Openbaar Ministerie v Tronex BV.
Date: 2019-07-04
17


In accordance with the Court’s 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’ (judgment of 12 December 2013, Shell Nederland, C‑241/12 and C‑242/12, EU:C:2013:821, paragraph 37 and the case-law cited).
18


As regards the meaning of the term ‘discard’, it also follows from the Court’s settled case-law that that term must be interpreted in the light of the aim of Directive 2008/98, which, in the words of recital 6 thereof, is to minimise the negative effects of the generation and management of waste on human health and the environment, having regard to Article 191(2) TFEU, which provides that EU 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 3(1) of Directive 2008/98, cannot be interpreted restrictively (see, to that effect, judgment of 12 December 2013, Shell Nederland, C‑241/12 and C‑242/12, EU:C:2013:821, paragraph 38 and the case-law cited).
19


It is apparent from the provisions of Directive 2008/98 that the term ‘discard’ covers both recovery and disposal of a substance or object, within the meaning of Article 3(15) and (19) of that directive (see, to that effect, judgment of 12 December 2013, Shell Nederland, C‑241/12 and C‑242/12, EU:C:2013:821, paragraph 39 and the case-law cited).
20


More specifically, the existence of ‘waste’, within the meaning of Directive 2008/98, 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, to that effect, judgment of 12 December 2013, Shell Nederland, C‑241/12 and C‑242/12, EU:C:2013:821, paragraph 40 and the case-law cited).
21


Thus, 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 3(1) of Directive 2008/98 (see, to that effect, judgment of 12 December 2013, Shell Nederland, C‑241/12 and C‑242/12, EU:C:2013:821, paragraph 41).
22


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. 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 2008/98, is subject to the provisions of that directive, which means that the recovery or disposal of that object or substance 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 (see, to that effect, judgment of 12 December 2013, Shell Nederland, C‑241/12 and C‑242/12, EU:C:2013:821, paragraph 42 and the case-law cited).
23


In that regard, the degree of probability that goods, a substance or a product will be reused without a prior processing operation constitutes a criterion relevant to assessing whether or not they constitute waste within the meaning of Directive 2008/98. If, beyond the mere possibility of reusing the goods, substance or product in question, there is also a financial advantage for the holder in so doing, the likelihood of such reuse is high. In such circumstances, the goods, substance or product in question must no longer be regarded as a burden which its holder seeks to ‘discard’, but as a genuine product (see, to that effect, judgment of 18 December 2007, Commission v Italy, C‑263/05, EU:C:2007:808, paragraph 38 and the case-law cited).
24


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 requirements of Directive 2008/98, 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, it is only situations in which the reuse of the goods or substance in question is not a mere possibility but a certainty that are envisaged, 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 to Directive 2008/98 prior to reuse (see, to that effect, judgment of 12 December 2013, Shell Nederland, C‑241/12 and C‑242/12, EU:C:2013:821, paragraph 53 and the case-law cited).
25


It is ultimately for the referring court, which alone has jurisdiction to assess the facts of the case before it, to verify whether the holder of the object or substance in question did in fact intend to ‘discard’ it, taking into account all the facts of the case, while ensuring compliance with the objective of Directive 2008/98. That being so, it is for the Court of Justice to provide that court with any helpful guidance to resolve the dispute before it (see, to that effect, judgments of 3 October 2013, Brady, C‑113/12, EU:C:2013:627, paragraph 47, and of 12 December 2013, Shell Nederland, C‑241/12 and C‑242/12, EU:C:2013:821, paragraph 48).
29


As regards the fact that those appliances had a residual value and that Tronex paid a certain amount in respect of them, in accordance with the Court’s 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 (judgment of 12 December 2013, Shell Nederland, C‑241/12 and C‑242/12, EU:C:2013:821, paragraph 50 and the case-law cited).
34


Second, as regards the electrical appliances returned under the product guarantee, it should be stated that goods that have undergone a return transaction carried out in accordance with a contractual term and in return for the reimbursement of the purchase price cannot be regarded as having been discarded. Where a consumer effects such a return of non-compliant goods with a view to obtaining a reimbursement of them under the guarantee associated with the sale contract of those goods, that consumer cannot be regarded as having wished to carry out a disposal or recovery operation of goods he had been intending to ‘discard’ within the meaning of Article 3(1) of Directive 2008/98. Moreover, it is appropriate to add that, in circumstances such as those in the main proceedings, the risk that the consumer will discard those goods in a way likely to harm the environment is low (see, to that effect, judgment of 12 December 2013, Shell Nederland, C‑241/12 and C‑242/12, EU:C:2013:821, paragraph 46).