C-6/00

3. The main proceedings have arisen because, in brief, ASA Abfall Service AG ('ASA') wishes to transport slag from Aus- tria to Germany where it will be placed in a 5. Before setting out in more detail the background to the main proceedings and 1 — Original language: English. the questions referred, it is helpful to 2 —Council Directive 75/442/EEC of 15 July 1975 on waste, review the relevant provisions of the Com- OJ 1975 L 194, p. 39. The substantive provisions of Directive 75/442 were replaced wholesale by Council munity legislation regulating waste and its Directive 91/156/EEC of 18 March 1991, 01 1991 L 78, transport. It will be seen that the distinction p. 32. 3 — Council Regulation (EEC) No 259/93 of 1 February 1993 between waste for disposal and waste for on supervision and control of shipments of waste within, recovery is fundamental to the scheme of into and out of the European Community, OJ 1993 L 30, p. 1. the legislation.

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The Directive 8. Article 5 of the Directive enshrines the principles of self-sufficiency and proximity. It provides as follows:

6. The preamble to Directive 75/442 states:

'1. Member States shall take appropriate measures, in cooperation with other Member States where this is necessary or advisable, to establish an integrated and adequate network of disposal installations, 'Whereas the essential objective of all taking account of the best available tech- provisions relating to waste disposal must nology not involving excessive costs. The be the protection of human health and the network must enable the Community as a environment against harmful effects caused whole to become self-sufficient in waste by the collection, transport, treatment, disposal and the Member States to move storage and tipping of waste; towards that aim individually, taking into account geographical circumstances or the need for specialised installations for certain types of waste.

'D1 Deposit into or onto land (e.g. landfill 13. Regulation No 259/93 is based on etc.) ... Article 130s of the EC Treaty. Its aim is to provide a harmonised set of procedures whereby movements of waste can be limited in order to secure protection of the environment. 9

D3 Deep injection (e.g. injection of pump- able discards into wells, salt domes or naturally occurring repositories, etc.) ... 14. The origins of Regulation No 259/93 are to be found in a proposal 10 issued by the Commission in response to the invi- tation extended to it by the Council in its resolution of 7 May 1990 on waste pol- icy,11in which that institution considered D12 Permanent storage (e.g. emplacement of containers in a mine, etc.)'. 9 — Case C-187/93 Parliament v Council [1994] ECR I-2857, paragraph 26 of the judgment. 10 — Proposal for a Council Regulation (EEC) on the super- 7 — Those annexes were, in accordance with Articles 17 and 18 vision and control of shipments of waste within, into and of the Directive, replaced by Commission Decision out of the Community, submitted by the Commission on 96/350/EC of 24 May 1996, OJ 1996 L 135, p. 32. 10 October 1990 (COM(90) 415 final), 01 1990 C 289, 8 — Which requires Member States to take the necessary p. 9. measures to the same effect. 11 — OJ 1990 C 122, p. 2.

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in particular that 'movements of waste shipment of waste for disposal and of waste should be reduced to the minimum necess- for recovery respectively. ary for environmentally safe disposal and should be subject to proper controls'. 12

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competent authority of dispatch 19 and to for granting authorisation for shipment. the consignee. 20 The Member State of dispatch 2 5has the right to raise objections and the Member State of destination may issue the auth- orisation only in the absence of any such objections. 26 In the case of waste for recovery, the Member States of dispatch 20. Notification is to be effected by means and destination 27 have the right to object of the consignment note to be issued by the to a shipment but, as a general rule, 28 no authority of dispatch. 21 In making notifi- express authorisation is required. 29 cation, the notifier is to complete the consignment note and, if requested by the competent authorities, supply additional information and documentation. 22 The notifier is to supply on the consignment note information with particular regard to a number of factors including (i) (first indent) the source, composition and quan- tity of the waste and (ii) (fifth indent) the 23. The most significant difference operations involving disposal or recovery between the procedures applying to the as referred to in Annex IIA or IIB to the shipments of waste for recovery and for Directive. 23 disposal lies in the grounds on which the various competent authorities concerned may oppose the proposed shipment.

