–

Prato Nevoso Termo Energy Srl, by A. Blasi and F. Munari, avvocati,

–

the Provincia di Cuneo, by A. Sciolla and A. Gammaidoni, avvocati,

–

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

–

the Netherlands Government, by M.K Bulterman and M.A.M de Ree, acting as Agents,

–

the European Commission, by G. Gattinara, F. Thiran and K. Talabér-Ritz, acting as Agents,

1

This request for a preliminary ruling concerns the interpretation of Article 6 of 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), Article 13 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 (OJ 2009 L 140, p. 16), as amended by Directive (EU) 2015/1513 of the European Parliament and of the Council of 9 September 2015 (OJ 2015 L 239, p. 1) (‘Directive 2009/28’), and the principles of proportionality, transparency and simplification.

2

The request has been made in proceedings between Prato Nevoso Termo Energy Srl (‘Prato Nevoso’) and the Provincia di Cuneo (Province of Cuneo, Italy) and the ARPA Piemonte, concerning the rejection of an application made by that company for authorisation to replace methane, as a power source for its thermal and electrical power plant, with a bioliquid obtained from the chemical treatment of used vegetable oils.

3

Recitals 8 and 29 of Directive 2008/98 state:

…

4

Under Article 1 of Directive 2008/98, entitled ‘Subject matter and scope’, that 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.

5

Article 3 of Directive 2008/98, headed ‘Definitions’, provides:

‘For the purposes of this Directive, the following definitions shall apply:

“waste” means any substance or object which the holder discards or intends or is required to discard;

…’

6

Article 4 of that directive, entitled ‘Waste hierarchy’, provides, in paragraph 1:

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

7

Under Article 6 of that directive, headed ‘End-of-waste status’:

‘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:

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. …’

8

Article 2 of Directive 2009/28, entitled ‘Definitions’, provides as follows:

‘…

The following definitions … apply:

…

…

9

Under the heading ‘Administrative procedures, regulations and codes’, Article 13 of Directive 2009/28 provides:

‘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:

…

…’

10

Article 184-ter of decreto legislativo No 152 — Norme in materia ambientale (Legislative Decree No 152 laying down environmental regulations), of 3 April 2006 (Ordinary Supplement to GURI No 88, of 14 April 2006), in the version applicable to the facts in the main proceedings (‘Legislative Decree No 152/2006’), entitled ‘End-of-waste status’, provides:

‘1.   Waste shall cease to be waste when it has undergone a recovery operation, including recycling and preparation for reuse, and it meets specific criteria to be adopted in accordance with the following conditions:

11

In accordance with Article 268 of that decree, entitled ‘Definitions’:

‘For the purposes of this title, the following definitions shall apply:

…

(eee-bis) fuel: any solid, liquid or gaseous substance, whose use for energy production by means of combustion is provided for by Annex X Part V, excluding waste;

…’

12

Article 293 of that decree, entitled ‘Authorised fuels’, provides, in paragraph 1:

‘The 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 within the meaning of Part IV of this decree shall be subject to the legislation on waste in force. …’

13

Annex X to Part V of Legislative Decree No 152/2006, entitled ‘Regulation of fuels’, is composed of two parts. Part II, entitled ‘Commercial characteristics of fuels and measurement methods’, is itself subdivided into four sections, the fourth of which deals with the characteristics of biomass fuels and their conditions of use, and specifies the following:

‘1. Type and origin

…

…’

14

In accordance with Article 281(5) 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, 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’.

15

Article 2(1)(h) of decreto legislativo No 28 — Attuazione della direttiva 2009/28/CE sulla promozione dell’uso dell’energia da fonti rinnovabili, recante modifica e successiva abrogazione delle direttive 2001/77/CE e 2003/30/CE (Legislative decree No 28, transposing 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), of 3 March 2011 (Ordinary Supplement to GURI No 71, of 28 March 2011, ‘Decree No 28/2011’), defines ‘bioliquids’ as ‘liquid fuels for energy purposes other than for transport, including electricity and heating and cooling, produced from biomass’.

