C-418/97

2. In this case the referring court raises the question whether 'LUWA-bottoms' are to

* Original language: German. 4. ARCO, which had applied in those 1 — OJ 1975 L 194, p. 39. terms only as a precaution in case the 2 — OJ 1991 L 78, p. 32. competent authority should regard the

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substances as constituting waste, lodged a product of a manufacturing process is made complaint against that decision. It main- available for use as fuel. As it is also unclear tained that the LUWA-bottoms could not whether Annexes IIA and IIB of Directive be regarded as waste. They could be used in 75/442 are to be interpreted as meaning their entirety as fuel without requiring any that substances which undergo the recovery further treatment. They had a high calorific or disposal operations listed therein must value. Moreover, when used as a fuel in the be regarded as waste in every event, the cement industry molybdenum had no Raad van State refers the following ques- adverse effects on the environment as it tions to the Court for a preliminary ruling: was rendered directly and completely inert in that process. Furthermore, they were no different from fuel oil. In fact the use of LUWA-bottoms was beneficial to the envir- onment as it enabled natural fuel reserves to be saved.

' 1 . May it be inferred from the mere fact that LUWA-bottoms undergo an opera- tion listed in Annex IIB to Directive 75/442/EEC that that substance has been discarded so as to enable it to be regarded as waste for the purposes of Directive 75/442/EEC?

Case C-419/97

'1. May it be inferred from the mere fact that wood chips undergo an operation listed in Annex IIB to Directive 75/442/ EEC that that substance has been discarded so as to enable it to be 6. The second action raises the question regarded as waste for the purposes of whether powdered wood residues from the Directive 75/442/EEC? construction and demolition sectors used as fuel to generate electricity are to be regar- ded as waste. In January 1993 Epon — an electricity-generating company — applied for authorisation for a project of this kind. Authorisation was granted for the opera- 2. If Question 1 is to be answered in the tion of a plant to process the wood for use negative, does the reply to the question as a fuel and for burning. At the same time whether the use of wood chips as a fuel it was stipulated that certain quality speci- is to be regarded as constituting dis- fications had to be agreed in respect of the carding depend on whether: wood. In that context limits on the con- centrations of certain substances were laid down. Vereniging Dorpsbelang Hees, Stichting Werkgroep Weurt+, Vereniging Stedelijk Leefmilieu Nijmegen and De Groenen Regio Gelderland — probably (a) in regard to the building and representing environmental interests — demolition waste from which the

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chips are produced operations are B — The relevant Community provisions carried out already at an earlier stage than burning which are to be regarded as a discarding of the waste, namely operations (recy- cling operations) to render the waste suitable for re-use (use as a 8. The concept of waste underlying Com- fuel)? munity law on waste is defined in Arti- cle 1(a) of Directive 75/442. According to that definition, as amended by Directive 91/156, 'waste' means:

which are not contained in the above C — The first question categories'.

14. By this question the national court seeks to ascertain whether it may be inferred from the fact that a substance undergoes an operation referred to in 11. The first paragraph of Article 4 of the Annex IIB to Directive 75/442 that that directive provides that 'Member States substance constitutes waste. shall take the necessary measures to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment...'.

Arguments of the parties

12. The disposal operations such as they 15. The parties consider that the answer to occur in practice are listed in Annex IIA the first question should be that the fact (Dl to D15) and the relevant recovery that a substance undergoes an operation operations in Annex IIB (Rl to R13). 5 referred to in Annex IIB to Directive Recovery operation R9, which is defined 75/442 is not sufficient for that substance as 'Use principally as a fuel or other means to be regarded as waste for the purposes of to generate energy', as amended by Direc- Directive 75/442. The reasons given simply tive 91/156, is of crucial importance to the differ slightly in terms of detail. present cases.

