C-192/96

* Original language: English. 3 — Article 44. 1 — OJ 1993 L 30, p. 1. 4 — For the full definition of that term, see Article 2(d) of the ' 2 — OJ 1975 L 194, p. 39. All the substantive provisions of Regulation. Directive 75/442 were replaced by Council Directive 5 — For the full definition of that term, see Article 2(c) of the 91/156/EEC of 18 March 1991 amending Directive 75/442 Regulation. on waste, OJ 1991 L 78, p. 32. Annexes IIA and IIB which were added by Directive 91/156 were amended by Commis- 6 — For the full definition of that term, see Article 2(e) of the sion Decision 96/350/EC of 24 May 1996 adapting Annexes Regulation. IIA and IIB to Council Directive 75/442 on waste, OJ 1996 7 — Article 3(1) in relation to waste for disposal; Article 6(1) in L 135, p. 32. relation to waste for recovery.

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OPINION OF MR JACOBS — CASE C-192/96

4. In relation to waste for disposal, authori­ sub-divided into more specific sub-categories sation must be received from the competent of waste, listed numerically ('sub-categories') authority of destination, which may only (for example, sub-category GH 011 ex give such authorisation in the absence of 3915 10, entitled 'Waste, parings and scrap of 14 objections from the other competent plastics of polymers of ethylene' ). authorities. 8In the case of waste for recov­ ery, on the other hand, consent to shipment 9 can usually be tacit.

7. That paragraph was inserted into Annex 15 II by Commission Decision 94/721, which 8 — Article 4(2)(a). was adopted on 21 October 1994. Since the 9 — Article 8(1). However, in the case of waste for recovery which is listed in the 'red list of waste' in Annex IV, the con- Netherlands Government states that the sent must be provided in writing prior to commencement of shipment: Article 10. waste in question was discovered in the 10 — The Annexes to the Regulation were amended by Commis- Netherlands in spring 1995, it seems likely sion Decision 94/721/EC of 21 October 1994, adapting, pursuant to Article 42(3), Annexes II, III, and IV to Coun- that the operative paragraph had been cil Regulation (EEC) No 259/93 on the supervision and inserted into the Regulation prior to the control of shipments of waste within, into and out of the European Community, OJ 1994 L 288, p. 36, and Commis- shipment of that waste. sion Decision 96/660/EC of 14 November 1996 adapting, pursuant to Article 42(3), Annex II to Council Regulation (EEC) No 259/93, OJ 1996 L 304, p. 15. 11 — Recital 14 of the Regulation. 12 — Article 1(3)(a). 14 — Originally sub-category D 3915 10; subsequently amended 13 — Originally general category D; subsequently amended by by Commission Decision 94/721, cited in note 10. Commission Decision 94/721, cited in note 10. 15 — Cited in note 10.

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BESIDE AND BESSELSEN v MINISTER VAN VOLKSHUISVESTING, RUIMTELIJKE ORDENING EN MILIEUBEHEER

8. Finally, it is relevant to note Article 26 of within 30 days from the time when the com­ the Regulation. Article 26(1)(a) provides that petent authority was informed of the illegal any shipment of waste effected 'without traffic or within such other period of time as notification to all competent authorities con­ may be agreed by the competent authorities cerned pursuant to the provisions of this concerned. Regulation' shall be deemed to be illegal traf­ fic.

transport of waste which is listed in the clippings and film, and waste which the Regulation as green waste does not generally respondent refers to as 'post-consumer plas­ require notification if the waste is intended tic packaging'. However, the case is now for recovery rather than disposal. restricted to post-consumer plastic packaging since the Minister dropped his objections in relation to the former type of waste. As mentioned previously, solid plastic waste is listed in the green list of waste as general cat­ egory GH .

