Opinion of the Advocate General — ECLI:EU:C:2008:499
Date: 2008-09-11
Language of the case: Finnish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment;Waste
Procedure: Reference for a preliminary ruling
Origin: Finland

Summary 105. The answers to the different questions show that the waste incineration directive is applicable in principle where a combustible gas which is intended for incineration is obtained from waste by means of gasification. The directive covers the gas plant at least. The combustion of the gas is also covered if the plant in question is directly associated with the gas plant or there is a technical connection. Such a direct connection can be taken to exist at least where there is an association, if the gas is to be regarded as waste at the time of combustion. However, doubts arise if after purification the gas is sufficiently similar to raw materials or other products. 106. Further questions may arise in this connection in future. One example is combustion of producer gas, which is to be regarded as waste, in plants which are not associated with the gas plant, for example where the gas is transported in tanks. It is also doubtful how gasification would be treated if the gas is not intended for combustion, but for generating other products, for example in order to produce plastic. However, there is no need to give a ruling on these questions in the present case. V – Conclusion 107. I therefore propose that the Court answer the questions referred for a preliminary ruling as follows: (1) Directive 2000/76/EC of the European Parliament and of the Council of 4 December 2000 on the incineration of waste does not cover plants which incinerate or thermally treat only gaseous waste. (2) A gas plant where gas is generated from waste by means of pyrolysis may be regarded as an incineration plant within the meaning of Article 3(4) of Directive 2000/76/EC even if it has no incineration line. (3) Combustion, in the boiler of a power plant associated with a gas plant, of gas which is generated in the gas plant and purified after the gasification process is to be regarded as an operation within the meaning of Article 3 of Directive 2007/76/EC if the gas is waste at the time of combustion. (4) The purified gas generated in the gas plant may be regarded as a product, so that the rules on waste no longer apply to it, if it is sufficiently similar to primary raw materials or other products. 1 – Original language: German. 2 – OJ 2000 L 332, p. 91. 3 – My addition: Directive 75/442 (‘the waste framework directive’) was consolidated and replaced 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). 4 – OJ 2001 L 309, p. 1. 5 – OJ 1996 L 257, p. 26, codified by Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control (OJ 2008 L 24, p. 8). 6 – See the Report of the Commission on the implementation of Directive 96/61/EC concerning integrated pollution prevention and control of 3 November 2005, COM(2005) 540 final, p. 4. 7 – For details see above, paragraph 8 et seq. 8 – According to that definition, waste means any substance or object which the holder discards or intends or is required to discard (see, most recently, Case C‑188/07 Commune de Mesquer [2008] ECR I-0000, paragraph 37 et seq.). The situation has not changed as a result of codification in Directive 2006/12. 9 – See point 63 below. 10 – See above, point 37. 11 – Case C-252/05 Thames Water Utilities [2007] ECR I‑3883, paragraph 39. 12 – See above, point 38. 13 – OJ 1994 L 365, p. 10. 14 – Case C‑444/00 Mayer Parry Recycling [2003] ECR I‑6163, paragraph 61 et seq. 15 – Case C‑457/02 Niselli [2004] ECR I‑10853, paragraph 52. 16 – Cited in footnote 14, paragraph 67 et seq. 17 – See the judgments in Case C-9/00 Palin Granit and Vehmassalon Kansanterveystyön Kuntayhtymän hallitus [2002] ECR I-3533, paragraph 35, and Case C‑188/07 Commune de Mesquer (cited in footnote 8, paragraph 43), and the order in Case C‑235/02 Saetti and Frediani [2004] ECR I‑1005, paragraph 35. 