62001CC0114_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1. In this case the Korkein hallinto-oikeus (Supreme Administrative Court, Finland) has asked the Court for guidance as to the criteria which are relevant for determining whether in a series of defined circumstances leftover rock resulting from the extraction of ore and/or ore-dressing
(2) sand resulting from the dressing of ore in mining operations is to be regarded as waste within the meaning of Directive 75/442 on waste as amended
(3) (‘the Waste Directive̕ or ‘the Directive̕).
2. Since the reference in the present case was made, those questions have largely been resolved by the judgment of the Court in
Palin Granit .
(4)
The Korkein hallinto-oikeus has also however put a series of questions concerning the correct interpretation of Article 2(1)(b) of the Waste Directive.
That article states that ‘waste resulting from prospecting, extraction, treatment and storage of mineral resources and the working of quarries̕ is to be excluded from the scope of the Directive where it is ‘already covered by other legislation̕.
The referring court asks in particular whether ‘other legislation̕ includes national legislation, and, if so, whether such legislation must (i) already have been in force when the Directive entered into force and/or (ii) comply with any substantive requirements concerning the level of environmental protection.
The Waste Directive
3. The third recital in the preamble to Directive 75/442 (‘the original directive̕) states that ‘the essential objective of all provisions relating to waste disposal must be the protection of human health and the environment against harmful effects caused by the collection, transport, treatment, storage and tipping of waste̕.
4. The first recital in the preamble to Directive 91/156 (‘the amending directive̕),
(5) which amends the original directive and replaces its substantive provisions, states that ‘the amendments take as a base a high level of environmental protection̕.
5. Article 1(a) of the Directive defines ‘waste̕ as ‘any substance or object in the categories set out in Annex I which the holder discards or intends or is required to discard̕.
6. Article 1(c) defines ‘holder̕ as ‘the producer of the waste or the natural or legal person who is in possession of it̕.
7. Article 2 provides:
‘1. The following shall be excluded from the scope of this Directive:
(a) gaseous effluents emitted into the atmosphere;
(b) where they are already covered by other legislation:
(i) radioactive waste;
(ii) waste resulting from prospecting, extraction, treatment and storage of mineral resources and the working of quarries;
(iii) animal carcases and the following agricultural waste:
faecal matter and other natural, non-dangerous substances used in farming;
(iv) waste waters, with the exception of waste in liquid form;
(v) decommissioned explosives.
2. Specific rules for particular instances or supplementing those of this Directive on the management of particular categories of waste may be laid down by means of individual Directives.̕
8. Annex I to the Directive, headed ‘Categories of waste̕, includes under head Q11 ‘Residues from raw materials extraction and processing (e.g. mining residues, oil field slops, etc.)̕.
The final head, Q16, mentions ‘Any materials, substances or products which are not contained in the above categories̕.
The relevant national legislation
9. In Finland, the Waste Directive is implemented by Jätelaki (Law on waste).
(6)
That law defines waste in essentially the same terms as the Directive, namely as a ‘substance or object which its holder has discarded or intends or is obliged to discard̕.
10. Section 42(1) of the Jätelaki provides that a licence (waste licence) is required for the industrial or commercial recovery or treatment of waste, the commercial collection of problem waste, and other significant activity with respect to waste disposal to be more closely defined by regulation.
11. Section 11(2) of the Jäteasetus (Regulation on waste)
(7) lists other significant activities with respect to waste disposal.
That list includes mines and ore-dressing plants and, under transitional provisions, old mines and ore-dressing plants which started operation before the entry into force of the Jätelaki on 1 January 1994.
The mine at issue in the present case is a mine and ore-dressing plant subject to those transitional provisions.
12. Under Section 1(1)(2) of the Jäteasetus,
(8) however, the provisions of the Jätelaki concerning the licence do not apply to non-hazardous soil and mineral waste resulting from mining operations and recovered or treated whether on site or elsewhere if the waste is recovered or treated in accordance with a plan approved under the Kaivoslaki (Law on mines).
(9)
Section 1(1)(2) came into force in 1997.
13. Under Section 3 of the Jäteasetus, the substances and objects listed in Annex 1 to that regulation are classified as waste within the meaning of the Jätelaki.
Annex 1, which substantially reproduces Annex I to the Directive, lists 16 categories, of which category Q11 contains residues resulting from the separation and processing of raw materials, such as residues of mining operations.
The final category, category Q16, reads as follows:
‘Other materials, substances or products which their holder has discarded or intends or is obliged to discard̕.
14. The Kaivoslaki contains special provisions on by-products of mining operations.
In particular, Section 40(2) provides that excavated soil, excavated leftover rock and ore-dressing sand resulting from mining operations which is stored in the area of the mining concession or its ancillary site and which has a use in the mining operation or which may be further processed is regarded as a by-product of mining operations in accordance with that law.
According to the order for reference, it is apparent from the grounds of the Government Proposal
(10) concerning that provision, although not expressly stated in the provision, that by defining leftover rock and ore-dressing sand as ‘by-products of mining operations̕ the intention was to exclude those materials from the waste licence procedure, provided that they do not cause a danger to the environment and that they have a use in the mining operation or may be further processed into saleable products.
Section 40(2) came into force in 1995.
The main proceedings and the questions referred
15. Under Finnish legislation an environmental licence is required for certain projects.
AvestaPolarit Chrome Oy (formerly Outokumpu Chrome Oy), a Finnish company, applied in 1996 to Lapin ympäristökeskus (Lapland Environment Centre, hereinafter ‘the Ympäristökeskus̕) for an environmental licence to continue mining and ore-dressing operations on the site of Kemi mine.
Such operations had then been carried on in that mine for about 30 years.
