CELEX: 62001CJ0116
Environment
Waste
Regulation (EEC) No 259/93
Directive 75/442/EEC
Treatment of waste in several stages
Use of waste as fuel in the cement industry and use of incineration residues as raw material in cement manufacture
Classification as a recovery operation or as a disposal operation
Concept of the use of waste principally as a fuel or other means to generate energy

By judgment of 13 March 2001, received at the Court on 15 March 2001, the Raad van State (Netherlands Council of State) referred
to the Court for a preliminary ruling under Article 234 EC four questions on the interpretation of Council Directive 75/442/EEC
of 15 July 1975 on waste (OJ 1975 L 194, p. 39), as amended by Council Directive 91/156/EEC of 18 March 1991 (OJ 1991 L 78,
p. 32) and Commission Decision 96/350/EC of 24 May 1996 (OJ 1996 L 135, p. 32), hereinafter
the Directive.
Those questions were raised in the context of a dispute between SITA EcoService Nederland BV (
SITA) and the Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer (Minister for Housing, Spatial Planning and
the Environment, hereinafter
the Minister) concerning the lawfulness of two decisions by which the latter subjected waste shipments which had been notified by SITA
to certain conditions.
Legal framework
Community legislation
The Directive
The essential objective of the Directive is the protection of human health and the environment against harmful effects caused
by the collection, transport, treatment, storage and tipping of waste. In particular, the fourth recital of the Directive
states that the recovery of waste and the use of recovered materials should be encouraged in order to conserve natural resources.
In Article 1(e) of the Directive,
disposal is defined as
any of the operations provided for in Annex IIA, and in Article 1(f)
recovery is defined as
any of the operations provided for in Annex IIB.
Annex IIA of the Directive, headed
Disposal operations, states:
NB:
This annex is intended to list disposal operations such as they occur in practice.......
D10
Incineration on land
...
Annex IIB, headed
Recovery operations, states:
NB:
This annex is intended to list recovery operations as they occur in practice....
R1
Use principally as a fuel or other means to generate energy
...
R3
Recycling/reclamation of organic substances which are not used as solvents (including composting and other biological transformation
processes)
...
R5
Recycling/reclamation of other inorganic materials
...
R11
Use of wastes obtained from any of the operations numbered R1 to R10
...
Article 3(1) of the Directive states: Member States shall take appropriate measures to encourage:
(a)
firstly, the prevention or reduction of waste production and its harmfulness ...
(b)
secondly:
(i)
the recovery of waste by means of recycling, re-use or reclamation or any other process with a view to extracting secondary
raw materials, or
(ii)
the use of waste as a source of energy.
Article 7 of the Directive provides:
1.
In order to attain the objectives referred to in Articles 3, 4 and 5, the competent authority or authorities referred to in
Article 6 shall be required to draw up as soon as possible one or more waste management plans. Such plans shall relate in
particular to:
─
the type, quantity and origin of waste to be recovered or disposed of,
─
general technical requirements,
─
any special arrangements for particular wastes,
─
suitable disposal sites or installations.
Such plans may, for example, cover:
─
the natural or legal persons empowered to carry out the management of waste,
─
the estimated costs of the recovery and disposal operations,
─
appropriate measures to encourage rationalisation of the collection, sorting and treatment of waste.
2.
Member States shall collaborate as appropriate with the other Member States concerned and the Commission to draw up such plans.
They shall notify the Commission thereof.
3.
Member States may take the measures necessary to prevent movements of waste which are not in accordance with their waste management
plans. They shall inform the Commission and the Member States of any such measures.
Regulation (EEC) No 259/93
Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and
out of the European Community (OJ 1993 L 30, p. 1), as amended by Council Regulation (EC) No 120/97 of 20 January 1997 (OJ
1997 L 22, p. 14, hereinafter
the Regulation), lays down rules governing
inter alia
the monitoring and control of shipments of waste between Member States.
According to Article 2(i) of the Regulation,
disposal is
as defined in Article 1(e) of Directive 75/442/EEC and, according to Article 2(k),
recovery is
as defined in Article 1(f) of Directive 75/442/EEC.