20. Similarly, the German Government considers that Annexes IIA and IIB simply provide indications as to whether the substance treated constitutes waste. In the 17. The Danish Government also considers case of certain operations it is immediately that Annexes IIA and IIB merely contain apparent that waste is being treated. How- examples of the methods that may be ever, in the case of others no such inference applied to substances which have been can be drawn since raw materials can also established as constituting waste. undergo such operations. Coal is cited as an example.

to Case C-419/97 the Austrian Government may consequently be inferred that when- considers that such an intention exists in ever a substance undergoes an operation respect of wood from demolition. referred to in Annex II the holder is dis- carding that substance. However, that con- clusion may not be drawn in every case. The fact that the holder of a substance subjects it to an operation referred to in Annex II does provide a strong indication that he intends to discard it. However, in this case in particular — recovery as a Analysis fuel — it cannot be automatically inferred that such intention exists. The relevant category in Annex IIB, as amended in 1991, reads [in the German text]: 'R9 Verwendung als Brennstoff (außer bei Dir- 23. The first question referred for a pre- ektverbrennung)...' (Use as fuel (other than liminary ruling refers to the definition of direct burning). The [German] wording as 'waste' in Article 1(a) of Directive 75/442. amended in 1996 is somewhat clearer and According to that definition, 'waste' means is contained in category R1: 'Hauptver- any substance in the categories set out in wendung als Brennstoff oder andere Mittel Annex I which the holder discards or der Energieerzeugung' (Use principally as a intends or is required to discard. Annex I fuel or other means to generate energy). fails to provide any further clarification of [The English text states 'Use principally as the term since it contains a residual cate- a fuel or other means to generate energy' in gory, Q16, 'Any materials, substances or both versions.] However, fuel oil, coal and products which are not contained in the other primary fuels can also undergo such above categories', which enables virtually operations. If intent to discard were in- any substance to be regarded as waste. ferred from the operation and the substance concerned were consequently deemed to constitute waste, fuel oil and coal would also have to be regarded as waste. The fact that a substance undergoes an operation referred to in Annex IIB does provide a 24. Consequently, the term 'discard' is of strong indication that it is being discarded particular importance. Directive 75/442 but does not mean that the substance contains no specific definition of the term concerned may be regarded as constituting 'discard'. However, in its judgment in Inter- waste in every case. Environnement Wallonie the Court held that it is clear from the provisions of Directive 75/442, as amended, and in particular from Annexes IIA and IIB, that the term 'discard' covers both disposal and recovery of a substance or object. 9That 25. It is uncertain whether the distinction means that a substance is also discarded if drawn by some of the parties between the it is consigned to a recovery operation. It individual categories and operations is correct. Categories R 11 to R13 10 refer

D — Part (a) of the second question in Case 28. The plaintiffs in the main proceedings C-418/97 and part (b) of the second in Case C-419/97 consider that the wood question in Case C-419/97 chips constitute waste which cannot be re- used in an environmentally responsible manner. Firstly, they submit that the demo- 26. This question seeks to establish whe- lition wood used to produce the wood chips ther commonly held views are relevant to contains a large number of pollutants the definition of 'waste' and whether the which might release dioxins, inter alia, fact that a substance may be recovered in when burnt. On account of this composi- an environmentally responsible manner for tion, which no treatment can alter, there is use as fuel without substantial processing is no doubt that they constitute waste. More- of crucial importance in determining whe- over, that waste must actually be regarded ther or not it may be regarded as constitut- as hazardous since it also contains heavy ing waste. metals, for example. Furthermore, the abovementioned contaminants are not easy to detect. The wood chips must also be regarded as waste on account of their origin as wood from demolition since the holder could not re-use those substances Arguments of the parties after their initial use. For that reason the waste was also offered free of charge. Thus, the holder intended to discard those sub- 27. Not all the parties expressly consider in stances which, moreover, no longer had any their observations the questions raised by commercial value.

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31. The Court draws a distinction between waste recovery and normal industrial treat- ment. Epon understands the latter as mean- ing industrial treatment normally under- gone by primary raw materials. Such operations do not include recovery and reclamation. It claims that, since the wood 33. It also maintains that the wood used is chips undergo the same treatments as coal not — as the plaintiffs claim — contami- nated by hazardous substances. Rules on the subject had been laid down to protect 11 — Case C-129/96, cited in footnote 7, point 78. the environment.

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34. With reference to the criterion of sound manner. Thus, Directive 75/442 discarding, Epon claims that the holder of would be deprived of meaning if the issue the wood chips probably has as little of environmentally sound treatment were intention of discarding that substance as a already covered by the definition of 'waste'. holder of coal, a primary raw material.