16. According to the application, the mine was to be converted in stages to underground extraction from 2002.
The mining operations involve extraction by boring and blasting, crushing, rough dressing and fine dressing.
Annual extraction of ore averages some 1 100 000 tonnes, entailing an annual production of some 8 000 000 tonnes of leftover rock.
17. Leftover ore-dressing sand is stored in settling ponds, of which there are six:
one was at the time of the application already full, two ponds risked becoming full in 2000 and three would still be in use for a long time.
Those areas are part of the mining concession̕s ancillary sites, the definitive landscaping of which will be decided when the mining concession is terminated.
18. About 100 million tonnes of leftover rock is stored on the mine̕s tipping areas.
The mine has an annually revised tipping plan for leftover rock, which provides for the fact that leftover rock will be needed after approximately 70 to 100 years for filling in the underground parts of the mine;
before the end of that period stacks of leftover rock will, however, be landscaped.
Part of the stacks of leftover rock may remain on the site permanently.
Only a small part of the leftover rock, perhaps about 20%, is usable as raw material for aggregates.
The stacks of leftover rock already stored cannot be used for producing aggregates, but they may possibly be used as filling material in breakwaters and embankments.
19. The Ympäristökeskus granted an environmental licence for the Kemi mine subject to a number of conditions reflecting its assessment that the leftover rock and ore-dressing sand resulting from the mine were waste under the Jätelaki.
20. AvestaPolarit appealed to the Korkein hallinto-oikeus against the decision of the Ympäristökeskus, seeking the deletion from the licence decision of
inter alia
all the conditions concerning leftover rock and ore-dressing sand in which those by-products of mining operations were defined as waste.
It argued that those conditions had no legal basis and that on a number of grounds the leftover rock and ore-dressing sand did not constitute waste.
Those grounds are apparent from the questions referred, which are set out below.
(11)
21. The question before the Korkein hallinto-oikeus was accordingly whether the leftover rock and ore-dressing sand were to be regarded as waste within the meaning of the Jätelaki, which uses the same definition of waste as the Waste Directive which it implements.
22. That court also considered that, if the above question were answered in the affirmative, Article 2(1)(b) of the Waste Directive might be relevant.
According to that provision, the Waste Directive does not apply to the kinds of waste listed in points (i) to (iv) ‘where they are already covered by other legislation̕.
Point (ii) mentions waste resulting from the prospecting, extraction and storage of mineral resources, that is, various kinds of waste from mining operations, as waste which would be excluded from the scope of the Waste Directive if covered by ‘other legislation̕.
The referring court considered that it was not clear however whether ‘other legislation̕ encompassed national legislation, such as, in the present case, the Kaivoslaki and the Jäteasesus.
23. The Korkein hallinto-oikeus noted that the language versions of Article 2(1)(b) were not consistent in that the Finnish version contained no temporal qualification whereas the other language versions available to that court included the word ‘already̕ or an equivalent expression.
Even if it were assumed that the Finnish version was erroneous, it would still be debatable whether Article 2(1)(b) referred only to national legislation which was in force at the time of entry into force of the Directive.
(12)
The point is relevant to the present case because, of the provisions of national legislation relied on by AvestaPolarit, Section 40(2) of the Kaivoslaki was enacted on 17 February 1995 and Section 1(1)(2) of the Jäteasetus on 4 April 1997.
24. Finally, if Article 2(1)(b) of the Directive refers to national legislation, the question arises whether fundamental European Community provisions relating to protection of the environment or possibly the Waste Directive itself requires that such national legislation guarantees a particular level of environmental protection.
25. The Korkein hallinto-oikeus accordingly decided to stay the proceedings and seek a preliminary ruling from the Court of Justice of the European Communities on the following questions:
‘(1) Are leftover rock resulting from the extraction of ore and/or ore-dressing sand resulting from the dressing of ore in mining operations to be regarded as waste within the meaning of Article 1(a) of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC of 18 March 1991, having regard to points (a) to (d) below?
(a) What relevance, in deciding the above question, does it have that the leftover rock and ore-dressing sand is stored on the area of the mining concession or its ancillary site? Is it relevant generally, with respect to falling within the definition of waste, whether the said by-products of mining operations are stored on the area of the mining concession, its ancillary site or further away?
(b) What relevance does it have, in assessing the matter, that the leftover rock is the same as regards its composition as the basic rock from which it is quarried, and that it does not change its composition regardless of how long it is kept and how it is kept? Should ore-dressing sand which results from the ore-dressing process perhaps be assessed differently from leftover stone in this respect?
(c) What relevance does it have, in assessing the matter, that leftover rock is harmless to human health and the environment, but that, according to the view of the environmental licence authorities, substances harmful to health and the environment dissolve from ore-dressing sand? To what extent generally is importance to be attached to the possible effect of leftover rock and ore-dressing sand on health and the environment in assessing whether they are waste?
(d) What relevance does it have, in assessing the matter, that leftover rock and ore-dressing sand are not intended to be discarded? Leftover rock and ore-dressing sand may be re-used without special processing measures, for example for supporting mine galleries, and leftover rock also for landscaping the mine after it has ceased operation. Minerals may in future with the development of technology be recovered from ore-dressing sand for utilisation. To what extent should attention be paid to how definite plans the person carrying on mining operations has for such utilisation and to how soon after the leftover rock and ore-dressing sand has been tipped on the mining concession or its ancillary site the utilisation would take place?