26. Article 30(1) requires Member States to take the measures needed to ensure that waste is shipped in accordance with the provisions of the Regulation. Checks to 25. In the case of waste for recovery, the that end may include the inspection of o b j e c t i o n s are to be based on documents, the confirmation of identity Article 7(4). 33 Article 7(4)(a) 34 lists five and, if appropriate, the physical control of grounds on which the competent auth- the waste. 35 orities of destination and dispatch may raise reasoned objections. The second, third and fourth grounds are not at issue in the present case. The first and fifth grounds — set out in the first and fifth indents of Article 7(4) (a) — are as follows:

The background to the main proceedings and the questions referred

'— in a c c o r d a n c e with Directive 27. In March 1998 ASA, an Austrian 75/442/EEC, in particular Article 7 company, notified the Austrian competent thereof [which concerns national waste authority, the Bundesminister für Umwelt, management plans], or ... Jugend und Familie (Federal Minister for the Environment, Youth and Family), here- after 'the Bundesminister', of its intention of transporting 7 000 tonnes of waste to the Südwestdeutsche Salzwerke AG in Ger- many.

— if the ratio of the recoverable and non-recoverable waste, the estimated

28. According to the notification, the waste 31 — Article 4(3)(a)(i). 32 — Article 4(3)(b)(i). to be transported was slag produced in 33 — Article 7(2). 34 — Article 7(4)(b) concerns the objections which may be raised by the competent authorities of transit, not relevant to the present case. 35 — Article 30(3).

Austria as a byproduct in the operation of a 30. The Bundesminister also expressed the special-waste incineration plant and of two view that any deposit of waste for storage waste-fired power stations and processed in in a mine was a disposal operation under a waste-treatment plant in Vienna into D12 of Annex IIA. what is termed by the applicant company a 'specific product'. The waste was to be taken to a disused salt-mine in Germany in order to secure hollow spaces (mine-seal- ing). It appears that the relevant regional authority in Germany considered that the proposed operation was a recovery oper- ation. In the notification documents ASA classified the proposed use of the waste to be transported as 'recovery' under R5 of 31. ASA challenged the Bundesminister's Annex IIB ('Recycling/reclamation of other decision before the Verwaltungsgericht- inorganic materials'). shof, disputing his view that any deposit of waste for storage in mines comes under D12 of Annex IIA. ASA submitted that before a proposed operation could be classified as an operation listed under Annex IIA or IIB it must first be ascer- tained whether the operation amounted to disposal or recovery and that the fifth indent of Article 7(4)(a) of the Regulation did not provide for an objection on the ground that the proposed operation con- stituted not recovery but disposal. 29. By a decision of 19 June 1998 the Bundesminister raised an objection to the proposed shipment on the basis of the fifth indent of Article 7(4)(a) of the Regu- lation. 36 In his decision the Bundesminister expressed the view that, although the ground of objection set out in the fifth indent of Article 7(4)(a) was based on the ratio of recoverable to non-recoverable waste, it was also applicable by analogy 32. The Verwaltungsgerichtshof notes in where the proportion of recoverable the order for reference that the procedure material was nil, since otherwise the for transporting waste for recovery is less ground of objection would be meaningless: strict than that applicable to the transport the notifier could simply assert that the of waste for disposal, which would appear waste was to be taken to a depot for 100% to suggest that the competent authority of recovery and the authority at the place of dispatch may prohibit the transport of dispatch would be unable to raise an waste classified by the notifier as a ship- objection. ment of waste for recovery if it finds that that classification is incorrect and that the shipment is for disposal. However it con- 36 — Set out in paragraph 25 above. siders that it is questionable whether the

35. The Verwaltungsgerichtshof accord- 3. Should the reply to Question 2 be in ingly stayed proceedings and referred the the negative, on what provision of

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Regulation No 259/93 or other provi- The principles on which Community waste sions of Community law may the legislation is based competent authority at the place of dispatch rely in refusing to authorise a transport of waste, where contrary to the information given by the notifier, the transport is for purposes not of recovery but of disposal? 37. Before turning to the analysis of the questions referred, it is helpful to recall the fundamental principles on which Commu- nity waste legislation is now based.

4. Is any delivery of waste to a mine to be regarded, irrespective of the actual circumstances of such delivery, as a disposal of waste within the meaning of Regulation No 259/93 in conjunc- 38. The Directive expressly articulates the tion with Annex IIA (D12) to Directive principle of self-sufficiency, providing for 75/442/EEC? Member States to move towards self-suffi- ciency in waste disposal. 37 That principle is referred to in the preamble to the Regu- lation 38 and as a ground for a Member State (of dispatch or destination) to object to shipments of waste for disposal, either generally or specifically. 39

5. If Question 4 is answered in the negative, according to what criteria is classification under the operations listed in Annex II to Directive 75/442 to be carried out?'