39. The Austrian Government also takes the view that the fact that substances may be recovered in an environmentally respon- sible manner for use as fuel does not mean that they do not, in principle, constitute waste. As regards the LUWA-bottoms at 36. The Danish Government also takes the issue, it contends that they are not an view that the question whether a substance intentionally manufactured by-product of may be recovered in an environmentally primary production but a residue from the responsible manner — in this case as a reclamation of catalyst components from a fuel — is likewise irrelevant. The purpose part of the production process that was of Directive 75/442 is specifically to ensure inherently unintentional. The general view that waste is treated in an environmentally is that by-products at most, but not resi-

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45. In its submission the Netherlands Gov- ernment first refers to the term 'discard' and points out that in accordance with the definition of waste based on that term the 13 — Case C-129/96, cited in footnote 7.

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46. Finally, the Netherlands Government other form of fuel. The LUWA-bottoms, for applies those criteria to Case C-418/97 and -example, are to be regarded as fuel, not concludes that LUWA-bottoms constitute waste, if they can be used as fuel in a waste. The fact that the LUWA-bottoms cement kiln in the same way as any other could be used in the cement industry in an fuel, that is to say without the need for environmentally responsible manner does special measures to protect human health not alter that conclusion in any way. That or the environment. The fact that it would also follows from the judgment in Inter- not be possible to use the substance as fuel Environnement Wallonie. 14 The fact that in other processes of energy generation the substance can be used in an environ- does not detract from the categorisation of mentally sound manner, although only in the substance as fuel rather than waste the cement industry, does not mean that it when it is destined for burning in a cement is no longer to be regarded as waste. The kiln. If the substance were destined for use definition of waste cannot be subject to the as fuel in some other process of energy particular operation which a substance generation, which would require the taking undergoes. If that were the case control — of special protection measures, which including control over the shipment of such would not be necessary if the substance substances — would become impossible. were destined for use in a cement kiln, then that substance would constitute waste. That a substance may be regarded as waste or non-waste depending on whether or not it is used in an operation subject to super- vision under Directive 75/442 is consistent with the spirit and purpose of the Directive. 47. With regard to Case C-419/97 the Netherlands Government also concludes that on the three criteria that it suggests the wood chips must be regarded as waste. Thus, the ability to recover the substances in an environmentally sound manner is irrelevant.

50. The United Kingdom next raises the It adds that the directive does not take question whether a derived fuel, as opposed commonly held views as a basis. Indeed, to a primary product, does to a certain that is not an appropriate criterion in extent constitute waste if it has a negative Community law, as the term may vary value, that is to say if the producer of the from one Member States to another, material has to pay for its subsequent use as whereas the aim of Directive 75/442 is fuel. In that context the United Kingdom specifically to harmonise terminology. refers to the case-law of the Court of Justice There could be problems in particular according to which waste may have a relating to the transportation of waste over commercial value. 16 Even though that does borders if the definition of (different) not rule out the significance of the criterion commonly held views were used as a basis. 'negative value' in all circumstances, it nevertheless indicates that there are other criteria for classifying a substance as waste. It also points to the problem that the market value depends on the state of the market and therefore can be only one of several arguments. Consequently, the Uni- ted Kingdom takes into account the ques- 53. Furthermore, Directive 75/442 does tion whether the derived fuel may be used not refer to any view that is shared by all in the same way as a conventional non- the Member States. The Commission also waste fuel. disputes the assertion that there is a formal consensus between the individual Member States at OECD level as to the concept of 'waste'. It has OECD documents which show that the Member States' views differ.

57. The Commission also considers that the calorific value of a substance is no criterion for determining whether or not a substance constitutes waste. As regards the commercial value of certain substances, the Commission points out that that value may change from one day to the next. Even 55. Under Directive 75/442 waste must be where waste has a commercial value — treated in an environmentally responsible because it constitutes a cheaper fuel than manner. However, the mere fact that it may normal substances — it must be borne in be so treated is not, for that reason alone, mind that it may contain pollutants and the to be taken as an indication that a sub- necessary rules on supervision would no stance may not still be regarded as consti- longer apply if such substances ceased to be tuting waste. classified as waste.

