C-116/01

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OPINION OF ADVOCATE GENERAL JACOBS delivered on 14 November 2002 1

1. In this case the Court is asked by the 4. The present case concerns the correct Netherlands Raad van State (Council of classification for the purpose of the Regu­ State) for a preliminary ruling on the lation of waste intended to be shipped from correct criteria for distinguishing between the Netherlands to Belgium for use as fuel operations for the disposal of waste and in cement kilns and as a raw material in the operations for its recovery for the purpose process for producing clinker in cement of Council Regulation (EEC) No 259/93 of factories. The referring court asks in par­ 1 February 1993 on the supervision and ticular whether it is permissible to use a control of shipments of waste within, into global assessment when classifying such a and out of the European Community ('the process, involving two distinct operations, Regulation'). 2 as recovery or disposal.

2. It may be noted that since the Raad van State made its reference in the present case the Court has in its judgment in ASA 3 The relevant Community legislation given some guidance on that distinction.

3. The Regulation lays down procedures to The Waste Directive be followed where waste for recovery or disposal is transported from one Member State to another. The procedures vary depending on whether the waste is for recovery or for disposal. 5. Article 3(1) of Council Directive 75/442/EEC of 15 July 1975 on waste as amended 4 ('the Waste Directive' or 'the 1 — Original language: English 2 — O J 1993 L 30, p. 1. 3 — C a s e C-6/00 |2002] ECR 1-1961; see also my Opinions delivered on 26 September 2002 in Case C-228/00 Com- 4 — O J 1975 1. 194, p. 39, as amended by Council Directive mission v Germany, judgment of 13 February 2003. ECR 91/156/EECof 18 March 1991, O) 1991 1. 78, p. 32, and by 1-1439, and Case C-458/00 Commission ľ Luxembourg, Council Directive 91/692/EEC: of 23 December 1991, judgment of 13 February 2003, ECR 1-1555. Ol 1991 L 377, p. 48.

'1. Member States shall take appropriate 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 8. Annexes IIA and IIB to the Directive 7 network must enable the Community as a are headed 'Disposal operations' and 'Re- whole to become self sufficient in waste covery operations' respectively. Each annex disposal and the Member States to move is prefaced by a note to the effect that it is towards that aim individually, taking into intended to list the operations 'as they account geographical circumstances or the occur in practice' and that in accordance need for specialised installations for certain with Article 4 8 'waste must be [disposed types of waste. of/recovered] without endangering human health and without the use of processes or methods likely to harm the environment'.

5 — Article 1(e). 6 — Article 1(f). 7 — As adapted by Commission Decision 96/350/EC of 24 May 1996 adapting Annexes IIA and IIB to Council Directive 2. The network must also enable waste to 75/442/EEC on waste, OJ 1996 L 135, p. 32. 8 — Which requires Member States to take the necessary be disposed of in one of the nearest measures to the same effect.

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9. Annex IIA includes among the listed 11. Article 7 of the Directive provides: disposal operations:

' 1 . In order to attain the objectives referred 'D10 Incineration on land'. to in Articles 3, 4 and 5, the competent authority or authorities referred to in Article 6 shall be required to draw up as soon as possible one or more waste man- agement plans. Such plans shall relate in particular to: 10. Annex IIB includes among the listed recovery operations:

OPINION OF M R JACOBS — CASE C-116/01

3. Member States may take the measures 15. The procedure for shipments of waste necessary to prevent movements of waste for recovery varies according to the type of which are not in accordance with their waste. Annexes II to IV to the Regulation waste management plans. They shall classify specific waste in one of three inform the Commission and the Member lists. 1 1Annex II contains the 'Green list States of any such measures.' of wastes', which 'should not normally present a risk to the environment if properly recovered in the country of desti- nation'. 12 Annex III contains the 'Amber list of wastes' and Annex IV the 'Red list of wastes', regarded as particularly hazard- ous. Shipments for recovery of the wastes listed in Annex II are simply to be accom- The Regulation panied by a document containing pre- scribed information. 13 Shipments of other waste (including the waste the shipment of which gave rise to the present proceedings) for recovery and shipments of waste for 12. The Regulation is based on Article 130s disposal are subject to the following pro- of the EC Treaty (now, after amendment, cedure. Article 175 EC). Its aim is to provide a harmonised set of procedures whereby movements of waste can be limited in order to secure protection of the environment. 9

