62005CJ0176_EN
Parties
Grounds
Operative part
Parties
In Case C‑176/05,
REFERENCE for a preliminary ruling under Article 234 EC from the Landesgericht für Zivilrechtssachen Wien (Austria), made by decision of 8 April 2005, received at the Court on 20 April 2005, in the proceedings
KVZ retec GmbH
v
Republik Österreich,
THE COURT (First Chamber),
composed of P. Jann, President of the Chamber, K. Lenaerts, E. Juhász, K. Schiemann (Rapporteur) and M. Ilešič, Judges,
Advocate General: J. Kokott,
Registrar: K. Sztranc‑Sławiczek, Administrator,
having regard to the written procedure and further to the hearing on 8 June 2006,
after considering the observations submitted on behalf of:
– KVZ retec GmbH, by H. Zanier and M. Firle, Rechtsanwälte,
– the Republik Österreich, by E. Hofbauer, acting as Agent,
– the Austrian Government, by E. Riedl, acting as Agent,
– the French Government, by G. de Bergues and R. Loosli‑Surrans, acting as Agents,
– the United Kingdom Government, by C. White, acting as Agent, and J. Maurici, Barrister,
– the Commission of the European Communities, by M. Konstantinidis and F. Erlbacher, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 7 September 2006,
gives the following
Judgment
Grounds
1. This reference for a preliminary ruling concerns the interpretation of 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), as amended by Commission Regulation (EC) No 2557/2001 of 28 December 2001 (OJ 2001 L 349, p. 1) (‘Regulation No 259/93’), and of Regulation (EC) No 1774/2002 of the European Parliament and of the Council of 3 October 2002 laying down health rules concerning animal by-products not intended for human consumption (OJ 2002 L 273, p. 1), as amended by Commission Regulation (EC) No 808/2003 of 12 May 2003 (OJ 2003 L 117, p. 1) (‘Regulation No 1774/2002’).
2. The reference was made in the course of proceedings between KVZ retec GmbH (‘KVZ’) and the Republik Österreich regarding, firstly, the application of the Community legislation on waste to the shipment of meat-and-bone meal for use as fuel in a power station and, secondly, the relation between that legislation and Regulation No 1774/2002.
Legal context
Directive 75/442/EEC
3. The first subparagraph of Article 1(a) of Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39), as amended by Commission Decision 96/350/EC of 24 May 1996 (OJ 1996 L 135, p. 32) (‘Directive 75/442’), defines the term ‘waste’ as ‘any substance or object in the categories set out in Annex I which the holder discards or intends or is required to discard’.
4. As set out in Article 1 of Directive 75/442:
‘For the purposes of this Directive:
…
(e) “disposal” shall mean any of the operations provided for in Annex IIA;
(f) “recovery” shall mean any of the operations provided for in Annex IIB;
…’
5. Among the categories of waste listed in Annex I to Directive 75/442 is category Q16, which is defined as ‘[a]ny materials, substances or products which are not contained in the above categories’.
6. Annex IIB to Directive 75/442 is intended to list waste recovery operations as they are carried out in practice. Those operations include inter alia the following:
‘R 1 Use principally as a fuel or other means to generate energy’.
7. Article 2(1) of Directive 75/442 provides:
‘The following shall be excluded from the scope of this Directive:
…
(b) where they are already covered by other legislation:
…
(iii) 	animal carcases and the following agricultural waste: faecal matter and other natural, non-dangerous substances used in farming;
…’
Regulation No 259/93
8. Article 1 of Regulation No 259/93 is worded as follows:
‘1. This Regulation shall apply to shipments of waste within, into and out of the Community.
2. The following shall be excluded from the scope of this Regulation:
…
(d) shipments of waste mentioned in Article 2(1)(b) of Directive 75/442/EEC, where they are already covered by other relevant legislation;
…
3. (a) 	Shipments of waste destined for recovery only and listed in Annex II shall also be excluded from the provisions of this Regulation except as provided for in subparagraphs (b), (c), (d) and (e), in Article 11 and in Article 17(1), (2) and (3).
(b) 	Such waste shall be subject to all provisions of Directive 75/442/EEC. It shall in particular be:
– destined for duly authorised facilities only, authorised according to Articles 10 and 11 of Directive 75/442/EEC,
– subject to all provisions of Articles 8, 12, 13 and 14 of Directive 75/442/EEC.