41. The principle that environmental dam- age should as a priority be rectified at source is laid down by Article 174(2) EC (formerly Article 130r(2) of the EC Treaty) as a basis for action by the Community relating to the environment; it is also enunciated in Directive 75/442. 43 In the context of waste that principle is often May the competent authority of dispatch referred to as the principle of proximity; verify the correctness of the classification? the Court has stated that the principle requires waste to be disposed of as close as possible to the place where it is produced, in order to limit as far as possible the transport of waste. 44 A national rule requi- 43. In the first part of its first question the ring disposal of waste on national territory referring court asks whether the competent authority of dispatch may verify the cor- rectness of the notifier's classification of 41 — Article 7(3). waste to be shipped for recovery. 42 — Case C-203/% Dusseldorp [1998] ECR I-4075, paragraph 33 of the judgment. 43 — Article 5(2). 44 — Case C-2/90 Commission v Belgium [1992] ECR I-4431, 45 — Case C-422/92 Commission v Germany [1995] ECR I-1097, paragraph 34 of the judgment. paragraph 34 of the judgment.

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46. First, certain of the objections which the Regulation provides for in the case of shipments of waste for recovery 46 concern only one of the authorities of dispatch and destination: since the authorities may raise only those objections within their compet- ence, certain objections may be invoked by 48. The Austrian, French, German and the authority of destination alone. The Netherlands Governments and the Com- objection raised by the Bundesminister on mission put forward a number of argu- the basis of the fifth indent of ments in support of their view that the first Article 7(4)(a) assumes knowledge of the part of the national court's first question recovery installation at the place of desti- should be answered in the affirmative. nation, the costs of recovery and disposal in Their observations moreover suggest a the country of destination, etc., which common concern that, if the authority of clearly cannot be verified by the authority dispatch is unable to verify the correctness of dispatch (in particular because of the of the classification, the procedure will be 30-day time-limit prescribed by the Regu- open to abuse by unscrupulous operators lation 47) but which clearly can be verified who may be tempted to classify as for by the authority of destination. Moreover if recovery waste in fact intended for a both authorities could object on the basis of disposai operation, thereby evading the the fifth indent of Article 7(4)(a) there stricter procedure which should apply to would be a risk of divergent decisions. such a shipment.

50. First, I do not accept its argument based on the free movement of goods. It is clear that in the context of the transport of waste, the importance of the environ- mental concerns fully justifies the deroga- tion from the normal principles of free movement. As the Court noted in Parlia- ment v Council, 50 the aim of the Regu- lation is not to define those characteristics of waste which will enable it to circulate freely within the internal market, but to provide a harmonised set of procedures whereby movements of waste can be limited in order to secure protection of the environment. In the case of waste for 52. Nor am I convinced by ASA's argument disposal in particular, the principles of to the effect that the authority of dispatch is proximity and self-sufficiency clearly imply not in a position to verify whether the a duty on Member States not to ship waste proposed operation is recovery or disposal. for disposal elsewhere if it can be disposed The Regulation requires the notifier to of in a closer national installation in an include detailed information in the con- environmentally sound manner. signment note concerning the waste itself and the proposed operation. 53 The com- petent authorities may moreover request additional information and documen- tation. 54 I do not agree with ASA that the authority of dispatch cannot verify details of the proposed recovery operation within the 30-day time-limit imposed by 51. Similarly, the fact that the Regulation Article 7(2). It may also be noted that in envisages the application of dual controls the case of a shipment of waste for (by the importing and exporting Member disposal, where it is accepted that the States) is in my view also — albeit excep- tionally — justified on environmental grounds. The need for dual controls is 51 — See Commission v Germany, cited in note 45, paragraph particularly evident in the case of ship- 41 of the judgment. ments of waste for disposal: the State of 51 — See generally Commission v Belgium, cited in note 44. dispatch may have a particular interest in 53 — See the first, fourth and fifth indents of Article 3(5) (concerning disposal) and the first, fourth, fifth, sixth, seventh and eighth indents of Article 6(5) (concerning recovery). 54 — Articles 3(4) (waste for disposal) and 6(4) (waste for 50 — Cited in note 9, paragraph 26 of the ¡udgment. recovery).