13. 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. 16. Where the producer or holder of waste, generally referred to as the notifier, 14 intends to ship such waste from one Member State to another, he must notify the competent authority of destination and

send a copy of the notification to the 19. In the case of waste for disposal, the competent authority of dispatch 15 and to Member State of destination is responsible the consignee. 16 for granting authorisation for shipment. The Member State of dispatch 21 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. 22 In the case of waste for recovery, the Member States of dispatch and destination 23 have the right to object to a shipment but, as a general rule, 24 no 17. Notification is to be effected by means express authorisation is required. 25 of the consignment note to be issued by the authority of dispatch. 17 The notifier is to complete the consignment note and, if requested by the competent authorities, supply additional information and docu- mentation. 18 He is to supply on the con- signment note information with particular regard to a number of factors including (i) 20. The most significant difference the source, composition and quantity of the between the procedures applying to the waste and (ii) the operations involving shipments of waste for recovery and for disposal or recovery as referred to in disposal lies in the grounds on which the Annex IIA or IIB to the Directive. 19 various competent authorities concerned may oppose the proposed shipment.

18. In the case of shipments of waste for 21. In the case of waste for disposal, the recovery, the consignment note must also objections must be based on Article 4(3). 26 include details of (i) the planned method of Under that article, in particular, (i) disposal for the residual waste after recyc- Member States may prohibit generally or ling has taken place; (ii) the amount of the partially or object systematically to ship- recycled material in relation to the residual ments of waste in order to implement the waste and (iii) the estimated value of the principles of proximity, priority for recycled material. 20

' — in accordance with Directive 75/442, in The case-law of the Court particular Article 7 thereof, or

27 — Article 4(3)(a)(i). 28 — Article 4(3)(b)(i). 29 — Article 7(2). 24. Two decisions of the Court are of 30 — Article 7(4)(b) concerns the objections which may be particular interest in the context of the raised by the competent authorities of transit, not relevant to the present case. present case.

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25. First, the Court ruled in Dusseldorp 31 The facts and the proceedings that the principles of self-sufficiency and proximity do not apply to waste for recovery; such waste should therefore be able to move freely between Member States for processing, provided that transport poses no threat to the environment. 28. It may be helpful to preface the sum- mary of the facts underlying the main proceedings by explaining that cement is manufactured by heating raw materials (lime, sand/silica, a small proportion of alumina and generally iron oxide). When burned those materials produce cement clinker which consists mainly of calcium silicates and alumínates. The clinker is then milled to produce cement.

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inorganic component is used for the by means of treatment or use in a produc- production of clinker. Thereafter nothing tion process (for example wastes to be remains of the waste. incinerated with a high inorganic fraction in the manufacture of cement clinker).... Since it is not possible to develop well- founded generic criteria for the distinction between recovery by material reuse or disposal by incineration for hazardous 30. Verol notified the Netherlands compet- waste to be incinerated, this will be ent authority, the Minister van Volkshuis- reviewed from case to case on the basis of vesting, Ruimtelijke Ordening en Milieube- the details of the relevant waste stream and heer (Minister for Housing, Planning and the proposed method of processing.' the Environment), of the proposed ship- ments, using the general notification pro- cedure provided under Article 28 of the Regulation and indicating that the waste was intended to be recovered. The con- signment notes refer in each case to oper- ations Rl, R3 and R5 of Annex IIB to the Directive. The waste was to be shipped 32. The decision then stated that the frac- over a period of one year. tion of the waste intended for material reuse, namely 30% in the case of one notification and 25-40% in the case of the other, did not justify categorisation of the proposed process as recovery by material reuse. The Minister appears by that state- 31. In his decisions made pursuant to ment to have decided that the proposed use Article 7(2) of the Regulation, the Minister of the incineration residue in clinker manu- referred, under the heading 'The Test' facture did not constitute recovery within which precedes the operative part of the the meaning of head R5 of Annex IIB. decision, to the Meerjarenplan Gevaarlijke According to the order for reference, that Afvalstoffen II of June 1997 ('MJP GA II' decision was made on the basis of the — Long-term Plan for Hazardous Waste II) Minister's understanding that an operation and in particular to the following text: constitutes recovery by re-use only where material re-use amounts to 50% or more.

