CELEX: 62005CC0259
Language: en
Date: 2007-02-15 00:00:00
Title: Opinion of Mr Advocate General Mengozzi delivered on 15 February 2007. # Criminal proceedings against Omni Metal Service. # Reference for a preliminary ruling: Rechtbank te Rotterdam - Netherlands. # Regulation (EEC) No 259/93 - Waste - Cables composed of copper and PVC - Export to China for purposes of recovery - Heading GC 020 - Mixed waste - Combination of two materials mentioned in the green list of wastes - Such mixed waste not included on the green list - Consequences. # Case C-259/05.

OPINION OF ADVOCATE GENERAL
      MENGOZZI
      delivered on 15 February 2007 1(1)
      
      Case C-259/05
      Openbaar Ministerie
      v
      Omni Metal Service
      (Reference for a preliminary ruling from the Rechtbank te Rotterdam (Netherlands))
      (Transport of waste – Regulation (EEC) No 259/93 – Cable scrap composed of various green list materials – Transport without notification or separation)I –  Introduction
      1.     In the present case, the Court is asked to rule on 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 (2) (‘the Regulation’) with reference to certain categories of waste which appear in Annex II to the Regulation. In particular,
         the referring court asks the Court to determine whether obligations exist with respect to notification at the time of export,
         for purposes of recovery, of waste consisting of a combination of two different materials, a combination which is not, as
         such, included in Annex II to the Regulation but each of the constituent materials of which does appear in that annex.
      
      II –  Legal framework
       The relevant provisions of Community law
      2.     The Regulation at issue in the present case was adopted in order to establish a system for the supervision and control of
         shipments of waste within, into and out of the Community, with reference both to EC countries and to non-member countries,
         with a view to preserving, protecting and improving the quality of the environment and also in the light of the obligations
         assumed by the Community under the Basle Convention and the OECD Decision of 30 March 1992 (3) (‘the OECD Decision’).
      
      3.     The following recitals in the preamble to the Regulation are relevant for the purposes of the present case:
      ‘Whereas the Community has signed the Basle Convention of 22 March 1989 on the control of transboundary movements of hazardous
         wastes and their disposal;
      
      …
      Whereas the Community has approved the Decision of the OECD Council of 30 March 1992 on the control of transfrontier movements
         of wastes destined for recovery operations;
      
      …
      Whereas it is important to organise the supervision and control of shipments of wastes in a way which takes account of the
         need to preserve, protect and improve the quality of the environment;
      
      …
      Whereas it is necessary to apply different procedures depending on the type of waste and its destination, including whether
         it is destined for disposal or recovery;
      
      …
      Whereas exports of waste for recovery to countries to which the OECD Decision does not apply must be subject to conditions
         providing for environmentally sound management of waste;
      
      …
      Whereas shipments of waste for recovery listed on the green list of the OECD Decision shall be generally excluded from the
         control procedures of this Regulation since such waste should not normally present a risk to the environment if properly recovered
         in the country of destination; …’.
      
      4.     The procedures established by the Regulation for shipments of waste within, into and out of the Community are distinguished
         essentially on the basis of three criteria, namely the type of waste, whether it is destined for recovery or disposal in accordance
         with the classification of those operations laid down in Council Directive 75/442/EEC of 15 July 1975 on waste (4) and on the basis of the country of destination. In general, with some exceptions, including the transport of wastes on the
         green list, prior notification is required for all types of shipment.
      
      5.     With reference to the first criterion, the Regulation provides a classification of wastes in three lists: a ‘green list of
         wastes’ (Annex II), an ‘amber list of wastes’ (Annex III), and a ‘red list of wastes’ (Annex IV), (‘the green list’, ‘the
         amber list’ and ‘the red list’ respectively, or ‘Annex II’, ‘Annex III’ and ‘Annex IV’).
      
      6.     In accordance with the provision contained in the 14th recital in the preamble, cited above, materials on the green list are
         deemed not to present a risk to the environment if properly recovered and shipment of these materials is therefore generally
         excluded from the requirement of notification if they are destined for recovery in another Member State. 
      
      7.     Article 1 of the Regulation contains the following provisions: 
      ‘…
      (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 the provisions of Directive 75/442/EEC …’. 
      8.     With reference to shipments of green waste for recovery in China, to which the OECD Decision does not apply, under Annex D
         to Commission Regulation (EC) No 1547/1999 of 12 July 1999, (5) in the version in force when the events at issue in the main proceedings occurred, prior notification is not required from
         that country for the transport of certain categories of ‘green wastes’, including materials listed under headings GA 120 7404 00,
         GC 020 and GH, but they must be inspected by the CCIC (China National Import and Export Commodities Inspection Corporation)
         prior to shipment. 
      