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BESIDE AND BESSELSEN v MINISTER VAN VOLKSHUISVESTING, RUIMTELIJKE ORDENING EN MILIEUBEHEER

ing AD 160 is one of a number of headings The national court's questions listed within general category AD, entitled 'Wastes which may contain either inorganic 18 or organic constituents', in the amber list.) On that view, it is common ground that the shipment of waste should have been notified. The Minister concluded that the waste there­ fore constituted 'illegal waste' within the 19 meaning of Article 26 of the Regulation 16. The Raad van State considers that it and should be returned to Germany. requires the assistance of this Court to answer the following questions:

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OPINION OF MR JACOBS — CASE C-192/96

interpreted as covering not only Finnish Governments and the Commission. storage at the plant in which the At the hearing the Netherlands and Danish other operations referred to in the Governments and the Commission were rep­ annex will take place, but also stor­ resented. age pending transport to such a plant, regardless of whether that plant is situated inside or outside the Community?

Question 1

(b) If the first part of this question is answered in the affirmative, what minimum evidence must be available 18. By its first question the Raad van State for a finding that the waste is actu­ essentially seeks to ascertain whether plastic ally intended for recovery, where waste for recovery which is included in the notification has not been given? green list of waste (but originated as 'municipal/household waste' in the amber list of waste) can be transported as green waste, and accordingly escape the notifica­ tion obligation, if it is mixed with (a) various other waste listed in the green list, and (b) a small quantity of materials which do not appear in the green list. 3. If Questions 1 and 2(a) are answered in the affirmative, must it then be inferred from the third sentence of Article 26(2) of the Regulation that, in the cases to which that provision refers, the compe­ tent authority of destination is also obliged, or at any rate authorised, to do what the competent authority of dis­ 19. The Raad van State considers that the patch is obliged to do pursuant to the term 'municipal/household waste' must be first sentence of that provision?' understood as meaning waste originating in households which has not been sorted. However, the national court is uncertain whether, when classifying waste, the decisive factor should be the fact that a considerable proportion of the waste has to all appear­ ances not been sorted or the fact that most of the materials in the batch in question are 17. Observations have been submitted by each separately referred to in the green list of the Netherlands, German, Danish and waste.

21. Nevertheless, the Commission considers that only homogeneous batches of waste 23. The Commission, however, states that belonging to the same category in Annex II that paragraph is intended to cover only of the Regulation can be transported as green minor amounts of contamination and that in waste. It is supported in that approach by principle each batch of waste should be the Danish Government. At the hearing, the homogeneous. The Netherlands and Danish Danish Government explained that in its Governments argue similarly that what that view a homogeneous batch of green waste paragraph envisages is simply mixes which was a batch of waste falling within the same are inherent in the items concerned, such as sub-category in Annex II. The German Gov­ metal staples on paper or paper labels on ernment submits that mixed batches of waste glass bottles. are permissible but only if the mixing does not create either of the situations set out in the introductory paragraph to Annex II to the Regulation and the different types of green waste fall within the same general cat­ egory in Annex II. The Finnish Government is of a similar view. 24. Various arguments are advanced in sup­ port of the view that mixed batches of green waste are unacceptable. The Commission argues that the nature of the waste must be clear for the purposes of transport, stocking, and recovery treatment in order to limit

22. Annex II to the Regulation (which con­ tains the green list of waste) states in its 20 — The full text of that paragraph is cited at paragraph 6 above.