Title II of the Regulation, entitled
Shipments of waste between Member States, contains two separate chapters, one of which (Articles 3 to 5) concerns the procedure applicable to shipments of waste for
disposal and the other (Articles 6 to 11) the procedure applicable to shipments of waste for recovery.
Under Article 6(1) of the Regulation, when a waste producer or holder intends to ship waste for recovery listed in Annex III
to the Regulation (amber list of waste) from one Member State to another Member State and/or pass it in transit through one
or several other Member States, he is to notify the competent authority of destination and send copies of the notification
to the competent authorities of dispatch and transit and to the consignee.
According to Article 6(3) of the Regulation, notification is to be effected by means of the consignment note which is issued
by the competent authority of dispatch. Article 6(5) specifies the information which the notifier is to supply on the consignment
note, which includes
inter alia
information relating to the recovery operations set out in Annex IIB to the Directive (fifth indent of Article 6(5)) and the
planned method of disposal for the residual waste after recycling has taken place (sixth indent of Article 6(5)).
Article 7(2) of the Regulation lays down the time-limits, conditions and procedures which must be observed by the competent
authorities of destination, dispatch and transit when raising an objection to a notified, planned shipment of waste for recovery.
That provision provides in particular that objections are to be based on Article 7(4).
Article 7(4)(a) of the Regulation provides: The competent authorities of destination and dispatch may raise reasoned objections to the planned shipment:
─
in accordance with Directive 75/442/EEC, in particular Article 7 thereof, or
─
if it is not in accordance with national laws and regulations relating to environmental protection, public order, public safety
or health protection, or
─
if the notifier or the consignee has previously been guilty of illegal trafficking. In this case, the competent authority
of dispatch may refuse all shipments involving the person in question in accordance with national legislation, or
─
if the shipment conflicts with obligations resulting from international conventions concluded by the Member State or Member
States concerned, or
─
if the ratio of the recoverable and non-recoverable waste, the estimated value of the materials to be finally recovered or
the cost of the recovery and the cost of the disposal of the non recoverable fraction do not justify the recovery under economic
and environmental considerations.
National legislation
The Meerjarenplan Gevaarlijke Afvalstoffen II (second Multi-Year Plan for Hazardous Waste, hereinafter
MJP GA II) is a hazardous waste management plan within the meaning of Article 7 of the Directive, which was adopted by the Netherlands
authorities in June 1997 for the period 1997 to 2007.
Sectoral Plan 18 of the MJP GA II, entitled
Incineration of hazardous waste, states that a distinction can be made between recovery by means of recycling, recovery by use principally as a fuel and
final disposal by incineration.
Recovery by means of recycling may consist of the processing of waste or its use in a production process, such as the use
of combustible waste with a high inorganic content in the production of cement clinker.
According to the MJP GA II, since it is not possible to develop reliable general criteria as regards the distinction between
recovery by means of recycling and final disposal of hazardous waste by incineration, a case-by-case assessment must be carried
out, on the basis of the characteristics of the batch and the planned means of processing.
As regards recovery with use principally as a fuel, the MJP GA II uses calorific value in conjunction with chlorine content
as a criterion. In order for there to be recovery, the MJP GA II requires a minimum calorific value of 11 500 kJ/kg for hazardous
waste with a chlorine content of 1% or less and a minimum calorific value of 15 000 kJ/kg for hazardous waste with a chlorine
content of over 1%.
Section 18 of the MJP GA II also states that, when assessing a waste shipment notification, it will first be considered whether
recovery of the waste is possible. When sufficient disposal capacity is available in the Netherlands, it is possible under
the Plan to raise reasoned objections to a planned shipment of waste for disposal, in accordance with Article 4(3)(b) of the
Regulation. The maintenance of national elimination capacity is considered extremely important in the light of the principle
of self-sufficiency.
Main proceedings and the questions referred for a preliminary ruling
SITA is a company governed by Netherlands law established in Maastricht (Netherlands), which carries out the collection and
processing of hazardous and non-hazardous waste.