recovered, in an environmentally sound part of discarding and is also too vague. manner in the country of destination. Article 4 of the Directive also fails to afford further clarification. True, it provides that waste must be disposed of or recovered in an environmentally sound manner, which could be equated with a requirement to discard, However, the only inference to be drawn is that discarding includes disposal or recovery. There is no further information Analysis as to which operations it might cover. In that context reference should also be made to the sixth recital in the preamble to Directive 91/156, which states that it is desirable to encourage the recycling of 59. The definition of 'waste' contained in waste and re-use of waste as raw materials Article 1(a) of Directive 75/442, as amen- and that it may be necessary to adopt ded by Directive 91/156, takes into account specific rules for re-usable waste. The Annex I and whether the holder discards or Commission has stated that those provi- intends or is required to discard the sub- sions have not yet been adopted but that stance concerned. Since under category there is a pressing need to do so in order to Q16 of Annex I virtually all substances define the term 'waste' more precisely, since may be regarded as waste and Annex I the respective procedures have a consider- cannot be used to define the concept of able bearing on the concept of waste. 20 waste in that respect, the term 'discard' is of crucial importance to the definition of waste. However, at least the first two of the three cases referred to provide no assistance in defining the term 'waste' more precisely as they are subjective terms which must be assigned an objective meaning to render supervision possible. The question whether 61. The referring court then raises the a substance is regarded as waste and question whether commonly held views whether the rules on supervision contained on the term 'waste' may be applied as a in the legislation on waste may be applied further criterion for defining the term to it may not turn on the producer's claims 'waste'. However, that poses a problem if as to his intention to discard. That would only because one subjective term is being make it very easy to circumvent the used to define another. Furthermore, as the requirements imposed by the legislation Commission submits, the meaning of the on waste. Therefore, further criteria must term may vary from Member State to be applied to determine what constitutes Member State. That would preclude the waste. harmonisation intended by Directive 75/442. The third recital in the preamble

to Directive 91/156 states that common 63. Moreover, in that respect reference terminology and a definition of waste are must be made to the case-law of the Court. needed in order to improve the efficiency of In its judgment in Inter-Environnement waste management. That cannot be Wallonie, 22 it ruled, with reference to achieved by a criterion which is formulated Article 4 of Directive 75/442, that that differently in different Member States. It directive may apply to disposal or recovery might even impede the operation of the operations forming part of an industrial common system of control. That is con- process where those operations do not ceivable in the case of the transfrontier appear to constitute a danger to human shipment of waste if the substance were not health or the environment. 23 Therefore, a regarded as waste in a particular Member substance is not excluded from the defini- State and the delivery was therefore not tion of waste in Article 1(a) of Directive notified to the State of destination. 21 75/442 by the mere fact that it directly or indirectly forms an integral part of an industrial production process. 24 It follows that the criteria to which the national court refers may not be used, or may at best be used as a supplement, to define the term 'waste'.

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stance in the waste management provided petent authorities (Article 11(2)). In addi- for in the Directive. tion, under Article 13 such undertakings are to be subject to periodic inspections and some are required to keep a record of the measures that they have taken (Article 14).

65. As the Directive makes clear, waste may pose a certain danger which requires certain measures and controls. For exam- 67. Under the 12th recital in the preamble ple, under Article 3(1)(a) measures must be to Directive 91/156, waste must be mon- taken to encourage the reduction of waste itored from its production to its final production and its harmfulness. That is to disposal. In that respect it should be noted be achieved in particular by the marketing that the classification of a substance as of products designed so as 'to make no waste also entails the application of other contribution or to make the smallest pos- rules which refer to the term 'waste' sible contribution... to increasing the contained in Directive 75/442. An example amount or harmfulness of waste and pollu- is Regulation No 259/93 which lays down tion hazards'. 26 That waste is to be regar- rules on the shipment of waste. As is clear ded as substances which may in some way from the foregoing considerations, the pose dangers to human health and the Community legislature assumes that waste, environment follows from the fact that, that is to say substances discarded by their under the first sentence of Article 4 of the holder, poses a certain threat. Directive, measures must be taken to ensure that waste is recovered or disposed of without posing such dangers.

