Posts Tagged Off-spec
Tronex. Determining ‘waste’ in reverse logistics chains. CJEU supports holders’ duty of inspection, rules out consumer return under product guarantee as ‘discarding’.
I reviewed Kokott AG’s Opinion in C-624/17 OM v Tronex here. The Court yesterday essentially confirmed her Opinion – readers may want to have a quick read of my previous posting to get an idea of the issues.
The Court distinguishes between two main categories. First, redundant articles in the product range of the retailer, wholesaler or importer that were still in their unopened original packaging. The Court at 32: ‘it may be considered that those are new products that were presumably in working condition. Such electrical equipment can be considered to be market products amenable to normal trade and which, in principle, do not represent a burden for their holder.’ However (at 33) that does not mean that these can never be considered to be ‘discarded’: the final test of same needs to be done by the national court.
The second category are electrical appliances returned under the product guarantee. At 43: goods that have undergone a return transaction carried out in accordance with a contractual term and in return for the reimbursement of the purchase price cannot be regarded as having been discarded. Where a consumer effects such a return of non-compliant goods with a view to obtaining a reimbursement of them under the guarantee associated with the sale contract of those goods, that consumer cannot be regarded as having wished to carry out a disposal or recovery operation of goods he had been intending to ‘discard’ within the meaning of the Waste Framework Directive. Moreover per C-241/12 and C-242/12 Shell, the risk that the consumer will discard those goods in a way likely to harm the environment is low.
However such a return operation under the product guarantee does not provide certainty that the electrical appliances concerned will be reused. At 35: ‘It will therefore be necessary to verify, for the purposes of determining the risk of the holder discarding them in a way likely to harm the environment, whether the electrical appliances returned under the product guarantee, where they show defects, can still be sold without being repaired to be used for their original purpose and whether it is certain that they will be reused.’
At 36: if there is no certainty that the holder will actually have it repaired, it has to be considered a waste. At 40 ff: In order to prove that malfunctioning appliances do not constitute waste, it is therefore for the holder of the products in question to demonstrate not only that they can be reused, but that their reuse is certain, and to ensure that the prior inspections or repairs necessary to that end have been done.
The Court ends at 42 with the clear imposition of a triple duty on the holder (who is not a consumer, per above): a duty of inspection, and, where applicable, a duty of repair and of packaging.
(Handbook of) EU Waste law, 2nd ed. 2015, Oxford, OUP, Chapter 1, 1.149 ff.
Tronex. Circular economy, reverse logistics qualifying as wastes return to the CJEU. Kokott AG suggests a duty of prompt inspection.
Kokott AG Opined in C-624/17 OM v Tronex end of February (I had flagged the case summarily earlier): whether consumer returns of electrical appliances some of which are no longer usable because defective, and residual stock are to be regarded as waste that may be exported only in accordance with the Waste Shipment Regulation. – Reminiscent of the issues in Shell: in that case in a B2B context.
Tronex’ export consignment that was stopped, consisted of appliances which had been returned by consumers under a product guarantee, on the one hand, and goods which, because of a change to the product range, for example, were or could no longer be sold (normally), on the other. A number of the boxes in which the appliances were packaged carried a notice stating their defects. The glass in some of the glass kettles was damaged. The shipment was to take place without notification or consent in accordance with the Waste Shipment Regulation.
The AG takes a sensible approach which distinguishes between consumer and collector. At 31 ff: The mere fact that objects have been collected for the purpose of reuse does not in itself necessarily support the assumption that they have been discarded. Indeed, it seems sensible, both economically and from the point of view of the efficient use of resources, to make appliances which can no longer be sold on the market for which they were originally intended available on other markets where they may still sell. Particularly in the case of residual stock which is still in its unopened original packaging, therefore, the request for a preliminary reference contains insufficient evidence to support the conclusion that there has been any discarding.
Returned appliances which, on account of serious defects, are no longer usable and can no longer be repaired at reasonable cost, on the other hand, must unquestionably be regarded as waste. Kokott AG suggests waste classification as the default position. At 39: in so far as there are doubts as to the reuse of the goods or substance in question being not a mere possibility but a certainty, without the necessity of using any of the waste recovery processes referred to in the Waste Directive prior to reuse, only the possibility of ‘prompt’ dispelling of the doubt by an inspection of the appliances, can shift the presumption of it being waste.
‘Repair’ is what the AG proposes as the distinctive criterion: at 40: if the inspection shows that the item is still capable of functional use, its status as waste is precluded. The same is true of goods with minor defects which limit functionality only negligibly, meaning that these goods can still be sold without repair, in some cases at a reduced price. At 41: ‘In so far as the inspection identifies defects which need to be repaired before the product is capable of functional use, however, that product constitutes waste, since there is no certainty that the retailer will actually carry out the repair. Whether the repair is less or more expensive cannot be decisive in this regard, since a product that does not work constitutes a burden and its intended use is in doubt.’ The same goes for goods (other than those in the original packaging, per above) which have not been inspected at all.
At 45 ff the AG supports this conclusion with reference to instruction in Annexes to the WEEE Directive. She also suggests that her interpretation, given the criminal law implications, be limited to those instances occurring after the eventual CJEU judgment.
