Case C‑172/08, Pontina Ambiente Srl v Regione Lazio

Pontina Ambiente, whose registered office was in Rome, collected and disposed of waste. In particular, it received, in a landfill intended for that purpose, solid waste from various municipal authorities in Regione Lazio, it stocks that waste and processes it in order to produce derivatives and compost and also to reduce its volume.

Pursuant to Law No 549/95 and the regional Implementing law, Pontina Ambiente was liable to pay quarterly, to Regione Lazio, a special levy on the disposal of solid waste in landfills, which must be paid not later than the month following the end of the quarter of the calendar year during which the waste was deposited. Pontina Ambiente was obliged to seek reimbursement from the municipal authorities sending waste to landfill.

That company paid, late, the levy for the third and fourth quarters of 2004, which caused the competent authorities of Regione Lazio to issue two tax assessments to it in October 2006 and, at the same time, impose on it the financial penalties laid down in Art. 3(31) of Law No 549/95.

On 4 January 2007, Pontina Ambiente brought an action before the Commissione tributaria provinciale di Roma for annulment of the measures adopted by Regione Lazio.

The company raised, in particular, the incompatibility with European Union law of certain rules for application of the levy at issue in regard to the determination of the person liable for the levy and the system of penalties for late payment, more precisely, with Arts 12 EC, 14 EC, 43 EC, 46 EC, Art. 10 of Directive 1999/31 and the relevant provisions of Directive 2000/35.

The Court of Justice first of all held that Article 10 of Directive 1999/31 required the Member States to take measures to ensure that the price charged for waste disposal in a landfill covered all the costs involved in the setting up and operation of the facility.

That requirement was an expression of the “polluter pays” principle, which implied, as the Court had already held in regard to Directive 75/442 and Directive 2006/12 of the European Parliament and of the Council of 5 April 2006 on waste (OJ 2006 L 114, p. 9), that the cost of disposing of the waste must be borne by the waste holders (Case C1/03 Van de Walle and Others [2004]; and Case C188/07 Commune de Mesquer [2008] (on which I wrote this post) and Case C254/08, Futura Immobiliare srl Hotel Futura (on which I wrote this post)).

It formed part of the objective of Directive 1999/31 which, according to Art. 1(1) thereof, was to meet the requirements of Directive 75/442, and in particular Art. 3 thereof, which inter alia required the Member States to take appropriate measures to encourage the prevention or reduction of waste production.

The consequence, in particular, was that whatever the national rules might be governing landfill sites, they must ensured that that all the operating costs of such a site was actually borne by the holders of the waste deposited in the landfill for disposal.

The Court therefore concluded that Article 10 of Directive 1999/31 must be interpreted as meaning that it did not preclude a national provision, such as that at issue in the main proceedings, which made the operator of a landfill site subject to a levy to be reimbursed by the local authority depositing the waste and which provided for financial penalties to be imposed on that operator for late payment of the levy, on condition that those rules were accompanied by measures to ensured that the levy was actually reimbursed within a short time and that all the costs of recovery, and in particular, the costs resulting from late payment of amounted which that authority owes to the site operator on that account, including costs incurred in order to avoid any financial penalty which might be imposed on the site operator, were passed on in the price to be paid by the authority to that operator. It was for the national court to ascertain whether those conditions had been satisfied.