62000CC0458_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1.
In this action brought under Article 226 EC, the Commission claims that objections raised by the Grand Duchy of Luxembourg against certain shipments of waste to other Member States to be used principally as fuel were unjustified and contrary to the wording of Article 7(2) and (4) 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 ( "the Regulation"
) (2) and Article 1(f) read in conjunction with head R1 of Annex IIB to Council Directive 75/442/EEC of 15 July 1975 on waste ( "the Directive"
or
"the Waste Directive"
). (3)
The Commission accordingly seeks a declaration that Luxembourg has failed to fulfil its obligations under Articles 2, 6 and 7 of the Regulation and Article 1(f) read in conjunction with head R1 of Annex IIB to the Directive.
2.
The case essentially turns on the distinction between operations for the disposal of waste and operations for its recovery, and in particular on the question whether the incineration of municipal waste at an incineration plant in which most or all of the heat generated is used as energy is correctly to be classified as a disposal operation or a recovery operation.
The relevant Community legislation
The Directive
3.
Article 3(1) of the Directive requires Member States to take appropriate measures to encourage
"(a) firstly, the prevention or reduction of waste production and its harmfulness"
and
"(b) secondly:
(i) the recovery of waste by means of recycling, re-use or reclamation or any other process with a view to extracting secondary raw materials, or (ii) the use of waste as a source of energy"
.
4.
Article 5 of the Directive enshrines the principles of self-sufficiency and proximity.
It provides as follows:
"1.
Member States shall take appropriate measures, in cooperation with other Member States where this is necessary or advisable, to establish an integrated and adequate network of disposal installations, taking account of the best available technology not involving excessive costs.
The network must enable the Community as a whole to become self-sufficient in waste disposal and the Member States to move towards that aim individually, taking into account geographical circumstances or the need for specialised installations for certain types of waste.
2.
The network must also enable waste to be disposed of in one of the nearest appropriate installations, by means of the most appropriate methods and technologies in order to ensure a high level of protection for the environment and public health.
"
5.
The Directive defines
"disposal"
as
"any of the operations provided for in Annex IIA" (4) and
"recovery"
as
"any of the operations provided for in Annex IIB"
. (5)
6.
Annexes IIA and IIB to the Directive (6) are headed
"Disposal operations"
and
"Recovery operations"
respectively.
Each annex is prefaced by a note to the effect that it is intended to list the operations
"as they occur in practice"
.
7.
Annex IIA includes among the listed disposal operations:
"D10 Incineration on land"
.
8.
Annex IIB includes among the listed recovery operations:
"R1 Use principally as a fuel or other means to generate energy"
.
The Regulation
9.
The Regulation is based on Article 130s of the EC Treaty (now, after amendment, Article 175 EC).
Its aim is to provide a harmonised set of procedures whereby movements of waste can be limited in order to secure protection of the environment. (7)
10.
Title II of the Regulation is entitled
"Shipments of waste between Member States"
.
Chapters A and B of Title II lay down the procedures to be followed for the shipment of waste for disposal and of waste for recovery respectively.
11.
The Regulation adopts the definitions of
"disposal"
and
"recovery"
used in the Directive. (8)
12.
The procedure for shipments of waste for recovery varies according to the type of waste.
Annexes II to IV to the Regulation classify specific waste in one of three lists. (9)
Annex II contains the
"Green list of wastes"
, which
"should not normally present a risk to the environment if properly recovered in the country of destination"
. (10)
Annex III contains the
"Amber list of wastes"
and Annex IV the
"Red list of wastes"
, regarded as particularly hazardous.
Shipments of waste shown in Annex II for recovery are simply to be accompanied by a document containing prescribed information. (11)
Shipments of other waste (including the waste the shipment of which gave rise to the present proceedings) for recovery and shipments of waste for disposal are subject to the following procedure.
13.
Where the producer or holder of waste, generally referred to as the notifier, (12) intends to ship such waste from one Member State to another, he must notify the competent authority of destination and send a copy of the notification to the competent authority of dispatch (13) and to the consignee. (14)
14.