(c) 	However, certain wastes listed in Annex II may be controlled, if, among other reasons, they exhibit any of the hazardous characteristics listed in Annex III of Council Directive 91/689/EEC, as if they had been listed in Annex III or IV.
These wastes and the decision about which of the two procedures should be followed shall be determined in accordance with the procedure laid down in Article 18 of Directive 75/442/EEC. Such wastes shall be listed in Annex IIA.
(d) 	In exceptional cases, shipments of wastes listed in Annex II may, for environmental or public health reasons, be controlled by Member States as if they had been listed in Annex III or IV.
Member States which make use of this possibility shall immediately notify the Commission of such cases and inform other Member States, as appropriate, and give reasons for their decision. The Commission, in accordance with the procedure laid down in Article 18 of Directive 75/442/EEC, may confirm such action including, where appropriate, by adding such wastes to Annex IIA.
(e) 	Where waste listed in Annex II is shipped in contravention of this Regulation or of Directive 75/442/EEC, Member States may apply appropriate provisions of Articles 25 and 26 of this Regulation.’
9. Under Article 2(a) of Regulation No 259/93:
‘For the purposes of this Regulation:
(a) “waste” is as defined in Article 1(a) of Directive 75/442/EEC’.
10. Article 11 of Regulation No 259/93 provides that shipments of waste for recovery listed in Annex II to that regulation must be accompanied by certain information.
11. Article 17(1) to (3) of Regulation No 259/93 provides for rules applicable to shipments of waste listed in Annex II thereto to countries to which the Decision of the Council of the Organisation for Economic Cooperation and Development (OECD) of 30 March 1992 on the control of transfrontier movements of wastes destined for recovery operations does not apply.
12. Annex II to Regulation No 259/93, entitled ‘Green list of wastes’ (‘the green list’), contains the following introduction:
‘Regardless of whether or not wastes are included on this list, they may not be moved as green wastes if they are contaminated by other materials to an extent which (a) increases the risks associated with the waste sufficiently to render it appropriate for inclusion in the amber or red lists, or (b) prevents the recovery of the waste in an environmentally sound manner.’
13. Category GM 130, which covers ‘[w]aste from the agro-food industry excluding by-products which meet national and international requirements and standards for human or animal consumption’, appears under the heading ‘GM. Wastes arising from agro-food industries’ in Annex II.
14. Article 26(1)(a) and (b) of Regulation No 259/93 states:
‘1. Any shipment of waste effected:
(a) without notification to all competent authorities concerned pursuant to the provisions of this Regulation; or
(b) without the consent of the competent authorities concerned pursuant to the provisions of this Regulation
…
shall be deemed to be illegal traffic’.
Regulation No 1774/2002
15. Article 1 of Regulation No 1774/2002 provides that that regulation lays down animal and public health rules for the collection, transport, storage, handling, processing and use or disposal of animal by-products to prevent these products from presenting a risk to animal or public health and also rules for the placing on the market and, in certain specific cases, the export and transit of animal by-products and those products derived from them which are referred to in Annexes VII and VIII to the regulation.
16. Article 2(1) of Regulation No 1774/2002 defines ‘animal by-products’ as entire bodies or parts of animals or products of animal origin referred to in Articles 4 to 6 of the regulation which are not intended for human consumption.
17. Article 4 of Regulation No 1774/2002, entitled ‘Category 1 material’, states:
1. Category 1 material shall comprise animal by-products of the following description, or any material containing such by-products:
…
(b) (i) specified risk material, …
…
2. Category 1 material shall be collected, transported and identified without undue delay in accordance with Article 7 and, except as otherwise provided in Articles 23 and 24, shall be:
(a) directly disposed of as waste by incineration in an incineration plant approved in accordance with Article 12;
(b) processed in a[n approved] processing plant … in which case the resulting material shall be … finally disposed of as waste by incineration or by co-incineration in an incineration or co-incineration plant approved in accordance with Article 12;
(c) with the exclusion of material referred to in paragraph 1(a)(i) and (ii), processed in a[n approved] processing plant … in which case the resulting material shall be … finally disposed of as waste by burial in a[n approved] landfill …
…
(e) in the light of developments in scientific knowledge, disposed of by other means that are approved in accordance with the procedure referred to in Article 33(2), after consultation of the appropriate scientific committee. These means may either supplement or replace those provided for in subparagraphs (a) to (d).’
