The directive on waste oils (75/439) was originally passed during the oil crisis and required EU countries to ensure that all waste oils were recycled as far as possible, which could be achieved either through combustion or through re-refining, or "regeneration". In 1996, however, this provision was altered, and the law now requires member states to give priority to regeneration "where technical, economic and organisational constraints so allow" (87/101).
Following passage of the revised directive, the European Commission began legal proceedings against Germany as long ago as 1992, alleging failure to give proper priority to regeneration of waste oils. Nearly eight years later the court has finally backed its opinion, causing relief in the Commission, which had not been confident of winning the case and believed Germany had some good counter-arguments, a source told ENDS Daily today.
The basis of Germany's defence was two-fold. First, it argued that national law did indeed give preference to regeneration: the 1987 waste oils regulation requires that waste oils which are most suitable to be re-refined are not to be mixed with other waste oils or waste products.
Secondly, Germany argued that it should have a broad margin of discretion to decide when there were meaningful constraints to doing more to prioritise regeneration, and advanced a series of specific reasons why such constraints existed in this case. In particular, it said, there was insufficient capacity to re-refine waste oil in Germany and that the secondary refining industry was not profitable. Various options that could have been taken, such as voluntary agreements or tax breaks, were either not possible or would themselves have been illegal.
Every one of these arguments has now been rejected by the court.
First, the court has ruled, Germany has no explicit requirement in national law for regeneration of waste oils to be given priority. Second, the judgement goes on, EU member states cannot have exclusive rights to define constraints on the prioritisation of regeneration as they will. Third, all the specific constraints advanced by Germany are deemed to be invalid.
Furthermore, the judgement goes on, not only had Germany failed to take appropriate steps to prioritise regeneration of waste oils, but it had also exempted waste oils intended for combustion from normal EU rules on excise duties.
European Court of Justice, tel: +352 43031. References: Case C-102/97. Full text of the judgement available on the court's web site under "recent case law".
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