Notification is to be effected by means of the consignment note to be issued by the authority of dispatch. (15)
The notifier is to complete the consignment note and, if requested by the competent authorities, supply additional information and documentation. (16)
He is to supply on the consignment note information with particular regard to a number of factors including (i) the source, composition and quantity of the waste and (ii) the operations involving disposal or recovery as referred to in Annex IIA or IIB to the Directive. (17)
15.
In the case of shipments of waste for recovery, the consignment note must also include details of (i) the planned method of disposal for the residual waste after recycling has taken place;
(ii) the amount of the recycled material in relation to the residual waste and (iii) the estimated value of the recycled material. (18)
16.
In the case of waste for disposal, the Member State of destination is responsible for granting authorisation for shipment.
The Member State of dispatch (19) has the right to raise objections and the Member State of destination may issue the authorisation only in the absence of any such objections. (20)
In the case of waste for recovery, the Member States of dispatch and destination (21) have the right to object to a shipment but, as a general rule, (22) no express authorisation is required. (23)
17.
The most significant difference between the procedures applying to the shipments of waste for recovery and for disposal lies in the grounds on which the various competent authorities concerned may oppose the proposed shipment.
18.
In the case of waste for disposal, the objections must be based on Article 4(3). (24)
Under that article, in particular, (i) Member States may prohibit generally or partially or object systematically to shipments of waste in order to implement the principles of proximity, priority for recovery and self-sufficiency at Community and national levels in accordance with the Directive (25) and (ii) the competent authorities of dispatch and destination may raise reasoned objections to planned shipments if they are not in accordance with the Directive in order to implement the principle of self-sufficiency at Community and national levels. (26)
19.
In the case of waste for recovery, the objections are to be based on Article 7(4). (27)
Article 7(4)(a) (28) lists five grounds on which the competent authorities of destination and dispatch may raise reasoned objections.
Those grounds do not provide for objections to be based on the principles of proximity or self-sufficiency.
The case-law of the Court
20.
Two decisions of the Court are of particular interest in the context of the present case.
21.
First, the Court ruled in
Dusseldorp (29) that the principles of self-sufficiency and proximity do not apply to waste for recovery;
such waste should therefore be able to move freely between Member States for processing, provided that transport poses no threat to the environment.
22.
Second, the Court ruled in
ASA (30) that the essential characteristic of a waste recovery operation is that its principal objective is that the waste serve a useful purpose in replacing other materials which would have had to be used for that purpose, thereby conserving natural resources.
That case concerned
inter alia
the correct classification for the purpose of the Regulation (namely, as a recovery or a disposal operation) of the deposit of waste in a former salt mine to secure hollow spaces (mine-sealing).
23.
The Court also ruled in
ASA
that Articles 4(3) and 7(4) exhaustively list the cases in which Member States may object to a shipment of waste between Member States. (31)
The action for infringement
24.
In early 1998 the undertaking NTMR (Négoce de tous matériaux réutilisables) submitted two notifications to the competent Luxembourg authority seeking authorisation to ship household and similar waste coming under position AD160,
"Municipal/household wastes"
, of Annex III (amber list) to the Regulation.
It appears that NTMR's notifications indicated that the shipment was of waste for recovery to be processed at the incinerator of the municipality of Strasbourg.
According to the Commission (which has not been contradicted on this point), it appears from a letter from the Prefect of the Bas-Rhin (32) dated 3 July 1998 that incineration at that plant enables all the energy generated thereby to be recovered.
25.
By decision of 1 October 1998 the competent authority in Luxembourg re-classified the shipment as concerning waste for disposal which could be shipped only on proof that for technical reasons or because of insufficient capacity the waste could not be delivered to a disposal plant in Luxembourg.
The authority justified that re-classification on the basis that the incineration of waste in a plant the primary purpose of which is thermal treatment with a view to the mineralisation (33) of the waste, whether or not there is recovery of the heat produced, is considered in Luxembourg to be a disposal operation coming under head D10 in Annex IIA to the Waste Directive.
26.
Considering that those facts suggested that Luxembourg had infringed the Regulation and the Directive, the Commission sent it a formal notice which was not answered.
