Communication from the Commission to the Council and the European Parliament on the Interpretative Communication on waste and by-products
Date: 2007-02-21
Institutions: European Commission
Subjects: by-product, environmental law, environmental protection, industrial production, interpretation of the law, waste, waste management

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 21.2.2007 
COM(2007) 59 final 

COMMUNICATION FROM THE COMMISSION TO THE COUNCIL 
AND THE EUROPEAN PARLIAMENT 

on the Interpretative Communication on waste and by-products 

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TABLE OF CONTENTS 

1. 

2. 

2.1. 

2.2. 

3. 

3.1. 

3.2. 

3.3. 

3.4. 

Introduction .................................................................................................................. 3 

background to the Communication .............................................................................. 4 

Scope of the Communication ....................................................................................... 4 

Context of the Communication .................................................................................... 4 

The application of the European Court of Justice case law ......................................... 6 

General notions around the definition of waste ........................................................... 6 

Is the material concerned a production residue or a product?...................................... 6 

Conditions where a production residue would not be waste........................................ 7 

Other factors used by the court to distinguish between waste and by-product............ 9 

Annex 1 – examples of wastes and non-wastes ....................................................................... 11 

1. 

2. 

3. 

4. 

Slags and dusts from iron and steel production ......................................................... 11 

By-products from the food and drink industry - animal feed..................................... 11 

By-products from combustion – flue gas desulphurisation gypsum.......................... 12 

Off cuts and other similar material............................................................................. 12 

Annex II – a decision tree for waste versus by-product decisions ........................................... 13 

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COMMUNICATION FROM THE COMMISSION TO THE COUNCIL 
AND THE EUROPEAN PARLIAMENT 

on the Interpretative Communication on waste and by-products 

(Text with EEA relevance) 

1. 

INTRODUCTION 

The definition of waste has been a key part of protecting the European environment from the 
impacts of waste generation and management over the past thirty years. Objects or substances 
that are defined as 'waste' are controlled by Community waste legislation in order to protect 
human  health  and  the  environment.  The  definition  of  waste  is  applied  by  the  competent 
authorities  specified  by  Directive  2006/12/EC1  (the  Waste  Framework  Directive),  on  a  case 
by case basis, when making waste shipment or permit decisions. In general it is clear what is 
or is not waste. However, a number of issues have arisen in relation to the interpretation of 
this definition. 

One of these is related to the distinction between materials that are not the main objective of a 
production process but can be considered as non-waste by-products, and those that should be 
treated  as  wastes.  In  reality,  there  is  not  a  black  and  white  distinction,  but  rather  a  wide 
variety  of  technical  situations  with  widely  differing  environmental  risks  and  impacts  and  a 
number of grey zones. However, for the purposes of applying environmental legislation, it is 
necessary to draw a clear line between the two legal situations on a case by case basis – waste 
or not waste. It is this distinction that has on occasions proved difficult to apply. 

In  order  to  improve  the  legal  certainty  of  waste  legislation,  and  to  make  the  definition  of 
waste  easier  to  understand  and  apply,  this  Communication  seeks  to  guide  competent 
authorities in making case by case judgements on whether a given material is a waste or not, 
and  to  give  economic  operators  information  on  how  these  decisions  should  be  taken.  The 
Communication  will  also  help  to  smooth  out  differences  in  the  interpretation  of  these 
provisions throughout the EU. 

The Communication aims to explain the definition of waste set down in Article 1 of the Waste 
Framework Directive, as interpreted by the European Court of Justice, in order to ensure that 
the  Directive  is  properly  implemented.  In  EU  waste  law,  notions  such  as  by-product  or 
secondary  raw  material  have  no  legal  meaning  –  materials  are  simply  waste  or  not.  For  the 
purposes of this Communication only2, the following illustrative terms, in addition to waste as 
defined in the Directive, will be used: 

– 

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Product  –  all  material  that  is  deliberately  created  in  a  production  process.  In  many 
cases  it  is  possible  to  identify  one  (or  more)  "primary"  products,  which  is  the 
principal material produced. 

