Two interesting Judgments of the CJEU on 28 March 2019: Joined Cases C-487/17 to C489/17, Verlezza v Vetreco, and Case C-60/18, Tallina v Keskkonnaamet. The former is concerned with the classification of hazardous waste in circumstances where the waste may be assigned codes for both hazardous and non-hazardous waste. The latter is concerned with re-use and recovery of waste.
In the former case, the requests for a preliminary ruling have been made in three cases concerning criminal proceedings brought against around thirty defendants charged with offences connected with the treatment of hazardous waste. Those defendants, in their respective capacities as landfill managers, waste collection and production companies, and companies responsible for carrying out chemical analyses of waste, were accused of illegal waste trafficking. They were accused of having treated waste which could have been assigned either hazardous waste codes or non-hazardous waste codes (“mirror codes”) as non-hazardous waste. It is alleged that, on the basis of non-exhaustive, partial chemical analyses, they assigned to that waste non-hazardous waste codes and then treated it in landfill sites for non-hazardous waste.
When assessing the hazardous properties of waste to which mirror codes may be assigned, the determination of criteria has been a question of interest in Italian case-law and legal literature over the past 10 years. Two different solutions have been adopted in connection with the interpretation to be given to the relevant provisions both of national law and of EU law. On the one hand, according to the so-called “safety” or “presumed hazardousness” theory, based on the precautionary principle, in a case of waste to which mirror codes may be assigned, the holder must rebut the presumption that that waste is hazardous and is therefore required to carry out analyses in order to ensure that the waste in question is devoid of any hazardous substance. On the other hand, in accordance with the so-called “probability” theory, based on the sustainable development principle, the holder of waste to which mirror codes may be assigned has a discretion when determining beforehand the hazardous nature of the waste in question using the appropriate analyses. Thus, the waste holder could limit its analyses to the substances which, with a high degree of probability, may be found in the products at the start of the waste production process at issue.
The CJEU said:-
“38 Under Article 3(2) of Directive 2008/98, hazardous waste is defined as ‘waste which displays one or more of the hazardous properties listed in Annex III’ to that directive. It should be noted, as the Advocate General stated in point 33 of his Opinion, that that directive makes hazardous waste management subject to specific requirements concerning its traceability, packaging and labelling, the ban on mixing that waste with other hazardous waste or other waste, substances or materials, and the fact that the hazardous waste may be treated only in specifically designated facilities which have obtained special authorisation.
39 As is apparent from Article 7(1) of Directive 2008/98, in order to ascertain whether waste falls within the list of waste established by Decision 2000/532, which is binding as regards the determination of waste considered to be hazardous waste, account must be taken of ‘the origin and composition of the waste and, where necessary, limit values of concentration of hazardous substances’, given that those substances make it possible to determine whether waste has one or more of the hazardous properties listed in Annex III to that directive.
40 Therefore, where the composition of waste to which mirror codes may be assigned is not immediately known, it falls to the holder of that waste, as the party responsible for its management, to gather information which may enable it to gain sufficient knowledge of that composition and, thus, assign the appropriate code to that waste.
41 If that information is not obtained, the holder of such waste risks being in breach of its obligations as the party responsible for managing it, where it subsequently turns out that that waste was treated as non-hazardous waste, when it had one or more of the hazardous properties listed in Annex III to Directive 2008/98.
42 It must be noted that, as the Advocate General stated in point 52 of his Opinion, there are different methods for gathering the necessary information relating to the composition of the waste which thus make it possible to identify the possible presence of hazardous substances and one or more of the hazardous properties listed in Annex III to Directive 2008/98.
43 In addition to the methods identified under the section headed “Test methods” of that annex, the waste holder may, inter alia, refer to:
- information relating to the manufacturing process or chemical process “from which the waste came” and to input substances and intermediates, including expert opinions;
- information from the original producer of the substance or object before it became waste, in particular the safety data sheets, product labels or product fact sheets;
- databases on waste analysis available in the Member States, and sampling and chemical analysis of the waste.
44 With regard to sampling and chemical analysis, it should be made clear, as the Advocate General stated in point 69 of his Opinion, that those methods must provide guarantees that they are effective and representative.
