Opinion of the Advocate General — ECLI:EU:C:2008:304
Date: 2008-05-22
Language of the case: Swedish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment;Waste
Procedure: Reference for a preliminary ruling
Origin: Sweden

summary, it can thus be stated that the classification of a plant in which waste is incinerated depends on whether its main purpose is the thermal treatment of waste or the generation of energy or production of material products. The main purpose must be determined on the basis of objective criteria. V – Conclusion 51. I propose that the Court should answer the reference for a preliminary ruling as follows: (1) For the purposes of the application of Directive 2000/76/EC of the European Parliament and of the Council of 4 December 2000 on the incineration of waste to a plant for the production of heat and electricity with a number of units (boilers), each individual unit, that is to say each boiler with the equipment that is associated with it, is in principle to be treated as a plant. However, it is possible to treat a number of mutually linked plants as one plant for the application of certain provisions of that directive if requirements for the avoidance of environmental harm and danger to health are not thereby circumvented. (2) Classification of a plant in which waste is incinerated as an incineration plant pursuant to Article 3(4) of Directive 2000/76/EC or as a co-incineration plant pursuant to Article 3(5) of that directive depends on whether its main purpose is the thermal treatment of waste or the generation of energy or production of material products. The main purpose must be determined on the basis of objective criteria. 1 – Original language: German. 2 – OJ 2000 L 332, p. 91. 3 – See the definition in Article 3 of Directive 2004/8/EC of the European Parliament and of the Council of 11 February 2004 on the promotion of co-generation based on a useful heat demand in the internal energy market and amending Directive 92/42/EEC (OJ 2004 L 52, p. 50). 4 – OJ 1996 L 257, p. 26. 5 – The manner in which plants without their own incineration boilers are to be treated is the subject-matter of Case C‑317/07 Lahti Energia, shortly to come before the Court (see notice in OJ 2007 C 211, p. 26). 6 – See, with regard to auxiliary burners as the best available technique for waste incineration plants, the Reference Document on the Best Available Techniques for Waste Incineration, August 2006, p. 269 et seq. (http://ec.europa.eu/comm/environment/ippc/brefs/wi_bref_0806.pdf). The Commission prepared that document in collaboration with experts from the Member States on the basis of Directive 96/61. 7 – OJ 2001 L 309, p. 1. 8 – See the detailed arguments set out in point 39 below. 9 – The German language version is in that regard apparently based, unlike other language versions, on the text of Article 2(2) of Council Directive 94/67/EC of 16 December 1994 on the incineration of hazardous waste (OJ 1994 L 365, p. 34). 10 – ‘Förbränningsanläggning: varje stationär eller mobil teknisk enhet eller utrustning avsedd för värmebehandling av avfall med eller utan återvinning av alstrad värme.’ 11 – See the Opinion of Advocate General Jacobs in Case C‑228/00 Commission v Germany [2003] ECR I‑1439, point 80, who took the view that the earlier directives on waste incineration, which contained a definition similar to that of the German language version of the Waste Incineration Directive, were also applicable to the recycling of waste. That case concerned Council Directive 89/369/EEC of 8 June 1989 on the prevention of air pollution from new municipal waste incineration plants (OJ 1989 L 163, p. 32), Council Directive 89/429/EEC of 21 June 1989 on the reduction of air pollution from existing municipal waste incineration plants (OJ 1989 L 203, p. 50) and Directive 94/67 (cited in footnote 9). 12 – Case 29/69 Stauder [1969] ECR 419, paragraph 3; Case C‑72/95 Kraaijeveld and Others [1996] ECR I‑5403, paragraph 28; Case C‑300/05 ZVK [2006] ECR I‑11169, paragraph 16; and Case C‑56/06 Euro Tex [2007] ECR I‑4859, paragraph 27. 13 – That case-law is based on 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). That directive was repealed by Directive 2006/12/EC of the European Parliament and of the Council of 5 April 2006 on waste (OJ 2006 L 114, p. 9) and replaced without changes to its content by a consolidated version. 14 – Case C‑6/00 ASA [2002] ECR I‑1961, paragraph 69; Case C‑444/00 Mayer Parry Recycling [2003] ECR I‑6163, paragraph 63; and Case C‑103/02 Commission v Italy [2004] ECR I‑9127, paragraph 62. 15 – Case C‑228/00 Commission v Germany [2003] ECR I‑1439, paragraph 46; Case C‑458/00 Commission v Luxembourg [2003] ECR I‑1553, paragraph 37; and Case C‑116/01 SITA [2003] ECR I‑2969, paragraph 53. 16 – See points 4 and 21 et seq. above. 17 – COM(1998) 558 final, pp. 7 and 13. See, however, the contrary view in the Opinion of Advocate General Jacobs in Case C‑228/00 Commission v Germany (cited in footnote 11), which, at least in cases of waste recycling, assumed that those directives applied. The Court has not ruled on that question. 18 – See Case C‑6/03 Deponiezweckverband Eiterköpfe [2005] ECR I‑2753. 19 – See, with regard to determination of abusive objectives, Case C‑255/02 Halifax and Others [2006] ECR I‑1609, paragraph 75, and Case C‑251/06 Ing. Auer [2007] ECR I‑9689, paragraph 46; with regard to the determination of an intra-Community supply as regards the law on value added tax, Case C‑409/04 Teleos and Others [2007] ECR I‑7797, paragraph 39 et seq; with regard to the choice of legal basis of a Community measure, Case 45/86 Commission v Council [1987] ECR 1493, paragraph 11, Case C‑300/89 Commission v Council [1991] ECR I‑2867 (Titanium dioxide), paragraph 10, and Case C‑440/05 Commission v Council [2007] ECR I‑9097, paragraph 61; and, as regards the purpose of data processing, my Opinion of 8 May 2008 in Case C‑73/07 Satakunnan Markkinapörssi and Satamedia (not yet published in the ECR), point 85. 20 – The comments on co-incineration in the Reference Document on Best Available Techniques for Large Combustion Plants, July 2006, p. 489 et seq. (http://ec.europa.eu/comm/environment/ippc/brefs/lcp_bref_0706.pdf), are based on the assumption that waste forms only a small part of the fuel used. The Commission prepared that document in collaboration with experts from the Member States on the basis of Directive 96/61.