(2) If the answer to the first question is that leftover rock and/or ore-dressing sand is to be regarded as waste within the meaning of Article 1(a) of the Council Directive on waste, it is further necessary to obtain an answer to the following supplementary questions:
(a) Does “other legislation” within the meaning of Article 2(1)(b) of the Waste Directive (91/156/EEC), waste covered by which is excluded from the scope of the directive, and which under point (ii) concerns
inter alia
waste resulting from prospecting, extraction, treatment and storage of mineral resources, mean exclusively the European Community ' s own legislation? Or may national legislation too, such as certain provisions of the Kaivoslaki and the Jäteasetus in force in Finland, be “other legislation” within the meaning of the Waste Directive?
(b) If “other legislation” means also national legislation, does that mean exclusively national legislation which was already in force at the time of entry into force of the Waste Directive 91/156/EEC or also that enacted only afterwards?
(c) If “other legislation” means also national legislation, do fundamental European Community provisions relating to environmental protection or the principles of the Waste Directive set requirements for national legislation concerning the level of environmental protection as a condition for disapplying the rules of the Waste Directive? What sort of requirements could those be?̕
26. Written observations were submitted by AvestaPolarit, the Austrian, Finnish, German, and United Kingdom Governments and the Commission.
AvestaPolarit, the Finnish, Netherlands and United Kingdom Governments and the Commission were represented at the hearing.
The first question referred
27. The referring court̕s first question concerns the criteria which are relevant for determining whether leftover rock resulting from the extraction of ore and/or ore-dressing sand resulting from the dressing of ore in mining operations is to be regarded as waste within the meaning of the Waste Directive.
28. The Finnish Government states in its written observations that several proceedings are pending before the Finnish courts concerning the classification of minerals as waste.
In January 2000 in the case of
Palin Granit (13) the Korkein hallinto-oikeus referred to the Court a series of questions concerning the relevant criteria for determining whether leftover stone resulting from granite quarrying is to be regarded as waste within the meaning of the Waste Directive having regard to the following points:
‘(a) What relevance, in deciding the above question, does it have that the leftover stone is stored on a site adjoining the place of quarrying to await subsequent use? Is it relevant generally whether it is stored on the quarrying site, a site next to it or further away?
(b) What relevance does it have that the leftover stone is the same as regards its composition as the basic rock from which it has been quarried, and that it does not change its composition regardless of how long it is kept or how it is kept?
(c) What relevance does it have that the leftover stone is harmless to human health and the environment? To what extent generally is importance to be attached to its possible effect on health and the environment in assessing whether it is waste?
(d) What relevance does it have that the intention is to transfer the leftover stone in whole or in part away from the storage site for use, for example for landfill or breakwaters, and that it could be recovered as such without processing or similar measures? To what extent in this connection should attention be paid to how definite plans the holder of the leftover stone has for such use and to how soon after the leftover stone has been deposited on the storage site the use takes place?̕
29. At the hearing in the present case, which took place in January 2003, it was accepted by those present that in so far as concerned the first question referred the written observations had been largely overtaken by the judgment in
Palin Granit, delivered on 18 April 2002.
I will accordingly first consider the extent to which that judgment has indeed answered the first question.
30. Reviewing the Court̕s earlier case-law concerning the definition of waste under the Directive, the Court in
Palin Granit
made the following points.
31. The term ‘waste̕, the scope of which turns on the meaning of the term ‘discard̕,
(14) cannot be interpreted restrictively.
(15)
Neither the fact that the leftover stone has undergone a treatment operation referred to in the Directive nor the fact that it can be reused suffices to establish whether that st one is waste for the purposes of the Directive.
(16)
Leftover stone from extraction processes which is not the product primarily sought by the operator of a granite quarry falls, in principle, into the category of ‘[r]esidues from raw materials extraction and processing̕ under head Q11 of Annex I to the Directive.
(17)
Goods, materials or raw materials resulting from a manufacturing or extraction process, the primary aim of which is not the production of that item, may none the less be regarded not as a residue but as a by-product which the undertaking does not wish to ‘discard̕, within the meaning of the first paragraph of Article 1(a) of the Directive, but intends to exploit or market on terms which are advantageous to it, in a subsequent process, without any further processing prior to reuse.
However, since the concept of waste is to be interpreted widely, that reasoning should be confined to situations in which the reuse of the goods, materials or raw materials is not a mere possibility but a certainty, without any further processing prior to reuse and as an integral part of the production process.
If, in addition to the mere possibility of reuse, there is also a financial advantage to the holder in so doing, the likelihood of reuse is high.
In such circumstances, the substance in question must no longer be regarded as a burden which its holder seeks to ‘discard̕, but as a genuine product.
(18)
32. The Court in
Palin Granit
concluded that since in the case before it the only foreseeable reuses of leftover stone in its existing state, for example in embankment work or in the construction of harbours and breakwaters, necessitated, in most cases, potentially long-term storage operations which constituted a burden to the holder and were also potentially the cause of precisely the environmental pollution which the Directive sought to reduce, the reuse was not certain and was only contemplated in the longer term.
The leftover stone could therefore be regarded only as ‘extraction residue̕ which its holder ‘intends or is required to discard̕ within the meaning of the Directive, and thus fell within the scope of head Q11 of Annex I thereto.
(19)
33. The Court then turned to the factors raised by the referring court in sub-questions (a) to (d), none of which it considered relevant to classifying the leftover stone as waste.
34. With regard to sub-question (a), the Court observed that it followed from the analysis of the principal question that the place of storage of the leftover stone was not relevant to its classification as waste.
Similarly, the conditions under which and the length of time for which the materials were kept did not, of themselves, provide any indication of either their value to the undertaking or the advantages which that undertaking could derive from them, or show whether the holder intended to discard the materials.
(20)
35. With regard to sub-question (b), the Court accepted that the fact that the leftover stone had the same composition as the blocks of stone extracted from the quarry and that its physical state did not change could render it suitable for the uses which could be made of it.
However, that argument would be decisive only if all the leftover stone were reused.
