Lapin elinkeino-, liikenne- ja ympäristökeskuksen liikenne ja infrastruktuuri -vastuualue v Lapin luonnonsuojelupiiri ry.
Date: 2013-03-07
31. In that connection, it must be recalled that, according to Article 1(1), the REACH Regulation seeks to ensure a high level of protection of human health and the environment, including the promotion of alternative methods for the assessment of the hazards linked to substances and the free movement of substances, while enhancing competitiveness and innovation (Case C‑558/07 S.P.C.M. and Others  [2009] ECR I‑5783, paragraph 35).
32. As the Advocate General observed in point 55 of her Opinion, free movement in the internal market is ensured by the fact that, pursuant to Article 128(1) of the REACH Regulation, the Member States are under an obligation not to prohibit, restrict or impede the use of a substance, on its own, in a mixture or in an article which complies with the Regulation and, where appropriate, with Community acts adopted in implementation thereof. However, according to Article 128(2), there is nothing in the REACH Regulation to prevent Member States from maintaining or laying down national rules to protect workers, human health and the environment and applying in cases where that regulation does not harmonise the requirements on manufacture, placing on the market or use.
33. It thus follows from those provisions that the European Union legislature intended to harmonise those requirements in certain cases, including that referred to in Article 67(1) of the REACH Regulation.
37. Therefore, if a Member State intends to make the preparation, placing on the market or use of a substance which is the subject of a restriction under Annex XVII to the REACH Regulation subject to new conditions, it may do so only in accordance with Article 129(1) thereof, in order to respond to an urgent situation to protect human health or the environment, or in accordance with Article 114(5) TFEU on the basis of new scientific evidence relating inter alia to the protection of the environment. The adoption of other conditions by the Member States is incompatible with the objectives of that regulation (see, by analogy, Joined Cases C‑281/03 and C‑282/03 Cindu Chemicals and Others  [2005] ECR I‑8069, paragraph 44).
55. However, as the Advocate General observed in point 67 of her Opinion, Article 6(1), first subparagraph, of Directive 2008/98 merely sets out the conditions to be met by the specific criteria which make it possible to determine which waste ceases to be waste, within the meaning of Article 3(1) of that directive, when it has undergone a recovery, including recycling, operation. Therefore, such conditions cannot, in themselves, make it possible directly to establish that certain waste must no longer be regarded as such. Furthermore, it is common ground that such specific criteria have not been laid down by European Union law as regards wood treated in circumstances such as those in the case in the main proceedings.
57. In that regard, it should first be noted that, even where waste has undergone a complete recovery operation which has the consequence that the substance in question has acquired the same properties and characteristics as a raw material, that substance may none the less be regarded as waste if, in accordance with the definition in Article 3(1) of the directive, its holder discards it or intends or is required to discard it (see, to that effect Joined Cases C‑418/97 and C‑419/97 ARCO Chemie Nederland and Others  [2000] ECR I‑4475, paragraph 94, and Case C‑9/00 Palin Granite and Vehmassalon kansanterveystyön kuntayhtymän hallitus [2002] ECR I‑3533, paragraph 46). It is for the referring court to carry out the assessments necessary in that regard.
58. The fact that a substance is the result of a recovery operation within the meaning of Directive 2008/98 is only one of the factors which must be taken into consideration for the purpose of determining whether that substance is still waste, but does not as such permit a definitive conclusion to be drawn in that regard ( ARCO Chemie Nederland and Others , paragraph 97).
60. Therefore, the answer to the first question is that European Union law does not, as a matter of principle, exclude the possibility that waste regarded as hazardous may cease to be waste within the meaning of Directive 2008/98 if a recovery 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 or is required to discard it, within the meaning of Article 3(1) of that directive, this being a matter for the referring court to ascertain.
The second question
63. Waste management must be carried out with a comparable objective, in accordance with Article 13 of Directive 2008/98, without endangering human health and without harming the environment. In those circumstances, in order to assess that requirement, there is nothing to prevent account being taken of the fact that hazardous waste ceases to be waste because its recovery is carried out in the form of a use authorised under Annex XVII to the REACH Regulation and that its holder is therefore no longer required to discard it within the meaning of Article 3(1) of that directive.
64. The answer to the second question is therefore that the REACH Regulation, in particular Annex XVII thereto, in so far as it authorises the use, subject to certain conditions, of wood treated with CCA solutions, is, in circumstances such as those in the main proceedings, relevant for the purpose of determining whether such wood may cease to be waste because, if those conditions were fulfilled, its holder would not be required to discard it within the meaning of Article 3(1) of Directive 2008/98.
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