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CJEU: Landfills authorised before the entering into force of a waste management plan may be granted new permits [EU]

A notice of the judgment of the Court of Justice of the European Union (CJEU) of 9 April 2014 (Case C-225/13) was published in the OJEU C 175 of 10 June 2014. The judgment concerns the interpretation of Directive 75/442/EEC of 15 July 1975 on waste and of Directive 1999/31/EC of 26 April 1999 on the landfill of waste. The CJEU mainly concludes in its judgment that landfills authorised before the entry into force of a waste management plan may continue to function and be granted new permits, under certain conditions, even if those landfills are not included in the plan’s list of sites. The dispute concerned the operation and conditioning permit of a landfill for non-hazardous household and industrial waste which has been in operation since 1958 at “Les trois burettes” in Mont Saint-Guibert (Belgium). On 20 May 2003, the Company Shanks SA applied for a permit in order to continue the activity and to carry out various conditioning operations at that landfill. The permit was issued on 18 December 2003 by the local authority of Mont-Saint-Guibert and confirmed by the Walloon Government by Ministerial Order of 10 May 2004 against which an action for annulment was brought.

The applicants mainly disputed the conformity of Article 70(2) of the Decree of the Region of Wallonia on waste of 27 June 1996, on the basis of which the concerned permit was granted, with Article 7 of Directive 75/442/EEC, “in that it permits the operation of landfills on sites not provided for in the waste management plan, which are not, therefore, sited on the basis of environmental criteria, to be authorised”. The applicants further questioned the conformity with Article 8(b) of Directive 1999/31/EC of 26 April 1999 on the landfill of waste, which requires that, “in order to be authorised, the landfill project must be in line with the waste management plan referred to in Article 7 of Directive 75/442”. Finally, the applicants also considered that Article 70(2) of the 1996 Decree is “such as seriously to compromise the objectives of Directive 2001/42, which requires an environmental assessment to be carried out for all plans and programmes drawn up in the area of waste management”.

It is on that basis that the ‘Conseil d’État’ of Belgium (the referring Court) decided to put the following questions to the CJEU for a preliminary ruling: 1. Should Article 7(1) of Directive 75/442/EEC be interpreted as permitting the classification as a waste management plan of a legislative provision that states that, in derogation from the rule that no landfills may be authorised except on the sites provided for in the waste management plan, landfills authorised before that plan entered into force may, after such entry into force, be granted new permits in respect of the plots covered by the authorisation pre-dating the entry into force of the plan? 2. Should a legislative provision establishing the abovementioned derogation be included within the meaning of plan and programme in accordance with Article 2(a) of Directive 2001/42/EC? 3. If the answer to the second question is in the affirmative, does Article 70(2) of the 1996 Decree on waste satisfy the requirements for the assessment of effects established by Directive 2001/42/EC? With regard to the first question, the CJEU recalls that the first subparagraph of Article 7(1) of Directive 75/442 requires the competent authorities of the Member States to draw up as soon as possible one or more waste management plans which relate in particular “to the type, quantity and origin of waste to be recovered or disposed of, general technical requirements, any special arrangements for particular wastes and suitable disposal sites or installations”. Therefore, the CJEU concludes that a national legislative provision which only provides for a derogation allowing to renew permits for operating landfills already authorised at the date of entry into force of the waste management plan, even if that landfill is not included in the plan, cannot be regarded as an organised and coherent system for achieving the objectives inherent in a ‘waste management plan’, within the meaning of Article 7(1) of Directive 75/442/EEC“. Furthermore, the CJEU considers necessary to examine whether Article 8 of Directive 1999/31/EC on the landfill of waste prohibits a national legislative provision such as that referred to above. It notes that “it is clear from Article 8(a) and (b) of Directive 1999/31 that a landfill permit can be issued only if the landfill project is in line with the relevant waste management plan or plans referred to in Article 7 of Directive 75/442/EEC”. However, according to Article 14 of Directive 1999/31/EC, landfills which have been granted a permit, or which are already in operation before the time limit for the transposition of the Directive (16 July 2001) are subject to a transitional derogating system. That transitional system provides that, “in order to be able to continue to operate, those landfills must, within eight years after 16 July 2001 (required transposition date), be brought into line with the new environmental requirements set out in Article 8 of Directive 1999/31, with the exception of those listed in Annex I, point 1, thereto. That exception concerns precisely the requirements as to the siting of the landfill”. Further condition of the application of the abovementioned transitional system is that a conditioning plan for the site is prepared and presented to the competent authorities for their approval (see article 14). Therefore, Article 14 of Directive 1999/31/EC allows landfills holding a permit, or which were already in operation at the time of transposition of Directive 1991/31/EC “to continue to operate and obtain new permits, even if they do not appear in the list of sites provided for in that waste management plan adopted pursuant to Article 7(1) of Directive 75/442 provided that the other conditions set out in Article 14 are met”, which remains for the referring court to determine. Consequently, the CJEU considers that Article 8 of Directive 1999/31/EC does not prohibit a national legislative provision such as the one referred to by the referring Court. Concerning questions 2 and 3 the CJEU considers that it is not necessary to give an answer to the second and third questions referred by the referring court, as Directive 2001/42/EC is not applicable to the current case, due to the fact that the time limit for its transposition had not expired when the permit issued on 18 December 2003 and the Ministerial Order of 10 May 2004 were adopted.

Sources :

  • Notice of the judgment of the Court (Second Chamber) of 9 April 2014, Case C-225/13, OJEU C 175 of 10 June 2014, p. 13
  • Judgment of the Court (Second Chamber) of 9 April 2014, Case C-225/13

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