Opinion of the Advocate General — ECLI:EU:C:2004:67
Date: 2004-01-29
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment;Approximation of laws;Waste;Pollution
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary of the Judgment 1. Environment – Waste – Directive 75/442, amended by Directive 91/156 – Concept – Hydrocarbons which are spilled unintentionally – Contaminated soil and groundwater – Included (Council Directive 75/442, as amended by Directive 91/156, Art. 1(a)) 2. Environment – Waste – Directive 75/442, amended by Directive 91/156 – Holder of waste – Concept – Spilled hydrocarbons – Manager of a service station and petroleum undertaking supplying it – Included – Conditions (Council Directive 75/442, as amended by Directive 91/156, Art. 1(c)) 1. Hydrocarbons which are unintentionally spilled and cause soil and groundwater contamination are waste within the meaning of Article 1(a) of Council Directive 75/442 on waste, as amended by Council Directive 91/156, in so far as those substances are a production residue which the holder cannot re-use without prior processing and which he discards, albeit involuntarily, at the time of the production or distribution operations which relate to them. The same is true for soil contaminated by hydrocarbons, since they cannot be separated from the land which they have contaminated and cannot be recovered or disposed of unless that land is also subject to the necessary decontamination. In addition, the fact that soil is not excavated has no bearing on its classification as waste. (see paras 46-47, 50, 52-53, operative part) 2. Directive 75/442 on waste, as amended by Directive 91/156, distinguishes between practical recovery or disposal operations or the elimination of waste, which it makes the responsibility of any ‘holder of waste’, whether producer or possessor, and the financial burden of those operations, which, in accordance with the principle of polluter pays, it imposes on the persons who cause the waste, whether they are holders or former holders of the waste or even producers of the product from which the waste came. Hydrocarbons spilled by accident as the result of a leak from a service station’s storage facilities which were bought by that service station to meet its operating needs, are in the possession of the service station’s manager. Moreover, it is the manager who, for the purpose of his operations, has them in stock when they became waste and who may be considered to be the person who ‘produced’ them within the meaning of Article 1(b) of Directive 75/442. Under those conditions, since he is at once the possessor and the producer of that waste, the service station manager must be considered to be their holder within the meaning of Article 1(c). Nevertheless, if the poor condition of the service station’s storage facilities and the leak of hydrocarbons can be attributed to a disregard of contractual obligations by the petroleum undertaking which supplies that service station, or to any actions which could render that undertaking liable, that petroleum undertaking could be considered, as a result of its activities, to have ‘produced waste’ within the meaning of Article 1(b) of Directive 75/442 and it may accordingly be regarded as the holder of the waste. (see paras 58-61, operative part)