OJ L 114, 27.4.2006, p. 9-21. 
The definitions do not represent a legal interpretation of the European Commission and are not destined 
to be used outside of the context of this Communication. 

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– 

– 

Production  residue  –  a  material  that  is  not  deliberately  produced  in  a  production 
process but may or may not be a waste. 

By-product – a production residue that is not a waste. 

As  announced  in  the  Thematic  Strategy  on  the  prevention  and  recycling  of  waste,  the 
effectiveness of the guidelines proposed in the Communication will be reviewed in 2010, in 
the context of the review of the strategy. At the same occasion, there will be a review whether 
further jurisprudence from the ECJ has made a revision of the guidelines necessary. 

2. 

BACKGROUND TO THE COMMUNICATION 

2.1. 

Scope of the Communication 

The  scope  of  this  Communication  is  the  distinction  between  waste  and  non-waste  in  a 
production process context. It is not relevant to other waste such as municipal waste or other 
similar waste streams, or to consumption residues. It does not deal with the issue of when a 
product  may  become  a  waste,  or  when  a  waste  ceases  to  be  a  waste.  It  does  not  deal  with 
waste that is excluded from the scope of the Waste Framework Directive. 

2.2. 

Context of the Communication 

Article 8(2)(iv) of Decision 1600/2002/EC of the European Parliament and of the Council of 
22 July 20023, laying down the Sixth Community Environment Action Programme, called for 
a clarification of the distinction between waste and non-waste. In the Communication towards 
the  Thematic  Strategy  on  the  prevention  and  recycling  of  waste  of  27  May  20034,  the 
Commission  outlined  the  situation  on  the  definition  of  waste,  called  for  a  wide,  evidence 
backed  debate  on  the  issue  and  asked  stakeholders  with  better  alternatives  to  the  existing 
definition of waste to come forward with them. The majority of the comments asked rather for 
the basic definition of waste to be kept and for certain specific aspects to be made clearer. 

In the light of this consensus, the Commission committed itself in the Thematic Strategy on 
the prevention and recycling of waste, adopted on 21 December 20055, to come forward with 
a “Communication containing guidelines, based on the jurisprudence of the European Court 
of Justice and addressing the issues of by-products in relevant industry sectors, on when by-
products should or should not be considered as waste in order to clarify the legal situation for 
economic  operators  and  competent  authorities.”  This  document  now  carries  out  that 
commitment. 

2.2.1.  Why are guidelines needed? 

The evolving jurisprudence and relative absence of legal clarity has made in some cases the 
application  of  the  definition  of  waste  on  this  issue  difficult  for  competent  authorities  and 
economic  operators  alike.  There  is  some  evidence  of  differing  case  by  case  solutions  on 
similar facts by competent authorities in different Member States – this leads to inequalities in 
the treatment of economic operators and obstacles in the internal market. An excessively wide 

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OJ L 242, 10.9.2002, p. 1. 
COM(2003)301 Final. 
COM(2005)666 Final. 

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interpretation  of  the  definition  of  waste  imposes  unnecessary  costs  on  the  businesses 
concerned,  and  can  reduce  the  attractiveness  of  materials  that  would  otherwise  be  returned 
into the economy. An excessively narrow interpretation could lead to environmental damage, 
and undermine Community waste law and common standards for waste in the EU. 

The Commission considers that guidelines are better suited to delivering legal clarity than a 
definition of by-products in the Waste Framework Directive. Notably, a distinction between 
waste  and  by-product  that  is  based  on  whether  the  material  is  destined  for  recovery  or 
disposal,  or  based  on  whether  or  not  the  material  has  a  positive  economic  value,  would  not 
seem  to  offer  the  necessary  guarantees  for  the protection  of  the  environment.  Alternatively, 
the  direct  translation  in  the  text  of  the  Directive  of  some  of  the  language  used  by  the  ECJ, 
outside  of  its  context,  may  simply  result  in  creating  new  uncertainties.  Other  options, 
including any list type approach, appear to be impractical in operational terms and in terms of 
legal enforcement. Within the legally binding criteria set out by the ECJ, guidelines represent 
a flexible tool, adaptable to new evidence and technologies. 

