# C_2013344EN.01002301.xml

| 23.11.2013 | EN | Official Journal of the European Union | C 344/23 |
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23.11.2013

EN

Official Journal of the European Union

C 344/23

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Judgment of the Court (Fourth Chamber) of 3 October 2013 (request for a preliminary ruling from the Supreme Court — Ireland) — Donal Brady v Environmental Protection Agency

(Case C-113/12) (1)

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(Environment - Directive 75/442/EEC - Slurry produced in a piggery and stored there pending its transfer to farmers who use it as fertiliser on their land - Classification as ‘waste’ or ‘by-product’ - Conditions - Burden of proof - Directive 91/676/EEC - Failure to transpose - Personal liability of the producer as to compliance by those farmers with European Union law concerning the management of waste and fertilisers)

2013/C 344/38

Language of the case: English

Referring court

Referring court

Supreme Court

Parties to the main proceedings

Parties to the main proceedings

Appellant: Donal Brady

Appellant:

Respondent: Environmental Protection Agency

Respondent:

Re:

Re:

Request for a preliminary ruling — Supreme Court — Interpretation of Article 2(1)(b) 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) — Concept of ‘waste’ — Pig slurry supplied by a pig farmer to farmers as fertiliser — Right of a Member State to impose personal liability on the pig farmer in the event of failure by farmers using his slurry as fertiliser on their land to comply with European Union law on the control of waste

Operative part of the judgment

Operative part of the judgment

| 1. | The first subparagraph of Article 1(a) of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Commission Decision 96/350/EC of 24 May 1996, must be interpreted as meaning that slurry produced in an intensive pig farm and stored pending delivery to farmers in order to be used by them as fertiliser on their land constitutes not ‘waste’ within the meaning of that provision but a by-product when that producer intends to market the slurry on terms economically advantageous to himself in a subsequent process, provided that such reuse is not a mere possibility but a certainty, without any further processing prior to reuse and as part of the continuing process of production. It is for the national courts to determine, taking account of all the relevant circumstances obtaining in the situations before them, whether those various criteria are satisfied. |
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1.

The first subparagraph of Article 1(a) of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Commission Decision 96/350/EC of 24 May 1996, must be interpreted as meaning that slurry produced in an intensive pig farm and stored pending delivery to farmers in order to be used by them as fertiliser on their land constitutes not ‘waste’ within the meaning of that provision but a by-product when that producer intends to market the slurry on terms economically advantageous to himself in a subsequent process, provided that such reuse is not a mere possibility but a certainty, without any further processing prior to reuse and as part of the continuing process of production. It is for the national courts to determine, taking account of all the relevant circumstances obtaining in the situations before them, whether those various criteria are satisfied.

| 2. | European Union law does not preclude the burden of proving that the criteria for finding that a substance such as the slurry produced, stored and transferred in circumstances such as those of the main proceedings constitutes a by-product are met from resting on the producer of that slurry, provided that this does not result in the effectiveness of European Union law, and in particular of Directive 75/442, as amended by Decision 96/350, being undermined and that compliance with the obligations flowing from European Union law is ensured, in particular the obligation not to make subject to the provisions of that directive substances which, on application of those criteria, must, under the Court’s case-law, be regarded as by-products to which the directive does not apply. |
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2.

European Union law does not preclude the burden of proving that the criteria for finding that a substance such as the slurry produced, stored and transferred in circumstances such as those of the main proceedings constitutes a by-product are met from resting on the producer of that slurry, provided that this does not result in the effectiveness of European Union law, and in particular of Directive 75/442, as amended by Decision 96/350, being undermined and that compliance with the obligations flowing from European Union law is ensured, in particular the obligation not to make subject to the provisions of that directive substances which, on application of those criteria, must, under the Court’s case-law, be regarded as by-products to which the directive does not apply.

| 3. | Article 2(1)(b)(iii) of Directive 75/442, as amended by Decision 96/350, must be interpreted as meaning that, where Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources has not been transposed into the law of a Member State, livestock effluent produced while operating a pig farm located in that Member State cannot be considered to be, by virtue of the existence of the latter directive, ‘covered by other legislation’ within the meaning of that provision. |
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3.

Article 2(1)(b)(iii) of Directive 75/442, as amended by Decision 96/350, must be interpreted as meaning that, where Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources has not been transposed into the law of a Member State, livestock effluent produced while operating a pig farm located in that Member State cannot be considered to be, by virtue of the existence of the latter directive, ‘covered by other legislation’ within the meaning of that provision.

| 4. | In a situation where slurry produced and held by a pig farm is to be classified as ‘waste’ within the meaning of the first subparagraph of Article 1(a) of Directive 75/442, as amended by Decision 96/350:






  — | Article 8 of that directive must be interpreted as precluding the holder from being authorised, under any conditions, to transfer that waste to a farmer who uses it as fertiliser on his land if it transpires that that farmer neither possesses the permit referred to in Article 10 of the directive nor is exempted from the requirement to possess such a permit and registered in accordance with Article 11 of the directive; and |
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4.

In a situation where slurry produced and held by a pig farm is to be classified as ‘waste’ within the meaning of the first subparagraph of Article 1(a) of Directive 75/442, as amended by Decision 96/350:

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Article 8 of that directive must be interpreted as precluding the holder from being authorised, under any conditions, to transfer that waste to a farmer who uses it as fertiliser on his land if it transpires that that farmer neither possesses the permit referred to in Article 10 of the directive nor is exempted from the requirement to possess such a permit and registered in accordance with Article 11 of the directive; and

| — | Articles 8, 10 and 11 of the directive, read together, must be interpreted as precluding the transfer of that waste by the holder to a farmer who uses it as fertiliser on his land, and who possesses a permit as referred to in Article 10 or is exempted from the requirement to possess such a permit and is registered in accordance with Article 11, from being subject to the condition that the holder assumes liability for compliance by that other farmer with the rules that are to apply to the recovery operations carried out by the latter by virtue of European Union law concerning the management of waste and fertilisers. |
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Articles 8, 10 and 11 of the directive, read together, must be interpreted as precluding the transfer of that waste by the holder to a farmer who uses it as fertiliser on his land, and who possesses a permit as referred to in Article 10 or is exempted from the requirement to possess such a permit and is registered in accordance with Article 11, from being subject to the condition that the holder assumes liability for compliance by that other farmer with the rules that are to apply to the recovery operations carried out by the latter by virtue of European Union law concerning the management of waste and fertilisers.

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(1)  OJ C 151, 26.5.2012.

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