(Handbook of) EU Waste law, 2nd ed. 2015, Oxford, OUP, Chapter 1, 1.149 ff.
I have review of Shell at the CJEU here, and final judgment in Rotterdam here. Next Thursday the hearing takes places in C-624/17 Tronex which echoes many of the issues in Shell. When, if at all, is the definition of waste triggered in a reverse logistics chain: with a focus on the relationships between the various professional parties in the chain (that the consumer is not handling waste when returning a product in these circumstances is now fairly established).
Questions referred are below.
Handbook of EU Waste law, 2nd ed. 2015, OUP, 1.166 ff and 1.189 ff.
1. (a) Is a retailer which sends back an object returned by a consumer, or an object in its product range that has become redundant, to its supplier (namely the importer, wholesaler, distributor, producer or anyone else from whom it has obtained the object) pursuant to the agreement between the retailer and its supplier to be regarded as a holder which discards the object, within the meaning of Article 3.1 of the Framework Directive? 1
(b) Would the answer to Question 1.(1) be different if the object is one which has an easily repairable fault or defect?
(c) Would the answer to Question 1.(1) be different if the object is one which has a fault or defect of such extent or severity that it is, as a result, no longer suitable or usable for its original purpose?
2. (a) Is a retailer or supplier which sells on an object returned by a consumer, or an object in its product range which has become redundant, to a buyer (of residual consignments) to be regarded as a holder which discards the object, within the meaning of Article 3.1 of the Framework Directive?
(b) Is the answer to Question 2.(1) affected by the amount of the purchase price to be paid by the buyer to the retailer or supplier?
(c) Would the answer to Question 2.(1) be different if the object is one which has an easily repairable fault or defect?
(d) Would the answer to Question 2.(1) be different if the object is one which has a fault or defect of such extent or severity that it is, as a result, no longer suitable or usable for its original purpose?
3. (a) Is the buyer which sells on to a (foreign) third party a large consignment of goods bought from retailers and suppliers and returned by consumers, and/or goods that have become redundant, to be regarded as a holder which discards a consignment of goods, within the meaning of Article 3.1 of the Framework Directive?
(b) Is the answer to Question 3.(1) affected by the amount of the purchase price to be paid by the third party to the buyer?
(c) Would the answer to Question 3.(1) be different if the consignment of goods also contains some goods which have an easily repairable fault or defect?
(d) Would the answer to Question 3.(1) be different if the consignment of goods also contains some goods which have a fault or defect of such extent or severity that the object in question is no longer, as a result, suitable or usable for its original purpose?
(e) Is the answer to Questions 3.(3) or 3.(4) affected by the percentage of the whole consignment of the goods sold on to the third party that is made up of defective goods? If so, what percentage is the tipping point?
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.
Update 11 January 2016: Shell inform me that the DA (‘parket’ /Openbaar Ministerie) has appealed.
I have reported some time ago on the reverse logistics case involving Shell and Carens. As noted in that post, the CJEU instructed the court at Rotterdam to gauge the ‘true intentions’ of Shell vis-a-vis the contaminated fuel which it had taken back from one of its clients (Carens).
The Court at Rotterdam issued its final judgment on 23 December last, truly a christmas present for the companies involved for the accusations of illegal waste shipments were rejected. (I could not locate the judgment on ECLI yet: I have a copy for those interested).
The court first of all rejected a rather neat attempt of the Dutch prosecutor to get around the CJEU’s finding in para 46 of its judgment : ‘it is particularly important that the Belgian client returned the contaminated ULSD to Shell, with a view to obtaining a refund, pursuant to the sale contract. By so acting, that client cannot be regarded as having intended to dispose of or recover the consignment at issue and, accordingly, it did not ‘discard’ it within the meaning of Article 1(1)(a) of Directive 2006/12.‘ It was suggested that incoterm FOB (‘Free on Board’), applicable to the agreement between Carens and Shell, meant that the qualification of the payment by Shell could not have been a refund for defective goods (ownership of the goods already having been transferred prior to contamination) but rather the payment of damages for a contract not properly carried out. This, it was argued, made para 46 irrelevant for the facts of the case. The court at Rotterdam essentially argued that par 46 needs to be applied beyond the black letter of the law: in effect, in acting as they did and following their running contractual relationships, Shell and Carens had decided to annul the sale, sale price was refunded, and Carens could therefore not be seen as owner or holder of the goods.
Neither, the court held, could Shell be considered a discarding the fuel: the court paid specific attention to testimony that the fuel concerned was actually presented to market, with a view to establishing what price it could fetch. Offers were made which were not far off the initial sale price. Re-blending of the fuel was only done to obtain a higher price and was carried out in accordance with established market practices. Shell’s resale of the fuel, as holder of it, was not just a mere possibility but a certainty (language reminiscent of what the CJEU normally employs for the distinction recovery /disposal).
Final conclusion: the fuel at no stage qualified as waste and no one could have discarded it.
A very important judgment indeed – it will be interesting to see whether the prosecutor’s office will appeal.
