Posts Tagged Self-sufficiency
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).
In 2008, the Waste Framework Directive was amended (Directive 2008/98) among others to give Member States more leeway in restricting exports of municipal waste.
Article 16(1) WFD now provides
‘1. Member States shall take appropriate measures, in cooperation with other Member States where this is necessary or advisable, to establish an integrated and adequate network of waste disposal installations and of installations for the recovery of mixed municipal waste collected from private households, including where such collection also covers such waste from other producers, taking into account best available techniques.
By way of derogation from Regulation (EC) No 1013/2006, Member States may, in order to protect their network, limit incoming shipments of waste destined to incinerators that are classified as recovery, where it has been established that such shipments would result in national waste having to be disposed of or waste having to be treated in a way that is not consistent with their waste management plans. Member States shall notify the Commission of any such decision. Member States may also limit outgoing shipments of waste on environmental grounds as set out in Regulation (EC) No 1013/2006.‘
The waste at issue is also known as ‘household’ or ‘domestic’ waste. It is not precisely defined in the WFD, although there are various indications pointing to the origin of the waste being relevant: municipal waste is waste collected from private households. (Things are confused by waste collected from industry sometimes being assimilated with ‘household’ waste, namely when its composition is considered ‘similar’; here of course confusion enters. For domestic waste itself would seem to be defined not by its composition but rather by its origin (even though that origin often betrays its composition)).
In Italcave, the Italian Council of State held on the categorisation of waste originating from shredding, sifting and packaging plants (also known as STIR). Thank you to Lucciano Butti for alerting me to the case.
This is where my input ends, I fear: I should like to hear from those possessing knowledge of Italian beyond my limited, summer holiday driven capabilities (and shall update this posting accordingly). From what I understand, the treatment of the waste was relevant in determining the issue however nature of that treatment, and the wastes’ origin and composition is at this stage not entirely clear to me.
Ragn-Sells: Court leaves open violation of primary EU law by waste shipments Regulation – Free movement of services question left unanswered
The ECJ’s December judgment in Ragn-Sells Case C-292/12 came recently to my attention in revisiting the waste ownership and freedom to provide services question for a brief. The case concerns the combined application of the waste framework Directive, the waste shipments Regulation, the public procurement Directives, the free movement of goods and of services, and, for good measure, competition law, exclusive rights and abuse of dominant position.
The dispute in the main proceedings concerns the lawfulness of contract documents stipulating that mixed municipal waste had to be transported to the landfill facility which was the subject-matter of an earlier public procurement procedure — located 5 km from the contracting town, whilst industrial and building waste was to be taken to a landfill site, located 25 km away.
Not all of these issues were addressed by the ECJ, though: for the issue relating to competition law /creation of exclusive rights which might lead to abuse of dominant position, not enough information had been furnished by the national court.For the issue of free movement of services, there was nothing in the file submitted to the Court indicating that undertakings established in other Member States have been interested in treating waste produced in the territory of the municipality at issue.
The latter especially is a pity (on the competition issue there is plenty of case-law): for the extent of free movement of services in the waste sector (and environmental services generally), is not at all clearly laid out in case-law. Hint for those wanting to use free movement of services arguments in their struggle against restrictive national measures: ensure paper trail of, or indeed if need be, trigger, foreign interest in the waste streams provided.
The Court did entertain the free movement of goods questions. As regards, first of all, waste destined for disposal operations and mixed municipal waste, it follows, the Court held, from Article 11(1)(a) of Regulation No 1013/2006, read in the light of recital 20 in the preamble thereto, and Article 16 of Directive 2008/98, that the Member States may adopt measures of general application restricting shipments of that waste between Member States, in the form of general or partial prohibitions of shipments, by way of implementation of the principles of proximity, priority for recovery and self-sufficiency under Directive 2008/98. By analogy the court then applied Case C‑209/98 Sydhavnens to find eventually that ‘Accordingly, in the case of waste destined for disposal operations and mixed municipal waste collected from private households and, as applicable, other producers, a Member State may confer on local authorities, on the geographical scale it deems appropriate, powers to manage the waste produced on their territory in order to ensure compliance with its obligations under Article 16 of Directive 2008/98. Those authorities may, as part of the powers conferred upon them, provide that those types of waste will be treated in the nearest appropriate facility (at 63).
I continue to argue that especially with respect to mixed municipal waste, this room for manoeuvre provided for by the Regulation combined with the Directive, itself is incompatible with primary EU law. However I am not sure how much longer I can argue that as a result of judicial economy, the ECJ has never really properly addressed this question.
As regards, secondly, shipments of waste destined for recovery operations, other than mixed municipal waste, the Court by contrast held that the combined effect of Regulation and Waste Framework Directive does not provide for the possibility for a national authority to adopt a measure of general application having the effect of prohibiting, totally or partially, shipments of such waste to other Member States for treatment.
In summary, some remaining doubt re free movement of goods (primacy EU law) in my mind. Undoubtedly a lot of remaining doubt re free movement of services. Waste law and free movement: they continue to fascinate!