      9.     On the classification of wastes, I note that each list is subdivided into headings listed in alphabetical order (such as,
         for example, the general heading GH, cited above, which includes solid plastic wastes), which in turn are subdivided into
         more specific headings listed in numerical order. (6)
      
      10.   For the purposes of the waste at issue in the present case, the relevant headings are ‘GA 120 7404 00 Copper waste and scrap’,
         ‘GH 013 (ex 3915 30) Polymers of vinyl chloride’, general heading ‘GC (Other wastes containing metals)’, and the specific
         headings under that heading ‘GC 010 Electrical assemblies consisting only of metals or alloys’ and ‘GC 020 Electronic scrap
         (e.g. printed circuit boards, electronic components, wire, etc.) and reclaimed electronic components suitable for base and
         precious metal recovery’.
      
      11.   The preamble to the green list, introduced by Commission Decision 94/721/EC of 21 October 1994, (7) adapting, pursuant to Article 42(3), Annexes II, III and IV to the Regulation, (8) provides that:
      
      ‘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’.
      
      12.   With respect to waste not included in any of the lists in Annexes II, III and IV, Article 17(8) of the Regulation contains
         the following provision:
      
      ‘Where waste for recovery listed in Annex[es] III and IV and waste for recovery which has not yet been assigned to Annex II,
         III or IV is exported to and through countries to which the OECD Decision does not apply:
      
      –       Article 15, except for paragraph 3, shall apply by analogy, 
      –       reasoned objections may be raised in accordance with Article 7(4) only,
      save as otherwise provided for in bilateral or multilateral agreements entered into in accordance with Article 16(1)(b) and
         on the basis of the control procedure of either paragraph 4 or 6 of this Article or Article 15.’
      
      13.   Article 15 of the Regulation lays down a prior notification and authorisation procedure applicable to red list waste. 
      14.   Lastly, it should be noted that under Article 26 of the Regulation:
      ‘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. 
      2. If such illegal traffic is the responsibility of the notifier of the waste, the competent authority of dispatch shall ensure
         that the waste in question is:
      
      (a) taken back by the notifier or, if necessary, by the competent authority itself, into the State of dispatch, or if impracticable;
      (b) otherwise disposed of or recovered in an environmentally sound manner, within 30 days from the time when the competent
         authority was informed of the illegal traffic or within such other period of time as may be agreed by the competent authorities
         concerned. 
      
      In this case, a further notification shall be made. No Member State of dispatch or Member State of transit shall oppose the
         return of this waste at the duly motivated request of the competent authority of destination and with an explanation of the
         reason.’
      
      III –  The facts and the questions referred for a preliminary ruling
      15.   It appears from the decision of the referring court that in March 2004 Omni Metal Service (‘OMS’), a company established in
         France, sold a consignment of cable scrap to a Chinese undertaking that is part of an Australian group of companies specialising
         in recycling metals. 
      
      16.   OMS was shipping the scrap in question by sea from Bilbao, in Spain, to China, via the Netherlands. The shipment was authorised
         in advance by the Chinese authorities, following an inspection by the China National Import and Export Commodities Inspection
         Corporation, but the competent Netherlands authorities were not notified.
      
      17.   On inspection by the Netherlands customs authorities, it transpired that the cable that was being transported, classified
         in the accompanying documents as ‘electrical’, consisted of a copper core surrounded by PVC sheathing with diameters of up
         to 15 cm. The Netherlands authorities took the view that that composition of PVC and copper did not come under any of the
         headings in Annexes II, III, and IV to the Regulation, in particular the green list, and they therefore sent the consignment
         of scrap in question back to Spain, the country from which it had been shipped, on the ground that the shipment was in breach
         of the notification and authorisation procedures laid down in the Regulation and therefore constituted a case of illegal traffic
         of waste within the meaning of Article 26. 
      
      18.   At the same time, criminal proceedings were brought against OMS for shipping waste without giving prior notification to the
         competent authorities of the country of transit in accordance with Article 15 of the Regulation.
      
      19.   The decision for reference issued by the Rechtbank te Rotterdam (District Court, Rotterdam) states that the Openbaar Ministerie
         (Public Prosecutor’s Department) claimed that the waste in question did not come under heading GC 020 in the green list, in
         so far as, in its view, it was large-diameter earth cable, not classifiable as household flex and/or wire. 
      
      20.   Also, according to the Openbaar Ministerie, as the combination of PVC and copper in the cable in question did not appear as
         such on the green list, it could not be held to be included on that list because, in view of the objectives of the Regulation
         and the fact that the procedure applicable to shipments of ‘green’ materials constitutes an exception to the system of control
         established by the Regulation, a restrictive interpretation and a limited application of that list are mandatory. In support
         of that position, the Openbaar Ministerie cited the judgment in Beside and Besselsen, (9) in which, it submitted, the Court had held that the prescribed procedure for shipments of waste referred to in Annex II may
         apply only in the case of ‘properly sorted’ green materials or of combinations of ‘green’ materials which, if not separated,
         appear in combination on the green list.
      