competent authority of dispatch has more some of those submitting observations to extensive powers of objection, the time- the Court fear — with a view to evading limit imposed by Article 4(2)(b) is 20 days. the stricter procedure applicable to ship- ments for disposal. Preventing the authority of dispatch from checking that the notifier's initial classification is correct would to my mind be inconsistent with the principle that waste should be disposed of as close as possible to the place where it is produced in 53. I consider on the other hand that many order to limit as far as possible the trans- of the arguments advanced by the Member port of waste and with the principle that States and the Commission in support of an Member States should work towards self- affirmative answer to the first part of the sufficiency in waste disposal. Moreover, it first question are persuasive. is not inconceivable that a notifier may itself raise a doubt in the notification about the correctness of the classification; it would however surely be absurd if in that circumstance the competent authority of dispatch had no power to verify. 54. In particular, it appears to me that the whole scheme of the Regulation and the principles on which it is based would be undermined if the authority of dispatch were unable to verify the correctness of the classification of the proposed waste oper- ation. There would be little point in having a procedure applicable to shipments of waste for disposal which is stricter than that applicable to shipments of waste for recovery, and in giving the competent authority of dispatch broad grounds for 56. Further support for that view may be objection to shipments of waste for dis- found in the wording of the Regulation. posal, if that power to object could be — The fifth indent of Article 7(4)(a), 55 for in effect — irrevocably overridden where example, clearly envisages that the compet- the notifier makes an error in classifying ent authority of dispatch may make certain the proposed operation. findings of fact about the proposed recovery operation; it is accordingly not correct to state — as does ASA — that that authority cannot verify such matters. Moreover the requirement (in Articles 3(5) and 6(5)) that the notifier provide detailed prescribed information in the notification, 55. As will be seen below in the context of and the power (under Articles 3(4) and the fourth and fifth questions referred, the 6(4)) of all competent authorities to call for line between disposal and recovery oper- further information and documentation, ations is sometimes hard to draw. It may are presumably intended to facilitate verifi- therefore be expected that on occasion a notifier will incorrectly classify waste to be shipped, whether in good faith or — as 55 — Set out in paragraph 25 above.

60. The Austrian, German and Nether- lands Governments do not specifically address the question whether the authority of dispatch may prohibit a shipment of 58. In the second part of its first question waste incorrectly classified as for recovery, the referring court asks whether the com- although it is tolerably clear from the tenor petent authority of dispatch may prohibit a of their observations on the first question as shipment of waste incorrectly classified as a whole that they support an affirmative waste for recovery. answer. The French Government on the other hand considers that an incorrect classification does not in itself entail the 56 — See paragraph 51 above. power to prohibit the shipment.

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65. It will be recalled that under the fifth indent of Article 7(4)(a) the competent 63. The exercise by the authority of dis- authority of destination and dispatch may patch of its power to prohibit such a raise reasoned objections to the planned shipment will not of course leave the shipment 'if the ratio of the recoverable and notifier without a remedy. If it accepts that non-recoverable waste, the estimated value authority's decision that the waste should of the materials to be finally recovered or be reclassified as waste for disposal, it may the cost of the recovery and the cost of the amend the notification to that effect, or disposal of the non recoverable fraction do submit a fresh notification; if it does not not justify the recovery under economic accept the decision, it may seek judicial and environmental considerations'. Under review thereof. the first indent of that provision, the

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competent authorities may raise reasoned suggest that the grounds of objection set objections 'in accordance with Directive out in Articles 4(3) and 7(4) are exhaustive, 75/442, in particular Article 7 thereof'. an objection on the ground that the clas- Article 7 of the Directive requires the sification of the proposed operation is Member States to draw up waste manage- incorrect is of a different kind and may be ment plans. raised even though not explicitly mentioned in those provisions.

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69. However, the fact that the competent The fourth and fifth questions referred authority of dispatch may not invoke the fifth indent of Article 7(4)(a) as a ground of objection to a proposed shipment of waste incorrectly classified as for recovery does not mean that that authority is powerless to prevent such a shipment. Article 30(1) of the Regulation requires Member States to 71. The national court's fourth and fifth 'take the measures needed to ensure that questions may also usefully be considered together. The fourth question asks whether waste is shipped in accordance with the any delivery of waste to a mine is to be provisions of this Regulation'. That general regarded as a disposal within the meaning provision in my view amply empowers the of the legislation, regardless of the specific competent authority of dispatch to prevent circumstances. The fifth question, which a shipment of waste incorrectly classified as arises only if the fourth question is for recovery: it seems to me abundantly answered in the negative, asks which clear that such a shipment cannot be in criteria determine classification under the accordance with the Regulation, since ex operations listed in Annex II to the Direc- hypothesi an operation has been incorrectly tive. classified contrary to the definitions of those operations adopted by the Regu- lation.