16

Article 5(1) of Decree No 28/2011 provides as follows:

‘Without prejudice to the provisions of Articles 6 and 7, 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, as amended by the present article, in accordance with the procedure and conditions laid down in Legislative Decree No 387 of 2003, in the guidelines adopted pursuant to paragraph 10 of the same Article 12 and in the relevant provisions of the regions and autonomous provinces.’

17

Under Article 1(2)(A)(2) of Annex I of decreto n. 264 — Regolamento recante criteri indicativi per agevolare la dimostrazione della sussistenza dei requisiti per la qualifica dei residui di produzione come sottoprodotti e non come rifiuti (Decree No 264, laying down indicative criteria to make it easier to show that the requirements for production waste to be classed as by-products and not as waste have been satisfied), of 13 October 2016 (GURI No 38, of 15 February 2017):

‘On the basis of the regulations in force on the date of entry into force of this decree, only the products produced from the residual biomass referred to in Annex X of Part V of [Legislative Decree No 152/2006] and in Article 2a of Decree-law No 171 of 3 November 2008 may be used for energy production by means of combustion, without prejudice to any future provisions expressly regulating the use of products produced from residual biomass as fuel. Where the intended purpose is the production of energy by combustion, the materials referred to in Article 185 of [Legislative Decree No 152/2006] shall in any case be subject to the waste regime if they are not indicated in the provisions referred to in this paragraph.’

18

Prato Nevoso operates a power plant for the production of thermal energy and electricity.

19

On 8 November 2016, Prato Nevoso applied to the Province of Cuneo, on the basis of Article 5(1) of Decree No 28/2011, for authorisation to replace methane as the power source for its plant with a bioliquid, in this case a vegetable oil produced by ALSO Srl, derived from the collection and chemical treatment of used cooking oils, residues from the refining of vegetable oils and residues from the washing of the tanks in which those oils were stored.

20

ALSO has a permit to market that oil as an ‘end-of-waste’ product within the meaning of Article 184-ter of Legislative Decree No 152/2006, for use in connection with the production of biodiesel, 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’.

21

By a decision of 25 May 2017, Prato Nevoso was refused the requested authorisation on the ground that the vegetable oil was not included in the list in Part II, Section 4, of Annex X to Part V of Legislative Decree No 152/2006, which sets out the categories of biomass fuels that can be used in an installation producing atmospheric emissions without having to comply with the rules on the energy recovery of waste (‘the list of authorised fuels’). 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 legislative decree, the vegetable oil had to be regarded as waste.

22

Prato Nevoso brought an action against that decision before the referring court, arguing, in particular, that the abovementioned national provisions were contrary to Article 6 of Directive 2008/98 and Article 13 of Directive 2009/28.

23

The national court notes that the list of authorised fuels can be amended only by a ministerial decree, the adoption procedure of which is not coordinated with the administrative procedure for authorising the use of a substance derived from biomass as fuel and, therefore, cannot be contested in the latter procedure.

24

That court adds that Prato Nevoso’s application was rejected despite the fact that the vegetable oil at issue in the main proceedings complies with the UNI technical standard for liquid biofuels, that it has its own market as a fuel and that, as part of the authorisation procedure, Prato Nevoso submitted a technical report according to which the environmental impact of the substitution of methane by the vegetable oil at issue in the main proceedings was generally positive.

25

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

26

As a preliminary remark, it should be noted that it appears from the wording of the questions referred for a preliminary ruling that the referring court is asking the Court to interpret Article 6 of Directive 2008/98, Article 13 of Directive 2009/28 and, ‘in any event’, the principles of proportionality, transparency and simplification.

27

However, it follows from a reading of the reasons set out by the national court that it is in fact asking the Court of Justice whether national legislation such as that at issue in the main proceedings is compatible with Article 6(1) and (4) of Directive 2008/98 and Article 13(1) of Directive 2009/28.

28

Moreover, there is nothing in the order for reference that would allow that question to be examined independently of those provisions, in the light of only the principles mentioned in paragraph 26 above.