necessary as soon as a substance ceases to monitoring it must be regarded as consti- be used and must extend to the time when tuting waste. the substance is disposed of or recovered so that no harm is caused to human health or the environment. If that supervision covers substances that are not in themselves hazardous, then it must surely also extend to substances which contain hazardous substances, such as the wood chips at issue which are hazardous because they are 70. The same applies to wood or wood contaminated with carcinogens and other chips that contain pollutants. Since the substances. However, it should be noted necessary monitoring also extends to the that it is for the national court to determine operations to be carried out, contaminated whether or not the demolition wood and substances and substances which cannot be the wood chips produced from it do in fact recovered safely in all operations cannot in contain the alleged contaminants. any event be recovered in normal opera- tions in the same way as substances which are not waste. Therefore, a distinction must be drawn between waste recovery and normal industrial treatment, on account of the typical risk attaching to waste. Therefore, a production process cannot be held to be normal if normal (primary) raw materials which are not waste are replaced in normal industrial treatment by sub- stances which originally fulfilled another 69. Where the relevant substance may pose purpose and cannot or may not do so any a danger in a particular situation and must longer (or never could) and which are now therefore be subject to the monitoring consigned to another purpose or to disposal provided for in Directive 75/442, that and may consequently pose a certain monitoring must remain in place until the danger. disposal or recovery operation has been completed, 27 that is to say the substance is to be regarded as waste until that point. That also applies to a substance such as LUWA-bottoms that may possibly be recovered in a particular operation without harming the environment or human health in any way. That substance too must be 71. That applies even if waste can be subject to the supervision specific to waste recovered without further conditions and until the operation has been completed, as without any adverse effects on human that is the only possible way of ensuring health or the environment. In that case that it will in fact be recovered in such an too it is necessary for the substance to environmentally sound manner. However, remain subject to comprehensive monitor- as long as it has to be subject to such ing in accordance with Community rules — until the specific risk attaching to waste ceases to exist — so that the other require- 27 — Twelfth recital in the preamble to Directive 75/442. ments of Directive 75/442, such as the

74. The plaintiffs in Case C-419/97 con- sider that grinding waste — in this case wood chips — does not cause it to lose the 72. From the foregoing considerations it character of waste. All the component parts follows that the operations to which a remain in that substance. If that substance substance is subsequently submitted are not were no longer to be regarded as constitut- of crucial importance to its classification as ing waste, the movement of waste might no waste. Similarly, the question whether the longer be subject to control. For example, it relevant substance has a commercial value would be possible to burn old car tyres, cannot directly determine whether or not it once they had undergone certain transfor- constitutes waste. For example, in its mations, in the same way as wood from judgment in Tombesi the Court ruled that demolition. Commercial re-use could not, the system of supervision and control in the plaintiffs' view, be used as a criterion established by Directive 75/442, as amen- to define a substance as non-waste. Burning ded, is intended to cover all objects and was an operation provided for in category substances discarded by their owners, even R9 of Directive 75/442, 30 and only there- if they have a commercial value and are after could it be assumed that the product collected on a commercial basis for recy- no longer constitutes waste. By selling the cling, reclamation or re-use. 29 The fact that wood chips to Epon the holder had simply a substance has no (residual) commercial intended to circumvent the requirements value may at most provide an indication as relating to the treatment of hazardous to the holder's intention to discard. waste. Even if the substance ceased to

