The European concept of waste and reverse logistics /off-spec products. Reference in CJEU Shell.

In (soon to be) joined Cases C-241/12 and C-242/12, the Court of Justice is being asked to clarify the application of the Waste Framework Directive‘s concept of ‘waste’ in the context of reverse logistics /off-spec (or ‘off specification’) products. These are products which after shipment, turn out not to meet the agreed specifications (because they are defective, or even if in working order, do not meet the agreed parameters). In the logistics chain, such products are often sent back upstream (whence ‘reverse logistics’) and sold to other customers, whether or not after modification or repair.

The facts as reported are included below.

At stake is in particular the extent of relevance of the contractual context. Under the terms of the contract (and indeed under general contract and warranty law), off-spec products are routinely sent back to the wholesaler or brought back to the point of sale. Any finding of such goods meeting the waste concept, may turn an important part of daily logistics operations into waste transport operations.

[Declaration of involvement: I act as court witness in the national proceedings.]

Geert.

Reference for a preliminary ruling – Rechtbank te Rotterdam – Netherlands – Interpretation of Council 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 (OJ 1993 L 30, p. 1) and Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste (OJ 2006 L 190, p. 1) – Concept of ‘waste’ – Shipment of Ultra Light Sulphur Diesel (ULSD) by vessel from the Netherlands to Belgium – ULSD mixed accidentally, when the vessel was being loaded, with Methyl Tertiary Butyl Ether (MTBE) – Product no longer corresponding to the specifications agreed upon by the buyer and the vendor – Buyer who became aware of that fact at the time of delivery in Belgium – Diesel taken back by the vendor and shipped to the Netherlands – Purchase price refunded to the buyer – Vendor having the intention of placing the diesel back on the market, whether or not after mixing it with another product – Inclusion or noninclusion in the concept of waste