C-444/00

(1) The Waste Directive I-6168

(2) The Packaging Directive I - 6169

(3) Divergences between the various language versions I-6170

B — National rules I-6171

III — Facts of the main proceedings I-6172

IV — Order for reference I-6173

F — The Austrian Government I-6180

G — The United Kingdom Government I-6181

H — The Commission I - 6184

VI — Legal assessment I-6184

A — The relationship between the Waste Directive and the Packaging Directive I-6184

1 — Original language: German.

I — Introduction ('the Waste Directive') and European Par- liament and Council Directive 94/62/EC of 20 December 1994 on packaging and packaging waste 3 ('the Packaging Direc- tive'). The point at issue is essentially 1. In the present proceedings, the High whether the treatment (sorting, cleaning, Court of Justice in London seeks a pre- cutting, crushing, separating and/or baling) liminary ruling from the Court of Justice on by the claimant in the main proceedings, the interpretation of Council Directive Mayer Parry Recycling Limited ('MPR'), of 75/442/EEC of 15 July 1975 on waste 2 packaging waste made of metal amounts to complete recycling so that, after its process- ing, the scrap metal is no longer to be 2 — Council Directive 75/442/EEC of 15 July 1975 on waste classified as waste. (OJ 1975 L 194, p. 39), as amended by Council Directive 91/156/EEC of 18 March 1991 amending Directive 75/442 (OJ 1991 L 78, p. 32) and by Commission Decision 96/350/EC of 24 May 1996 adapting Annexes IIA and IIB to Directive 75/442 (OJ 1996 L 135, p. 32). 3 — OJ 1994 L 365, p. 10.

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(b) secondly: 6. "recovery" shall mean any of the applicable operations provided for in Annex IIB to Directive 75/442/EEC;

(i) the recovery of waste by means of recycling, re-use or reclamation or any other process with a view to 7. "recycling" shall mean the reprocessing extracting secondary raw in a production process of the waste materials, materials for the original purpose or for other purposes including organic recycling but excluding energy recovery'. or

8. Article 6(1) of the Packaging Directive (ii) the use of waste as a source of imposes the following obligation for the energy.' recovery of packaging waste:

'In order to comply with the objectives of (2) The Packaging Directive this Directive, Member States shall take the necessary measures to attain the following targets covering the whole of their terri- tory: 7. Article 3 of the Packaging Directive contains, inter alia, the following defini- tions:

(a) no later than five years from the date by which this Directive must be imple- mented in national law, between 50% '2. "packaging waste" shall mean any as a minimum and 65% as a maximum packaging or packaging material by weight of the packaging waste will covered by the definition of waste in be recovered; Directive 75/442/EEC, excluding production residues;

(b) within this general target, and with the same time-limit, between 25% as a

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14. Since only a small proportion of the 16. Under the Regulations producers must language versions thus contain different be registered, take steps to recover and terms in the two directives, it cannot be recycle specified quantities of packaging concluded from the difference in choice of waste and furnish certificates of com- words in those versions alone that the terms pliance in respect of their recovery and have different meanings. In the remainder recycling obligations. It is a criminal of this Opinion, the terms 'stoffliche Ver- offence to contravene those requirements. wertung', 'Rückführung' and 'Recycling' are therefore understood linguistically as synonyms. That does not preclude, how- ever, that 'recycling' for the purpose of the Waste Directive and for the purpose of the Packaging Directive have different mean- ings in accordance with their respective definitions, as remains to be examined. 17. Producers may also, and in practice generally do, satisfy their obligations by being a member of a registered scheme.

18. The British environment agencies have issued guidance in 'Producer Responsibility Obligations 1997: Guidance on evidence of compliance and voluntary accreditation of B — National rules reprocessors', which is known as 'the Orange Book'. The Orange Book document sets out in greater detail the requirements of the environment agencies with regard to evidence that producers have complied with their recovery and recycling obli- gations and provides for a voluntary system of accreditation for reprocessors entitled to issue PRNs.

