Opinion of the Advocate-General
1 The Raad van State (State Council) of the Netherlands, poses several questions concerning the interpretation of Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the Community (`the Waste Regulation' or simply `the Regulation') (1) and Council Directive 75/442/EEC of 15 July 1975 on waste (`the Waste Directive' or simply `the Directive'). (2) It asks essentially about the extent to which shipments of waste exempted from the transboundary notification requirements of the Regulation may comprise different substances; whether transport of waste for storage pending further transport to a recovery plant is exempt from the notification requirements; and whether the competent authority of destination has the power to order the return of waste which has been transported illegally.
The Waste Regulation
2 The Waste Regulation was adopted on the basis of Article 130s of the Treaty on 1 February 1993, and applied from 6 May 1994. (3) It establishes, inter alia, a system of prior notification of shipments of waste between Member States. Separate sets of rules apply to waste for disposal and waste for recovery. However, prior notification is generally required in respect of both.
3 Shipments of waste for disposal or recovery must be notified to the competent authority of the area in which the shipment is to be received (`the competent authority of destination' (4)). Copies of the notification must be sent to the competent authority for the area in which the waste is to be dispatched (`the competent authority of dispatch' (5)), to the competent authority for the area through which the shipment is in transit (`the competent authority of transit' (6)), and to the consignee. (7)
4 In relation to waste for disposal, authorisation must be received from the competent authority of destination, which may only give such authorisation in the absence of objections from the other competent authorities. (8) In the case of waste for recovery, on the other hand, consent to shipment can usually be tacit. (9)
5 The Regulation distinguishes between a `green list of waste' (Annex II), an `amber list of waste' (Annex III), and a `red list of waste' (Annex IV). (10) Waste listed in the green list (`green waste') is generally regarded as `not normally present[ing] a risk to the environment if properly recovered' (11) and is accordingly generally exempted from the notification requirements of the Regulation if it is to be shipped to another Member State for recovery. (12) Each list of waste is divided into general categories with alphabetical numbering (`general categories') (for example, general category GH in the green list of waste, entitled `Solid plastic wastes' (13)). Each general category is then sub-divided into more specific sub-categories of waste, listed numerically (`sub-categories') (for example, sub-category GH 011 ex 3915 10, entitled `Waste, parings and scrap of plastics of polymers of ethylene' (14)).
6 The introductory paragraph in Annex II (containing the green list of waste) provides as follows: `Regardless of whether or not wastes are included on this list, they may not be moved as green wastes if they are contaminated by other materials to an extent which (a) increases the risks associated with the waste sufficiently to render it appropriate for inclusion in the amber or red lists, or (b) prevents the recovery of the waste in an environmentally sound manner.'
7 That paragraph was inserted into Annex II by Commission Decision 94/721, (15) which was adopted on 21 October 1994. Since the Netherlands Government states that the waste in question was discovered in the Netherlands in spring 1995, it seems likely that the operative paragraph had been inserted into the Regulation prior to the shipment of that waste.
8 Finally, it is relevant to note Article 26 of the Regulation. Article 26(1)(a) provides that any shipment of waste effected `without notification to all competent authorities concerned pursuant to the provisions of this Regulation' shall be deemed to be illegal traffic.
9 Article 26(2) provides as follows:
`If such illegal traffic is the responsibility of the notifier of the waste, the competent authority of dispatch shall ensure that the waste in question is:
(a) taken back by the notifier or, if necessary, by the competent authority itself, into the State of dispatch, or if [that is] impracticable
(b) otherwise disposed of or recovered in an environmentally sound manner,
within 30 days from the time when the competent authority was informed of the illegal traffic or within such other period of time as may be agreed by the competent authorities concerned.
In this case a further notification shall be made. No Member State of dispatch or Member State of transit shall oppose the return of this waste at the duly motivated request of the competent authority of destination and with an explanation of the reason.'
