10 Colum. J. Eur. L. 97 (2003)
Prof. Dr. Geert van Calster, Collegium Falconis, K.U.Leuven; Member of the Brussels Bar, DLA Caestecker.
The European Court of Justice (the “Court” or the “ECJ”) has recently issued three judgments in three cases with a considerable impact on the waste sector. The cases concerned are Commission v. Germany of 13 February 2003, Commission v. Luxembourg of 13 February 2003 and SITA EcoService Nederland B V (previously Verol Recycling Limburg) v. Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer of 3 April 2003.
1. CORE ELEMENTS OF THE LEGISLATION INVOLVED
Firstly, Council Directive 91/156/EEC of 18 March 1991 amending Directive 75/442/EEC on waste, is devised as a ‘framework Directive’, meaning that its provisions apply throughout all EC waste law, unless sector-specific law provides for an exhaustive alternative regime (the “Waste Framework Directive”).
Secondly, the importance of classifying a certain shipment of waste as destined for either recovery or disposal lies in the room for maneuver left to the Member States by the Waste Shipments Regulation, in particular by Article 4 thereof). If destined for disposal, Member States’ abilities to block the shipment, e.g. on grounds of environmental protection, are far greater than where the shipment is destined for recovery. This is an important observation, in particular because many Member States have invested financial as well as political capital in waste processing facilities, which require a constant flow of waste to be economically profitable. In other words, many Member States have a vested interest in preventing cross-boundary shipments of waste for disposal.
Finally, the Waste Framework Directive defines ‘recovery’ as “any of the operations provided for in Annex I! B,” and ‘disposal’ as “any of the operations provided for in Annex 11 A.” The Annexes list a number of generic categories of activities without providing a general definition of ‘waste recovery’. Such a definition was, however, provided by the ECJ in its so-called ASA judgment of 27 February 2002. According to the Court, the essential characteristic of a waste recovery operation is that “its principal objective is that the waste serves a useful purpose in replacing other materials, which would have had to be used for that purpose, thereby conserving natural resources.”,
One difficulty in applying this definition is that it includes a criterion (‘principal’ objective), which inevitably raises further problems of interpretation – as indeed occurred in the cases reviewed below.