The commercial value of blocks of stone depended on their size, shape and potential uses in the construction sector, qualities which leftover stone, despite having an identical composition, did not possess.
That leftover stone was therefore still production residue.
Moreover, the risk of environmental pollution posed by unused leftover stone was not mitigated by the fact that its mineral composition was identical to the blocks of stone, since that fact did not preclude storage of the leftover material which affected the environment.
In any event, even where a substance underwent a full recovery operation and thereby acquired the same properties and characteristics as a raw material, it could nevertheless be regarded as waste if, in accordance with the definition in Article 1(a) of the Directive, its holder discarded it, or intended or was required to discard it.
(21)
36. With regard to sub-question (c), the Court observed first that the Directive was supplemented by the Hazardous Waste Directive,
(22) which implied that the concept of waste did not turn on the hazardous nature of a substance.
It stated next that, even assuming that the leftover stone did not, by virtue of its composition, pose any risk to human health or the environment, stockpiling such stone was necessarily a source of harm to, and pollution of, the environment, since full reuse of the stone was neither immediate nor even always contemplated.
Finally, the harmlessness of the substance in question was not a decisive criterion for determining what its holder intended to do with it.
(23)
37. With regard to sub-question (d), the Court considered that that question had already been answered in the context of the main question.
It stated that the uncertainty surrounding the proposed uses of the leftover stone and the impossibility of reusing it in its entirety supported the conclusion that all that stone, and not merely the stone which would not be reused, was to be regarded as waste.
It added that in any event, under Article 11 of the Directive, it remained possible for national authorities to lay down rules providing for exemptions from the permit requirement and to grant such exemptions in respect of disposal and recovery operations for certain waste, and for national courts to ensure that those rules were observed in accordance with the aims of the Directive.
(24)
38. It remains to apply the above principles to the present case.
39. The Finnish Government explains in its written observations that the principal difference between
Palin Granit
and the present case is that the present case concerns mining rather than quarrying operations and that those operations generate not merely leftover rock but also leftover sand.
AvestaPolarit sought further to distinguish
Palin Granit
at the hearing on the ground principally that in the present case it did not discard the by-products but used them without further processing:
the rock supported the galleries of the underground mine being developed while the ore-dressing sand was stored.
40. Before the Korkein hallinto-oikeus AvestaPolarit had argued that the by-products could not be recovered or used immediately and must therefore be heaped up in the mining concession or its ancillary site.
It was possible to use part of the by-products in the mining operation and part in other operations depending on the location of the mine.
Leftover rock, as non-hazardous inert stone material, could be recovered, depending on the occasion and the place, but that could not be planned in advance.
It was not always known beforehand for how long a mine would operate.
Ore-dressing sand might later with the development of technology prove to be a valuable raw material and its usability must not be jeopardised.
41. If those statements of fact are correct (and that of course is a matter for the referring court to evaluate), the answer to the questions referred appears to follow directly from the judgment of the Court in
Palin Granit .
The holder of waste cannot restrict the scope of Community waste legislation by defining in his own terms the scope of the term ‘discard̕.
It is clear from the case-law of the Court that the meaning of that term depends on a series of factors dictated in particular by the overriding requirement of environmental protection enshrined in the Directive.
The Court has stressed that the degree of likelihood of re-using a by-product is a relevant criterion for determining whether it is waste within the meaning of the Directive.
In the present case, the re-use of the leftover rock is, as in
Palin Granit, not certain and only contemplated in the longer term;
the reuse of the ore-dressing sand appears, by AvestaPolarit̕s own admission, to be wholly speculative.
The by-products must therefore in principle be regarded as ‘extraction residue̕ which its holder ‘intends or is required to discard̕ within the meaning of the Directive, and thus fall within the scope of head Q11 of Annex I to that directive.
42. With regard to sub-questions (a) to (d), it follows from the above analysis that the specific factors mentioned in (d) are not relevant to classifying the leftover rock as waste in circumstances such as those of the present case.
It follows moreover from the judgment of the Court in
Palin Granit
that the factors mentioned in sub-questions (a) to (c) are similarly not relevant, for the reasons given in that judgment.
The referring court asks in sub-question (b) whether ore-dressing sand should be assessed differently from leftover stone:
to my mind, the analysis of the Court of the equivalent question in
Palin Granit, which is drawn in general terms, suggests no reason for drawing a distinction.
43. I accordingly conclude on the first question that (i) leftover rock resulting from the extraction of ore and sand resulting from the dressing of ore in mining operations which is stored for an indefinite length of time to await possible use are to be classified as waste within the meaning of the Directive, and (ii) the place of storage of leftover rock and sand, their composition and the fact, even if proven, that they do not pose any real risk to human health or the environment are not relevant criteria for determining whether the rock and sand are to be regarded as waste.
The second question
44. By its second question the referring court asks for guidance on the correct interpretation of Article 2(1)(b) of the Waste Directive.
That article states that specified categories of waste, including ‘waste resulting from prospecting, extraction, treatment and storage of mineral resources and the working of quarries̕, is to be excluded from the scope of the Directive where it is ‘already covered by other legislation̕.
The referring court asks in particular whether ‘other legislation̕ includes national legislation, and, if so, whether such legislation must (i) already have been in force when the Directive entered into force and/or (ii) comply with any substantive requirements concerning the level of environmental protection.
45. Several of those submitting written observations refer to the differences between the original and the amended versions of that provision.
46. Article 2 of the original directive provided as follows:
‘1. Without prejudice to this Directive, Member States may adopt specific rules for particular categories of waste.
