CELEX: 62003CC0001
Language: en
Date: 2004-01-29 00:00:00
Title: Opinion of Advocate General Kokott delivered on 29 January 2004. # Criminal proceedings against Paul Van de Walle, Daniel Laurent, Thierry Mersch and Texaco Belgium SA. # Reference for a preliminary ruling: Cour d'appel de Bruxelles - Belgium. # Environment - Waste - Directives 75/442/EEC and 91/156/EEC - Meaning of "waste', "producer of waste' and "holder of waste' - Soil infiltrated by leaked hydrocarbons - Independent operation of a service station belonging to a petroleum company. # Case C-1/03.

OPINION OF ADVOCATE GENERALKOKOTTdelivered on 29 January 2004(1)
         Case C-1/03Ministère publicvPaul van de Walle and Others(Reference for a preliminary ruling from the Cour d'appel de Bruxelles (Belgium))
            (Directive 75/442/EEC on waste  –  Meaning of ‘waste’, ‘producer of waste’ and ‘holder of waste’  –  Soil contaminated by leaked fuel)
            
      
         
      I –  	Introduction
        1.        This case concerns the interpretation of Council Directive 75/442/EEC of 15 July 1975 on waste, 
         			(2)
         		 as amended by Council Directive 91/156/EEC of 18 March 1991, 
         			(3)
         		 (‘the framework waste directive’) with respect to fuel which leaked from a storage tank and contaminated the surrounding
      soil. The Cour d’appel (Court of Appeal), Brussels, wishes to know whether the fuel and the contaminated soil constitute waste
      and whether the petroleum company which leased the service station, signed an operating agreement with the operator and supplied
      her with the fuel can be regarded as the producer or holder of the waste.
      
      
      II –  Applicable legislation
        2.        Article 1 of the framework waste directive contains the following definitions:
      ‘For the purposes of this Directive:
      (a)    ‘waste’ shall mean any substance or object in the categories set out in Annex I which the holder discards or intends or is
      required to discard.
      …
      (b)    ‘producer’ shall mean anyone whose activities produce waste (‘original producer’) and/or anyone who carries out pre-processing,
      mixing or other operations resulting in a change in the nature or composition of this waste;
      (c)    ‘holder’ shall mean the producer of the waste or the natural or legal person who is in possession of it;
      (d)    …’
      
      
        3.        Annex I defines various categories of waste, including the following two categories:
      ‘Q4     Materials spilled, lost or having undergone other mishap, including any materials, equipment, etc. contaminated as a result
      of the mishap’
       and
      ‘Q15   Contaminated materials, substances or products resulting from remedial action with respect to land.’
      
      
        4.        Article 15 of the framework waste directive establishes liability for the cost of disposing of waste:
      ‘In accordance with the “polluter pays” principle, the cost of disposing of waste must be borne by:
      
        
      –
         the holder who has waste handled by a waste collector or by an undertaking as referred to in Article 9,
      
      
       and/or
      
        
      –
         the previous holders or the producer of the product from which the waste came.’
      
      
      
      
        5.        The relevant provisions of Belgian law incorporate Article 1(a) and Annex I of the framework waste directive.
      
      
      III –  Facts, procedure and questions referred for a preliminary ruling
        6.        Mr Van de Walle, Mr Laurent and Mr Mersch (‘the defendants’) are officers of the company Texaco SA (‘Texaco’). In the main
      proceedings they are charged with criminal offences under certain provisions of the law on waste. Texaco participated in the
      proceedings as the civil party liable.
      
      
        7.        Texaco leased the service station at issue in 1981 and in 1988 signed an operating agreement with the operator. In January
      1993, it was found that fuel had leaked from the service station’s storage tanks. It had contaminated the earth around the
      tanks and infiltrated the cellars of the adjacent building.
      
      
        8.        Tests showed that there had been leakage from the pipes of the diesel tank and the tank containing unleaded 98 Ron petrol,
      which had holes in it. A stock check showed that about some 800 litres of unleaded 98 Ron petrol had been lost since the beginning
      of October 1992.
      
      
        9.        In February 1993, the service station was taken out of use, following the termination of both the operating agreement with
      the operator and the lease with the owner of the property, and after the summer of 1993 Texaco paid no more rent.
      