over 11 500 kJ/kg and that for each 35. Verol unsuccessfully lodged objections planned movement of waste with a chlorine against the decisions and subsequently content of over 1% the waste to be appealed to the Raad van State (Council exported had to have a calorific value of of State), Administrative Appeal Section. over 15 000 kJ/kg. The Minister based those conditions also on the MJP GA II, which as regards recovery with use prin- cipally as a fuel takes the calorific value linked to the chlorine content of the waste as the relevant criterion. For an operation to constitute recovery, hazardous waste with a chlorine content of 1 % or less must 36. Verol contended before the national have a minimum calorific value of 11 500 court that the Minister was wrong to attach kJ/kg. For an operation to constitute the abovementioned conditions to its con- recovery, hazardous waste with a chlorine sent. In its view, the use in question of the content of over 1 % must have a minimum waste in the cement industry in Belgium calorific value of 15 000 kJ/kg. 34 must be regarded unconditionally as recovery within the meaning of Article 1(f) of the Directive read in conjunction with Annex IIB thereto. It considers that the operation concerned is an operation R1 'Use principally as a fuel or other means to generate energy', R3 'Recycling/reclama- tion of organic substances which are not used as solvents' and R5 'Recycling/recla- mation of other inorganic materials' within the meaning of that annex. Verol argues that the processing of the waste in the 34. It appears from the documents before combined procedure results in the complete the Court that the average calorific value of use of the waste and that in adopting his the waste in question was 16 000 kJ/kg, decision the Minister wrongly failed to take with a range from 800 to 30 000 kJ/kg, and account of the efficiency of the combined the average chlorine content was less than procedure as a whole and instead took as a 1%, with a range from 0 to 2%. Certain basis the nature and composition of the consignments presumably therefore did not waste. satisfy the conditions imposed by the Minister and hence their export was unauthorised. In that context Verol states that, of the original consignments totalling 3 000 tonnes, it was able to export less than 1 400 tonnes. Of the remainder, some was processed in the Netherlands while the rest was not processed at all, but stored at some 37. According to the national court how- cost to Verol. ever the Minister argued that such an assessment of the combined effect of the incineration of the waste and the processing 34 — By implication the waste to be shipped was regarded m of the ash residues into cement clinker was national law as hazardous waste. It appears however that for the purposes of the Regulation the waste was classified not possible in the light of the provisions of under Annex III, Amber list. Annex IIB to the Directive.

2. If so, does the process concerned con- 35 — It may be noted that the Dutch version of the Directive stitute recovery within the meaning of refers to all operations provided for in Annex IIB falle in bijlage II B bedoelde handelingen'). While that difference R1, R3 and R5 of Annex IIB to the in wording may have been of relevance to the national court's analysis of the provision, it is not in my view Framework Directive if it results in the sufficiently different from, for example, the English and complete use of the waste employed French versions, which refer to 'any operations..., to require separate analysis'. therein?'

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4. If one operation must be classified as recovery and another operation as disposal, 42. In the light of the foregoing the Council how must the process as a whole be of State considers that it must refer the regarded?'

