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OPINION OF ADVOCATE GENERAL JACOBS delivered on 10 April 2003 1

1. In this case the Korkein hallinto-oikeus excluded from the scope of the Directive (Supreme Administrative Court, Finland) where it is 'already covered by other legis- has asked the Court for guidance as to the lation'. The referring court asks in par- criteria which are relevant for determining ticular whether 'other legislation' includes whether in a series of defined circumstances national legislation, and, if so, whether leftover rock resulting from the extraction such legislation must (i) already have been of ore and/or ore-dressing 2sand resulting in force when the Directive entered into from the dressing of ore in mining oper- force and/or (ii) comply with any substan- ations is to be regarded as waste within the tive requirements concerning the level of meaning of Directive 75/442 on waste as environmental protection. amended 3 ('the Waste Directive' or 'the Directive').

6. Article 1(c) defines 'holder' as 'the pro- (iii) animal carcases and the following ducer of the waste or the natural or legal agricultural waste: faecal matter person who is in possession of it'. and other natural, non-dangerous substances used in farming;

7. Article 2 provides: (iv) waste waters, with the exception of waste in liquid form;

' 1 . The following shall be excluded from the scope of this Directive: (v) decommissioned explosives.

(a) gaseous effluents emitted into the 2. Specific rules for particular instances or atmosphere; supplementing those of this Directive on the management of particular categories of waste may be laid down by means of 5 — Cited in note 3. individual Directives.'

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resulting from the separation and process- The main proceedings and the questions ing of raw materials, such as residues of referred mining operations. The final category, cat- egory Q16, reads as follows: 'Other materials, substances or products which their holder has discarded or intends or is obliged to discard'. 15. Under Finnish legislation an environ- mental licence is required for certain pro- jects. AvestaPolarit Chrome Oy (formerly Outokumpu Chrome Oy), a Finnish com- pany, applied in 1996 to Lapin ympäristö- keskus (Lapland Environment Centre, here- inafter 'the Ympäristökeskus') for an envi- ronmental licence to continue mining and ore-dressing operations on the site of Kemi mine. Such operations had then been car- ried on in that mine for about 30 years.

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mining concession's ancillary sites, the from the licence decision of inter alia all the definitive landscaping of which will be conditions concerning leftover rock and decided when the mining concession is ore-dressing sand in which those by-prod- terminated. ucts of mining operations were defined as waste. It argued that those conditions had no legal basis and that on a number of grounds the leftover rock and ore-dressing sand did not constitute waste. Those grounds are apparent from the questions referred, which are set out below. 11 18. About 100 million tonnes of leftover rock is stored on the mine's tipping areas. The mine has an annually revised tipping plan for leftover rock, which provides for the fact that leftover rock will be needed after approximately 70 to 100 years for filling in the underground parts of the mine; before the end of that period stacks 21. The question before the Korkein hal- of leftover rock will, however, be land- linto-oikeus was accordingly whether the scaped. Part of the stacks of leftover rock leftover rock and ore-dressing sand were to may remain on the site permanently. Only be regarded as waste within the meaning of a small part of the leftover rock, perhaps the Jätelaki, which uses the same definition about 20%, is usable as raw material for of waste as the Waste Directive which it aggregates. The stacks of leftover rock implements. already stored cannot be used for produc- ing aggregates, but they may possibly be used as filling material in breakwaters and embankments.

25. The Korkein hallinto-oikeus accord- ingly decided to stay the proceedings and seek a preliminary ruling from the Court of Justice of the European Communities on 23. The Korkein hallinto-oikeus noted that the following questions: the language versions of Article 2(1)(b) were not consistent in that the Finnish version contained no temporal qualifi- cation whereas the other language versions available to that court included the word 'already' or an equivalent expression. Even if it were assumed that the Finnish version '(1) Are leftover rock resulting from the was erroneous, it would still be debatable extraction of ore and/or ore-dressing whether Article 2(1 )(b) referred only to sand resulting from the dressing of ore national legislation which was in force at in mining operations to be regarded as the time of entry into force of the Direc- w a s t e w i t h i n the m e a n i n g of tive. 12 The point is relevant to the present Article 1(a) of Council Directive case because, of the provisions of national 75/442/EEC of 15 July 1975 on waste, legislation relied on by AvestaPolarit, Sec- as amended by Council Directive tion 40(2) of the Kaivoslaki was enacted on 91/156/EEC of 18 March 1991, having 17 February 1995 and Section 1(1)(2) of regard to points (a) to (d) below? the Jäteasetus on 4 April 1997.

