Donal Brady v Environmental Protection Agency.
Date: 2013-10-03
36. Both Annex I to Directive 75/442 and the list of wastes that is included in the European Waste Catalogue adopted on the basis of the second subparagraph of Article 1(a) of that directive are intended only as guidance (see, in particular, the judgment of 29 October 2009 in Case C‑188/08 Commission  v Ireland , paragraph 33 and the case-law cited).
37. Therefore, the fact that the European Waste Catalogue refers to ‘animal faeces, urine and manure (including spoiled straw), effluent, collected separately and treated off-site’ is not decisive for the purpose of assessing the concept of waste. That general mention of livestock effluent does not take into account the conditions in which the effluent is used and which are decisive for the purposes of such an assessment (see, to this effect, Case C‑121/03 Commission  v Spain , paragraph 66).
38. According to settled-case-law, classification as ‘waste’, within the meaning of Directive 75/442, is to be inferred primarily from the holder’s actions and the meaning of the term ‘discard’, referred to in the first subparagraph of Article 1(a) of the directive (see, inter alia, Case C‑194/05 Commission  v Italy , paragraph 32, and Case C‑188/07 Commune de Mesquer  [2008] ECR I‑4501, paragraph 53).
39. The term ‘discard’ must be interpreted in the light not only of the essential objective of Directive 75/442, which, according to the third recital in the preamble thereto, is ‘the protection of human health and the environment against harmful effects caused by the collection, transport, treatment, storage and tipping of waste’, but also of Article 174(2) EC. That provision states that ‘Community policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Community. It shall be based on the precautionary principle and on the principles that preventive action should be taken …’. It follows that the term ‘discard’  and, accordingly, the concept of ‘waste’ within the meaning of that directive cannot be interpreted restrictively (see, inter alia, Case C‑194/05 Commission  v Italy , paragraph 33 and the case-law cited, and Commune de Mesquer , paragraphs 38 and 39).
40. The Court has held in particular that among the circumstances that may constitute evidence that the holder has discarded a substance or object or intends or is required to discard it, within the meaning of Article 1(a) of Directive 75/442, is the fact that a substance is a production or consumption residue, that is to say, a product which was not itself sought (see, inter alia, Case C‑194/05 Commission  v Italy , paragraph 34 and the case-law cited, and Commune de Mesquer , paragraph 41).
41. Such evidence may likewise be constituted by the fact that the substance in question is a production residue for which special precautions must be taken if it is used owing to the environmentally hazardous nature of its composition (see Joined Cases C‑418/97 and C‑419/97 ARCO Chemie Nederland and Others  [2000] ECR I‑4475, paragraph 87, and Case C‑9/00 Palin Granit and Vehmassalon kansanterveystyön kuntayhtymän hallitus [2002] ECR I‑3533, paragraph 43).
42. It is also clear from the case-law that neither the method of treatment reserved for a substance nor the use to which that substance is put determines conclusively whether or not the substance is to be classified as waste and that the concept of waste does not exclude substances and objects which are capable of economic reuse. 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 (Case C‑194/05 Commission  v Italy , paragraphs 36 and 37, and Commune de Mesquer , paragraph 40).
43. In light of the guidance provided by the case-law as set out above, it must be held that effluent generated by an intensive pig farm, which is not the product primarily sought by the farmer and any recovery of which by spreading as fertiliser must, as is apparent in particular from the sixth recital in the preamble to Directive 91/676 and the mechanism established by that directive, involve the taking of special precautions owing to the potentially hazardous nature of its composition from an environmental point of view, is, in principle, waste (see, by analogy, Case C‑194/05 Commission  v Italy , paragraph 35 and the case-law cited, and Commune de Mesquer , paragraph 41).