The facts
10 Beside BV (`Beside') obtained various waste material in Germany and transported it from Germany to premises in Zutphen, the Netherlands, where it was stored in anticipation of sale and delivery to producers of plastic products who were primarily established in the Far East. Movements of waste from one Member State to another must usually be notified to the competent authorities concerned pursuant to the Waste Regulation. However, as explained above, (16) the transport of waste which is listed in the Regulation as green waste does not generally require notification if the waste is intended for recovery rather than disposal.
11 Beside and its director I.M. Besselsen (`the appellants') maintain that the waste material is intended for use as a raw material in the production of various kinds of plastic articles, and that this may be regarded as a recovery operation within the meaning of the Regulation. (17) According to the Raad van State, the appellants have set out that proposition only in bare outline. The appellants also maintain that the waste in question was in the green list in Annex II to the Regulation.
12 The Minister for Housing, Town and Country Planning and Environment (`the Minister') objected to the shipment of the waste on the ground that the shipment should have been notified under the Waste Regulation. The appellants, on the other hand, maintain that notification was not required under the terms of the Regulation because the waste was listed in the green list of waste and was intended for recovery.
13 Originally two kinds of waste were at issue: plastic waste in the form of powders, clippings and film, and waste which the respondent refers to as `post-consumer plastic packaging'. However, the case is now restricted to post-consumer plastic packaging since the Minister dropped his objections in relation to the former type of waste. As mentioned previously, solid plastic waste is listed in the green list of waste as general category GH.
14 The Minister's objection was based on an examination of the waste by the National Institute for Public Health and Environmental Hygiene (the Rijksinstituut voor Volksgezondheid en Milieuhygiëne) which showed that the waste did not consist completely of plastics and that the proportion of plastics differed from bale to bale, varying from 58.3% to 92.3%. The bales were found to contain also paper and cardboard, metals, wood and other non-plastics, such as glass and textiles, most of which appear to feature in the green list. In one of the bales, however, six live rounds of ammunition were found. It appears that, for the most part, the waste accordingly comprised a mixture of wastes which, individually, appeared in the green list, together with a small amount of other material. On that basis, the Minister considered that the waste could not be regarded as solid plastic waste, referred to as general category GH in the green list contained in Annex II to the Regulation. He considered instead that the waste should be classified as `municipal/household waste' falling under heading AD 160 in the `amber list' in Annex III to the Regulation. (Heading AD 160 is one of a number of headings listed within general category AD, entitled `Wastes which may contain either inorganic or organic constituents', in the amber list.) (18) On that view, it is common ground that the shipment of waste should have been notified. The Minister concluded that the waste therefore constituted `illegal waste' within the meaning of Article 26 of the Regulation (19) and should be returned to Germany.
15 By letter dated 21 April 1995, the Minister informed the appellants that he had decided to make an administrative order with regard to the shipment of waste to the effect that the waste should be sent back to its place of origin but giving the appellants the opportunity of sending the waste back themselves. The appellants contested those decisions in a joint list of objections lodged with the Minister. In two separate decisions of 29 June 1995, the Minister declared the appellants' objections to be unfounded. The appellants jointly appealed against those decisions to the Raad van State. As explained earlier, the appellants argue that the shipment of waste did not require notification under the terms of the Regulation. They also argue that the return of the waste would, in any event, be inappropriate.
The national court's questions
16 The Raad van State considers that it requires the assistance of this Court to answer the following questions:
`1. Should the expression "municipal/household waste" referred to under AD 160 in Annex III to Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community (OJ 1993 L 30, p. 1), as subsequently amended, be interpreted as also including waste which for the most part consists of the solid plastic wastes referred to in Annex II to the Regulation, but also of various other wastes referred to in that Annex and a small quantity of materials not referred to therein?
2. (a) If Question 1 is answered in the affirmative, should the phrase "storage of materials intended for submission to any operation in this annex" in Annex IIB to Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39), as subsequently amended, be interpreted as covering not only storage at the plant in which the other operations referred to in the annex will take place, but also storage pending transport to such a plant, regardless of whether that plant is situated inside or outside the Community?