      21.   Consequently, Article 15 of the Regulation must, in its view, apply by analogy, in accordance with the provisions of Article
         17(8), to a shipment to China, a non-OECD country, of waste consisting of a combination of ‘green’ materials which have not
         been separated and which do not appear in combination on any of the lists contained in the Regulation. In the present case,
         therefore, the Openbaar Ministerie continues, the competent authorities in the Netherlands ought to have been notified of
         the shipment.
      
      22.   OMS contested those views, contending that the cable in question comes under heading GC 020 because the decisive factor for
         the purposes of that classification is the composition of the cables and no importance should be attached to their origin
         or their diameter. Inasmuch as the cables in question are composed of PVC and copper, they should, in its view, be treated
         in the same way as the electronic scrap listed under heading GC 020 since the flex and/or wire in that category is generally
         composed of the same materials.
      
      23.   In the alternative, OMS argued that the green list procedure must in any case apply to a combination of two materials which
         appear on that list, even if those materials do not appear on the list in combination. According to OMS, that interpretation
         is confirmed by the practice followed in most Member States, including Spain, the country of dispatch, and which is also followed
         in China, the country of destination.
      
      24.   The referring court, having doubts as to the interpretation of the relevant provisions of the Regulation, decided to stay
         the proceedings pending before it and to refer the following questions to the Court for a preliminary ruling:
      
      ‘(1)      Can cable scrap such as that in issue in the present case (in part with a diameter of 15 cm) be classified as “electronic
         scrap (e.g. … wire, etc.)” within the terms of heading GC 020 of the green list?
      
      (2)      If the Court of Justice should answer Question 1 in the negative, can or must a combination of green list materials, which
         is not as such mentioned on the green list, be regarded as a green list material and may that combination of materials be
         transported for purposes of recovery without the notification procedure being applicable?
      
      (3)      Is it necessary in this connection that the waste materials be offered or transported separately?’
      25.   Pursuant to the second paragraph of Article 23 of the Statute of the Court of Justice, OMS, the Commission, and the Netherlands
         and Portuguese Governments submitted written observations. OMS, the Commission and the Netherlands Government were represented
         at the hearing.
      
      IV –  Legal analysis
       The first question
      26.   By the first question, the referring court seeks essentially to ascertain whether cables composed of PVC and copper, with
         various diameters, can be classified on the basis of heading GC 020 as electronic scrap and can be transported as green waste
         without prior notification.
      
      27.   In that connection, OMS contends that heading GC 020 is not an exhaustive list but a residual category in which the decisive
         factor for the purposes of classifying waste as ‘electronic scrap and reclaimed electronic components’ is the composition
         of the waste and that, in the case of cable and wire, the origin of the cable, whether household or municipal, and its dimensions,
         in terms of diameter and/or length, are of no consequence. In view of the Regulation’s objective of environmental protection,
         OMS considers that for cables to be included in that category it is sufficient that the materials of which they are composed
         have not been contaminated to an extent that would constitute risks to human health or environmental protection during the
         process of recovery. Consequently, the cable in question, composed like most electronic cable and wire of copper and PVC and
         not contaminated with other materials, should in its view be treated in the same way as electronic waste and it should be
         possible to ship it without prior notification.
      
      28.   In support of that broad interpretation of heading GC 020, OMS cites Directive 2002/96/EC of the European Parliament and of
         the Council of 27 January 2003, (10) which lays down common rules on the management of waste electrical and electronic equipment, inasmuch as the disposal or
         recovery of the two types of equipment does not present different risks to the environment, since the composition of the two
         types of equipment is identical.
      
      29.   The Netherlands Government, for its part, considers that the objective of the Regulation, set out in recitals 1 to 5 and 8
         of the preamble and confirmed by the Court in the judgment in Parliament v Council, (11) to secure a high level of protection of the environment and human health requires (a) limited application of the simplified
         procedure provided for shipments for the purposes of recovery of wastes on the green list, inasmuch as it derogates from the
         ordinary system of control established by the Regulation, and (b) a restrictive interpretation of the categories of waste
         included on that list.
      
      30.   On the basis of that restrictive interpretation, the decisive factor for the purposes of the classification of waste under
         heading GC 020 is therefore, in its view, the ‘origin’ of the waste, which is to be understood as ‘electronic equipment’ and
         which must necessarily be differentiated from electrical equipment, which is expressly mentioned under heading GC 010. 
      
      31.   Consequently, since the waste in question was classified as electrical cable in the documents accompanying the shipment and
         as that was to be understood as meaning ‘earth cable for the transport of electricity’, the Netherlands Government concludes
         that the said cable cannot come under category GC 020 of the green list.
      
      32.   In my view, and as the Commission observed in the course of the hearing, it appears from a semantic analysis of heading GC 020
         that the terms ‘scrap’ and ‘components’ have a purely descriptive, not a prescriptive, value for purposes of the classification
         of waste. Nor can the generic composition of the waste in question (in this case copper and PVC of which cables and/or wire
         are for the most part composed) be held to be decisive for the purposes of classification under heading GC 020, since there
         is no reference to it in the text of that heading, and the same considerations apply to the origin of ‘household or municipal’
         waste. 
      
