C-458/00

COMMISSION v LUXEMBOURG

OPINION OF ADVOCATE GENERAL JACOBS delivered on 26 September 2002 1

1. In this action brought under Article 226 posal of waste and operations for its EC, the Commission claims that objections recovery, and in particular on the question raised by the Grand Duchy of Luxembourg whether the incineration of municipal against certain shipments of waste to other waste at an incineration plant in which Member States to be used principally as most or all of the heat generated is used as fuel were unjustified and contrary to the energy is correctly to be classified as a wording of Article 7(2) and (4) of Council disposal operation or a recovery operation. 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 Regu- lation') 2and Article 1(f) read in conjunc- tion with head R1 of Annex IIB to Council Directive 75/442/EEC of 15 July 1975 on waste ('the Directive' or 'the Waste Direc- tive'). 3The Commission accordingly seeks a declaration that Luxembourg has failed The relevant Community legislation to fulfil its obligations under Articles 2, 6 and 7 of the Regulation and Article 1(f) read in conjunction with head R1 of Annex IIB to the Directive.

The Directive

3. Article 3(1) of the Directive requires Member States to take appropriate meas- 2. The case essentially turns on the dis- ures to encourage '(a) firstly, the prevention tinction between operations for the dis- or reduction of waste production and its harmfulness' and '(b) secondly: (i) the recovery of waste by means of recycling, 1 — Original language: English. re-use or reclamation or any other process 2 — OJ 1993 L 30, p. 1. 3 — OJ 1975 L 194, p. 39, as amended by Council Directive with a view to extracting secondary raw 91/156/EEC of 18 March 1991, OJ 1991 L 78, p. 32, and by materials, or (ii) the use of waste as a Council Directive 91/692/EEC of 23 December 1991, OJ 1991 L 377, p. 48. source of energy'.

5. The Directive defines 'disposal' as 'any of the operations provided for in Annex IIA' 4 and 'recovery' as 'any of the 9. The Regulation is based on Article 130s operations provided for in Annex IIB'. 5 of the EC Treaty (now, after amendment,

6 — As adapted by Commission Decision 96/350/EC of 24 May 4 — Article 1(e). 1996 adapting Annexes IIA and IIB to Council Directive 5 — Article 1(f). 75/442/EEC on waste, OJ 1996 L 135, p. 32.

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COMMISSION v LUXEMBOURG

Article 175 EC). Its aim is to provide a as particularly hazardous. Shipments of harmonised set of procedures whereby waste shown in Annex II for recovery are movements of waste can be limited in order simply to be accompanied by a document to secure protection of the environment. 7 containing prescribed information. 11 Ship- ments of other waste (including the waste the shipment of which gave rise to the present proceedings) for recovery and ship- ments of waste for disposal are subject to the following procedure. 10. Title II of the Regulation is entitled 'Shipments of waste between Member States'. Chapters A and B of Title II lay down the procedures to be followed for the shipment of waste for disposal and of waste for recovery respectively.

13. Where the producer or holder of waste, generally referred to as the notifier, 12 intends to ship such waste from one Member State to another, he must notify 11. The Regulation adopts the definitions the competent authority of destination and of 'disposal' and 'recovery' used in the send a copy of the notification to the Directive. 8 competent authority of dispatch 13 and to the consignee. 14