      
        10.      Texaco – without admitting liability – had various work done to decontaminate the soil up to May 1994. However, subsequent
      analyses of groundwater samples showed that it was still contaminated with fuel.
      
      
        11.      Since Texaco did not pursue decontamination after May 1994, on 10 September 1998 the Public Prosecutor brought charges against
      the three accused, in their capacity as officers of Texaco, and against the company, in its capacity as the civil party liable,
      for having infringed the regulations on waste. The Brussels-Capital Region participated in the proceedings as joint plaintiff.
      At first instance, the accused were acquitted and the civil claim against Texaco was struck out on the grounds that, in view
      of the acquittal, the court had no jurisdiction.
      
      
        12.      The Public Prosecutor and the Brussels-Capital Region appealed to the Cour d’appel. That court is uncertain as to whether
      the contaminated soil can be regarded as waste and notes in this connection that there is disagreement concerning the scope
      of the concept of ‘abandonment of waste’.
      
      
        13.      It has therefore referred the following questions to the Court of Justice for a preliminary ruling:
       Are Article 1(a) of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Directive 91/156/EEC of 18 March
      1991, which defines waste as ‘any substance or object in the categories set out in Annex I which the holder discards or intends or is required to discard’, and Article 1(b) and (c) of that directive, which defines ‘producer of waste’ as ‘anyone whose activities produce waste (‘original producer’) and/or anyone who carries out pre-processing, mixing or other
         operations resulting in a change in the nature or composition of this waste’, and ‘holder’ as ‘the producer of the waste or the natural or legal person who is in possession of it’, to be interpreted as being applicable to a petroleum company which produces fuel and sells them to a manager operating
      one of its service stations under a contract of independent management excluding any relationship of subordination to that
      company, if such fuel seeps into the ground, thus contaminating the soil and groundwater?
       Or must it be considered that classification as waste within the meaning of the abovementioned provisions applies only if
      the contaminated soil has been excavated?
      
      
      IV –  Legal analysis
        14.      The Cour d’appel’s questions seek to know whether soil contaminated by leaked fuel can be regarded as waste and whether Texaco
      can be regarded as the producer or holder of any such waste.
      
      
       A – Meaning of waste
       1. Arguments of the parties
      
        15.      The parties all agree that the leaked fuel and contaminated soil can only be regarded as waste if the holder discards or intends
      or is required to discard them.
      
      
        16.      The Brussels-Capital Region takes the view that the holder of the fuel discarded it when it leaked. This, it argues, is precisely
      the situation covered by waste category Q4. Categories Q5, Q12 and Q13 
         			(4)
         		 indicate that contaminated soil is also waste. Irrespective of whether the holder discarded or intended to discard the soil,
      the property of being waste can follow from the obligation to discard it. Such an obligation is consistent with the objective
      of the waste directive to protect health and the environment and with the high level of environmental protection called for
      in Article 174(2) EC. It would prevent the obligations under the waste regulations from being evaded by mixing waste with
      soil. If contaminated soil were not waste, the obligations to protect health and safeguard the environment under Article 4
      of the waste directive would be ineffective.
      
      
        17.      It continues by arguing that an obligation to discard the contaminated soil can also be derived from national law. In the
      Brussels-Capital Region there is no specific obligation to clean up contaminated soil, but one can be derived from civil law.
      Such an obligation is also assumed by some authors to exist when there is no possible lawful and technically permissible use
      for the material in question. This, it is claimed, applies in particular to leaked fuel.
      
      
        18.      The accused and Texaco consider the question of whether the contaminated soil constitutes waste to be irrelevant in the main
      proceedings, since in any event they were not the holder or producer of any waste there might be.
      
      
        19.      They stress that, like the operator, they were unaware that fuel was leaking, whereas a thing can only knowingly be discarded.
      This, they say, is not inconsistent with the judgment in Vessoso and Zanetti, 
         			(5)
         		 according to which the term ‘waste’ does not presume that the holder disposing of a substance or an object intended to exclude
      all economic reutilisation of the substance or object by others. Ignorance of the fact that fuel has leaked is not comparable
      with this situation. Where fuel has leaked, therefore, there cannot yet be any question of waste.
      