(a) What relevance, in deciding the above question, does it have that the leftover rock and ore-dressing sand is stored on the area of the 24. Finally, if Article 2(1)(b) of the Direc- mining concession or its ancillary tive refers to national legislation, the ques- site? Is it relevant generally, with tion arises whether fundamental European respect to falling within the defini- Community provisions relating to protec- tion of waste, whether the said tion of the environment or possibly the by-products of mining operations are stored on the area of the mining concession, its ancillary site 12 — The amending directive was adopted on 18 March 1991 and required implementation by 1 April 1993. or further away?

(a) Does "other legislation" within the meaning of Article 2(1)(b) of the Waste Directive (91/156/EEC), (d) What relevance does it have, in waste covered by which is assessing the matter, that leftover excluded from the scope of the rock and ore-dressing sand are not directive, and which under point intended to be discarded? Leftover (ii) concerns inter alia waste result- rock and ore-dressing sand may be ing from prospecting, extraction, re-used without special processing treatment and storage of mineral measures, for example for suppor- resources, mean exclusively the ting mine galleries, and leftover European Community's own legis- rock also for landscaping the mine lation? Or may national legislation after it has ceased operation. Min- too, such as certain provisions of erals may in future with the deve- the Kaivoslaki and the Jäteasetus in l o p m e n t of t e c h n o l o g y be force in Finland, be "other legis- recovered from ore-dressing sand lation" within the meaning of the for utilisation. To what extent Waste Directive?

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(b) If "other legislation" means also for determining whether leftover rock national legislation, does that resulting from the extraction of ore and/or mean exclusively national legis- ore-dressing sand resulting from the dress- lation which was already in force ing of ore in mining operations is to be at the time of entry into force of regarded as waste within the meaning of the Waste Directive 91/156/EEC or the Waste Directive. also that enacted only afterwards?

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(b) What relevance does it have that the 29. At the hearing in the present case, leftover stone is the same as regards its which took place in January 2003, it was composition as the basic rock from accepted by those present that in so far as which it has been quarried, and that it concerned the first question referred the does not change its composition written observations had been largely over- regardless of how long it is kept or taken by the judgment in Palin Granit, how it is kept? delivered on 18 April 2002. I will accord- ingly first consider the extent to which that judgment has indeed answered the first question.

30. Reviewing the Court's earlier case-law concerning the definition of waste under (c) What relevance does it have that the the Directive, the Court in Palin Granit leftover stone is harmless to human made the following points. health and the environment? To what extent generally is importance to be attached to its possible effect on health and the environment in assessing whether it is waste?

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of Annex I to the Directive. 17 Goods, existing state, for example in embankment materials or raw materials resulting from work or in the construction of harbours a manufacturing or extraction process, the and breakwaters, necessitated, in most primary aim of which is not the production cases, potentially long-term storage oper- of that item, may none the less be regarded ations which constituted a burden to the not as a residue but as a by-product which holder and were also potentially the cause the undertaking does not wish to 'discard', of precisely the environmental pollution within the meaning of the first paragraph which the Directive sought to reduce, the of Article 1(a) of the Directive, but intends reuse was not certain and was only con- to exploit or market on terms which are templated in the longer term. The leftover advantageous to it, in a subsequent process, stone could therefore be regarded only as without any further processing prior to 'extraction residue' which its holder 'in- reuse. However, since the concept of waste tends or is required to discard' within the is to be interpreted widely, that reasoning meaning of the Directive, and thus fell should be confined to situations in which within the scope of head Q11 of Annex I the reuse of the goods, materials or raw thereto. 19 materials is not a mere possibility but a certainty, without any further processing prior to reuse and as an integral part of the production process. If, in addition to the mere possibility of reuse, there is also a financial advantage to the holder in so doing, the likelihood of reuse is high. In such circumstances, the substance in ques- tion must no longer be regarded as a 33. The Court then turned to the factors burden which its holder seeks to 'discard', raised by the referring court in sub-ques- but as a genuine product. 18 tions (a) to (d), none of which it considered relevant to classifying the leftover stone as waste.