      33.   The only factor that appears to be relevant to the classification of waste for the purposes of the heading in question is
         the nature of the waste. Heading GC 020 in fact comprises electronic scrap, including cables and wires, which are mentioned
         merely by way of example. The factor that appears to be conclusive for the purposes of classification is therefore the ‘electronic’
         nature of the waste, in other words, the fact that it is or has been part of electronic equipment, regardless of its composition,
         its dimensions or its household/municipal origin.
      
      34.   That interpretation is corroborated, on the one hand, by the uniformity of the various language versions with reference to
         the term ‘electronic’ and, on the other, by the systematic wording of the general category GC (Other wastes containing metals)
         to which the subcategory GC 020 belongs. In fact, the first heading in that general category is heading GC 010 and the origin
         and composition of the waste, namely electrical assemblies ‘consisting only of metals or alloys’, (12) appear to be conclusive for the purposes of that category. In that respect it is unlike the next category, GC 020 at issue
         in this case, which is more restricted in scope inasmuch as it comprises only waste of electronic origin suitable for ‘base and precious metal recovery’.
      
      35.   It follows that not all wires or cables, which as I have already said are listed merely by way of example, come under heading
         GC 020 but only those which are or have been part of equipment that can be classified as electronic.
      
      36.   Moreover, as regards Directive 2002/96, known as the WEEE directive, while it is true that it lays down common rules on the
         management of waste electrical and electronic equipment, a fact that might lead one to suppose that any distinction between
         those categories of waste was irrelevant for the purposes of classification in the green list, some observations are nevertheless
         called for in this connection.
      
      37.   First, it should be noted that the abovementioned directive is of limited relevance for the purposes of the present case,
         since the period within which it had to be transposed had not yet expired when the facts at issue in the case occurred.
      
      38.   Secondly, the arguments advanced by OMS are open to dispute, both on chronological grounds and in respect of legal basis and
         independent application. In particular, it is risky to interpret the provisions of the Regulation in question automatically
         in the light of a subsequent measure, especially a directive adopted nine years later. Moreover, the directive itself is subject
         to the provisions of the Regulation in respect of its application.
      
      39.   Lastly, the distinction between electrical assemblies and electronic equipment referred to in headings GC 010 and GC 020 of
         the Regulation in question is maintained in Regulation No 1013/2006, (13) which replaces the former Regulation and was adopted four years later than the directive in question.
      
      40.   In the light of the foregoing observations, I consider that the distinction between categories of waste based on the criterion
         of the electronic or electrical ‘origin’ of the waste is still relevant in the light of the rules laid down in the WEEE Directive
         2002/96.
      
      41.   That said, it will be for the referring court to determine, as a matter of fact which is not within the Court’s jurisdiction,
         whether the ‘origin’ of the cables in question was in electronic equipment – a subject on which a further dispute between
         the parties emerged in the course of the hearing – for the purpose of including those cables under heading GC 020 of the Regulation,
         with the consequence that the simplified green list procedure would apply to their shipment. 
      
       The second and third questions
      42.   I shall now proceed to a combined analysis of the second and third questions by which the Rechtbank te Rotterdam essentially
         asks the Court to determine whether a combination of materials mentioned on the green list, a combination not as such included
         in the list, can or must be regarded as coming under the list and whether for that purpose it is necessary that the two elements
         comprising the combination be offered or transported separately.
      
      43.   The determination in question is important because it provides the basis for identifying which of the control systems established
         under the Regulation at issue is applicable to the shipment of the materials. In the event of combinations of green list materials
         being considered to be included in that list, it may be held on the basis of Annex D to Regulation No 1547/1999, cited above,
         that China need not be notified of their shipment. If, on the contrary, combinations of ‘green’ materials cannot be included
         in the green list because they are not mentioned in any of the annexes to the Regulation, it must be held that there is a
         duty to apply the system of prior notification applicable to shipments of materials on the red list (Article 15 of the Regulation).
      
      44.   With reference to the second and third questions, the Netherlands Government, referring again to the Regulation’s specific
         objectives of protecting the environment and human health, argues in favour of a restrictive interpretation of the green list
         on a number of grounds. In the first place, it says, the list includes various types of waste consisting of a combination
         of two ‘green’ materials, which suggests that the list is exhaustive and definitive. In the second place, it points out that
         the inclusion of a material in the green list follows a preliminary assessment of the risks connected with the recovery of
         the material, considered singly, which excludes the inclusion, in combination, of materials that do not appear on the list
         because the possible risks connected with their recovery have not been assessed. 
      
