Kokott AG opined end of December in Lapin elinkeino, Case C-358/11 (at the time of writing this post, the English version of the Opinion was not yet available however plenty of other language versions are). I have included the referred questions below. The case involves the use, in accordance with Finnish law, of wood, formerly in use as telephone posts, as underlay and duckboards for a hiking trail in a nature reserve.For that purpose, it is CCA-treated (chromated copper arsenic: a mixture of chromium, copper and arsenic).
The REACH Regulation exempts waste: ‘To ensure workability and to maintain the incentives for waste recycling and recovery,
wastes should not be regarded as substances, preparations or articles within the meaning of this Regulation.’ At the time of adoption of the Regulation, this led to the rather interesting development of clients seeking arguments to have their products considered waste (until then not a preferred option), for compliance under the Waste regulations was /is perceived as less onerous than REACH.
The Waste framework Directive, in the revised 2008 version, includes a specific regime in Article 6 for end-of-waste criteria. It is worth citing it here in full:
1. Certain specified waste shall cease to be waste within the meaning of point (1) of Article 3 when it has undergone a recovery, including recycling, operation and complies with specific criteria to be developed in accordance with the following conditions:
(a) the substance or object is commonly used for specific purposes;
(b) a market or demand exists for such a substance or object;
(c) the substance or object fulfils the technical requirements for the specific purposes and meets the existing legislation and standards applicable to products; and
(d) the use of the substance or object will not lead to overall adverse environmental or human health impacts.
The criteria shall include limit values for pollutants where necessary and shall take into account any possible adverse environmental effects of the substance or object.
2. The measures designed to amend non-essential elements of this Directive by supplementing it relating to the adoption of the criteria set out in paragraph 1 and specifying the type of waste to which such criteria shall apply shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 39(2). End-of-waste specific criteria should be considered, among others, at least for aggregates, paper, glass, metal, tyres and textiles.
3. Waste which ceases to be waste in accordance with paragraphs 1 and 2, shall also cease to be waste for the purpose of the recovery and recycling targets set out in Directives 94/62/EC, 2000/53/EC, 2002/96/EC and 2006/66/EC and other relevant Community legislation when the recycling or recovery requirements of that legislation are satisfied.
4. Where criteria have not been set at Community level under the procedure set out in paragraphs 1 and 2, Member States may decide case by case whether certain waste has ceased to be waste taking into account the applicable case law. They shall notify the Commission of such decisions in accordance with Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services  where so required by that Directive.
Intriguingly, Article 6(4) [Member States deciding end-of-waste status on a case-by-case basis in the absence of Union harmonisation], does not refer to the four criteria which Article 6(1) puts forward as binding in the event of Union harmonisation on same. In contrast with the Commission, the AG suggests that this difference has to be taken at face value. The only benchmark for the Member States is the case-law of the ECJ on the end-of-waste status and on the very definition of waste. Once a Member States decides on that basis that even dangerous waste no longer is waste (or indeed never was waste), it can allow the use of such substance under application of relevant product legislation (here: the rules on CCA-treated wood under REACH).
Importantly, therefore, the AG suggests that dangerous waste can be returned to use as products, in the case at issue under discipline of REACH, in accordance with national law. Member States need not wait for Union criteria to be developed. As suggested therefore in excellent analysis by maitre Enckell, REACH comes to the rescue of the Member States wishing to encourage the return of even hazardous wastes to product status (lest of course the ECJ will see this differently). In the alternative, product use explicitly allowed under REACH for virgin material, would not so be allowed for recovered material. That would not be very sustainable.
1 Is it possible to deduce directly from the fact that waste is classified as dangerous waste that the use of such a substance or object leads to overall adverse environmental or human health impacts within the meaning of Article 6(1)(d) of Waste Directive 2008/98/EC? May hazardous waste also cease to be waste if it fulfils the requirements laid down in Article 6(1) of Waste Directive 2008/98/EC?
2. In interpreting the concept of waste and, in particular, assessing the obligation to dispose of a substance or an object, is it relevant that the re-use of the object which is the subject of the assessment is authorised under certain conditions by Annex XVII as referred to in Article 67 of the REACH Regulation? If that is the case, what weight is to be given to that fact?
3. Has Article 67 of the REACH Regulation harmonised the requirements concerning the manufacture, placing on the market or use within the meaning of Article 128(2) of that regulation so that the use of the preparations or objects mentioned in Annex XVII cannot be prevented by national rules on environmental protection unless those restrictions have been published in the inventory compiled by the Commission, as provided for in Article 67(3) of the REACH Regulation?
4. Is the list in Point 19(4)(b) in Annex XVII to the REACH Regulation of the uses of CCA-treated wood to be interpreted as meaning that that inventory exhaustively lists all the possible uses?
5. Can the use of the wood at issue as underlay and duckboards for a hiking trail be treated in the same way as the uses listed in the inventory referred to in question 4 above, so that the use in question may be permitted on the basis of Point 19(4)(b) of Annex XVII to the REACH Regulation if the other conditions are met?
6. Which factors are to be taken into account in order to assess whether repeated skin contact within the meaning of Point 19(4)(d) of Annex XVII to the REACH Regulation is possible?
7. Does the word ‘possible’ in the point mentioned in question 6 above mean that repeated skin contact is theoretically possible or that repeated skin contact is actually possible to some extent?