recovery operations are to be applied to the waste, from industrial and other sources. It material. Through the submission of PRNs, processes the scrap so that it meets the a producer can demonstrate to the Environ- Grade 3B specification developed by the ment Agency that the packaging waste industry. That essentially requires the fol- which he has delivered (or had delivered lowing processing steps: visual inspection, on his behalf) to an accredited reprocessor radiation testing, shredding into fist-sized has been duly recycled or recovered. PRNs pieces, several sorting processes to separate are tradeable and have an economic value out foreign substances (for example (£10 to £15 per tonne in 2000 in the case of plastics, non-ferrous metals, glass or the metal packaging waste at issue here). stones), and further visual inspection. Around 4 . 1 % of Grade 3B material is metal from packaging waste. MPR then sells the Grade 3B material to steelworks, which produce ingots, sheets or coils of steel from it. Grade 3B material is highly 20. The Environment Agency accredits the efficient because of its high iron content, its businesses listed in paragraph 3 of Annex D high density and its large surface area. It to the Orange Book; for metals (aluminium sells for around £60 per tonne. and steel), businesses producing ingots, sheets or coils from packaging waste are accredited as reprocessors.

25. In November 1998 MPR applied for accreditation as a reprocessor entitled to issue PRNs. By letter dated 15 November 1999, the Environment Agency refused that (1) Have those materials been recycled, application. MPR then commenced pro- and do they cease to be waste, for the ceedings before the High Court, seeking, purposes of Council Directive 75/442, inter alia, annulment of that decision and a when they have been: declaration that it performs recovery and recycling within the meaning of the Packag- ing Directive.

(a) rendered suitable for use as a feed- stock, or

IV — Order for reference

(b) used by a steelmaker so as to 26. By order of 9 November 2000, the produce ingots, sheets or coils of High Court stayed proceedings and steel? referred the following questions to the Court of Justice for a preliminary ruling:

(2) Have those materials been "recycled" 'Where an undertaking deals with packag- for the purposes of European Parlia- ing materials including ferrous metals, ment and Council Directive 94/62/EC

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28. MPR puts interpretation of the Waste 31. MPR also explains the economic sig- Directive to the fore and argues in sum- nificance of eligibility to issue PRNs, a right mary as follows: it recovers packaging enjoyed by the person who carries out the waste and produces Grade 3B ferrous recycling. Since MPR's processing of the I - 6174

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scrap metal enables it to be used by steel 33. MPR contests, on the other hand, the producers in the same way as a primary approach put forward by the Environment raw material, MPR's Grade 3B material is Agency, according to which recovery is not not waste but a secondary raw material. completed until later, that is to say when The steel producers therefore do not one can no longer tell whether a product recover any waste and if only for that has been made from waste or from primary reason cannot be regarded as recyclers. raw materials. That argument, which is based on the definition of recycling in the Packaging Directive, is not tenable. The Packaging Directive is subordinate to the Waste Directive and cannot define the concept of recovery in a manner that diverges from the Waste Directive.

5 — MPR refers to the Opinions of Advocate General Jacobs in Joined Cases C-304/94, C-330/94, C-342/94 and C-224/95 Tombesi and Others [1997] ECR I-3561, point 56, and Case C-129/96 Inter-Envirotmement Wallonie [1997] ECR I-7411, points 69 and 70, and to the judgment in Joined Cases C-418/97 and C-419/97 ARCO Chemie Nederland 35. MPR suggests the following factors in and Others [2000] ECR I-4475, paragraphs 5 1 , 65 to 7 1 , particular for distinguishing a secondary 73, 88 and 97. 6 — Opinion in Inter-Environnement Wallonie, cited in footnote raw material from waste: the substance's 5, points 26, 2 7 and 60, Opinion in Tombesi, cited in footnote 5, points 50 and 5 1 , and judgment in ARCO suitability for reutilisation with or without Chemie, cited in footnote 5, paragraphs 34, 36, 46 and 47. further pre-treatment, its economic value 7 — Judgment in Inter-Environnement note 5, paragraph 33. Wallonie, cited in foot- and the environmental hazards posed by it. 8 — Opinion in Tombesi, cited in footnote 5, points 53 and 54, In MPR's view, it is for the referring court Opinion in Inter-Environnement Wallonie, cited in footnote 5, point 78, and judgment in ARCO Chemie, cited in to determine the extent to which those footnote 5, paragraphs 93 and 94. criteria are met.