      45.   Lastly, the Netherlands Government argues that, in the case of combinations of a number of ‘green’ materials, there may be
         a heightened risk to the environment in cases where only one of the materials is recovered, leaving the others for disposal.
         The fact that there may be such a risk, in that case, should in its view undoubtedly exclude such combinations from the system
         established for the green list. According to the Netherlands Government, this was clearly so in the present case, inasmuch
         as, by its account, the copper of which electrical cables are generally composed is recovered in China by removing the PVC
         by incineration in an operation that is not subject to controls.
      
      46.   This restrictive view as to the interpretation of the green list is shared by the Portuguese Government.
      47.   OMS considers, on the contrary, that a combination of two green list materials destined for recovery does not in itself present
         any risks to the environment other than those connected with the various materials comprising the combination, considered
         singly, with the result that that kind of waste is included in the green list. In its view, that interpretation, as already
         observed earlier, is supported by the practice followed in various Member States and also in China, the country of destination
         of the shipment in question.
      
      48.   The abovementioned view is also, according to OMS, corroborated by the provision of the 2001 OECD Decision, (14) under which a mixture of ‘green wastes’ is subject to the green list procedure, provided the composition of this mixture
         does not impair its environmentally sound recovery. OMS contends that that decision represents an important instrument for
         the interpretation of the rules laid down by the Regulation at issue, although those rules are not directly applicable to
         the present case since China is not a party to that decision.
      
      49.   The Commission, for its part, while it shares the extensive approach adopted by OMS in interpreting the green list, nevertheless
         considers that the rule that shipments of combinations of green materials are exempt from the notification requirement cannot
         apply automatically. On the contrary, the risks connected with the recovery of two green materials in combination should be
         assessed on a case-by-case basis. In the case in question, in view of the risks connected with the recovery of the PVC, it
         takes the view that the cable at issue cannot be included in the green list and that the procedures applicable to the transport
         of materials that do feature on that list cannot therefore apply to that type of waste.
      
      50.   For my own part, I consider that, although the green list appears prima facie to contain an exhaustive and definitive list
         of the cases in which the procedures for the control of shipments of waste set out in the Regulation in question do not apply,
         various factors oppose such a restrictive interpretation of the list in question.
      
      51.   In the first place, while it is true that the wastes on the green list represent a particular category which does not come
         within the scope of the Regulation, as set out in Article 1(3), and that, as those wastes are generally not hazardous, they
         are not subject to the control system established by the legislation in question, nevertheless I do not consider that it therefore
         follows that the list in question is definitive and exhaustive inasmuch as such an interpretation would, in my view, be contrary
         both to the objectives of the Regulation and to the wording of the preamble to the green list.
      
      52.   In this connection, the preamble to the green list, which is relevant in respect not only of its wording but also of its significance
         for the purposes of reconstructing the objectives of the Regulation, provides that, ‘regardless of whether or not wastes are
         included’ in the green list, they may not be moved as green wastes if ‘they are contaminated with other materials’ to an extent
         which increases the risks associated with the waste sufficiently to render it appropriate for inclusion in the amber or red
         lists or prevents the recovery of the waste in an environmentally sound manner.
      
      53.   In the second place, the open character of the preamble to the green list, shown by the mention of a possibility of excluding
         wastes from the system of that list, whether or not they are included in the list, (15) is not an isolated instance: it is also found in expressions contained in various headings of the green list, such as ‘including
         but not limited to’, ‘other’, ‘other … , e.g. …’, or ‘other, including but not limited to:’. Wording which likewise implies
         that, although not expressly mentioned on the green list, materials may be deemed to be included in it if they can be assigned
         to certain specific headings of ‘green’ waste. 
      
      54.   Thirdly, but not necessarily lastly, the Court has had occasion to rule on the preamble to the green list in Beside and Besselsen, in which it held that the expression ‘municipal/household waste’ referred to under AD 160 in the amber list in Annex III
         to the Regulation, as amended by Decision 94/721, includes both waste which for the most part consists of waste mentioned
         on the green list in Annex II to the Regulation, mixed with other categories of waste appearing on that list, and that ‘municipal/household
         waste’ does not cease to be ‘amber waste’, and therefore does not come within the green list, unless it has been collected
         separately or properly sorted.
      
      55.   The Court ruled in paragraph 34 of that judgment that ‘the expression “municipal/household waste” referred to under AD 160
         in the amber list in Annex III to the Regulation … includes both waste which for the most part consists of waste mentioned
         on the green list in Annex II to the Regulation, mixed with other categories of waste appearing on that list, and waste mentioned
         on the green list mixed with a small quantity of materials not referred to on that list’. I do not think that that paragraph
         in the judgment can be relied upon, as it has been by the Netherlands Government in the present case and by the Openbaar Ministerie
         in the proceedings which gave rise to the reference for a preliminary ruling, to maintain that in the system of the Regulation
         the rules on green list waste represent an exception and that the green list must therefore be interpreted restrictively.
      
      56.   In order to understand that ruling correctly, it is essential first to bear in mind the question that the Court was seeking
         to answer in paragraphs 32 to 34 of the judgment in that case and to consider the ruling in paragraph 34 in the context of
         the line of reasoning in which it was delivered. 
      