44. However, it is also clear from the case-law of the Court that, in certain situations, goods, materials or raw materials resulting from an extraction or manufacturing process the primary aim of which is not their production may be regarded not as a residue, but as by-products, which their holder does not seek to ‘discard’, within the meaning of the first subparagraph of Article 1(a) of Directive 75/442, but which he intends to exploit or market on terms advantageous to himself in a subsequent process – including, as the case may be, in order to meet the needs of economic operators other than the producer of those substances – provided that such reuse is not a mere possibility but a certainty, without any further processing prior to reuse and as part of the continuing process of production (see, inter alia, Case C‑121/03 Commission  v Spain , paragraph 58; Case C‑194/05 Commission  v Italy , paragraph 38; and Commune de Mesquer , paragraph 42).
45. As regards, more specifically, livestock effluent such as that at issue here, the Court has already held that it may fall outside classification as waste if it is used as soil fertiliser as part of a lawful practice of spreading on clearly identified parcels and if its storage is limited to the needs of those spreading operations (Case C‑121/03 Commission  v Spain , paragraph 60).
46. The Court has also stated that it is not appropriate to limit that analysis to livestock effluent used as fertiliser on land forming part of the same agricultural holding as that which generated the effluent. It is possible for a substance not to be regarded as ‘waste’ within the meaning of Directive 75/442 if it is certain to be used to meet the needs of economic operators other than the operator which produced it (Case C‑121/03 Commission  v Spain , paragraph 61).
47. It is for the national courts, taking account of the guidance provided by the Court’s case-law and of all the circumstances of the situation on which they have to give judgment, to determine whether a by-product actually exists, while ensuring in this regard that classification as a by-product is limited to the situations that fulfil the conditions recalled in paragraph 44 of the present judgment.
49. What subsequently happens to an object or a substance is not in itself determinative of its nature as waste, which, in accordance with Article 1(a) of Directive 75/442, is established on the basis of whether the holder of that object or substance discards it or intends or is required to discard it (Case C‑194/05 Commission  v Italy , paragraphs 49 and 50 and the case-law cited).
50. It should indeed be pointed out in this regard that, if the referring court were to come to the conclusion that the reuse of the slurry envisaged by Mr Brady is, in this instance, sufficiently certain for the slurry to be considered, while stored by him and until it is actually delivered to the relevant third parties, a by-product which the person concerned seeks not to ‘discard’ within the meaning of the first subparagraph of Article 1(a) of Directive 75/442 but to exploit or market, that would not at all affect the fact that that slurry may, in some circumstances, become waste after its delivery, in particular if it were to become apparent that it is ultimately discharged by those third parties into the environment in an uncontrolled manner, in conditions which enable it to be regarded as waste (see, to this effect, Case C‑416/02 Commission  v Spain , paragraph 96).
51. In such a case, account should be taken of the fact th at, according to the Court’s case-law, the person who is in fact in possession of products immediately before they become waste must be regarded as having ‘produced’ that waste within the meaning of Article 1(b) of Directive 75/442 and thus be categorised as its ‘holder’ within the meaning of Article 1(c) of that directive (see, in particular, Commune de Mesquer , paragraph 74).
54. As to the condition, also recalled in paragraph 45 of the present judgment, that the storage of the livestock effluent must be limited to the needs of the spreading operations, it should be noted that this condition is explained, in particular, by the fact that storage operations with a view to reuse of a substance may, in light of their duration, constitute a burden for the holder and be potentially the cause of precisely the environmental pollution which Directive 75/442 seeks to limit (see, to this effect, Case C‑194/05 Commission  v Italy , paragraph 40).
56. It is also important that the actual storage of the slurry be strictly limited to the needs of the spreading operations envisaged, which means, first, that the quantities stored must be limited in such a way that they are, in their entirety, indeed intended to be so reused (see, to this effect, Palin Granit and Vehmassalon kansanterveystyön kuntayhtymän hallitus , paragraph 40) and, second, that the period of storage must be limited in the light of the requirements resulting in this regard from the seasonal nature of the spreading operations, that is to say, it must not exceed what is required in order for the producer to be able to meet his existing contractual commitments to deliver slurry for spreading purposes during the spreading season in progress and the coming one.