2. The following shall be excluded from the scope of this Directive:
(a) radioactive waste;
(b) waste resulting from prospecting, extraction, treatment and storage of mineral resources and the working of quarries;
(c) animal carcases and the following agricultural waste:
faecal matter and other substances used in farming;
(d) waste waters, with the exception of waste in liquid form;
(e) gaseous effluents emitted into the atmosphere;
(f) waste covered by specific Community rules.̕
47. Article 2 of the Directive as amended provides:
‘1. The following shall be excluded from the scope of this Directive:
(a) gaseous effluents emitted into the atmosphere;
(b) where they are already covered by other legislation:
(i) radioactive waste;
(ii) waste resulting from prospecting, extraction, treatment and storage of mineral resources and the working of quarries;
(iii) animal carcases and the following agricultural waste:
faecal matter and other natural, non-dangerous substances used in farming;
(iv) waste waters, with the exception of waste in liquid form;
(v) decommissioned explosives.
2. Specific rules for particular instances or supplementing those of this Directive on the management of particular categories of waste may be laid down by means of individual Directives.̕
48. AvestaPolarit and the Austrian, German and United Kingdom Governments consider that the reference to ‘other legislation̕ in Article 2(1)(b) includes national legislation while the Finnish and Netherlands Governments and the Commission consider that it is limited to Community legislation.
49. AvestaPolarit and the Austrian, German and United Kingdom Governments variously support their argument by reference to the history, wording and scheme of the Directive.
50. They point out, first, that there was no Community legislation on the categories of waste referred to in Article 2(1)(b)(ii) (mining waste), (iii) (animal carcases and certain agricultural waste) and (v) (decommissioned explosives) at the time the amending Directive was adopted.
If ‘other legislation̕ meant solely Community legislation, the exclusion would thus have been meaningless.
51. The German Government adds that it is clear from the original directive that the legislature assumed that disposal of the categories of waste listed in Article 2(2)(a) to (e) could be ensured by national legislation.
When amending the Directive in 1991, the legislature drafted a much narrower list of exceptions which apply only for waste covered by other legislation guaranteeing their disposal in compliance with environmental law.
Nothing suggests that the amendments were intended to change the rule in the original directive and exclude the possibility that disposal complying with environmental law could also be ensured on the basis of national law.
The United Kingdom adduces a similar argument.
52. Next, AvestaPolarit and the Austrian, German and United Kingdom Governments submit that both the original directive and the Directive as amended use different formulations such as ‘specific Community rules̕ and ‘individual directives̕ when they intend to refer exclusively to Community provisions.
53. With regard to the scheme of the Directive, AvestaPolarit submits that the Waste Directive contains other references which must be to national law, such as category Q13 in Annex I, ‘Any materials, substances or products whose use has been banned
by law ̕ and the definition of waste in Article 1(a) as ‘any substance or object … which the holder discards or intends or
is required
to discard̕.
(25)
Moreover Article 11 provides for exemptions from the requirement for a permit for certain undertakings.
Since the exemptions are available where the competent authorities have adopted general rules for the activities concerned, the Directive cannot in any event achieve identical results in the different Member States.
54. Austria and Germany submit that if ‘other legislation̕ referred solely to Community legislation, the list of excluded waste in Article 2(1)(b) would be redundant, since by virtue of the principle of
lex specialis
specific Community rules in any event override general Community law;
it would accordingly be unnecessary to say so.
55. Germany adds that the Directive seeks to ensure a high level of environmental protection.
Certain waste, however, such as radioactive waste, must be processed in accordance with specific rules.
In general, directives are not appropriate instruments for laying down such specific requirements.
It is therefore logical that such waste should be excluded from the scope of the Directive and governed instead by other specific legislation – even if such legislation initially existed only at national level.
56. I am not convinced by the arguments adduced by AvestaPolarit and the Austrian, German and United Kingdom Governments.
At least at first sight it seems more plausible that a harmonising measure should allow for more specific Community legislation in certain fields within its scope than that it should permit Member States to derogate from it at will by national legislation.
The former interpretation to my mind follows from the objectives, scheme and history of the Directive.
Before turning to those aspects of the legislation, however, I will briefly consider the wording of the provision at issue, which has been invoked by all the abovementioned parties in support of their approach.
57. I am not persuaded by the arguments of those parties that much weight should be given to the fact that references in the Directive which relate unequivocally to Community legislation use formulations which are different from, and more specific than, ‘other legislation̕.
In an ideal world, of course, the draftsman of legislation would always be precise, consistent and coherent.
Inevitably however that ideal is not universally attained.
In the present case, the wording appears to be ambiguous;
it certainly cannot in my view be construed as necessarily having the meaning contended for by AvestaPolarit and the Austrian, German and United Kingdom Governments.
58. It may be moreover that the legislature deliberately chose different terms to distinguish between the different intended effects of ‘other legislation̕ in Article 2(1)(b) and ‘individual directives̕ in Article 2(2).
In the original directive, ‘waste covered by specific Community rules̕ was simply excluded from its scope.
The amended directive is more subtle.
Certain specified categories of waste are excluded ‘where they are already covered by other legislation̕;
specific rules on the management of particular categories of waste which are necessary to deal with particular cases or to supplement the Directive – which will none the less continue to apply – may additionally be enacted ‘by means of individual directives̕.
(26)
Thus ‘specific Community rules̕ in the original directive has in effect been subdivided into two classes of legislation with different objectives and effects:
‘other legislation̕ covering waste within the categories listed in Article 2(1)(b) and removing it from the scope of the Directive and ‘individual directives̕ supplementing the rules of the Directive for other categories of waste.
59. I do not consider furthermore that much can be inferred from the differences of detail between Article 2 of the original directive and Article 2 as amended, although the United Kingdom seeks to derive support for its interpretation from a meticulous comparison of such differences.
It is however useful to consider the amendments made in 1991 in their broader context.
