Posts Tagged Raad van State

Belgian Council of State highlights authorities’ duty of care in assessing BAT (Export of waste).

The Belgian Council of State (the highest administrative court) has annulled the Flemish waste agency’s export permit in the so-called ‘Slufter’ case, involving large quantities of toxic dredging spoil (for the aficionados: classified as EURAL 17 05 05*; ia with heavy doses of tributyltin – TBT) dredged from the port of Antwerp. The case made by applicants was that the waste would be disposed of in the port of Rotterdam’s ‘slufter’ by way of mere dumping, as opposed to processing ‘at home’ in the Flemish region.

At issue was Article 11 of the Waste shipments Regulation 1013/2006, which allows Member States of export to object to planned shipments of waste destined for disposal. Applicants’ case was that the Flemish waste agency – OVAM should have disallowed the shipment on the basis of the proximity and the self-sufficiency principles. OVAM however pointed out that even if in optimal circumstances, processing in Flanders could lead to higher rates of recovery of the waste, much of it would still simply have to be landfilled. Importantly, it preferred disposal in the Slufter on the basis that the logistics chain was much shorter: load up, transport, dump. As opposed to load up, transport to processing facility for partial recovery (involving three separate processes); load-up of the solid waste left; transport and dump.

The Council of State ruled at the end of May that this decision by OVAM, in particular the reliance of the extent of the logistics chain, lacks proper assessment of the Best Available Technologies for dredging spoil, hence leading to insufficient assessment of the proximity and self-sufficiency principles. The ruling is relevant also with a view to the remainder of the spoil that will continue to be dredged.

For easy of reference (for those wishing to locate copy of the ruling): case numbers are 238220 -238224 included).

Geert.

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Belgian parliamentary watchdog upholds unstunned slaughter, protects Shechita (kosher) and Zabihah (halal).

Update 8 May 2017. Following a botched attempt at reconciliation, Parliament is now debating a ban to enter into force 1 January 2019.

Update 26 October 2016 The Flemish Parliament today voted not to accept the bill – at least for the time being.

Update 28 July 2016 A Brussels Court has referred to the CJEU for interpretation of the EU Regulation, questioning whether the Regulation’s regime may itself be incompatible with the ECHR. Update 16 September 2016 the case number is C-426/16. See here for the questions referred (in Dutch).

The Belgian Council of State, chamber of legislation (in the title I call it a ‘parliamentary watchdog: for that is what it is. By issuing prior opinions on the legality of legislative initiative it guards against illegal Statute) has opined that a private members bill banning unstunned slaughter, does not pass the ECHR test.

A European Regulation (1099/2009) provides for an unclear, and conditional,  exemption for religious (regularly rather offendingly called ‘ritual’) slaughter. Practised in particular by the Jewish (Shechita; leading to ‘kosher’ meat) and Muslim (Zabihah; with halal meat) faith, a core aspect of the practice is that animals are not stunned prior to slaughter. The science on the effect of stunned or unstunned slaugther is equivocal. What is certain is that neither stunned nor unstunned slaughter, when carried out incorrectly (well documented in the case of stunned slaughter) aids the welfare of the animal.

Religious slaughter falls squarely within the European Convention of Human Rights Article 9’s freedom of religious expression. Hence the Council of State summarily (its conciseness is rather attractive) reviews the ECtHR’s case-law and concludes that the proposed ban would be both unconstitutional and clearly against the provisions of the ECHR.

On the EU Regulation front, I believe the EU rules are more problematic than the Opinion suggests (I have analysis on it forthcoming) however on the ECHR side of things, the Opinion could not be more correct. An outright ban on unstunned slaughter in the name of animal welfare or otherwise would offend freedom of religious expression to such a degree that it simply must not pass.

Geert.

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When is fly ash a waste? Dutch Raad van State in Mebin

In Mebin, the Dutch Raad van State (the High court in administrative law matters – in casu appeal against permit conditions) reviews the application of the waste definition to fly ash (a residue of combustion).

The most important characteristic of the EU definition of waste under Directive 2008/98, is that it does not define waste. Not really anyway. For a succinct review of the issues in defining waste, see my short piece in ELNI review 2006 here and exactly 10 years earlier my Bypass article in EBLR here.  As reported earlier in the blog, the definition of waste remains problematic in a number of stubborn cases.

The Raad van State in my view adopts a perfectly sensible approach which, in Arco Chemie fashion, insists on proper review of the facts of the case and on the ‘intentional’ element in waste definition issues having to be reviewed for each of the market chain participants. Whence

– it rejects the classification as waste of fly ash originating in electricity generation, without the authorities having carried out a duly justified factual analysis [was the production process fine-tuned so as to ensure the (inevitable) production of fly ash but with specific technical parameters], and

– it opposes the view that waste generated can only be considered as having been fully ‘recycled’ (hence losing its qualification as ‘waste’) until it has been used in the final place of destination. Rather, the intermediate pimping so to speak of the fly ash to make it suitable for use in Mebin’s production process, renders the waste into a resource or secondary raw material.

Geert.

 

 

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