57. Furthermore, it is likewise for the national courts to determine, having regard to all the relevant circumstances, that the reuse of the slurry by the third parties concerned, as programmed by the producer, is such as to confer upon him an advantage over and above merely being able to discard that product, since such a circumstance, when established, indeed increases the likelihood of actual reuse (see, to this effect, Case C‑194/05 Commission  v Italy , paragraph 52, and Palin Granit and Vehmassalon kansanterveystyön kuntayhtymän hallitus , paragraph 37).
59. The relevant circumstances liable to require being taken into account by the national courts for the purpose of determining whether the aforesaid requirements are met include the circumstance that the substances concerned are the subject of actual commercial transactions and meet the buyers’ specifications (see, to this effect, Commune de Mesquer , paragraph 47). Thus, it may be pertinent, in this connection, to examine the conditions, in particular the financial conditions, under which the transactions between the producer and the purchasers of the slurry take place. The same applies to the burdens, in particular those linked to storage of the substances concerned, which are brought about for the holder by the reuse of those substances, since such burdens must not prove excessive for him (see, to this effect, Commune de Mesquer , paragraph 59).
61. So far as concerns determination of the person upon whom rests the burden of proof as to fulfilment of the criteria entailing, in accordance with the Court’s case‑law recalled in paragraph 44 of the present judgment, a finding that a substance must be classified as a by-product and not as ‘waste’ within the meaning of Directive 75/442, it must be pointed out that the directive does not contain specific provisions relating to this question. Accordingly, the national court is to apply in this regard the provisions of its own legal system provided that, in so doing, the effectiveness of European Union law and in particular of Directive 75/442 is not undermined and compliance with the obligations flowing from European Union law is ensured (see, to this effect, ARCO Chemie Nederland and Others , paragraph 70, and Case C‑194/05 Commission  v Italy , paragraphs 44, 52 and 53).
63. Subject to this reservation, it should be recalled that the Court has already held that leftover rock and sand residue from ore-dressing operations in the working of a mine which their holder uses lawfully for the necessary filling-in of the galleries of that mine are not classified as ‘waste’ for the purposes of Directive 75/442 where that holder provides sufficient guarantees as to the identification and actual use of those substances, and that it has, moreover, stated that such case-law can be applied to livestock effluent (see Case C‑121/03 Commission  v Spain , paragraphs 59 and 60 and the case-law cited).
67. It is settled case-law that, in order for Community or national legislation to be regarded as ‘other legislation’ within the meaning of Article 2(1)(b)(iii) of Directive 75/442, it must contain precise provisions organising management of the waste in question and result in a level of protection of the environment which is at least equivalent to that resulting from that directive (see, in particular, Case C‑121/03 Commission  v Spain , paragraph 69 and the case-law cited, and Case C‑252/05 Thames Water Utilities  [2007] ECR I‑3883, paragraph 34).
68. The Court has also explained that, whilst the European Union legislature thus adopted a rule that, in the absence of specific Community legislation and, alternatively, specific national legislation, Directive 75/442 applies, that was in order to avoid the management of that waste not being subject to any legislation in certain situations (see Case C‑114/01 AvestaPolarit Chrome  [2003] ECR I‑8725, paragraph 50).
74. Under Article 8 of Directive 75/442, the Member States must ensure that ‘any holder of waste’ either recovers or disposes of waste himself in accordance with the provisions of that directive or has it handled by a private or public waste collector or by an undertaking which carries out the operations listed in Annex II A or B to the directive. Such obligations imposed upon any holder of waste are the corollary to the prohibition on the abandonment, dumping or uncontrolled disposal of waste laid down in Article 4 of the directive (see, in particular, Case C‑1/03 Van de Walle and Others  [2004] ECR I‑7613, paragraph 56).