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43. Written observations have been lodged reclamation of non-metallic inorganic by Verol, the German, Netherlands and materials under head R5 (the latter two United Kingdom Governments and the categories reflecting the fact that the waste Commission. The Netherlands and United contained both types of substance). The Kingdom Governments and the Commis- Minister appears to have assessed each of sion were represented at the hearing. The the two steps (incineration and use of German Government's observations con- residue) separately for the purpose of con- cern question 3 b alone; those of the United senting to the proposed shipment, first Kingdom do not consider the questions deciding that the extent of re-use proposed referred individually and suggest a single was not sufficient to constitute recovery by composite answer thereto. material reuse and second imposing a condition as to minimum calorific value to be satisfied in order for the waste to be shipped for recovery by use principally as a fuel or other means to generate energy. The referring court's first question appears to be asking whether that approach to classifying a combined procedure such as that at issue was correct or whether, as Verol claims, the The first question — the correct approach Minister should have made a global assess- to a combined procedure for treating waste ment of both steps which would have led to the conclusion that there was recovery of 100% of the waste.

such as that at issue is to be assessed as a subjected which determines whether the whole, while the Commission reaches the waste should be notified as intended for opposite conclusion. disposal or recovery for the purposes of the Regulation. In the present case, the national court states that the waste is to be used first as a fuel in cement kilns, where the energy generated will replace energy normally generated by raw materials. The Commission considers that that process is 48. Verol submits that what is at issue is a 'Use principally as a fuel' and hence single technical process and hence a single recovery. It is possible that, as in the recovery operation. That conclusion is not present case, that process will produce undermined by the fact that the operation further, 'second generation' waste. as a whole is not described in Annex IIB: Whether the use of that waste is recovery the annexes to the Directive are not or disposal has no effect on the correct exhaustive, as is clear from the note intro- classification of the first process, although ducing them. The scheme of the annexes in accordance with Article 4 of the Direc- requires a global assessment of a process tive Member States must 'ensure that waste involving more than one operation. is recovered or disposed of without... using processes or methods which could harm the environment'.

52. As the United Kingdom submits, many recovery operations result in a residue of waste which must in turn be dealt with, 55. The Regulation also echoes that whether by a further recovery operation or assumption, requiring in the case of waste by disposal. The question how such a intended for recovery that the notifier multi-step process should be classified for include on the consignment note infor- the purpose of the Regulation is con- mation with regard to the planned method sequently of some practical importance. It of disposal for the residual waste after is perhaps not surprising therefore that the recycling has taken place, the amount of legislation itself envisages such processes. the recycled material in relation to the residual waste and the estimated value of the recycled material. 36

53. The Directive, for example, anticipates 56. The scheme of both the Directive and that a recovery operation within the mean- the Regulation thus suggests that whether ing of Annex IIB may be followed by a waste is to be correctly classified as further recovery operation; indeed intended for disposal or recovery for the Annex IIB includes a category specifically purposes of the Regulation is determined, tailored to such a situation, since head Rl 1 as the Commission submits, by the correct provides as a separate category of recovery classification of the first operation to which operation 'Use of wastes obtained from any the waste is to be subject. of the operations numbered Rl to R 10'.

57. That analysis does not of course mean that the Member State of dispatch is in 54. The legislation also envisages that waste may correctly be regarded as des- 36 — Sixth, seventh and eighth indents in Article 6(5).

60. By its second question the national court asks whether, in the event of an affirmative answer to the first question, the 58. Finally I would note that the approach process concerned constitutes recovery which I propose to adopt is not undermined within the meaning of heads R 1, R3 and by the Netherlands Government's assertion R5 of Annex IIB if it results in the complete that in the present case the two operations use of the waste employed therein. at issue (incineration and use of the residue) in fact occur simultaneously rather than successively. While it may be correct that, in the high temperatures reached in cement kilns, the two operations would for prac- tical purposes be more or less instan- 61. Since I propose answering the first taneous, they can none the less for the question in the negative, the second ques- purposes of analysis clearly be distin- tion as put by the referring court docs not guished as separate steps: incineration of strictly arise. However, it may be useful to the organic component of the waste must say a few words. logically precede use of the inorganic residue of that incineration. It appears moreover from the order for reference that that is the understanding of the national court. 62. It is clear from the order for reference that the national court's second question arises because of the requirement as a matter of national law or practice that a 'material reuse' operation may be classified as a recovery operation only if it results in 59. I accordingly conclude that, where reuse of at least 50% of the waste. On the waste is to be subjected to a combined basis of my proposed answer to the first

