Palin Granit Oy and Vehmassalon kansanterveystyön kuntayhtymän hallitus.
Date: 2002-04-18
22 In the first subparagraph of Article 1(a) of Directive 75/442 waste is defined as `any substance or object in the categories set out in Annex I which the holder discards or intends or is required to discard'. Annex I and the EWC clarify and illustrate that definition, by providing lists of substances and objects which may be classified as waste. However, those lists are only intended as guidance and the classification of a substance or object as waste is, as the Commission rightly submits, primarily to be inferred from the holder's actions, which depend on whether or not he intends to discard the substances in question.  Therefore, the scope of the term `waste' turns on the meaning of the term `discard' (Case C-129/96 Inter-Environnement Wallonie [1997] ECR I-7411, paragraph 26).
23 The term `discard' must be interpreted in light of the aim of Directive 75/442 which, according to its third recital, is the protection of human health and the environment against harmful effects caused by the collection, transport, treatment, storage and tipping of waste, and Article 174(2) EC, which provides that 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.  It follows that the concept of waste cannot be interpreted restrictively (see Joined Cases C-418/97 and C-419/97 ARCO Chemie Nederland and Others [2000] ECR I-4475, paragraphs 36 to 40).
24 More specifically, the question whether a given substance is waste must be determined in the light of all the circumstances, regard being had to the aim of Directive 75/442 and the need to ensure that its effectiveness is not undermined (ARCO Chemie Nederland, paragraphs 73, 88 and 97).
27 However, the distinction between waste disposal or recovery operations and the treatment of other products is often difficult to discern.  Accordingly, the Court has already held that it may not be inferred from the fact that a substance undergoes an operation referred to in Annex II B to Directive 75/442 that that substance has been discarded and may therefore be regarded as waste (the judgment in ARCO Chemie Nederland, paragraph 82).  The application of an operation listed in Annex II A or II B to Directive 75/442 therefore does not, of itself, justify the classification of that substance as waste.
29 That argument does not preclude the leftover stone from being regarded as waste.  In its judgment in Vessoso and Zanetti (Joined Cases C-206/88 and C-207/88 [1990] ECR I-1461, paragraph 9), the Court held that the concept of waste does not exclude substances and objects which are capable of economic reutilisation.  In Joined Cases C-304/94, C-330/94, C-342/94 and C-224/95 Tombesi and Others [1997] ECR I-3561, paragraph 52, the Court also stated that the system of supervision and control established by Directive 75/442, as amended, is intended to cover all objects and substances discarded by their owners, even if they have a commercial value and are collected on a commercial basis for recycling, reclamation or reuse.
32 At paragraphs 83 to 87 of the judgment in ARCO Chemie Nederland, the Court pointed out the importance of determining whether the substance is a production residue, that is to say, a product not in itself sought for a subsequent use.  As the Commission observes, in the case at issue in the main proceedings the production of leftover stone is not Palin Granit's primary objective.  The leftover stone is only a secondary product and the undertaking seeks to limit the quantity produced. According to its ordinary meaning, waste is what falls away when one processes a material or an object and is not the end-product which the manufacturing process directly seeks to produce.
33 Therefore, it appears that leftover stone from extraction processes which is not the product primarily sought by the operator of a granite quarry falls, in principle, into the category of `[r]esidues from raw materials extraction and processing' under head Q 11 of Annex I to Directive 75/442.
34 One counter-argument to challenge that analysis is that goods, materials or raw materials resulting from a manufacturing or extraction process, the primary aim of which is not the production of that item, may be regarded not as a residue but as a by-product which the undertaking does not wish to `discard', within the meaning of the first paragraph of Article 1(a) of Directive 75/442, but intends to exploit or market on terms which are advantageous to it, in a subsequent process, without any further processing prior to reuse.
35 Such an interpretation would not be incompatible with the aims of Directive 75/442.  There is no reason to hold that the provisions of Directive 75/442 which are intended to regulate the disposal or recovery of waste apply to goods, materials or raw materials which have an economic value as products regardless of any form of processing and which, as such, are subject to the legislation applicable to those products.
36 However, having regard to the obligation, recalled at paragraph 23 of this judgment, to interpret the concept of waste widely in order to limit its inherent risks and pollution, the reasoning applicable to by-products should be confined to situations in which the reuse of the goods, materials or raw materials is not a mere possibility but a certainty, without any further processing prior to reuse and as an integral part of the production process.
37 It therefore appears that, in addition to the criterion of whether a substance constitutes a production residue, a second relevant criterion for determining whether or not that substance is waste for the purposes of Directive 75/442 is the degree of likelihood that that substance will be reused, without any further processing prior to its reuse.  If, in addition to the mere possibility of reusing the substance, there is also a financial advantage to the holder in so doing, the likelihood of reuse is high.  In such circumstances, the substance in question must no longer be regarded as a burden which its holder seeks to `discard', but as a genuine product.
38 In the case at issue, the Finnish Government correctly points out that the only foreseeable reuses of leftover stone in its existing state, for example in embankment work or in the construction of harbours and breakwaters, necessitate, in most cases, potentially long-term storage operations which constitute a burden to the holder and are also potentially the cause of precisely the environmental pollution which Directive 75/442 seeks to reduce.  The reuse is therefore not certain and is only foreseeable in the longer term, with the result that the leftover stone can only be regarded as extraction residue which its holder `intends or is required to discard' within the meaning of Directive 75/442, and thus falls within the scope of head Q 11 of Annex I to that directive.
40 The Court has already answered sub-question (d) in the course of considering the main question.  The uncertainty surrounding the proposed uses of the leftover stone and the impossibility of reusing it in its entirety support the conclusion that all that stone, and not merely the stone which will not be reused, is to be regarded as waste.
43 With respect to sub-question (b), it must be borne in mind that at paragraph 87 of the judgment in ARCO Chemie Nederland, the Court held that the fact that a substance is a production residue whose composition is not suitable for the use made of it or that special precautions must be taken when it is used owing to the environmentally hazardous nature of its composition may constitute evidence that the holder has discarded the substance, or intends or is required to discard it within the meaning of Article 1(a) of Directive 75/442.
45 In addition, the risk of environmental pollution posed by unused leftover stone is not mitigated by the fact that its mineral composition is identical to the blocks of stone, inasmuch as that identity does not preclude the need for storage of the leftover material, which is an operation with an impact on the environment.
46 In any event, even where a substance undergoes a full recovery operation and thereby acquires the same properties and characteristics as a raw material, it may nevertheless be regarded as waste if, in accordance with the definition in Article 1(a) of Directive 75/442, its holder discards it, or intends or is required to discard it.
48 First of all, Directive 75/442 on waste is supplemented by Council Directive 91/689/EEC of 12 December 1991 on hazardous waste (OJ 1991 L 377, p. 20), which implies that the concept of waste does not turn on the hazardous nature of a substance.