any indication of either their value to the 36. With regard to sub-question (c), the undertaking or the advantages which that Court observed first that the Directive was undertaking could derive from them, or supplemented by the Hazardous Waste show whether the holder intended to dis- Directive, 22 which implied that the concept card the materials. 20 of waste did not turn on the hazardous nature of a substance. It stated next that, even assuming that the leftover stone did not, by virtue of its composition, pose any risk to human health or the environment, stockpiling such stone was necessarily a source of harm to, and pollution of, the environment, since full reuse of the stone was neither immediate nor even always contemplated. Finally, the harmlessness of the substance in question was not a decisive 35. With regard to sub-question (b), the criterion for determining what its holder Court accepted that the fact that the left- intended to do with it. 23 over stone had the same composition as the blocks of stone extracted from the quarry and that its physical state did not change could render it suitable for the uses which could be made of it. However, that argu- ment would be decisive only if all the leftover stone were reused. The commercial value of blocks of stone depended on their size, shape and potential uses in the con- struction sector, qualities which leftover stone, despite having an identical composi- tion, did not possess. That leftover stone was therefore still production residue. Moreover, the risk of environmental pollu- 37. With regard to sub-question (d), the tion posed by unused leftover stone was not Court considered that that question had mitigated by the fact that its mineral already been answered in the context of the composition was identical to the blocks of main question. It stated that the uncertainty stone, since that fact did not preclude surrounding the proposed uses of the left- storage of the leftover material which over stone and the impossibility of reusing affected the environment. In any event, it in its entirety supported the conclusion even where a substance underwent a full that all that stone, and not merely the stone recovery operation and thereby acquired which would not be reused, was to be the same properties and characteristics as a regarded as waste. It added that in any raw material, it could nevertheless be event, under Article 11 of the Directive, it regarded as waste if, in accordance with remained possible for national authorities the definition in Article 1(a) of the Direc- to lay down rules providing for exemptions tive, its holder discarded it, or intended or from the permit requirement and to grant was required to discard it. 21

39. The Finnish Government explains in its written observations that the principal difference between Palin Granit and the present case is that the present case con- cerns mining rather than quarrying oper- ations and that those operations generate not merely leftover rock but also leftover sand. AvestaPolarit sought further to dis- tinguish Palin Granit at the hearing on the ground principally that in the present case it did not discard the by-products but used 41. If those statements of fact are correct them without further processing: the rock (and that of course is a matter for the supported the galleries of the underground referring court to evaluate), the answer to mine being developed while the ore-dress- the questions referred appears to follow ing sand was stored. directly from the judgment of the Court in Palin Granit. The holder of waste cannot restrict the scope of Community waste legislation by defining in his own terms the scope of the term 'discard'. It is clear from the case-law of the Court that the meaning of that term depends on a series of factors dictated in particular by the over- 40. Before the Korkein hallinto-oikeus riding requirement of environmental pro- AvestaPolarit had argued that the by-prod- tection enshrined in the Directive. The ucts could not be recovered or used Court has stressed that the degree of likelihood of re-using a by-product is a relevant criterion for determining whether 24 — Paragraphs 40 and 41 of the judgment. it is waste within the meaning of the