On 23 December 1997 and on 6 January 1998, SITA notified the Minister, as the competent authority of dispatch within the meaning
of the Regulation, of two planned shipments of waste.
The first notification (NL 90201) concerned a plan to ship 2 000 tonnes of a compact mixture of waste glue, sealant, resin
and paint, as well as waste containing silicon mixed with sawdust, to the undertaking STPI, established in Engis (Belgium),
between 1 February 1998 and 31 January 1999.
The second notification (NL 90204) concerned a plan to ship 1 000 tonnes of organic and inorganic sediments with a low halogen
content, mixed with sawdust, to the same undertaking, during that same period.
Following shipment, the waste at issue was to be used by the Belgian cement industry as fuel in cement kilns and as raw material
in the production of clinker by cement factories. In that treatment process, known as a
combined process, the energy produced from the waste replaces energy produced by raw materials, and ash from incinerated waste in turn replaces
raw materials.
By two decisions adopted on 28 January and 13 February 1998 (
the contested decisions), the Minister, in accordance with Article 7(2) of the Regulation, gave written consent to the waste shipments planned by
SITA. The Minister nevertheless made authorisation of those shipments subject to certain conditions.
The Minister considered that, in the light of the form of processing envisaged, that is, use for the purpose of producing
cement clinker, the proportion of the waste re-used as a material for the manufacture of cement ─ 25 to 40% and 30%, respectively
─ could not be considered recovery by recycling within the meaning of the MJP GA II.
The Minister acknowledged, however, that the purpose of the shipments could be considered to be a recovery operation with
use principally as a fuel, subject to the condition that, for each planned movement of waste with a chlorine content of 1%
or less the waste to be exported was to have a calorific value of over 11 500 kJ/kg and that for each planned movement of
waste with a chlorine content of over 1% the calorific value was to be over 15 000 kJ/kg. The Minister based that condition
on the MJP GA II.
SITA challenged the decisions in question in so far as they subjected the authorisation to ship the waste concerned to such
conditions, by means of, first, an application for interim measures made to the President of the legal section of the Raad
van State and, secondly, a complaint to the Minister.
By order of 18 June 1998, the President of the Administrative Appeal Section of the Raad van State rejected the application
for interim measures.
By two decisions of 2 December 1998, the Minister rejected the complaints submitted by SITA against the decisions in question.
On 11 January 1999, SITA brought an action against each of those decisions before the national court.
In the circumstances, the Raad van State, considering that the solution to the dispute before it depends on an interpretation
of Community law, decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:
(1)
Must the Directive ... be interpreted as permitting a process for treating waste in which more than one operation is performed,
as described above, to be assessed as a whole?
(2)
If so, does the process concerned constitute recovery within the meaning of R1, R3 and R5 of Annex IIB to the Directive if
it results in the complete use of the waste employed therein?
(3)
(a)
If the answer to question 1 is in the negative, is the extent (expressed as calorific value) to which the waste contributes
to the incineration process or the extent (expressed as the level of material reused) to which the ash residues from that
waste contribute to the production process relevant as regards the classification of each individual operation as recovery
or disposal (R1, R3 and R5, and D10, respectively)?
(b)
If so, on the basis of which criteria is it necessary to assess whether or not the contribution is sufficient for classification
as recovery? In the absence of Community criteria in this respect, is it possible to apply national criteria?
(4)
If one operation must be classified as recovery and another operation as disposal, how must the process as a whole be regarded?
The first question
By its first question, the national court essentially asks whether, in the case where a waste treatment process includes several
distinct stages, its classification as a disposal operation or recovery operation within the meaning of the Directive must,
for the purpose of implementing the Regulation, be considered comprehensively, as constituting a single operation, or rather
by examining each of the stages separately, as distinct operations.
Arguments of the parties
SITA claims that the Directive should be interpreted to mean that, for the purpose of classification, a waste treatment process
involving more than one operation can be assessed as a whole. In that regard, it states that the treatment process at issue
in the main proceedings constitutes a single technical process and must therefore be subject to a global assessment, which
leads to the conclusion that it constitutes a single recovery operation.
