Background
The applicant operates a hazardous and non-hazardous liquid waste treatment plant at Falconara Marittima, Italy, under an integrated environmental permit allowing storage of up to 800 tonnes of hazardous waste and treatment of up to 200 tonnes per day. In February 2020, Italy’s competent technical committee determined the facility fell within the scope of Legislative Decree No 105/2015 (implementing Directive 2012/18/EU on major-accident hazards) and issued formal notice requiring submission of a notification and safety report.
The applicant challenged this determination, arguing that EU law should permit operators to prove, through continuous monitoring and operational procedures, that the presence of dangerous substances never reaches the regulatory thresholds established in the permit. The applicant contended that Italian law’s inflexible approach—which relies on maximum quantities specified in the operating permit rather than actual quantities present—was incompatible with Directive 2012/18/EU. The case reached Italy’s Council of State (Consiglio di Stato), which referred questions to the CJEU regarding the interpretation of “presence of dangerous substances” in Article 3(12) of the directive.
The Court’s Holding
The Court held that Article 3(12) of Directive 2012/18/EU defines “presence of dangerous substances” to encompass three distinct scenarios: (1) actual presence of substances in the establishment, (2) anticipated presence, and (3) substances reasonably foreseeable to be generated during loss of control of processes. The Court rejected a narrow reading that would allow operators to escape regulatory obligations simply by demonstrating low actual quantities on any given day.
The Court emphasized that actual absence of dangerous substances at any particular moment is insufficient to exclude an establishment from the directive’s scope. Instead, Member States must assess “anticipated or reasonably foreseeable presence” in accordance with Note 3 to Annex I, which requires consideration of the maximum quantities “which are present or are likely to be present” within an establishment at any one time. This encompasses both what is currently stored and what the facility is designed or permitted to handle.
The Court determined that the literal text of Article 3(12), read in context with the directive’s precautionary objectives and protective purposes, mandates a forward-looking assessment based on operational capacity and design, not merely instantaneous physical presence. An operator cannot use continuous monitoring as a basis to reclassify its facility downward if that facility is capable of storing or processing quantities that would trigger regulatory obligations.
Key Takeaways
- Regulatory classification under Directive 2012/18/EU depends on capacity and foreseeable presence, not snapshot inventory at any given moment.
- Member States may rely on maximum quantities specified in operating permits as the relevant measure of “presence,” rather than requiring operators to prove actual quantities via monitoring systems.
- Facilities cannot evade regulatory obligations (notifications, safety reports, emergency planning) by implementing continuous monitoring alone if their permits authorize handling dangerous substances above threshold quantities.
- The directive’s precautionary and protective purpose supports a broad interpretation of “presence” that accounts for what an establishment is capable of handling.
Why It Matters
This decision clarifies the boundary between regulatory scope and operational flexibility in the control of major-accident hazards across the EU. Operators of waste treatment plants, chemical storage facilities, and similar installations cannot use sophisticated monitoring systems to argue their way out of safety obligations if their facility’s authorized capacity or foreseeable operations would trigger the directive’s thresholds. The ruling reinforces that the directive applies a risk-based rather than snapshot-based test of dangerous substance presence.
For competent authorities, the decision validates administrative determination of regulatory status based on permit authorizations and operational capacity, even when actual daily inventories remain below thresholds. For operators, the decision signals that compliance depends on what they are permitted or reasonably likely to handle, not only what they choose to keep on hand at any single moment, making facility redesign or operational restructuring the primary path to reclassification.