60. The preamble to the amending directive states:
‘…Directive 75/442/EEC established a set of Community rules on waste disposal;
… these must be amended to take account of experience gained in the implementation of this Directive by the Member States;
… the amendments take as a base a high level of environmental protection;
… the Council undertook to amend Directive 75/442 in its resolution of 7 May 1990 on waste policy;
… common terminology and a definition of waste are needed in order to improve the efficiency of waste management in the Community;
…
… any disparity between Member States ' laws on waste disposal and recovery can affect the quality of the environment and interfere with the functioning of the internal market̕.
(27)
61. The first recital in the preamble to the Council ' s resolution of 7 May 1990 on waste policy
(28) states:
‘in the interests of environmental protection, there is a need for a comprehensive waste policy in the Community which deals with all waste, regardless of whether it is to be recycled, reused or disposed of̕.
62. Thus it is clear that the general tenor of the amending directive is inclusive:
the definition of ‘waste̕ is extensive with a view to promoting the uniform implementation by Member States of Community waste legislation.
That view is moreover borne out by the Explanatory Memorandum to the Proposal for the amending directive,
(29) which states:
‘The framework character of this Directive is underscored and formalised.
It is a general Directive which will apply to all waste.
Its provisions will no longer be repeated in the individual Directives applying to specific categories of waste.̕
63. The amendments to Article 2 of the original directive consist of:
(i) the removal of the original Article 2(1) (‘Without prejudice to this Directive, Member States may adopt specific rules for particular categories of waste̕);
(ii) the addition of the qualification ‘where they are already covered by other legislation̕ to the original categories (a), (b), (c), and (d) in Article 2(2) (renumbered (b)(i) to (iv) of Article 2(1)), to which was added a new category (b)(v) ‘decommissioned explosives̕;
(iii) the removal of the original category (f) in Article 2(2) (‘waste covered by specific Community rules̕);
(iv) the addition of a new Article 2(2) (‘Specific rules for particular instances or supplementing those of this Directive on the management of particular categories of waste may be laid down by means of individual Directives.̕) and
(v) the re-enactment of the original category (e) in Article 2(2) (‘gaseous effluents emitted into the atmosphere̕) as Article 2(a), such effluents remaining excluded from the scope of the Directive without qualification.
64. It seems clear that the first amendment was intended to preclude Member States from any longer adopting specific rules for particular categories of waste, in line with the overall aim of establishing a uniform Community definition of waste.
The argument adduced by Germany to the effect that the 1991 amendments were not designed to exclude the possibility that environmentally sound waste management could continue to be ensured on the basis of national law is not in my view borne out by the scheme of the amending directive.
65. The third amendment is consistent with the conversion of the original directive into a framework directive.
The category ‘waste covered by specific Community rules̕ which it removes is replaced by the new Article 2(2) pursuant to the fourth amendment.
That amendment was intended to make clear that the Community legislature could continue to adopt ‘individual Directives applying to specific categories of waste̕ notwithstanding the fact that Directive 75/442 as amended was to be a framework directive in principle applicable to all waste.
That amendment does not envisage the adoption of further directives laying down general provisions for the management of general categories of waste, which will thereby be excluded from the scope of the Waste Directive, but rather the enactment of category-specific provisions for the management of particular categories of waste to supplement the provisions of the Directive.
Such legislation sets out specific objectives, targets, criteria or procedures in relation to a specified category of waste for which provisions supplementing those of the Waste Directive are deemed appropriate without however excluding such waste from the general scope of the Waste Directive.
A good example (although there are many others
(30) ) is the Hazardous Waste Directive,
(31) the preamble to which states:
‘… the general rules applying to waste management which are laid down by Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Directive 91/156/EEC, also apply to the management of hazardous waste;
… the correct management of hazardous waste necessitates additional, more stringent rules to take account of the special nature of such waste̕.
(32)
66. There remains the amendment at issue in the present case, namely the second amendment, which adds the words ‘where they are already covered by other legislation̕ to preface the categories of waste listed in Article 2(1)(b)(i) to (v).
The effect of those words is in my view to exclude those categories of waste from the scope of the Directive where they are covered by Community legislation.
At the time the amending directive was adopted, Community legislation regulated radioactive waste,
(33) animal carcases
(34) and faecal matter used in farming.
(35)
It is clear that those directives lay down a complete code for the treatment of the waste in question.
The Animal Waste Directive, for example, includes a general definition of ‘animal waste̕ and establishes detailed procedures for the processing of such waste.
The Sewage Sludge Directive similarly gives a broad definition of ‘sludge̕ and regulates in detail its use in agriculture.
I do not accept the German Government ' s argument that the categories of waste listed in Article 2(2)(b) of the Directive as amended should logically be governed by national legislation since directives are not appropriate instruments for laying down specific and detailed requirements.
67. Nor am I persuaded by the argument that the exclusion would have been meaningless if ‘other legislation̕ meant solely Community legislation because there was no Community legislation on the categories of waste referred to in Article 2(1)(b)(ii) (mining waste), (iii) (animal carcases and certain agricultural waste) and (v) (decommissioned explosives) at the time the amending directive was adopted.
On the contrary, the juxtaposition of categories of waste subject to existing Community legislation with categories not then regulated at Community level suggests to me that the legislature was envisaging the possibility of future Community legislation governing those categories;
in the meantime, however, given the explicitly extensive and inclusive nature of the intended scope of the Directive as amended, those categories of waste were intended to remain within that scope.
68. That pattern also suggests that the word ‘already̕ in Article 2(1)(b) of the Directive as amended was not intended to limit the category to waste covered by other legislation adopted before the Directive but to include waste covered by other (Community) legislation at whatever time the question arises, regardless of when that legislation was adopted.
