C-9/00

PALIN GRANIT AND VEHMASSALON KANSANTERVEYSTYÖN KUNTAYHTYMAN HALLITUS

OPINION OF ADVOCATE GENERAL JACOBS delivered on 17 January 2002 1

1. In this case the Korkein Hallinto-oikeus 75/442 and replaces its substantive provi- (Supreme Administrative Court, Finland) sions, states that 'the amendments take as a has asked the Court for guidance as to the base a high level of environmental pro- criteria which are relevant for determining tection'. whether in a series of defined circumstances leftover stone resulting from granite quarrying is to be regarded as waste within the meaning of Directive 75/442 on waste. 2

4. Article 1(a) of the Directive as amended ('the Waste Directive') defines 'waste' as 'any substance or object in the categories set out in Annex I which the holder dis- The Waste Directive cards or intends or is required to discard'.

2. The third recital in the preamble to Directive 75/442 states that 'the essential objective of all provisions relating to waste disposal must be the protection of human 5. Article 1(c) defines 'holder' as 'the pro- health and the environment against harm- ducer of the waste or the natural or legal ful effects caused by the collection, trans- person who is in possession of it'. port, treatment, storage and tipping of waste'.

3. The first recital in the preamble to 6. Annex I to the Directive, headed 'Cat- Directive 91/156, 3which amends Directive egories of waste', includes under head Q11 'Residues from raw materials extraction and processing (e.g. mining residues, oil 1 — Original language: English. field slops, etc.)'. The final head, Q16, 2 —Council Directive 75M42/EEC of 15 July 1975 on waste, mentions 'Any materials, substances or OJ 1975 L 194, p. 39. products which are not contained in the 3 — Council Directive 91/156/EEC of 18 March 1991, OJ 1991 I. 78, p. 32. above categories'.

4 — Commission Decision 94/3/EC of 20 December 1993 estab- lishing a list of wastes pursuant to Article 1(a) of Council Directive 75/442/EEC on waste, OJ 1994 L J, p. 15. The Catalogue is annexed to the Decision. That Decision was 9. The Directive defines 'disposal' as 'any repealed with effect from 1 January 2002 and replaced by Commission Decision 2000/J32/EC of 3 May 2000, OJ of the operations provided for in Annex II, L 226, p. 3, the Annex to which is headed 'List of wastes pursuant to Article 1(a) of Directive 75/442/EEC on waste A' 7and 'recovery' as 'any of the operations and Article 1(4) of Directive 91/689/EEC on hazardous provided for in Annex II, B'. 8 waste' ('the 2002 List of wastes'). 5 — In Introducrory note 3 (Paragraph 1 of the Introduction to the 2002 List of wastes). 6 — In the 2002 List of wastes, 'Wastes resulting from explo- ration, mining, quarrying, and physical and chemical treat- 7 — Article 1(e). ment of minerals'. 8 — Article 1(f).

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PALIN GRANIT AND VEHMASSALON KANSANTERVEYSTYÖN - KUNTAYHTYMAN HALLITUS

10. Annexes IIA and IIB to the Directive 9 pose of or recover waste must obtain a are headed 'Disposal operations' and 'Re- permit. 12 Permits for disposal 'may be covery operations' respectively. subject to conditions and obligations, or... if the intended method of disposal is unacceptable from the point of view of environmental protection, they may be refused'. 13

11. Annex IIA includes under head D1 'Deposit into or onto land (e.g. landfill, etc.)', under D12 'Permanent storage (e.g. emplacement of containers in a mine, etc.)' and under D15 'Storage pending any of the operations numbered D1 to D14 (excluding The main proceedings and the questions temporary storage, pending collection, on referred the site where it is produced)'.

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embankments for the quarry area, for lation implementing the Waste Directive, 15 making ramps and landscaping the quarry its storage does not create a landfill site and and for other purposes such as aggre- the joint board accordingly had jurisdiction gates 14 and filling material. The licence over the application. was granted in accordance with the appli- cation.

18. The question before the Korkein Hal- linto-oikeus is consequently which adminis- trative authority is competent to hear the licence application. The Korkein Hallinto- oikeus explains in the order for reference 16. On appeal by Turun ja Porin Läänin- that the answer to that question depends on hallitus (Turku and Pori Provincial Admin- whether leftover stone resulting from stone istration), Turun ja Porin Lääninoikeus quarrying is to be regarded in the circum- (Turku and Pori Administrative Court) set stances as waste within the meaning of the aside the joint board's decision to grant the Waste Directive. Before the Korkein Hal- environmental licence. The Lääninoikeus linto-oikeus Palin Granit put forward three held that the leftover stone was to be arguments in support of its view that the regarded as waste so that a landfill for leftover stone should not be so regarded. industrial waste was being created on the site. Jurisdiction over the application thus belonged, in accordance with national law, to the regional environment centre and not the municipal authorities. The Lääninoi- keus accordingly transferred the licence application to Lounais-Suomen Ympäristö- 19. First, it emphasised that the leftover keskus (South West Finland Environment stone consisted mainly of various granites. Centre; 'the environment centre'). It was always the same, as regards its mineral composition, as the basic rock from which it was quarried. It did not change state regardless of the length of time for which it was kept or the manner in which it was kept and it was harmless for humans and the environment.

22. The Korkein Hallinto-oikeus considers that the case-law of the Court does not directly resolve the issue whether, taking account of those factors, the leftover stone is waste and has accordingly referred the following question to the Court:

(c) What relevance does it have that the leftover stone is harmless to human health and the environment? To what extent generally is importance to be attached to its possible effect on health 'Is leftover stone resulting from stone and the environment in assessing quarrying to be regarded as waste within whether it is waste? the meaning of Article 1(a) of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC of 18 March 1991, having regard to points (a) to (d) below?

(d) What relevance does it have that the intention is to transfer the leftover stone in whole or in part away from the storage site for use, for example for (a) What relevance, in deciding the above landfill or breakwaters, and that it question, does it have that the leftover could be recovered as such without stone is stored on a site adjoining the processing or similar measures? To place of quarrying to await subsequent what extent in this connection should

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Analysis 26. Second, although the term 'discard' includes the disposal and the recovery of a substance or an object,19 it may not be 24. Although 'waste' is defined in inferred from the fact that a substance Article 1(a) of the Waste Directive as 'any undergoes an operation referred to in substance or object... which the holder Annex IIB 20 to the Directive that that discards or intends or is obliged to discard', substance has been discarded so as to that definition is not complete but depends enable it to be regarded as waste. 21 How- in turn on the meaning of 'discard', which ever, certain circumstances may constitute is not defined. The concepts of 'waste' in evidence that the holder has discarded the general and 'discard' in particular have substance or intends or is required to been considered by the Court in several discard it within the meaning of judgments. Although the Court has not Article 1(a) of the Directive. That will be developed a comprehensive definition of the case, in particular, where the substance waste, the following principles may be used is a production residue. 22 gleaned from the case-law.

16 — Third recital in the preamble, set out in paragraph 2 above. 17 —Joined Cases C-418/97 and C-419/97 ARCO Chemie Nederland [2000] ECR I-4475, paragraphs 36 to 40 of the judgment. It may be noted that the judgment in ARCO was delivered after the reference in the present case had been lodged. 25. First, the term 'discard' must be inter- 18 — ARCO, paragraphs 73, 88 and 97 of the judgment. 19 — ARCO, paragraph 47 of the judgment. preted in the light of the aim of the 20 — Or, by analogy, Annex IIA. Directive, which is the protection of human 21 — ARCO, paragraph 51. health and the environment against harm- 22 — ARCO, paragraphs 83 to 87 of the judgment.

32. It may be noted that the observations 29. The present case concerns residues were submitted before the Court delivered from granite quarrying which are stocked its judgment in ARCO 26 and hence do not on a site either until use — in the short fully reflect the relevant case-law. term, to shore up and landscape the devel- oping quarry, or in the longer term, as and when they may be required for use as aggregates and landfill — or (it may be

23 — Joined Cases C-206/88 and C-207/88 Vessasti and Zanetti 33. In my view, the inference with regard [1990] ECR I-1461. to residues remaining indefinitely on the 24 — ARCO, paragraphs 64 to 66. 25 — Joined Cases C-304/94, C-330/94, C-342/94 and C-224/95 Tombesi and Others [1997] ECR I-3561, paragraphs 53 and 54 of the judgment; see also paragraph 61 of my Opinion in that case. 26 — Cited i nnote 17.

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site must in any event be that they have deposit may be regarded as a disposal been discarded and are hence waste. The operation under either head DI of Annex deposit and stocking of substantial quan- IIA to the Directive, 'Deposit into or onto tities of leftover stone manifestly involves land (e.g. landfill, etc.)', or head D12, the risk — as the Finnish Government 'Permanent storage (e.g. emplacement of notes — that noise and dust pollution will containers in a mine, etc.)', and hence be caused and the countryside adversely subject to the requirement of a permit affected by the creation of a rural eyesore. within the meaning of Article 9 of the Such occurrences however are precisely Directive. those which the Directive seeks to avoid. 27

37. It appears that the potential uses to which the leftover stone may be put include as side embankments for the quarry area, 35. I accordingly conclude that leftover for making ramps and landscaping the stone which is indefinitely deposited is to quarry and for other purposes such as be classified as waste within the meaning of aggregates (used for example in the con- the Directive. More specifically, such

28 — See Tombest, cited in note 25, paragraphs 53 and 54 of the 27 — Article 4, set out in paragraph 8 above. judgment, summarised in paragraph 28 above.

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PALIN GRANIT AND VEHMASSALON KANSANTERVEYSTYÖN KUNTAYHTYMAN HALLITUS

struction of harbours and breakwaters) and relevant generally whether it is stored on filling material. Those uses may constitute the quarrying site, a site next to it or further either disposal or recovery, depending on away. the overriding purpose of the operation and in particular on whether, in the absence of waste, another substance would have had to be used for the same operation for reasons unconnected with the storage of waste. 29 41. I have already stated that I consider that the fact that the leftover stone is stored to await subsequent use does not preclude its classification as waste. The Finnish Government and the Commission are of the same view. 38. Storage of the leftover stone on the site pending future use will accordingly itself amount to a disposal or recovery operation under head D15 of Annex IIA or head R13 of Annex IIB. 30

44. Second, the referring court asks whether it is relevant that the composition of the leftover stone (i) is the same as that 46. Nothing in the Directive suggests how- of the basic rock from which the stone was ever that the composition of a substance quarried and (ii) does not change regardless determines more generally whether it is of how long or in what conditions the waste. The definition of waste in leftover stone is kept. Article 1(a) of the Directive refers to any substance or object in the categories set out in Annex I; that annex itself contains a residual category which refers to any materials, substances or products. More- over it is clear from the case-law of the Court that the concept of waste is not to be interpreted restrictively. 35 More specifi- cally, certain of the categories of waste 45. Again in my view those qualities of the specified in Annex I to the Directive dem- leftover stone are irrelevant for the purpose onstrate that residues sharing the same of classifying it as waste, although in more composition as their source may be waste: general terms, as the Commission and the see for example head Q10, which com- Finnish Government note, the composition prises machining/finishing residues, and of a substance may determine whether it is Q11, which includes residues from raw hazardous waste within the meaning of materials extraction. That conclusion is Council Directive 91/689/EEC of 12 De- also borne out by certain of the categories cember 1991 on hazardous waste. 33 Simi- of waste specified in the European Waste larly there may be circumstances in which Catalogue: see for example some of the the composition of a substance may be items listed under head 01 01 00 (waste relevant to determining whether the sub- from mineral excavation), head 01 04 01 stance has been ·— or is intended or (waste gravel and crushed rocks), head 01 04 06 (waste from stone cutting and

49. It is clear to my mind that those factors are also irrelevant to the question whether the leftover stone falls within the definition of waste. I would note again the all-em- bracing nature of the definition of waste in Article 1(a) of and Annex I to the Direc- tive. Even if the referring court is correct in its assertions that the residues in question are harmless to human health and the environment (but see paragraph 33 above), 47. Similarly there is nothing to suggest that fact cannot be relevant to whether the that the fact that a substance is stable residues are waste. That question, as I have means that it cannot be waste; indeed as the already stressed, depends solely on whether Commission observes it may be all the their holder discards — or intends or is more important to ensure that a residue required to discard — them. which will subsist indefinitely is properly recovered or disposed of. Again, that inter- pretation finds support both in the broad definition of waste in the Directive as interpreted by the Court and in certain of the categories listed in the European Waste Catalogue, for example under head 01 00 00 (Waste resulting from exploration, mining, dressing and further treatment of minerals and quarrying), which covers various types of rock and stone, and head 10 11 02 50. Moreover, the assumption which (waste glass). 38 appears to underlie the position of the referring court and the Finnish Government is that, merely because a product is 'natu- 36 — The equivalent heads in the 2002 List or wastes arc 0101; ral' (as opposed, I imagine, to man-made), 01 04 OS; 01 04 13; 0.1 01; 04; 10 11; 12 01 and 17. it cannot be waste. That assumption is 37 — Cited in note 25. clearly incorrect: many natural products 38 — The equivalent heads in the 2002 List of wastes are 01 and 10 11 02. are, unsurprisingly, listed in the European

51. If however given residues are harmless, that will of course tend to make it easier to satisfy the requirement in Article 4 of the Directive that, once discarded, they are 54. Even if the assertion that the leftover recovered or disposed of 'without endan- stone may be used without processing or gering human health and without using similar measures is correct (and it may be processes or methods which could harm the noted that the Finnish Government states environment'. that the residues may require breaking into smaller pieces depending on the use envis- aged), I do not see how that can affect its classification as waste, which turns, I reiterate, on whether the holder discards it or intends or is required to discard it. It is in any event clear from the Court's judgment in ARCO 41 that neither the degree of treatment to which a substance is to be subjected by way of recovery nor the environmental impact of that treatment 52. Finally, the referring court asks has any effect on its classification as waste. whether it is relevant that the intention is Assuming — as appears to be the case — to transfer the leftover stone in whole or in that the leftover stone has indeed been part away from the storage site for use, for discarded, or at least is intended to be example for landfill or breakwaters, and discarded, future use not involving process- that it could be recovered as such without ing will still constitute recovery under head processing or similar measures, and more R5 of Annex IIB to the Directive, 'Recyc- specifically whether the extent to which the ling/reclamation of other inorganic holder of the leftover stone has definite materials'. 42 plans for such use and the lapse of time between deposit on the storage site and use of the leftover stone are relevant. 40 — See paragraphs 29 to 38 above. 41 — Cited in note 17, paragraphs 65 and 66 of the judgment; see paragraph 27 above. 42 — See further paragraphs 80 to 82 of my Opinion in A.S.A. 39 — Head 02 in the 2002 List of wastes. Abfall Service, cited in note 29.

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