18. Under the title ‘Category 3 material’, Article 6 of Regulation No 1774/2002 provides:
‘1. Category 3 material shall comprise animal by-products of the following description, or any material containing such by-products:
…
(e) animal by-products derived from the production of products intended for human consumption, including degreased bones and greaves;
…
2. Category 3 material shall be collected, transported and identified without undue delay in accordance with Article 7 and, except as otherwise provided in Articles 23 and 24, shall be:
(a) directly disposed of as waste by incineration in an incineration plant approved in accordance with Article 12;
(b) processed in a[n approved] processing plant … in which case the resulting material shall be … disposed of as waste either by incineration or by co-incineration in an incineration or co-incineration plant approved in accordance with Article 12 or in a[n approved] landfill …
(c) processed in a processing plant approved in accordance with Article 17;
(d) transformed in a technical plant approved in accordance with Article 18;
(e) used as raw material in a petfood plant approved in accordance with Article 18;
(f) transformed in a biogas plant or in a composting plant approved in accordance with Article 15;
…
(i) disposed of by other means, or used in other ways, in accordance with rules laid down under the procedure referred to in Article 33(2), after consultation of the appropriate scientific committee. These means or ways may either supplement or replace those provided for in subparagraphs (a) to (h).
…’
The dispute in the main proceedings and the questions referred for a preliminary ruling
19. Mr Krenski, a German engineer, who trades under the business name of PGI Umwelttechnik developed a meat-and-bone meal based fuel intended for use in a heating process (incineration) in a power station in Bulgaria, which had been specially approved for that purpose.
20. On 24 April 2003, in the port of Straubing (Germany), some 1 111 t of meat-and-bone meal (‘the meat-and-bone meal’) which were Mr Krenski’s property were loaded onto the cargo ship MS Euroca (‘the cargo ship’) for transport by river from Germany to Bulgaria and the recipient of the load, the company New-Energy-GmbH. Having crossed Austria and Hungary, the cargo ship reached Serbia where the national customs authorities prevented it from proceeding further, on the ground that the transit of meat-and-bone meal is contrary to Serbian law which provides that it constitutes waste.
21. Mr Krenski declined to agree to the voluntary designation of the cargo as waste because in those circumstances it would not have been allowed to enter Bulgarian territory where its final destination was to be found. In order to establish whether or not the meat-and-bone meal being transported was waste, it was taken back towards the port of Straubing. However, in the course of that return journey, on 1 June 2003, the Austrian customs authorities detained the cargo ship in the river port of Vienna/Hainburg.
22. By decision of 6 June 2003, made in accordance with Paragraph 69 of the Federal Law on Waste Management of 2002 (Abfallwirtschaftsgesetz 2002) and Article 26(1)(a) and (b) of Regulation No 259/93, the Bundesminister für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft (Federal Minister for Agriculture, Forestry, the Environment and Water Management) (‘the Minister’) authorised Mr Krenski to take the meat-and-bone meal back to the port of Straubing subject to compliance with certain conditions and obligations. It is apparent from the order for reference that, in the decision of 6 June 2003, the meat-and-bone meal was classified as ‘animal-tissue waste’ the shipment of which is subject to the obligation
of notification in accordance with the provisions of Regulation No 259/93.
23. Once those conditions and obligations were fulfilled, the Minister made it known on 19 September 2003 that there were no further objections to the meat-and-bone meal’s return to Straubing and, consequently, the cargo ship left the river port of Vienna/Hainburg in the direction of Germany.
24. The action brought by Mr Krenksi against the decision of 6 June 2003, in so far as it classifies the meat-and-bone meal as ‘animal-tissue waste’, was dismissed by order of the Verwaltungsgerichtshof (Higher Administrative Court) of 16 October 2003.
25. Following that order, KVZ, to which Mr Krenski had assigned his claims, brought an action on the basis of administrative liability against the Republik Österreich before the referring court, claiming payment of a sum of EUR 306 984.63 by way of damages, plus interest for late payment, for detention of the cargo ship.
26. It is in those circumstances that the Landesgericht für Zivilrechtssachen
Wien (Vienna Regional Civil Court) decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:
‘(1) Is the shipment (transit or, more specifically, return) of meat-and-bone meal, whether or not free of special risk material, subject, in so far as it involves waste, to the notification obligation under Regulation No 259/93?