28. The Netherlands Government argues 26. The Danish Government also mentions 22 that the multiplicity of diverse plastic materi­ the OECD Decision of 30 March 1992, to 23 als in the waste in question makes direct which the Regulation refers. Annex I, sec­ recovery of the waste scarcely feasible and tion III, paragraph (1) of that Decision, that, even if recovery were technically pos­ which lists green waste, states that only the sible, there is so much variation that the quantity recovered would be too small to justify the recovery. In that respect it refers 21 — See Article 2(2) of Council Directive 91/689/EEC of 12 to the ground for objection listed under December 1991 on hazardous waste, which obliges Member States to take the necessary measures to require, subject to Article 7(4)(a), fifth indent, of the Regu­ limited exceptions set out in Article 2(3), that establish- lation, which allows the competent authori­ ments and undertakings which dispose of, recover, collect or transport hazardous waste 'do not mix different catego- ties to object to a shipment of waste for ries of hazardous waste or mix hazardous waste with non- hazardous waste', OJ 1991 L 377, p. 20. recovery if the ratio of the recoverable and 22 — OECD Decision concerning the Control of Transfrontier non-recoverable waste, the estimated value Movements of Wastes Destined for Recovery Operations, C(92)39/FINAL. of the materials to be finally recovered or the 23 — Recital 3. cost of the recovery and the cost of the

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BESIDE AND BESSELSEN v MINISTER VAN VOLKSHUISVESTING, RUIMTELIJKE ORDENING EN MILIEUBEHEER

31. Thirdly, in my view, an unsorted batch of such waste should not qualify as green 29. In my view the correct approach is to waste simply because by chance none of the consider the meaning of the term 'municipal/ contents of that particular batch appear on household waste'. Three main points can be the amber or red list. Even if it were to be made. First, such waste may include a sig­ found that all or nearly all of a particular nificant number of different types of waste. batch of waste consisted of items in the A particular batch of such waste may com­ green list, that would not be sufficient to prise very many different substances or just a exempt the consignment from the require­ few. Moreover, it may contain only green ment of notification. The waste must have waste or a mixture of green waste with other been properly sorted into appropriate cat­ waste. The diversity of municipal waste is egories in order to escape classification in the illustrated by the large number of items amber list of waste as 'municipal/household which appear under the heading 'Municipal waste'. It is relevant to note in that respect wastes and similar commercial, industrial footnote 19 of the OECD Decision of 30 27 28 and institutional wastes including separately March 1992. In the Basel Convention collected fractions' in Commission household wastes are defined as 'other 24 Decision 94/3. That Decision established a waste', rather than hazardous waste, and are list of wastes, entitled the 'European Waste controlled when they are subject to trans­ Catalogue', pursuant to Article 1(a) of the frontier movements. In the footnote it is Waste Directive. 25 Its aim is to provide a inferred from that that the Decision should common terminology throughout the Com­ provide for 'all household wastes (and not munity in order to improve the efficiency of just those which exhibit a hazardous charac­ waste management activities. 26 The heading teristic) [to] be subject to the procedures in 'Municipal wastes etc.' includes such diverse Section IV (Amber Tier)'. products as organic compostable kitchen waste, clothes, acids, batteries, aerosols etc. 27 — Cited in note 22. 28 — Convention on the control of transboundary movements of hazardous wastes and their disposal, approved, on behalf of 24 — 20 December 1993, OJ 1994 L 5, p. 15. the Community, by Council Decision 93/98/EEC of 1 Feb- ruary 1993, OJ 1993 L 39, p. 1. The text of the Convention 25 — Cited in note 2. is annexed to the Council Decision. The Waste Regulation 26 — See paragraph 5 of the Introductory note. gave effect to the Convention within the Community.

33. It may be useful, however, to make an additional observation. If waste is properly sorted, each sorted batch of green waste may well fall within a single general category in Annex II. However, if it is intended, as the Commission and several Member States argue, that green waste falling within one general category (or perhaps even a sub­ category) should never be mixed with waste falling within another general category (or sub-category) (unless the mix is inherent in 35. It appears that the purpose of the second the items concerned, such as paper labels on question is to ascertain whether, even if the glass bottles), then it is desirable, in the inter­ composition of the waste does not constitute ests of legal certainty, that the legislation grounds for exemption from the notification should be amended so as to make that clear. obligation in the Regulation, the waste could be exempted on the grounds that it was not intended directly for either recovery or dis­ posal but for storage pending transport to a plant where it was to be recovered. The idea seems to be that, since the Regulation pro­ vides only for the notification of shipments of waste for recovery and waste for disposal, 34. In answer to the first question I con­ it might be argued that shipments of waste clude simply that the expression 'municipal/ for storage pending transport to another household waste' referred to under AD 160 plant constitute neither shipments of waste for recovery nor shipments of waste for dis­ posal and accordingly do not need to be 29 — Sec paragraph 14 above. notified.