15. In the case of shipments of waste for recovery, the consignment note must also 18. In the case of waste for disposal, the include details of (i) the planned method of objections must be based on Article 4(3). 24 disposal for the residual waste after recyc- Under that article, in particular, (i) ling has taken place; (ii) the amount of the Member States may prohibit generally or recycled material in relation to the residual partially or object systematically to ship- waste and (iii) the estimated value of the ments of waste in order to implement the recycled material. 18 principles of proximity, priority for recovery and self-sufficiency at Community and national levels in accordance with the Directive 25 and (ii) the competent auth- orities of dispatch and destination may raise reasoned objections to planned ship- ments if they are not in accordance with the Directive in order to implement the prin- 16. In the case of waste for disposal, the ciple of self-sufficiency at Community and Member State of destination is responsible national levels. 26 for granting authorisation for shipment. The Member State of dispatch 19 has the right to raise objections and the Member State of destination may issue the auth- orisation only in the absence of any such objections. 20 In the case of waste for recovery, the Member States of dispatch and destination 21 have the right to object to a shipment but, as a general rule, 22 no 19. In the case of waste for recovery, the express authorisation is required. 23 objections are to be based on Article 7(4). 27 Article 7(4)(a) 28 lists five grounds on which the competent authorities of destination 17 — Articles 3(5) and 6(5), first and fifth indents. 18 — Article 6(5), sixth, seventh and eighth indents. 19 — And, if relevant, of transit. 24 — Article 4(2)(c). 20 — Articles 4(1) and 4(2). 2 5 — A r t i c l e 4(3)(a)(i). 21 — And, if relevant, of transit. 26 — Article 4(3)(b)(i). 22 — Where the waste is listed in Annex IV or has not been 27 — Article 7(2). assigned to Annex II, III or IV, the competent authorities 28 — Article 7(4)(b) concerns the objections which may be concerned must give their consent in writing (Article 10). raised by the competent authorities of transit, not relevant 23 — Article 7(1) and (2). to the present case.

24. In early 1998 the undertaking NTMR (Négoce de tous matériaux réutilisables) submitted two notifications to the compet- 22. Second, the Court ruled in ASA 30 that ent Luxembourg authority seeking auth- the essential characteristic of a waste orisation to ship household and similar recovery operation is that its principal waste coming under position AD 160, 'Mu- objective is that the waste serve a useful nicipal/household wastes', of Annex III purpose in replacing other materials which (amber list) to the Regulation. It appears that NTMR's notifications indicated that the shipment was of waste for recovery to 29 — Case C-203/96 [1998] ECR I-4075, paragraphs 33 and 34 of the judgment. be processed at the incinerator of the 30 — Case C-6/00, paragraph 69 of the judgment delivered on 27 February 2002. It may be noted that the judgment was delivered after the pleadings in the present case had been lodged. 31 — Cited in note 30, paragraph 36 of the judgment.

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municipality of Strasbourg. According to sent it a formal notice which was not the Commission (which has not been answered. The Commission accordingly contradicted on this point), it appears from issued a reasoned opinion. In its reply a letter from the Prefect of the Bas-Rhin 32 Luxembourg maintained in essence that dated 3 July 1998 that incineration at that the fact that energy generated by a waste plant enables all the energy generated processing operation may be recovered thereby to be recovered. does not preclude classification of that operation as a disposal operation under head DIO of Annex IIA to the Directive, that it had re-classified the operation with the agreement of the French authorities, that Articles 3 and 4 rather than Articles 6 and 7 of the Regulation were therefore applicable and that Luxembourg had accordingly not infringed the legislation.

30. The Commission is seeking a declar- ation process generates more energy, or ation that Luxembourg has failed to fulfil heat transformed into energy, than the its obligations under Articles 2, 6 and 7 of energy or heat which would have been Regulation No 259/93 and Article 1(f) read generated from combustion of the gas in conjunction with head R1 of Annex IIB injected into the furnace in order to incin- to Directive 75/442. The alleged infringe- erate the waste — in other words, is there ment consisted in Luxembourg's raising a net production of energy? — and, sec- unjustified objections against certain ship- ond, whether the plant is able to reclaim or ments of waste to other Member States to recover a substantial proportion of the be used principally as fuel. At issue there- energy contained in the incinerated waste. fore is the correct classification in accord- ance with the Directive — and hence also the Regulation — of the incineration of household waste in an incineration plant which uses most or all of the energy thereby generated. Is it necessarily a recovery oper- ation, as the Commission maintains, in which case the objections, essentially on the ground of self-sufficiency in the disposal of 33. Luxembourg considers that the Com- waste, raised by Luxembourg cannot be mission's position in effect bases the dis- justified and the infringement is made out, tinction between disposal and recovery on or is it, as Luxembourg maintains, a the energy potential of the waste in ques- disposal operation, in which case the tion. The definition of recovery operation objections may be justified on the basis of R1 ('Use principally as a fuel') however is that principle? based on the criterion of use and hence of the objective of the operation, and not the quality or composition of the waste. Lux- embourg submits that the correct criterion is the objective of the incineration plant: if its principal objective is the generation of energy, the incineration is a recovery oper- 31. The Commission's principal sub- ation; if however its objective is the thermal mission is drawn from the wording of processing of waste, whether or not there is Annex IIB. accessory reclamation of energy, the incin- eration is a disposal operation.

