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Verdi Ambiente e Società (VAS) — Aps Onlus and Movimento Legge Rifiuti Zero per l’Economia Circolare Aps, by F. Pernazza and A. Ciervo, avvocati,

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Mamme per la Salute e l’Ambiente Onlus and the Comitato Donne 29 Agosto, by C. Auriemma, avvocatessa,

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the Italian Government, by G. Palmieri, acting as Agent, and by M. Santoro, avvocato dello Stato,

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the European Commission, by G. Gattinara, M. Noll-Ehlers and F. Thiran, acting as Agents,

1

This request for a preliminary ruling concerns the interpretation of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (OJ 2001 L 197, p. 30, ‘the SEA Directive’) and Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives (OJ 2008 L 312, p. 3) (‘the “Waste” Directive’).

2

The request has been made in the context of proceedings between, on the one hand, the environmental protection organisations Verdi Ambiente e Società (VAS) — Aps Onlus and Movimento Legge Rifiuti Zero per l’Economia Circolare Aps and, on the other hand, the Presidenza del Consiglio dei Ministri (Presidency of the Council of Ministers, Italy) and Others concerning an action seeking the annulment of the decreto del Presidente del Consiglio dei Ministri — Individuazione della capacità complessiva di trattamento degli impianti di incenerimento di rifiuti urbani e assimilabili in esercizio o autorizzati a livello nazionale, nonché individuazione del fabbisogno residuo da coprire mediante la realizzazione di impianti di incenerimento con recupero di rifiuti urbani e assimilati (Decree of the President of the Council of Ministers on the identification of the overall treatment capacity of facilities for the incineration of municipal and similar waste in service or authorised at national level, and also identification of the residual demand to be met by constructing incineration plants with recovery from municipal and similar waste) of 10 August 2016 (GURI No 233 of 5 October 2016) (‘the Decree of 10 August 2016’).

3

Recitals 4 and 15 to 18 of the SEA Directive state as follows:

…

4

Article 1 of that directive, entitled ‘Objectives’, provides:

‘The objective of this Directive is to provide for a high level of protection of the environment and to contribute to the integration of environmental considerations into the preparation and adoption of plans and programmes with a view to promoting sustainable development, by ensuring that, in accordance with this Directive, an environmental assessment is carried out of certain plans and programmes which are likely to have significant effects on the environment.’

5

Article 2 of that directive is worded as follows:

‘For the purposes of this Directive:

…’

6

Article 3 of the SEA Directive, entitled ‘Scope’, states:

‘1.   An environmental assessment, in accordance with Articles 4 to 9, shall be carried out for plans and programmes referred to in paragraphs 2 to 4 which are likely to have significant environmental effects.

2.   Subject to paragraph 3, an environmental assessment shall be carried out for all plans and programmes,

…’

7

Article 4(1) of the SEA Directive states:

‘The environmental assessment referred to in Article 3 shall be carried out during the preparation of a plan or programme and before its adoption or submission to the legislative procedure.’

8

Article 6 of that directive, entitled ‘Consultations’, provides, in paragraph 2 thereof:

‘The authorities … and the public … shall be given an early and effective opportunity within appropriate time frames to express their opinion on the draft plan or programme and the accompanying environmental report before the adoption of the plan or programme or its submission to the legislative procedure.’

9

Recitals 6, 8, 28, and 31 of the ‘Waste’ Directive state as follows:

…

…

…

10

Chapter I of that directive, entitled ‘Subject matter, scope and definitions’, includes Articles 1 to 7 thereof. Article 1 of the directive is worded as follows:

‘This Directive lays down measures to protect the environment and human health by preventing or reducing the adverse impacts of the generation and management of waste and by reducing overall impacts of resource use and improving the efficiency of such use.’

11

Article 4 of the ‘Waste’ Directive, entitled ‘Waste hierarchy’, provides:

‘1.   The following waste hierarchy shall apply as a priority order in waste prevention and management legislation and policy:

2.   When applying the waste hierarchy referred to in paragraph 1, Member States shall take measures to encourage the options that deliver the best overall environmental outcome. This may require specific waste streams departing from the hierarchy where this is justified by life-cycle thinking on the overall impacts of the generation and management of such waste.

Member States shall ensure that the development of waste legislation and policy is a fully transparent process, observing existing national rules about the consultation and involvement of citizens and stakeholders.

Member States shall take into account the general environmental protection principles of precaution and sustainability, technical feasibility and economic viability, protection of resources as well as the overall environmental, human health, economic and social impacts, in accordance with Articles 1 and 13.’