If so,
(2) Is the shipment of meat-and-bone meal, whether or not free of special risk material, excluded from the application of Regulation No 259/93 in accordance with Article 1(2)(d) of that regulation?
If the answer to the second question is in the negative:
(3) Is the shipment (transit or, more specifically, return) of meat-and-bone meal
(a) which is free of special risk material; or
(b) which contains special risk material (classified as “Category 1” material under … Regulation … No 1774/2002)
illegal under Article 26(1)(a) and (b) of Regulation No 259/93, in the absence of notification to and the consent of the authorities concerned, on the ground that it involves waste within the meaning of Regulation No 259/93?’
The questions referred for a preliminary ruling
27. The questions referred by the national court, which must be examined together, essentially raise three fundamental issues. First, it must be established whether the shipment of meat-and-bone meal, if that meal is to be regarded as covered by the concept of animal carcases, is automatically excluded from the scope of Regulation No 259/93 pursuant to Article 1(2)(d) of that regulation. If the possibility of such an exclusion were to be ruled out, it would, secondly, be necessary to examine the question of the classification of that meat-and-bone meal as ‘waste’ within the meaning of Directive 75/442 and, therefore, of Regulation No 259/93. Lastly, it proves necessary to analyse whether there was an obligation to provide notification of the shipment of the meat-and-bone meal.
28. Before each of those three issues is examined in turn, the following few preliminary observations should be made.
29. The legal issues raised by the shipment of meat-and-bone meal concern the interpretation of the Community legislation relating, firstly, to waste and, secondly, to the protection of animal and human health. It is with the twofold nature of the dispute in the main proceedings in mind that an answer must be given to the national court.
30. Meat-and-bone meal is one of the products resulting from the rendering process. According to the explanations provided by the Austrian Government in its written observations, that meal is produced by the crushing of animal carcases which are subject to a batch pressure process. After the material obtained has been crushed again, the fat is extracted from it and the residue, which is rich in protein, is dried in order to obtain a powder which is, in part, also pressed and made into pellets.
31. The common practice of using animal protein in animal feed was suspended by Council Decision 2000/766/EC of 4 December 2000 concerning certain protection measures with regard to transmissible spongiform encephalopathies and the feeding of animal protein (OJ 2000 L 306, p. 32). As is apparent from point 6 of the reasons for that decision, as a precautionary measure, it was deemed appropriate to prohibit on a temporary basis the use of animal protein in animal feed and, as that prohibition could have environmental implications if not controlled properly, it was necessary to ensure that animal waste is collected, transported, processed, stored and disposed of in a safe manner.
32. Article 2(1) of Decision 2000/766 provided that Member States were required to prohibit the feeding of processed animal proteins to farmed animals which are kept, fattened or bred for the production of food.
33. On 22 May 2001, Regulation (EC) No 999/2001 of the European Parliament and of the Council laying down rules for the prevention, control and eradication of certain transmissible spongiform encephalopathies (OJ 2001 L 147, p. 1) was adopted. Article 7(1) of that regulation prohibited the feeding to ruminants of protein derived from mammals. Under Article 7(2), that prohibition was extended to animals and products of animal origin.
34. The legislative developments described in the three preceding paragraphs and the restrictions stemming from them as regards the use of animal protein in animal feed make it possible to understand the context in which Regulation No 1774/2002 was adopted. The third recital in the preamble to that regulation states that the possible uses of certain animal material should be limited and that rules should be laid down for the use of animal by-products other than in feed and for the disposal of those by-products. In pursuit of that objective the regulation lays down animal and public health rules for the collection, transport, storage, handling, processing and use or disposal of animal by-products.
35. In their written observations lodged before the Court, the Austrian and United Kingdom Governments claimed that materials such as meat-and-bone meal can be classified as waste in view of the requirements imposed, as regards animal by-products, by the provisions of Regulation No 1774/2002. In its order for reference, the national court also refers to that regulation, but does not consider that it applies to the facts of the main proceedings. The regulation would apply only as from 1 May 2003, whilst the transport of the meat-and-bone meal to Bulgaria took place in April 2003.