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42. With regard to sub-questions (a) to (d), it follows from the above analysis that the specific factors mentioned in (d) are not The second question relevant to classifying the leftover rock as waste in circumstances such as those of the present case. It follows moreover from the judgment of the Court in Palin Granit that the factors mentioned in sub-questions (a) to (c) are similarly not relevant, for the reasons given in that judgment. The refer- ring court asks in sub-question (b) whether ore-dressing sand should be assessed dif- 44. By its second question the referring ferently from leftover stone: to my mind, court asks for guidance on the correct the analysis of the Court of the equivalent interpretation of Article 2(1)(b) of the question in Palin Granit, which is drawn in Waste Directive. That article states that general terms, suggests no reason for draw- specified categories of waste, including ing a distinction. 'waste resulting from prospecting, extrac- tion, treatment and storage of mineral resources and the working of quarries', is to be excluded from the scope of the Directive where it is 'already covered by other legislation'. The referring court asks in particular whether 'other legislation' includes national legislation, and, if so, whether such legislation must (i) already 43. I accordingly conclude on the first have been in force when the Directive question that (i) leftover rock resulting entered into force and/or (ii) comply with from the extraction of ore and sand result- any substantive requirements concerning ing from the dressing of ore in mining the level of environmental protection.

2. The following shall be excluded from the scope of this Directive:

'1. The following shall be excluded from the scope of this Directive:

(a) radioactive waste;

(a) gaseous effluents emitted into the atmosphere; (b) waste resulting from prospecting, extraction, treatment and storage of mineral resources and the working of quarries; (b) where they are already covered by other legislation:

(c) animal carcases and the following agricultural waste: faecal matter and other substances used in farming; (i) radioactive waste;

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that the amendments were intended to Since the exemptions are available where change the rule in the original directive the competent authorities have adopted and exclude the possibility that disposal general rules for the activities concerned, complying with environmental law could the Directive cannot in any event achieve also be ensured on the basis of national identical results in the different Member law. The United Kingdom adduces a simi- States. lar argument.

52. Next, AvestaPolarit and the Austrian, 54. Austria and Germany submit that if German and United Kingdom Govern- 'other legislation' referred solely to Com- ments submit that both the original direc- munity legislation, the list of excluded tive and the Directive as amended use waste in Article 2(1)(b) would be redun- different formulations such as 'specific dant, since by virtue of the principle of lex Community rules' and 'individual direc- specialis specific Community rules in any tives' when they intend to refer exclusively event override general Community law; it to Community provisions. would accordingly be unnecessary to say so.

56. I am not convinced by the arguments Article 2(1)(b) and 'individual directives' in adduced by AvestaPolarit and the Austrian, Article 2(2). In the original directive, 'waste German and United Kingdom Govern- covered by specific Community rules' was ments. At least at first sight it seems more simply excluded from its scope. The plausible that a harmonising measure amended directive is more subtle. Certain should allow for more specific Community specified categories of waste are excluded legislation in certain fields within its scope 'where they are already covered by other than that it should permit Member States legislation'; specific rules on the manage- to derogate from it at will by national ment of particular categories of waste legislation. The former interpretation to my which are necessary to deal with particular mind follows from the objectives, scheme cases or to supplement the Directive - and history of the Directive. Before turning which will none the less continue to apply - to those aspects of the legislation, however, may additionally be enacted 'by means of I will briefly consider the wording of the individual directives'. 26 Thus 'specific provision at issue, which has been invoked Community rules' in the original directive by all the abovementioned parties in sup- has in effect been subdivided into two port of their approach. classes of legislation with different objec- tives and effects: 'other legislation' covering waste within the categories listed in Article 2(1)(b) and removing it from the scope of the Directive and 'individual directives' supplementing the rules of the 57. I am not persuaded by the arguments of Directive for other categories of waste. those parties that much weight should be given to the fact that references in the Directive which relate unequivocally to Community legislation use formulations which are different from, and more specific than, 'other legislation'. In an ideal world, of course, the draftsman of legislation would always be precise, consistent and coherent. Inevitably however that ideal is not universally attained. In the present case, the wording appears to be ambiguous; it certainly cannot in my view be construed as necessarily having the meaning con- tended for by AvestaPolarit and the Aus- trian, German and United Kingdom Gov- 59. I do not consider furthermore that ernments. much can be inferred from the differences of detail between Article 2 of the original directive and Article 2 as amended, although the United Kingdom seeks to derive support for its interpretation from a meticulous comparison of such differ- ences. It is however useful to consider the 58. It may be moreover that the legislature deliberately chose different terms to dis- tinguish between the different intended 26 — See paragraphs 65 and 66 below for further discussion of effects of ' o t h e r l e g i s l a t i o n ' in the distinction between these two qualifications.