12

Chapter II of that directive, headed ‘General requirements’, includes inter alia Article 13 thereof, entitled ‘Protection of human health and the environment’ which provides:

‘Member States shall take the necessary measures to ensure that waste management is carried out without endangering human health, without harming the environment and, in particular:

13

Article 35(1) of the decreto-legge No 133 (Decree-law No 133) of 12 September 2014 (GURI No 212 of 12 September 2014), converted into law, with amendments, by Law No 164 of 11 November 2014 (GURI No 262 of 11 November 2014) (‘Decree-law No 133/2014) provides:

‘Within 90 days of the entry into force of the law converting this decree, the President of the Council of Ministers, on a proposal from the Minister for the Environment, the Protection of Natural Resources and the Sea, after hearing the standing committee on relations between the State, the regions and the Autonomous Provinces of Trento and Bolzano, shall, by decree, identify at national level the overall capacity for the treatment of municipal and similar waste by incineration facilities in service or authorised at national level, stating specifically the capacity of each facility, and incineration facilities that can recover energy from municipal and similar waste to be constructed to meet residual demand, determined for the purpose of gradually restoring the socio-economic balance between the various parts of the national territory, in compliance with the separate collection and recycling objectives and having due regard for regional planning. The facilities thus identified shall constitute strategic infrastructure and installations of major national importance, establish an integrated, modern system for the management of municipal and similar waste, ensure self-sufficiency, in the interests of national safety, and make it possible to deal effectively with and avert further infringement proceedings for failure to implement the rules of EU law governing the sector, and limit the amount of waste being deposited in landfill.’

14

The Decree of 10 August 2016 was adopted on the basis of that provision.

15

Article 1 of the Decree of 10 August 2016, entitled ‘Purpose’, is worded as follows:

‘1.   Pursuant to Article 35(1) of [Decree-Law No 133/2014], the purpose of this Decree is to:

16

Articles 3 to 5 of the Decree of 10 August 2016 contain tables identifying three categories of facilities, namely incineration facilities in service, with an indication of the authorised treatment capacity and the treatment capacity of municipal and similar waste (Table A), authorised incineration facilities not in service, with an indication of the potential treatment capacity and the location on a regional basis (Table B) and facilities to be constructed or upgraded in the light of regional programming (Table C). For each of those three categories, the respective tables also indicate the overall national waste treatment capacity of the waste incineration facilities in service in November 2015 (Table A), the potential national treatment capacity deriving from authorised facilities not in service on that date (Table B), as well as the regions in which the facilities necessary to meet national demand must be constructed or upgraded and the capacity of those facilities (Table C).

17

Article 6 of the Decree of 10 August 2016, entitled ‘Final provisions’, states:

‘1.   … the facilities identified in Tables A, B and C shall constitute strategic infrastructure and installations of major national importance and shall create an integrated, modern system for the management of municipal and similar waste, ensuring self-sufficiency, in the interests of national safety, in the integrated waste management cycle, as required by Article 16 of [the “Waste” Directive].

2.   In order to ensure national security and self-sufficiency and with due regard to the objectives of gradually restoring the socio-economic balance between the various parts of the national territory, … the reduced treatment capacity of municipal waste and similar waste of incineration facilities owing to the policies provided for in paragraph 6 shall be redistributed within the same macro-area in accordance with the general criteria and designation procedures set out in Annex III.’

18

The three annexes to the Decree of 10 August 2016 indicate the methods which enabled the identification of the three categories included in the three tables A, B and C. More specifically, Annex I contains the factors determining the current national treatment capacity of incineration facilities for municipal and similar waste in service, or authorised but not in service in November 2015. Annex II sets out the conditions under which the residual demand for incineration of municipal and similar waste has been determined, with a breakdown of the calculation for each region. Annex III further specifies the ‘general criteria’, laid down in Article 35(1) of Decree Law No 133/2014, used in order to determine the facilities to be constructed or upgraded in order to meet residual national demand for the incineration of municipal and similar waste.

19

It is apparent from the order for reference that the associations VAS and Movimento Legge Rifiuti Zero per l’Economia Circolare brought an action before the referring court, the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy), seeking annulment of the Decree of 10 August 2016, in the context of which they invoked five pleas in law.

20

Those pleas in law can, in essence, be divided in two groups. The first of those group combines the pleas alleging infringement of the ‘waste hierarchy’ principle, provided for in Articles 4 and 13 of the ‘Waste’ Directive, in that the Decree of 10 August 2016 classified incineration facilities as ‘strategic infrastructure and installations of major national importance’. According to the applicants in the main proceedings, the incineration of waste should only be used as a last resort, when it is no longer possible to rely on recovery or recycling techniques. The second group of pleas alleges infringement of the SEA Directive, in that the adoption of the Decree of 10 August 2016 was not preceded by an assessment of its impact on the environment.