76. Finally, Epon also submits that it would not be beneficial to the environment to apply the system for the control of waste to 75. Epon considers that the wood chips are secondary raw materials, as that would the product of a recycling operation. As cause profitability problems for the project part of that operation the materials must be to burn wood chips, for example. If sec- ground to a powder, as otherwise they ondary raw materials were to be regarded could not be used in the electricity-generat- as waste, it would be difficult to invest in ing station. Therefore, a secondary raw recovery of them. Primary fuels would be material is produced, that is to say a new used instead. However, the only difference substance that no longer constitutes waste. between primary and secondary raw mate- The origin of the substance is irrelevant in rials lies in their origin which is irrelevant that respect. Epon again refers to the to the issue of discarding. OECD and submits that there is a con- sensus that where a secondary raw material or residue can be used directly in a further process, possibly as a substitute for a primary raw material, it can hardly be regarded as waste. In that respect reference is also made to the judgment in Inter- Environnement Wallonie, 31 in which the Court held that a substance is not excluded from the definition of waste merely because 77. The Danish Government takes the view it forms an integral part of an industrial that the substances cannot cease to consti- production process. However, the end- tute waste merely because they have been product of such treatment may — in Epon's ground. If, for example, the doors of the view — be regarded not as waste but as a incineration plant are too small and the secondary raw material. Even on the criter- waste must be ground for that reason, it ion of discarding, the conclusion remains may not be assumed that the substance the same, as there is no intention to discard ceases to constitute waste. Such a view is in the case of a secondary raw material. unacceptable for reasons of environmental That follows from the purpose of Directive protection. Nevertheless, in principle it is 75/442, that is to say the avoidance and certainly possible for a substance to cease to constitute waste. However, it must then be treated as a primary substance and the 31 — Case C-129/96, cited in footnote 7. holder thereof may not discard it.

78. The Austrian Government sees the Community legislation on waste. In the process of discarding as a process that case of a complete separation of waste, begins with the wood from demolition in only the sorting residues which are not this case. The grinding merely constitutes a destined for use and pose a possible risk necessary prior operation associated with typical of waste must continue to be the final treatment, that is to say use as fuel. regarded as waste. The actual recovery does not take place until that second step is taken. That might not apply in the case of uncontaminated wood produced for marketing as a fuel in accordance with special quality criteria. 80. The Netherlands Government also con- siders that a substance may cease to constitute waste. In that case it must be clear from the composition of the substance produced by the recovery operation that it no longer constitutes waste. Pre-processing which merely enables a substance to be used as fuel cannot, in its view, be regarded as a treatment transforming the substance into non-waste. Pre-processing as it was carried out in the present case was not intended to dispose of the substance 79. The German Government notes that directly but to render it suitable for recov- Community law is silent as to when a ery. Therefore, it was subordinate to the substance ceases to constitute waste. It relevant recovery operation. It could not be considers that it may be assumed that assumed that a secondary raw material had waste no longer exists only when the been produced in the course of the pre- recovery operation has been completed. processing. That normally does not occur until the energy potential of the substance has been recovered and, moreover, in an environ- mentally sound manner as provided for in Article 4 of Directive 75/442. It is clear from categories D14 and D15 and also R11 and R12 32 of the annexes that recovery 81. In that context the United Kingdom may take place in several stages. In order to refers again to products whose useful life be able to determine when such a process has expired. They too may cease to con- has been completed and a substance ceases stitute waste only when the transformation to constitute waste, the German Govern- has been completed. The question then ment again refers to the purpose of the arises as to when such reclamation takes place. The United Kingdom takes the view that the product of such reclamation must 32 — The categories, as amended by Directive 91/156, read: be comparable with an original product. In D14 Repackaging prior to submission to any of the operations in this annex the case of wood chips it suggests that the D15 Storage pending any of the operations in this annex... R11 Use of wastes obtained from any of the operations extraction of the wood from the demolition numbered R1 — R10 waste for the purpose of re-use was an R12 Exchange of wastes for submission to any of the operation within category R3 of Annex IIB, operarions numbered R1 — R11.

83. According to the Commission, any other view would lead to a restriction on the scope of the Community rules on waste. 82. Finally, the Commission points out that In many cases waste would cease to be some of the operations referred to in regarded as such merely because it had Annex IIB can transform substances into undergone a certain conversion to enable it non-waste. However, that is not true of all to be recovered as a substance. However, in operations — it cites category R13 34 as an that case control and environmental pro- example — and there were no such opera- tection would no longer be possible. tions in this case. By way of explanation the Commission refers to Article 1(b) of Direc- tive 75/442 and the definition of a producer of waste contained therein which includes anyone who carries out pre-processing, mixing or other operations resulting in a change in the nature or composition of this waste. It also cites Article 1(d) which defines management as the collection, transport, recovery and disposal of waste. According to that provision, it is possible 84. The Commission considers that conse- for certain measures to be carried out prior quently there is no need to comment on the to disposal or recovery without changing a second part of the question. However, it does point out that Annex IIB is not definitive, that is to say an operation may 33 — That category is listed under R2 in Directive 91/156. be regarded as constituting recovery even if 34 — That provision, as amended in 1996, reads: 'Storage of it is not expressly referred to in the annex. wastes pending any of the operations numbered Rl to R12...'. Since Annex IIB can easily be supplemen-