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40. With regard to the first question, the Environment Agency stresses first of all that the Court of Justice should answer the question itself. The assessment as to when waste has been completely recovered can- B — The Environment Agency not be left to the Member States, as MPR submits, since that runs counter to the objective of harmonisation of laws throughout the Community. The concepts of waste and recovery are sufficiently specific to be of direct application without 38. The Environment Agency agrees with being further defined by national law. MPR that the same understanding of the terms 'waste' and 'recovery' underlies both directives. It takes the view, however, in contrast to MPR, that the treatment carried out by MPR does not amount to complete recycling. It is not until the Grade 3B material has been melted down and the steelmaker has produced ingots, sheets or coils of steel that recycling is completed and 41. The Environment Agency also refers to waste ceases to be present. the case-law stating that the concept of

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waste is to be interpreted broadly 9and to 44. The Environment Agency contests the objectives of the Waste Directive, MPR's argument that Grade 3B scrap namely to avoid waste, encourage recovery constitutes a secondary raw material and and prohibit the uncontrolled disposal of has therefore been recycled. Recovery does waste. not always have the aim of extracting secondary raw materials. Nor, under the Court's case-law, does a material cease to be waste by being transformed into a secondary raw material. It suitability for use as a raw material does not preclude its classification as waste.

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47. On the basis of its answer to the first packaging or for other production pur- question, the Environment Agency suggests poses. This requirement is met only by in answer to the second question that the Corus's products, and not MPR's up- packaging waste has been recycled only stream products. In the absence of Com- when ingots, sheets or coils of steel have munity provisions, the mode of proof of been produced. recycling can be laid down by the Member States.

C — Corus UK Limited 51. Income from the issue of PRNs is used by the undertakings carrying out the recyc- ling to expand capacity. This helps to increase the recycling rate for metal pack- aging waste which is still very low. MPR, 48. In Corus's submission, only the second on the other hand, has no corresponding question need be answered. In that con- commercial interest in the recovery of nection, it is for the Member State to select packaging waste as such waste forms only the point at which materials may be a very small part of its throughput. If MPR regarded as completely recycled and decide were entitled to issue PRNs, there would be whether or not they are still waste, in so far a risk that it would process large amounts as the objectives of the Packaging Directive of Grade 3B scrap and then only store it. are thereby observed.

49. The United Kingdom has settled on a correct and perfectly justifiable point in time for completion of recycling by focus- D — The Danish Government ing on the production of ingots, sheets and coils by the steelmaker. Grade 3B scrap, on the other hand, is to be regarded as waste.

53. The scrap metal processed by MPR is waste. The 'reprocessing' referred to in the definition of recycling presupposes an alter- ation in the material's composition which 56. The Netherlands Government states makes it immediately usable again. That with regard to the first question that the precondition is not met until the steelmaker point in time at which material is recycled makes its products. coincides with the point in time at which it ceases to be waste. In Arco Chemie, the Court laid stress on the importance of the idea of discarding to the concept of waste. 16 That concept must be interpreted in a manner consistent with the objectives 54. In Denmark, gathering and sorting are of the Waste Directive and therefore taken to be not recovery but pre-treatment. broadly. Corresponding pre-treatment may or must also take place in some circumstances before waste is disposed of, as shown by, for example, Article 6 of Council Directive 1999/31/EC of 26 April 1999 on the land- fill of waste 13 and Article 6 of Directive 2000/76/EC of the European Parliament 57. Under the Waste Directive, there recyc- and of the Council of 4 December 2000 on ling takes place not only where waste is the incineration of waste. 14 used in a production process but also in the case of recovery with the objective of extracting secondary raw materials. Whether a secondary raw material with the same characteristics as a primary raw material has been created from the waste 55. If not even complete recovery necess- depends on whether the holder of the arily deprives material of its classification material produced discards it.

60. The Netherlands Government submits 62. With regard to the concept of waste, with regard to the second question that the Austrian Government refers to the 'recycling' in the Packaging Directive has a findings of the Court in Arco Chemie. 17 different meaning from 'recycling' in the The point at which recovery is completed is Waste Directive. Waste is not recycled determined by the following criteria: the within the meaning of the Packaging Direc- material is normally used for the purpose in tive until it has been reused in a production question and there is a market for it; process, hence in the present case on the production of ingots, sheets and coils of steel. The objectives of saving energy and 17 — Cited in footnote 5, paragraphs 40, 41 and 97.

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quality criteria exist which take account of might occur in a number of stages. It is its characteristics as waste; it does not give necessary to avoid recovery operations in rise to any higher environmental risk than respect of the same material being taken comparable raw materials. into account more than once for the pur- poses of the recycling rate under Article 6(1)(b) of the Packaging Directive. Recycling is carried out in the present case by the steel producers.