38. I also conclude that, since the abovemen- tioned definitions of disposal and recovery do not contain any geographical limitation and the scope of the Regulation extends to exports from the Community, it is irrelevant 37. Annexes IIA and IIB do not specify that whether the recovery operation following in order to constitute disposal or recovery storage is to take place inside or outside the the storage of waste must be at the plant at Community. which the other operations referred to in those Annexes are to take place. The only exclusion is in relation to storage at the site where the waste is produced and in relation to which there is accordingly no significant movement of the waste. Moreover, Article 6(2) of the Regulation provides expressly that 'Notification shall mandatorily cover any intermediary stage of the shipment from 39. That suffices, in my view, to answer the the place of dispatch to its final destination.' question posed by the national court. Never­ That makes sense since it is not only the theless, I will address briefly a further recovery or disposal of waste which can be question raised in the text of the order for harmful to the environment or human health reference and commented upon by the

30 — See Article 2(k) and (i) of the Regulation, and Article 1(e) and (f) and Annexes IIA and IIB of the Directive. The rel­ 31 — Article 3(5) in relation to waste for disposal and Article 6(5) evant provisions of those Annexes were amended, subse­ in relation to waste for recovery. quent to the facts of the present case, albeit not materially, 32 — Article 4(2)(d) in relation to waste for disposal and Article by Commission Decision 96/350, cited in note 2. 7(3) in relation to waste for recovery.

Commission, namely whether notification is site where the waste is produced), regardless necessary if the final fate of the waste to be of whether that plant is situated inside or stored is not yet known. I do not think it outside the Community. could be argued that there might be some fate for waste which does not fall within the disposal and recovery operations listed in Annexes IIA and IIB of the Directive. It is clear that the intention of the Regulation was to cover all transport of waste, even though the shipment of some waste is exempt from the notification requirement. As the Com­ mission argues, to interpret the Regulation as Question 2b exempting from notification waste whose final fate has not yet been determined would lead to the absurd result that transporters of waste who had not determined the fate of the waste prior to transport would be freer with regard to the organisation of such transport than transporters who had deter­ mined the waste's fate, and yet the former situation is more objectionable. It can also be observed that such an interpretation might dissuade transporters from taking, or from admitting to having taken, a decision as to the final fate of the waste to be transported. 41. In the second part of question 2 the It is accordingly clear that the notification Raad van State asks what minimum evidence requirements under the Regulation in rela­ is necessary for a finding that waste which tion to a particular shipment of waste cannot has not been notified is intended for recov­ be avoided on the ground that the fate of ery. The national court requests an answer to that shipment has not been determined. that question if Question 2a is answered in the affirmative and I have proposed such an affirmative answer. However, as the Com­ mission observes, Question 2b only appears to be relevant if, in answer to Question 1, the waste in question is held to be green waste because it is only green waste for recovery which is generally exempt from the notification requirement in the Regulation. If the waste is not green waste, its movement 40. In answer to Question 2a, I conclude should have been notified in any event, that the reference to storage of materials in whether it was intended for recovery or for Annex IIB of the Waste Directive, as subse­ disposal. Since I suggest that the waste can­ quently amended, should be interpreted as not be regarded as green waste, it might covering not only storage at the plant in accordingly be deemed unnecessary to which the other operations referred to in the answer Question 2b. Nevertheless, in case a Annex will take place, but also storage pend­ different view were to be taken of the classi­ ing transport to such a plant (excluding tem­ fication of the waste, and since it is in prin­ porary storage, pending collection, on the ciple for the national court to determine the

33 — See Article 1(3)(a). 34 — Article 6(6).