      
        20.      The accused and Texaco concede that waste would be present as soon as a holder, aware of the pollution of the soil, began
      to discard it. In the present case, this could be assumed to be the moment at which the pollution of the soil was discovered
      and the initial clean-up measures were taken. However, in this respect, they insist that they were not the holder or producer
      of this waste.
      
      
        21.      The Commission observes that the definition of waste follows from Article 1 of the framework waste directive, while Annex
      I to the directive and the European Waste Catalogue illustrate this definition. Leaked fuel would fall in waste category Q4,
      the wording of which shows that the legislature intended to include mishaps within the scope of the term ‘discard’. Leaked
      fuel is therefore waste.
      
      
        22.      According to the Commission, waste category Q4, as defined, can also include contaminated soil. However, it doubts whether
      natural elements such as soil, water and air can be regarded as waste merely because they are contaminated, the aim of the
      framework waste directive being rather to protect them. The Commission finds it hard to imagine the concepts of disposal and
      recovery being applied to these elements. In the event of contamination, they ought rather to be subjected to remedial action
      or otherwise treated to avoid any adverse effects. They cannot therefore be regarded as waste.
      
      
        23.      However, according to the Commission, as soon as contaminated soil is excavated, it is no longer to be regarded as a natural
      element but rather as a movable, a product or a substance contaminated in a mishap within the meaning of category Q4. The
      obligation to dispose of the leaked fuel – definable as waste – meant that the contaminated soil had to be excavated.
      
      
       2. Assessment
      
        24.      At the time the leak occurred and afterwards, the fuel mingled with the surrounding soil. It must be assumed that, at least
      in part, the mixture cannot be separated without special measures. Therefore, whether the leaked fuel should be regarded as
      waste is not something that can be separately verified. The question is rather whether the contaminated soil as a whole should
      be classified as waste.
      
      
        25.      According to the third recital, the objective of the framework waste directive is the protection of human health and the environment
      against harmful effects caused by the collection, transport, treatment, storage and tipping of waste. According to Article
      174(2) EC, Community policy on the environment is to aim at a high level of protection and is to be based, in particular,
      on the precautionary principle and the principle that preventive action should be taken. From this the Court has concluded
      that the concept of waste cannot be interpreted restrictively. 
         			(6)
         		
      
        26.      Article 1(a) of the framework waste directive defines waste as any substance or object in the categories set out in Annex
      I which the holder discards or intends or is required to discard. The annex in question and the European Waste Catalogue clarify
      and illustrate that definition by providing lists of substances and objects which may be classified as waste. However, in
      the view of the Court, these lists are only intended as guidance. 
         			(7)
         		
      
        27.      The crux of the matter is whether the holder discards or intends or is required to discard a thing. According to the ARCO  judgment, this must be determined in the light of all the circumstances, regard being had to the aim of the directive and
      the need to ensure that its effectiveness is not undermined. 
         			(8)
         		(a) Waste category Q4
      
      
        28.      It follows from waste category Q4 that contaminated earth is waste. This category covers materials spilled, lost or having
      undergone other mishap, including any materials, equipment, etc., contaminated as a result of the mishap. The concept of ‘material’
      is already very broad and could include earth as forming part of the soil. Moreover, the list is not exhaustive.
      
      
        29.      To some extent, however, it may be inferred from waste category Q15, which, in particular, covers excavated soil, that as
      yet unexcavated contaminated soil is not waste. 
         			(9)
         		 At the same time, there is no reason to believe that waste category Q15 would conclusively define the circumstances in which
      soil can be waste. The inclusion of unexcavated soil is also suggested by subsection 17 05 of the European Waste Catalogue,
      
         			(10)
         		 which is headed ‘soil (including excavated soil from contaminated sites), stones and dredging spoil’ and includes the items
      17 05 03 ‘soil and stones containing dangerous substances’ and 17 05 04 ‘soil and stones other than those mentioned in 17
      05 03’. In principle, these categories could also cover unexcavated soil.
      
      
        30.      The view that unexcavated soil cannot be waste may be attributed to the fact that various Member States restrict the concept
      of waste to movables. 
         			(11)
         		 However, the regulatory traditions of some Member States cannot be the deciding factor where the interpretation of concepts
      of Community law is concerned.
      
