Posts Tagged Waste
I fear I do not have the time or opportunity for the moment fully to analyse Saugmandsgaard ØE’s Opinion at the end of January in C-689/17 MSC Flaminia (no EN version available) – hence this post is a flag more than a review. The second Opinion of the AG in the same month (see C-634/16 ReFood) on the waste shipments Regulation.
Readers beware: there are two distinct exemptions for ships-related waste in the waste shipments Regulation: are exempt:
the offloading to shore of waste, including waste water and residues, generated by the normal operation of ships and offshore platforms, provided that such waste is subject to the requirements of the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto (Marpol 73/78), or other binding international instruments; and
waste generated on board vehicles, trains, aeroplanes and ships, until such waste is offloaded in order to be recovered or disposed of.
In the case at issue: does the latter cover residues from damage to a ship at sea in the form of scrap metal and fire extinguishing water mixed with sludge and cargo residues on board the ship?
Handbook of EU Waste Law, 2nd ed. 2015, Oxford, OUP, Chapter 3, 3.27 ff.
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.
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.
Handbook of EU Waste law, 2nd ed. 2015, OUP, 1.166 ff and 1.189 ff.
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.
(Handbook of) EU Waste law, 2nd ed. 2015, Oxford, OUP, Chapter 1, 1.149 ff.
As I discussed with Stephen Gardner in Bloomberg Environment, the CJEU held yesterday in C-399/17 EC v Czech Republic, where the question is whether the Czech Republic has infringed the waste shipments Regulation 1013/2006 by refusing to take back a substance known as TPS-NOLO (or Geobal) that had been shipped to Poland without respecting the requisite formalities of the Waste Shipment Regulation.
Approximately 20 000 tonnes of TPS-NOLO (Geobal) and composed of tar acid, a remnant after refining oil (code 05 01 07* of the European waste catalogue), of carbon dust and of calcium oxide. Poland considered the substance to be hazardous waste classified in Annex IV to the Waste Shipment Regulation (‘Waste tarry residues (excluding asphalt cements) arising from refining, distillation and any pyrolitic treatment of organic materials’). The Czech citizen responsible for the shipment to Poland presented the standards adopted by the company as well as proof that the substance in question was registered under the REACH Regulation and that it was used as fuel.
Wahl AG had suggested inadmissability, as I discuss here. The Court however disagreed, and on substance dismissed the EC action in five steps summarised very well in its case-summary. Of note in particular with respect to the REACH /WFD relation is that the Court holds that while the EC is right in being sceptical about WFD evasion via REACH (not that straightforward an assumption, given the cumbersome implications of REACH compliance), the Commission needs to bring specific evidence to the table rather than mere speculation.
Not an earth-shattering case yet a relevant one also with a view to circular economy debates, where REACH’ data requirements are an important concern for recyclers.
Handbook of EU Waste law, 2nd ed. 2015, OUP, i.a.at para 1.201.
Saugmandsgaard ØE in C-634/16 ReFood. The animal by-products exemption in the EU’s waste shipments Regulation. (Renewable energy claxon).
This post requires seriously engaged interest in EU waste law. Very few of you I am sure are familiar with my work – in Dutch (with Tom de Gendt, and Kurt Deketelaere) on animal waste /animal by-products. Yet please all those of you who are not waste nerds, do not turn away yet: for animal wastes and animal by-products are a raw material for biogas installations. The regulatory issues at stake therefore are relevant to the renewable energy sector.
Saugmandsgaard ØE opined end January in C-634/16 ReFood – the English text was not available at the time of writing. A lorry with animal by-products collected in The Netherlands, was making its way to a German biogas installation (one of many many thousands such transports) when it was stopped, the driver being asked to produce the relevant waste export permit – which he did not possess.
Recital 11 of the waste shipments Regulation 1013/2006, introduces the issue at stake, which is avoiding regulatory duplication: ‘It is necessary to avoid duplication with Regulation (EC) No 1774/2002 of the European Parliament and of the Council of 3 October 2002 laying down health rules concerning animal by-products not intended for human consumption, which already contains provisions covering the overall consignment, channelling and movement (collection, transport, handling, processing, use, recovery or disposal, record keeping, accompanying documents and traceability) of animal by-products within, into and out of the Community.’ As a result, the Regulation exempts from its scope of application ‘shipments which are subject to the approval requirements of Regulation (EC) No 1774/2002’. Core of the regulatory conundrum is that Regulation 1774/2002 does not contain ‘approval requirements’ for the relevant category. (They are category 3 animal by-products, these are the least problematic animal wastes).
The AG suggests a broad reading of the exemption, and one which prevents overlap between the two regimes. Animal by-products fall under the exemption full stop: there are no two, three or more ways about it. (The AG argues along the lines of linguistic analysis, regulatory logic, and the preparatory works of all EU secondary law at issue).
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.
Handbook of EU Waste law, 2nd ed. 2015, OUP, 1.166 ff and 1.189 ff.
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.
Handbook of EU Waste law, 2nd ed. 2015, OUP, 1.166 ff and 1.189 ff.
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?
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?
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?