29

Thus, by its questions, which must be examined together, the national court asks, in essence, whether Article 6(1) and (4) of Directive 2008/98 and Article 13(1) of Directive 2009/28, read together, must be interpreted as precluding national legislation under which an application for authorisation to replace methane, as a power source for an electric power plant producing atmospheric emissions, with a substance derived from the chemical treatment of used vegetable oils, such as that at issue in the main proceedings, must be refused, on the ground that that substance is not included in the list of categories of biomass fuels authorised for that purpose and that that list may be amended only by an internal act of general application, the adoption procedure of which is not coordinated with the administrative procedure for authorising the use of a substance derived from biomass as fuel.

30

It should be borne in mind that 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.

31

The first subparagraph of Article 6(1) of Directive 2008/98 sets out the conditions to be met by the specific criteria which make it possible to determine which waste ceases to be waste within the meaning of Article 3(1) of that directive when it has undergone a recovery, including recycling, operation (judgment of 28 March 2019, Tallinna Vesi, C‑60/18, EU:C:2019:264, paragraph 19).

32

Under Article 6(2) of Directive 2008/98, the rules for the application of paragraph 1 of that article are to be made by the Commission for the purpose of the adoption of specific criteria for determining end-of-waste status (judgment of 28 March 2019, Tallinna Vesi, C‑60/18, EU:C:2019:264, paragraph 20). It is common ground that such rules have not been adopted at the European Union level as regards the used vegetable oils at issue in the main proceedings.

33

In such circumstances, Member States may, as is clear from the wording of Article 6(4) of Directive 2008/98, decide on a case-by-case basis whether certain waste has ceased to be waste, while being obliged, where Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services (OJ 1998 L 204, p. 37), as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998 (OJ 1998 L 217, p. 18), so requires, to notify the Commission of technical standards and rules adopted in that regard (judgment of 28 March 2019, Tallinna Vesi, C‑60/18, EU:C:2019:264, paragraph 21).

34

It must be noted that the measures adopted on the basis of Article 6(4) of Directive 2008/98 –– in the same way as the EU regulations adopted on the basis of paragraph 2 of that article –– result in the end-of-waste status of waste and, therefore, in the end of the protection that the law governing waste guarantees as regards the environment and human health. Those measures must therefore comply with the requirements laid down in paragraph 1(a) to (d) of Article 6 and, in particular, take account of any possible adverse impact that the substance or object concerned may have on the environment and on human health (judgment of 28 March 2019, Tallinna Vesi, C‑60/18, EU:C:2019:264, paragraph 23).

35

As the Court held in paragraphs 24 to 27 of the judgment of 28 March 2019, Tallinna Vesi (C‑60/18, EU:C:2019:264), a Member State may, where no harmonised criteria are laid down at EU level for determining end-of-waste status as regards a specific type of waste, consider that, although the fulfilment of the conditions laid down for the end of that waste status is not excluded from the outset, their fulfilment can only be ensured through the establishment of criteria in a generally applicable national legal act. In addition, a Member State may, taking into account all the relevant factors and the most recent scientific and technical knowledge, decide not to establish, as regards certain types of waste, either criteria or the possibility of an individual decision recognising end-of-waste status.

36

As the Advocate General pointed out in points 46 to 55 of his Opinion, Member States have a wide margin of discretion as regards, on the one hand, the establishment of appropriate procedural arrangements and, on the other hand, the substantive examination of compliance with the conditions for end-of-waste status, involving complex technical and scientific assessments by the competent national authorities.

37

Furthermore, it should be recalled that the conditions laid down in Article 6(1) of Directive 2008/98 –– which must be met by the specific criteria which make it possible to determine which waste ceases to be waste within the meaning of Article 3(1) of that directive when it has undergone a recovery, including recycling, operation –– cannot, in themselves, make it possible directly to establish that certain waste or certain categories of waste must no longer be regarded as such (judgment of 28 March 2019, Tallinna Vesi, C‑60/18, EU:C:2019:264, paragraph 29 and the case-law cited).

38

Consequently, it must be held that Article 6(4) of Directive 2008/98 does not, in principle, allow a waste holder to demand the recognition of end-of-waste status by the competent authority of the Member State or by a court of that Member State (see, to that effect, judgment of 28 March 2019, Tallinna Vesi, C‑60/18, EU:C:2019:264, paragraph 30).