2.2.2. 

Industrial context 

There  are  a  wide  variety  of  different  types  of  materials  that  are  produced  in  industrial 
processes and could be concerned by this Communication. In business vocabulary, these may 
be  identified  as  by-products,  co-products,  intermediate  products,  non-core  products  or  sub-
products.  None  of  these  terms  have  any  meaning  in  Community  environmental  law,  i.e. 
products and by-products have the same status: materials are simply waste or not. 

Industrial production processes are often complex and can generate several different materials 
with  different  economic  values,  environmental  impacts  and  waste/non-waste  statuses.  In 
addition to this the consequences of waste/non-waste status can vary from sector to sector. In 
some  sectors,  materials  that  are  sold  whilst  being  classified  as  wastes  are  traded  freely 
amongst  businesses  throughout  the  internal  market.  In  other  sectors,  such  as  the  food  and 
drink  sector,  a  clear  distinction  between  waste  and  product  is  crucial  to  the  economic 
exploitation of the material concerned. The technical situation is evolving continuously, with 
rapid changes in technology, both in production processes and the waste treatments available. 

2.2.3.  Environmental situation 

It is clear that both products and wastes can contain toxic materials and be a risk to human 
health  and  the  environment  if  badly  handled  or  controlled.  Additionally,  industrial  and 
extraction wastes often have characteristics that mean that they may pose particular risks for 
the environment, when compared with products. These are linked to the fact that whereas the 
content  of  products  is  generally  specifically  designed  and  controlled,  the  composition  of 
wastes may be less clear. 

This means that from an environmental point of view, it is extremely important that materials 
are  correctly  classified  as  wastes  or  not.  Waste  law  protects  the  environment  from  the 
consequences  of  industrial  waste  in  a  number  of  ways,  and  notably  through  permitting  and 
shipment procedures, and specific standards for the incineration of waste. If a material is not a 
waste,  this  does  not  mean  that  it  falls  completely  out  of  the  system  of  environmental 
protection set down in Community law. Product based regulation, and other legislation such 
as  the  proposed  REACH  Regulation  aim  at  protecting  human  health  and  the  environment 
from the potential environmental impacts of products and other materials that are not wastes. 

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3. 

THE APPLICATION OF THE EUROPEAN COURT OF JUSTICE CASE LAW 

3.1. 

General notions around the definition of waste 

The  ECJ  has  consistently  stated  that  the  definition  of  waste  must  be  interpreted  widely,  in 
order to be consistent with the aim of Directive 2006/12/EC, and with Article 174(2) of the 
EC Treaty which provides that Community policy on the environment is to aim at a high level 
of  protection.  The  definition  of  waste  in  Directive  2006/12/EC  makes  reference  to  its 
Annex 1, and to the European Waste List in Commission Decision 2000/532/EC6. However, 
as both of these sources are indicative, the definition of waste essentially turns on the notion 
of ‘discard’. 

The court has stressed on several occasions that whether a material is a waste or not depends 
on  the  specific  factual  circumstances,  and  that  therefore  the  decision  must  be  taken  by  the 
competent authority on a case by case basis. 

Finally, it is important to note that even where a particular material satisfies the tests set out 
by the ECJ (and described in sections 3.3) in order to be considered as a non-waste, if it is in 
practice discarded, it must clearly be considered and treated as a waste. 

3.2. 

Is the material concerned a production residue or a product? 

In  Palin  Granit7,  the  ECJ  stated  that  a  production  residue  is  something  that  is  not  the  end 
product  that  the  manufacturing  process  directly  seeks  to  produce.  In  Saetti,8  the  ECJ  noted 
that where the production of the material concerned was “the result of a technical choice” (to 
deliberately produce such a material) it could not be a production residue. 

