 5 September 1994.” Annex 1 to the latter decree lists the residues considered to be secondary raw materials.

The ECJ held that the Italian courts seek to ascertain whether the concept of “waste” referred to in the Community rules must be taken to exclude substances or objects capable of economic re-use. In fact, the Italian courts might have been looking for somewhat more guidance than they ultimately received.