Opinion of the Advocate General — ECLI:EU:C:1999:286
Date: 1999-06-08
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment;Approximation of laws;Waste
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary 109. In conclusion it should be noted that the definition of the term 'waste' contained in the Directive is too vague to provide a generally valid, comprehensive definition of waste. Instead it must be determined on a case-by-case basis whether or not the substance concerned is to be regarded as waste in the particular circumstances. Most of the criteria mentioned by the national court may be regarded as an indication that a substance constitutes waste but are in themselves insufficient to determine whether that is in fact the case. For that reason it is necessary to consider the spirit and purpose of the Directive and determine whether or not the substance poses a danger typical of waste. That danger distinguishes between waste and primary raw materials. If a waste material is recovered or reprocessed so that a substance is obtained that no longer poses a danger typical of waste and, when used in a normal manufacturing process, does not pollute the environment any more than, but at most in the same way as, a primary raw material, that substance probably is no longer to be regarded as waste in the sense of being subject to control or authorisation for its further use. It is for the national court and the competent authorities to examine whether or not the substance in question constitutes a danger typical of waste - that is to say one which goes beyond the dangers posed by a comparable primary raw material - so that supervision in accordance with the Directive must continue to be regarded as necessary. Such supervision does not preclude any recycling and use of such substances as substitutes for primary raw materials specifically laid down as policy. The substance and the recovery operation are subject to the controls provided for in the Directive to avoid harm to human health and the environment. For that reason the shipment of such substances must also be supervised and, wherenecessary, freedom of movement must be restricted for as long as that danger typical of waste persists. H - Conclusion 110. In the light of the foregoing considerations I propose that the Court should reply as follows to the questions referred to it for a preliminary ruling: Case C-418/97 (1) It may not be inferred from the mere fact that LUWA-bottoms undergo an operation - such as use as fuel - listed in Annex IIB to Directive 75/442 on waste that that substance has been discarded so as to enable it (consequently) to be regarded as waste for the purposes of Directive 75/442. However, the recovery of the substance in such an operation may be a strong indication that the substance has been discarded. (2) The reply to the question whether the use of LUWA-bottoms as a fuel is to be regarded as constituting discarding does not depend on whether (a) LUWA-bottoms are commonly regarded as waste, it being also irrelevant whether they may be recovered in an environmentally responsible manner for use as fuel without substantial processing, (b) the use of LUWA-bottoms as a fuel amounts to a common method of waste recovery, (c) the substance used is a main product or a by-product (a residue). Instead it must be considered whether the substance still poses a danger typical of waste such that supervision of the recovery appears necessary or whether the substance has ceased to constitute waste, which is the case if it poses no greater danger than a comparable primary raw material. Case C-419/97 (1) It may not be inferred from the mere fact that wood chips undergo an operation - such as use as fuel - listed in Annex IIB to Directive 75/442 on waste that that substance has been discarded so as to enable it (consequently) to be regarded as waste for the purposes of Directive 75/442. However, the recovery of the substance in such an operation may be a strong indication that the substance has been discarded. (2)(a) The reply to the question whether the use of wood chips as a fuel is to be regarded as constituting discarding may depend on whether, in regard to the building and demolition waste from which the chips are produced, operations are carried out already at an earlier stage than recovery as fuel as a result of which the substance has ceased to constitute waste so that it poses no greater danger than a comparable primary raw material, assuming that such an operation does not have to be mentioned specifically in Annex IIB of Directive 