Case C-113/02

Commission of the European Communities

v

Kingdom of the Netherlands

(Regulation (EEC) No 259/93 on the supervision and control of shipments of waste – Directive 75/442/EEC on waste – National measure providing for objections to shipments of waste for recovery where 20% of the waste is recoverable in the Member State and the percentage of waste recoverable in the country of destination is lower – Measure of a Member State classifying an operation under point R1 (recovery by incineration) of Annex IIB to Directive 75/442 or under point D10 (disposal by incineration) of Annex IIA to that directive not according to the criterion of actual use but according to the calorific value of the incinerated waste)

Summary of the Judgment

1. Environment – Waste – Regulation No 259/93 on shipments of waste – Waste for recovery – Notification procedure applicable to shipments between Member States – System for objections raised against a shipment – National measure justifying objections based only on the extent of recovery – Not permissible – Justification – None

(Council Regulation No 259/93, Art. 7(4)( a), fifth indent)

2. Environment – Waste – Directive 75/442 on waste – Annex IIB – Distinction between disposal operations and recovery operations – Classification as recovery operation – Conditions

(Council Directive 75/442, as amended by Commission Decision 96/350, Annex IIB, point R1)

1. The fifth indent of Article 7(4)(a) of Regulation No 259/93 on the supervision and control of shipments of waste within, into and out of the European Community, pursuant to which the competent authorities of destination and dispatch may raise reasoned objections to a planned shipment of waste for recovery if the ratio of the recoverable and non‑recoverable waste, the estimated value of the materials to be finally recovered or the cost of the recovery and the cost of the disposal of the non-recoverable fraction do not justify the recovery from the economic and environmental point of view, precludes national rules on shipments of waste which refer only, for the purposes of making that assessment, to the first of those three criteria, namely the ratio of recoverable and non‑recoverable waste. That provision also precludes national rules on shipments of waste which refer only for the purposes of making that assessment to a comparison of the percentage of recoverable waste in the States of destination and dispatch. It is irrelevant in that regard that the competent national authorities retain the power to assess each application to ship on a case-by-case basis or that the rules on shipments in question apply both to imports and exports of waste and seek to achieve the highest possible degree of recovery in the Community.

(see paras 17-21, 23-25)

2. The use of waste as a fuel is a recovery operation of the kind referred to in point R1 of Annex IIB to Directive 75/442 on waste, as amended by Decision 96/350, provided that three conditions are satisfied. First, the essential purpose of the operation referred to must be the generation of energy. Secondly, the energy generated by, and recovered from, combustion of the waste must be greater than the amount of energy consumed during the combustion process and that part of the surplus energy generated during combustion must effectively be used, either immediately in the form of the heat produced by incineration or, after processing, in the form of electricity. Thirdly, the greater part of the waste must be consumed during the operation and the greater part of the energy generated must be recovered and used.

Criteria such as the calorific value of the waste, the amount of harmful substances contained in the incinerated waste or whether or not the waste has been mixed cannot, by contrast, be taken into consideration.

(see paras 31-32)