(b) If the first part of this question is answered in the affirmative, what minimum evidence must be available for a finding that the waste is actually intended for recovery, where notification has not been given?
3. If Questions 1 and 2(a) are answered in the affirmative, must it then be inferred from the third sentence of Article 26(2) of the Regulation that, in the cases to which that provision refers, the competent authority of destination is also obliged, or at any rate authorised, to do what the competent authority of dispatch is obliged to do pursuant to the first sentence of that provision?'
17 Observations have been submitted by the Netherlands, German, Danish and Finnish Governments and the Commission. At the hearing the Netherlands and Danish Governments and the Commission were represented.
Question 1
18 By its first question the Raad van State essentially seeks to ascertain whether plastic waste for recovery which is included in the green list of waste (but originated as `municipal/household waste' in the amber list of waste) can be transported as green waste, and accordingly escape the notification obligation, if it is mixed with (a) various other waste listed in the green list, and (b) a small quantity of materials which do not appear in the green list.
19 The Raad van State considers that the term `municipal/household waste' must be understood as meaning waste originating in households which has not been sorted. However, the national court is uncertain whether, when classifying waste, the decisive factor should be the fact that a considerable proportion of the waste has to all appearances not been sorted or the fact that most of the materials in the batch in question are each separately referred to in the green list of waste.
20 The Netherlands Government argues that since the waste originated as municipal/household waste and such waste appears in the amber list of waste it must continue to be classified as such even if it has been sorted. The Commission disagrees with the Netherlands' argument that it is the origin of waste that counts for classification purposes. In its view, it is the nature of the waste that counts and municipal/household waste should be capable of being transformed to green waste by means of sorting because otherwise selection would be discouraged.
21 Nevertheless, the Commission considers that only homogeneous batches of waste belonging to the same category in Annex II of the Regulation can be transported as green waste. It is supported in that approach by the Danish Government. At the hearing, the Danish Government explained that in its view a homogeneous batch of green waste was a batch of waste falling within the same sub-category in Annex II. The German Government submits that mixed batches of waste are permissible but only if the mixing does not create either of the situations set out in the introductory paragraph to Annex II to the Regulation and the different types of green waste fall within the same general category in Annex II. The Finnish Government is of a similar view.
22 Annex II to the Regulation (which contains the green list of waste) states in its introductory paragraph that, in order to be transported as green waste, the waste must not be `contaminated by other materials' to an extent which increases the risks associated with the waste sufficiently to render it appropriate for inclusion in the amber or red lists, or prevents the recovery of the waste in an environmentally sound manner. (20) That might be taken to imply that some mixes of waste are acceptable (although it is unclear whether what was envisaged was contamination by non-green waste, contamination by a different type of green waste, or contamination by both).
23 The Commission, however, states that that paragraph is intended to cover only minor amounts of contamination and that in principle each batch of waste should be homogeneous. The Netherlands and Danish Governments argue similarly that what that paragraph envisages is simply mixes which are inherent in the items concerned, such as metal staples on paper or paper labels on glass bottles.
24 Various arguments are advanced in support of the view that mixed batches of green waste are unacceptable. The Commission argues that the nature of the waste must be clear for the purposes of transport, stocking, and recovery treatment in order to limit environmental problems. (21) The Danish Government argues, in similar vein, that if green waste were not required to be sorted prior to shipment, it could not be guaranteed that the different types of green waste would be sorted prior to recovery, and it would be easier to camouflage the presence of red and amber waste amongst the green waste.
25 Furthermore, the Danish Government observes that when, at a meeting on 6 June 1996, the Commission expressed its view that different types of green waste could not be mixed, it explained that it came to that conclusion because the green list of wastes already included certain mixtures of green waste as individual items.
26 The Danish Government also mentions the OECD Decision of 30 March 1992, (22) to which the Regulation refers. (23) Annex I, section III, paragraph (1) of that Decision, which lists green waste, states that only the items specified under a main category and not the main categories themselves form part of the green list.