21

The referring court observes that the defendants in the main proceedings merely provided, during the preparatory inquiries stage, documents and a report, without including any pleadings. It follows that, for the purpose of their defence, the defendants merely argued that national legislation complies with EU law.

22

That referring court considers, first, that it is necessary for the Court to interpret the ‘waste hierarchy’ principle, as laid down in the ‘Waste’ Directive. Second, it asks whether the national authority was entitled, without carrying out a prior environmental assessment, to increase the capacity of waste incineration facilities.

23

In those circumstances, the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

24

By its order of 3 July 2008, Associazione Verdi Ambiente e Società — Aps Onlus and Others (C‑305/18, not published, EU:C:2018:549), the President of the Court decided not to allow the referring court’s request that the present case be dealt with under the accelerated procedure in accordance with Article 23a of the Statute of the Court of Justice of the European Union and Article 105(1) of the Rules of Procedure of the Court.

25

By its first and second questions, which should be examined together, the referring court asks, in essence, whether the ‘waste hierarchy’ principle, as expressed in Article 4 of the ‘Waste’ Directive, read in the light of Article 13 thereof, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which classifies waste incineration facilities as ‘strategic infrastructure and installations of major national importance’.

26

The questions of the referring court appear to stem from the fact that a similar classification was not adopted in the Decree of 10 August 2016 in relation to facilities intended for the treatment of waste for the purpose of recycling and re-use, although Article 4 of the ‘Waste’ Directive requires Member States to apply, in their legislation and policy on waste prevention and management, a hierarchy of treatment operations.

27

It must be noted that Article 4(1) of the ‘Waste’ Directive provides that ‘the … waste hierarchy shall apply as a priority order in waste prevention and management legislation and policy: (a) prevention; (b) preparing for re-use; (c) recycling; (d) other recovery, e.g. energy recovery; and (e) disposal’.

28

That provision, which sets out the waste hierarchy as it should be applied in waste prevention and management legislation and policy, does not support the inference that priority must be accorded to a system which permits waste producers to dispose of that waste independently. Indeed, waste disposal is placed last in that order of precedence (see, to that effect, judgment of 18 December 2014, SETAR, C‑551/13, EU:C:2014:2467, paragraph 44).

29

It must be added that the waste hierarchy amounts to an objective, which leaves a margin of discretion to the Member States by not obliging them to opt for a specific prevention and management option.

30

Accordingly, under Article 4(2) of the ‘Waste’ Directive, when implementing the ‘waste hierarchy’ principle, Member States take measures to encourage the options that deliver the best overall environmental outcome. This may require specific waste streams departing from the hierarchy where this is justified by life-cycle thinking on the overall impacts of the generation and management of such waste.

31

Moreover, according to Article 13 of the ‘Waste’ Directive, Member States take the necessary measures to ensure that waste management is carried out without endangering human health and without harming the environment, in particular without risk to water, air, soil, plants or animals.

32

In that regard, the Court has already ruled that, whilst Article 13 does not specify the actual content of the measures which must be taken in order to ensure that waste is thus managed without endangering human health and without harming the environment, it is nonetheless true that that article is binding on the Member States as to the objective to be achieved, whilst leaving them a margin of discretion in assessing the need for such measures (judgment of 6 April 2017, Commission v Slovenia, C‑153/16, not published, EU:C:2017:275, paragraph 61 and the case-law cited).

33

In the present case, the fact that national legislation, such as that at issue in the main proceedings, classifies waste incineration facilities as ‘strategic infrastructure and installations of major national importance’ does not mean that the national legislature intended to disregard the instructions stemming from the ‘waste hierarchy’ principle, as provided for in the ‘Waste’ Directive.

34

First, as the applicants in the main proceedings agree, that national classification is only applicable in relation to those facilities.

35

The fact that national legislation classifies waste incineration facilities as ‘priority’ facilities does not mean that the related treatment operations enjoy the same status and, subsequently, that those operations are given any degree of priority over the other operations of waste prevention and management.

36

Second, as the Italian Government claims, such a classification seeks to streamline and ease the progress of the approval procedure in order to compensate for the lack of an adequate national waste management network, a situation which the Court has found to exist in the previous judgments of 26 April 2007, Commission v Italy (C‑135/05, EU:C:2007:250); of 14 June 2007, Commission v Italy (C‑82/06, not published, EU:C:2007:349); of 4 March 2010, Commission v Italy (C‑297/08, EU:C:2010:115); of 15 October 2014, Commission v Italy (C‑323/13, not published, EU:C:2014:2290); of 2 December 2014, Commission v Italy (C‑196/13, EU:C:2014:2407); and of 16 July 2015, Commission v Italy (C‑653/13, not published, EU:C:2015:478).