36. It must be pointed out in that regard that the main proceedings relate to the decision of 6 June 2003 of the Minister who, as is apparent from the file submitted to the Court, essentially classified the meat-and-bone meal as waste and claimed that its return to Germany was illegal since no notification had been given to the competent Austrian authorities. It is apparent from the wording of the questions referred that the national court is concerned about whether there is any such obligation to provide notification, in particular on account of the return journey of the meat-and-bone meal to the port of Straubing. Since that journey took place, as is apparent from the order for reference, after the entry into force of Regulation No 1774/2002 on 1 May 2003, the regulation is applicable to the main proceedings.
Whether the shipment of meat-and-bone meal, if that meal is covered by the concept of animal carcases, is excluded from the scope of Regulation No 259/93
37. According to Article 2(1)(b)(iii) of Directive 75/442, animal carcases are excluded from the scope of that directive where they are already covered by other legislation. As for Article 1(2)(d) of Regulation No 259/93, it excludes from its scope shipments of waste mentioned in that provision of Directive 75/442.
38. It is apparent from the grounds of the order for reference that the national court considers ‘animal carcases’ to be a generic concept which covers not only carcases for rendering, but also the products thereby obtained, including meat-and-bone meal.
39. By contrast, the Commission submits that that concept covers only whole carcases of animals which have died in the course of agricultural production, whereas meat-and-bone meal is waste which results not from agricultural production as such, but from slaughter and rendering.
40. The Austrian, French and United Kingdom Governments submit that meat-and-bone meal is not covered by the exclusion relating to animal carcases and that, consequently, shipments thereof are also not excluded from the scope of Regulation No 259/93. The by-products from the processing and treatment of such carcases, which have the characteristics of a powder, cannot be included in the concept of animal carcases.
41. In that connection, it must be pointed out that the exclusion of animal carcases and certain other waste from the scope of Directive 75/442 is explained in the sixth recital in the preamble to that directive and stems from the Community legislature’s intention to exclude material which is covered by specific Community rules.
42. It is common ground that animal carcases are in fact covered by specific Community rules, namely Regulation No 1774/2002. In particular, it follows from Article 2(1)(a) of that regulation that the definition of animal by-products includes ‘entire bodies or parts of animals’. That finding must not however be interpreted as meaning that everything which is covered by that regulation must automatically be excluded from the material scope of Directive 75/442. Thus, the fact that by-products such as meat-and-bone meal are also covered by Regulation No 1774/2002 does not mean that the exclusion relating to animal carcases provided for by that directive and by Regulation No 259/93 must also be extended to those by-products.
43. It must be stated that the Community legislature has chosen to express that exclusion in precise terms. The concept of animal carcases, on account of its natural literal meaning, refers to dead animals, that is to say to an unprocessed raw material. The fact that those carcases are whole or in pieces in no way alters the fact that they have not undergone any processing capable of altering their inherent nature. By contrast, what is at issue in the main proceedings is meat-and-bone meal, that is to say a material of a completely different nature from the material from which it was produced on account of the fact that it has undergone a specific process, as described in paragraph 30 of this judgment.
44. The fundamental difference between those two kinds of material is reflected, as regards the definition of animal by-products, in the clear distinction between ‘entire bodies or parts of animals’ and ‘products of animal origin’ made by Article 2(1)(a) of Regulation No 1774/2002.
45. Furthermore, the context of the term animal carcases militates in favour of a strict interpretation of the concept. Besides animal carcases, Article 2(1)(b)(iii) of Directive 75/442 excludes from its scope certain agricultural waste which is specifically listed. The inclusion, in the same provision, of those two terms, namely animal carcases and the agricultural waste specified, indicates that there is a link between them as regards their origin. By analogy, the concept of animal carcases could cover animal carcases from agricultural production and not from the specific process of slaughtering or rendering from which meat-and-bone meal is obtained.
46. A strict interpretation of the concept of animal carcases is, in addition, consistent with the case-law of the Court according to which the concept of waste cannot be interpreted restrictively (see Joined Cases C‑418/97 and C-419/97 ARCO Chemie Nederland and Others
[2000] ECR I-4475, paragraphs 37 to 40, and Case C-9/00 Palin Granit and Vehmassalon kansanterveystyön kuntayhtymän hallitus
[2002] ECR I‑3533, ‘ Palin Granit ’, paragraph 23), which implies a strict interpretation of the exceptions to the concept of waste.
47. It is however necessary to point out that an important legislative amendment occurred in this field with the entry into force of Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste (OJ 2006 L 190, p. 1). The 11th recital in the preamble to that regulation states that it is necessary to avoid duplication with Regulation No 1774/2002, which already contains provisions covering the overall consignment, channelling and movement (collection, transport, handling, processing, use, recovery or disposal, record keeping, accompanying documents and traceability) of animal by-products within, into and out of the Community.