      57.   As to the first point, it is clear, as the Court itself noted in paragraph 21 of its judgment, that it was being asked to
         rule on waste generally mixed with other waste in a form that would normally be described as ‘external contamination’, not
         on a mixture that could be classified as an ‘inherent mix’, such as the mixture at issue in the present case.
      
      58.   Although, as we have seen, the Court held in Beside and Besselsen that the waste in question had to be properly separated in order to be classified as coming within the green list, it did
         so because the main proceedings concerned ‘contamination’ with external materials, that is to say, a number of materials that
         were classifiable as ‘green’ had come into contact, in the course of shipment, with other materials that were not included
         in that category, rendering it impossible to classify them correctly. Hence the need for appropriate separation and sorting
         in order to identify and classify them as green waste and prevent materials, the recovery of which was not without risks to
         the environment, from being in fact concealed among materials that were classified as being on the green list.
      
      59.   The present case, by contrast, concerns a combination of wastes in a form that can be classified as an inherent mix, that
         is to say, a conjunction of materials, the severance of which, by separating the PVC from the copper either by incineration
         or by mechanical means, constitutes the first stage of recovery within the meaning of Directive 75/442. (16) It follows that neither the transporter nor the producer of the waste could have sorted the materials in question with a
         view to separating them.
      
      60.   It is therefore impossible to extend the criterion of ‘proper sorting and separate collection’ imposed by the Court with reference
         to what may be called external contamination of waste to the present case, which concerns an ‘inherent mix’ of two distinct
         materials.
      
      61.   As to the context in which the Court delivered the ruling contained in paragraph 34 of Beside and Besselsen, it should be noted that if, in reaching that conclusion, the Court stated in paragraph 32 that municipal/household waste
         does not cease to be amber waste and therefore does not come within the green list unless it has been collected separately
         or properly sorted, it did so for a reason explained in the next paragraph, paragraph 33, a reason which, in point of fact, contains the criterion which, in the Court’s view, ought to apply in the matter. Paragraph 33 reads: ‘[a]s is clear from the introduction to the green list of waste, waste may not, regardless of whether
         or not it is included on that list, be moved as green waste if it is 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’. The criterion that the Court employed in that
         way is, first, a criterion which, while it may easily entail the exclusion of a general mixture from the green list or its
         readmission, is designed to be certainly much less applicable with regard to inherent mixes; and also, and above all, it is
         a criterion which clearly involves, according to the Court, exclusion of the view that the green list represents an exception
         or that it must be interpreted restrictively so as to consider, definitively and generally, that only combinations of ‘green’
         waste materials specifically mentioned on the list may benefit from the system on which that list is based. The only conclusion
         that can be drawn from it is that a combination of items included in the green list must be assessed on a case-by-case basis
         with reference to the circumstances in each particular case.
      
      62.   These considerations lead me to conclude that the Community legislature did not intend to exclude application of the system
         referred to in the green list both in the case of external contamination of green materials with other materials and in the
         case of what is known as inherent contamination between green materials, provided that the risks associated with the recovery
         of such materials in the country of destination are not increased as a result of such contamination.
      
      63.   The fact that that is the case is further confirmed by the fact that Advocate General Jacobs, in point 33 of his Opinion in
         Beside and Besselsen, (a) explained, with reference to the view that green waste falling within one general category should never be mixed with
         waste falling within another general category for the purposes of exemption from notification, that that view is not valid
         with reference to a ‘mix … inherent in the items concerned’ and (b) classified as an inherent mix items of waste such as glass
         bottles with paper labels, an item that is certainly comparable to the case, here in issue, of cables consisting of a copper
         core surrounded by PVC sheathing. (17)
      
      64.   In my view, the interpretation expounded above is corroborated not only by the system and purpose of the green list but also
         by the general objectives underlying the Community rules on the transport of waste.
      
      65.   In fact, I note that, as expressly mentioned in the 14th recital in the preamble to the Regulation, the purpose of the green
         list is to exclude from the normal control procedures shipments of waste which are destined for recovery and which do not
         present risks to the environment or human health in connection with their treatment. The aim in this regard is, on the one
         hand, to enable the competent authorities to concentrate on shipments of waste that constitute a specific risk to the environment
         by preventing those authorities from being overburdened with notifications that are not considered to be essential and, on
         the other, to encourage the recovery ‘business’ by simplifying the procedures for the transport of waste destined for that
         type of treatment.
      
      66.   It would be inconsistent with those aims if two materials which do not in themselves present a risk to the environment associated
         with their recovery (a) were not to benefit from the system referred to in the green list merely on the ground that they are
         presented in the form of an inherent mix, even though the fact that they are combined in no way impairs the recovery of the
         materials in an environmentally sound manner, and (b) were to be subject, in any event and despite the absence of risk, to
         the stricter control system applicable to shipments of materials deemed to be hazardous (such as the materials listed on the
         red list).
      