27 A further argument of the Danish Government is that the export of a mixture of green waste supposedly destined for recovery might result in disposal as well as recovery if the waste is incinerated, since use principally as a fuel or other means to generate energy qualifies as a recovery operation but some substances do not create sufficient energy when incinerated to so qualify. Thus, for example, a batch of waste containing both wood and metal might result in the wood being recovered but the metal being disposed of since the latter does not produce much energy.
28 The Netherlands Government argues that the multiplicity of diverse plastic materials in the waste in question makes direct recovery of the waste scarcely feasible and that, even if recovery were technically possible, there is so much variation that the quantity recovered would be too small to justify the recovery. In that respect it refers to the ground for objection listed under Article 7(4)(a), fifth indent, of the Regulation, which allows the competent authorities to object to a shipment of waste for recovery if the ratio of the recoverable and non-recoverable waste, the estimated value of the materials to be finally recovered or the cost of the recovery and the cost of the disposal of the non-recoverable fraction do not justify the recovery under economic and environmental considerations.
29 In my view the correct approach is to consider the meaning of the term `municipal/household waste'. Three main points can be made. First, such waste may include a significant number of different types of waste. A particular batch of such waste may comprise very many different substances or just a few. Moreover, it may contain only green waste or a mixture of green waste with other waste. The diversity of municipal waste is illustrated by the large number of items which appear under the heading `Municipal wastes and similar commercial, industrial and institutional wastes including separately collected fractions' in Commission Decision 94/3. (24) That Decision established a list of wastes, entitled the `European Waste Catalogue', pursuant to Article 1(a) of the Waste Directive. (25) Its aim is to provide a common terminology throughout the Community in order to improve the efficiency of waste management activities. (26) The heading `Municipal wastes etc.' includes such diverse products as organic compostable kitchen waste, clothes, acids, batteries, aerosols etc.
30 Secondly, I agree with the Commission that municipal/household waste must be capable of reclassification once it has been properly sorted. Once sorted, the essential criterion should be the composition of the waste.
31 Thirdly, in my view, an unsorted batch of such waste should not qualify as green waste simply because by chance none of the contents of that particular batch appear on the amber or red list. Even if it were to be found that all or nearly all of a particular batch of waste consisted of items in the green list, that would not be sufficient to exempt the consignment from the requirement of notification. The waste must have been properly sorted into appropriate categories in order to escape classification in the amber list of waste as `municipal/household waste'. It is relevant to note in that respect footnote 19 of the OECD Decision of 30 March 1992. (27) In the Basel Convention (28) household wastes are defined as `other waste', rather than hazardous waste, and are controlled when they are subject to transfrontier movements. In the footnote it is inferred from that that the Decision should provide for `all household wastes (and not just those which exhibit a hazardous characteristic) [to] be subject to the procedures in Section IV (Amber Tier)'.
32 For present purposes, it suffices to say that municipal/household waste does not lose its character as such until it has been properly sorted, and that the materials identified in the present case appear to be so diverse (29) that it is unlikely that sufficient sorting took place. Thus, in answer to the specific doubt raised by the Raad van State in the explanatory part of the order for reference, the decisive factor should be whether the waste has been properly sorted, not whether most of the materials in question are separately referred to in the green list of waste.
33 It may be useful, however, to make an additional observation. If waste is properly sorted, each sorted batch of green waste may well fall within a single general category in Annex II. However, if it is intended, as the Commission and several Member States argue, that green waste falling within one general category (or perhaps even a sub-category) should never be mixed with waste falling within another general category (or sub-category) (unless the mix is inherent in the items concerned, such as paper labels on glass bottles), then it is desirable, in the interests of legal certainty, that the legislation should be amended so as to make that clear.
34 In answer to the first question I conclude simply that the expression `municipal/household waste' referred to under AD 160 in Annex III to the Waste Regulation, as subsequently amended, should be interpreted as also including waste which consists mainly of the solid plastic wastes referred to in Annex II to the Regulation, but also of various other wastes referred to in Annex II and a small quantity of materials not referred to therein, if the waste in question has not been properly sorted into appropriate categories.