45 It is true that the chemical analysis of waste must enable the holder to gain sufficient knowledge of the composition of that waste in order to determine whether the waste has one or more of the hazardous properties listed in Annex III to Directive 2008/98. However, no provision of the EU legislation in question may be interpreted to the effect that the purpose of that analysis is to determine the absence of any hazardous substance in the waste at issue, such that the waste holder would be required to rebut a presumption that that waste is hazardous.
46 It must be recalled, first, that, as regards the obligations under Article 4 of Directive 2008/98, it is clear from paragraph 2 of that article that, when applying the waste hierarchy provided for in that directive, Member States must take appropriate measures to encourage the options that deliver the best overall environmental outcome … In doing so, that article provides that Member States must take into consideration technical feasibility and economic viability, such that the provisions of that directive may not be interpreted to the effect that they impose on a waste holder unreasonable obligations, both from a technical and from an economic point of view, in respect of waste management. Secondly, in accordance with point 2, first indent, of the section entitled “Assessment and classification” of the Annex to Decision 2000/532, the classification of waste which may come under mirror codes as “hazardous waste” is appropriate only if that waste contains hazardous substances which confer on it one or more of the hazardous properties listed in Annex III to Directive 2008/98. It follows that the waste holder, whilst not being obliged to establish that there are no hazardous substances in the waste at issue, is nevertheless required to look for hazardous substances which may reasonably be found in that waste, and thus, in that respect, it has no discretion.”
“48 … that interpretation is also compatible with the precautionary principle, which is one of the foundations of the EU’s policy of protection in environmental matters, since it follows from the case-law of the Court that a protection measure such as the classification of waste as hazardous is required only where, following an assessment of the risks, which is as complete as possible having regard to the particular circumstances of the case, there is objective evidence which demonstrates that such a classification is required …
49 Where the waste holder has gathered information on the composition of that waste, in situations such as those in the main proceedings, it must carry out the assessment of the hazardous properties of that waste in accordance with point 1 of the section entitled ‘Assessment and classification’ of the Annex to Decision 2000/532, in order to be able to classify the waste, either on the basis of the calculation of the concentrations of hazardous substances present in that waste and in accordance with the cut-off values indicated for each substance in Annex III to Directive 2008/98, or on the basis of a test, or on the basis of both those methods. In the latter case, point 1 provides that “the results of the test shall prevail”.
50 With regard to the calculation of the hazardous property present in waste, it is clear from point 2, second indent, of the section entitled ‘Assessment and classification’ of the Annex to Decision 2000/532, that the degree of concentration of hazardous substances contained in waste and capable of attributing hazardous properties to that waste must be calculated as explained in Annex III to Directive 2008/98. In the case of hazardous properties HP 4 to HP 14, that annex contains precise instructions for determining the concentrations in question and, in tables specific to the various hazardous properties, sets the concentration limits at or above which the waste in question must be classified as hazardous.
51 With regard to the tests, it should be pointed out in the first place that the assessment of the hazardous properties HP 1 to HP 3, as is clear from Annex III to Directive 2008/98, must be carried out on the basis of that method where that is ‘appropriate and proportionate’. It follows that, where the assessment of the hazardousness of waste may be made on the basis of information already obtained, such that the use of a test would be neither appropriate nor proportionate, the waste holder may classify that waste without a test.
52 In the second place, it is important to note that, although it is true that, as the Advocate General stated in point 64 of his Opinion, the EU legislature, at this stage, has not harmonised analysis and test methods, the fact remains that both Annex III to Directive 2008/98 and Decision 2000/532, in that respect, refer, first, to Regulation No 440/2008 and to the relevant CEN notes and, secondly, to the internationally recognised testing methods and guidelines.
53 However, it is clear from the heading entitled ‘Test methods’ in Annex III to Directive 2008/98 that that reference does not exclude test methods developed nationally from also being taken into account provided that they are internationally recognised.
54 In view of those considerations, the answer to the first to third questions is that Annex III to Directive 2008/98 and the Annex to Decision 2000/532 must be interpreted to the effect that the holder of waste which may be classified under mirror codes, but the composition of which is not immediately known, must, in view of that classification, determine that composition and ascertain the hazardous substances which may reasonably be found in that waste in order to establish whether that waste has hazardous properties and may, for that purpose, use the sampling, chemical analyses and tests provided for in Regulation No 440/2008 or any other internationally recognised sampling, chemical analysis or test.