63. The Austrian Government adds in relation to the second question that recyc- ling need not be effected in one step. At every step it must be examined whether there is, or perhaps only appears to be, recovery. 67. MPR's treatment of the waste does not correspond to the definition of recycling in Article 3(7) of the Packaging Directive. Sorting, cleaning, crushing and baling do not constitute production processes.

70. It contests the interpretation put for- ward by MPR under which the Packaging 73. It is apparent from Annex IIB to the and Waste Directives are read as one. The Waste Directive that waste can pass Waste Directive does not establish any through several recovery steps. Metallic definitions which are to apply to all other waste could for example be stored first of legislation in this field; on the contrary, the all (R 12) and the metal could later be definitions in Article 1 of the Waste Direc- reclaimed (R 3). Recycling, on the other tive are expressly stated to be for the hand, is possible only once, for the reasons purposes of that directive. stated. Only such operations listed in Annex IIB to the Waste Directive as con- stitute recycling can be applicable oper- ations within the meaning of Article 3(6) of the Packaging Directive.

71. When the Community legislature wishes to use in other legal measures the same definitions as in the Waste Directive, it does so by express reference. The Packag- ing Directive contains some such refer- ences; as for the remainder, the terms used 74. The Packaging Directive contains inde- in it are to be interpreted autonomously. pendent definitions of the terms 'recycling', 'energy recovery' and 'organic recycling' (Article 3(7), (8) and (9)). Other forms of recovery are not mentioned. Only the types of recovery expressly mentioned are appli- cable operations under the Packaging Directive. Of those, only recycling is appli- cable to metals.

72. Article 2(2) of the Waste Directive expressly envisages the adoption of special 18 — The language versions diverge. While the German version and some others, for example the Spanish version, refer rules, such as the Packaging Directive. The generally to the operations provided for in Annex IIB to the Waste Directive ('die Maßnahmen', 'cualquiera de las Packaging Directive contains independent operaciones'), other language versions have a restriction definitions of the terms 'recycling' and added (for example 'applicable operations', 'opérations applicables', 'pertinenti operazioni', 'toepasselijke handel- 'recovery'. Article 3(6), which defines 're- ingen').

79. The United Kingdom Government con- cludes from all the foregoing considerations that it is inappropriate to read the two directives together in the absence of appro- 76. In order to ensure that the recovery of priate references in the Packaging Direc- packaging waste is recorded in accordance tive. with uniform standards throughout the Community, it is necessary to have a clearly definable criterion determining when material is completely recovered. To that extent the Member States are left with no 80. The United Kingdom Government discretion. The most suitable point in time makes further observations on the first is when the scrap metal is melted down question in the alternative only. Unlike again. the Packaging Directive, the Waste Direc- tive allows the Member States a margin of appreciation in determining what consti- tutes a recovery operation. 19 It cannot be concluded from the fact that material has been recovered within the meaning of the Waste Directive that it has undergone an applicable recovery operation under the Packaging Directive. 77. The Packaging Directive has the objec- tive of actual reprocessing. As long as packaging waste has only been prepared for reprocessing, actual use, namely the melting down, is not ensured. 81. The Court has confirmed that the concept of recovery under the Waste Direc- tive needs to be defined more precisely by national implementing legislation. 20 The Packaging Directive, on the other hand, allows only three types of recovery (recyc- ling, energy recovery and organic recycling) 78. A substance is to be regarded as recycled packaging material for the pur- 19 — The United Kingdom Government refers to the Opinion in poses of Article 6(1)(b) of the Packaging Tombesi cited in footnote 5, point 56. Directive if two conditions are met: the 20 — Judgments in Inter-Environnement Wallonie, cited in footnote 5, paragraph 33, and in ARCO Chemie, cited packaging material must have been packag- in footnote 5, paragraph 70.

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and between the terms 'waste', 'recovery' 91. Above all, what is actually waste was and 'recycling' used in them. not laid down precisely. It is true that the Waste Directive was substantially reformu- lated in 1991. 21 However, the definition of waste remained almost unchanged. The definition has time and again confronted the Court with difficult questions of inter- 88. A majority is of the opinion that the pretation, to which it has not always been directives are to be read together and that possible to find satisfactory answers. the respective terms have the same meaning in each. Most of the proponents of this view therefore consider it necessary to answer both questions referred for a pre- liminary ruling. Since, in their submission, the same understanding of the relevant terms underlies both directives, the answers proposed by them to both questions cor- respond. With the exception of MPR, they consider that MPR's activity constitutes not 92. In 1991 Article 2(2) was also intro- complete recycling but pre-treatment or duced, which expressly envisages the laying some other recovery operation and that the down in further directives of specific rules Grade 3B scrap produced is waste. MPR concerning particular instances, or of arrives at the opposite result. supplementary rules, for the management of individual categories of waste. The Packaging Directive constitutes such special supplementary legislation.