37

In that regard, as follows from Article 260(1) TFEU, if the Court of Justice of the European Union finds that a Member State has failed to fulfil an obligation under the Treaties, that State is required to take the necessary measures to comply with the judgment of the Court.

38

Finally, while it is for the Member States to choose the most appropriate means of complying with the ‘waste hierarchy’ principle, they must however comply with the other provisions of the ‘Waste’ Directive which lay down more specific obligations.

39

In the light of the foregoing considerations, the answer to the first and second questions is that the ‘waste hierarchy’ principle, as expressed in Article 4 of the ‘Waste’ Directive, read in the light of Article 13 thereof, must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which classifies waste incineration facilities as ‘strategic infrastructure and installations of major national importance’, as long as that legislation is compatible with the other provisions of that directive which lay down more specific obligations.

40

By its third question, the referring court asks, in essence, whether the SEA Directive must be interpreted as meaning that national legislation, such as that at issue in the main proceedings, comprising basic legislation and implementing legislation, which revises upwards the capacity of existing waste incineration facilities and which provides for the construction of new installations of that kind, comes under the notion of ‘plans and programmes’, within the meaning of that directive, likely to have significant environmental effects and which must, consequently, be subject to a prior environmental assessment.

41

In the present case, it follows from the order for reference that the objective of the national legislation at issue in the main proceedings is to increase the operational capacity of 40 waste incineration facilities out of the 42 existing facilities in operation in the territory of that Member State and to construct new installations of that kind. Such national legislation implements the strategic choices of a Member State relating to the recovery or disposal of waste, such as the calculation of residual national demand quantified at 1818000 tonnes per annum and its distribution between the macro-areas, the increase in the activity of existing facilities until their respective authorised capacity is exhausted and the regional location of the new facilities.

42

It must be established whether such legislation falls within the scope of application of the SEA Directive.

43

In that regard, Article 3 of the directive provides that an environmental assessment must be carried out for certain plans and programmes which are likely to have significant environmental effects.

44

Article 2(a) of the SEA Directive defines the ‘plans and programmes’ covered by that provision as being plans and programmes that satisfy two cumulative conditions, namely, first, the condition that they are subject to preparation and/or adoption by an authority at national, regional or local level or which are prepared by an authority for adoption, through a legislative procedure by Parliament or Government and, second, the condition that they are required by legislative, regulatory or administrative provisions.

45

The Court has interpreted that provision to mean that plans and programmes whose adoption is regulated by national legislative or regulatory provisions, which determine the competent authorities for adopting them and the procedure for preparing them, must be regarded as ‘required’ within the meaning, and for the application, of the SEA Directive and, accordingly, be subject to an assessment of their environmental effects in the circumstances which it lays down (judgment of 7 June 2018, Inter-Environnement Bruxelles and Others, C‑671/16, EU:C:2018:403, paragraph 37 and the case-law cited).

46

In the present case, it is apparent from the order for reference that the Decree of 10 August 2016 satisfies those two conditions, since it was adopted by the President of the Council, on the basis of Article 35 of Decree-Law No 133/2014.

47

It must be added that, pursuant to Article 3(2)(a) of the SEA Directive, a systematic environmental assessment must be carried out for all plans and programmes which are prepared for certain sectors and which set the framework for future development consent of projects listed in Annexes I and II to Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1, ‘the EIA Directive’).

48

In that regard, in the first place, waste management features among the sectors covered by that provision and, accordingly, the first of those criteria is met.

49

In the second place, facilities for the disposal of waste through incineration and changes or extensions to those facilities are covered in points 9, 10 and 24 of Annex I to the EIA Directive, as well as, where they do not fall within the aforementioned categories, point 11(b) of Annex II to the EIA Directive.

50

As to whether national legislation, such as that at issue in the main proceedings, sets the framework for future development consent of projects, it must be noted that, according to settled case-law, the notion of ‘plans and programmes’ relates to any measure which establishes, by defining rules and procedures for scrutiny applicable to the sector concerned, a significant body of criteria and detailed rules for the grant and implementation of one or more projects likely to have significant effects on the environment (judgments of 27 October 2016, D’Oultremont and Others, C‑290/15, EU:C:2016:816, paragraph 49; of 7 June 2018, Inter-Environnement Bruxelles and Others, C‑671/16, EU:C:2018:403, paragraph 53; and of 7 June 2018, Thybaut and Others, C‑160/17, EU:C:2018:401, paragraph 54).

