Opinion of the Advocate General — ECLI:EU:C:2020:226
Date: 2020-03-19
Language of the case: Dutch
Subject matter: Environment;Public health;Waste
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
15 January 2019 
Referring court:  
Gerechtshof Arnhem-Leeuwarden (Netherlands) 
Date of the decision to refer: 
19 December 2018 
Criminal proceedings against: 
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Subject of the action in the main proceedings 
The dispute in the main proceedings concerns the shipment of waste from the 
Netherlands to Germany without notification to and/or authorisation by the 
competent authorities pursuant to Regulation (EC) No 1013/2006 on shipments of 
waste (‘EWSR’).  
Subject and legal basis of the request for a preliminary ruling 
The present request under Article 267 TFEU concerns the question of which 
products fall within the definition of (shipments of) animal by-products within the 
meaning of Regulation (EC) No 1069/2009 (‘Animal By-Products Regulation 
2009’) and which products are subject to the approval requirements for such 
shipments derived from that regulation.  
Questions referred 
1. Is a substance which is not a by-product within the meaning of the 
Waste Framework Directive by definition also not an animal by-
product within the meaning of the Animal By-Products Regulation 
2009, such that that substance is not excluded from the operation 
EWSR pursuant to Article 1(3) EWSR? Or can it not be ruled out that 
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SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-21/19 
 
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a substance falls within the definition of animal by-products within the 
meaning of the Animal By-Products Regulation 2009 if that substance 
does not meet the requirements of Article 5(1) of the Waste 
Framework Directive, such that that substance does not necessarily fall 
under the EWSR?  
2. How should a shipment covered by the approval requirements of 
Regulation (EC) No 1774/2002 (now Regulation (EC) No 1069/2009) 
be understood within the meaning of Article 1(3) EWSR: does it refer 
to the transport (between one country and another country) of animal 
by-products, irrespective of the category to which that material 
belongs? Or does it refer to the transport of material referred to in 
Article 48 of the Animal By-Products Regulation 2009 (formerly 
Article 8 of Regulation 1774/2002), which is limited to animal 
by-products or derived products within the meaning of that provision, 
thus Category 1 material and Category 2 material, and certain products 
derived therefrom, including processed animal proteins derived from 
Category 3 material?  
3. If a shipment subject to the approval requirements of Regulation (EC) 
No 1774/2002 (now Regulation (EC) No 1069/2009) should be 
understood to refer, within the meaning of Article 1(3)(d) EWSR, to 
the transport (between one country and another country) of animal 
by-products, irrespective of the category to which that material 
belongs, should Article 1(3)(d) EWSR then be read as referring also to 
shipments of mixtures of animal by-products and other substances 
and — if so — is the mixing ratio between the animal by-products and 
the other substances relevant in that regard? Or does an animal 
by-product lose the status of animal by-product within the meaning of 
the Animal By-Products Regulation 2009 and does that animal 
by-product become waste within the meaning of the EWSR as a result 
of being mixed with another substance? 
Provisions of European Union law cited 
Article 5 of Directive 2008/98/EC on waste and repealing certain Directives 
(‘Waste Framework Directive’), Articles 1 and 2 EWSR, Articles 3, 24, 25, 48 
and 54 of Regulation No 1069/2009 laying down health rules as regards animal 
by-products and derived products not intended for human consumption and 
repealing Regulation (EC) No 1774/2002 (‘Animal By-Products Regulation 
2009’), Articles 2, 4, 5, 6 and 8 of the repealed Regulation (EC) No 1774/2002 
laying down health rules concerning animal by-products not intended for human 
consumption (‘Regulation 1774/2002’) and Commission Regulation (EU) 
No 142/2011 implementing Regulation (EC) No 1069/2009 laying down health 
rules as regards animal by-products and derived products not intended for human 
consumption and implementing Council Directive 97/78/EC as regards certain 
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samples and items exempt from veterinary checks at the border under that 
Directive 
Provisions of national legislation cited 
Articles 1a, 2 and 6 of the Wet op de economische delicten (Law on Economic 
Offences) and Articles 1.1 and 10.60 of the Wet milieubeheer (Law on 
Environmental Management). 
Brief summary of the facts and the procedure in the main proceedings 
1 In the present case the defendant has been charged with the illegal shipment of 
waste from the Netherlands to Germany. It is common ground that various waste 
substances have been shipped from the Netherlands to Germany. They comprise a 
mixture of brine and animal tissues, a mixture of waste animal fat and brine, a 
mixture of sewage sludge and other (unknown) waste, a mixture of sewage sludge 
and (dairy) waste and a mixture of sludge from wastewater treatment and protein 
concentrate. The Gerechtshof (Court of Appeal) proceeds on the assumption that 
at least one or two of those mixtures consisted partly of animal by-products and 
partly of other substances and that the animal by-products concerned Category 3 
material. The mixtures were intended to be used in a biogas plant in Germany. No 
notification was made with regard to the shipments, nor was permission granted 
by the competent authorities. The Gerechtshof must answer the question whether 
the EWSR applies to the shipments at issue in the main proceedings. 
Main arguments of the parties to the main proceedings 
2 The openbaar ministerie (public prosecution service) is of the opinion that the 
EWSR is applicable, as the mixtures referred to in the indictment must always be 
regarded as waste. According to the openbaar ministerie, whether what is at issue 
here is an (animal) by-product should be assessed on the basis of the criteria laid 
down in Article 5(1) of the Waste Framework Directive and on the basis of the 
definition of ‘animal by-products’ in Article 3(1) of the Animal By-Products 
Regulation 2009. The openbaar ministerie has noted that that definition, unlike 
Regulation 1774/2002, no longer contains the wording ‘or any material containing 
such by-products’, such that the mixtures should not be regarded as animal 
by-products. If the aforementioned criteria and definition are not met, which the 
openbaar ministerie believes to be the case here, then it is waste that is at issue 
and the EWSR is applicable.  