Therefore, the first question to be asked when determining whether a material is waste or not 
is did the manufacturer deliberately choose to produce the material in question. 

If the manufacturer could have produced the primary product without producing the material 
concerned  but  chose  to  do  so,  then  this  is  evidence  that  the  material  concerned  is  not  a 
production  residue.  Other  evidence  that  the  production  of  the  material  concerned  was  a 
technical choice could include a modification of  the  production process in order to give the 
material concerned specific technical characteristics. 

The case of petroleum coke 

In the case of Saetti and Frediani, the ECJ was asked to give an opinion on whether petroleum 
coke, a carbon based material produced in the refining of crude oil, was a waste or not. The 
court  held  that  petroleum  coke  could  not  be  classified  as  a  production  residue  as  the 
production of coke is the result of a technical choice, specifically intended for use as a fuel. 
They also held that even if petroleum coke was an automatic result of the refining process, if 
it  was  certain  that  the  coke  production  in  its  entirety  would  be  used,  mainly  for  the  same 
purposes as other substances (produced in the refining process), then petroleum coke was also 
a petroleum product, manufactured as such, and not a production residue. 

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As last amended by Council Decision 2001/573/EC, OJ L 203 28.7.2001 p. 18. 
Case C-9/00 Palin Granit Oy (2002) ECR I-3533. 
C-235/02, Saetti Order, 15th January 2004. 

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3.3. 

Conditions where a production residue would not be waste 

Even where a material is considered to be a production residue, the Court has indicated that it 
is  not  necessarily  a  waste.  The  characteristics  of  the  material  in  terms  of  its  readiness  for 
further use in the economy can mean that it should not be considered to be a waste. 

In recent jurisprudence,  (Palin  Granit and following cases)  the ECJ  has  set  out a three part 
test that a production residue must meet in order to be considered as a by-product. The court 
stated  that  where  the  further  use  of  the  material  was  not  a  mere  possibility  but  a  certainty, 
without  any  further  processing  prior  to  reuse  and  as  part  of  a  continuing  process  of 
production, then the material would  not be a  waste. This test  is cumulative – all three parts 
must be met. In addition to this test, the ECJ has noted that the use for which the by-product is 
destined  must  also  be  lawful  -  in  other  words  that  the  by-product  is  not  something  that  the 
manufacturer  is  obliged  to  discard  or  for  which  the  intended  use  is  forbidden  under  EU  or 
national law (see Decision tree in Annex II). 

3.3.1. 

Is the further use of the material a certainty not a mere possibility? 

If  there  is  a  possibility  that  the  material  is  in  fact  not  useable,  does  not  meet  the  technical 
specifications  that  would  be  required  for  it  to  be  useable,  or  there  is  no  market  for  that 
material,  then  it  should  continue  to  be  considered  as  a  waste.  The  waste  status  protects  the 
environment from the potential consequences of this uncertainty. If it subsequently turns out 
that the waste can in fact serve a useful purpose, then the material will lose its waste status 
when it is ready for use as a recovered product (see Mayer Parry9). 

In some cases, there may be the potential for a certain proportion of the material to be used, 
with  the  rest  needing  to  be  disposed  of.  If,  in  the  case  by  case  judgment  of  the  competent 
authority,  certain  use  cannot  be  guaranteed  for  all  the  material  concerned  then  the  material 
should start as a waste. However, the existence of long term contracts between the material 
holder and its subsequent users can be an indication that the material covered by the contract 
will be used and therefore that certainty of use is present. 

Similarily,  if  the  material  is  going  to  be  stored  for  an  indefinite  amount  of  time,  prior  to  a 
potential but not certain re-use, then it should be considered as a waste while it is being stored 
(Palin Granit). 

