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Court of Justice of the European Communities (including Court of First Instance Decisions) |
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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> AvestaPolarit Chrome (anciennement Outokumpu Chrome) (Environment and consumers) [2003] EUECJ C-114/01 (11 September 2003) URL: http://www.bailii.org/eu/cases/EUECJ/2003/C11401.html Cite as: [2003] EUECJ C-114/1, [2003] EUECJ C-114/01 |
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JUDGMENT OF THE COURT (Sixth Chamber)
11 September 2003 (1)
(Approximation of laws - Directives 75/442/EEC and 91/156/EEC - Meaning of waste - Production residue - Mine - Use - Storage - Article 2(1)(b) - Meaning of other legislation - National legislation outside the framework of Directives 75/442/EEC and 91/156/EEC)
In Case C-114/01,
REFERENCE to the Court under Article 234 EC by the Korkein hallinto-oikeus (Finland) for a preliminary ruling in the proceedings brought before that court by
AvestaPolarit Chrome Oy, formerly Outokumpu Chrome Oy,
on the interpretation of Articles 1(a) and 2(1)(b) of Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39), as amended by Council Directive 91/156/EEC of 18 March 1991 (OJ 1991 L 78, p. 32),
THE COURT (Sixth Chamber),
composed of: J.-P. Puissochet (Rapporteur), President of the Chamber, R. Schintgen, V. Skouris, F. Macken and J.N. Cunha Rodrigues, Judges,
Advocate General: F.G. Jacobs,
Registrar: H.A. Rühl, Principal Administrator,
after considering the written observations submitted on behalf of:
- AvestaPolarit Chrome Oy, by A. Kukkonen, asianajaja,
- the Finnish Government, by T. Pynnä, acting as Agent,
- the German Government, by W.-D. Plessing and B. Muttelsee-Schön, acting as Agents,
- the Austrian Government, by C. Pesendorfer, acting as Agent,
- the United Kingdom Government, by G. Amodeo, acting as Agent, and C. Vajda QC,
- the Commission of the European Communities, by R. Wainwright, I. Koskinen and P. Panayotopoulos, acting as Agents,
having regard to the Report for the Hearing,
after hearing the oral observations of AvestaPolarit Chrome Oy, represented by A. Kukkonen; the Finnish Government, represented by T. Pynnä; the Netherlands Government, represented by N.A.J. Bel, acting as Agent; the United Kingdom Government, represented by C. Vajda; and the Commission, represented by R. Wainwright and I. Koskinen, at the hearing on 23 January 2003,
after hearing the Opinion of the Advocate General at the sitting on 10 April 2003,
gives the following
Community legislation
1. The following shall be excluded from the scope of this Directive:
(a) gaseous effluents emitted into the atmosphere;
(b) where they are already covered by other legislation:
(i) radioactive waste;
(ii) waste resulting from prospecting, extraction, treatment and storage of mineral resources and the working of quarries;
(iii) animal carcases and the following agricultural waste: faecal matter and other natural, non-dangerous substances used in farming;
(iv) waste waters, with the exception of waste in liquid form;
(v) decommissioned explosives.
2. Specific rules for particular instances or supplementing those of this Directive on the management of particular categories of waste may be laid down by means of individual Directives.
1. Without prejudice to this Directive, Member States may adopt specific rules for particular categories of waste.
2. The following shall be excluded from the scope of this Directive:
(a) radioactive waste;
(b) waste resulting from prospecting, extraction, treatment and storage of mineral resources and the working of quarries;
(c) animal carcases and the following agricultural waste: faecal matter and other substances used in farming;
(d) waste waters, with the exception of waste in liquid form;
(e) gaseous effluents emitted into the atmosphere;
(f) waste covered by specific Community rules.
Without prejudice to Council Directive 78/319/EEC of 20 March 1978 on toxic and dangerous waste [(OJ 1978 L 84, p. 43)] ... the following may be exempted from the permit requirement imposed in Article 9 or Article 10:
(a) establishments or undertakings carrying out their own waste disposal at the place of production;
and
(b) establishments or undertakings that carry out waste recovery.
This exemption may apply only:
- if the competent authorities have adopted general rules for each type of activity laying down the types and quantities of waste and the conditions under which the activity in question may be exempted from the permit requirements,
and
- if the types or quantities of waste and methods of disposal or recovery are such that the conditions imposed in Article 4 are complied with.