39

It follows from the foregoing that EU law does not, in principle, preclude the possibility that the use of a substance derived from waste as a fuel in a plant producing atmospheric emissions must be subject to the national legislation on energy recovery from waste, on the ground that it does not fall within any of the categories included in the list of authorised fuels, while providing that that list may be amended only by a generally applicable national legal act, such as a ministerial decree.

40

This finding is not invalidated by Article 13(1) of Directive 2009/28, which requires Member States to ensure that the national rules concerning the authorisation, certification and licensing administrative procedures that are applied to plants such as that at issue in the main proceedings are proportionate, necessary, coordinated and defined, since, as noted by the Advocate General in paragraph 93 of his Opinion, that provision does not concern the regulatory procedures for the adoption of end-of-waste status criteria, referred to in Article 6(4) of Directive 2008/98.

41

In the present case, in view of the fact that the vegetable oils in question in the main proceedings are not included in the list of authorised fuels, the legislation at issue in the main proceedings has the effect that that substance must be regarded as waste and not as a fuel.

42

It must be ensured that the legislation at issue in the main proceedings does not amount to an obstacle to the attainment of the objectives set by Directive 2008/98, such as encouraging the application of the waste hierarchy laid down in Article 4 of that directive, or, as is stated in recitals 8 and 29, encouraging the recovery of waste and the use of recovered material in order to preserve natural resources and to enable the development of a circular economy (see, to that effect, judgment of 28 March 2019, Tallinna Vesi, C‑60/18, EU:C:2019:264, paragraph 27).

43

In that regard, as the Advocate General pointed out in paragraphs 57 and 61 of his Opinion, it must be verified that the situation at issue in the main proceedings is not the result of a manifest error of assessment in relation to the non-compliance with the conditions set out in Article 6(1) of Directive 2008/98. It is necessary, in this case, to examine whether the Member State could, without making such an error, consider that it has not been demonstrated that the use of the vegetable oil at issue in the main proceedings, in such circumstances, allows the conclusion that the conditions laid down in that provision are met and, in particular, that that use is devoid of any possible adverse impact on the environment and human health.

44

It is for the national court, which alone has jurisdiction to establish and assess the facts, to determine whether that is the case in the main proceedings and, in particular, to verify that the non-inclusion of those vegetable oils in the list of authorised fuels results from a justified application of the precautionary principle.

45

Nevertheless, in accordance with settled case-law, the Court may provide the national court with all indications which may assist it in resolving the dispute before it (judgment of 26 October 2017, BB construct, C‑534/16, EU:C:2017:820, paragraph 25 and the case-law cited).

46

Thus, it is necessary, in view of the considerations set out in paragraph 42 above, to ensure that the updating of the list of authorised fuels is carried out in such a way as not to compromise the aim of Directive 2008/98, namely, as can be seen from Article 1 thereof, the protection of the environment and human health by preventing or reducing the adverse impacts of the generation and management of waste and by improving the efficiency of waste management and resource use.

47

In the first place, it appears from the file before the Court that the authorisation granted to ALSO stipulates the technical, physico-chemical and energy performance characteristics that substances resulting from ALSO’s activities must have in order to lose the status of waste, while specifying that these characteristics are strictly linked to the production of biodiesel for which these substances are intended under that authorisation.

48

The Italian Government further argues that the fact that, in the national legal system, the bioliquid at issue in the main proceedings, obtained from the chemical treatment of waste vegetable oils, can be used as an element for the production of biodiesel and not as a fuel in biomass plants, is justified by the fact that, in the first case, there is no direct use of the bioliquid as a fuel, which, by contrast, is the case where that liquid is used in plants producing atmospheric emissions.

49

The Province of Cuneo and the Italian Government invoke, in that respect, the need to respect the precautionary principle. They maintain that an overall negative environmental and health impact of the use of the vegetable oil as a fuel in a co-generation plant cannot be precluded with a reasonable degree of scientific certainty.