      
        31.      The Commission’s argument that natural elements as such cannot be waste is based on the aim of Article 4 of the framework
      waste directive which, among other things, calls for protection of the soil from the risks of waste. However, in the present
      case it is not a question of the indeterminate natural element ‘soil’ but of a precisely determinable quantity of earth, which
      is endangering the surrounding soil. Contrary to the view expressed by the Commission, this earth may be the subject of disposal
      or recovery operations.
      
      
        32.      Bearing in mind the aim of a high level of protection set out in Article 174(2) EC, the treatment of unexcavated contaminated
      soil as waste leads to perfectly reasonable results. From Article 3 of the framework waste directive it follows that priority
      should be given to preventing or reducing the production of such waste and its harmfulness. According to Article 4, such waste
      must be recovered or disposed of without endangering human health and without using processes or methods which could harm
      the environment. The rest of the legal framework for organising the disposal of waste, described in Article 5 et seq., is
      also largely applicable to the treatment of contaminated soil and could help to achieve a high level of environmental protection.
      
      
        33.      Accordingly, preference should be given to the view that unexcavated contaminated soil can fall within the scope of category
      Q4.
      (b) The notion of ‘discarding’
      
      
        34.      However, the decisive factor in determining the presence of waste is not assignment to a category of waste but rather whether
      the holder discards or intends or is required to discard the soil.
      
      
        35.      An intent to discard must be ruled out as long as the holder is unaware of the contamination of the soil. On the other hand,
      once the holder has become aware of a pollution incident that precludes further appropriate use of the soil, a (rebuttable)
      intent to discard may be presumed. Thus, for example, pollution of farmland may adversely affect the crop, while pollution
      of building land may harm or inconvenience the users of the building. This loss of utility creates the risk, typical of waste,
      that the holder will neither use nor properly dispose of the material in question, allowing it to pollute the environment.
      In the case of contaminated soil, this risk will be realised if no clean-up measures are taken, so that the pollution spreads.
      However, the presumption of an intent to discard can be rebutted if the holder, rather than discarding the soil, takes concrete
      measures to make it usable again.
      
      
        36.      Apart from the intent to discard, in the case of contaminated soil there may also be an obligation to discard which presupposes
      neither knowledge of the pollution nor an intention to discard. This obligation may arise from the risks associated with the
      pollution of the soil.
      
      
        37.      However, it is not possible to conclude from the general waste-law clause of Article 4 of the framework waste directive that
      there is an obligation to discard contaminated soil. Although a general obligation to deal with contaminated soil in such
      a way as to protect health and the environment is to be welcomed, this obligation is only a legal consequence of the property
      of being waste and cannot be used to show that something possesses that property. For this reason the argument of the Brussels-Capital
      Region that contaminated soil must always be regarded as waste to prevent the framework waste directive from being circumvented
      also fails.
      
      
        38.      In the case of an obligation to discard, the property of being waste derives rather from the interplay between waste law and
      the specialised law regulating the relevant risks. The latter may be determined wholly or in part by Community law or be exclusively
      national. Thus, Article 6(2) of the Habitats Directive 
         			(12)
         		 requires the Member States to take appropriate steps to avoid, in the special areas of conservation, the deterioration of
      natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated.
      For example, it may be necessary to remove contaminated soil that threatens the quality of the water in a protected wetlands
      area. An obligation to remove contaminated soil may also arise from the law on water, special soil conservation regulations
      or general regulations on accident prevention. According to the case-law, even the regulations on waste disposal can form
      the basis of an obligation to clean up the soil, 
         			(13)
         		 which, depending on the circumstances, may also require the removal of contaminated soil. As the Brussels-Capital Region
      explains, such an obligation can also be founded in civil law. 
         			(14)
         		 In all these cases, the holder must discard the soil, regardless of whether it can still fulfil the intended purpose.
      
      
        39.      By contrast, an obligation to discard cannot be based on a risk created by pollution if that risk still allows the soil to
      be left in situ, perhaps because adequate protective measures can be taken without the need for excavation. In this case the holder does
      not have to discard the soil.
      
      
        40.      Whether in the present case an obligation to excavate the contaminated soil exists and to what extent it can still be put
      to lawful use cannot be determined on the basis of the information submitted to the Court. This is a matter for the competent
      national court.
      
