Posts Tagged ejc

AS Tallinna Vesi: The CJEU on sludge and end of waste.

The Court held today in C-60/18 AS Tallinna Vesi and agrees with its AG re the possibility of national criteria, yet unlike Ms Kokott does not see an obligation in the WFD for the Member States to have a proactive vetting and decision procedure. It does not give much specification to its reasoning, other than a reference to the ‘circumstances of the case’. This may refer, but I am speculating, to applicant wanting the authorities generally to sign off on its production method, rather than requesting an opinion on an individual stream. In other words: fishing expeditions must not be entertained.

If my interpretation is right it underscores what I have remarked elsewhere on the regulatory process, for instance in the case of circular economy: in a grey regulatory zone, we need to think of mechanisms to assist industry in embracing environmentally proactive solutions, rather than driving them into incumbent technologies or worse, illegality.

Geert.

Handbook of EU Waste law, 2nd ed. 2015, OUP, 1.166 ff and 1.189 ff.

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TPS-NOLO (Geobal): CJEU on take-back of ‘waste’, relation with REACH.

As I discussed with Stephen Gardner in Bloomberg Environment, the CJEU held yesterday in C-399/17 EC v Czech Republic, where the question is whether the Czech Republic has infringed the waste shipments Regulation 1013/2006 by refusing to take back a substance known as TPS-NOLO (or Geobal) that had been shipped to Poland without respecting the requisite formalities of the Waste Shipment Regulation.

Approximately 20 000 tonnes of TPS-NOLO (Geobal) and composed of tar acid, a remnant after refining oil (code 05 01 07* of the European waste catalogue), of carbon dust and of calcium oxide. Poland considered the substance to be hazardous waste classified in Annex IV to the Waste Shipment Regulation (‘Waste tarry residues (excluding asphalt cements) arising from refining, distillation and any pyrolitic treatment of organic materials’).  The Czech citizen responsible for the shipment to Poland presented the standards adopted by the company as well as proof that the substance in question was registered under the REACH Regulation and that it was used as fuel.

Wahl AG had suggested inadmissability, as I discuss here. The Court however disagreed, and on substance dismissed the EC action in five steps summarised very well in its case-summary. Of note in particular with respect to the REACH /WFD relation is that the Court holds that while the EC is right in being sceptical about WFD evasion via REACH (not that straightforward an assumption, given the cumbersome implications of REACH compliance), the Commission needs to bring specific evidence to the table rather than mere speculation.

Not an earth-shattering case yet a relevant one also with a view to circular economy debates, where REACH’ data requirements are an important concern for recyclers.

Geert.

Handbook of EU Waste law, 2nd ed. 2015, OUP, i.a.at para 1.201.

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AS Tallinna Vesi: Kokott AG on sludge and end of waste.

Case C-60/18 AS Tallinna Vesi could have been, as Advocate General Kokott noted yesterday, about much more. In particular about the exact scope of the Waste Framework Directive’s exclusion for sewage sludge and the relation between the WFD, the waste water Directive and the sewage sludge Directive. However the referring court at least for the time being sees no issue there (the AG’s comments may trigger the applicant into making it an issue, one imagines) and the AG therefore does not entertain it.

Instead the case focusses on whether waste may no longer be regarded as such only if and after it has been recovered as a product which complies with the general standards laid down as being applicable to it? And on whether, alternatively, a waste holder be permitted to request that the competent authorities decide, on a case-by-case basis and irrespective of whether any product standards are in place, whether waste is no longer to be regarded as such.

Ms Kokott emphasises the wide margin of discretion which the Member States have in implementing the Directive. End of waste (‘EoW’) criteria at the national level (in the absence of EU criteria) may not always be warranted particularly in the context of sewage sludge which is often hazardous. However precisely that need for ad hoc assessment should be mirrored by the existence of a procedure for waste operators to apply ad hoc for clarification on end of waste status.

Geert.

Handbook of EU Waste law, 2nd ed. 2015, OUP, 1.166 ff and 1.189 ff.

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Wahl AG proposes inadmissability in TPS-NOLO (Geobal): Take-back of ‘waste’, relation with REACH.

Another interesting waste-case at the CJEU last week, although unfortunately one in which Wahl AG proposes inadmissibility. In C-399/17 EC v Czech Republic, the question is whether the Czech Republic has infringed the waste shipments Regulation 1013/2006 by refusing to take back a substance known as TPS-NOLO (or Geobal) that had been shipped to Poland without respecting the requisite formalities of the Waste Shipment Regulation.