3.3.1.1.  Further use will bring a financial advantage to the waste holder 

Where a manufacturer can sell the material concerned for a profit, this can indicate that it is 
more likely that such a material will certainly be used. (Palin Granit) However, this alone is 
not  definitive  –  see  previous  case  law  confirming  that  waste  can  have  an  economic  value. 
(Vessoso  and  Zanetti10,  Tombesi11).  The  Commission  considers  that  it  is  also  important  to 
weigh up the costs of treatment of waste when considering this test, as there is a risk that a 
token price could be offered to have the material classified as non-waste, and therefore allow 
it to be treated outside of proper waste treatment facilities. However, a high price, in line with 
or above current market prices for the material, may indicate that the material is not waste. 

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C-444/00 Mayer Parry (2003) ECR I-6163. 
Cases C-206/88 and 207/88, Vessoso and Zanetti (1990) ECR 1461. 
Joined cases C-304/94, C-330/94, C-342/94 & C-224/95 Tombesi (1997) ECR I-3561. 

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The Spanish Manure cases 

In  the  joined  cases  of  Commission  v  Spain  (C-416/02  and  C-121/03),  the  court  held  that 
manure  will  not  be  waste  where  it  is  used  as  soil  fertiliser  as  part  of  a  lawful  practice  of 
spreading on clearly identified parcels (regardless of whether the parcels are within or outside 
the agricultural holding that generated the effluent) and if its storage is limited to the needs of 
those spreading operations. 

3.3.2.  Can the material be used again without any further processing? 

In some cases, this can be a difficult test to apply. Often, in the value chain of a by-product 
there is a chain of tasks that must be undertaken as part of the further use of the material: The 
material is produced, it may then be washed, dried, refined or homogenised, characteristics or 
other  materials  that  are  necessary  for  its  further  use  may  be  added,  its  quality  will  be 
controlled  and  so  on.  Some  tasks  will  be  carried  out  on  the  production  site  of  the 
manufacturer, some on the site of the next user, and some by intermediaries. To the extent that 
these  tasks  are  an  integral  part  of  the  production  process  (see  next  section),  they  do  not 
prevent the material from being considered as a by-product. 

The Court has found that if an additional recovery process is required before further use, even 
if such subsequent use is certain, this is evidence that the material is a waste until the process 
has been completed (Avesta Polarit12). 

3.3.3.  As part of the continuing process of production? 

If, however, the material is made ready for a further use as an integral part of the continuing 
process  of production,  and  is  then  effectively  sent  for  such  a  further  use,  then  it  is  a  by-
product, according to the test set down by the ECJ. 

In  this  situation,  the  competent  authority  will  need  to  decide  whether  the  tasks  described  in 
the section above are an integral part of the continuing process of production. In doing so 
the Commission considers that they will need to make a distinction based on all the facts: the 
degree of readiness of the material for further use, the nature and extent of the tasks needed to 
prepare the material before further use, the integration of these tasks into the main production 
process and whether the tasks are being carried out by someone other than the manufacturer, 
could  all  be  relevant.  BREF  documents  could  also  be  taken  into  consideration  by  the 
competent authority as guidance when deciding whether the tasks are an integral part of the 
continuing process of production. It should be noted that the approach set out by the Court in 
the Palin Granit, Niselli13 and Spanish manure cases indicates a narrow rather than a broad 
approach to the notion of production process. 

If the material leaves the site or factory where it has been produced in order to undergo further 
processing  then  this  may  be  evidence  that  such  tasks  are  no  longer  a  part  of  the  same 
production  process.  However,  with  the  increasing  specialisation  of  industrial  processes,  this 
cannot  be  taken  as  definitive  evidence.  Next  users  and  intermediated  companies  may  be 
involved  in  preparing  the  material  for  further  use,  through  carrying  out  the  type  of  tasks 
described above in 3.3.2. 

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Case C-114/01 AvestaPolarit Chrome Oy judgment 11 September 2003. 
C-457/02, Niselli, order of 11th November 2004. 

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If  the  material  is  needed  as  part  of  the  primary  activity  of  the  manufacturer  then  this  is 
evidence that the material concerned is not a waste. 

