Case C‑254/08, Futura Immobiliare srl Hotel Futura


This reference for a preliminary ruling concerned the interpretation of Art. 15(a) of the Waste Framework Directive (Directive 2006/12/EC) and, in particular, the “polluter pays” principle enshrined therein.

Futura Immobiliare and Others were hotel businesses in the municipality of Casoria (pictured). On that basis, they must pay waste tax. However, under Italian tax legislation, hoteliers were taxed more heavily than individuals occupying residential premises.

Since it considered this difference in treatment to be unlawful, Futura Immobiliare srl Hotel Futura brought an action for annulment of several measures concerning the adoption of the regulations for the application of the waste tax. They submitted, in particular, that the rate of the waste tax set for hotels was disproportionate to that laid down for residential property and, in reality, was based on their revenue-earning capacity rather than their waste-production capacity.

According to these hotel businesses, the tax did not take account of room occupancy rates or of whether or not there were restaurant services, which were liable to produce more waste, nor of the seasonal nature of the hotel trade and the impact of surface areas which were used for services and consequently not occupied.

An Italian national court asked whether Art. 15(a) of Directive 2006/12 must be interpreted as precluding national legislation which, for the purposes of financing an urban waste management and disposal service, provided for a tax or charge which was calculated on the basis of an estimate of the volume of waste generated by users of that service and not on the basis of the quantity of waste which they had actually produced and presented for collection.

The Court held that, in circumstances such as those in the main proceedings, where holders of waste had it handled by a collector, Art. 15(a) of Directive 2006/12 provided that, in accordance with the “polluter pays” principle, the cost of disposing of the waste must be borne by those holders.

The Court reiterated that while the Member States as the addressees of Directive 2006/12 were bound as to this result to be achieved in terms of financial liability for the cost of disposing of waste, in accordance with Art. 249 EC they might, however, choose the form and the methods to be applied in order to attain that result (see Case C-188/07, Commune de Mesquer [2008]).

The Court stressed that, as Community law currently stood, there was no legislation adopted on the basis of Art. 175 EC imposing a specific method upon the Member States for financing the cost of the disposal of urban waste, so that the cost might, in accordance with the choice of the Member State concerned, equally well be financed by means of a tax or of a charge or in any other manner.

The Court held that recourse to criteria founded, first, on the waste-production capacity of the “holders’, calculated on the basis of the surface area of the property which they occupy and of its used , and/or, second, on the nature of the waste produced could provide a means of calculating the costs of disposing of that waste and allocating them among the various “holders’, since those two parameters were such as to have a direct impact on the amount of the costs.

Therefore, national legislation which, for the purposes of financing the management and disposal of urban waste, provided for a tax or charge calculated on the basis of an estimate of the volume of waste generated and not on the basis of the quantity of waste actually produced and presented for collection could not, according to the Court, as Community law currently stood, be considered contrary to Art. 15(a) of Directive 2006/12.

The Court also held that the “polluter pays” principle did not preclude the Member States from varying, on the basis of categories of users determined in accordance with users’ respective capacities to produce urban waste, the contribution of each of those categories to the overall cost necessary to finance the system for the management and disposal of urban waste.

While the distinction drawn for fiscal purposes must not go beyond what was necessary in order to achieve that financing objective, according to the Court, as Community law currently stood, the competent national authorities had a broad discretion when determining the manner in which such a tax or charge was calculated.

The Court held that therefore, it was incumbent upon the national court to review, on the basis of the matters of fact and law placed before it, whether the waste tax at issue in the main proceedings resulted in the allocation to certain “holders’, in the case in point hotel establishments, of costs which were manifestly disproportionate to the volumes or nature of the waste that they were liable to produce.

Text of Judgment