94. There is accordingly no order of Directive and of recovery in Article 3(6). precedence as between the provisions of On the other hand, recycling is defined in the two directives in the sense of the Waste Article 3(7) without any reference to the Directive ranking above the Packaging Waste Directive. Directive. On the contrary, they are equal- ranking measures of secondary legislation which are directly founded on the Treaty. At the same time the Packaging Directive forms a special legislative measure for the category of waste covered by it which overrides the Waste Directive if their provisions conflict. 97. Second, packaging waste is simulta- neously waste within the meaning of the Waste Directive, as is in any event clear from the definition in Article 3(2) of the Packaging Directive. In so far as the Packaging Directive contains no divergent provisions, all other relevant waste-law provisions therefore also apply to packag- ing waste. The Community did not wish, by the Packaging Directive, to establish a 95. That of course does not mean that the self-contained set of rules for packaging Waste Directive is irrelevant to the hand- waste and to take this category of waste ling of packaging waste. First, the Packag- outside the scope of other provisions of ing Directive refers on numerous occasions waste law. to the Waste Directive. Through reference to them, definitions in the Waste Directive are also applicable to the matters covered by the Packaging Directive. In that way, account is taken of the objective, set out in the third recital in the preamble of Direc- tive 91/156 amending the Waste Direc- tive, 22 of having a basis of common 98. Thus, the Packaging Directive contains terminology for Community waste law. detailed provisions on the recovery of packaging waste but not, for example, on its disposal or its transfrontier shipment. Articles 4 and 5 of the Waste Directive and Regulation No 259/93 are consequently also to be observed when handling packag- ing waste.

102. The relationship between classifi- cation as waste and the carrying out of a recycling operation is of crucial importance for deciding the case. It is not in dispute that the material which MPR processes is packaging waste. If the material were to cease to be packaging waste as a result of the recycling, that would turn exclusively on the interpretation of the Packaging Directive, which constitutes special legis- lation for the recycling of packaging waste. 100. Both directives thus essentially pursue the same objectives, namely, first, the prevention and reduction of waste produc- tion 24 and, second, the recovery of waste instead of its disposal. 25 This ultimately assists in the prudent and rational utili- 103. In the view of the Court, a complete sation of natural resources, as required by recovery operation under Annex IIB does the third indent of Article 174(1) EC. not necessarily deprive a substance of its classification as waste. 26 Rather, that fact is only one of the factors to be taken into consideration for the purpose of determin- ing whether the substance constitutes waste. However, this finding cannot auto- matically be applied to the case of recyc- ling.

101. Of course, the Packaging Directive goes further than the Waste Directive in so 104. It is true that, theoretically, it cannot far as it sets quantitative objectives for the be ruled out that a substance obtained by a proportion of packaging waste that is to be recycling operation also constitutes waste. recovered and recycled. If, for instance, there were no demand for the recycled material in the foreseeable future and the storage costs exceeded the 23 — See the seventh recital in the preamble to the Packaging proceeds which might be obtained later, it Directive. 24 — See in particular Article 3(1)(a) of the Waste Directive and Article 1(2) of the Packaging Directive. 25 — See in particular Article 3(1)(b) of the Waste Directive and 26 — Judgment in ARCO Chemie, cited in footnote 5, para- Article 1(2) of the Packaging Directive. graphs 94 and 95.