      
        41.      From this analysis it follows that the question whether contaminated soil is classifiable as waste only after it has been
      excavated can be answered in the negative. Such soil may already be waste even before excavation.
      (c) Interim finding concerning classification as waste
      
      
        42.      Thus, to sum up, contaminated soil is to be regarded as waste if, because of the pollution, the holder is obliged to excavate
      it. Subject to rebuttal, the soil may be presumed to be waste if, because of the pollution, it is no longer fit for proper
      use.
      
      
       B – Texaco’s liability
        43.      It is now necessary to determine whether Texaco can be regarded as a producer or holder of waste, on the assumption that in
      the present case the contaminated soil is waste.
      
      
       1. Arguments of the parties
      
        44.      The Brussels-Capital Region has supplemented the account of the facts given by the Cour d’appel. It maintains that even after
      the discovery of the pollution Texaco delivered fuel to the service station. Moreover, the damage to the tank is attributable
      to a filling mistake made by Texaco in the 1980s, that is to say, before the latest operator of the service station took over.
      According to the Brussels-Capital Region, in the operating agreement Texaco reserved the right to check the fuel stocks at
      any time. A representative of Texaco checked the quantities sold on a monthly basis and the operator was allowed to use the
      service station to sell fuel, but was not entitled to change the installations without first obtaining Texaco’s consent. When
      the service station was handed over the condition of the underground tanks was not documented, contrary to the operating agreement.
      
      
        45.      In the view of the Brussels-Capital Region, the term ‘holder of waste’ should be interpreted broadly. It maintains that in
      the present case it covers Texaco, since Texaco leased the service station, effectively controlled its operation and at least
      partially cleaned up the contaminated soil. It was also a producer of waste since the leaked fuel could no longer be put to
      any lawful use.
      
      
        46.      In the opinion of the accused and Texaco, the request for a preliminary ruling does not extend to the question of whether
      Texaco can be regarded as a holder or producer of waste.
      
      
        47.      Texaco, they argue, clearly produced not waste but products, namely fuel. The operator of the service station alone was responsible
      for the fuel’s having become waste. The original producer of a product cannot be held responsible if subsequently the product
      is not used properly but converted into waste.
      
      
        48.      In their view, possession is characterised by actual physical control and Texaco had no such control over the tanks or the
      fuel in storage. The restriction on the operator’s power of disposal with respect to the tank installations was primarily
      the result of the fact that the operator neither owned nor leased those installations. However, the operating agreement expressly
      provides for the operator to be responsible for maintaining and checking them. Moreover, it was agreed that the operator alone
      should be liable for damage traceable to the installations. The operator was the sole owner of and fully responsible for the
      stored fuel. The checking of the fuel stocks by Texaco provided for in the agreement should not be equated with a technical
      inspection of the installations. It was intended solely to prevent fraud.
      
      
        49.      The Commission takes the view that the holder of the waste may be determined in this case by establishing who held the fuel
      when it became waste. On purchasing the fuel the operator of the service station became the owner. Moreover, the fact that
      the fuel had been produced by Texaco cannot affect the outcome, since the waste accrued in the context of the service station
      operator’s activities.
      
      
       2. Assessment
      
        50.      In the present case, Texaco can incur obligations under the waste legislation only if it can be regarded as the producer or
      holder of waste. According to Article 8 of the framework waste directive, any holder of waste must have it handled by an authorised
      waste disposal undertaking or duly dispose of it himself. Article 15 of the same directive provides that, in accordance with
      the ‘polluter pays’ principle, the cost of disposing of waste must be borne by the holder who has waste handled by a waste
      collector or disposal undertaking. According to Article 1(c) of the directive, ‘holder’ means not only the actual holder of
      the waste but also the producer of the waste, as defined in Article 1(b).
      (a) The meaning of ‘producer of waste’
      
      
        51.      Article 1(b) of the framework waste directive defines ‘producer’ as anyone whose activities produce waste (‘original producer’)
      and/or anyone who carries out pre-processing, mixing or other operations resulting in a change in the nature or composition
      of this waste.
      
      
        52.      Texaco cannot be regarded as the producer of waste simply because it produced fuel which became waste as a result of a mishap.
      The notion of producer of waste is more closely linked with bringing about the state of being waste. When properly used, fuel
      burns without leaving any waste. 
         			(15)
         		 In the present case it became waste not as a result of Texaco’s production activities but through being stored in defective
      tanks.
      