55 By its fourth question, the referring court asks, in essence, whether the precautionary principle must be interpreted to the effect that, where there are doubts over the hazardous properties of waste which may be classified under mirror codes, or where it is impossible to determine with certainty that there are no hazardous substances in that waste, it must be classified as hazardous waste in accordance with that principle.
56 In order to answer that question, it must be recalled first of all that, in accordance with Article 191(2) TFEU, the precautionary principle constitutes one of the foundations of the EU’s policy on the environment.
57 Next, it should be pointed out that it is clear from the case-law of the Court that a correct application of the precautionary principle presupposes, first, identification of the potentially negative consequences for the environment of the waste concerned, and, second, a comprehensive assessment of the risk to the environment based on the most reliable scientific data available and the most recent results of international research …
58 The Court thus inferred that, where it proves to be impossible to determine with certainty the existence or extent of the alleged risk because of the insufficiency, inconclusiveness or imprecision of the results of studies conducted, but the likelihood of real harm to the environment persists should the risk materialise, the precautionary principle justifies the adoption of restrictive measures, provided they are non-discriminatory and objective …
59 Finally, it is important to note that, in accordance with the third subparagraph of Article 4(2) of Directive 2008/98, Member States must take into account, not only the general environmental protection principles of precaution and sustainability, but also technical feasibility and economic viability, protection of resources as well as the overall environmental, human health, economic and social impacts. It follows that the EU legislature, in the specific area of waste management, intended to strike a balance between, on the one hand, the precautionary principle and, on the other, technical feasibility and economic viability, such that waste holders are not required to ensure that the waste in question is devoid of any hazardous substance, but may confine themselves to ascertaining the substances which may reasonably be found in that waste and assessing its hazardous properties on the basis of calculations or through tests relating to those substances.
60 It follows that a protection measure such as the classification of waste which may be classified under mirror codes as hazardous waste is required where, following an assessment of the risks which is as complete as possible having regard to the particular circumstances of the case, it is impossible, in practical terms, for that waste holder to determine the presence of hazardous substances or to assess the hazardous property of that waste …
61 As the Commission stated in its observations, that practical impossibility cannot arise due to the conduct of the waste holder itself.
62 In view of those considerations, the answer to the fourth question is that the precautionary principle must be interpreted to the effect that where, following an assessment of the risks, which is as complete as possible having regard to the particular circumstances of the case, it is impossible, in practical terms, for a holder of waste which may be classified under mirror codes to determine the presence of hazardous substances or to assess the hazardous property of that waste, it must be classified as hazardous waste.”
The latter case concerned 2 notices by the defendant Estonian Environmental Board which were issued to Tallinna in relation to the recovery of waste and which refused to recognize end-of-waste status for sewage sludge that had undergone recovery treatment. The CJEU said:-
“17 By its questions, which should be examined together, the referring court asks, in essence, whether Article 6(4) of Directive 2008/98 must be interpreted as precluding national legislation, such as that at issue in the main proceedings, under which, where criteria have not been set at EU level for determining end-of-waste status as regards a specific type of waste, such end status depends on the existence of criteria laid down in a generally applicable national legal act concerning that type of waste and whether, in such circumstances, a waste holder may demand the recognition of end-of-waste status by the competent authority of the Member State or by a court of that Member State in accordance with the case‑law of the Court of Justice.
18 It should be borne in mind that Article 3(1) of Directive 2008/98 defines ‘waste’ as any substance or object which the holder discards or intends or is required to discard.
19 The first subparagraph of Article 6(1) of Directive 2008/98 sets out the conditions to be met by the specific criteria which make it possible to determine which waste ceases to be waste within the meaning of Article 3(1) of that directive when it has undergone a recovery, including recycling, operation.
20 Under Article 6(2) of Directive 2008/98, the rules for the application of paragraph 1 of that article are to be made by the Commission for the purpose of the adoption of specific criteria for determining end-of-waste status. It is common ground that no such rules have been adopted in relation to sewage sludge, such as that in the main proceedings, which has undergone a recovery operation.