question should be answered in the 75. In my view it would not be appropriate negative, and conclude that whether a to answer the national court's fourth ques- mine-fill operation is recovery or disposal tion in the absolute terms in which it is must be assessed on a case-by-case basis. framed. The observations submitted to the There is considerable consensus between Court have not surprisingly focussed on the the observations as to the relevant criteria, type of operation at issue in the main although as may be expected different proceedings and I consider that it would be conclusions are drawn from the application imprudent in the context of the present case of those criteria to the operation at issue. to seek to impose a definitive answer which ASA and the German Government con- would apply to all other types of delivery to clude that it is a recovery operation under a mine which may be envisaged. Moreover head R5 of Annex IIA. The Austrian Gov- it seems to me that it is perfectly possible to ernment in its written observations did not give the national court the guidance which seek to classify the operation at issue in the it needs in order to resolve the dispute main proceedings, simply setting out (in before it without laying down any such accordance with the terms of the question general rule. I will accordingly turn to the referred) what it regarded as the relevant fifth question, to which many of the criteria, although at the hearing the Bun- observations submitted on the fourth ques- desminister suggested that it was a disposal tion are also relevant. operation under head D12 of Annex IIB

erately categorised as recovery operations Article 3(1)(b) of the Directive 59 means — with a view to evading those stricter as it says — simply that recovery should requirements; it is accordingly imperative be encouraged: common sense suggests that that proposed operations are carefully recovery will overall be more environment- scrutinised and their classification verified. ally sound than disposal. The priority given to recovery recognises that it is likely to be more in the interests of environmental protection than disposal. It is therefore all the more essential to ensure that waste intended for an operation involving elements of disposal — and hence liable to be less reconcilable with those inter- 77. I do not accept the submission of the ests — is not shipped subject to the less German Government and the Commission rigorous procedure applicable to shipments to the effect that a particular use of waste of waste for recovery. may be both a recovery operation and a disposal operation. Community waste legislation has historically reposed on a distinction between waste for recovery and waste for disposal. 58 The coherence and effectiveness of that legislation would be at risk if a given operation could fall within both categories. It is not inconceivable, however, that a given operation may have elements of both recovery and disposal, in 79. The observations on the fourth and which case it is clear to my mind that the fifth questions essentially propose the fol- objectives of the legislation require that the lowing as relevant criteria: (i) whether the operation be treated as a disposal operation waste can be re-used after the operation; with the consequences which that classifi- (ii) the extent to which the waste is cation entails. hazardous and (iii) the purpose of the operation and the utility of the waste for that operation.

notes that Article 3(1)(b)(i) 60 of the Direc- 82. Although I consider that it may be tive gives as examples of recovery 'recyc- inferred from the term 'recovery operation' ling, re-use or reclamation or any other itself and from the list in Annex IIB that process with a view to extracting secondary what is entailed by 'recovery' will generally raw materials'. 'Recycling/reclamation of be a process by which goods are restored to other inorganic materials' under head R5 of their previous state or transformed into a Annex IIB means operations to reclaim raw usable state or by which certain usable materials from waste and make them re- components are extracted or produced, 61 I usable. Putting waste into a mine does not accept the Commission's suggestion that come under that head since there is no certain uses of waste in its unchanged form question of reclamation and the waste can may exceptionally be a recovery, for no longer be used as a secondary raw example by way of 'Use principally as a material in a new cycle. fuel or other means to generate energy' under head R1 of Annex IIB or 'Land treatment resulting in benefit to agriculture or ecological improvement' under head R10. I accordingly conclude that whether waste can be re-used after a given operation is not a decisive criterion for the classifi- cation of that operation as disposal or recovery.