Approximately 20 000 tonnes of TPS-NOLO (Geobal) and composed of tar acid, a remnant after refining oil (code 05 01 07* of the European waste catalogue), of carbon dust and of calcium oxide. Poland considered the substance to be hazardous waste classified in Annex IV to the Waste Shipment Regulation (‘Waste tarry residues (excluding asphalt cements) arising from refining, distillation and any pyrolitic treatment of organic materials’).  The Czech citizen responsible for the shipment to Poland presented the standards adopted by the company as well as proof that the substance in question was registered under the REACH Regulation and that it was used as fuel.

The case raises interesting issues therefore on the relationship between REACH and Waste, on which I have written briefly inter alia here and, more extensively and with Dr Thomas de Romph, here. At 3 already, Wahl signals that his Opinion will not however lead to findings on the merits of the case: ‘ Finding that there was no infringement in the present case could potentially weaken the effectiveness and enforceability of the Waste Shipment Regulation, whose main and predominant object and component is protection of the environment. However, courts are guided, first and foremost, by procedural principles that ensure a due process in each individual case. Those principles cannot be sacrificed in order to further a greater cause, as noble as it might be.’

The due process issues essentially relate to the European Commission’s handling of the infringement procedure, in which, the AG suggests proprio motu,  it did not formulate a proper statement of claim. Details are in the Opinion and readers are best referred to it.

Now, there is no such thing as double jeopardy when it comes to infringement proceedings hence one can only hope that the Commission services will reinitiate the proceedings (lest of course the CJEU disagree with the AG’s Opinion).

Geert.

Handbook of EU Waste law, 2nd ed. 2015, OUP, i.a.at para 1.201.

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Place of performance of multimodal transport. CJEU in Zurich Insurance adds place of dispatch.

I reviewed Tanchev AG’s Opinion in C-88/17 Zurich Insurance v Metso here. The CJEU held last week. Like its AG, it upholds the place of dispatch of the goods as being a place of performance under Article 7(1)b, second indent Brussels I Recast. At 21-22: ‘When goods are carried, it is at the place of dispatch that the carrier has to perform a significant part of the agreed services, namely to receive the goods, to load them adequately and, generally, to protect them so that they are not damaged. The incorrect performance of the contractual obligations related to the place of dispatch of goods, such as, inter alia, the obligation to load goods adequately, may lead to incorrect performance of the contractual obligations at the place of destination of the carriage.’

The AG pondered, and rejected, the many intermediate places where the transport was carried out, as places of performance. The Court itself does not entertain this suggestion but clearly sides with the AG in not wanting to expand the list of possible fora to extensively.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.1

 

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Place of performance of multimodal transport. Tanchev AG in Zurich Insurance seeks support in flightright, and in the CMR and Hamburg rules.

Not just my blog posts on both cases follow each other closely. Tanchev AG in his Opinion in C-88/17 Zurich Insurance v Metso, takes inspiration from the Court’s findings in flightright (which I reported this morning). He emphasises the objective of predictability of the Brussels I Recast Regulation.

The case concerns multimodal transport of goods from one Member State to another. Pursuant to an agreement entered into with a Finnish undertaking, a British haulier undertook to carry goods from Finland to the United Kingdom. After the goods concerned were lost while being transported in the United Kingdom, the Finnish undertaking and the insurer of the goods sued for damages before a Finnish court. Does that court have jurisdiction per Article 7(1)b, second indent ?: in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided.

ALS concluded a contract for the carriage of goods with Metso Minerals Oy (‘Metso’), a Finnish manufacturer of equipment for the mining and construction industries. A cylindroconical crusher was to be transported from Pori in Finland to Sheffield in the United Kingdom. The crusher was insured by Zurich Insurance plc (‘Zurich’). Both Metso and Zurich are the plaintiffs in the main proceedings.

ALS, with the help of subcontractors, transported the crusher as follows. It was first transported from Pori to Rauma in Finland by a lorry with a low loader. At Rauma, it was unloaded from the lorry and driven on to a ship under its own power. After transport by sea to the United Kingdom, the crusher was again driven under its own power off the ship in the port of Hull and loaded onto another lorry. As Metso’s consignee did not have sufficient or adequate storage capacity, it asked a sub-contractor of ALS to drive the crusher to its own warehouse and keep it there temporarily for a couple of days. However, the crusher was stored there for a longer period, and disappeared before it could be delivered to the consignee in Sheffield.