21 In such circumstances, Member States may, as is clear from the wording of Article 6(4) of Directive 2008/98, decide on a case-by-case basis whether certain waste has ceased to be waste, while being obliged, where Directive 98/34, as amended by Directive 98/48, so requires, to notify the Commission of technical standards and rules adopted in that regard.
22 It should be noted, in the first place, that the EU legislature thus specifically provided that Member States are entitled to adopt measures relating to end-of-waste status of a substance or object, without, however, specifying the nature of those measures.
23 In that regard, it must be noted that the measures adopted on the basis of Article 6(4) of Directive 2008/98 –– in the same way as the EU regulations adopted on the basis of paragraph 2 of that article –– result in the end-of-waste status of waste and, therefore, in the end of the protection that the law governing waste guarantees as regards the environment and human health. Those measures must therefore comply with the requirements laid down in paragraph 1(a) to (d) of Article 6 and, in particular, take account of any possible adverse impact that the substance or object concerned may have on the environment and on human health.
24 It also follows from the wording of Article 6(4) of Directive 2008/98 that Member States may provide for the possibility of decisions in individual cases, in particular on the basis of applications submitted by holders of the substance or object classified as waste, but that they may also adopt technical standards or regulations concerning certain categories of waste or a specific type of waste. Indeed, as the Advocate General observes in point 49 of her Opinion, the obligation, referred to in that provision, to notify the Commission of such measures, where Directive 98/34, as amended by Directive 98/48, so requires, concerns draft technical regulations and not individual decisions.
25 Article 6(4) of Directive 2008/98 does not, therefore, preclude national legislation under which, where no criteria are laid down at EU level for determining end-of-waste status as regards a specific type of waste, the end of that status of waste depends on the existence of criteria laid down in a generally applicable national legal act concerning that type of waste.
26 In the second place, it follows from the optional nature of the Member State’s action, resulting from the use of the verb ‘may’ in the first sentence of that provision, that the Member State is also entitled to take the view that some waste cannot cease to be waste and to refrain from adopting legislation concerning the end-of-waste status of that waste.
27 However, as the Advocate General has observed in point 44 of her Opinion, the Member State must ensure that such abstention does not amount to an obstacle to the attainment of the objectives set by Directive 2008/98, such as encouraging the application of the waste hierarchy laid down in Article 4 of that directive, or, as is stated in recitals 8 and 29, encouraging the recovery of waste and the use of recovered material in order to preserve natural resources and to enable the development of a circular economy. In that context, it is for the Commission and, failing that, for the Member States, to take into account all relevant elements and the most recent scientific and technical knowledge in order to adopt specific criteria which allow the national authorities and courts to recognise end-of-waste status for waste which has undergone a recovery operation, which enables it to be used without endangering human health and without harming the environment.
28 In the present case, it is apparent from the documents submitted to the Court that the recovery of sewage sludge entails certain risks for the environment and human health, in particular those linked to the presence of hazardous substances. As regards such substances, a Member State may –– in the light of the discretion which it enjoys in accordance with the considerations set out in the preceding two paragraphs –– refrain from recognising end-of-waste status of a product or substance or may refrain from laying down standards which would lead to end-of-waste status of that product or substance.
29 Furthermore, it should be recalled that the conditions laid down in Article 6(1) of Directive 2008/98 –– which must be met by the specific criteria which make it possible to determine which waste ceases to be waste within the meaning of Article 3(1) of that directive when it has undergone a recovery, including recycling, operation –– cannot, in themselves, make it possible directly to establish that certain waste or certain categories of waste must no longer be regarded as such …
30 Consequently, it must be held that Article 6(4) of Directive 2008/98 does not allow a waste holder, such as Tallinna Vesi, to demand, in circumstances such as those in the main proceedings, the recognition of end-of-waste status by the competent authority of the Member State or by a court of that Member State.
31 In the light of the foregoing, the answer to the questions referred is that Article 6(4) of Directive 2008/98 must be interpreted as meaning that:
- it does not preclude national legislation, such as that at issue in the main proceedings, under which, where criteria have not been set at European Union level for determining end-of-waste status as regards a specific type of waste, such end status depends on the existence of criteria laid down in a generally applicable national legal act concerning that type of waste, and
- it does not allow a waste holder, in circumstances such as those in the main proceedings, to demand the recognition of end-of-waste status by the competent authority of the Member State or by a court of that Member State.”