That interpretation is also borne out by the situation with regard to waste waters, excluded by Article 2(1)(b)(iv) ‘where they are already covered by other legislation̕.
The Waste Water Directive
(36) was adopted only two months after the 1991 amending directive on the basis of a Commission proposal published in January 1990, five days after publication of the amended proposal for the amending directive.
The two directives therefore progressed through the legislative stages together for part of the time, so that it is inconceivable that the legislature when adopting the one was unaware of the other.
The word ‘already̕ cannot therefore have the limited meaning described above – it would be absurd to suggest that waste waters remain within the scope of the Waste Directive even after adoption of the Waste Water Directive simply because that directive was adopted two months later.
69. It is instructive in my view to consider the consequences which would flow from the interpretation supported by AvestaPolarit and the Austrian, German and United Kingdom Governments.
70. First, it would be extremely difficult to determine with any degree of confidence the scope of the Waste Directive at any given moment.
There is no provision in the Directive requiring Member States which enact legislation governing waste in the categories listed in Article 2(1)(b) to notify the Commission of such legislation.
71. That omission in itself is in my view telling:
the Directive in contrast imposes specific obligations on Member States to notify the Commission of (i) measures they intend to take to achieve the aims set out in Article 3(1) of the Directive,
(37) (ii) waste management plans drawn up in accordance with Article 7(1),
(38) (iii) any measures necessary to prevent movements of waste which are not in accordance with their waste management plans,
(39) and (iv) any general rules regulating waste disposal or recovery activities exempted pursuant to Article 11 of the Directive from the permit requirement imposed by Article 9 or 10.
(40)
72. Moreover Member States are required to send the Commission every three years information on the implementation of the Directive in the form of a sectoral report drawn up on the basis of a questionnaire drafted by the Commission.
(41)
That questionnaire
(42) repeats the requirements of the Directive in soliciting information concerning waste management plans and measures taken pursuant to Articles 3(1), 7(3) and 11(1).
73. Thus while it is true that, as Austria and Germany submit, the Directive cannot achieve identical results in the different Member States, the Commission must be kept informed of national patterns of implementation.
It seems inconceivable that, in the context of a detailed framework for the provision of information to the Commission on national measures taken pursuant to the Directive, Member States would not also be required to inform the Commission of any national legislation adopted in the areas listed in Article 2(1)(b), the effect of which would be – on the interpretation put forward by the Austrian, German and United Kingdom Governments – wholly to exclude such areas from the scope of the Directive.
74. Furthermore the interpretation proposed by AvestaPolarit and those Governments would mean that the scope of the Directive would vary from one moment to another as individual Member States enacted, amended or repealed legislation covering the categories of waste listed in Article 2(1)(b).
Even though AvestaPolarit and the United Kingdom consider that only legislation in force when the amending directive was adopted is covered, both those parties submit that subsequent amendments to or consolidation of such legislation does not remove it from the definition.
That proviso, however, may equally prejudice legal certainty.
75. The ‘patchwork̕ definition of waste within the scope of the Directive which would result would not only, as discussed above, undermine legal certainty;
it would also clearly run directly counter to the objectives of the amending directive, namely to reduce disparities between Member States ' waste legislation by enacting a comprehensive Community waste policy taking as a base a high level of environmental protection.
(43)
76. Finally, at the hearing counsel for AvestaPolarit produced a copy of a letter written in December 1992 by the then Head of the Waste Management Unit in DG XI (now the Environment Directorate-General) to McKenna & Co., solicitors in London.
The letter reads as follows:
‘As explained on the telephone, the wording of Article 2(1)(b)(ii) was adopted with the understanding that it would cover other EC-legislation and where there is no EC-legislation, other national legislation.
In the understanding of the Commission, the national legislation would have to cover the management of the materials concerned.
What extent of equivalence would be considered, has not yet been established.̕
77. Admittedly, that letter states that ‘other legislation̕ within the meaning of Article 2(1)(b) could include national legislation.
The letter, however, simply indicates the view of one representative of the Commission at a particular time.
It is not a view that has been consistently held.
In 2000, for example, the Commission took the opposite view in two separate communications, in which it states ‘Directive 75/442/EEC on waste as amended by Directive 91/156/EEC applies to waste resulting from prospecting, extraction, treatment and storage of mineral resources and the working of quarries, since the latter are so far not covered by other Community legislation̕
(44) and ‘Article 2 of Directive 75/442/EEC on waste as amended by Directive 91/156/EEC establishes that waste resulting from prospecting, extraction, treatment and storage of mineral resources and the working of quarries shall be excluded from the scope of Directive 75/442/EEC where they are already covered by other Community legislation̕.
(45)
78. It does not seem to me therefore that much weight should be given to the letter produced by AvestaPolarit ' s counsel.
79. I accordingly conclude that, on the basis of the scheme and objectives of the Directive, the words ‘already covered by other legislation̕ in Article 2(1)(b) refer to Community legislation whether adopted before or after adoption of that directive.
Since question 2(b) and question 2(c) referred by the Korkein hallinto-oikeus are put only in the event that ‘other legislation̕ in Article 2(1)(b) includes national legislation, I do not propose to consider them.
Conclusion
80. I am accordingly of the opinion that the questions referred by the Korkein hallinto-oikeus should be answered as follows:
(1) Leftover rock resulting from the extraction of ore and/or ore-dressing sand resulting from the dressing of ore in mining operations which is stored for an indefinite length of time to await possible use are to be classified as waste within the meaning of Article 1(a) of Council Directive 75/442/EEC of 15 July 1975 on waste as amended by Council Directive 91/156/EEC of 18 March 1991.