The Netherlands Government considers that the answer to the first question must be that the Directive allows a waste treatment
process such as that at issue in the main proceedings, which involves more than one material operation (that is, the incineration
of waste and the use of the ash in the production of cement clinker) to be considered a single operation within the meaning
of Annexes IIA and IIB to that directive.
The United Kingdom Government states that, where it is claimed that the waste at issue will be used in a cement kiln both
as fuel and as a raw material for the production of cement clinker, each of those elements must be taken into account and
a conclusion drawn on the basis of the overall contribution of the waste to the process as a whole.
According to the Commission, the Directive should be interpreted to mean that, in the case where waste undergoes a treatment
process involving several successive operations, it must be established for each of those operations whether the treatment
in question is a recovery operation or a disposal operation within the meaning of Annexes IIA and IIB of that directive.
The Commission points out that, in the case in the main proceedings, the national court observes that, in a first stage, the
waste is to be used as fuel in cement kilns, where the energy generated by that waste will replace energy normally generated
by raw materials. In a second stage, after the waste has served as an energy source, the ash from that waste will partially
replace the raw materials needed to produce clinker in cement works. The fact that the use of waste ash is itself classified
as disposal or recovery has no effect on the classification of the first treatment which the waste undergoes, which would
be relevant only if it was necessary to determine the purpose of a waste shipment with a view to implementing the Regulation.
Findings of the Court
In that regard, it must first be recalled that, for the purpose of applying the Directive and the Regulation, it must be possible
to classify any waste treatment operation as either disposal or recovery, and a single operation may not be classified simultaneously
as both a disposal and a recovery operation (Case C-6/00
ASA
[2002] ECR I-1961, paragraph 63).
Nevertheless, while a single operation must be given a single classification in the light of the distinction between a recovery
operation and a disposal operation, a waste treatment process can in practice include several successive stages of recovery
or disposal.
It follows from the Directive and the Regulation that, in such a case, the treatment process as a whole is not to be assessed
as a single operation, but each phase must be classified separately for the purpose of implementing the Regulation when it
constitutes a distinct operation in itself.
As is clear from the sixth indent of Article 6(5) and the fifth indent of Article 7(4)(a) of the Regulation, an operation
classified as waste recovery may be followed by a disposal operation of the non-recoverable fraction of that waste. In such
a case, the classification of the first operation as a recovery operation is not affected by the fact that it is followed
by an operation to dispose of the residual waste.
Moreover, point R11 of Annex IIB to the Directive makes clear that the use of residual waste obtained from any of the operations
listed in that annex, in points R1 to R10, itself constitutes a recovery operation distinct from the recovery operation which
precedes it. In accordance with the distinction thus laid down in the Annex, it must therefore be determined whether an operation
falls under operations R1 to R10 in that annex independently, without taking into account the possible subsequent use of the
residual wastes obtained from any of those operations ─ a use which is itself covered by a separate operation.
As the Commission rightly points out, and as made clear by the Advocate General in paragraph 51 of his Opinion, when the question
of the classification of a waste treatment operation arises for the purpose of implementing the Regulation, only the classification
of the first operation which that waste must undergo subsequent to its shipment is relevant in determining the purpose of
that shipment.
When the Regulation refers to the shipment of waste and distinguishes between shipments of waste destined for disposal and
those destined for recovery, it is directed at the treatment which that waste must undergo when it arrives at its destination,
not the possible subsequent processing of waste which has been thus treated or to its residues. Moreover, that processing
may take place in a different treatment plant and following further shipment.
In the case in the main proceedings, it appears from the order for reference that the national court is of the view that the
processing which the waste at issue must undergo comprises two distinct operations, consisting, first, of the combustion of
that waste and, secondly, of the use of its ash as a raw material in the production of cement clinker.
In the light of the foregoing considerations, only the first of the two operations mentioned above should be subject to classification
with a view to establishing the purpose of the waste shipment in question.