would be conceivable that the recycling the Packaging Directive is special legis- undertaking would wish to discard its lation vis-à-vis the Waste Directive. Regard products. In practice, however, it would would not be had to that relationship if the probably be extremely rare for a holder of question whether recycling has been carried material recycled at considerable expense out were determined on the basis of to intend to discard it again. whether or not a material is waste. On the view put forward in this Opinion as to the relationship between the two directives, it must, quite to the contrary, be examined first and foremost whether a recycling operation has been carried out. If that is the case, it is to be concluded as a rule that 105. It would also be inconsistent with the the recovered material has ceased to be spirit and purpose of the Packaging Direc- waste. tive to accept that recycled packaging waste is still waste. The central concern of the Packaging Directive is the attainment of quantitative recovery objectives. If packag- ing waste did not as a rule cease to be waste upon being recycled, it could undergo a recovery operation again. The same 108. In this connection, it should be material would then be recovered twice remembered that, in accordance with and double counted with regard to achiev- settled case-law, the question whether a ement of the recovery rate. substance is waste cannot be answered on the basis of certain characteristics of the substance itself, but that the crucial factor is the conduct of the holder of the waste, that is to say whether or not he intends to discard the substance. 27 The Court has thus refused to make classification of a 106. A majority of the parties submit that material as waste dependent on its econ- the two directives should be read 'together' omic value, its fitness for reuse 28 or the and also consider that waste ceases to be environmental hazards posed by it. 29 waste after recycling has been carried out. Proceeding on that basis, MPR in particular judges the recovery operation carried out on the basis of whether the processed material continues or ceases to be waste. The definition of recycling is thus deter- mined by the recycling's outcome. 109. The holder's conduct can be appraised only with regard to his intentions, a fact

which causes the body applying the law ations and the treatment of other prod- considerable difficulties. The Court solves ucts. 3 1 this problem by inferring an intention to discard the substance from objective indi- cators; in so doing it has regard both to all the factual circumstances and to the aim of the Waste Directive. 30 112. However, those findings do not pre- clude the approach put forward here. In contrast to the position in the judgments cited, the material to be recovered was (at any rate originally) packaging waste. The issue is solely that of determining whether it is still waste. Classification of the oper- 110. In determining whether Grade 3B ations which have already been carried out scrap is to be classified as waste, all or are still to be carried out has, in this case, circumstances which suggest the discarding a significance different from that in cases of a substance, or no such discarding, where it is first to be established whether would accordingly be relevant. In this the material to be dealt with is waste at all. context, a crucial factor is whether the material has already undergone recycling. If it has not, a further indicator can be whether it is to be subjected to such a recovery process. Assessment of the pro- cesses carried out by MPR or the steel 113. Moreover, it is to be inferred that producers in the light of Article 3(7) of the material is waste from the carrying out not Packaging Directive is thus an issue pre- of a recovery operation under Annex IIB to liminary to the classification of Grade 3B the Waste Directive but of a recycling scrap as waste and not vice-versa. operation, which is more precisely defined in Article 3(7) of the Packaging Directive than the operations in Annex IIB.

117. Article 3(7) of the Packaging Directive defines recycling for the purposes of that C — The order in which the two questions directive. This provision forms the basis for referred for a preliminary ruling should be answering the second question submitted dealt with for a preliminary ruling. It would appear that hitherto the Court has not adopted a view on the concept of recycling. Before interpreting the provision on the basis of its wording, brief consideration must be given to the Community law context, the mean- 115. It follows from the observations set ing of the term 'recycling' in the light of the out in A and B above that the question as to objectives of the Packaging Directive and which operation constitutes complete the evolution of that concept in the legis- recycling of steel from packaging waste lative process which led to the adoption of does not turn on whether the materials the Packaging Directive. arising from the process in question are still to be classified as waste within the meaning of the Waste Directive. On the contrary, the very characterisation of the operation carried out determines whether they cease to be waste.

(1) Preliminary remarks

116. It therefore appears unnecessary, hav- ing regard to the questions of law to be (a) Recycling in Community law decided in the main proceedings, to answer the first question submitted for a prelimi-

32 — See the judgment in Palm Granit, cited in footnote 27, 118. The Packaging Directive contains the paragraph 25. first detailed definition of the concept of I - 6190

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33 _ OJ 1985 L 176, p. 18. 35 — OJ 1975 L 194, p. 23. 34 — See Article 23 of the Packaging Directive. 36 — See in particular Article2(7)of Directive 2000/53.

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providing a high level of protection, and, 126. It is to be ensured in particular that on the other hand, to ensure the function- used packaging does not pose an environ- ing of the internal market. 3 7 mental hazard and that — in so far as it cannot be reused — it is where possible recovered, avoiding disposal. 39

127. Of the various forms of recovery, recycling is the one to be preferred. 40 It (i) High level of environmental protection contributes to environmental protection by conserving energy and primary raw materials and reducing the amount of waste for ultimate disposal. 41

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129. Even if, taking all factors into (c) Evolution of the concept of recycling in account, recycling can lead to savings in the legislative process the national economy, 42 it represents a cost factor for the undertakings which must pay for recycling the packaging placed into circulation by them. Ultimately that expen- diture makes their products more expensive and thus affects their prospects on the market. 132. The definition of recycling in the Commission proposal 43 differs from the version in force (see point 7 above), stating:

130. The Community has to some extent accepted unequal burdens on industry in the Member States by not laying down a specific minimum recovery rate but allow- '"recycling" means the recovery of the ing a spread of rates. Greater imbalances waste materials for the original purpose could result if the Member States take as a or for other purposes excluding energy basis concepts of recycling which differ recovery; recycling means also regeneration substantially from one another and the and composting'. costs of meeting the recovery rates con- sequently differ.