      67.   Moreover, the restrictive approach set out in the preceding point is excluded by the aims of the Regulation.
      68.   Thus, while it is true that in general the objective of the Regulation is to establish a harmonised system of control procedures
         to limit movements of waste in order to ensure the protection of natural resources, it should nevertheless be noted that the
         whole system of control is based on a fundamental distinction between waste destined for ‘disposal’ and waste destined for
         ‘recovery’.
      
      69.   In order to protect the environment, the Regulation seeks to limit, by means of control procedures, cross-border movements
         of waste for disposal in accordance with the principles of ‘self-sufficiency and proximity’, but the application of those
         principles is excluded in the case of waste for recovery. (18) In the case of waste for recovery, the Community legislature has established a system of free movement in order to encourage
         recovery, provided only that transport poses no threat to the environment, allowing the economic operator to process that
         type of waste in the country and through the undertakings that offer the most favourable terms.
      
      70.   It follows that, in the light of the abovementioned objectives of simplifying administrative procedures and encouraging the
         reintroduction of waste into the production cycle, combinations of materials that feature individually on the green list may
         be held to be subject to the system of that list, even if they are not mentioned in combination, only if the conditions set
         out in points (a) and (b) in the preamble to the list are respected.
      
      71.   In particular, I consider that shipments of combined forms of waste are subject to the system referred to in the green list
         if certain conditions are met, notably (a) if the combinations in question are combinations of two materials on the green
         list, (b) if those types of combined waste are destined for recovery in accordance with Directive 75/442, and (c) if the combination
         of the materials in question does not produce contamination that is liable to pose a greater risk to the environment in connection
         with their recovery than there would be if they were processed separately.
      
      72.   It follows that, with regard to the present case, it is first of all necessary to determine whether the cable in question
         was intended for recovery in the country of destination by ascertaining, in particular, whether the first stage of the treatment
         it will undergo is a ‘recovery’ operation in accordance with the classification referred to in Annex B to Directive 75/442. (19) In particular, assuming for example that the first treatment that the cable in question will undergo is the separation of
         the copper core from the PVC sheathing, that separation must be effected in accordance with one of the operations included
         in Annex B to the aforementioned directive in order to qualify as ‘recovery’. 
      
      73.   Secondly, it is necessary to determine whether, in view of the form in which they are combined, both the materials comprising
         the cables can be recovered in an environmentally sound manner and whether the risk to the environment is not greater than
         the risk connected with recovery of the copper and the PVC considered as individual items.
      
      74.   In support of the abovementioned interpretation of the green list, it should also be noted that not only in the Spanish legal
         order, that is to say the legal order of the country of dispatch of the waste, but also in the legal order of the country
         of transit – the Netherlands – wastes consisting of combinations of materials featuring individually on the green list that
         are not included in the list in combination have been regarded as being included in the green list, at least in judicial rulings.
         That is apparent, with regard to Spain, from the written observations submitted by OMS, and, with regard to the Netherlands,
         from the reference in the decision of the Rechtbank te Rotterdam to the ruling of the Raad van State (Council of State) of
         11 May 2005.
      
      75.   I also take the view that that interpretation of the green list is not invalidated, as the Netherlands Government maintains,
         by the fact that the list expressly mentions combinations consisting of wastes that appear on it singly, such as for example
         ‘used pneumatic tyres’ under heading GK 020 or ‘single-use cameras without batteries’ under heading GO 050. These represent,
         in my view, classic combinations of waste with respect to which it may be held that the Community legislature merely intended
         to mention them directly for the sake of convenience and by way of examples. 
      
      76.   Similarly, what has been mentioned in point 70 et seq. above is not discounted by the fact that the Regulation in question
         has recently been replaced by Regulation No 1013/2006, which contains specific rules on shipments of ‘mixtures composed’ of
         wastes that are listed singly on the green list but do not appear on the list in combination, providing that the system of
         the green list is to be applicable only to mixtures which, in addition to consisting of two ‘green’ materials, are also included
         in a specific Annex (IIIA) which may be amended on a proposal from the Member States in accordance with the procedure known
         as comitology. That amendment of the system is clearly justified by the requirement to combine protection of the environment
         with legal certainty, a requirement that can certainly be satisfied better by moving from a system based on judgments made
         on a case-by-case basis to a system founded on detailed rules applicable to specific cases.
      
      77.   However, the fact that, prior to such a change in the legislation, the applicable system presented the characteristics described
         above means that the new system, set out in the recent rules on the transport of waste, cannot be relied on in the application
         of the old system. That applies in particular, in accordance with the principle of nulla poena sine lege, in view of the fact that the system in question, as the facts at issue show clearly, is designed to apply in conjunction
         with a system of criminal sanctions. 
      