'The framework character of this Directive is underscored and formalised. It is a

27 — First, second, third and fifth recitals. 28 — 90/C 122/02, OJ 1990 C 122, p. 2. 29 — Proposal for a Council Directive amending Directive 75/442 on waste; Proposal for a Council Directive on ... any disparity between Member States' hazardous waste, COM(88) 391 final, 5 August 1988; the quotation which follows is from the 'Comments on the laws on waste disposal and recovery can text of the proposals'.

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general Directive which will apply to all tive on the management of particular waste. Its provisions will no longer be categories of waste may be laid down repeated in the individual Directives apply- by means of individual Directives.') ing to specific categories of waste.' and

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. . the correct management of hazardous specific objectives, targets, criteria or pro- waste necessitates additional, more strin- cedures in relation to a specified category gent rules to take account of the special of waste for which provisions supplement- nature of such waste'. 32 ing those of the Waste Directive are deemed appropriate without however excluding such waste from the general scope of the Waste Directive. A good example (al- though there are many others 30 ) is the Hazardous Waste Directive, 31 the pre- amble to which states:

At the time the amending directive was adopted, Commu- 30 — See for example Council Directive 91/157/EEC of nity legislation regulated radioactive 18 March 1991 on batteries and accumulators containing certain dangerous substances, OJ 1991 L 78, p. 38, as waste, 3 3 animal carcases 34 and faecal amended by Commission Directive 98/101/EC of 22 December 1998, OJ 1999 L 1, p. 1; Council Directive 92/112/EEC of 15 December 1992 on procedures for harmonising the programmes for the reduction and eventual elimination of pollution caused by waste from 32 — Third and fourth recitals. the titanium dioxide industry, OJ 1992 L 409, P. U ; 33 — See Council Resolution of 18 February 1980 on the European Parliament and Council Directive 94/62/EC of implementation of a Community plan of action in the field 20 December 1994 on packaging and packaging waste, of radioactive waste, OJ 1980 C 51, p. 1 and Council OJ 1994 L 365, p. 10; Council Directive 96/59/EC of Decision 89/664/Euratom of 15 December 1989 adopting 16 September 1996 on the disposal of polychlorinated a specific research and technical development programme biphenyls and polychlorinated terphenyls (PCB/PCT), for the European Atomic Energy Community in the field of OJ 1996 L 243, p. 31; Directive 2000/53/EC of the management and storage of radioactive waste (1990 to European Parliament and of the Council of 18 September 1994), OJ 1989 L 395, p. 28. 2000 on end-of-life vehicles, OJ 2000 L 269, p. 34; and 34 _ Council Directive 90/667/EEC of 27 November 1990 most recently Directive 2002/95/EC of the European Parliament and of the Council of 27 January 2003 on laying down the veterinary rules for the disposal and the restriction of the use of certain hazardous substances in processing of animal waste, for its placing on the market

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matter used in farming. 35 It is clear that legislature was envisaging the possibility of those directives lay down a complete code future Community legislation governing for the treatment of the waste in question. those categories; in the meantime, however, The Animal Waste Directive, for example, given the explicitly extensive and inclusive includes a general definition of 'animal nature of the intended scope of the Direc- waste' and establishes detailed procedures tive as amended, those categories of waste for the processing of such waste. The were intended to remain within that scope. Sewage Sludge Directive similarly gives a broad definition of 'sludge' and regulates in detail its use in agriculture. I do not accept the German Government's argument that the categories of waste listed in Article 2(2)(b) of the Directive as amended should logically be governed by national legislation since directives are not appropri- ate instruments for laying down specific and detailed requirements.

