Posts Tagged Waste Framework Directive

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.

Geert.

(Handbook of) EU Waste law, 2nd ed. 2015, Oxford, OUP, Chapter 1, 1.149 ff.

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AS Tallinna Vesi: The CJEU on sludge and end of waste.

The Court held today in C-60/18 AS Tallinna Vesi and agrees with its AG re the possibility of national criteria, yet unlike Ms Kokott does not see an obligation in the WFD for the Member States to have a proactive vetting and decision procedure. It does not give much specification to its reasoning, other than a reference to the ‘circumstances of the case’. This may refer, but I am speculating, to applicant wanting the authorities generally to sign off on its production method, rather than requesting an opinion on an individual stream. In other words: fishing expeditions must not be entertained.

If my interpretation is right it underscores what I have remarked elsewhere on the regulatory process, for instance in the case of circular economy: in a grey regulatory zone, we need to think of mechanisms to assist industry in embracing environmentally proactive solutions, rather than driving them into incumbent technologies or worse, illegality.

Geert.

Handbook of EU Waste law, 2nd ed. 2015, OUP, 1.166 ff and 1.189 ff.

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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.

Geert.

(Handbook of) EU Waste law, 2nd ed. 2015, Oxford, OUP, Chapter 1, 1.149 ff.

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French end of waste criteria. Undoubtedly no end to the controversy, though.

Thank you Paul Davies for signalling the recent French decree on end of waste – EoW criteria. Such national initiatives are seen by some as being a sign of the failure of relevant provisions of EU Waste law (which suggest the EU should be developing such criteria). An alternative reading may suggest that national initiatives may be better places to read the technical and environmental and pubic health safety requirements at the local level, potentially preparing the way for EU criteria. Relevant procedures under EU law arguably are not the most efficient for the initial development of this type of detailed instrument, as the example of plastics and REACH also shows.

Geert.

Handbook of EU Waste law, 2nd ed. 2015, OUP, 1.166 ff and 1.189 ff.

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Tronex: Reverse logistics and waste back at the CJEU.

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.

Geert.

Handbook of EU Waste law, 2nd ed. 2015, OUP, 1.166 ff and 1.189 ff.

 

Question 1

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?

Question 2

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?

Question 3

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?

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AS Tallinna Vesi: Kokott AG on sludge and end of waste.

Case C-60/18 AS Tallinna Vesi could have been, as Advocate General Kokott noted yesterday, about much more. In particular about the exact scope of the Waste Framework Directive’s exclusion for sewage sludge and the relation between the WFD, the waste water Directive and the sewage sludge Directive. However the referring court at least for the time being sees no issue there (the AG’s comments may trigger the applicant into making it an issue, one imagines) and the AG therefore does not entertain it.

Instead the case focusses on whether waste may no longer be regarded as such only if and after it has been recovered as a product which complies with the general standards laid down as being applicable to it? And on whether, alternatively, a waste holder be permitted to request that the competent authorities decide, on a case-by-case basis and irrespective of whether any product standards are in place, whether waste is no longer to be regarded as such.

Ms Kokott emphasises the wide margin of discretion which the Member States have in implementing the Directive. End of waste (‘EoW’) criteria at the national level (in the absence of EU criteria) may not always be warranted particularly in the context of sewage sludge which is often hazardous. However precisely that need for ad hoc assessment should be mirrored by the existence of a procedure for waste operators to apply ad hoc for clarification on end of waste status.

Geert.

Handbook of EU Waste law, 2nd ed. 2015, OUP, 1.166 ff and 1.189 ff.

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Protreat: The end of Waste status of Waste lubricating oil; the waste hierarchy; and the absence of duty for Member States to issue regulatory guidance.

Does a Member State have any obligation at all, either generally or in case-specific circumstances, to provide guidance as to when a product derived from Waste lubricating oil – ‘WLO’ has or has not achieved end-of-waste status through either re-refining or reprocessing? And in the case at issue, was the UK’s Environment Agency correct in its classification of the treated WLO as still being waste, specifically: did the Agency unfairly favour waste oils recovery over material recycling?  These were the issues in [2018] EWHC 1983 (Admin) Protreat v Environment Agency in which Williams J evidently looked primarily to EU Waste law, the Waste Framework Directive 2008/98 in particular.

Among the many points of factual discussion is a review of the Member States’ duties under the Waste hierarchy: Protreat argue (at 67) that the Environment Agency, ‘as an emanation of the State, is under a duty proactively to direct its resources and use its powers to seek to ensure the result required by the Waste Directive. It is submitted, too, that the result required includes “the management of waste in accordance with the waste hierarchy set out in Article 4 of the Waste Directive”. According to the Claimant, this requires the Defendant to perform its functions, so far as possible, to ensure that waste oil treatments higher in the waste hierarchy “are more attractive than treatments lower in the hierarchy”‘.

Williams J is entirely correct at para 71 ff to hold that the hierarchy does not imply that its strict application in all circumstances is not always justified: indeed the hierarchy instruct first and foremost the best environmental outcome in specific circumstances.

That in and of itself makes regulatory guidance difficult to issue – and EU law in general does not impose any obligation to do so: at 81: ‘the terms of Article 6 and, in particular, paragraph 4 thereof, do not support the contention that the Directive imposes upon Member States a specific obligation to provide end-of-waste guidance whether in relation to the products of re-refining or the products of any other process of conversion of waste. The power to decide end-of-waste status “case by case in accordance with the case-law” would, no doubt, permit a regulator to issue guidance. I am not persuaded, however, that this language can be the vehicle for the creation of a specific obligation to issue guidance.’ (Sir Wyn also referred to Article 4 and Article 21 to support that analysis).

Reference to Luxembourg was requested but declined.

Geert.

 

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