48. Article 1(3)(d) of Regulation No 1013/2006 excludes from its scope shipments which are subject to the approval requirements of Regulation No 1774/2002. However, since the regulation is applicable only as from 12 July 2007, it cannot be taken into consideration in the context of the main proceedings.
49. Since meat-and-bone meal is not covered by ‘animal carcases’ within the meaning of Article 2(1)(b)(iii) of Directive 75/442 and, consequently, shipments of it are not automatically excluded from the scope of Regulation No 259/93, it is appropriate to examine whether that meal is to be classified as ‘waste’ within the meaning of Directive 75/442 and, therefore, of Regulation No 259/93.
The classification of meat-and-bone meal as waste
50. In order to define the term ‘waste’, Article 2(a) of Regulation No 259/93 refers to Article 1(a) of Directive 75/442. Under the first subparagraph of the latter provision, ‘waste’ is regarded as ‘any substance or object in the categories set out in Annex I which the holder discards or intends or is required to discard’. It is common ground that meat-and-bone meal is covered by that annex, in particular by category Q16 thereof.
51. The scope of the term ‘waste’, within the meaning of Directive 75/442, turns on the meaning of the term ‘discard’ in the first subparagraph of Article 1(a) of that directive (see Case C-129/96 Inter-Environnement Wallonie
[1997] ECR I-7411, paragraph 26).
52. The method of treatment or use of a substance does not determine conclusively whether or not it is to be classified as waste. What subsequently happens to an object or a substance does not affect its nature as waste, which, in accordance with the first subparagraph of Article 1(a) of Directive 75/442, is defined in terms of the holder discarding it or intending or being required to discard it ( ARCO Chemie Nederland and Others, paragraph 64).
53. As was stated in paragraph 35 of this judgment, the observations submitted to the Court suggest that materials such as meat-and-bone meal can be classified as waste in view of the requirements imposed, as regards animal by-products, by the provisions of Regulation No 1774/2002. The relevance of those provisions must therefore be examined and it must be considered, in particular, whether a requirement to discard meat-and-bone meal can be inferred from them. It should be borne in mind that the national court has left open the question whether or not the meat-and-bone meal contains specified risk material, as is apparent from the wording of the questions referred to the Court.
54. If that meat-and-bone meal contains specified risk material, it must be classified as ‘Category 1 material’ within the meaning of Article 4(1)(b)(i) of Regulation No 1774/2002. In accordance with that provision, Category 1 material is to comprise specified risk material or any material containing such material.
55. Under Article 4(2) of Regulation No 1774/2002, Category 1 material must be either directly disposed of as waste by incineration in an approved incineration plant or processed in an approved processing plant and finally disposed of as waste by incineration or co-incineration or by burial in an approved landfill.
56. An obligation to dispose of products such as meat-and-bone meal where they contain specified risk material results from the provisions of Article 4(2) of Regulation No 1774/2002 read in the light of the need, expressed in the seventh recital in the preamble to that regulation, to avoid the risk of spreading disease presented by the use, in animal feed, of proteins derived from the bodies, or parts of bodies, of the same species.
57. Therefore, that meat-and-bone meal, if it contains such material, must be regarded as a substance which the holder is required to ‘discard’ within the meaning of Article 1(a) of Directive 75/442 and, therefore, as waste.
58. By contrast, if the meat-and-bone meal does not contain any specified risk material, it could be a ‘Category 3 material’ within the meaning of Article 6 of Regulation No 1774/2002, as one of the ‘animal by‑products derived from the production of products intended for human consumption’ referred to in Article 6(1)(e) of that regulation.
59. Under Article 6(2)(a) and (b) of Regulation No 1774/2002, that category of by-products must be disposed of as waste by incineration in an approved incineration plant. However, unlike Category 1 material, Category 3 material is not intended exclusively for disposal. In particular, Article 6(2)(c) to (f) provides that that material may be either processed into products of economic value or used as raw material in a petfood plant. Since disposal of such by-products as waste is thus optional, an absolute requirement to discard substances such as meat-and-bone meal in so far as they do not contain specified risk material cannot be inferred from Regulation No 1774/2002.