88. Therefore, the operations carried out in this case constitute preparation for subse- quent burning, that is to say the actual recovery. That also follows from the fact 86. In the present case it is not contested that the preparations may be regarded as that the building waste constitutes waste reclamation of organic substances which for the purposes of Directive 75/442. On are not used as solvents, and thus as the criterion which has already been used recovery operations within category R2 37 to determine whether or not a substance of Annex IIB of Directive 75/442. Sub- constitutes waste, the question here is stances which undergo one of the treat- whether a substance has been produced ments referred to in Annex IIB may indeed from that waste which does not itself pose a continue to constitute waste. In that respect risk typical of waste. Epon considered that the Commission correctly refers to cate- to be the case on account of the operations gories R11 to R13 of Annex IIB. They refer which the waste had undergone. Those respectively to the operations numbered R1 operations consist in sorting the component to RIO and the wastes obtained from them. parts of the wood and grinding them. It is therefore clear that Directive 75/442 However, it is established that the compo- itself assumes that a substance may con- sition of the component parts of the wood remains unaltered in the process. That 36 —Judgment in Joined Cases C-304/94, C-330/94, C-342/94 and C-224/95, cited in footnote 12, paragraph 53 et seq.; Opinion in that case, point 61. 35 —Article 3(1)(b)(i). 37 — As amended by Directive 91/156.

F — Part (b) of the second question in Case C-418/97 and part (c) of the second question in Case C-419/97

90. Consequently, it must be considered that in this case the treatment of the wood from demolition is not in any event suffi- cient to remove the dangers typical of waste 92. By this question the referring court seeks to ascertain whether it may be inferred from the fact that the substance is 38 — As amended by Directive 91/156. treated in a manner which amounts to a

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common method of waste recovery that question whether the substance at issue can that substance constitutes waste. be said to constitute waste. In that respect it must be assumed that recovery as a fuel, which is comparable to the use of primary raw materials, is not regarded as an accepted method of waste recovery.

96. The national court does not refer 94. Epon too refers first to the first ques- specifically to Annex IIB of Directive tion, adding that a distinction must be 75/442. According to the introduction to drawn between the recovery of waste by that annex, it is intended to list recovery burning and the use of secondary raw operations as they are carried out in materials (fuels). If 'a common method of practice. From that it may be inferred that waste recovery' is regarded as a method at least some of the recovery operations that is not identical or similar to the use of listed in Annex IIB are common recovery primary fuels, that criterion of a common operations. It is probably not disputed that method of waste recovery becomes increas- that is true of use as fuel. However, in that ing relevant to the present case. The respect reference must be made to the point question whether the burning of wood made in connection with the first question, chips is similar to a common method of namely that raw materials may also be recovery may also be relevant to the subjected to the operations listed in

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Annex IIB. The burning of fuel oil or coal is 'waste' and 'non-waste' are used in the cited as an example. Therefore, the fact context of the OECD. that a substance is subjected to a method which amounts to a common method of waste recovery does not necessarily mean that it may be assumed that the holder intends to discard it. At most it may be regarded as one of a number of indications as to the holder's intention to discard.

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OPINION OF MR ALBER — JOINED CASES C-418/97 AND C-419/97

number of standard products would end up tute waste but might be regarded as such in being classified as waste. certain circumstances, for example if it did not satisfy internal quality requirements.

104. The Danish Government considers that it is crucial that the definition of 101. The Austrian Government observes 'waste' is not restricted to such an extent briefly that the substance at issue is a that entire categories of waste, such as the residue from the reprocessing of a partial abovementioned main products, which fail waste flow. According to common com- to satisfy quality requirements, are exclu- mercial usage, by-products at most, but not ded from that definition. That follows from residues of residues, are to be regarded as the judgment of the Court of Justice in Case non-waste. C-422/92. 39 Consequently, the Danish Government concludes that part (c) of the second question in Case C-418/97 must also be answered in the negative.