134. A version corresponding in essence to United Kingdom, with a recycling share of the current formulation first appears in 30% by weight, occupied a place nearer the Common Position (EC) 13/94 of the Coun- bottom of the list of Member States; in the cil of 4 March 1994. 44 No reason is given case of steel, the recycling rate reached an for the amendment. Nor does it appear to average of 26% by weight. 46 be commented on by either the Commis- sion or the Parliament in the subsequent procedure. It can merely be stated that the definition ultimately adopted describes the process of recycling more precisely and thus enables a clearer line to be drawn between recycling and other recovery operations, a fact which has significance with regard to 137. In the meantime the Commission has the recovery rates in Article 6(1). submitted a proposal to amend the Packag- ing Directive. 47 The proposal envisages a significant increase in the recovery rates (between 60% and 75% by weight for recovery and between 55% and 70% by weight for recycling). Furthermore, the Commission follows a new approach of introducing separate rates for the recycling of various materials. Thus, the recycling (d) Subsequent evolution rate for metals should reach 50% by weight in the future.

139. The definition of recycling in Article 3(7) of the Packaging Directive contains three elements of relevance here: recycling is undergone by 'waste materials' (a); the waste materials are reprocessed for the original or another purpose (b); and the reprocessing occurs in a production process (c). The inclusion of organic recycling and 142. This must be prefaced by the obser- exclusion of energy recovery are irrelevant vation that some language versions of the to the present case. Packaging Directive simply use the term corresponding to 'waste' in Article 3(7) too (as the French, Spanish, Portuguese and Finnish versions do). The majority of the language versions, on the other hand, parallel the English version where 'waste materials' appears (as the German, Danish, Swedish, Dutch and Italian versions do). It (a) Waste materials therefore cannot be ruled out that use of the term 'waste materials' was intended to indicate that not only waste may undergo recycling.

140. MPR submits that the steel producers do not carry out any recycling if only because the starting material supplied by MPR, Grade 3B scrap, is already no longer waste.

143. A factor running counter to that interpretation is the function, already set out, of the definition of recycling in relation 141. In the definition of recycling, how- to achievement of the recovery targets. If ever, the term used is not 'waste' but 'waste material which derives from waste but is no materials' which is not to be found any- longer waste could still be subjected to a where else in the Packaging Directive, or in recycling operation, there would be the risk the Waste Directive. It could be concluded that material which has already been from this choice of words that the materials recycled once would undergo recycling which can undergo recycling derive from once again. That could result in the same (packaging) waste but at the time of material being counted more than once recycling do not necessarily still have to when calculating the recovery rate.

145. One might, however, wonder whether materials which are subjected to recycling can be waste at all. Since recycling is described as use in a production process, it might be supposed that the element of discarding which is central to the definition of waste is missing. 148. Starting out from that idea, the term 'waste materials' makes it clear that the various materials or substances joined together as packaging must be dealt with separately with regard to their recycling. Glass, metal, plastic, paper and so forth can be used only in specific production pro- cesses applicable to the material in ques- tion. That differentiates recycling, includ- ing organic recycling, from energy recovery, for which mixtures of substances 146. That proposition is opposed, how- can also be used. ever, by the fact that all recovery consti- tutes a beneficial use of waste but the materials to be recovered do not cease to be waste for that reason. On the contrary, in accordance with the Court's case-law dis- carding of material takes place precisely when it is recovered or disposed of. 48 Since recycling is to be regarded as a special form 149. It must therefore be concluded that it of recovery, 49 material which is to be was not intended, by employing the term 'waste materials', to indicate that sub- stances which undergo recycling no longer 48 — Judgment in ARCO Chemie, cited in footnote 5, para have to be waste. Rather, that term merely graph 47. 49 — See the 11th recital in the preamble to the Packaging takes account of the fact that the materials Directive. must be recovered separately. I - 6196