85. Third, ASA and the Austrian and German Governments agree that the object 84. I do not accept the argument that the of the operation and the utility of the waste hazardous nature of the waste used is therefor are relevant criteria, although ASA relevant to determining whether a given simply submits that the operation must operation is recovery or disposal. The have recovery as its object and that the recovery of hazardous waste is not a waste used must be suitable for the oper- contradiction in terms: indeed the recovery ation, which is of limited help. Both of specific categories of such waste is Governments focus essentially on whether governed by various Community instru- the operation is necessary for technical or ments. 63 Moreover ASA's submission that safety reasons, for example (in the case of there is no need to classify an operation mine-fill) to ensure stability, and on involving non-hazardous waste as disposal whether the waste used has specific since there is no risk of harm to the qualities which make it suitable for that environment is clearly untenable: the clas- operation, for example (again in the case of sification of waste as hazardous or non- mine-fill) hydraulic properties and ability hazardous is distinct from the classification to withstand pressure. ASA and the Ger- of an operation as recovery or disposal; it is man Government add that, since the object possible for non-hazardous waste to be of the Directive is to protect natural disposed of or recovered in a way which resources by encouraging the recovery of harms the environment; equally it is poss- waste by recycling, re-use, reclamation or ible 64 for hazardous waste to be disposed any other process,65 it is also relevant to consider whether the operation uses waste instead of primary raw materials (for 62 — See note 17. 63 — See for example Council Directive 75/439/EEC of 16 June example in the case of mine-fill excavations 1975 on the disposal of waste oils, OJ 1975 L 194, p. 23, from new mines or natural resources such as amended by Council Directive 87/101/EEC of 22 De- cember 1986, OJ 1987 L 42, p. 43; Council Directive as sand or gravel), in which case it will be 94/67/EC of 16 December 1994 on the incineration of recovery. I agree with that proposition. hazardous waste, OJ 1994 L 365, p. 34; and Council Directive 91/157/EEC of 18 March 1991 on batteries and However, it seems to me that that criterion accumulators containing certain dangerous substances, OJ 1991 L 78, p. 38. is essentially another aspect of the more 64 — And indeed in principle requisite: Article 4 of the Direc- general test mentioned above, namely the tive — reflected in the note prefacing Annexes IIA and IIB, set out in paragraph 10 above — requires Member States 'to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment'. 65 — See in particular the preamble and Article 3(l}(b)(i).

purpose of a given operation and the utility substance which shared those properties for that operation of the waste used. would have been needed, which would suggest that the operation was recovery rather than disposal. However, whether that was the case would need to be verified: the mere fact that a disused mine is filled with waste which happens to be suitable for that purpose would not be sufficient to 86. In my view the test of the overriding categorise the operation as recovery if there purpose of an operation is the correct was no independent need for that oper- criterion for determining whether that ation. operation should be classified as disposal or recovery. The decisive question is whether the waste is used — or re- used — for a genuine purpose. Put another way, if waste were not available for a given operation, would that operation none the less be carried out using some other material? Applying that criterion to the case of a deposit of waste to fill hollow spaces in a disused mine, it would need to 88. The test suggested above similarly be determined whether, in the absence of accommodates a further factor which, that waste, those responsible for the mine although it has not been mentioned by would have had to arrange for the mine to those submitting observations, may in my be filled with other material for a purpose view be helpful in determining whether the independent of storing the waste, for waste is used for a genuine and indepen- example for safety or technical reasons to dent purpose, namely whether the holder of do with the mine itself. the waste pays for the operation or is paid for it. The Commission effectively sug- gested this approach in its 1989 Communi- cation, 'A Community strategy for waste management', 66 which sowed the seeds for the Regulation. In its Communication the Commission concludes its discussion on the 87. That test seems to me best to reflect the movement of waste for disposal with the scheme of the Directive; it also has the statement: 'The situation is different with merit of simplicity. It moreover accom- waste to be recycled by the recipient. The modates the criteria of the suitability of the holder must pay for the final disposal of waste for the operation and whether the waste. Where waste is for recycling, the use of waste spares natural resources with- holder of the waste is paid by the recycler.' out making either of those tests decisive in While that proposition may not be abso- itself. Thus if the operation — for lute — it appears that in some sectors, example, filling hollow spaces in a disused such as the solvent recovery market, it is mine — was necessary for safety or tech- normal practice for the holder to pay the nical reasons, one would clearly expect the consignee in order to make the recovery waste used to be particularly suitable for that operation because of its specific prop- erties. That in turn would suggest that if the 66 — Communication from the Commission to the Council and waste had not been delivered, another to Parliament, SEC (89) 934 final, 18 September 1989.

(2) Whether a deposit of waste in a disused mine is a disposal or a recovery operation depends on the overriding purpose of the operation and in particular on whether, in the absence of waste, another substance would have had to be used to fill the mine for reasons unconnected with the storage of waste.

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