European Court gives waste shipments rulings

Judgements limit right to prohibit exports, set strict conditions for waste to gain "green list" status

The European Court of Justice has delivered rulings on two cases relating to the EU's regulations on transfrontier shipments of waste - the first case law on the regulation to emerge at European level.

The two cases were both referred to the court by the Dutch government. In one - known as "Dusseldorp" - the court ruled that countries cannot legally use the principles of self-sufficiency and proximity to restrict exports of waste for recovery. The principles cannot be applied, the judgement reads "when it is clear that they create a barrier to exports which is not justified either by an imperative measure relating to protection of the environment or by one of derogations provided for by article 36 of the [EU] treaty".

On a related question in the same case, the court further limits the right of EU countries to restrict trade in waste for recovery. Member states cannot require companies to deliver wastes for recovery to a national undertaking, the judgement reads, if, "without any objective justification and without being necessary for the performance of a task in the general interest, those rules have the effect of favouring the national undertaking and increasing its dominant position".

Known as "Beside," the second case involves judgements on several different aspects of the transfrontier waste shipments regulation, including the key question of when regulatory controls must be applied to sorted fractions of household or municipal waste being traded for recovery.

Under the regulation, household/municipal waste is classified as "amber" waste, meaning that all relevant authorities have to be informed before a transfrontier shipment can be made, whereas many fractions of household/municipal waste are individually classified under a "green" list, for which notifications are not required.

Supported by the European Commission and Denmark, and against opposition from Finland and Germany, the court has interpreted the regulation in a strict manner, concluding that household/municipal waste fractions can only be traded as green list wastes if they have been "collected separately or properly sorted".

Specifically, the court rules that the definition of household/municipal waste - therefore coming under amber list controls - includes both mixtures of different types of green list wastes and any green list waste "mixed with a small quantity of materials not referred to on that list".

On a related question, the court has ruled that member states may not unilaterally return waste to another EU country without prior notification. However, it forbids member states that have despatched waste from opposing its return where a recipient member state "produces a duly motivated request".

Follow Up:
European Court of Justice, tel: +352 43031. References: European Court cases C-203/96 ("Dusseldorp") and C-192/96 ("Beside"), judged on 25 June 1998.

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