Thursday's judgement responds to questions posed by the Netherlands State Council following disputes over whether a liquid hydrocarbon mixture called LUWA bottoms and wood shavings made from construction timber waste - both of which were being sold as fuels - should be regarded as waste.
Under European Court procedures, cases are examined by a lawyer, known as an advocate general, before being ruled on by a panel of judges. In this case, advocate general Siegbert Alber threatened a major upset for EU law (ENDS Daily 17 June 1999). The EU's waste definition was "too imprecise to establish a global concept," he said. Materials should not longer be regarded as waste if they had lost their "character of waste" and presented no potential risks greater than a comparable primary material.
The judgement totally rejects this approach. Only analysis of the full circumstances for a particular material can enable a decision on whether a material is waste, it says. And though a material is not waste simply because it has been subjected to a recovery process as defined in the EU waste directive, neither can it be concluded that a material is not waste simply because it can be used as a fuel in an environmentally responsible manner and without special environmental controls.
Responding to the specific questions put by the Dutch court, the judgement does not lay out all possible elements that should determine whether a material is waste under EU law. It does, however, mention several elements, all of which tend to support a view that both the materials at issue are wastes.
For both materials, it reads, the fact that use as fuel is a common waste management technique as well as the fact that the companies concerned regard the substances as waste "can be considered as indices of an action, an intention or an obligation to dispose in the sense of the directive". Where a substance is used as a fuel, several other factors can also point in this direction, it continues. They are: if a substance is the residue of a process of manufacturing another substance, if no other use of this substance except elimination can be envisaged, and if the composition of the substance is not designed for the use to which it is put or that this use must be carried out with particular environmental safeguards.
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