The case of the leftover rocks 

In  the  cases  of  Avesta  Polarit  and  Palin  Granit,  the  Court  was  asked  to  settle  in  what 
circumstances leftover rock from mining and quarrying should be considered as a waste. The 
Court stated that where the rocks were being stored prior to a possible future use or a future 
waste  treatment  obligation,  they  would  be  waste.  Where  certain  residues  that  could  be 
physically  identified  were  being  stored  prior  to  a  potential  but  not  certain  re-use,  without 
being processed, in order to fill in underground galleries for stability purposes as required for 
the principal activity of the mine (extraction of ore), they would not be waste. 

3.4. 

Other factors used by the court to distinguish between waste and by-product 

In Arco Chemie14, and in other similar jurisprudence, the ECJ lists a whole range of factors 
that may indicate that a material is a waste. None of these elements are necessarily conclusive, 
but some may be helpful in some circumstances. 

3.4.1.  No  other  use  than  disposal  can  be  envisaged,  or  the  use  has  a  high  environmental 

impact or requires special protection measures 

As  the  ECJ  noted,  if  a  given  material  has  no  possible  use,  and  therefore  will  have  to  be 
disposed of, it would seem normal that such a material would be considered waste from the 
moment of production. In some cases further use of the material is prohibited, or the material 
must be disposed of or recovered as a waste in an obligatory procedure. This could occur for 
environmental, safety or public health reasons. One example of EU legislation that could lead 
to it being obligatory to dispose of a given material or to treat it as waste is Directive 96/59 on 
PCBs/PCTs15.  Equally,  if  the  material  does  not  meet  product  legislation  standards  for  its 
potential use, then it should be treated as a waste until it is ready to meet such standards. 

The issue of the potential for environmental damage from a given material, and the need for 
special environmental protection measures to be taken in order for the material to be used is 
more  complex.  A  number  of  primary  products also  have  a  high  potential  for  environmental 
damage, and require careful use in order not to damage the environment. However, following 
the  ECJ  position  on  interpreting  the  waste  definition,  if  a  by-product  has  a  higher 
environmental impact than an alternative material or product that it replaces, this may affect 
the boundaries of the waste/non-waste decision in situations where a comparison is possible 
and relevant. 

The contrary situation, the absence of a clear risk to the environment from a material, does not 
prove that it is not a waste. In Palin Granit, the ECJ considered that even if it was proven that 
the material in question does not pose any real risk to human health and environment; this was 
not  a  relevant  criterion  in  order  to  consider  that  a  material  was  not  waste.  This  is  logical  – 
inert industrial waste dumped in an inappropriate area may pose no risk to human health or to 
the  environment.  However,  it  undoubtedly  constitutes  a  nuisance  and  should  be  covered  by 
the  scope  of  the  waste  definition.  Following  on  from  this,  the  fact  that  a  substance  can  be 

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15 

Joined Cases C-418/97 & C-419/97 ARCO Chemie (2000) ECR I-4475. 
O J L 243, 24.9.1996 P. 31-35. 

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recovered  as  a  fuel  in  an  environmentally  responsible  manner  and  without  substantial 
treatment does not mean that the substance is not a waste (Arco Chemie). The waste definition 
exists  to  ensure  that  this  environmentally  responsible  treatment  is  indeed  carried  out  on 
wastes. 

In  the  same  case,  the  ECJ  stated  that  neither  the  place  of  storage  of  a  material  or  the 
composition  of  a  material  was  relevant  to  whether  the  material  was  waste  or  not.  In  some 
cases – marble quarrying, for example – waste production residues such as off cuts can indeed 
be  composed  of  exactly  the  same  material  as  the  primary  product.  However,  if  they  are 
destined to be discarded, then they will still be waste. 