The answer to the first question must therefore be that, where a waste treatment process comprises several distinct stages,
it must be classified as a disposal operation or a recovery operation within the meaning of the Directive, for the purpose
of implementing the Regulation, taking into account only the first operation that the waste is to undergo subsequent to shipment.
The second question
In the light of the reply to the first question, it is not necessary to deal with the second question.
The third question
In the light of the reply to the first question, the third question must be understood to mean that the national court is
essentially asking whether the calorific value of the waste which is to be combusted is a relevant criterion for the purpose
of determining whether that operation constitutes a disposal operation as referred to in point D10 of Annex IIA to the Directive
or a recovery operation as referred to in point R1 of Annex IIB to the Directive and, in addition, whether the Member States
may define distinguishing criteria to that end.
First of all, as regards the first part of that question, the Court has already held, in C-228/00
Commission
v
Germany
[2003] ECR I-1439, paragraph 47, that the criterion of the calorific value of waste is not relevant for the purpose of establishing
whether an operation involving the combustion of waste is a recovery operation as referred to in point R1 of Annex IIB to
the Directive.
It is clear from paragraph 47 of that judgment that, in order to be considered use principally as a fuel or other means to
generate energy, within the meaning of point R1 of Annex IIB to the Directive, it is both necessary and sufficient that the
combustion of waste meet the three conditions set out in paragraphs 41 to 43 of that judgment. First, the main purpose of
the operation concerned must be to enable the waste to be used as a means of generating energy. Secondly, the conditions in
which that operation is to take place must give reason to believe that it is indeed a
means to generate energy. Thirdly, the waste must be used principally as a fuel or other means of generating energy.
It is for the national court to establish whether, in the case in the main proceedings, those conditions are satisfied for
the purpose of classifying the combustion of the waste at issue in cement kilns as a disposal operation or a recovery operation.
As regards the second part of the third question, it should also be recalled that the Regulation does not preclude Member
States from laying down, in acts having general scope, criteria for distinguishing between a recovery operation and a disposal
operation, provided that the criteria comply with those laid down in the Directive (see, to that effect,
Commission
v
Germany
, cited above, paragraphs 35 and 36).
In the light of the foregoing considerations, the answer to the third question must be that the calorific value of waste which
is to be combusted is not a relevant criterion for the purpose of determining whether that operation constitutes a disposal
operation as referred to in point D10 of Annex IIA to the Directive or a recovery operation as referred to in point R1 of
Annex IIB thereof. Member States may establish distinguishing criteria for that purpose, provided that the criteria comply
with those laid down in the Directive.
The fourth question
In view of the answer to the first question, from which it follows that a waste treatment process should not be classified
as a whole for the purpose of implementing the Regulation, there is no need to reply to the fourth question.
Costs
The costs incurred by the Netherlands, German and United Kingdom Governments and by the Commission, which have submitted observations
to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings
pending before the national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT (Fifth Chamber),
in answer to the question referred to it by the Raad van State by judgment of 13 March 2001, hereby rules:
1.
Where a waste treatment process comprises several distinct stages, it must be classified as a disposal operation or a recovery
operation within the meaning of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC
of 18 March 1991 and by Commission Decision 96/350/EC of 24 May 1996, for the purpose of implementing Council Regulation (EEC)
No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community,
as amended by Council Regulation (EC) No 120/97 of 20 January 1997, taking into account only the first operation that the
waste is to undergo subsequent to shipment;
2.
The calorific value of waste which is to be combusted is not a relevant criterion for the purpose of determining whether that
operation constitutes a disposal operation as referred to in point D10 of Annex IIA to Directive 75/442, as amended by Directive
91/156 and by Decision 96/350, or a recovery operation as referred to in point R1 of Annex IIB thereof. Member States may
establish distinguishing criteria for that purpose, provided that those criteria comply with those laid down in the Directive.
Wathelet
Timmermans
La Pergola
Jann
Rosas
Delivered in open court in Luxembourg on 3 April 2003.
R. Grass
M. Wathelet
Registrar
President of the Fifth Chamber
–
Language of the case: Dutch.