7 Colum. J. Eur. L. 273 (2001)
Dr. Geert van Calster. Institute of Energy and Environmental Law, K.U.Leuven, member of the Brussels Bar (geert.vancalster@law.kuleuven.ac.be).
Judgment of 15 June 2000 in Joined Cases C-418/97 and C-419/97, Arco Chemie Nederland Ltd. v. Minister van VROM, and Vereniging Dorpsbelang Hees & Others v. Directeur van de dienst Milieu en Water van de Provincie Gelderland & Others (not yet reported).
Waste – Framework Directive – Definition – Secondary raw materials.
Once a substance falls within the definition of “waste”, an extensive regime of permits, taxes, etc., is set in motion. Consequently, qualifying a substance as “waste” may be of critical moment. In the cases under consideration, the European Court of Justice (“the Court”) rejected the pragmatic approach suggested by Advocate General Jacobs and supported by Advocate General Alber.
- Facts and procedure
Arco Chemie wished to export “LUWA-bottoms”, a by-product of its production process destined for use as a fuel in the cement industry. Whether the shipment at issue was covered by the Waste Shipments Regulation depended primarily on whether LUWA-bottoms were to be regarded as waste. The second judgment concerned EPON, a producer of electricity, which had obtained a permit for a procedure involving the use, as a fuel, of wood chips originating in the construction sector. A local interest group challenged this permit.
- Legislative background and ECJ precedents
Article I of the Waste Framework Directive (the “Directive”) defines “waste” as “any substance or object in the categories set out in Annex I which the holder discards or intends or is required to discard.”, It subsequently instructs the Commission to draw up a Community list of waste, commonly referred to as the “EWC”, or European Waste Catalogue, which was recently integrated with the (amended) Hazardous Waste List (“HWL”). From the outset, it should be emphasized that neither Annex I of the Directive (setting out generic categories of waste), nor the EWC, are meant to be exhaustive. They are merely tools designed to facilitate practice and, in fact, quite a number of operators will find the substances they deal with expressly included in the EWC. Importantly, neither of them affects the very definition of waste as laid down in the Directive, which has “to discard” at its core.
The 1991 amendments to the Directive were certainly intended, inter alia, to provide for a more complete harmonization of the concept of “waste”. This was a reaction to the previous definition which effectively left it to the Member States to define “waste” on their territory. This element of the amendments received a lot of attention. It initiated the pursuit of a uniform, all-encompassing, Community-wide definition of waste. The most coherent approach would seem to have been offered by Advocate General Jacobs, who was inspired by the Organization for Economic Cooperation and Development’s (OECD) work on the matter.
Jacobs suggested a route which, without totally avoiding the notion of “to discard”, nevertheless aimed to neutralize some of its uncertainty. Article I of the Directive, as amended, provides that a substance is covered by the EC waste regime where the holder discards, intends, or is required to discard any of the objects or substances included in the categories of Annex I. Jacobs pointed out that waste is subject either to a waste recovery operation, or a waste disposal operation; activities which are further detailed in Annexes IIA and IIB respectively. Thus, a substance is “waste” if it is subject either to a waste recovery or to a waste disposal operation. While Jacobs is aware that these Annexes, as they themselves state, are likewise not meant to be exhaustive, they seem to offer more guidance than the mere focus on the notion of “to discard”. In Tombesi6 and Inter-Environnement, the Court seemed to support Jacobs’ shift of emphasis away from “to discard” and toward “recovery” and “disposal”.
That LUWA-bottoms were a “by-product” of Arco’s production process is not without its importance. These by-products have proven difficult to catch within the context of the definition of waste. Industries and Member States alike are keen not to have such by-products qualify as waste. In particular, Dutch courts interpreting the relevant statutes have held that a substance deriving from a manufacturing process which can be used as fuel in an environmentally responsible manner without further processing is not to be regarded as waste. Moreover, Dutch practice and relevant policy documents have developed a number of criteria according to which substances could avoid being classified as waste where they were passed on directly by the party who made them to another party who, without any processing (which would alter the nature, properties or composition of the substances), used them only in a manufacturing or refining process.