The end of waste after Sblocca cantieri e Salva imprese Decrees

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By implementing the European legislation, Legislative Decree 152/2006 (so-called‘Environment Code’) enabled the Italian law to take a firm step towards a circular economy model, alsoregulating – through Article 184ter -the theme of end of waste.

In particular, paragraph I states that waste ceases to be waste when it has“undergone a recovery process, including recycling and preparation for reuse, in addition to it meeting specific criteria”. As affirmed in paragraph II, the criteria are adopted in accordance with the European legislation or, in its absence, “case-by-case for specific types of waste through the adoption of one ormore decrees by the Minister of Environment and Territory and Sea Protection”.Paragraph III contains the transitory legislation applicable pending the enactment of the end of wastecriteria, stating that, in the case of the non-adoption of ministerial criteria, the dispositions of the Ministerial Decrees dated the 5thof February 1998, 12th of June 2002 and 17th of November 2005 remain applicable.

Ten years later, the Ministry of Environment recognised the power of Regions and local authorities, in the absence of European or ministerial criteria, to define local criteria upon the issuance of authorisations and so, case-by-case, establishing excessive flexibility and thus uneven conditions within national territory.

Later, the Council of State Sentence No. 12229/18 ruled that “given the said evaluation cannot intervene if not in regards to whole territory of a Member State, the EU Directive doesnot recognise the power of case-by-case evaluation to entities or organisations within the State, but only to the State itself”. Furthermore, it underlined that “this is thus what the national legislator did accrediting said power to the Ministry of Environment. It therefore gave a case-by-case interpretation referring not to the single material to be examined and (possibly) declassified with a specific administrative act, but rather to the typology of material tobe examined and subject to more general regulatory provisions”. This iscoherent not only with the said Directive but also with Article 117 of the Italian Constitution, which attributes the protection of the environment and ecosystem to the State legislative and regulatory power.

The combination of both the said sentence as well as the lack of EU Directives and Ministerial Decrees pursuant to Article 184ter determined a paralysis of the activity of economic operators. Companies continued to detain waste (with all the connected obligations) even after a complete recovery of their scraps: theycomplained about the application of parameters not taking into account newprocesses and materials recently introduced on the market.

On the 13th of June, the so-called ‘Sblocca cantieri Decree’ (Law Decree 32/19) was converted into Law55/19, which also amended Article 184terparagraph 3, stating that, in the absence of European or ministerial end of waste criteria, the transitory legislation continues to be applicable to waste recovery-simplified procedures. It follows that, when issuing authorisations for waste treatment facilities, Regions canapply the criteria listed by the obsolete Ministerial Decrees enacted between 1998 and 2005, observing the national legislation and not being able to proceed to case-by-case authorisations.

However, since the economic operators were waiting for a legislation able to unblock the authorisation procedures for many years, the amendment introduced by the ‘Sblocca cantieri Decree’ was not only poorly received but was also subject to criticism by both businesses and academics.

On the 2nd of November, embracing the numerous requests bycompanies, the national legislator – through Law 128/19 of the conversion ofthe so-called ‘Salva imprese Decree’ (LawDecree 101/19) – amended the article introducing paragraphs 3bis-septies. The new provisions (i) allow Regions and Provinces (in the absence of the ‘green light’ from the Ministry) to authorise companies to recycle waste; (ii) outline a control system on the basis of which adopted, re-examined and renovated authorisations mustbe communicated by the competent authorities to the ISPRA, which also has thepower to carry out sample checks; and (iii)establish the national registry for the collection of released authorisations and concluded simplified procedures.

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