75/442/EEC. (b) The reply to the question whether the use of wood chips as fuel is to be regarded as constituting discarding does not depend on whether wood chips are commonly regarded as waste, it being also irrelevant whether they may be recovered in an environmentally responsible manner for use as fuel without substantial processing. (c) Nor does the reply to the question depend on whether the use of wood chips as a fuel amounts to a common method of waste recovery. In general, it must instead be considered whether the substance still poses a danger typical of waste such that supervision of the recovery appears necessary or whether the substance has ceased to constitute waste, which is the case if it poses no greater danger than a comparable primary raw material. 1: Original language: German. 2: - OJ 1975 L 194, p. 39. 3: - OJ 1991 L 78, p. 32. 4: - OJ 1993 L 30, p. 1. 5: - Commission Decision 94/3/EC of 20 December 1993 establishing a list of wastes pursuant to Article 1(a) of Council Directive 75/442/EEC on waste (OJ 1994 L 5, p. 15). 6: - Those annexes were amended most recently by Commission Decision 96/350/EC of 24 May 1996 adapting Annexes IIA and IIB to Council Directive 75/442/EEC on waste (OJ 1994 L 135, p. 32). In their submissions some of the parties rely on this new version of the annexes. 7: - Category R1 of Annex IIB, as amended in 1996. 8: - Judgment in Case C-129/96 Inter-Environnement Wallonie v Région wallonne [1997] ECR I-7411, paragraph 33. 9: - Annex IIB as amended by Directive 91/156. 10: - Judgment in Case C-129/96, cited in footnote 7, paragraph 27. 11: - As amended in 1996. 12: - Case C-129/96, cited in footnote 7, point 78. 13: - Joined Cases C-304/94, C-330/94, C-342/94 and C-224/95 [1997] ECR I-3561, paragraph 52. 14: - Case C-129/96, cited in footnote 7. 15: - Case C-129/96, cited in footnote 7. 16: - As amended by Directive 91/156, Category Q1 reads: 'Production or consumption residues not otherwise specified below'. Category Q8 reads: 'Residues of industrial processes (e.g. slags, still bottoms, etc.)'. 17: - Judgment in Joined Cases C-304/94, C-330/94, C-342/94 and C-224/95, cited in footnote 12. 18: - Case C-129/96, cited in footnote 7. 19: - That category, as amended by Directive 91/156, reads: 'Products for which the holder has no further use (e.g. agricultural, household, office, commercial and shop discards, etc.)'. 20: - Case C-155/91 Commission v Council [1993] ECR I-939, paragraph 12. 21: - It is also clear from the Commission's answer to the written question (No E-3123/98) put by Member of the European Parliament Gianni Tamino, that no Commission proposal has been made but that a change of the present definition of waste would require a modification of Directive 75/442. The exclusive interpretation of this definition remains a prerogative of the Court of Justice (OJ 1999 C 135, p. 169 et seq.). 22: - Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community (OJ 1993 L 30, p. 1). 23: - Case C-129/96, cited in footnote 7. 24: - Case C-129/96, cited in footnote 7, paragraph 30. 25: - Case C-129/96, cited in footnote 7, paragraph 34. 26: - Case C-129/96, cited in footnote 7, paragraph 33. 27: - Second indent of Article 3(1)(a). My emphasis. 28: - Twelfth recital in the preamble to Directive 75/442. 29: - Article 3(1)(b). 30: - Joined Cases C-304/94, C-330/94, C-342/94 and C-224/95, cited in footnote 12, paragraph 52. 31: - That provision, as amended by Directive 91/156, reads: 'Use principally as a fuel or other means to generate energy'. 32: - Case C-129/96, cited in footnote 7. 33: - The categories, as amended by Directive 91/156, read: D14 Repackaging prior to submission to any of the operations in this annex D15 Storage pending any of the operations in this annex ... R11 Use of wastes obtained from any of the operations numbered R1 - R10 R12 Exchange of wastes for submission to any of the operations numbered R1 - R11. 34: - That category is listed under R2 in Directive 91/156. 35: - That provision, as amended in 1996, reads: 'Storage of wastes pending any of the operations numbered R1 to R12 ...'. 36: - Article 3(1)(b)(i). 37: - Judgment in Joined Cases C-304/94, C-330/94, C-342/94 and C-224/95, cited in footnote 12, paragraph 53 et seq.; Opinion in that case, point 61. 38: - As amended by Directive 91/156. 39: - As amended by Directive 91/156. 40: - Case C-422/92 Commission v Germany [1995] ECR I-1097. 41: - Case C-129/96, cited in footnote 7. 42: - Case C-129/96, cited in footnote 7, paragraph 28. 43: - Case C-129/96, cited in footnote 7, paragraph 28.