Competence of Environmental Minister to identify material to be considered no longer as waste but recyclable

Competence of the Ministry of the Environment to identify material to be considered no longer as waste but recyclable


Waste– Recyclable materials – Identification – Competence.

Correspond to the Ministry of the Environment and not to the Regional Authorities, to identify, in addition to the provisions of EU directives, the additional “types” of material that should no longer be considered waste, but recyclable material, on the basis of a case by case analysis.

The Decision concerned a company already authorized for an experimental activity for the treatment and recovery of waste consisting of diapers and sanitary towels for a period of two years, to which the Council of the Veneto Region rejected the request for qualify the activities carried out in its industrial plant, as recovery activity “R3”, because, for these materials, the Community legislation does not currently foresee it.

The court of first instance (Tar Veneto n. 1422 of 2016)  had accepted the appeal of the company and consequently annulled the refusal, considering that in the absence of express Community provisions, the administration could evaluate case by case.

The appeal judge, in sentence no. 1129 of 2018, without entering into the technical merit of the matter, has observed, in light of the art. 6 of the directive 19 November 2008 n. 2008/98 / CE concerning the “cessation of the status of waste” that:

  • a) the discipline of the cessation of the status of “waste” is reserved for community legislation;
  • b) the community legislation has foreseen that it is in any case possible for the Member States to evaluate other cases of possible termination;
  • c) this prerogative, however, belongs to the State and specifically to the Ministry of the Environment, which must provide its own regulations.

The judges of the Council of State recognize the power of assessment “on a case by case basis” only to the State, with national validity and on p. 7 of the sentence specify “…if every single region were allowed to define, in the absence of EU regulations, what is meant or not to be refused, the constitutional division of powers between the State and the Regions would be vulnerable”.

This judgment of the Council of State n. 1129 of 28.02.2018 could generate doubts on the validity of many Regional Authorizations for the recovery of waste: we hope for a clarification from the Ministry of the Environment.

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