60. Consequently, it must be examined whether by-products such as meat-and-bone meal which do not contain specified risk material can be classified as waste on the ground that the holder discards or intends to discard them. If not, they could, as submitted by KVZ, be classified not as waste but as raw material which does not fall within the scope of Directive 75/442. The relevant date in order to examine such a classification is 6 June 2003, that is the date of adoption of the Minister’s decision classifying the meat-and-bone meal as waste.
61. In that regard, it should be borne in mind that the concept of ‘waste’ within the meaning of Directive 75/442 cannot be interpreted restrictively (see ARCO Chemie Nederland and Others, paragraphs 37 to 40, and Palin Granit, paragraph 23). It should also not be understood as excluding substances and objects which are capable of economic reuse. The system of supervision and management established by Directive 75/442 is intended to cover all objects and substances discarded by their holders, even if they have a commercial value and are collected on a commercial basis for recycling, reclamation or reuse (see Palin Granit, paragraph 29).
62. Goods, materials or raw materials may constitute not a residue but a by‑product which the undertaking does not wish ‘to discard’, within the meaning of the first subparagraph of Article 1(a) of Directive 75/442, and
which it intends to exploit or market on terms which are advantageous to it. In addition to the criterion of whether a substance constitutes a production residue, a relevant criterion for determining whether or not that substance is ‘waste’ within the meaning of Directive 75/442 is the degree of likelihood that that substance will be reused, without any further processing prior to its reuse. If, in addition to the mere possibility of reusing the substance, 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 discard, but as a genuine product ( Palin Granit, paragraph 37).
63. However, whether it is in fact ‘waste’ within the meaning of Directive 75/442 must be determined in the light of all the circumstances, regard being had to the aim of that directive and the need to ensure that its effectiveness is not undermined (see, to that effect, ARCO Chemie Nederland and Others, paragraph 88).
64. It is for the national court to determine, in accordance with the case-law mentioned in the previous three paragraphs, whether, on 6 June 2003, the holder of the meat-and-bone meal intended to discard it.
65. If that court reaches the conclusion that, in the main proceedings, the holder of the meat-and-bone meal in fact intended to discard it even though it did not contain any specified risk material, then that meat-and-bone meal should be classified as waste.
The obligation to provide notification of the shipment of meat-and-bone meal
66. It remains to be examined whether the shipment of meat-and-bone meal, in the event that that meal is classified as ‘waste’ within the meaning of Directive 75/442, on account of a requirement or intention to discard it, is subject to the notification obligation, in accordance with the provisions of Regulation No 259/93.
67. In its written observations, the French Government submits that, as waste from the meat agro-food industry, meat-and-bone meal is on the green list. Consequently, the shipment thereof should not have been subject to the notification obligation.
68. It that regard, it must be stated that, on that green list, under the heading ‘GM. Wastes arising from agro-food industries’, is category GM 130 relating to ‘[w]aste from the agro-food industry excluding by-products which meet national and international requirements and standards for human or animal consumption’. As the Advocate General pointed out at point 114 of her Opinion, the description ‘waste from the agro-food industry’ is wide enough to include meat-and-bone meal. Under Article 1(3)(a) of Regulation No 259/93, shipments of waste destined for recovery only and listed in Annex II are to be excluded from the provisions of the regulation except as provided for in Article 1(3)(b) to (e), Article 11 and Article 17(1) to (3) thereof. A notification obligation cannot therefore be imposed as regards the shipment of meat-and-bone meal in so far as, on its return to Germany, it would still be destined for recovery and would consequently come under Annex II of Regulation No 259/93.
69. However, it should be pointed out that the introduction to Annex II states that wastes may not be moved as green wastes if they are contaminated by other materials to an extent which, on the one hand, increases the risks associated with the waste sufficiently to render it appropriate for inclusion in the amber or red lists, or, on the other hand, prevents the recovery of the waste in an environmentally sound manner. It must therefore be ascertained whether the hypothetical presence of specified risk material in the meat-and-bone meal constitutes an obstacle to its being considered to be on the green list.
70. As the Advocate General observed at point 122 of her Opinion, it is apparent from the 14th recital in the preamble to Regulation No 259/93 that classification of waste on the green list is based on the consideration that it should not normally present a risk to the environment if properly recovered in the country of destination. Although, as observed by the Advocate General at point 123 of her Opinion, it is unlikely that, during recovery of meat-and-bone meal as fuel, contamination of that meat-and-bone meal by specified risk material will lead to any apparent increased risk to the environment compared with uncontaminated meat-and-bone meal, it is for the national court to establish, if necessary, whether, in the main proceedings, such contamination would result in the exclusion of the meat-and-bone meal at issue from the green list.