(2) The place of storage of leftover rock and sand, their composition and the fact, even if proven, that they do not pose any real risk to human health or the environment are not relevant criteria for determining whether such rock and sand are to be regarded as waste.
(3) The words ‘already covered by other legislation̕ in Article 2(1)(b) of Directive 75/442 as amended refer to Community legislation whether adopted before or after adoption of that directive.
(1) .
(2) – The preparation or concentration of ore by treatment or cleaning to remove waste material.
(3) – 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.
(4) – Case C-9/00 [2002] ECR I-3533.
(5) – Cited in note 3 .
(6) – 1072/1993.
(7) – 1390/1993, as amended by 1414/1994.
(8) – As amended by 294/1997.
(9) – 503/1965.
(10) – 312/1994 vp.
(11) – See paragraph 25 .
(12) – The amending directive was adopted on 18 March 1991 and required implementation by 1 April 1993.
(13) – Cited in note 4 .
(14) – Case C-129/96
Inter-Environnement Wallonie
[1997] ECR I-7411, paragraph 26 of the judgment.
(15) – Joined Cases C-418/97 and C-419/97
ARCO Chemie Nederland and Others
[2000] ECR I-4475, paragraphs 36 to 40 of the judgment.
(16) – Joined Cases C-206/88 and C-207/88
Vessoso and Zanetti
[1990] ECR I-1461, paragraph 9 of the judgment;
Joined Cases C-304/94, C-330/94, C-342/94 and C-224/95
Tombesi and Others
[1997] ECR I-3561, paragraph 52 and
ARCO Chemie Nederland, paragraph 82.
(17) – See
ARCO Chemie Nederland, paragraphs 83 to 87 of the judgment.
(18) – Palin Granit, cited in note 4, paragraphs 33 to 37 of the judgment.
(19) – Paragraph 38 of the judgment.
(20) – Paragraph 42 of the judgment.
(21) – Paragraphs 43 to 46 of the judgment.
(22) – Council Directive 91/689/EEC of 12 December 1991 on hazardous waste, OJ 1991 L 377, p. 20.
(23) – Paragraphs 47 to 50.
(24) – Paragraphs 40 and 41 of the judgment.
(25) – Emphasis added.
(26) – See paragraphs 65 and
66
below for further discussion of the distinction between these two qualifications.
(27) – First, second, third and fifth recitals.
(28) – 90/C 122/02, OJ 1990 C 122, p. 2.
(29) – Proposal for a Council Directive amending Directive 75/442 on waste;
Proposal for a Council Directive on hazardous waste, COM(88) 391 final, 5 August 1988;
the quotation which follows is from the ‘Comments on the text of the proposals̕.
(30) – See for example Council Directive 91/157/EEC of 18 March 1991 on batteries and accumulators containing certain dangerous substances, OJ 1991 L 78, p. 38, as amended by Commission Directive 98/101/EC of 22 December 1998, OJ 1999 L 1, p. 1;
Council Directive 92/112/EEC of 15 December 1992 on procedures for harmonising the programmes for the reduction and eventual elimination of pollution caused by waste from the titanium dioxide industry, OJ 1992 L 409, p. 11;
European Parliament and Council Directive 94/62/EC of 20 December 1994 on packaging and packaging waste, OJ 1994 L 365, p. 10;
Council Directive 96/59/EC of 16 September 1996 on the disposal of polychlorinated biphenyls and polychlorinated terphenyls (PCB/PCT), OJ 1996 L 243, p. 31;
Directive 2000/53/EC of the European Parliament and of the Council of 18 September 2000 on end-of-life vehicles, OJ 2000 L 269, p. 34;
and most recently Directive 2002/95/EC of the European Parliament and of the Council of 27 January 2003 on the restriction of the use of certain hazardous substances in electrical and electronic equipment, OJ 2003 L 37, p. 19.
(31) – Cited in note 22 .
(32) – Third and fourth recitals.
(33) – See Council Resolution of 18 February 1980 on the implementation of a Community plan of action in the field of radioactive waste, OJ 1980 C 51, p. 1 and Council Decision 89/664/Euratom of 15 December 1989 adopting a specific research and technical development programme for the European Atomic Energy Community in the field of management and storage of radioactive waste (1990 to 1994), OJ 1989 L 395, p. 28.
(34) – Council Directive 90/667/EEC of 27 November 1990 laying down the veterinary rules for the disposal and processing of animal waste, for its placing on the market and for the prevention of pathogens in feedstuffs of animal or fish origin and amending Directive 90/425/EEC, OJ 1990 L 363, p. 51.
(35) – Council Directive 86/278/EEC of 12 June 1986 on the protection of the environment, and in particular of the soil, when sewage sludge is used in agriculture, OJ 1986 L 181, p. 6.
(36) – Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment, OJ 1991 L 135, p. 40.
(37) – Article 3(2).
(38) – Article 7(2).
(39) – Article 7(3).
(40) – Article 11(3).
(41) – See Article 16 of the Directive as amended by Council Directive 91/692/EEC of 23 December 1991 standardising and rationalising reports on the implementation of certain Directives relating to the environment, OJ 1991 L 377, p. 48.
(42) – Annexed to Commission Decision 94/741/EC of 24 October 1994 concerning questionnaires for Member States ' reports on the implementation of certain Directives in the waste sector (implementation of Council Directive 91/692/EEC), OJ 1994 L 296, p. 42.
(43) – See paragraphs 60 and
61
above.
(44) – Paragraph 3.1.1. of ‘Promoting sustainable development in the EU non-energy extractive industry̕, COM(2000) 265 final, 3 May 2000.
(45) – Paragraph 5.4.1 of ‘Safe operation of mining activities:
a follow-up to recent mining accidents̕, COM(2000) 664 final, 23 October 2000.