18 – With regard to the distinction between by-products and production residues, see Joined Cases C‑418/97 and C‑419/97 ARCO Chemie Nederland and Others [2000] ECR I‑4475, paragraphs 73 and 88; Case C‑176/05 KVZ retec [2007] ECR I‑1721, paragraph 63; Case C‑194/05 Commission v Italy [2007] ECR I-11661, paragraph 41; Case C-195/05 Commission v Italy [2007] ECR I‑11699, paragraph 42; and Case C-263/05 Commission v Italy [2007] ECR I-11745, paragraph 40. 19 – Case C-9/00 Palin Granit and Vehmassalon Kansanterveystyön Kuntayhtymän hallitus (cited in footnote 17, paragraph 29) and Case C‑176/05 KVZ retec (cited in footnote 18, paragraph 61). 20 – See my Opinion in Case C-251/07 Gävle Kraftvärme [2008] ECR I-0000, point 19 et seq. 21 – See my Opinion in Case C-251/07 Gävle Kraftvärme (cited in footnote 20, point 34). 22 – Thermal treatment was not part of the definition of co-incineration plant in the original Commission proposal, COM(1998) 558, OJ 1998 C 372, p. 11, but was added during the legislative process; see the tenth proposal for amendment from the first reading by Parliament, OJ 1999 C 219, p. 249, and Common Position (EC) No 7/2000 of 25 November 1999 adopted by the Council, OJ 2000 C 25, p. 17. 23 – See Article 2(3) of the Proposal for a Directive of the European Parliament and of the Council on industrial emissions (integrated pollution prevention and control), COM(2007) 844 final. 24 – See Case C-392/96 Commission v Ireland [1999] ECR I‑5901, paragraph 76, and Case C‑227/01 Commission v Spain [2004] ECR I‑8253, paragraph 53, on Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, OJ 1985 L 175, p. 40. 25 – See my Opinion in Case C-251/07 Gävle Kraftvärme (cited in footnote 20, point 38). 26 – See 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). The Commission produced that document in collaboration with experts from the Member States on the basis of Directive 96/61. 27 – Case C‑344/04 IATA and ELFAA [2006] ECR I‑403, paragraph 95; Case C‑300/04 Eman and Sevinger [2006] ECR I‑8055, paragraph 57; and Case C‑227/04 P Lindorfer v Council [2007] ECR I‑6767, paragraph 63. 28 – Case C‑101/01 Lindqvist [2003] ECR I‑12971, paragraph 87; Case C‑540/03 Parliament v Council [2006] ECR I‑5769, paragraph 105; Case C‑457/05 Schutzverband der Spirituosen-Industrie [2007] ECR I‑8075, paragraph 22; Case C‑275/06 Promusicae [2008] ECR I-0000, paragraph 68; and Case C‑413/06 P Bertelsmann and Sony Corporation of America v Impala [2008] ECR I-0000, paragraph 174. 29 – See Case C‑292/97 Karlsson and Others [2000] ECR I‑2737, paragraphs 35 and 49, and Lindorfer (cited in footnote 27, paragraph 78). See also the Opinion of Advocate General Poiares Maduro in Case C-524/06 Huber [2008] ECR I-0000, point 29, and Case C-127/07 Arcelor [2008] ECR I-0000, point 30 et seq. 30 – See, for example, Case C‑77/02 Steinicke [2003] ECR I‑9027, paragraph 61, and Case C‑144/04 Mangold [2005] ECR I‑9981, paragraph 63, on the objectives pursued in the field of employment. 31 – With regard to the criteria for the application of Article 174 EC, see Case C‑284/95 Hi-Tech [1998] ECR I‑4301, paragraph 37, and Case C‑86/03 Greece v Commission [2005] ECR I‑10979, paragraph 88, each on the Community legislature. 32 – Parliament now proposes incorporating a waste hierarchy into the revised version of the waste framework directive being discussed at present under which waste prevention, recovery and material recovery are to be favoured over reuse of waste for energy purposes (Article 4 of the consolidated draft annexed to the opinion of 17 June 2008, TA/2008/282). 33 – OJ 1999 L 182, p. 1. 34 – Case C‑6/03 Deponiezweckverband Eiterköpfe [2005] ECR I‑2753. 35 – See Report from the Commission to the Council and the European Parliament on the national strategies for the reduction of biodegradable waste going to landfills pursuant to Article 5(1) of Directive 1999/31/EC on the landfill of waste of 30 March 2005, COM(2005) 105 final. 36 – See my Opinion in Case C‑188/07 Commune de Mesquer [2008] ECR I-0000, point 120 et seq.