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OPINION OF MR JACOBS — CASE C-192/96

regard to certain matters. In so far as is rel­ — the estimated value of the recycled mate­ evant, those include the following: rial.

— the source, composition and quantity of the waste for recovery, including the pro­ ducer's identity and, in the case of waste 45. All the information mentioned in para­ from various sources, a detailed inven­ graphs 42 to 44 above can serve as useful tory of the waste and, if known, the iden­ guidelines to transporters of waste as to what tity of the original producer, the competent authorities might require by way of proof that a particular shipment is destined for recovery. However, I agree with the Commission that it is difficult to deter­ mine, in the abstract, exactly what proof is necessary since each case will depend on its own facts. Indeed, the Regulation recognises — the identity of the consignee of the waste, the need for flexibility since it allows compe­ the location of the recovery centre and tent authorities to request additional infor­ the type and duration of the authorisa­ mation and documentation (Article 6(4)). tion under which the centre operates,

47. The national court asks, however, about the minimum evidence which should be 49. In answer to Question 2b, I accordingly available. It is therefore envisaging not a situ­ conclude that the minimum information that ation in which a competent authority must normally be required by the competent requires too much evidence but rather one in authority for a finding that green waste is which it requires too little. In the interests of intended for recovery is the information set the Regulation's aim of environmental pro­ out in Article 11(1) of the Regulation; how­ tection, the competent authorities must not ever, that authority is entitled or may be be too lax as regards the standard of proof. obliged to request such further information In my view, the minimum information or evidence as may be necessary to show that required in relation to unnotifiable green the waste is destined for recovery. waste for recovery will normally be the information listed in Article 11. With that information further checks and enquiries can be made, and the very fact that no further information is listed in Article 11 suggests that it was considered that such information may, in the normal case, be sufficient. If in Question 3 doubt as to the veracity of the information provided, the competent authority would, however, be obliged to check that infor­ mation and if necessary to require further information or documentation, as appropri­ ate.

50. By its third question the Raad van State seeks to ascertain the extent of the duties and powers of the competent authority of desti-

51. Shipments of waste which have not been notified to all competent authorities con­ 53. It is important to recall in particular that cerned are deemed to be illegal traffic by the second and third sentences of Article 37 26(2) provide that: Article 26(1)(a) of the Regulation. It is accordingly argued that the shipment of waste in question in the present case is illegal because it was not notified. The obligation to notify is, not surprisingly, imposed upon the notifier of the waste (Article 3(1) and Article 6(1) of the Regulation). The 'notifier' of 'In this case a further notification shall be waste is defined at length in Article 2(g) of made. No Member State of dispatch or Member State of transit shall oppose the the Regulation. That definition includes, in return of this waste at the duly motivated certain circumstances, 'the person having request of the competent authority of desti­ possession or legal control of the waste nation and with an explanation of the rea­ (holder)'. The Raad van State considers that son.' in the present case Beside was the holder of the waste within the meaning of the Regu­ lation and that, if notification was necessary, it should, therefore, have been Beside which notified the transport of the waste pursuant to the Regulation. 54. The Minister argues that it can be implied from that third sentence that the competent authority of destination is required or empowered to do what the com­ petent authority of dispatch is obliged to do under the first sentence of that provision.

