European Commission v Czech Republic.
Date: 2019-03-14
32


In the fifth place, the holder’s intention is not the only determining factor for classifying a material as waste. As the Court held in the judgment of 15 June 2000, ARCO Chemie Nederland and Others (C‑418/97 and C‑419/97, EU:C:2000:318, paragraph 88), whether a substance is waste must be determined in the light of all the circumstances of each individual case and the concept of waste cannot be interpreted restrictively. The composition of a material and the danger it presents to the environment and to human health are important factors when determining whether or not it constitutes waste.
33


In the sixth place, according to the judgments of 28 March 1990, Vessoso and Zanetti (C‑206/88 and C‑207/88, EU:C:1990:145, paragraph 11), and of 18 December 1997, Inter-Environnement Wallonie (C‑129/96, EU:C:1997:628, paragraph 31 and the case-law cited), the possibility of economic reutilisation does not exclude a substance from the definition of waste. Moreover, the economic interest of the mixture at issue has not been established and cannot be deduced from the consignment agreement entered into. That agreement does not prove the existence of a demand in Poland for the material at issue as fuel for cement works since the purchaser did not sell the stored mixture in Poland in accordance with the contractual conditions. Given the reduction in the quantity of the mixture present on the site in question, which was noted by the Polish inspectors, a part of it has probably already been re-exported.
36


It follows from the definition of ‘waste’ under Article 3(1) of Directive 2008/98 and the Court’s case-law (judgments of 18 December 1997, Inter-Environnement Wallonie, C‑129/96, EU:C:1997:628, paragraph 26, and of 15 June 2000, ARCO Chemie Nederland and Others, C‑418/97 and C‑419/97, EU:C:2000:318, paragraphs 57 and 97) that, for the purpose of classifying a material as waste, it is the way in which the holder intends to deal with it that matters, with the result that the same material might or might not be classified as waste. As a result, for the purpose of classifying a material as waste, the composition of the material alone is not conclusive. Therefore, the laboratory tests carried out by the Polish authorities are not relevant for the purpose of classifying the mixture at issue.
51


In the context of proceedings for failure to fulfil obligations, in accordance with the Court’s settled case-law, it is for the Commission to establish the existence of the alleged failure (judgments of 25 May 1982, Commission v Netherlands, 97/81, EU:C:1982:193, paragraph 6, and of 11 July 2018, Commission v Belgium, C‑356/15, EU:C:2018:555, paragraph 25). It is the Commission’s responsibility to place before the Court the information required to enable it to establish that the obligation has not been fulfilled, and in so doing the Commission may not rely on any presumption (judgments of 10 June 2010, Commission v Portugal, C‑37/09, not published, EU:C:2010:331, paragraph 28; of 22 September 2011, Commission v Spain, C‑90/10, not published, EU:C:2011:606, paragraph 47; and of 13 February 2014, Commission v United Kingdom, C‑530/11, EU:C:2014:67, paragraph 60).
56


Under Article 2(1) of Regulation No 1013/2006, the definition of the term ‘waste’, for the purposes of that regulation, is that which is set out in Article 1(1)(a) of Directive 2006/12 as follows: ‘any substance or object in the categories set out in Annex I which the holder discards or intends or is required to discard’. As it is expressly non-exhaustive, the list of categories of waste in Annex I to that directive is principally illustrative (judgment of 12 December 2013, Shell Nederland and Belgian Shell, C‑241/12 and C‑242/12, EU:C:2013:821, paragraph 35).
58


As is clear from the definition set out above, classification as ‘waste’ is to be inferred primarily from the holder’s actions and the meaning of the term ‘discard’ (see, to that effect, judgments of 24 June 2008, Commune de Mesquer, C‑188/07, EU:C:2008:359, paragraph 53, and of 18 December 2007, Commission v Italy, C‑263/05, EU:C:2007:808, paragraph 32).
59


As regards the meaning of the term ‘discard’, it follows from the Court’s case-law that that term must be interpreted in the light of the aim of Directive 2006/12, which, in the words of recital 2 of the directive, consists in the protection of human health and the environment against harmful effects caused by the collection, transport, treatment, storage and tipping of waste, having regard to Article 191(2) TFEU, which provides that EU 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. It follows that the term ‘discard’, and therefore the concept of ‘waste’ within the meaning of Article 1(1)(a) of Directive 2006/12, cannot be interpreted restrictively (judgment of 12 December 2013, Shell Nederland and Belgian Shell, C‑241/12 and C‑242/12, EU:C:2013:821, paragraph 38 and the case-law cited).
60