      V –  Conclusion
      78.   In the light of the considerations set out above, I propose that the Court reply as follows to the questions referred by the
         Rechtbank te Rotterdam:
      
      (1)      Cable scrap is included in heading GC 020 of the green list (Annex II) contained in 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 if it
         is or has been part of electronic equipment.
      
      (2)      A combination of green list materials, which is not as such mentioned on the green list in Regulation (EEC) No 259/93, may
         be regarded as a green list material and may be subject to the relevant system of shipment if it is transported for purposes
         of recovery in the country of destination, provided that the conditions set out in points (a) and (b) in the preamble to the
         green list are respected.
      
      (3)      In the case of combinations of a number of materials on the green list in Regulation (EEC) No 259/93, it is not necessary
         that the materials be transported or offered separately in order for the green list system to be applicable to their shipment.
      
      1 –	Original language: Italian.
      
      2 –	OJ 1993 L 30, p. 1, in the relevant version as amended by Commission Regulation (EC) No 2557/2001 of 28 December 2001 (OJ
         2001 L 349, p. 1) and subsequently repealed by Regulation (EC) No 1013/2006 of the European Parliament and of the Council
         on shipments of waste (OJ 2006 L 190, p. 1).
      
      3 –	OECD Decision C(92)39 final on the control of transboundary movements of wastes destined for recovery operations.
      
      4 –	OJ 1975 L 194, p. 39, in the version relevant for the purposes of the present case, as amended by Commission Decision 96/350/EC
         of 24 May 1996 (OJ 1996 L 135, p. 32), now consolidated by Directive 2006/12/EC of the European Parliament and of the Council
         of 5 April 2006 on waste (OJ 2006 L 114, p. 9).
      
      5 –	Regulation determining the control procedures under Council Regulation (EEC) No 259/93 to apply to shipments of certain
         types of waste to certain countries to which OECD Decision C(92)39 final does not apply (OJ 1999 L 185, p. 1).
      
      6 –	I also note that the letter G in the categories means that they are included in the green list in Annex II to the Regulation.
      
      7 –	I note that Annex D to Regulation No 1547/1999, cited above, lists the types of waste referred to in Annex II to Regulation
         No 259/93 to which the control procedures on exports to non-member countries mentioned in the said Annex D, including China,
         do not apply. I also note that, as regards heading GC 010, although in Annex II we find the wording ‘[waste from] electrical
         assemblies consisting only of metals or alloys’, Annex D uses the different wording ‘electrical assemblies containing only
         metals or alloys’.
      
      8 –	OJ 1994 L 288, p. 36.
      
      9 –	Case C-192/96 [1997] ECR I‑4029.
      
      10 –	OJ 2003 L 37, p. 24, as last amended by Directive 2003/108/EC of the European Parliament and of the Council of 8 December
         2003 (OJ 2003 L 345, p. 106).
      
      11 –	Case C-187/93 [1994] ECR I‑2857, paragraphs 18 to 23. 
      
      12 –	See footnote 7 above.
      
      13 –	Cited in footnote 2. I note, in this connection, that in accordance with the provisions of Annex III to that regulation
         (the green list), the distinction referred to in headings GC 010 and GC 020 takes precedence over the classification referred
         to in heading B 1100 of Annex IX to the Basle Convention – contained in Annex V, Part I, List B, to the Regulation – under
         which electrical and electronic assemblies are subject to the same rules.
      
      14 –	Decision C(2001)107 final of 21 May 2002. 
      
      15 –	I note however, in this connection, that the various language versions of the Regulation are not uniform: thus, while the
         Italian, Portuguese and English versions, for example, employ the following expressions: ‘indipendentemente dal fatto che
         vi figuri o meno’, ‘regardless of whether or not wastes are included’, ‘independentemente de estarem ou não incluídos’, the
         Spanish and French versions employ the expressions: ‘independientemente de su inclusión’, ‘indépendamment de son inclusion’,
         which appear to be less at odds with the possibility that the listing referred to in the green list may be exhaustive and
         definitive.
      
      16 –	In particular, the Commission cites stages R 4 and R 11 in Annex IIB to the directive, ‘Recycling/reclamation of metals
         and metal compounds’ and ‘Use of wastes obtained from any of the operations numbered R 1 to R 10’ respectively. 
      
      17 –	See the Opinion of Advocate General Jacobs in Beside and Besselsen.
      
      18 –	See, to that effect, ex multis, Case C-203/96 Dusseldorp and Others [1998] ECR I‑4075, paragraphs 32 to 34. 
      
      19 –	As we have already seen, one of the criteria specified in the Regulation for the purpose of determining which control system
         should apply to a shipment of waste is the purpose of the shipment; in that connection, the first operation that the waste
         will undergo must be classified (see, to that effect, Case C-116/01 Sita [2003] ECR I‑2969, paragraphs 40 to 49). Only if the first operation in the treatment of the waste that is being shipped
         can be classified as ‘recovery’ within the meaning of Directive 75/442 will the first condition be met for the green list
         system to apply to the shipment in question.