On 2 March 1998, Abfall Service (ASA), established at Graz, Austria, notified
the Austrian Ministry of the Environment (BMU), as the competent authority in
the Member State where the waste originated, of its intention to ship 7 000
tonnes of hazardous waste to Salzwerk AG, a company established in Germany.
According to the notification, the waste was slag and ashes produced as a by-product
in the operation of waste incinerators and transformed into a 'specific product'
at a waste-treatment plant in Vienna. The waste was to be deposited in a former
salt mine at Kochendorf, Germany, to secure hollow spaces (mine-sealing).
The competent authority in the Member State to which the waste was to be transferred,
the Stuttgart Regierungspräsidium, Germany, informed ASA that there appeared
to be no reason for it not to approve the shipment as a “recovery”
operation, in line with the classification given by ASA.
The BMU decided to object to the shipment. Its decision was based on the fact
that the planned shipment of waste was actually a “disposal” operation.
ASA then sought to have the BMU's decision annulled by the Verwaltungsgerichtshof,
which referred the case to the EC Court of Justice.
The administrative procedure laid down by a Community regulation on the
shipment of waste is less strict for shipments of waste intended for recovery
in the State of destination than for shipments of waste intended for disposal,
there.
The national court asked, first, whether the competent authority of the Member State where the waste originated is entitled to verify whether a proposed shipment classified in the notification as a 'shipment of waste for recovery' does in fact correspond to that classification and, second, whether that authority can object to the shipment where the classification given by the notifier is incorrect.
The Court observed that, in order to apply the provisions of the Community regulation
which set out the cases in which the various competent national authorities
may object to a shipment of waste, it is first necessary to correctly classify
the purpose of the shipment (disposal or recovery) in accordance with the definitions
given in the regulation.
It then found that the regulation's aim of facilitating shipments of waste
for recovery would be jeopardised if the classification of the purpose of shipments
of waste were not scrutinised.
According to the Court, it follows from the system established by the regulation
that all the competent authorities which have to be notified of a proposed
shipment of waste (i.e. the authorities in the Member State where
the waste originates, those in the Member States through which the waste is
shipped, and those in the Member State to which the shipment of waste is made)
must check that the classification by the notifier is consistent with the provisions
of the regulation, and object to a shipment which is incorrectly classified.
The regulation therefore confers simultaneously on all the competent authorities
the responsibility of ensuring that shipments of waste are carried out in accordance
with the regulation.
Where a national authority objects to a shipment of waste on the ground that
it has been incorrectly classified, the person who made the notification may
abstain from shipping the waste to another Member State, submit a new notification,
or institute any appropriate proceedings to challenge the authority's decision.
The national court also asked whether the deposit of waste in a disused mine
necessarily constitutes a disposal operation for the purposes of the Community
directive on waste, or whether such deposits must be assessed on a case-by-case
basis and, if so, what criteria should be used to make the assessment.
The Court observed that neither the regulation nor the directive contains
a general definition of disposal or recovery of waste, but merely refer to the
annexes to the directive, in which various operations falling within the scope
of those concepts are listed.
The Court found that the aim of the annexes to the directive is to list the
most common disposal and recovery operations and not to give a precise and exhaustive
list of all the disposal and recovery operations covered by the directive.
According to the Court, it follows from the directive that the essential
characteristic of a waste recovery operation is that its principal objective
is that the waste serve a useful purpose in replacing other materials which
would have had to be used for that purpose, thereby conserving natural resources.
It is for the national judge to apply that criterion in the present case in
order to classify the deposit of the waste in question in a disused mine as
either a disposal operation or a recovery operation.
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