71. Shipments of meat-and-bone meal would be subject to the notification obligation imposed by Regulation No 259/93 only where that meal is not on the green list or where it is no longer destined for recovery only.
72. It must be added that, under Article 1(3)(a) of Regulation No 259/93, meat-and-bone meal classified as waste which is destined for recovery only and is on the green list must, in any event, comply with the provisions of Article 1(3)(b) to (e), Article 11 and Article 17(1) to (3) of that regulation.
73. As a final point, it is important to state that the application of Regulation No 259/93 does not mean that the provisions of Regulation No 1774/2002 are completely irrelevant. Besides the environmental risks, meat-and-bone meal presents risks of spreading disease. To avoid any threat of dispersal of pathogens, the provisions of Regulation No 1774/2002 impose a series of requirements aimed at ensuring, as submitted by the Commission in its written observations, that animal by-products are not used or shipped for illegal purposes. In order to maintain the effectiveness of those regulations, they must therefore be applied in parallel so that their respective provisions are complementary.
74. Such parallel implementation of those regulations is in fact necessarily contemplated by the fourth recital in the preamble to Regulation No 1774/2002, in which it is stated, inter alia, that the regulation should not affect the application of existing environmental legislation.
75. Furthermore, as noted by the Austrian Government in the written observations which it submitted to the Court, Annex VII to Regulation No 1774/2002, entitled ‘Specific hygiene requirements for the processing and placing on the market of processed animal protein and other processed products that could be used as feed material’, refers in Chapter II concerning ‘[s]pecific requirements for processed animal protein’, to the disposal, as waste, of mammalian processed animal protein ‘in accordance with [applicable] Community legislation’ which unquestionably includes Regulation No 259/93 (Chapter II(A)(1) of Annex VII).
76. Consequently, in the context of an application in parallel of Regulation No 259/93 and Regulation No 1774/2002, even though, in accordance with Article 1(3)(a) of Regulation No 259/93, notification of the shipment of waste such as meat-and-bone meal is not required under that regulation, in so far as that meal is destined for recovery only and is on the green list, it is for the national court to ensure compliance with the provisions of Regulation No 1774/2002. In that regard, Article 7 of that regulation governing the collection, transport and storage of animal by-products, Article 8 relating to the dispatch of animal by-products and processed products to other Member States and Article 9 dealing with records of consignments of animal by-products may prove to be relevant. The hygiene requirements laid down in Annex II to Regulation No 1774/2002 which are applicable to the collection and transport of animal by-products and processed products must also be borne in mind.
77. In the light of all of the foregoing considerations, the answer to the questions referred must be that, under Article 1(3)(a) of Regulation No 259/93, the shipment of meat-and-bone meal classified as waste on account of a requirement or intention to discard it, which is destined for recovery only and listed in Annex II to that regulation, is excluded from the scope of the provisions of the regulation except as provided for in Article 1(3)(b) to (e), Article 11 and Article 17(1) to (3) thereof. However, it is for the national court to ensure that that shipment takes place in compliance with the requirements arising from the provisions of Regulation No 1774/2002, amongst which those of Articles 7, 8 and 9 and of Annex II to the regulation may prove to be relevant.
Costs
78. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
Operative part
On those grounds, the Court (First Chamber) hereby rules:
Under Article 1(3)(a) of 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, as amended by Commission Regulation (EC) No 2557/2001 of 28 December 2001, the shipment of meat-and-bone meal classified as waste on account of a requirement or intention to discard it, which is destined for recovery only and listed in Annex II to that regulation, is excluded from the scope of the provisions of the regulation except as provided for in Article 1(3)(b) to (e), Article 11 and Article 17(1) to (3) thereof. However, it is for the national court to ensure that that shipment takes place in compliance with the requirements arising from the provisions of Regulation (EC) No 1774/2002 of the European Parliament and of the Council of 3 October 2002 laying down health rules concerning animal by-products not intended for human consumption, as amended by Commission Regulation (EC) No 808/2003 of 12 May 2003, amongst which those of Articles 7, 8 and 9 and of Annex II to the regulation may prove to be relevant.