The Commission accordingly issued a reasoned opinion.
In its reply Luxembourg maintained in essence that the fact that energy generated by a waste processing operation may be recovered does not preclude classification of that operation as a disposal operation under head D10 of Annex IIA to the Directive, that it had re-classified the operation with the agreement of the French authorities, that Articles 3 and 4 rather than Articles 6 and 7 of the Regulation were therefore applicable and that Luxembourg had accordingly not infringed the legislation.
27.
Luxembourg also noted in its reply that its waste incineration plant enabled the heat generated by the incineration to be used, in particular for the production of electrical energy which was fed into the national grid.
28.
Since Luxembourg has not taken the measures necessary to comply with the reasoned opinion, the Commission has brought the present action.
29.
Austria has intervened in support of Luxembourg.
30.
The Commission is seeking a declaration that Luxembourg has failed to fulfil its obligations under Articles 2, 6 and 7 of Regulation No 259/93 and Article 1(f) read in conjunction with head R1 of Annex IIB to Directive 75/442.
The alleged infringement consisted in Luxembourg's raising unjustified objections against certain shipments of waste to other Member States to be used principally as fuel.
At issue therefore is the correct classification in accordance with the Directive ─ and hence also the Regulation ─ of the incineration of household waste in an incineration plant which uses most or all of the energy thereby generated.
Is it necessarily a recovery operation, as the Commission maintains, in which case the objections, essentially on the ground of self-sufficiency in the disposal of waste, raised by Luxembourg cannot be justified and the infringement is made out, or is it, as Luxembourg maintains, a disposal operation, in which case the objections may be justified on the basis of that principle?
31.
The Commission's principal submission is drawn from the wording of Annex IIB.
"Use principally as a fuel or other means to generate energy"
32.
The Commission maintains that the decisive test is, first, whether the incineration process generates more energy, or heat transformed into energy, than the energy or heat which would have been generated from combustion of the gas injected into the furnace in order to incinerate the waste ─ in other words, is there a net production of energy? ─ and, second, whether the plant is able to reclaim or recover a substantial proportion of the energy contained in the incinerated waste.
33.
Luxembourg considers that the Commission's position in effect bases the distinction between disposal and recovery on the energy potential of the waste in question.
The definition of recovery operation R1 ( "Use principally as a fuel"
) however is based on the criterion of use and hence of the objective of the operation, and not the quality or composition of the waste.
Luxembourg submits that the correct criterion is the objective of the incineration plant:
if its principal objective is the generation of energy, the incineration is a recovery operation;
if however its
objective is the thermal processing of waste, whether or not there is accessory reclamation of energy, the incineration is a disposal operation.
34.
Each party submitted at the hearing that the judgment in
ASA (34) ─ which was delivered after the written procedure in the present case had ended ─ supported its position.
35.
The Commission considers that the principles there laid down are wholly applicable to the present case with the result that the operation should be classified as a recovery operation.
It follows from that judgment that the objective of the operation determines its classification.
Luxembourg, however, focuses on the objective of the incineration plant.
The Commission submits that the correct criterion is whether the energy generated by the incineration is in fact reclaimed, thereby serving a useful purpose.
36.
Luxembourg argues on the other hand that the criterion formulated by the Court in
ASA
, namely that of the principal objective of the operation, is in effect the same as the criterion of the objective of the incineration plant used by Luxembourg.
37.
I agree with the Commission that, in order to determine whether a given operation is to be classified as a disposal operation falling within head D10 of Annex IIA to the Directive or as a recovery operation under head R1 of Annex IIB, the wording of the descriptions set out under those heads must be carefully analysed.
38.
Head R1 refers to
"Use principally as a fuel or other means to generate energy"
.
39.
As Luxembourg argues, the criterion of use requires interpretation in the light of the objective of the operation.
That conclusion follows clearly, in my view, from the natural meaning of the term
"use"
, and perhaps in particular the concept of
"use principally as"
something.
It may be noted that that construction ─ or the analogous
"principal use as"
─ is reflected in all the language versions of the Directive.