Moreover, the Court has held that the existence of ‘waste’ within the meaning of Directive 2006/12 must be determined in the light of all the circumstances, regard being had to the aim of that directive and the need to ensure that its effectiveness is not undermined (judgment of 12 December 2013, Shell Nederland and Belgian Shell, C‑241/12 and C‑242/12, EU:C:2013:821, paragraph 40 and the case-law cited).
64


However, the fact that a substance is the result of a waste recovery operation is only one of the factors which should be taken into consideration for the purpose of determining whether that substance is still waste and does not as such permit a definitive conclusion to be drawn in that regard (judgments of 15 June 2000, ARCO Chemie Nederland and Others, C‑418/97 and C‑419/97, EU:C:2000:318, paragraph 97, and of 7 March 2013, Lapin ELY-keskus, liikenne ja infrastruktuuri, C‑358/11, EU:C:2013:142, paragraph 58). As a result, the mere fact that TPS-NOLO (Geobal) is produced from waste does not constitute a basis for finding that it, itself, is waste.
66


It should be noted, at the outset, that the concept of waste does not turn on the hazardous nature of a substance (judgment of 18 April 2002, Palin Granit and Vehmassalon kansanterveystyön kuntayhtymän hallitus, C‑9/00, EU:C:2002:232, paragraph 48). As regards the conclusions to be drawn from the alleged hazardous nature of the tar acid in question, EU law does not, as a matter of principle, exclude the possibility that waste regarded as hazardous may cease to be waste if an operation enables it to be made usable without endangering human health or harming the environment and, also, if it is not found that the holder of the object at issue discards it or intends to discard it (judgment of 7 March 2013, Lapin ELY-keskus, liikenne ja infrastruktuuri, C‑358/11, EU:C:2013:142, paragraph 60).
73


It should be borne in mind, in that regard, that according to Article 2(2) of that regulation waste is not a substance, a mixture or article within the meaning of Article 3 of the regulation. It is true that, as the Commission submits, the mixture at issue may have been wrongly registered under the REACH Regulation in disregard of its classification as waste. However, such a hypothesis cannot be taken to demonstrate that the mixture is waste. While not permitting a definitive conclusion to the contrary, the registration of a substance under the REACH Regulation is, nevertheless, relevant for the purpose of determining whether that substance has ceased to be waste (see, to that effect, judgment of 7 March 2013, Lapin ELY-keskus, liikenne ja infrastruktuuri, C‑358/11, EU:C:2013:142, paragraphs 63 and 64).
74


In the fifth place, the Commission emphasises the composition of the mixture at issue and the danger it poses to the environment and human health. In that regard it should be noted, first of all, that the analyses of the mixture that the Commission relies on, without producing them, were carried out by the Polish authorities ex parte and the Czech Republic is unable to obtain a second opinion given that the mixture is on Polish territory. In addition, as is clear from the definition of waste, a substance is waste not by nature, but as a result of the intention or obligation of its holder to discard it, that is to say, by the will of the holder or of the legislature. It follows that the chemical composition of the substance at issue at most may give an indication as to whether it is waste (see, to that effect, judgment of 7 September 2004, Van de Walle and Others, C‑1/03, EU:C:2004:490, paragraph 42). Lastly, the risks a substance poses to the environment or human health have no decisive influence on its classification as waste (see, to that effect, judgment of 15 June 2000, ARCO Chemie Nederland and Others, C‑418/97 and C‑419/97, EU:C:2000:318, paragraph 66).
75


In the sixth place, the Commission claims that, even if TPS-NOLO (Geobal) may be reused for economic gain, such a fact does not exclude it from being waste (see, to that effect, judgments of 28 March 1990, Vessoso and Zanetti, C‑206/88 and C‑207/88, EU:C:1990:145, paragraph 13, and of 18 December 1997, Inter-Environnement Wallonie, C‑129/96, EU:C:1997:628, paragraph 31). However, that argument cannot, conversely, be regarded as determinative or even indicative of the mixture at issue being waste.