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156. It cannot be reconverted into iron ore. operations cannot amount to 'another pur- Even if it is assumed that Grade 3B scrap pose' within the meaning of Article 3(7) of has already been used in producing the the Packaging Directive. packaging, MPR does not return the material to an identical state. Grade 3B scrap is a mixture containing, in addition to steel, a certain amount of foreign sub- stances. The previously processed Grade 3B scrap and the Grade 3B scrap obtained by MPR from packaging waste do not have 159. As is apparent from the order for the same composition. Rather, the material reference, Grade 3B scrap contains impur- does not reattain a previous state until it is ities which must be removed before the pure steel again. steel is reused. Those foreign substances are not separated from the steel by means of physical or chemical processes until the melting-down stage when they are removed with the slag which forms a sediment on the liquid metal or vaporise.

162. First, it is, however, not entirely clear whether the phrase 'with a view to extrac- ting secondary raw materials' refers to the word 'recycling' or only to the final matter 165. This interpretation also accords with listed, namely 'any other process'. As the the objectives of the Packaging Directive, in Environment Agency correctly points out, accordance with which recycling is to result on 'reclamation' at any rate, which is also in the saving of primary raw materials. included in the list, no secondary raw Primary raw materials are not saved until material is extracted. steel is obtained from Grade 3B scrap instead of from iron ore.

163. Nor is the term 'recycling' included in 166. Moreover, a narrow interpretation is Article 1 of the Waste Directive where any required in order that the packaging waste other definitions applying to the Waste processed by MPR does not cease to be Directive are set out. It is therefore ques- waste at a time when it still needs to be tionable whether the term 'recycling' controlled as waste. It is apparent from the should be defined at all at this point in order for reference that, even after process- the directive. ing by MPR, the material contains impur- ities which call for special storage pre- cautions, as in the case of waste, in order to avoid soil contamination. In addition, on the subsequent processing of the material the steel producers are subject to Integrated Pollution Control.

164. Secondly, regard is to be had to the relationship between the two directives. On the interpretation of the Packaging Direc- tive put forward in this Opinion, when a secondary raw material is produced recyc- ling within the meaning of the directive has 167. MPR's treatment of packaging waste not yet taken place. That is at any rate the is thus not recycling within the meaning of I - 6199

50 — Judgment in ARCO Chemie, cited in footnote 5, para- graphs 94 and 95. 51 — See the judgment in ARCO Chemie, cited in footnote 5, paragraph 96; as to grinding, see the judgment in Tombesi, cited in footnote 5, paragraph 53. 170. It is, however, to be remembered that 52 — Judgments in Vessoso and Zanetti, cited in footnote 28. paragraphs 12 and 13, in Tombesi, cited in footnote 5, the Court has held that the carrying out of paragraph 54, and in Inter-Environnement Wallonie, cited a complete recovery operation under in footnote 5, paragraph 31. 53 — Judgment in Patin Granit, cited in footnote 27, paragraph Annex IIB does not necessarily deprive a 37.

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173. In the present case, the precise likeli- is thus again brought to a state in which it hood that the Grade 3B material will be was before the packaging was produced. further processed by the steel producers The ingots, sheets or coils of steel can be immediately after being treated by MPR is used to produce packaging again or other unknown. There are, however, some indi- products. cations that the Grade 3B scrap is used in the steelworks at once.

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is to be determined exclusively on the basis 182. Nevertheless, the Court has held that of the Packaging Directive. it has no jurisdiction to give a preliminary ruling on a question submitted by a national court where it is quite obvious that the interpretation of Community law, or the decision as to validity of Community law, sought by that court bears no relation to the actual facts of the main action or its 179. The question whether and when it purpose or where the problem is hypo­ ceases to be waste is relevant in relation to thetical. 5 7 recycling only in so far as waste materials form the starting material for recycling. In the absence of recycling by MPR, Grade 3B scrap has — as set out — not ceased to be waste and can be recycled by the steel producers.

183. The parties to the proceedings before 180. The first question might, however, the High Court are in dispute as to the also be understood as meaning that the entitlement to issue PRNs in respect of the High Court wishes to ascertain when other recycling of packaging waste. The order for materials not covered by the Packaging reference provides no indication at all that Directive are to be regarded as recycled. the question of when waste other than packaging waste has been recycled is rel­ evant to the decision in the case pending before the High Court.

181. In accordance with settled case-law, it is first of all solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to deter­ mine in the light of the particular circum­ stances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court of 184. Accordingly, the question should not Justice. 56 be answered.

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