Official Journal of the European Union

C 190/11

Action brought on 2 June 2006 — Commission of the European Communities v Federal Republic of Germany

(Case C-247/06)

(2006/C 190/19)

Language of the case: German


Applicant: Commission of the European Communities (represented by: U. Wölker and F. Simonetti, acting as Agents)

Defendant: Federal Republic of Germany

Form of order sought

Declaration that the Federal Republic of Germany has infringed Article 4(1) in conjunction with Annex I, point 9, of Council Directive 85/337/EEC (1) of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment by authorising the construction and operation of a wood gas firing plant on the premises of Nivelsteiner Sandwerke und Sandsteinbrüche GmbH in Herzogenrath without first carrying out an assessment of the effects on the environment;

Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

The subject-matter of the application is an authorisation given for a wood gas firing plant for obtaining process heat and electrical current for sand mining and sand reclamation. According to the application for authorisation, only such wood chips were to be used as did not constitute dangerous waste. However, after the report on environmental effects was drawn up in accordance with Directive 92/43/EEC, the application for authorisation was amended so as to include the use of wood chips that were classifiable as dangerous waste. The authorisation for the construction and operation of the plant was issued on 7 November 2002 without any new assessment of the environmental effects on the basis of the amended application. In this case, therefore, the possible environmental impact has not been sufficiently investigated, and the Commission has no information that the effects of burning dangerous waste have been investigated. The defendant should have carried out renewed full public participation after the change in the application for authorisation, but failed to do so.

The Commission takes the view that the Federal Republic of Germany has thereby infringed Article 4(1) in conjunction with Annex I, point 9, of Directive 85/37/EEC.

The Commission does not accept the defendant's argument that, under the current version of the directive, an environmental assessment is not compulsory even where dangerous waste is burned, on the ground that, in this case, the main purpose of the plant's operation is not waste disposal but the utilisation of waste. Even if Annex I of the current version does refer only to ‘disposal’, it would be irreconcilable with the essential purpose to exclude projects with obvious environmental effect from systematic examination. Waste utilisation procedures are not necessarily less environmentally threatening than disposal procedures; as is apparent in this case, it depends on the particular type of treatment. The Commission takes the view that the term 'waste-disposal' in point 9 of Annex I to the regulation covers both the utilisation and disposal of waste. The contrary legal interpretation of the defendant would lead to a decisive step backwards in relation to the present legal situation, as installations for the utilisation of waste fall entirely outside the scope of the directive.

(1)  OJ 1985 L 175, p. 40.