National legislation
The main proceedings and the questions referred for a preliminary ruling
Since the residues and by-products resulting from the mine are not as such immediately reused or consumed, they are to be regarded as waste within the meaning of the Law on waste. In so far as the residues and by-products to be discarded are recovered immediately as such (inter alia by returning them to the mine), they are not regarded as waste.
Since the above waste is not treated or recovered in accordance with a plan approved under the Law on mines, the approval procedure under the Law on waste is applicable to it.
(1) Are leftover rock resulting from the extraction of ore and/or ore-dressing sand resulting from the dressing of ore in mining operations to be regarded as waste within the meaning of Article 1(a) of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC of 18 March 1991, having regard to points (a) to (d) below?
(a) What relevance, in deciding the above question, does it have that the leftover rock and ore-dressing sand is stored in the mining area or on the ancillary site? Is it relevant generally, with respect to falling within the definition of waste, whether the said by-products of mining operations are stored in the mining area, on the ancillary site or further away?
(b) What relevance does it have, in assessing the matter, that the leftover rock is the same as regards its composition as the basic rock from which it is quarried, and that it does not change its composition regardless of how long it is kept and how it is kept? Should ore-dressing sand which results from the ore-dressing process perhaps be assessed differently from leftover rock in this respect?
(c) What relevance does it have, in assessing the matter, that leftover rock is harmless to human health and the environment, but that, according to the view of the environmental licence authorities, substances harmful to health and the environment dissolve from ore-dressing sand? To what extent generally is importance to be attached to the possible effect of leftover rock and ore-dressing sand on health and the environment in assessing whether they are waste?
(d) What relevance does it have, in assessing the matter, that leftover rock and ore-dressing sand are not intended to be discarded? Leftover rock and ore-dressing sand may be re-used without special processing measures, for example for supporting mine galleries, and leftover rock also for landscaping the mine after it has ceased operation. Minerals may in future with the development of technology be recovered from ore-dressing sand for utilisation. To what extent should attention be paid to how definite plans the person carrying on mining operations has for such utilisation and to how soon after the leftover rock and ore-dressing sand has been tipped on the mining area or the ancillary site the utilisation would take place?
(2) If the answer to the first question is that leftover rock and/or ore-dressing sand is to be regarded as waste within the meaning of Article 1(a) of the Council Directive on waste, it is further necessary to obtain an answer to the following supplementary questions:
(a) Does other legislation within the meaning of Article 2(1)(b) of the Waste Directive (91/156/EEC), waste covered by which is excluded from the scope of the directive, and which under point (ii) concerns inter alia waste resulting from prospecting, extraction, treatment and storage of mineral resources, mean exclusively the European Community's own legislation? Or may national legislation too, such as certain provisions of the Law on mines and the Regulation on waste in force in Finland, be other legislation within the meaning of the Waste Directive?
(b) If other legislation means also national legislation, does that mean exclusively national legislation which was already in force at the time of entry into force of the Waste Directive 91/156/EEC or also that enacted only afterwards?
(c) If other legislation means also national legislation, do fundamental European Community provisions relating to environmental protection or the principles of the Waste Directive set requirements for national legislation concerning the level of environmental protection as a condition for disapplying the rules of the Waste Directive? What sort of requirements could those be?
The first question
- the holder of leftover stone resulting from stone quarrying which is stored for an indefinite length of time to await possible use discards or intends to discard that leftover stone, which is accordingly to be classified as waste within the meaning of Directive 75/442;
- the place of storage of leftover stone, its composition and the fact, even if proven, that the stone does not pose any real risk to human health or the environment are not relevant criteria for determining whether the stone is to be regarded as waste.
22 ... the scope of the term waste turns on the meaning of the term discard (Case C-129/96 Inter-Environnement Wallonie [1997] ECR I-7411, paragraph 26).
...
27 ... The application of an operation listed in Annex II A or II B to Directive 75/442 ... does not, of itself, justify the classification of that substance as waste.
...
29 ... In its judgment in Vessoso and Zanetti (Joined Cases C-206/88 and C-207/88 [1990] ECR I-1461, paragraph 9), the Court held that the concept of waste does not exclude substances and objects which are capable of economic reutilisation. In Joined Cases C-304/94, C-330/94, C-342/94 and C-224/95 Tombesi and Others [1997] ECR I-3561, paragraph 52, the Court also stated that the system of supervision and control established by Directive 75/442 ... is intended to cover all objects and substances discarded by their owners, even if they have a commercial value and are collected on a commercial basis for recycling, reclamation or reuse.