40.
The Commission submits that, since head R1 refers to
"Use principally as a fuel or other means to generate energy"
, classification as a recovery operation must extend not only to use principally as a fuel but also to use as any other means to generate energy.
That argument suggests that the qualification
"principally"
is not relevant where waste is being used not as fuel but as another means to generate energy.
That seems to me to be an unnatural reading of the provision ─ in all the language versions. (35)
It is clear to me that, in order to fall under head R1 of Annex IIB to the Directive, an operation must consist in the use of waste principally as a fuel or the use of waste principally as another means to generate energy.
41.
On the basis of the wording of the legislation, therefore, an incineration operation will not fall within the description in head R1 unless its objective is the use of waste principally as a fuel or the use of waste principally as another means to generate energy.
If that condition is not satisfied, the operation will be incineration on land under head D10 of Annex IIA to the Directive. (36)
42.
That analysis is consistent with the judgment in
ASA
, (37) where the Court ruled that the principal objective of a recovery operation is that the waste serve a useful purpose in replacing other materials which would have had to be used for that purpose, thereby conserving natural resources.
As I suggested in my Opinion in that case, the decisive question is whether the waste is used for a genuine purpose:
if it were not available for a given operation, would that operation none the less be carried out using some other material? (38)
In the case of waste being incinerated in a plant developed for that purpose, the answer to that question is clearly
"no"
:
in the absence of available waste, there would be no incineration.
In those circumstances it would not be right to describe the operation as recovery simply because, whenever waste is available and incinerated, the heat generated by the incineration is used, wholly or partly, as a means to generate energy.
That fact does not of itself make the principal objective of the incineration the use of the waste as a fuel or other means to generate energy.
43.
The notion of the
"principal objective"
can thus be regarded as a criterion of general application, of which heads D10 and R1 are specific applications.
44.
The significance of the objective of the operation may be seen particularly clearly in cases involving the incineration of household waste with incidental energy recuperation.
Classifying all such operations as recovery solely on the basis that the energy generated ─ however little ─ is recovered leads to unacceptable consequences.
The Commission states in its application that Community law prescribes no minimum quantity of energy generated in order for the incineration of waste with accessory energy recuperation to be classified as a recovery operation:
at most it may be conceded that an operation is not recovery if that quantity is
"ridiculously small"
.
It appears however from information provided to the Court that the incineration of urban waste with energy recovery is the principal method of disposing of such waste in many Member States;
classifying all such operations as recovery simply on the basis of that energy recuperation would in effect mean that such waste could be shipped within the Community with little restriction, which would run counter to the Regulation's objective of providing a harmonised set of procedures whereby movements of waste can be limited in order to secure protection of the environment. (39)
In that context it may also be noted that the Council in its Resolution of 24 February 1997 on a Community strategy for waste management (40) "notes and shares the concerns of Member States at the large-scale movements within the Community of waste for incineration with or without energy recovery"
. (41)
45.
That the principal objective of the incineration operation at issue in the present case is disposal rather than recovery is also suggested by which party bears the cost of the transaction:
the contracts between the Luxembourg holders of the waste and the municipality of Strasbourg, which are among the annexes to the defence, provide for the holders to pay to the municipality the fee currently applicable when the waste is transported to the plant.
Although I do not consider that payment by the holder of the waste is necessarily conclusive evidence that a given operation is disposal rather than recovery, it will normally none the less be a significant factor. (42)
46.
The approach I propose ─ namely that a given incineration operation will constitute disposal if that is its principal objective, notwithstanding that there may be incidental energy recovery ─ to my mind achieves the correct balance between the principle of the free movement of goods and that of the protection of the environment.
It is clearly desirable on environmental grounds to limit large-scale shipments of household waste for incineration;
if, however, incineration of such waste were classified as recovery simply on the basis that the resulting energy could be used, transport of such waste ─ possibly over significant distances ─ would be encouraged.
47.
Moreover that solution is confirmed if the present case is contrasted with
Commission
v
Germany
, (43) in which I am also delivering my Opinion today.
