6 Colum. J. Eur. L. 124 (2000)

Geert Van Calster. LL.M., Research Fellow, Institute of Environmental and Energy Law, K.U.Leuven; SJ Berwin & Co., London/Brussels; Recognized student, University of Oxford.

Facts and Procedure

Inter-Environnement Wallonie is a non-profit seeking environmental association, active in the Walloon Region of Belgium. It seeks the annulment of the Order of the Walloon Regional Executive of 9 April 1992 on toxic or hazardous waste (‘the Order”). Such procedure takes place in the Belgian Conseil d’Etat/Raad van State, the highest administrative court.

The Decree of the Walloon Regional Council of 5 July 1985 on waste, amended by Decree of 25 July 1991, which one could call the framework Walloon waste Decree, defines waste as “all substances or objects in the categories set out in Annex I which the holder discards or intends or is required to discard.”

Article 5(1) of the 1992 Order provides that “authorization is required for the setting-up and running of an installation intended specifically for the collection, pre-treatment, disposal or recovery of toxic or dangerous waste which is not an integral part of an industrial production process.” It entered into force on 23 June 1992. This provision in effect excludes activities with respect to toxic or dangerous waste which are an integral part of an industrial production process, from the permit requirements of the Order.

The Belgian court already annulled various provisions of the Order. In its remaining plea, Inter-Environnement claims that Article 5(1) of the Order infringes Article 11 of Directive 75/442, and Article 3 of Directive 91/689. This led the court to asking the European Court of Justice for a preliminary ruling on the following questions:
(1)       Do Articles 5 and 189 EEC preclude Member States from adopting a provision contrary to a Directive, before the period for transposing it has expired?
(2)       Is a substance referred to in Annex I to Council Directive 91/156 which directly or indirectly forms an integral part of an industrial production process to be considered “waste” within the meaning of Article 1 (a) of that Directive?

This case concerned two quite distinct issues of Community law. We shall deal with them separately. Importantly, the applicants seek clarification of the EC definition of waste, particularly with respect to so-called “by-products” of industrial processes. The Court of Justice provided some further guidance, but no definite answers.