AvestaPolarit Chrome Oy.
Date: 2003-09-11
33. The Court reached those conclusions on the basis of the following considerations in particular:
" 22. ... 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).
...
27. ... The application of an operation listed in Annex II A or II B to Directive 75/442 ... does not, of itself, justify the classification of that substance as waste.
...
29. ... 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 ... 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.
30. Neither the fact that the leftover stone has undergone a treatment operation referred to in Directive 75/442 nor the fact that it can be reused thus suffices to show whether that stone is waste for the purposes of Directive 75/442.
31. There are other considerations which are more decisive.
32. At paragraphs 83 to 87 of the judgment in [Joined Cases C-418/97 and C-419/97  ARCO Chemie Nederland and Others  [2000] ECR I-4475], 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 ... 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 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.
"
34. In the light of those considerations, it is clear that leftover rock and residual sand from ore-dressing, such as that from the mine operated by AvestaPolarit, constitute   " [r]esidues from raw materials extraction and processing"  under head Q 11 of Annex I to Directive 75/442 (see  Palin Granit , paragraphs 32 and 33).
35. It remains to examine whether such residues are to be classified as waste on the ground that their holder discards or intends or is obliged to discard them, within the meaning of the first subparagraph of Article 1(a) of Directive 75/442. If not, those residues could, as AvestaPolarit submits, be classified as by-products which do not fall within the scope of that directive.
36. In this respect, a distinction must be drawn between residues which are used without first being processed in the production process for the necessary filling in of the underground galleries, on the one hand, and other residues, on the other.
37. The former are being used in that case as a material in the industrial mining process proper and cannot be regarded as substances which the holder discards or intends to discard, since, on the contrary, he needs them for his principal activity.
38. Only if such use of those residues were prohibited, in particular for reasons of safety or protection of the environment, and the galleries had to be sealed and supported by some other process, would it have to be considered that the holder is obliged to discard those residues and that they constitute waste.
39. Outside such a case, if a mining operator can identify physically the residues which will actually be used in the galleries and provides the competent authority with sufficient guarantees of that use, those residues may not be regarded as waste. In this respect, it is for the competent authority to assess whether the period during which the residues will be stored before being returned to the mine is so long that those guarantees cannot in fact be provided.
41. That is true not only for the leftover rock and ore-dressing sand whose use for construction operations or other purposes is uncertain (see  Palin Granit , paragraphs 37 and 38), but also for the leftover rock which will be processed into aggregates, since, even if such use is probable, it requires precisely an operation for recovery of a substance which is not used as such either in the process of mining production or for the final use envisaged (see  Palin Granit , paragraph 36).
43. The answer to the national court ' s first question must therefore be that, in a situation such as that at issue in the main proceedings, the holder of leftover rock and residual sand from ore-dressing operations from the operation of a mine discards or intends to discard those substances, which must consequently be classified as waste within the meaning of Directive 75/442, unless he uses them lawfully for the necessary filling in of the galleries of that mine and provides sufficient guarantees as to the identification and actual use of the substances to be used for that purpose.
The second question
49. That conclusion does not, however, exclude the possibility that the expression   " other legislation"  in Article 2(1)(b) of Directive 75/442 may also refer, under certain conditions (see paragraphs 52 and 58 to 60 below), to national legislation. It should be observed on this point that where the Community legislature intended to refer in this field to a particular type of legislation, Community or national, it did so in precise terms. Thus Article 2(2) of Directive 75/442 refers precisely to directives, Article 2(1) of that directive, in the original version prior to the amendments made by Directive 91/156, referred to specific rules adopted by the Member States, and Article 2(2)(f) of that version referred to specific Community rules.
50. Such an interpretation is not contrary in any way to the purpose of Directive 75/442. In its original version, most of the categories of waste now referred to in Article 2(1)(b) were purely and simply excluded from the scope of the directive. That was also the case in the Commission proposals which eventually resulted in Directive 91/156, presented by the Commission on 16 August 1988 and 23 November 1989 (OJ 1988 C 295, p. 3, and OJ 1989 C 326, p. 6). Having regard to the very special characteristics of the waste in question, the Community legislature could prefer, when adopting Directive 91/156 and pending the enactment of new Community legislation to meet the specific features of the management of that waste, to let national legislation apply which was itself suited to those features, rather than to subject the waste in question to the general scheme of Directive 75/442. However, to avoid the management of that waste not being subject to any legislation in certain situations, as previously, it adopted a rule that, in the absence of specific Community legislation and, alternatively, specific national legislation, Directive 75/442 applies.
52. However, to be regarded as   " other legislation"  within the meaning of Article 2(1)(b) of Directive 75/442 covering a category of waste listed in that provision, national legislation must not merely relate to the substances or objects in question from ─ for instance ─ an industrial point of view, but must contain precise provisions organising their management as waste within the meaning of Article 1(d) of the directive. Otherwise, the management of that waste would be organised neither on the basis of Directive 75/442 nor on the basis of national legislation independent of the directive, which would be contrary both to the wording of Article 2(1)(b) of the directive, which requires that the national legislation in question should   " cover"  the waste as such, and to the consideration expressed in the fourth recital in the preamble to Directive 91/156, which states that   " in order to achieve a high level of environmental protection, the Member States must, in addition to taking action to ensure the responsible removal and recovery of waste, take measures to restrict the production of waste particularly by promoting clean technologies and products which can be recycled and reused, taking into consideration existing or potential market opportunities for recovered waste" .
61. The answer to the second question must therefore be that, in so far as it does not constitute a measure of application of Directive 75/442, in particular Article 11 of that directive, national legislation must be regarded as   " other legislation"  within the meaning of Article 2(1)(b) of that directive covering a category of waste mentioned in that provision, if it relates to the management of that waste as such within the meaning of Article 1(d) of Directive 75/442, and if it results in a level of protection of the environment at least equivalent to that aimed at by that directive, whatever the date of its entry into force.