That case concerns the correct classification for the purposes of the Regulation of waste to be incinerated in cement factories;
the energy generated by the incineration is to be used in the manufacturing process where it will replace conventional fuel in one instance by up to one third and in the other instance totally.
In my Opinion I express the view that the principal objective of an incineration operation which is an integral part of an industrial process and which generates energy to be used in that industrial process may be said to be the use of the waste as a fuel.
If one puts the question whether, if the waste were not available for a given operation, that operation would none the less be carried out using some other material, the answer in the case of waste used as fuel for a cement factory is clearly
"yes"
:
in the absence of available waste, the factory would still operate using other fuel.
Conclusion
48.
I am accordingly of the opinion that the Court should:
(1)
dismiss the Commission's application;
(2)
order the Commission to pay the costs.
(1) .
(2)
OJ 1993 L 30, p. 1.
(3)
OJ 1975 L 194, p. 39, as amended by Council Directive 91/156/EEC of 18 March 1991, OJ 1991 L 78, p. 32, and by Council Directive 91/692/EEC of 23 December 1991, OJ 1991 L 377, p. 48.
(4)
Article 1(e).
(5)
Article 1(f).
(6)
As adapted by Commission Decision 96/350/EC of 24 May 1996 adapting Annexes IIA and IIB to Council Directive 75/442/EEC on waste, OJ 1996 L 135, p. 32.
(7)
Case C-187/93
Parliament
v
Council
[1994] ECR I-2857, paragraph 26 of the judgment.
(8)
Article 2(i) and (k).
(9)
As adapted by Commission Decision 94/721/EC of 21 October 1994 adapting, pursuant to Article 42(3), Annexes II, III and IV to Council Regulation (EEC) No 259/93 on the supervision and control of shipments of waste within, into and out of the European Community, OJ 1994 L 288, p. 36.
(10)
Recital 14 in the preamble to the Regulation.
(11)
Articles 1(3) and 11 of the Regulation.
(12)
Article 2(g).
(13)
And, if relevant, of transit.
(14)
Articles 3(1) (waste for disposal) and 6(1) (waste for recovery).
(15)
Articles 3(3) and 6(3).
(16)
Articles 3(4) and 6(4).
(17)
Articles 3(5) and 6(5), first and fifth indents.
(18)
Article 6(5), sixth, seventh and eighth indents.
(19)
And, if relevant, of transit.
(20)
Articles 4(1) and 4(2).
(21)
And, if relevant, of transit.
(22)
Where the waste is listed in Annex IV or has not been assigned to Annex II, III or IV, the competent authorities concerned must give their consent in writing (Article 10).
(23)
Article 7(1) and (2).
(24)
Article 4(2)(c).
(25)
Article 4(3)(a)(i).
(26)
Article 4(3)(b)(i).
(27)
Article 7(2).
(28)
Article 7(4)(b) concerns the objections which may be raised by the competent authorities of transit, not relevant to the present case.
(29)
Case C-203/96 [1998] ECR I-4075, paragraphs 33 and 34 of the judgment.
(30)
Case C-6/00, paragraph 69 of the judgment delivered on 27 February 2002.
It may be noted that the judgment was delivered after the pleadings in the present case had been lodged.
(31)
Cited in note 30, paragraph 36 of the judgment.
(32)
Strasbourg is in the département of the Bas-Rhin.
(33)
Converting an organic to a mineral substance.
(34)
Cited in note 30.
(35)
See in particular the French and German versions:
"Utilisation principale comme combustible ou autre moyen de produire de l'énergie"
and
"Hauptverwendung als Brennstoff oder andere Mittel der Energieerzeugung"
.
(36)
Or, if appropriate, incineration at sea under head D11.
(37)
Cited in note 30, paragraph 69 of the judgment.
(38)
Paragraph 86.
(39)
Parliament
v
Council
, cited in note 7, paragraph 26 of the judgment.
(40)
OJ 1997 C 76, p. 1.
(41)
Point 42.
(42)
See further paragraph 88 of my Opinion in
ASA
, cited in note 30.
(43)
Case C-228/00;
see in particular paragraph 56 of the Opinion.