that, in returning the waste, the Member bility of the notifier, is, in my view, imposed State of destination in relation to the original upon the Member State from which the shipment is acting as the State of dispatch. waste was originally dispatched. On that view, the obligation in the third sen­ tence upon the 'Member State of dispatch' not to oppose the return of the waste would be a reference to the State which was the Member State of destination in relation to the original shipment. The Raad van State reasons that it would follow that the Minis­ ter could not rely upon the third sentence of 57. I accordingly consider that the second Article 26(2) as the basis of power to order and third sentences of Article 26(2) mean the return of the waste to Germany. that the return of waste to the Member State of dispatch (i. e. the Member State from which the goods were originally dispatched) cannot be made unilaterally by the Member State of destination (i. e. the Member State where the waste arrived) without prior noti­ fication of the Member State of dispatch, but the Member State of dispatch cannot oppose the return of the waste if the request of the 56. It seems clear to me, however, that, as Member State of destination is duly rea­ the Netherlands Government comments, the soned. 40 (The Member State of dispatch purpose of Article 26(2) is to ensure that could presumably, however, oppose the Member States do not close their eyes to ille­ return of waste if it were impracticable for gal shipments from their territory, by oblig­ the notifier or the competent authority of ing them to take back such shipments when dispatch to take back the waste, because in the illegality is the responsibility of the noti­ such circumstances the first sentence of fier. Moreover, as the Raad van State recogn­ Article 26(2) simply obliges the Member ises, it would be odd for the reference to the State of dispatch to ensure that the waste is competent authority of dispatch in one sen­ otherwise disposed of in an environmentally tence and the reference to the competent sound manner.) authority of destination in another sentence in the same provision to mean the same 39 authority. Thus the obligation in the third sentence of Article 26(2) not to oppose the return of illegal waste which is the responsi­

59. It is not, however, clear from the terms of Article 26(2) whether the Member State of destination may order the return of waste if, having been duly notified, the Member State 60. Since it is not, however, suggested in the of dispatch is unwilling to accept it back. present case that the Member State of dis­ The Finnish and Netherlands Governments patch has refused to accept the return of the argue that the Member State of destination waste, it is unnecessary to address that situ­ should have the autonomous power to ation. It might be observed nevertheless that, return the waste, provided it has sent a pursuant to Article 4 of the Waste Directive, request first. In support of that view, they Member States are obliged to take the neces­ refer to a 'Common Understanding of Cor­ sary measures to prohibit the 'abandonment, respondents' established following meetings dumping, or uncontrolled disposal of waste' on 7 November 1995 and 6 June 1996. 42 and to ensure that waste is recovered or dis­ That Understanding, however, concerns the posed of without endangering human health question whether the competent authority of and without harming the environment. destination can 'require' the competent autho­ rity of dispatch to take back waste which was not notified because it was shipped as green waste for recovery but which, in the view of the competent authority of destina­ tion, does not constitute green waste, and it appears to assume that the Member States of dispatch and destination will reach agree­ 61. In answer to the third question, I con­ clude that the competent authority of desti­ nation is not only entitled but obliged to 41 — See, in particular, the references to cooperation between assist the competent authority of dispatch in competent authorities in Article 26(3) ana 26(4). fulfilling its obligations under Article 26(2) 42 — 'Sheet Information Paper, Regulation (EEC) No 259/93 on Shipments of Waste, Subject: Illegal traffic', AMP D(96) of the Regulation; and that the Member State (annexed to the observations of the Finnish Government). of dispatch is not entitled to oppose the Correspondents are designated by the Member States and the Commission pursuant to Article 37(1) of the Regu- return of the waste, provided that the return lation; Article 37(2) provides that the Commission shall, if requested by Member States or if otherwise appropriate, is not impracticable and it has received from periodically hold a meeting of the correspondents to exam- the competent authority of destination a ine with them the questions raised by the implementation of the Regulation. duly reasoned request for the return.

(b) The minimum information that must normally be required by the compe­ tent authority for a finding that green waste is intended for recovery is the information set out in Article 11(1) of the Regulation; however, that authority is entitled or may be obliged to request such further information or evidence as may be necessary to show that the waste is destined for recovery.

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OPINION OF MR JACOBS — CASE C-192/96

(3) The competent authority of destination is not only entitled but obliged to assist the competent authority of dispatch in fulfilling its obligations under Article 26(2) of the Regulation; the Member State of dispatch is not entitled to oppose the return of the waste, provided that the return is not impracticable and it has received from the competent authority of destination a duly rea­ soned request for the return.

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