Joined Cases C‑241/12 and C‑242/12

Shell Nederland Verkoopmaatschappij BV

and

Belgian Shell NV

(Requests for a preliminary ruling from the Rechtbank te Rotterdam)

‛Environment — Waste — Concept — Directive 2006/12/EC — Shipments of waste — Information from the competent national authorities — Regulation (EEC) No 259/93 — Discarding of a substance or object or intention or requirement to discard it’

Summary — Judgment of the Court (First Chamber), 12 December 2013

The classification as ‘waste’ is to be inferred primarily from the holder’s actions and the meaning of the term ‘discard’. As regards the meaning of the term ‘discard’, that term must be interpreted in the light of the aim of Directive 2006/12 on waste and in the light of Article 191(2) TFEU. It follows that the term ‘discard’, and therefore the concept of ‘waste’ within the meaning of Article 1(1)(a) of Directive 2006/12, cannot be interpreted restrictively. It is apparent from the provisions of that directive that the term ‘discard’ covers both disposal and recovery of a substance or object, within the meaning of Article 1(e) and (f) of that directive. Moreover, the existence of ‘waste’, within the meaning of Directive 2006/12, 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. Certain circumstances may constitute evidence that a substance or object has been discarded or of an intention or requirement to discard it within the meaning of Article 1(1)(a) of Directive 2006/12. In that regard, particular attention must be paid to the fact that the object or substance in question is not or is no longer of any use to its holder, such that that object or substance constitutes a burden which he will seek to discard. (see paras 37-42)

Article 2(a) of Regulation No 259/93 on the supervision and control of shipments of waste within, into and out of the European Community, as amended by Regulation No 2557/2001, must be interpreted as meaning that a consignment of diesel accidentally mixed with another substance is not covered by the concept of ‘waste’, within the meaning of that provision, provided that the holder of that consignment does actually intend to place that consignment, mixed with another product, back on the market. In that respect, with regard to the client to which the contaminated diesel was delivered, it is particularly important that it returned the contaminated diesel to the vendor, with a view to obtaining a refund, pursuant to the sale contract. By so acting, that client cannot be regarded as having intended to dispose of or recover the consignment at issue and, accordingly, it did not discard it within the meaning of Article 1(1)(a) of Directive 2006/12 on waste. With regard to the vendor which delivered the contaminated diesel, it is not decisive that the consignment at issue could be sold on the market without being processed, in the condition in which it was when it was returned by the client, that the commercial value of the consignment at issue corresponds largely to that of a product which meets the agreed specifications or that the trade in products analogous to the consignment at issue is not, as a general rule, regarded as a trade in waste. However, the fact that the vendor took back the consignment at issue with the intention of blending it and placing it back on the market is of decisive importance. (see paras 46, 49-54, operative part)