Update 6 July 2020 The Court held at the end of May (at the time of writing, an EN version is still not available). Given the mixed messages in the language versions of the Regulation’s Annexes, it gives priority to the international agreement which the Regulation is meant to transpose, ie the Basel Convention. From the statutory build-up of the relevant Basel Annex, it holds that mixtures of wastes cannot be classified under one of the relevant entries of the green list; and also that up to 10% impurities do not impact the classification.
In C-654/18 Interseroh Sharpston AG opined on 30 January, in answer to a German court wishing to ascertain whether a waste stream composed principally of paper products should be categorised as so-called ‘green’ waste and therefore subject to the flexible control procedure provided in the EU’s Waste Shipment Regulation 1013/2016. The referring court also asks whether such waste can still be categorised as ‘green’ if it contains up to 10% impurities.
The Regulation combines rules of purely EU origin, with a sometimes complex combination of OECD and 1989 Basel Convention rules. It generally employs a listing system with corresponding light signals (green and amber, previously also red) with the green list being the most desirable to exporters: these only require compliance with the same rules as ordinary commercial transactions.
Regardless of whether or not wastes are included on the list of wastes subject to the Green Control Procedure (Appendix 3 of the EU Regulation), they may not be subject to the Green control procedure if they are contaminated by other materials to an extent which (a) increases the risks associated with the wastes sufficiently to render them appropriate for submission to the amber control procedure, when taking into account the criteria in Appendix 6 to this Decision, or (b) prevents the recovery of the wastes in an environmentally sound manner’.
In the dispute at issue Interseroh collects used sales packaging (lightweight packaging) from private final consumers throughout Germany which it then consigns to recovery. It ships the prepared waste paper across the border for recycling in a paper factory in Hoogezand (Netherlands). New paper and new paperboard is produced from the waste paper. The Netherlands purchaser, ESKA stipulates that the waste paper must meet the following specifications. It should be composed of at least 90% used, residue-drained, system-compatible paper, paperboard or cardboard (PPC) articles and PPC-based combinations, with the exception of liquid packaging board including packaging parts such as labels etc. Also, the waste stream must contain no more than 10% impurities (‘the mixture of wastes at issue’).
The Dutch and German import cq export authorities differ as to the inclusion or not of the transported wastes at issue, with the Dutch taking a more relaxed approach on the basis of the Dutch version of the relevant Basel entry B3020.
- The Dutch version reads „De volgende materialen, mits deze niet vermengd zijn met gevaarlijke afvalstoffen:
Oud papier en karton:
– ongebleekt papier en karton of gegolfd papier en golfkarton; – overig papier en karton, hoofdzakelijk gemaakt van gebleekt chemisch pulp, dat niet in bulk is gekleurd; – papier en karton hoofdzakelijk gemaakt van mechanisch pulp (bv. kranten, tijdschriften en soortgelijk drukwerk); – overige, met inbegrip van: 1. gelamineerd karton, 2. ongesorteerd afval
- The German version: “Folgende Stoffe, sofern sie nicht mit gefährlichen Abfällen vermischt sind:
Abfälle und Ausschuss von Papier und Pappe
– ungebleichtes Papier und Wellpapier und ungebleichte Pappe und Wellpappe; – hauptsächlich aus gebleichter, nicht in der Masse gefärbter Holzcellulose bestehendes anderes Papier und daraus bestehende andere Pappe; – hauptsächlich aus mechanischen Halbstoffen bestehendes Papier und daraus bestehende Pappe (beispielsweise Zeitungen, Zeitschriften und ähnliche Drucksachen); – andere, einschließlich, aber nicht begrenzt auf: 1. geklebte/laminierte Pappe (Karton) , 2. nicht sortierter Ausschuss.
- The English version: The following materials, provided they are not mixed with hazardous wastes:
Waste and scrap of paper or paperboard of:
– unbleached paper or paperboard or of corrugated paper or paperboard; – other paper or paperboard, made mainly of bleached chemical pulp, not coloured in the mass; – paper or paperboard made mainly of mechanical pulp (for example, newspapers, journals and similar printed matter); – other, including but not limited to: (1) laminated paperboard, (2) unsorted scrap.
According to the wording of the German-language version, point 2 of the fourth indent covers ‘nicht sortierten Ausschuss’ (‘unsorted scrap’) and not ‘nicht sortierte Abfälle’ (‘unsorted waste’), as the Dutch Supreme Court held on the basis of the Dutch language version (‘ongesorteerd afval’). The term ‘scrap’ is not synonymous with the terms ‘waste’ or ‘mixture’. In addition, a distinction is drawn in the French language version between ‘mélange de déchets’ and ‘rebuts non triés’, just as in the English-language version between ‘mixture of wastes’ and ‘unsorted scrap’. The terms ‘scrap’ and ‘waste’ are therefore not synonymous. Since, in the Dutch language version of the heading of Basel Code B3020, the term ‘waste’ is not used, but it instead reads ‘papier, karton en papierproducten’, the term ‘afval’ in point 2 of the fourth indent in the Dutch-language version does not cover the entire entry, but only what does not come under the first three indents.
Specifically, on 20 May 2015, the Raad van State (Council of State, Netherlands) ruled in proceedings involving ESKA that a waste paper mixture, regardless of the presence of impurities, comes under Basel Code B3020. Accordingly, any such mixture of wastes constituted ‘Green’ listed waste and came within the list of wastes subject to the Green control procedure under Article 18 of Regulation No 1013/2006. It did so on the basis of the Dutch language version of Basel Code B3020. ESKA had previously been employing the stricter prior notification procedure under Article 4 of the Regulation.
Interseroh then brought an action before the referring German court seeking a declaration that it is entitled to ship the mixture of wastes at issue to other EU Member States in accordance with the Green control procedure.
Sharpston AG at 27 starts by pointing out that the shipments at issue are kosher commercial and regulatory transactions: at least 90% of the mixture is made up of what can be described generically as paper, paperboard and paper product wastes. The waste also includes a maximum of 10% impurities. This, in other words, is not a cowboyesque trafficking practice. She then explores the legislative history of the amended Annexes, paying less attention to the linguistic analysis perhaps than one might expect – object and purpose is, after all, a guiding principle in the interpretation of texts with seemingly diverging language versions. She concludes from that assessment (please refer to her Opinion itself; there is little point in me paraphrasing it here) that the lighter, green list procedure can only apply if the notifier shows with scientific evidence that the level of impurities does not prevent the recovery of the wastes in question in an environmentally sound manner. She also acknowledges at 72 (as the EC already did in its 2009 FAQs) that clarity on the issue is wanting: ‘establishing what is a tolerable level of contamination is a matter that is due (perhaps, overdue) for examination’. However given the lack of formal regulatory guidance on the issue, the Article 28 procedure of Regulation applies: where the competent authorities of the Member State of dispatch and the Member State of destination cannot agree on the classification of a particular consignment of wastes (and hence on whether the more flexible Green control procedure in Article 18 may be used), the Annex IV amber list procedure must be applied.
(Handbook of) EU Waste Law, 2nd ed 2015, Chapter 4.