Brussels, 26/02/2007 (Agence Europe) - Over the past 30 years, the definition of the term “waste” has been a key part of protecting the European environment from the effects of waste generation and management. The definition of waste is applied by the competent authorities specified by the directive 2006/12/EC (the Waste Framework Directive) on a case by case basis, when making waste shipment or permit decisions. Most of the time it is clear what is and what is not waste. However, the interpretation of the definition of waste has regularly made life difficult for both economic operators and the competent authorities. The Court of Justice of the Communities has often been called on to decide, after long and difficult debate, if this production residue, or by-product could be termed waste or not. On occasion, it has proved difficult to draw this distinction. The European Commission, therefore, undertook, in its thematic strategy on the prevention and recycling of waste, adopted on 20 December 2005, to draw up guidelines to enable operators and competent authorities to determine when a by-product must or must not be considered waste. These guidelines, based on the jurisprudence of the European Court of Justice, have just been published by the Commission in the form of a Communication, which was adopted on 21 February. The effectiveness of the guidelines will be re-assessed in 2010, as part of the review of the thematic strategy. The Commission will then check if any amendment is necessary in the light of developments in the jurisprudence of the Court.
One of the problems posed by the interpretation of the definition of waste is the distinction between two types of material: those which are not the end product of the production process, and which could be considered as by-products but which are not waste, and those which should be treated as waste. In fact, the Commission admits: “There is not a black and white distinction, but rather a wide variety of technical situations with widely different environmental risks and impacts and a number of grey zones”. Under Community legislation, it is necessary to draw a clear line between the two legal situations on a case by case basis since the legislation does not provide a legal definition of concepts such as “by-product” or “secondary raw material”. In other words, is the material waste or not? Hence the difficulty in some cases.
The aim of the 31 February communication is to remove the grey areas in order to improve the legal certainty in the area of waste by providing the competent authorities with guidance which will allow them to decide, on a case by case basis, whether or not material is or is not waste, and also give operators information on how such decisions are taken. The communication also aims to help harmonise interpretation of the legislation on waste across the EU. There is some evidence that the competent authorities of different member states have taken different case by case decisions in situations which were similar. This leads to inequalities in the treatment of economic operators and obstacles in the internal market.
The guidelines adopted by the Commission are based entirely on the jurisprudence of the Court. To clarify its guidelines, the Commission introduces the notions of product, production residue (material that is not deliberately produced in a production process but may or may not be waste), and by-product. After speaking of the definition of waste and the interpretation given by the Court - “whether a material is a waste or not depends on the specific factual circumstances” - the Commission explains how to draw the distinction between a product and a production residue, and sets out the criteria on whether a production residue should not be considered waste (definite or only possible re-use of the material, whether or not holder of the waste derives any advantage from re-use etc.). It notes other factors taken into account by the Court in drawing a distinction between waste and by-product. The communication provides a series of “examples of wastes and non-wastes” (slags and dusts from iron and steel production; by-products from the foods and drinks industry - animal feeds; by-products from combustion - flue gas desulphurisation gypsum; off cuts and other similar material).
The full text of the communication of 21 February is to be found at:
http: //eur-lex.europa.eu/LexUriServ/site/en/com/2007/com2007_0059en01.pdf (ol)