51

In that regard, the words ‘a significant body of criteria and detailed rules’ must be understood qualitatively. It is necessary to avoid strategies which may be designed to circumvent the obligations laid down in the SEA Directive by splitting measures, thereby reducing the practical effect of that directive (judgments of 7 June 2018, Inter-Environnement Bruxelles and Others, C‑671/16, EU:C:2018:403, paragraph 55, and of 7 June 2018, Thybaut and Others, C‑160/17, EU:C:2018:401, paragraph 55).

52

Such an interpretation of the notion of ‘plans and programmes’, which not only includes their preparation but also their modification, is intended to ensure that provisions which are likely to have significant environmental effects are subject to an environmental assessment (see, to that effect, judgment of 7 June 2018, Inter-Environnement Bruxelles and Others, C‑671/16, EU:C:2018:403, paragraphs 54 and 58).

53

It is for the referring court, in the light of the case-law cited in paragraphs 50 to 52 of the present judgment, to ascertain whether national legislation such as that at issue in the main proceedings sets the framework for future development consent of projects.

54

Assuming that to be the case, it must be noted that that legislation, the purpose of which is set out in paragraph 41 of the present judgment, is likely to have significant environmental effects, which it is for the referring court to ascertain.

55

Moreover, as suggested by that court, the increase in operational capacity of waste incineration facilities casts doubt on the adequacy of the assessments which had been carried out previously in order to authorise the entry into service of existing incineration facilities.

56

In addition, the fact that an environmental assessment for the purposes of the SEA Directive will be carried out subsequently, when planning at regional level is undertaken, has no bearing on the applicability of the provisions relating to such an assessment. An assessment of the effects on the environment carried out under the EIA Directive cannot lead to an exemption from the obligation to carry out the environmental assessment required by the SEA Directive for the purposes of addressing the environmental aspects particular to the SEA Directive. An environmental impact assessment report completed under the EIA Directive cannot be used to circumvent the obligation to carry out the environmental assessment required under the SEA Directive in order to address environmental aspects specific to that directive (judgment of 7 June 2018, Thybaut and Others, C‑160/17, EU:C:2018:401, paragraph 64).

57

Furthermore, and in any event, the objection raised by the Italian Government that the second condition set out in Article 3(2)(a) of the SEA Directive is not satisfied since the national legislation at issue in the main proceedings does not constitute a framework of reference must be rejected. The fact that national legislation expresses some abstract ideas, and pursues an objective of transforming the existing framework is illustrative of its planning and programming aspect and does not prevent it from being included in the notion of ‘plans and programmes’ (see, to that effect, judgment of 7 June 2018, Inter-Environnement Bruxelles and Others, C‑671/16, EU:C:2018:403, paragraph 60 and the case-law cited).

58

Such an interpretation is supported, first, by the requirements stemming from Article 6 of the SEA Directive, read in the light of recitals 15 to 18 thereof, to the extent that that directive not only aims to contribute to environmental protection, but also to enable the public to take part in the decision-making process. Second, as is apparent from Article 4(1) of that directive, ‘the environmental assessment … shall be carried out during the preparation of a plan or programme and before its adoption or submission to the legislative procedure’. Similarly, it is apparent from Article 6(2) of that directive that the environmental assessment is supposed to be carried out as soon as possible so that its conclusions may still have an influence on any potential decision-making. Indeed, it is at that stage that the various options may be analysed and strategic choices may be made (see, to that effect, judgments of 20 October 2011, Seaport (NI) and Others, C‑474/10, EU:C:2011:681, paragraph 45, and of 7 June 2018, Inter-Environnement Bruxelles and Others, C‑671/16, EU:C:2018:403, paragraph 63).

59

In the light of those elements, the existence and extent of which are for the referring court to assess having regard to the legislation concerned, it must be found that national legislation increasing the capacity of existing waste incineration facilities and creating new installations of that kind, such as that at issue in the main proceedings, may come under the notion of ‘plans and programmes’, within the meaning of Article 3(1) and (2) of the SEA Directive, which must be subject to an environmental assessment.

60

It follows that the answer to the third question is that Article 2(a), Article 3(1), and Article 3(2)(a) of the SEA Directive must be interpreted as meaning that national legislation, such as that at issue in the main proceedings, comprising basic legislation and implementing legislation, which revises upwards the capacity of existing waste incineration facilities and which provides for the construction of new installations of that kind, comes under the notion of ‘plans and programmes’, within the meaning of that directive, where it is likely to have significant environmental effects and must, consequently, be subject to a prior environmental assessment.

61

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Sixth Chamber) hereby rules: