C-228/00

OPINION OF MR JACOBS — CASE C-228/00

O P I N I O N OF ADVOCATE GENERAL JACOBS delivered on 16 September 2002 1

1. In this action brought under Article 226 used in that process is correctly to be EC, the Commission claims that objections classified as a disposal operation or a raised by the Federal Republic of Germany recovery operation. against certain shipments of waste to other Member States to be used principally as fuel were unjustified and contrary to Article 7(2) and (4) of Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community ('the Regulation'). 2 The Com- mission accordingly seeks a declaration The relevant Community legislation that Germany has failed to fulfil its obli- gations under Article 7(2) and (4) of the Regulation.

The Waste Directive

4. Article 5 of the Directive enshrines the 6. Annexes IIA and IIB to the Directive 6 principles of self-sufficiency and proximity. are headed 'Disposal operations' and 'Re- It provides as follows: covery operations' respectively. Each annex is prefaced by a note to the effect that it is intended to list the operations 'as they occur in practice' and that in accordance with Article 4 7'waste must be [disposed of/recovered] without endangering human health and without the use of processes or ' 1 . Member States shall take appropriate methods likely to harm the environment'. measures, in cooperation with other Member States where this is necessary or advisable, to establish an integrated and adequate network of disposal installations, taking account of the best available tech- nology not involving excessive costs. The network must enable the Community as a whole to become self-sufficient in waste 7. Annex IIA includes among the listed disposal and the Member States to move disposal operations: towards that aim individually, taking into account geographical circumstances or the need for specialised installations for certain types of waste.

'DIO Incineration on land'.

2. The network must also enable waste to be disposed of in one of the nearest appropriate installations, by means of the most appropriate methods and technol- ogies in order to ensure a high level of 8. Annex IIB includes among the listed protection for the environment and public recovery operations: health.'

5. The Directive defines 'disposal' as 'any 'Rl Use principally as a fuel or other means of the operations provided for in to generate energy'. Annex IIA' 4 and 'recovery' as 'any of the operations provided for in Annex IIB'. 5 6 — As adapted by Commission Decision 96/350/EC of 24 M a y 1996 adapting Annexes IIA and I I Bt o Council Directive 75/442/EEC on waste, OJ 1996 L 135, p. 32. 4 — Article 1(e). 7 — Which requires Member States to take the necessary 5 — A r t i c l e 1(f). measures to the same effect.

12. The procedure for shipments of waste for recovery varies according to the type of waste. Annexes II to IV to the Regulation classify specific waste in one of three lists. 10 Annex II contains the 'Green list of wastes', which 'should not normally 14. Notification is to be effected by means of the consignment note to be issued by the 8 — Case C-187/93 Parliament v Council [1994] ECR I-2857, paragraph 26 of the judgment. 9 — Article 2(i) and (k). 11 — Recital 14 in the preamble to the Regulation. 10 — As adapted by Commission Decision 94/721/EC of 12 — Articles 1(3) and 11 of the Regulation. 21 October 1994 adapting, pursuant to Article 42(3), 13 — Article 2(g). Annexes II, III and IV to Council Regulation (EEC) No 259/93 on the supervision and control of shipments of 14 — And, if relevant, of transit. waste within, into and out of the European Community, 15 — Articles 3(1) (waste for disposal) and 6(1) (waste for OJ 1994 L 288, p. 36. recovery).

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16 —Articles 3(3) and 6(3). 23 — Where the waste is listed in Annex IV or has not been 17 —Articles 3(4) and 6(4). assigned to Annex II, III or IV, the competent authorities 18 — Articles 3(5) and 6(5), first and fifth indents. concerned must give their consent in writing (Article 10). 19 — Article 6(5), sixth, seventh and eighth indents. 24 —Article 7(1) and (2). 20 — And, if relevant, of transit. 25 — Article 4(2)(c). 21 — Articles 4(1) and 4(2). 26 — Article 4(3)(a)(i). 22 — And, if relevant, of transit. 27 — Article 4(3)(b)(i).

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21. First, the Court ruled in Dusseldorp 30 The action for infringement that the principles of self-sufficiency and proximity do not apply to waste for recovery; such waste should therefore be 24. This action for infringement arises indirectly from several proposed shipments 28 — Article 7(2). 29 — Article 7(4)(b) concerns the objections which may be raised by the competent authorities of transit, not relevant to the present case. 31 — Case C-6/00, paragraph 69 of the judgment delivered on 30 — Case C-203/96 [1998] ECR I-4075, paragraphs 33 and 34 27 February 2002. of the judgment. 32 — Paragraph 36 of the judgment.

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of waste from Germany to Belgium. The waste, distillation residues containing sol- shipments had been notified to the German vents, materials impregnated with solvents competent authorities as shipments of (absorbents, alumina and sawdust, the waste intended for recovery; the German latter partly contaminated by organic and authorities considered that the proposed inorganic substances), residues of synthetic operations were in reality disposal oper- thermorésistant substances, mixed syn- ations. thetic waste, sludges containing polyme- rised synthetic substances, wood shavings, sawdust, wood fibres and sludges from paper manufacture. The resulting 'Reso- fuel' was intended for incineration, in particular in cement kilns, where it could totally replace energy from primary sources. 25. The shipments concerned two cat- egories of waste.

as a fuel or other means to generate 30. The Commission, unconvinced, sent energy' 33), the waste in question — and Germany a letter of formal notice in which in the case of mixed waste each constituent it expressed the opinion that the shipments waste — must have a calorific value of at at issue concerned waste intended for least 11 000 kJ/kg, at least 75% of the recovery and that the Germany authorities energy generated from the operation must could accordingly rely only on the grounds be used and prescribed thresholds of pollut- of objection set out in Article 7(4) of the ing substances contained in the waste must Regulation. The Commission took the not be exceeded. Unless all those conditions position that the incineration of the waste were met, the operation would be classified in the Belgian cement kilns was a recovery as disposal under head DIO or D l l of operation falling under head R1 in Annex IIA ('Incineration on land' or 'In- Annex IIB to the Waste Directive, namely cineration at sea'). 'Use principally as a fuel...', or under head R13, 'Storage of waste pending any of the operations numbered R1 to R12 (excluding temporary storage, pending collection, on the site where it is produced)' read in combination with head R1.

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Admissibility by the competent authorities in which those authorities, partly on the basis of the circulars, raised objections against certain shipments of waste on the grounds set out in Article 4 of the Regulation.

32. Germany submits that the action against it is inadmissible on the basis that neither in the pre-litigation procedure nor in the application to the Court does the Commission specify the precise object of the proceedings sufficiently clearly to 34. It is settled case-law that the letter of enable it to defend itself. The adminis- formal notice and the reasoned opinion trative decisions which the Commission issued by the Commission delimit the seeks to put in issue cannot be identified subject-matter of the dispute so that it from the letter of formal notice, the rea- cannot thereafter be extended. The oppor- soned opinion or the application. The tunity for the State concerned to submit its Commission simply refers to three circulars observations constitutes an essential guar- issued by the Länder of North Rhine-West- antee intended by the Treaty, adherence to phalia and Baden-Württemberg. Those cir- which is an essential formal requirement of culars however do not contain 'unjustified the infringement procedure. 34 One purpose objections to certain shipments of waste to of the letter of formal notice is to ensure other Member States to be used principally that the Member State concerned is aware as fuel' since they merely set general criteria of the points on which it may need to for distinguishing thermic disposal from the prepare its defence. 35 recovery of energy.

land-Pfalz, in both cases giving dates and Germany sent the Commission an 18-page indicating that the decisions were based on response in which it set out its arguments in the assumption that the intended oper- full. It expressed the view that, until the ations were disposal rather than recovery Community legislature had better defined operations. The letter of formal notice recovery and disposal, the national auth- states that the Commission considers that orities were bound to set specific criteria the shipments are to be regarded as des- for operations under heads DIO of tined for recovery and that Article 7(4)(a) Annex IIA and R1 of Annex IIB to the of the Regulation is the appropriate provi- Directive. In Germany's view, recovery sion for possible objections. In particular it presupposed that the principal objective of specifies that the Commission is of the view the operation was the generation of energy. that the operation falls under head R1 of The various criteria used sought to ensure Annex IIB to the Directive ('Use principally that only when that definition was satisfied as a fuel...') and not under head DIO of would an operation be classified as Annex IIA ('Incineration on land'). The recovery. letter of formal notice concludes:

37. As for the reasoned opinion, the Court has ruled that the purpose of the require- ment in Article 226 EC that the Commis- sion deliver a reasoned opinion is 'to give 'On the basis of its current state of knowl- the Member State an opportunity to justify edge the Commission accordingly considers its position and, as the case may be, to that the Federal Republic of Germany has enable the Commission to persuade the infringed its obligations under [the Regu- Member State to comply of its own accord lation], the second paragraph of Article 189 with the requirements of the Treaty. If this [of the EC Treaty, now Article 249 EC] and attempt to reach a settlement is unsuccess- in particular Article 7(2) and (4) of [the ful, the function of the reasoned opinion is Directive].' to define the subject-matter of the dis- pute.' 36

Community legislation is set out and the 41. It may be that the letter of formal relevant case-law summarised. The Com- notice and the reasoned opinion could have mission prefaces its analysis of the alleged been drafted with greater precision. How- infringement with the statement: ever it is apparent from the above summary of their contents that the documents gave a sufficient indication of the subject-matter of the dispute as required by the case-law of the Court. The reasoned opinion did not moreover broaden that subject-matter as compared to the letter of formal notice (or the application compared to the reasoned 'The Commission maintains the view that opinion), which would not have been the shipments in question are destined for permissible. recovery, and that a Member State there- fore may object to a shipment of waste only on the basis of criteria set out in Article 7(4)(a) of Regulation 259/93 or by invoking Article 130t EC, and that the measures taken by the Federal Republic of 42. I accordingly conclude that the action Germany are not justified and therefore brought by the Commission is admissible. infringe Community law.'

The issues before the Court

recovery or disposal. In particular the 45. Germany refers to several other parties are at odds over the questions Member States which have also set criteria whether the Länder were entitled to for- for the distinction, in particular by impos- mulate criteria not to be found in the ing a minimum calorific value (apparently Community waste legislation in order to of 5 000 kJ/kg in France, between 9 500 distinguish between the two types of oper- kJ/kg and 15 000 kJ/kg in the Flemish ation for the purpose of application of the region of Belgium, between 11 500 kJ/kg Regulation, what precisely is meant by 'Use and 15 000 kJ/kg in the Netherlands and principally as a fuel or other means to 21 000 kJ/kg in the United Kingdom). generate energy' in head R1 of Annex IIB to the Directive and whether the specific criteria set by the Länder in the present case are lawful in the sense that they correctly reflect criteria inherent in the Directive. I shall consider those issues in turn. 46. It also refers to my Opinion in Tom- besi, 37 where I referred to 'the Member States' need to lay down practical rules and guidelines for the day-to-day application of the Directive providing the necessary degree of legal certainty for individuals' and stated:

Member States' discretion to set criteria 'As the Directive stands at present, I think it must to some extent be left to Member States to develop more detailed criteria to apply the term "recovery operation" to the various situations which may occur in practice.'

44. Germany submits, first, that the Member States have the power to lay down their own criteria for distinguishing between disposal and recovery operations in cases such as those at issue, given the potential overlap between the disposal 47. In similar vein Germany refers to the operation under D10 'Incineration on land' Opinion of Advocate General Tesauro in and the recovery operation under R1 'Use principally as a fuel or other means to generate energy' and the lack of further 37 — Joined Cases C-304/94, C-330/94, C-342/94 and C-224/95 Tombai [1997] ECR I-3561, paragraph 56 of the guidance in the Community legislation. Opinion.

'[The Directive] sets out the broad lines of the action which the Member States are to take in order to ensure that waste manage- ment within the Community is conducted so as to guarantee protection for the environment and health. However, the Member States remain substantially free to define the content of that action and the means which they employ. 48. In my view however the situation in Tombesi was different in a material respect from the present case: the question before the Court was whether certain substances including residues from production or con- sumption cycles constituted waste. In order to approach that question I considered, given the definition of waste in the Direc- tive, that under the Directive 'the sole question is whether the substance in issue is subject to a disposal or recovery oper- ation within the meaning of Annex IIA or B'. 41 Since Italy had imposed additional criteria for the definition of waste which were not mentioned in the Directive, I As regards in particular the conditions of stated in the paragraph following that competition, the directive does not... lay relied on by Germany: 'It is in fact probably down common rules relating to the activity unnecessary in the present cases to deter- of waste management, but merely defines mine the extent of any discretion left to the the principles by which action by the Member States since it is clear that the Member States is to be guided. It follows Italian decree-laws which prompted the that each Member State may adopt in national courts' questions are inconsistent subiecta materia the provisions which, in with the Directive.' 42 It is manifest there- its view, are most appropriate for the fore that — unsurprisingly — I was not purpose of attaining the prescribed objec- suggesting that Member States had a n unfettered discretion to delimit the notions 38 — Case C-155/91 [1993] ECR I-939, paragraphs 8 and 9 of the Opinion. 39 — Cited in note 3. 41 — Paragraph 57 of the Opinion. 40 — Directive 75/442, cited in note 2. 42 — Ibidem.

49. As for the statements of Advocate 'In the absence of specific Community General Tesauro in Commission v Council, provisions on proof of the existence of it appears from a closer reading of his waste, it is for the national court to apply Opinion that he was considering the frame- the provisions of its own legal system in work rules on national waste management that regard, while taking care that the proposed by the Directive and not the objective and effectiveness of [the Waste specific terms there defined: indeed he Directive] are not undermined.' prefaces his discussion with the words 'If we now turn to its content, the directive (apart from defining the terms which determine its scope), establishes...'. 43 The differences between Member States' prac- tice to which the Advocate General alludes may be taken to concern national policies in the field of waste management, for 51. That proposition cannot however be example to encourage the reduction of relevant to the present case given the waste production and its harmfulness and existence in the Directive of 'specific Com- to encourage the recycling of waste. It must munity provisions' describing disposal and be borne in mind that Commission v recovery operations. It may be noted that Council was a challenge to the legal basis the Court in the immediately following chosen by the Council for Directive paragraph stated that 'what is commonly 91/156, 44 and hence the discussion focused regarded as waste... is irrelevant in view of on the objectives of the legislation. There is the express definition of waste in nothing in the Opinion — or in the judg- Article 1(a) of [the Waste Directive]'. ment of the Court — to suggest that the Contrary to Germany's view, therefore, Advocate General envisaged Member the Court's statements in ARCO support States applying their own criteria to the the proposition that Member States may

53. That is not to say that a uniform criterion based on calorific value might not be a useful and workable means of distinguishing between recovery and dis- posal operations if set at Community level. 52. The unacceptable consequences of However it appears that it has not been Member States' being permitted to apply possible to agree such a criterion to date. their own criteria in such a way are evident from the diverse minimum calorific values which, according to Germany, certain Member States require of waste in order for its incineration with recovery of heat generated to be classified as a recovery operation under head R1 in Annex IIB to the Directive. As mentioned above, those calorific values range from 5 000 kJ/kg in 54. Both the Commission and Germany France to 21 000 kJ/kg in the United refer to a working document submitted by Kingdom. The application by different the Commission to the Technical Adap- Member States (and possibly different tation Committee in 1999 48 pursuant to regions in the same Member State) of such the Directive, which provides for the wide-ranging thresholds would clearly run amendments necessary for adapting the counter to the objectives of both the Annexes to the Directive to scientific and Directive, whose aims include a 'common technical progress to be adopted in accord- terminology... to improve the efficiency of ance with a prescribed procedure involving waste management in the Community', 46 a committee composed of representatives of and the Regulation, which is built on the the Member States. 49 That document put premiss that different Member States will forward a number of suggestions for limit- apply the same procedures to waste ing movements of waste to be incinerated. intended for particular operations. As the One of the options considered was the Commission points out, if Member States development of criteria for distinguishing were free to set their own divergent criteria more clearly between 'Incineration on land' determining which operations were to be under head DIO of Annex IIA and 'Use classified as recovery operations, the principally as a fuel or other means to impact of Article 7(4) of the Regulation, generate energy' under head R1 of which exhaustively lists the cases in which Annex IIB. One of the criteria discussed Member States may object to shipments of

was calorific value: it was suggested that a generates thermic energy and second the calorific value of 17 000 kJ/kg be used as energy so generated is actually used; the a limit value. However, it appears that a waste being burnt is therefore in fact distinction based on that calorific value replacing other sources of energy. If those was not accepted by the majority of conditions are not satisfied, there is no use Member States. as fuel but simply incineration. The Com- mission notes that the waste to be shipped consisted of mixed waste to be used as fuel in the Belgian cement industry. The waste is unquestionably to be used in Belgian cement factories in such a way that its combustion generates thermic energy which is actually used, replacing in one case up to one third of the energy from 'Use... as a fuel or other means to generate primary sources otherwise used and in the energy' other case all such energy. The waste is accordingly intended to be used as a fuel. With regard to the judgment in ASA, the Commission refers to the Court's statement that 'the essential characteristic of a waste 55. Germany submits that 'Use... as a fuel recovery operation is that its principal or other means to generate energy' in the objective is that the waste serve a useful description in head Rl of Annex IIB to the purpose in replacing other materials which Directive should be interpreted by reference would have had to be used for that to the objective of the operation. In order purpose, thereby conserving natural to constitute recovery, therefore, the spe- resources'. 51 It considers that, in the light cific aim of an incineration operation must of its analysis summarised above, that be that the waste is used as a source of criterion applied to the present case leads energy. Germany considers that that prin- ineluctably to the conclusion that the use of ciple, which underlies the practice of the mixed waste in cement factories must be Länder at issue in the present proceedings, classified as a recovery operation. precisely reflects the criterion laid down by the Court in ASA, 50 which is also expressed in terms of the operation's prin- cipal objective.

59. It is instructive to contrast the present case with Commission v Luxembourg, 54 another action for infringement which concerns proposed shipments of household waste for incineration with incidental recovery of the energy generated. In my Opinion also delivered today I state that, in the case of waste being incinerated in a 58. Moreover the principal objective of an plant developed for that purpose, the incineration operation which is an integral answer to the question set out above is part of an industrial process and which clearly 'no': in the absence of available generates surplus energy to be used in that waste, there would be no incineration. In industrial process may be said to be the use those circumstances it would not be right to of the waste as a fuel. Since the use of waste describe the operation as recovery simply in such a way will evidently replace other fuel, natural resources will be conserved. So interpreted, the description in head R1 of 52 — Cited in note 31, paragraph 69 of the judgment. Annex IIB to the Directive may therefore be 53 — Paragraph 86. seen as an application of the criterion laid 54 — Case C-458/00, paragraph 42 of the Opinion.

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because, whenever waste is available and using the waste as fuel in an industrial incinerated, the heat generated by the process and thereby contributing to the incineration is used, wholly or partly, as a objective of prudent and rational utilisation means to generate energy. That fact does of n a t u r a l resources enshrined in not of itself make the principal objective of Article 174 EC. the incineration the use of the waste as a fuel or other means to generate energy.

56 — Cited in note 30, paragraph 33 of the judgment. 55 — According to Germany's representative at the hearing. 57 — Paragraph 61.

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62. Again the contrast with Commission v Germany's calculations, that occurs in Luxembourg is useful: in that case, where general only when the calorific value of the objective of the operation at issue is 11 000 kJ/kg is reached. Almost all incin- primarily to dispose of the waste, it seems eration operations make some further use reasonable that the imperative of environ- of the heat released: if that fact alone meant mental protection should override the that the operation were recovery, virtually imperative of the free movement of goods, all incineration would be recovery. whereas in the present case, where the objective is to use the waste to fuel a manufacturing process thus sparing natural resources, the converse is true.

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cannot be regarded as constituting 'use 67. As discussed above, waste can be principally as a fuel or other means to regarded as used as a fuel or other means generate energy'. In order to fall within the to generate energy only where the oper- description in head R1, the consignment as ation results in a net production of energy a whole must be 'principally' used. and that energy is actually used. The requirement that the waste be 'principally' used as such applies in my view to both those elements of the definition. Thus not only must the greater part of a consignment of waste be burnt in a given incineration operation, the operation will not be recovery unless the energy generated is itself 'principally' used.

58 — Sixth, seventh and eighth indents in Article 6(5). 59 — Cited in note 31, paragraph 71 of the judgment.

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ually. The use of general presumptions which burn at a temperature sufficient to however clearly conflicts with such an heat water. Germany argues that the 'in- approach. cineration' of individually uninflammable waste is not therefore a 'means to generate energy' but on the contrary uses the energy generated by the other waste with which it is combined.

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suitable; the first waste would thereby also stitute hazardous waste within the meaning be regarded as for recovery and thus escape of Council Directive 91/689/EEC on haz- the provisions of the Regulation applicable ardous waste, 61 mixing them with other to waste for disposal. That argument how- waste is contrary to Article 2(2) of that ever is also flawed: if those wastes not directive, which provides: incinerable on their own are mixed with other, more inflammable, waste and the resulting mixture is in fact to be used principally as a fuel, it is surely appropriate that a shipment of such a mixture should be treated as a shipment of waste for recovery.

'Member States shall take the necessary measures to require that establishment[s] and undertaking[s] which dispose of, recover, collect or transport hazardous waste do not mix different categories of hazardous waste or mix hazardous waste with non-hazardous waste.'

72. I accordingly do not accept Germany's submission that components of mixed waste must be assessed individually in order to determine whether the operation to which they are intended to be subjected is a recovery or a disposal operation. 74. However, mixing waste contrary to the provisions of Directive 91/689 cannot affect the meaning of 'recovery' and 'dis- posal' for the purpose of the Waste Direc- tive and of the individual operations listed in Annex IIA and IIB thereto. That view is supported by Article 1(3) of Directive 91/689, which states that the definition of 'waste' and the other terms used therein — which include 'recovery' and 'disposal' — are to be those in the Waste Directive. Waste containing hazardous or harmful elements

76. The criteria laid down by the Länder concerned include the nature and quantity of polluting substances in the waste mix- ture: if the concentration of certain sub- stances is above a prescribed threshold, 78. I cannot accept that argument. incineration of the waste will be regarded as disposal. Germany explains first that this is because — as is clear from the note introducing Annex IIB to the Direc- tive 6 2 — recovery operations must be harmless and compatible with the environ- ment. However since the note introducing Annex IIA 63 governing disposal is in ident- ical terms, that criterion alone cannot help 79. First, Article 4(1) of the Directive to distinguish recovery and disposal oper- imposes a general requirement on Member ations. States to 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'; again, there- fore, there is no basis for a distinction between waste for recovery and waste for disposal by reference to different levels of 77. Germany adds that the network of environmental regulation of recovery and disposal installations required to be estab- disposal operations. lished by the Directive must enable waste to be disposed of 'by means of the most appropriate methods and technologies in order to ensure a high level of protection for the environment and public health' in accordance with Article 5(2) of the Direc- tive. Recovery installations on the other hand do not always have in all Member 80. Second, harmonised standards for air 62 — Set out in paragraph 6 above. pollution from waste incineration plants 63 — See paragraph 6 above. are set throughout the Community, cur-

81. Third, the Court made it clear in ASA 70 that 'it does not follow from... the

83. For those reasons also I cannot accept 64 — Council Directive 89/369/EEC of 8 June 1989 on the prevention of air pollution from new municipal waste Germany's further argument that, since incineration plants, OJ 1989 L 163, p. 32. certain other Community waste instru- 65 — Council Directive 89/429/EEC of 21 June 1989 on the reduction of air pollution from existing municipal waste- ments regulate the extent to which specific incineration plants, OJ 1989 L 2 0 3 , p. 50. types of harmful waste may be recovered 66 — Directive 2000/76/EC of the European Parliament and of the Council of 4 December 2000 on the incineration of rather than disposed of, the harmful con- waste, OJ 2000 L 332, p. 9 1 . tent of individual components of mixed 6 7 — See for example Case C-5/94 Hedley Lomas [1996] ECR I-2553, paragraph 20 of the judgment and the cases there waste is a lawful general criterion which cited. Member States may impose for distinguish- 68 — Final recital in the preamble to each directive. ing between waste for disposal by inciner- 6 9 — C a s e C-324/99 DaimlerChrysler [2001] ECR I-9897, paragraphs 48 to 65 of the judgment. ation and waste for recovery by use as a 70 — Cited in note 3 1 , paragraph 68 of the judgment. fuel.

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84. I accordingly do not accept that the whether the waste should be classified as hazardous or harmful nature of elements of waste for recovery or waste for disposal. mixed waste is relevant to determining

Conclusion