3.4.2.  The  treatment  method  for  the  material  in  question  is  a  standard  waste  treatment 

method  

In some circumstances, the destination of the material can give a strong hint as to the status of 
that material. The ECJ has, however, also held that whether the operation that will be applied 
to  the  material  is  or  is  not  a  waste  treatment  operation  listed  in  Annex  IIA  or  IIB  cannot 
provide  the  definitive  answer  on  whether  the  material  is  waste  or  not  (Niselli).  This  is 
inevitable,  as  several  methods  of  treatment  or  disposal  listed  in  the  Annex  could  also  be 
perfectly  validly  applied  to  a  product,  and  vice  versa.  Notably,  there  is  no  way  of 
distinguishing between the combustion of a fuel as a product and the combustion of a waste 
based on the treatment method. 

3.4.3.  The undertaking perceives the material as waste 

In Arco Chemie the Court has  noted that the perception of the material as waste could be a 
factor that could  indicate that the material concerned was waste. However,  the  Commission 
considers  that  this  test  could  encourage  a  negligent  approach  to  waste  law,  by  giving  an 
advantage  to  businesses  that  are  not  aware  of  their  legal  obligations  or  who  seek  to  avoid 
compliance with these obligations. In addition, as the notion is extremely subjective, it could 
lead to the concept of waste varying from one Member State to another. 

3.4.4.  The undertaking seeks to limit the quantity of material produced 

Again  in  Palin  Granit,  the  ECJ  noted  that  if  the  undertaking  seeks  to  limit  the  quantity  of 
material produced this could be an indicator that the material is a waste. This is not definitive, 
as it is possible to seek to vary the quantities produced of a given material for factors related 
to cost, price and markets, rather than as a desire to minimise the quantities of a material that 
is  to  be  discarded.  Further,  applying  this  criterion  in  a  rigorous  manner  could  dissuade 
companies from adopting waste prevention policies in some circumstances. 

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Annex 1 – examples of wastes and non-wastes 

These examples are designed to illustrate some cases in which materials may be classified as 
wastes or not. They are taken from a number of different sectors, but are neither definitive nor 
comprehensive.  There  are  many  other  examples  that  could  have  been  used,  and  even  the 
examples here may vary across the EU in some circumstances, notably if there is no certainty 
of use for a given by-product, or on the contrary, if use is certain for a material in a region or 
Member State, where this is not the case across the whole EU. 

1. 

SLAGS AND DUSTS FROM IRON AND STEEL PRODUCTION 

Blast  furnace  slag  is  produced  in  parallel  with  hot  iron  in  a  blast  furnace.  The  production 
process  of  the  iron  is  adapted  to  ensure  that  the  slag  has  the  requisite  technical  qualities.  A 
technical choice is made at the start of the production process that determines the type of slag 
that is produced. Moreover, use of the slag is certain in a number of clearly defined end uses, 
and  demand  is  high.  Blast  furnace  slag  can  be  used  directly  at  the  end  of  the  production 
process, without further processing that is not an integral part of this production process (such 
as crushing to get the appropriate particle size). This material can therefore be considered to 
fall outside of the definition of waste. 

In contrast, de-sulphurisation slag is produced due to the need to remove sulphur prior to the 
processing of iron into steel. The resulting slag is rich in sulphur, cannot be used or recycled 
in the metallurgical circuit and is therefore usually disposed of in a landfill. Another type of 
example is dust extracted from the steel production process when cleaning the air inside the 
plant. This is captured in filters via an extraction process. These filters can be cleaned and the 
metallic  content  returned  to  the  economic  cycle  via  a  recycling  operation.  Both  of  these 
production  residues  are  therefore  wastes  from  the  point  of  production  with  the  iron  content 
extracted from the filters ceasing to be waste once it has been recycled. 

2. 

BY-PRODUCTS FROM THE FOOD AND DRINK INDUSTRY - ANIMAL FEED 

A  major  use  for  by-products  from  the  food  and drink  sector  is  animal  feed.  The  production 
processes in numerous sectors (e.g. sugar production, oilseed crushing, starch production and 
malt production) generate materials that are used as feed material either directly by farmers or 
by  the  animal  compound  feed  industry.  Although  not  all  production  residues  destined  for 
animal  feed  are  automatically  non-wastes16,  the  above  feed  materials  are  produced 
deliberately  in  adapted  production  processes,  or  may  not  be  produced  deliberately  but  meet 
the cumulative by-product criteria of the court as their further use in animal feed is certain, 
without further processing outside of the production process of that material. In addition, the 
feed  material  is  governed  by  legislation  such  as  Regulation  178/2002  on  food  law17  and 
Directive 96/25/EC on the circulation and use of feed material18. In both cases, this material 
can therefore be considered to fall outside of the definition of waste. 