35. The Commission considers that the principles there laid down are wholly applicable to the present case with the 39. As Luxembourg argues, the criterion of result that the operation should be classi- use requires interpretation in the light of fied as a recovery operation. It follows the objective of the operation. That con- from that judgment that the objective of the clusion follows clearly, in my view, from operation determines its classification. Lux- the natural meaning of the term 'use', and embourg, however, focuses on the objective perhaps in particular the concept of 'use of the incineration plant. The Commission principally as' something. It may be noted submits that the correct criterion is whether that that construction — or the analogous the energy generated by the incineration is 'principal use as' — is reflected in all the in fact reclaimed, thereby serving a useful language versions of the Directive. purpose.

to the Directive, an operation must consist less be carried out using some other in the use of waste principally as a fuel or material? 38 In the case of waste being the use of waste principally as another incinerated in a plant developed for that means to generate energy. purpose, the answer to that question is clearly 'no': in the absence of available waste, there would be no incineration. In those circumstances it would not be right to describe the operation as recovery simply because, whenever waste is available and incinerated, the heat generated by the incineration is used, wholly or partly, as a means to generate energy. That fact does not of itself make the principal objective of 41. On the basis of the wording of the the incineration the use of the waste as a legislation, therefore, an incineration oper- fuel or other means to generate energy. ation will not fall within the description in head R1 unless its objective is the use of waste principally as a fuel or the use of waste principally as another means to generate energy. If that condition is not satisfied, the operation will be incineration on land under head DIO of Annex IIA to 43. The notion of the 'principal objective' the Directive. 36 can thus be regarded as a criterion of general application, of which heads DIO and R1 are specific applications.

conceded that an operation is not recovery plant. Although I do not consider that if that quantity is 'ridiculously small'. It payment by the holder of the waste is appears however from information pro- necessarily conclusive evidence that a given vided to the Court that the incineration of operation is disposal rather than recovery, urban waste with energy recovery is the it will normally none the less be a signifi- principal method of disposing of such cant factor. 42 waste in many Member States; classifying all such operations as recovery simply on the basis of that energy recuperation would in effect mean that such waste could be shipped within the Community with little restriction, which would run counter to the Regulation's objective of providing a har- monised set of procedures whereby move- ments of waste can be limited in order to 46. The approach I propose — namely secure protection of the environment. 39 In that a given incineration operation will that context it may also be noted that the constitute disposal if that is its principal Council in its Resolution of 24 February objective, notwithstanding that there may 1997 on a Community strategy for waste be incidental energy recovery — to my management 4 0 'notes and shares the con- mind achieves the correct balance between cerns of Member States at the large-scale the principle of the free movement of goods movements within the Community of waste and that of the protection of the environ- for incineration with or without energy ment. It is clearly desirable on environ- recovery'. 41 mental grounds to limit large-scale ship- ments of household waste for incineration; if, however, incineration of such waste were classified as recovery simply on the basis that the resulting energy could be used, transport of such waste — possibly over significant distances — would be encouraged.

Conclusion

48. I am accordingly of the opinion that the Court should:

(1) dismiss the Commission's application;

(2) order the Commission to pay the costs.

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