3 The defence has taken the position that the Animal By-Products Regulation 2009, 
not the EWSR, applies in the present case, because the mixtures referred to in the 
indictment are animal by-products. In its view, if an animal by-product is at issue, 
the Animal By-Products Regulation 2009 takes precedence over the EWSR.  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-21/19 
 
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4 The defence bases the contention that the mixtures in question are animal 
by-products on the definition of ‘animal by-product’ in the old Regulation 
1774/2002. According to that regulation, the term ‘animal by-product’ also 
includes material or a mixture that contains an animal by-product.  
5 The Animal By-Products Regulation 2009 indeed no longer states that materials 
containing animal by-products are to be regarded as animal by-products. 
According to the defence, however, the current Animal By-Products Regulation is 
not intended to amend the definition of ‘animal by-product’.  
6 In that regard, the defence has referred to an expert report stating that the Animal 
By-Products Regulation 2009 explicitly provides that, in the case of a mixture of 
animal by-products and hazardous waste, it is the rules of the EWSR and not the 
Animal By-Products Regulation 2009 that must be followed; if the intention had 
been also to exclude mixtures of animal by-products and non-hazardous waste 
from the operation of the Animal By-Products Regulation 2009, the inclusion of a 
derogation for mixtures of animal by-products and hazardous waste would be 
devoid of purpose. Moreover, the expert report states that, when drafting the 
Animal By-Products Regulation 2009, the European Parliament proposed 
amendments under which the rules of the EWSR would apply to mixtures of 
animal by-products and hazardous or non-hazardous waste. However, those 
amendments were not adopted. Furthermore, according to the report, there is no 
evidence to suggest that the amended definition of the term ‘animal by-products’ 
was attempting to exclude mixtures of animal by-products and other material from 
the operation of the Animal By-Products Regulation 2009. According to the 
report, if a change to the definition had indeed been intended, it was the task of the 
European legislature to make that known within the sectors concerned.  
7 In the light of the content of the expert report, the defence concludes that the 
definition of the term ‘animal by-products’ in the Animal By-Products Regulation 
2009 was not amended compared to the definition in Regulation 1774/2002. 
According to the defence, this means that mixtures of animal products — with the 
exception of mixtures of animal by-products with hazardous waste — also fall 
within the definition of ‘animal by-products’, irrespective of the mixing ratio 
between the animal by-products and the other substances.  
Brief summary of the reasons for the referral 
8 By way of justification for the first question, the Gerechtshof considers that it 
must answer the question of whether the EWSR applies to the shipments at issue 
in the main proceedings. First of all, in view of the position adopted by the 
openbaar ministerie, the Gerechtshof is faced with the question of how the term 
‘by-products’ referred to in Article 5 of the Waste Framework Directive relates to 
the term ‘animal by-products’ referred to in the Animal By-Products Regulation 
2009. If a substance that cannot be regarded as a by-product in the aforementioned 
sense cannot also be an animal by-product, it would mean — in line with the 
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position of the openbaar ministerie — that such a substance is waste which falls 
within the scope of the EWSR. 
9 By way of justification for the second question, the Gerechtshof notes that it is 
also faced with the question of how must the shipment that is subject to the 
approval requirements of the Animal By-Products Regulation 2009 be understood 
within the meaning of Article 1(3)(d) EWSR, in conjunction with Article 54 of the 
Animal By-Products Regulation 2009. The Animal By-Products Regulation 2009 
contains provisions, in Articles 24 and 44, on the approval of establishments or 
plants that carry out certain activities with regard to animal by-products, such as 
the transformation of animal by-products and/or derived products into biogas or 
compost and — in the implementation measures under Article 27 — on the 
requirements to be met for such approval. In those activities, no distinction is 
made between Category 1, Category 2 or Category 3 material. Articles 24 and 44 
and the implementing measures adopted under Article 27 do not relate to the 
transport of animal by-products between one country and another. However, 
Article 48 of the Animal By-Products Regulation 2009 does lay down 
requirements for the dispatch of animal by-products to another Member State for 
control purposes. They relate to animal by-products within the meaning of 
paragraph 1 of that provision, being Category 1 and Category 2 material and 
certain products derived from that material, with the proviso that the competent 
authorities of the Member State of origin and of destination are also required, 
under the third paragraph of that provision, to inform each other of the despatch 
and arrival of a consignment of processed animal proteins derived from Category 
3 material. According to the correlation table to the Animal By-Products 
Regulation 2009, Article 48 corresponds to Article 8 of Regulation 1774/2002. 
The latter provision also concerns the despatch to other Member States of 
Category 1 material, Category 2 material, processed products derived from 
Category 1 and Category 2 material and processed animal proteins.  
10 By way of justification for the third question, the Gerechtshof states that it is 
important to know whether, with the definition of ‘animal by-products’ in the 
Animal By-Products Regulation 2009, a substantive amendment in relation to 
Regulation 1774/2002 was intended, in the sense that, under the operation of the 
Animal By-Products Regulation 2009, a quantity of substances mixed with a 
quantity of animal by-product (irrespective of the ratio between the two 
substances) can no longer be regarded as an ‘animal by-product’, such that the 
shipment of such a mixture thus falls within the scope of the EWSR. A 
grammatical interpretation of the current definition would lead to the conclusion 
that that amendment was intended. This conclusion also seems to be supported by 
the Animal By-Products Regulation 2009 and Regulation No 142/2011. Based on 
the aforementioned arguments in the expert report, however, the opposite 
conclusion could also be drawn.