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.
Jurisdictions worldwide are fast moving away from a ‘waste’ society to one of ‘resources’. landfill mining no longer surprises. Nor does the truism that there is more gold in one ton of mobile phones than there is in one tone of gold ore. Neither, incidentally, can I make anyone smile anymore proclaiming that clients now regularly request arguments, supporting the view that they are dealing in waste rather than in chemicals (such is the daunting prospect of being regulated under the REACH Regulation rather than the waste framework Directives and satellites). For an environmental as well as trade lawyer, the watershed moment which hit Article 35 TFEU (prohibition of exports: until recently unheard of, and revived precisely for environmental and public health reasons), now also hits the WTO: restrictions on exports are a hot item in the WTO, and the European Commission are pondering avenues to keep waste in the EU.
Amidst all of this renewed interest in many materials which until recently we could not wait to get rid off, there is one ‘ginormous’ as my kids would have it, elephant in the room: there is no consensus on the legal definition of ‘ownership’ of waste. European law does not help: neither European nor regional waste legislation contain any provisions on the ownership of waste. They rather apply the concepts of ‘waste producer’ and ‘waste holder’. While these concepts are decisive to impose particular legal liabilities, they are not directly decisive for the ownership of the waste. By way of example one can refer to the judgement of the European Court of Justice in the Van de Walle et al.-case, wherein Texaco was considered as a holder of the waste, despite the fact that it never had any possession over the waste.
The provisions of standard civil law therefore determine ownership. To my knowledge (I would love to hear from readers if they have any case-law from across the EU), case-law on this is scarce to non-existent. The criminal court of first instance at Antwerp came close recently-ish, in a case involving the collection of waste paper from private households (Openbaar Ministerie supported by Stad Antwerpen v G.F., H.M., and A.E, held 22 December 2011 – case on file with me should you be interested). Prosecution was based however on carrying out a licensed activity without a permit – not on theft. The case will now be continued in civil proceedings, for the City of Antwerp dragged its feet in calculating damage. Suggested defence: it was not yours to keep?