The ECJ this morning held in Case C-241/12 and C-242/12 Shell Nederland Verkoopmaatschappij NV and Belgian Shell. The judgment was not yet uploaded unto the ECJ website however it should be soon (and presumably also in English). I reported earlier on the AG’s Opinion which was not very favourable. There is much more hope in today’s judgment.
Most important to me is the finding by the Court (at 46) that in order to determine whether client who received the off-spec product, discards it, particular attention needs to be paid to the fact that the (Belgian) client returned the off-specification fuel with a view to obtaining repayment in accordance with the sales agreement. As I discuss in my posting on the Opinion, the Advocate General generally and unjustifiably dismissed the relevance of the contractual context.
The Court also emphasises that Shell at any rate cannot have been considered to have discarded the product before it was discovered that the product was off-spec (as a result of contamination). The ECJ instructed the Court at Rotterdam to discover Shell’s true intention, taking into account in particular the possibility to sell the off-spec product to another buyer in its off-spec state; the fact that no waste operations (disposal or recovery) such as outlined in the Waste Framework Directive had to be carried out; that the market value of the off-spec product sold corresponds almost one to one to the value of the on-spec product; and Shell’s acceptance of the product with a view to blending so as to re-market it. This latter point is important: blending is not seen by the Court as a waste recovery operation.
Back to Rotterdam therefore without a definitive answer however with another piece in the waste definition jigsaw laid (in particular: the contractual context). Very very important judgment.
JÄÄSKINEN AG in Shell: Re-blended fuel was discarded. Waste status of off-spec and reverse logistics products remains uncertain.
I have reported earlier on the importance of the judicial review in Shell. JÄÄSKINEN AG this morning opined that A consignment consisting of fuel which the vendor takes back and processes through blending with a view to placing it back on the market, because the fuel had been unintentionally mixed with a substance and therefore no longer satisfies safety requirements so that it could not be stored by the buyer pursuant to an environmental permit, must be considered as waste
The Advocate-General’s Opinion was very much focused on the factual aspects of the case. Disappointingly, he did not much entertain many of the criteria suggested by the court at Rotterdam – for reasons of judicial economy, one imagines. However Advocate Generals do often get carried away on the analysis. A pitty that did not happen here. Core to the AG’s Opinion is his finding (at 25) that
re-blending of the fuel before its resale, in my opinion, points towards an intention to discard it, and the act of re-blending itself amounts to recovery;
With respect to the contractual context, the AG notes (at 26) that the fact that the contaminated fuel was ‘off-spec’ in relation to the specifications appearing in the contract between Shell and Carens is irrelevant to determining whether it amounts to waste under mandatory EU waste law, the latter being of a public law nature and not subject to the will of the parties to a contract.
While I am of the view that the contract cannot singlehandedly determine the qualification or not as waste, its (seemingly at least) outright dismissal by the AG as a factor to consider (at least in this para), is disappointing. It is not, I submit, in line with the WFD. Neither arguably is the link which the AG makes at 14 (and in his final Opinion) between an environmental permit, and the qualification of the substance as waste. Ad absurdum: a stolen tanker full of diesel is left for re-sale in a rented garage. The garage has not been given a permit for storage of diesel. Yet the diesel has not turned into waste.
With respect to the overall debate on reverse logistics, there is an interesting section in the Opinion at 37: ‘a consignment consisting of ULSD mixed unintentionally with MTBE and having as a result a flame point lower than allowed for diesel sold from the pump becomes waste within the meaning of Article 1(1)(a) of Directive 2006/12 at the point of contamination, and remains as such up to its recovery by blending or by its commercial re-classification in a manner that is objectively ascertainable.‘[emphasis added by me]. This latter part does open room for products re-sent across the logistics chain not to be considered waste, however there needs to be some kind of ‘objectively ascertainable’ re-classification: this requires some thinking in terms of compliance.
The AG makes the following comparison at 40:
I would like to close by emphasising that mere failure to fulfil agreed contractual specifications does not, as such, mean that a substance or product is necessarily to be considered as waste. If a trader delivers to a restaurant minced meat that is a mixture of beef and horse, instead of pure beef as agreed between the parties, he may be contractually obliged to accept return of the delivery without it thereby becoming waste. However, if the product results from accidental contamination of beef with horse meat during the processing of minced meat, he has an obligation to discard the minced meat up and until its precise characteristics have been ascertained and the minced meat is either disposed of or commercially reclassified, for example, as feed for minks, or as a beef-horse meat mixture for human consumption, provided it satisfies the relevant requirements under food-stuffs regulations. More generally, a non-intentionally manufactured mixture of compound is prima facie waste if the use to which it is intended to be put is not safe, in the absence of knowledge of its composition. This applies to products such as food or fuel whose qualities are important to human health and the environment.
In this section, therefore, the contractual context between parties to a transaction, does seem to enter the train of thought when deciding on the waste status of an off-spec or reverse logistics product.
The ink on the Opinion is literally still drying and undoubtedly there are more angles to it than I report above. However I for one should like the ECJ to state something more unequivocal on the impact of the contractual context, when it delivers its judgment presumably in the autumn.