      
        53.      In principle, therefore, the producer of the waste is whoever was operating the tank installations when the fuel leaked. Prima
      facie, that person was the operator of the service station. Whether, contrary to that impression, Texaco was responsible for
      the storage of the fuel – as the operator ran the service station for Texaco, not as part of her own business – can ultimately
      be decided only by the competent national court. In reaching its decision it will have to consider who, in law and in fact,
      controlled the storage operations and the state of the installations. Pointers may be found in the operating agreement and
      any other relevant provisions. Another important factor will be how Texaco actually behaved. Of course, Texaco cannot divest
      itself of legal obligations to provide supervision simply by not discharging them in practice. However, if Texaco on the basis
      of its position of economic strength relative to the service station operator went beyond the confines of its legal position
      and actually controlled the operation of the storage tanks, then it will also have to accept the ensuing liability.
      
      
        54.      Moreover, Texaco might be considered to be the producer of waste if the damage to the tanks could be traced back to its actions.
      In this respect, the mistake in filling the tanks mentioned by the Brussels-Capital Region may be relevant. It is also possible
      that when it handed over the service station to the operator Texaco ought to have known about and made good any defects which
      later led to the fuel leak. However, in this respect also, the necessary findings will have to be made by the competent court
      itself.
      (b) The meaning of ‘holder of waste’
      
      
        55.      According to Article 1(c) of the framework waste directive, the producer of the waste or the natural or legal person who is
      in possession of it is to be regarded as the holder. If Texaco is not the producer of waste, then it can only be the holder
      if it has waste in its possession.
      
      
        56.      The notion of possession is not defined either in the directive or in Community law in general. In the usual sense of the
      word, possession means actual physical control of an object, but does not presuppose ownership or a legal power of disposal.
      However, the obligations under Article 8 of the framework waste directive can only be met if there is not only actual possession
      of the waste but also an entitlement to dispose of it. For the purposes of Article 1(c) of the framework waste directive,
      the notion of possession must therefore go beyond the narrow sense of the word 
         			(16)
         		 to include a legal power of disposal over the waste, in addition to actual (direct or indirect) physical control.
      
      
        57.      Who had actual physical control over the waste and at what point is a matter for the national court. Here again, it appears
      at first sight that the operator had physical control, at any event until the service station was taken out of use. Whether
      this first impression is justified will have to be determined essentially on the basis of the same criteria as those used
      to determine who was the producer of the waste. However, it might be that even under the operating agreement the operator
      was exercising physical control over the tank installations and the surrounding soil not for herself but for Texaco. There
      would be grounds for reaching this conclusion if, as the Brussels-Capital Region and Texaco submit, the operator was prevented
      from making changes to the site without Texaco’s consent.
      
      
        58.      There are strong indications that after the service station was taken out of use Texaco took actual physical control. It seems
      unlikely that following termination of the operating agreement the operator still exercised physical control over the service
      station. Texaco, by contrast, continued to pay rent until the summer of 1993 and, up to May 1994, had clean-up works carried
      out, which presupposes physical control of the site.
      
      
        59.      Who was authorised to have the contaminated soil disposed of can also be determined only by the competent court. From the
      information to hand, it seems unlikely that the operator had this authority. Whether Texaco should have had the contaminated
      soil disposed of, on the basis of the lease agreement with the property owner, or whether this lay solely within the authority
      of the latter, cannot be determined from the information available to the Court.
      (c) Interim finding concerning the concepts of producer and holder of waste
      
      
        60.      To sum up, under Article 1(c) of the framework waste directive a petroleum company which produces fuel and sells it to a manager
      operating one of its service stations under a contract of independent management excluding any relationship of subordination
      to that company is to be regarded as the holder of waste in the form of soil contaminated by leaked fuel:
      
        
      –
         if, taking all the legal and factual circumstances into account, the manager operated the service station not as part of his
            own business but for the petroleum company (Article 1(c), first alternative – producer of the waste),
         
      
      
        
      –
         if the damage to the tanks can be traced to the conduct of the petroleum company (Article 1(c), first alternative – producer
            of the waste), or
         
      
      
        
      –
         if, taking all the legal and factual circumstances into account, the petroleum company has actual physical control and is
            entitled to dispose of the waste (Article 1(c), second alternative – holder of the waste).
         