16 

17 
18 

(as per the position of the Commission before the court in pending case Commission v Italy, C-195/05 - 
the  existence  of  specified  technical  characteristics  and  certain  re-use  is  not  enough  on  its  own  –  the 
three cumulative elements of the ECJ jurisprudence must be applied). 
OJ L 100, 8.4.2006, p. 3. 
OJ L 123, 23.5.1996, p. 35-58. 

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3. 

BY-PRODUCTS FROM COMBUSTION – FLUE GAS DESULPHURISATION GYPSUM 

Flue  gas  desulphurisation  facilities  remove  sulphur  from  the  flue  gases  that  are  produced 
when  sulphurous  fossil  fuels  are  combusted  in  power  plants,  in  order  to  prevent  these 
emissions  contributing  to  air  pollution  and  acid  rain.  The  resulting  material,  flue  gas 
desulphurisation (FGD) gypsum is used for the range of uses that natural gypsum can be put 
to  and  notably  the  production  of  plasterboard.  The  process  is  modified  and  controlled  to 
produce  FGD  gypsum  of  the  required  characteristics.  In  addition,  use  of  the  material  is 
certain,  without  further  processing  prior  to  re-use  and  as  part  of  an  integrated  production 
process. 

A  number  of  other  coal  combustion  products  can  have  further  uses  with  little  or  no  further 
processing. Some, however, are in practice regularly landfilled – lignite fly ash, for example. 
As there is therefore no certainty of use at an EU wide level, they do not fulfil the ECJ criteria 
across  the  EU  and  will  therefore  often  be  wastes,  although  in  some  local  situations  an 
application and therefore certainty of use may exist. 

4. 

OFF CUTS AND OTHER SIMILAR MATERIAL 

Sawdust,  wood  chips  and  off  cuts  from  untreated  wood  is  generated  at  saw  mills  or  at 
secondary operations such as the manufacturing of furniture or pallets and packaging, along 
with the primary product, cut wood. These elements are then used as the raw material for the 
production of wood based panels such as chip board or in paper production. Use is certain, as 
part of an integral production process and without further processing other than being adapted 
to the appropriate size for being integrated into the final product. 

In more general terms, excess material from a primary production process, or material that is 
deficient only in a cosmetic way but that is materially similar to the primary product, such as 
rubber compound and vulcanisation mix, cork shavings and pieces, plastic scrap and similar 
material may be seen as by-products. For this to be the case they must be able to be reused 
directly either back in the primary production process or in other integrated productions where 
reuse  is  also  certain.  Materials  of  this  type  can  also  be  considered  to  fall  outside  of  the 
definition of waste. 

Where  material  of  this  kind  requires  a  full  recycling  or  recovery  operation,  or  contains 
contaminants that need to be removed before it can be further used or processed, this would 
indicate that the material is a waste until the recycling or recovery operation is completed. 

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Annex II – a decision tree for waste versus by-product decisions 

Is the intended use of 
the material lawful? 

Material is a waste 

NO

YES

Then material is 
a product, not a 
production 
residue 

YES 

Was the material deliberately 
produced? (Was the production 
process modified in order to 
produce the material?) 

NO

Material is a production 
residue – tests below 
apply 

Is use of the material 
certain? 

YES

Material is a waste 

NO

Is the material ready for use 
without further processing  (other 
than normal processing as an 
integral part of the production 
process)? 

NO 

Material is a waste 

YES

Then the material 
is a non-waste by-
product 

YES 

Is the material produced as an 
integral part of the production 
process? 

NO

Material is a waste 

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