ALS argues that only the place of unloading may be deemed to be the place of performance, claiming that the place of performance can only be one single place and that the place of final destination is of considerably greater importance than the place of dispatch. This, according to ALS, is consistent with the determination of the applicable law in respect of contracts for the carriage of goods under Rome I, which gives a degree of preference to the place of delivery and is to be interpreted taking into account the Brussels I Regulation.

The Commission, referring to CJEU predecent RehderWood Floor Solutions Andreas Domberger and Color Drack, acknowledges that, in any event, the place of arrival is a place of performance, as it is the final place in the chain of transportation. The Commission further argues, however, that, bearing in mind the requirements of proximity, foreseeability and legal certainty, it would be appropriate to recognise in addition the place of dispatch as a place of performance.

The question of international jurisdiction arises in the main proceedings because the case has connections not only with Finland but also with other countries: Finland is the country in which the goods were dispatched and the consignor has its seat, whereas the destination of the goods being carried and the location of the haulier’s seat is in the United Kingdom, where, moreover, the goods were ultimately lost. Finally, in order to convey the crusher from Finland to the United Kingdom, it had to be transported through the waters of other Member States or waters under the sovereignty of no State. In ordinary language, the AG suggests (at 28) all these territories and waters are places where the contract was performed.

According to their wording, both sections (a) and (b) of Article 5(1) of the Brussels I Regulation refer to ‘the place of performance’ and, in the case of section (b), additionally to ‘the place in a Member State’. In consideration of the singular form employed, it seems,  the AG suggests at 30, that only one single place can be regarded as having special jurisdiction in respect of contractual matters. However, this conclusion is not borne out by the case-law.

In color Drack the Court ruled that, if it is not possible to determine one single principal place of performance, each of the places of performance has a sufficiently close link of proximity to the material elements of the dispute and, accordingly, a significant link as regards jurisdiction. In a dispute concerning the sale of goods, the Court has held that, in such a case, the plaintiff may sue the defendant at one of the places of performance — at his choice.

In flightright, as far as delayed flights are concerned, the Court considers both the place of departure and the place of the final destination to be equally significant under the contract, thereby establishing a sufficient territorial link between these places and any proceedings arising from the contractual situation.

(At 59) In the present situation, where the means used to transport the goods change as the journey progresses, particularly in harbours, the fact that the goods are carried in a number of different stages is also an inevitable feature of such transport. In the AG’s view, however, even the fact that it was necessary to unload heavy and bulky goods such as the crusher in question and transfer it across land under its own power, with the dangers in terms of loss or damage inherent in a procedure of that kind (including the possibility of theft), does not alter the situation in such a way as to give the places of reloading or transhipping an importance equal to that of the place of dispatch. Therefore, recognising the latter place, along with the place of destination, as one of two ‘places of performance’ does not enhance the number of available fora in a way as to give reason for concerns of forum shopping.

The AG clearly struggles between limiting forum shopping and enhancing predictability, and suitability of various places to assess the litigation at issue. The AG (at 60) finds support for his view that the intermediate stages should not so be given jurisdiction, in the fact that it is common practice not to mention the places of reloading or reshipping in contracts of the kind in issue in the main proceedings.

The AG concludes therefore that the place of dispatch and the place of destination are thus both ‘main places of performance’ under the second indent of Article 7(1)(b), whereas the loading places in general are not.

A good case to further complete analysis under Article 7(1).

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.1

 

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Off-spec fuel: Else Marie Theresa: Not all blending disables qualification as waste.

The CJEU’s finding in Shell, was applied by the Court of first instance at Antwerp in a judgment from October last, which has just reached me. (I have not yet found it in relevant databases (not uncommon for Belgian case-law), but I do have a copy for those interested). The case concerned debunkered off-spec fuel, off the ship Else Maria Theresa (her engines apparently having been affected by the oil being off-spec), blended into /with a much larger amount of bunker oil.

The court applied the Shell /Carens criteria, leading to a finding of waste. In brief, the blending in the case at issue was not, the court held, standing practice in the bunkering /debunkering business, and /or a commercially driven, readily available preparation of off-spec for purchase by eager buyers. Rather, a quick-fix solution to get rid off unwanted fuel.

The judgment (which is being appealed I imagine) emphasises the case-by-case approach needed for the determination of ‘waste’. It relies heavily on (the absence of) evidence on market consultation and signals from interested buyers for the off-spec fuel.

Geert.

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