102. The Danish Government considers 105. The Commission too refers to the that the prior production process is no case-law of the Court — in this case the more decisive than its subsequent treatment judgment in Inter-Environnement Wallo- for the purpose of determining whether or nie 40 — according to which the concept of not a substance constitutes waste. Here too waste does not in principle exclude any it notes that several factors must be con- kind of residue, industrial by-product or sidered together to determine whether or other substance arising from production not a substance constitutes waste. processes. 41 It also refers to Annex I of Directive 75/442 which uses the term 'residue' in five categories. Category Q8, for example, refers to residues of industrial processes.

which is necessarily produced in the man- with Directive 75/442 as it follows from ufacture of one or more other substances Annex I to that directive — and in parti- but which is not an objective of the original cular from category Q16 — that in princi- producer, merely an unavoidable by-pro- ple any substance may be regarded as duct. Therefore, the substance is of no use waste. That may even be the case with a to the producer and so he discards it. main product if it fails to satisfy the quality Consequently, the Commission proposes requirements, for example. that the Court should answer the question to the effect that the fact that a substance is a by-product or residue of a production process whose purpose is to obtain a different product is an indication that that substance may constitute waste within the 108. Furthermore, it is difficult to draw a meaning of Directive 75/442. distinction between main products and by- products since — as the United Kingdom correctly submits — there are a number of by-products which constitute conventional fuels, for example. In the case of those substances it cannot be supposed that the holder intends to discard them. That con- clusion is reinforced by the fact that those Analysis substances have a certain commercial value for him. Consequently, it can only be stated that the fact that a substance is a by- product or a residue of a production 107. The question referred by the national process may be an indication that the court probably also seeks to ascertain holder intends to discard it. However, it whether a by-product or a residue from a can by no means be inferred automatically production process may be regarded as that it constitutes waste. waste from the outset. In this respect too reference must first be made to case-law. It is apparent from the case-law that the concept of waste does not exclude residues, by-products and other substances arising from production processes. 42 However, it may not be inferred that such substances Summary alone are to be regarded as waste or that they are always to be so regarded. The Danish Government correctly points out that, if that were the case, an entire category, that is to say products whose 109. In conclusion it should be noted that production was intentional but which the definition of the term 'waste' contained might in certain circumstances constitute in the Directive is too vague to provide a waste, would be excluded from the defini- generally valid, comprehensive definition tion of waste. That cannot be consistent of waste. Instead it must be determined on a case-by-case basis whether or not the substance concerned is to be regarded as 42 — Case C-129/96, cited in footnote 7, paragraph 28. waste in the particular circumstances. Most

H — Conclusion

110. In the light of the foregoing considerations I propose that the Court should reply as follows to the questions referred to it for a preliminary ruling:

Case C-418/97

(1) It may not be inferred from the mere fact that LUWA-bottoms undergo an operation — such as use as fuel — listed in Annex IIB to Directive 75/442 on waste that that substance has been discarded so as to enable it (consequently)

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ARCO CHEMIE NEDERLAND AND OTHERS

OPINION OF MR ALBER — JOINED CASES C-418/97 AND C-419/97

Case C-419/97

(1) It may not be inferred from the mere fact that wood chips undergo an operation — such as use as fuel — listed in Annex IIB to Directive 75/442 on waste that that substance has been discarded so as to enable it (consequently) to be regarded as waste for the purposes of Directive 75/442. However, the recovery of the substance in such an operation may be a strong indication that the substance has been discarded.

(2) (a) The reply to the question whether the use of wood chips as a fuel is to be regarded as constituting discarding may depend on whether, in regard to the building and demolition waste from which the chips are produced, operations are carried out already at an earlier stage than recovery as fuel as a result of which the substance has ceased to constitute waste so that it poses no greater danger than a comparable primary raw material, assuming that such an operation does not have to be mentioned specifically in Annex IIB of Directive 75/442/EEC.

(b) The reply to the question whether the use of wood chips as fuel is to be regarded as constituting discarding does not depend on whether wood chips are commonly regarded as waste, it being also irrelevant whether they may be recovered in an environmentally responsible manner for use as fuel without substantial processing.

(c) Nor does the reply to the question depend on whether the use of wood chips as a fuel amounts to a common method of waste recovery. I-4510