Shell Nederland Verkoopmaatschappij BV and Belgian Shell NV.
Date: 2013-12-12
32. In particular, it follows from Articles 3(1) and 6(1) of Regulation No 259/93, read in conjunction with the ninth recital in the preamble to that regulation, that shipments from one Member State to another and/or transit through one or more Member States of waste for disposal or recovery must be subject to prior notification to the competent authorities enabling them to take all necessary measures for the protection of human health and the environment.
35. Having regard to the residual category Q 16, in Annex I to Directive 2006/12, which covers ‘[a]ny materials, substances or products which are not contained in the [previously mentioned] categories’, the list of categories of waste in Annex I is principally illustrative. The same is true of the list drawn up by the Commission pursuant to Article 1(2) of that directive of waste falling within the categories listed in Annex I.
37. However, in accordance with settled case-law, the classification of a substance or object as waste is to be inferred primarily from the holder’s actions and the meaning of the term ‘discard’ (see, to that effect, Case C‑188/07 Commune de Mesquer  [2008] ECR I‑4501, paragraph 53, and Case C‑263/05 Commission  v Italy [2007] ECR I‑11745, paragraph 32).
38. As regards the meaning of the term ‘discard’, it also follows from that 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 in the preamble to 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 European Union 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 (see, to that effect, Commune de Mesquer , paragraphs 38 and 39).
39. It is apparent from the provisions of Directive 2006/12 that the term ‘discard’ covers both disposal and recovery of a substance or object, within the meaning of Article 1(e) and (f) of that directive (see, to that effect, Case C‑129/96 Inter-Environnement Wallonie  [1997] ECR I‑7411, paragraph 27).
40. More specifically, 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 (see Joined Cases C‑418/97 and C‑419/97 ARCO Chemie Nederland and Others  [2000] ECR I‑4475, paragraphs 73, 88 and 97; Case C‑9/00 Palin Granit and Vehmassalon kansanterveystyön kuntayhtymän hallitus  [2002] ECR I‑3533, paragraph 24; and Commission  v Italy , paragraph 41).
41. Certain circumstances may constitute evidence that a substance or object has been discarded or of an intention or requirement to discard it within the meaning of Article 1(1)(a) of Directive 2006/12.
42. Firstly, particular attention must be paid to the fact that the object or substance in question is not or is no longer of any use to its holder, such that that object or substance constitutes a burden which he will seek to discard (see, to that effect, Palin Granit and Vehmassalon kansanterveystyön kuntayhtymän hallitus , paragraph 37). If that is indeed the case, there is a risk that the holder will dispose of the object or substance in his possession in a way likely to cause harm to the environment, particularly by dumping it or disposing of it in an uncontrolled manner. That object or substance, because it falls within the concept of ‘waste’ within the meaning of Directive 2006/12, is subject to the provisions of that directive, which means that, in accordance with Article 4 of that directive, its recovery or disposal must be carried out in such a way that human health is not endangered and without using processes or methods likely to harm the environment.
43. As regards a possible requirement ‘to discard’ the consignment at issue, within the meaning of Article 1(1)(a) of Directive 2006/12, it must be noted, firstly, that, a priori, there is no absolute obligation to dispose of that consignment since it is not composed of a prohibited or illegal substance or of specified risk material of which the holder would be required to dispose (see, by analogy, Case C‑176/05 KVZ retec  [2007] ECR I‑1721, paragraph 59). As is apparent from the decision for reference, that consignment could be sold on the market, without having been processed, in the condition in which it was when it was returned to Shell.
46. In that regard, it is particularly important that the Belgian client returned the contaminated ULSD to Shell, with a view to obtaining a refund, pursuant to the sale contract. By so acting, that client cannot be regarded as having intended to dispose of or recover the consignment at issue and, accordingly, it did not ‘discard’ it within the meaning of Article 1(1)(a) of Directive 2006/12. Moreover, it is appropriate to add that, in circumstances such as those in the main proceedings, the risk that the holder will discard that consignment in a way likely to harm the environment is low. That is the case, a fortiori, where, as in the present case, the substance or object concerned has a significant commercial value.
48. In that regard, the referring court, for which it is to ascertain whether the holder of the object or substance in question did in fact intend to ‘discard’ it, must take into account all the facts of the case, while ensuring compliance with the objective of Directive 2006/12, which is to ensure that recovery and disposal operations will be carried out without endangering human health and without using processes or methods which could harm the environment.
50. Moreover, it is necessary to bear in mind in that regard that, in accordance with settled case-law, the concept of ‘waste’ must not be understood as excluding substances and objects which have a commercial value and which are capable of economic reutilisation (see, to that effect, Palin Granit and Vehmassalon kansanterveystyön kuntayhtymän hallitus , paragraph 29).
53. It would not be justified at all to make goods, substances or products which the holder intends to exploit or market on economically advantageous terms in a subsequent recovery process subject to the provisions of Directive 2006/12, which seek to ensure that recovery and disposal operations will be carried out without endangering human health and without using processes or methods which could harm the environment. However, having regard to the requirement to interpret the concept of ‘waste’ widely, the reasoning should be confined to situations in which the reuse of the goods or substance in question is not a mere possibility but a certainty, which it is for the referring court to ascertain, without the necessity of using any of the waste recovery processes referred to in Annex II B to Directive 2006/12 prior to reuse (see, by analogy, Palin Granit and Vehmassalon kansanterveystyön kuntayhtymän hallitus , paragraph 36, and Case C‑114/01 AvestaPolarit Chrome  [2003] ECR I‑8725, paragraph 36).