Abfall Service AG (ASA) v Bundesminister für Umwelt, Jugend und Familie.
Date: 2002-02-27
35 It should be observed at the outset that the question of shipments of waste is regulated by the Regulation, in a harmonised manner, at Community level, in order to ensure the protection of the environment (Case C-324/99 DaimlerChrysler [2001] ECR I-9897, at paragraph 42).
36 The cases in which Member States may object to a shipment of waste between Member States are, for shipments of waste for disposal, those exhaustively listed in Article 4(3) of the Regulation (the judgement in DaimlerChrysler, paragraph 50) and, for waste for recovery subject to the procedure laid down in Articles 6 to 8 of the Regulation, those exhaustively listed in Article 7(4) of the Regulation as provided by Article 7(2) thereof.
40 However, it follows from the system established by the Regulation that all the competent authorities to which that notification is addressed must check that the classification by the notifier is consistent with the provisions of the Regulation and object to a shipment which is incorrectly classified.
44 Next, the Court cannot accept Abfall Service's contention that the competent authorities of destination and the competent authorities of dispatch should not both be required to verify the accuracy of the notifier's classification of the shipment because this could lead to different classifications of the same shipment. The risk of such different classifications is inherent in the system established by the Regulation, which confers simultaneously on all the competent authorities the responsibility of ensuring that the shipments are carried out in accordance with the Regulation.
47 If the competent authority of dispatch considers that the purpose of the shipment has been incorrectly classified in the notification, the ground for its objection to the shipment must be the classification error itself, without reference to one of the specific provisions of the Regulation setting out the objections which the Member States may raise against a shipment of waste. The effect of that objection is, as with the other objections provided for in the Regulation, to prevent the shipment.
48 The notifier may then abstain from shipping the waste to another Member State, submit a new notification, or institute any appropriate proceedings to challenge the decision of the authority of dispatch objecting to the shipment. In any event, it is not for the competent authority ex officio to reclassify the purpose of the shipment of waste, since such a unilateral reclassification would result in one and the same shipment being examined by different competent authorities in the light of provisions falling under different chapters of the Regulation, which would be incompatible with the system established by the Regulation.
49 Moreover, it should be borne in mind that the Court has held that the procedure laid down by the Regulation provides the notifier with a guarantee that the proposed shipment will be examined within the periods prescribed by the Regulation and that he will be informed, upon the expiry of those periods at the latest, whether, and on what conditions, if any, the shipment can be carried out (the DaimlerChrysler case, at paragraph 70). Therefore, any objection in respect of the incorrect classification of the notified shipment as a shipment of waste for recovery must be raised by the competent authority of dispatch within the period prescribed by Article 7(2) of the Regulation.
58 It must be observed, at the outset, that neither the Regulation nor the Directive contains a general definition of disposal or recovery of waste, but merely refers to Annexes II A and II B to the Directive, in which various operations falling within the scope of those concepts are listed.
62 However, it is evident from the Directive that any treatment of waste falling within its scope of application must be classifiable either as disposal or recovery of waste, in order that the separate rules established by the Directive for those two categories of operations can be applied, in particular with regard to the authorisation system imposed on establishments and undertakings which carry out such operations. As is clear from paragraph 38 of the present judgment, the application of the Regulation also presupposes, with regard to determining the rules applicable to a shipment of waste, that the purpose of the shipment can be classified as a disposal or as a recovery.
63 Therefore, for the purpose of applying the Directive and the Regulation, it must be possible to classify any waste treatment operation as either a disposal or a recovery operation, and a single operation may not be classified simultaneously as both a disposal and a recovery operation.
64 Consequently, where, having regard solely to the wording of the operations in question, a waste treatment operation cannot be brought within one of the operations or categories of operations referred to in Annex II A or II B to the Directive, it must be classified on a case-by-case basis in the light of the objectives of the Directive.
68 It must also be noted that, as the Advocate General has explained at paragraph 84 of his Opinion, it does not follow from Article 3(1)(b) or from any other provision of the Directive that the hazardous or non-hazardous nature of the waste is, of itself, a relevant criterion for assessing whether a waste treatment operation must be classified as recovery within the meaning of Article 1(f) of the Directive.
69 However, it does follow from Article 3(1)(b) and the fourth recital of the Directive that the essential characteristic of a waste recovery operation is that its principal objective is that the waste serve a useful purpose in replacing other materials which would have had to be used for that purpose, thereby conserving natural resources.