The definition of waste under Italian law

The definition of “waste” in Italy was, until recent developments, set out in the legislative decree, “Decreto Ronchi”, n.22, dated 5th of February 1997, which implements the Framework Directive on waste (75/442/EEC, amended by Directive 91/156/EEC). Under Article 6, paragraph 1 of legislative decree n.22, “waste” is defined as: “any substance or object which falls within a category under Annex A and which the holder discards, or decides to discard or has the duty to discard”. Annex A sets out the list of substances or objects considered to be “waste” in the Framework Directive on Waste.

However, the definition of “waste” in Italy has recently undergone some significant developments and changes under law decree n.138, dated 8th of July 2002, later converted into law n.178, dated 8th of August 2002. The purpose of this law (as set out under Article 14) is to give a so-called “authentic interpretation of the definition of waste as referred to under article 6, paragraph 1(a) of the legislative decree 5th of February 1997, n.22” and to set some binding rules of interpretation for the expressions “discard”, “has decided” and “has the duty to discard” which legislative decree n. 22 contains.

According to article 14 of law 178/02 the correct interpretation of those expressions is:

“1 ) a) “discard”: any behaviour through which, directly or indirectly a substance, material or goods are sent to or subjected to a disposal or recovery operation according to Annexes B and C of the legislative decree n.22;
b) “has decided”: the intention to consign substances, materials or goods to a disposal or recovery operation, according to Annexes B and C of the legislative decree n.22;
c) ”has the duty to discard”: the duty to get rid of a material, substance or goods under a requirement of the public authorities or as a result of the nature of the material, substance or goods, or by virtue of the fact that they are included in the listing of hazardous wastes under Annex D of the legislative decree n.22.

2) The cases described under letters b) and c) do not apply to goods, substances and materials that are production or consumption residues where one of the following conditions exists: if they can be, or are, effectively and objectively re-used in the same or in a similar or different production or consumption cycle, without undergoing any preventative treatment and without causing any harm to the environment; if they can be, or are, effectively and objectively reused in the same or in a similar or different production or consumption cycle, after undergoing a preventative treatment without the need for recovery operations such as those indicated in Annex C of the legislative decree n.22.”

Article 14 has caused some confusion, as it seems to contrast with the definition of waste under the Framework Directive on Waste and with the European Court of Justice’s decisions, in particular, in 25/06/1997, C-304/94 (Tombesi) and of 28/03/1990 C-359/88 (Zanetti).

In fact, on the basis of this new interpretation, all materials that are directly re-used in a production cycle, irrespective of their hazardous nature, may be excluded from the “waste” cycle. The only points of contention that might arise are whether the material is directly useable or whether it is subject to a process that does not constitute recycling in the strict sense. Since the beginning, environmental groups (Legambiente, WWF, Greenpeace, Italia Nostra) have protested to the authorities that Article 14 will legitimise the so-called eco-mafia, leading to an increase of illicit traffic and disposal of wastes.

It is therefore not surprising that the European Commission has sent a Communication (C(2002)3868) to the Italian Ministry of Foreign Affairs threatening Infraction Proceedings against Italy in relation to Article 14 of legislative decree 138/2002, on the basis that Italy has failed to meet its obligations under the Framework Directive on Waste. The Commission has pointed out that Article 14 appears to exclude from the provisions on waste disposal those substances and objects that the holder intends, or has the duty, to discard but which consist of residual materials originating from production or consumption that can or could be re-used in the same or similar cycles of production consumption, after undergoing “preventative treatment”, without any further requirement for any recovery operation as set out in Annex C of legislative decree 22/97.

According to the Commission, the exclusion and the resulting non-applicability of the provisions on waste disposal required under the Framework Directive on Waste infringe the Directive. Member States are required to implement directives into national law and the Framework Directive on Waste does not grant Member States any derogation allowing them to exclude residual materials from production or consumption from regulation under the implementing legislation. With reference to paragraph 1 of Article 14, the Commission has pointed out that the nature of “waste” cannot be determined by whether the substance is intended for a certain disposal or recycling operation or not, as this definition implies a restriction of the definition of “waste” that is not permitted under the Framework Directive on Waste.

The Commission also said that paragraph 2 of Article 14 constitutes an explicit restriction, not so much to the definition of waste itself, but to its scope, through the use of further and undefined criteria such as “preventative treatment” and “harm to the environment”. According to the interpretation by the European Court of Justice through its case law, neither the future destination of an object or substance, nor its environmental impact affect the identity of any material as waste. The definition of waste under the Framework Directive on Waste turns on the fact that the holder discards, has decided to or has the duty to discard the object or substance.

Based on Article 14 various substances or objects would not be considered waste and would not fall within the transposition provisions of the Framework Directive on Waste. Such materials would include: ferrous and non ferrous metals from scrapped vehicles; iron, steel, mixed metals from construction and demolition operations; ferrous metals produced through the processing of waste; paper and cardboard packaging; paper and cardboard sorted from urban refuse; glass, plastics, various types of industrial waste; and fuel from waste re-used in production processes.

In one case the regulatory authorities in Italy have already chosen not to apply the provisions of Article 14. On 18th July 2002 the Public Prosecutor of Udine ordered seizure of ferrous material destined for steelworks (considered until Article 14, as sites for waste recovery). This order was confirmed by the Judge of preliminary investigation on 14th October 2002. In view of the European Commission’s investigation and doubts on the legality of the new law, on 20th November 2002 the Criminal Court of Terni stayed the proceedings to issue a reference to the European Court of Justice requesting it to make a preliminary ruling in order to establish how the definition of “waste” in the Framework Directive on Waste should be interpreted in Italian law: on the basis of the existing judgements of the European Court of Justice or on the basis of Article 14.

In particular the European Court of Justice has been asked if:

• it is possible that the concept of waste can be interpreted exclusively using the phrases “discard”, “has decided” or “has the duty to discard” as defined in Article 14; and
• it is possible that production or consumption residues do not fall into the definition of waste when the following conditions occur: - if they can be or are effectively and objectively re-used in the same or in a similar or different production or consumption cycle, without having to undergo and any preventative treatment and without causing harm to the environment; - if they can be or are effectively and objectively re-used in the same or in a similar or different production or consumption cycle, after having undergone preventative treatment without the need for a recovery operation listed under Annex C of Law Decree n. 22/97 (annex II B of directive 91/156/CEE).

It has to be said that, from a practical point of view, the new law has only complicated the situation, and introduced considerable uncertainty, not so much within the regulatory and judicial authorities as in businesses. As businesses rely on a superficial reading of the new law and do not have the knowledge of the European Union’s judicial instruments they may overlook the authorisation requests and registrations, the keeping of registers and forms, therefore exposing themselves to administrative sanctions and criminal punishment.

Italian businesses and their consultants, environmental associations as well as Italian Courts are now therefore awaiting eagerly the European Court of Justice’s interpretation.

For further information please contact Paul Sheridan at [email protected] or on +44 (0)20 7367 2186 .