30 Neither the fact that the leftover stone has undergone a treatment operation referred to in Directive 75/442 nor the fact that it can be reused thus suffices to show whether that stone is waste for the purposes of Directive 75/442.
31 There are other considerations which are more decisive.
32 At paragraphs 83 to 87 of the judgment in [Joined Cases C-418/97 and C-419/97 ARCO Chemie Nederland and Others [2000] ECR I-4475], the Court pointed out the importance of determining whether the substance is a production residue, that is to say, a product not in itself sought for a subsequent use. As the Commission observes, in the case at issue in the main proceedings the production of leftover stone is not Palin Granit's primary objective. The leftover stone is only a secondary product and the undertaking seeks to limit the quantity produced. According to its ordinary meaning, waste is what falls away when one processes a material or an object and is not the end-product which the manufacturing process directly seeks to produce.
33 Therefore, it appears that leftover stone from extraction processes which is not the product primarily sought by the operator of a granite quarry falls, in principle, into the category of [r]esidues from raw materials extraction and processing under head Q 11 of Annex I to Directive 75/442.
34 One counter-argument to challenge that analysis is that goods, materials or raw materials resulting from a manufacturing or extraction process, the primary aim of which is not the production of that item, may be regarded not as a residue but as a by-product which the undertaking does not wish to discard, within the meaning of the first paragraph of Article 1(a) of Directive 75/442, but intends to exploit or market on terms which are advantageous to it, in a subsequent process, without any further processing prior to reuse.
35 Such an interpretation would not be incompatible with the aims of Directive 75/442. There is no reason to hold that the provisions of Directive 75/442 which are intended to regulate the disposal or recovery of waste apply to goods, materials or raw materials which have an economic value as products regardless of any form of processing and which, as such, are subject to the legislation applicable to those products.
36 However, having regard to the obligation ... to interpret the concept of waste widely in order to limit its inherent risks and pollution, the reasoning applicable to by-products should be confined to situations in which the reuse of the goods, materials or raw 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.
37 It therefore appears that, in addition to the criterion of whether a substance constitutes a production residue, a second relevant criterion for determining whether or not that substance is waste for the purposes of Directive 75/442 is the degree of likelihood that that substance will be reused, without any further processing prior to its reuse. If, in addition to the mere possibility of reusing the substance, there is also a financial advantage to the holder in so doing, the likelihood of reuse is high. In such circumstances, the substance in question must no longer be regarded as a burden which its holder seeks to discard, but as a genuine product.
38 In the case at issue ... the only foreseeable reuses of leftover stone in its existing state, for example in embankment work or in the construction of harbours and breakwaters, necessitate, in most cases, potentially long-term storage operations which constitute a burden to the holder and are also potentially the cause of precisely the environmental pollution which Directive 75/442 seeks to reduce. The reuse is therefore not certain and is only foreseeable in the longer term, with the result that the leftover stone can only be regarded as extraction residue which its holder intends or is required to discard within the meaning of Directive 75/442, and thus falls within the scope of head Q 11 of Annex I to that directive.
The second question
Costs
62. The costs incurred by the Finnish, German, Netherlands, Austrian and United Kingdom Governments and by the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT (Sixth Chamber),
in answer to the questions referred to it by the Korkein hallinto-oikeus by order of 5 March 2001, hereby rules:
1. In a situation such as that at issue in the main proceedings, the holder of leftover rock and residual sand from ore-dressing operations from the operation of a mine discards or intends to discard those substances, which must consequently be classified as waste within the meaning of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC of 18 March 1991, unless he uses them lawfully for the necessary filling in of the galleries of that mine and provides sufficient guarantees as to the identification and actual use of the substances to be used for that purpose.
2. In so far as it does not constitute a measure of application of Directive 75/442, as amended by Directive 91/156, and in particular Article 11 of that directive, national legislation must be regarded as other legislation within the meaning of Article 2(1)(b) of that directive covering a category of waste mentioned in that provision, if it relates to the management of that waste as such within the meaning of Article 1(d) of Directive 75/442, and if it results in a level of protection of the environment at least equivalent to that aimed at by that directive, whatever the date of its entry into force.
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Puissochet
MackenCunha Rodrigues
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Delivered in open court in Luxembourg on 11 September 2003.
R. Grass J.-P. Puissochet
Registrar President of the Sixth Chamber
1: Language of the case: Finnish.