65. The question whether the extent (ex- pressed as calorific value) to which the waste contributes to the incineration pro- cess is relevant to the classification of the The third question — the relevance and incineration as recovery under head R1 of lawfulness of national criteria Annex IIB or disposal under head D 1O of Annex IIA also arose in Commission v Germany, and I have discussed it in depth in my Opinion in that case. I concluded that the only quantitative criterion imposed by the legislation on a recovery operation under head R1 was the requirement that the waste be 'principally' used as a fuel or 63. By its third question, the national court other source of energy; I have explained raises a number of issues about the criteria above 38 what that requirement means in imposed by Netherlands law and practice practice. Further quantitative criteria such

37 — Cited in note 3. See in particular paragraphs 54 to 67. 38 — See paragraph 62.

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as the calorific value of the waste are in my contribution of the waste to the inciner- view and on the basis of the law as it ation or production process is sufficient for stands 39 irrelevant to the correct classifi- classification as recovery. In so far as that cation of the operation as recovery or question concerns the relevance of the disposal. contribution of the waste to the inciner- ation, it has been answered above. 40 In so far as it concerns the relevance of the contribution of the waste to the production process, I have indicated 41 why I do not consider it appropriate or necessary to address that issue in the present case.

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the objectives of both the Directive, whose amendments necessary for adapting the aims include a 'common terminology... to Annexes to the Directive to scientific and improve the efficiency of waste manage- technical progress to be adopted in accord- ment in the Community', 43 and the Regu- ance with a prescribed procedure involving lation, which is built on the premiss that a committee composed of representatives of different Member States will apply the the Member States. 46 That document put same procedures to waste intended for forward a number of suggestions for limit- particular operations. As the Commission ing movements of waste to be incinerated. pointed out in Commission v Germany, if One of the options considered was the Member States were free to set their own development of criteria for distinguishing divergent criteria determining which oper- more clearly between 'Incineration on land' ations were to be classified as recovery under head DIO of Annex IIA and 'Use operations, the impact of Article 7(4) of the principally as a fuel or other means to Regulation, which exhaustively lists the generate energy' under head R1 of cases in which Member States may object Annex IIB. One of the criteria discussed to shipments of waste for recovery, 44 was calorific value: it was suggested that a would be much reduced. calorific value of 17 000 kJ/kg be used as a limit value. However, it appears that a distinction based on that calorific value was not accepted by the majority of Member States.

71. By its fourth and final question the national court asks how, if one operation must be classified as recovery and another operation as disposal, the process as a whole must be regarded.

72. I have already stated in my proposed 73. Verol and the Netherlands Government answer to the national court's first question argue that a process involving both that, where waste is to be subjected to a recovery and disposal operations should combined process involving several iden- be classified as a recovery operation tifiable separate operations, it is the first because of the priority accorded by the such operation to which the waste will be Directive to recovery. On the view that I subjected which determines whether the have taken, that argument is not relevant. waste is intended for disposal or recovery The Court has moreover met that point in for the purpose of the Regulation. More its judgment in ASA, 48 stating that the specifically — and as perhaps envisaged by principle of primacy of recovery of waste, the referring court — waste to be subjected which is intended to encourage recovery, to a recovery operation with the residue applies by definition only to waste which is subsequently to be subjected to a disposal in fact intended for recovery and therefore operation is to be notified under the does not prohibit scrutiny of the intended Regulation as waste to be shipped for use by the competent authority of dispatch. recovery. The Member State of dispatch may however object to such a shipment on the basis of the fifth indent of Article 7(4)(a) 47 — Sixth, seventh and eighth indents in Article 6(5). 48 — Paragraph 45 of the judgment; see also paragraph 78 of my of the Regulation 'if the ratio of the Opinion.

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