50

As the Advocate General noted in paragraph 63 of his Opinion, the fact that the competent national authority finds that, provided that certain criteria are met, a given waste loses the status of waste for a certain use does not imply that it ceases to be waste when used for other purposes. Compliance with the conditions laid down in Article 6(1) and Article 13 of Directive 2008/98 may depend on the specific treatment and specific uses envisaged, which means that that compliance must be verified separately for each of those uses.

51

In the second place, it appears from the file before the Court that the competent national authorities acknowledged that the environmental impact of the fuel change was positive in that it was likely to lead to a reduction in emissions associated with methane combustion.

52

However, the fact that the use of the vegetable oil would entail a reduction in emissions associated with methane combustion is not capable of demonstrating that that oil can be used without endangering human health and without harming the environment.

53

The same is true of the fact that the vegetable oil complies with the UNI technical standard for liquid biofuels.

54

Those circumstances do not affect the potential environmental impact of the combustion of vegetable oils such as those at issue in the main proceedings, as regards possible emissions of other polluting substances caused by the incineration of waste.

55

It should therefore be established, in accordance with Article 6(1)(d) of Directive 2008/98, that the use of the substance outside the waste regime does not have a greater adverse environmental and health impact than its use under that regime.

56

The Italian Government also submits 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. The available scientific research does rule out that the combustion of used vegetable oils chemically treated and used as fuel in a plant generating atmospheric emissions may entail risks to the environment or human health. These risks are potentially higher than those associated with the use of such oils to produce biodiesel.

57

It must be considered that the existence of a certain degree of scientific uncertainty regarding the environmental risks associated with a substance — such as the oils at issue in the main proceedings — ceasing to have waste status, may lead a Member State, taking into account the precautionary principle, to decide not to include that substance on the list of authorised fuels.

58

It should be emphasised that, in accordance with the precautionary principle laid down in Article 191(2) TFEU, if, after examining the best available scientific information, there remains uncertainty as to whether the use, in specific circumstances, of a substance derived from the recovery of waste is devoid of any possible adverse impact on the environment and human health, the Member State must refrain from laying down criteria for determining end-of-waste status as regards that substance or making provision for an individual decision recognising that end-of-waste status.

59

In the light of the foregoing considerations, the answers to the questions referred by the referring court are that Article 6(1) and (4) of Directive 2008/98 and Article 13(1) of Directive 2009/28, read together, must be interpreted as not precluding national legislation under which an application for authorisation to replace methane, as a power source for an electric power plant producing atmospheric emissions, with a substance derived from the chemical treatment of used vegetable oils, must be refused, on the ground that that substance is not included in the list of categories of biomass fuels authorised for that purpose and that that list may be amended only by an internal act of general application, the adoption procedure of which is not coordinated with the administrative procedure for authorising the use of such a substance as fuel, if the Member State could consider, without making a manifest error of assessment, that it has not been demonstrated that the use of that vegetable oil, in such circumstances, satisfies the conditions laid down in Article 6(1) of Directive 2008/98 and, in particular, is devoid of any possible adverse impact on the environment and human health. It falls to the national court to determine if that is the situation in the case in the main proceedings.

60

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 (Second Chamber) hereby rules:

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 and 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, as amended by Directive (EU) 2015/1513 of the European Parliament and of the Council of 9 September 2015, read together, must be interpreted as not precluding national legislation under which an application for authorisation to replace methane, as a power source for an electric power plant producing atmospheric emissions, with a substance derived from the chemical treatment of used vegetable oils, must be refused, on the ground that that substance is not included in the list of categories of biomass fuels authorised for that purpose and that that list may be amended only by an internal act of general application, the adoption procedure of which is not coordinated with the administrative procedure for authorising the use of such a substance as fuel, if the Member State could consider, without making a manifest error of assessment, that it has not been demonstrated that the use of that vegetable oil, in such circumstances, satisfies the conditions laid down in Article 6(1) of Directive 2008/98 and, in particular, is devoid of any possible adverse impact on the environment and human health. It falls to the national court to ascertain whether that is the case in the main proceedings.