      
      
      
       
      V –  Conclusion
        61.      It is therefore proposed that the questions referred by the Cour d’appel be answered as follows:
       1.       Contaminated soil is to be regarded as waste if as a result of the pollution the holder is obliged to excavate it. Subject
      to rebuttal, the soil may be presumed to be waste if as a result of the contamination it is no longer fit for proper use.
      
       2.       A petroleum company which produces fuel and sells it to a manager operating one of its service stations under a contract of
      independent management excluding any relationship of subordination to that company is to be regarded as the holder of waste
      in the form of soil contaminated by leaked fuel:
      
        
      
         
            –
               if, taking all the legal and factual circumstances into account, the manager operated the service station not as part of his
                  own business but for the petroleum company (Article 1(c), first alternative – producer of the waste),
               
            
      
      
        
      
         
            –
               if the damage to the tanks can be traced to the conduct of the petroleum company (Article 1(c), first alternative – producer
                  of the waste), or
               
            
      
      
        
      
         
            –
               if, taking all the legal and factual circumstances into account, the petroleum company has actual physical control and is
                  entitled to dispose of the waste (Article 1(c), second alternative – holder of the waste). 
               
            
      
      
      
      
       1 –
         
         Original language: German.
      
      2 –
         
         OJ 1975 L 194, p. 39.
            
         
      
      3 –
         
         OJ 1991 L 78, p. 32.
            
         
      
      4 –
         
         Q5 and Q12 concern contaminated materials, Q13 concerns ‘any materials, substances or products whose use has been banned by
            law’.
            
         
      
      5 –
         
         Joined Cases C-206/88 and C-207/88 [1990] ECR I-1461. 
            
         
      
      6 –
         
         Joined Cases C-418/97 and C-419/97 ARCO Chemie Nederland and Others [2000] ECR I-4475, paragraph 38 et seq. and Case C-9/00 Palin Granit and Vehmassalon kansanterveystyön kuntayhtymän hallitus [2002] ECR I-3533, paragraph 23.
            
         
      
      7 –
         
         See judgment in Palin Granit, cited in footnote 6, paragraph 22.
            
         
      
      8 –
         
         .ARCO judgment, cited in footnote 6, paragraph 73.
            
         
      
      9 –
         
         Ludger-Anselm Versteyl, ‘Der Abfallbegriff im Europäischen Recht – Eine unendliche Geschichte’, Europäische Zeitschrift für Wirtschaftsrecht 2000, 585 (586); Martin Dieckmann, Das Abfallrecht der Europäischen Gemeinschaft, Baden-Baden 1994, p. 152 et seq.
            
         
      
      10 –
         
         Commission Decision 2000/532/EC of 3 May 2000 replacing Decision 94/3/EC establishing a list of wastes pursuant to Article
            1(a) of Council Directive 75/442/EEC on waste and Council Decision 94/904/EC establishing a list of hazardous waste pursuant
            to Article 1(4) of Council Directive 91/689/EEC on hazardous waste, OJ 2000 L 226, p. 3, as amended by Council Decision 2001/573/EC
            of 23 July 2001 amending Decision 2000/532/EC as regards the list of wastes, OJ 2001 L 203, p. 18.
            
         
      
      11 –
         
         In particular, Germany and France; in Italy the restriction is based on a judgment of the Corte suprema di cassazione of 18
            September 2002, No. 31011. Austria, on the other hand, expressly extends the concept of waste to movables that have entered
            into environmentally harmful association with the soil (Paragraph 2(2) of the Abfallwirtschaftsgesetz, the Law on Waste Management).
            
         
      
      12 –
         
         Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, OJ 1992 L
            206, p. 7.
            
         
      
      13 –
         
         Case C-365/97 Commission v Italy (‘San Rocco’) [1999] ECR I-7773, paragraph 108 et seq.
            
         
      
      14 –
         
         See also the ARCO judgment, cited in footnote 6, paragraph 86, where the example of an agreement is mentioned.
            
         
      
      15 –
         
         Cf. the ARCO judgment, cited in footnote 6, paragraph 66.
            
         
      
      16 –
         
         Cf. the Opinion of Advocate General Mischo of 20 November 2001 in Case C-179/00 Weidacher [2002] ECR I-501, I-505, paragraph 76 et seq., in which he illustrates the imprecise use of the notion of holder.