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adopting the one was unaware of the other. Article 3(1) of the Directive, 37 (ii) waste The word 'already' cannot therefore have management plans drawn up in accordance the limited meaning described above - it with Article 7(1), 3 8(iii) any measures would be absurd to suggest that waste necessary to prevent movements of waste waters remain within the scope of the which are not in accordance with their Waste Directive even after adoption of the waste management plans, 39 and (iv) any Waste Water Directive simply because that general rules regulating waste disposal or directive was adopted two months later. recovery activities exempted pursuant to Article 11 of the Directive from the permit requirement imposed by Article 9 or 10. 40

69. It is instructive in my view to consider the consequences which would flow from the interpretation supported by Avesta- Polarit and the Austrian, German and United Kingdom Governments.

72. Moreover Member States are required to send the Commission every three years 70. First, it would be extremely difficult to information on the implementation of the determine with any degree of confidence Directive in the form of a sectoral report the scope of the Waste Directive at any drawn up on the basis of a questionnaire given moment. There is no provision in the drafted by the Commission. 41 That ques- Directive requiring Member States which tionnaire 4 2 repeats the requirements of the enact legislation governing waste in the Directive in soliciting information concern- categories listed in Article 2(1)(b) to notify ing waste management plans and measures the Commission of such legislation. taken pursuant to Articles 3(1), 7(3) and 11(1).

73. Thus while it is true that, as Austria definition. That proviso, however, may and Germany submit, the Directive cannot equally prejudice legal certainty. achieve identical results in the different Member States, the Commission must be kept informed of national patterns of implementation. It seems inconceivable that, in the context of a detailed framework for the provision of information to the Commission on national measures taken pursuant to the Directive, Member States 75. The 'patchwork' definition of waste would not also be required to inform the within the scope of the Directive which Commission of any national legislation would result would not only, as discussed a d o p t e d in t h e a r e a s l i s t e d in above, undermine legal certainty; it would Article 2(1)(b), the effect of which would also clearly run directly counter to the be - on the interpretation put forward by objectives of the amending directive, the Austrian, German and United Kingdom namely to reduce disparities between Governments - wholly to exclude such Member States' waste legislation by enac- areas from the scope of the Directive. ting a comprehensive Community waste policy taking as a base a high level of environmental protection. 43

78. It does not seem to me therefore that much weight should be given to the letter produced by AvestaPolarit's counsel.

77. Admittedly, that letter states that 'other legislation' within the meaning of Article 2(1)(b) could include national legis- lation. The letter, however, simply indi- cates the view of one representative of the Commission at a particular time. It is not a view that has been consistently held. In 2000, for example, the Commission took 79. I accordingly conclude that, on the the opposite view in two separate com- basis of the scheme and objectives of the munications, in which it states 'Directive Directive, the words 'already covered by 75/442/EEC on waste as amended by other legislation' in Article 2(1)(b) refer to Directive 91/156/EEC applies to waste Community legislation whether adopted resulting from prospecting, extraction, before or after adoption of that directive. treatment and storage of mineral resources Since question 2(b) and question 2(c) and the working of quarries, since the latter referred by the Korkein hallinto-oikeus are so far not covered by other Community are put only in the event that 'other legis- legislation' 44 and 'Article 2 of Directive lation' in Article 2(1)(b) includes national 75/442/EEC on waste as amended by legislation, I do not propose to consider Directive 91/156/EEC establishes that them.

44 — Paragraph 3.1.1. of 'Promoting sustainable development in 45 — Paragraph 5.4.1 of 'Safe operation of mining activities: a the EU non-energy extractive industry', COM(2000) 265 follow-up to recent mining accidents', COM(2000) 664 final, 3 May 2000. final, 23 October 2000.

(3) The words 'already covered by other legislation' in Article 2(1)(b) of Directive 75/442 as amended refer to Community legislation whether adopted before or after adoption of that directive.

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