Question 2a
35 It appears that the purpose of the second question is to ascertain whether, even if the composition of the waste does not constitute grounds for exemption from the notification obligation in the Regulation, the waste could be exempted on the grounds that it was not intended directly for either recovery or disposal but for storage pending transport to a plant where it was to be recovered. The idea seems to be that, since the Regulation provides only for the notification of shipments of waste for recovery and waste for disposal, it might be argued that shipments of waste for storage pending transport to another plant constitute neither shipments of waste for recovery nor shipments of waste for disposal and accordingly do not need to be notified.
36 However, storage is expressly included within the definitions of both disposal and recovery operations. The Regulation refers to the definitions of disposal and recovery in the Directive. (30) The Directive includes as a disposal operation storage pending any of the other disposal operations listed in Annex IIA, excluding temporary storage, pending collection, on the site where it is produced; similarly, the Directive includes as a recovery operation storage of wastes pending any of the other recovery operations listed in Annex IIB, excluding temporary storage, pending collection, on the site where it is produced.
37 Annexes IIA and IIB do not specify that in order to constitute disposal or recovery the storage of waste must be at the plant at which the other operations referred to in those Annexes are to take place. The only exclusion is in relation to storage at the site where the waste is produced and in relation to which there is accordingly no significant movement of the waste. Moreover, Article 6(2) of the Regulation provides expressly that `Notification shall mandatorily cover any intermediary stage of the shipment from the place of dispatch to its final destination.' That makes sense since it is not only the recovery or disposal of waste which can be harmful to the environment or human health but also the transport of that waste. That fact is self-evident. It is also illustrated by the requirement imposed upon notifiers of the waste to provide information with regard to the measures to be taken to ensure safe transport, (31) and the ability of the competent authorities to lay down conditions in respect of the transport of waste within their jurisdiction. (32) I accordingly conclude that it is irrelevant whether the storage of a particular shipment of waste is to be at the place of final recovery or at some other place: notification of the shipment is required in both cases.
38 I also conclude that, since the abovementioned definitions of disposal and recovery do not contain any geographical limitation and the scope of the Regulation extends to exports from the Community, it is irrelevant whether the recovery operation following storage is to take place inside or outside the Community.
39 That suffices, in my view, to answer the question posed by the national court. Nevertheless, I will address briefly a further question raised in the text of the order for reference and commented upon by the Commission, namely whether notification is necessary if the final fate of the waste to be stored is not yet known. I do not think it could be argued that there might be some fate for waste which does not fall within the disposal and recovery operations listed in Annexes IIA and IIB of the Directive. It is clear that the intention of the Regulation was to cover all transport of waste, even though the shipment of some waste is exempt from the notification requirement. As the Commission argues, to interpret the Regulation as exempting from notification waste whose final fate has not yet been determined would lead to the absurd result that transporters of waste who had not determined the fate of the waste prior to transport would be freer with regard to the organisation of such transport than transporters who had determined the waste's fate, and yet the former situation is more objectionable. It can also be observed that such an interpretation might dissuade transporters from taking, or from admitting to having taken, a decision as to the final fate of the waste to be transported. It is accordingly clear that the notification requirements under the Regulation in relation to a particular shipment of waste cannot be avoided on the ground that the fate of that shipment has not been determined.
40 In answer to Question 2a, I conclude that the reference to storage of materials in Annex IIB of the Waste Directive, as subsequently amended, should be interpreted as covering not only storage at the plant in which the other operations referred to in the Annex will take place, but also storage pending transport to such a plant (excluding temporary storage, pending collection, on the site where the waste is produced), regardless of whether that plant is situated inside or outside the Community.
Question 2b
41 In the second part of question 2 the Raad van State asks what minimum evidence is necessary for a finding that waste which has not been notified is intended for recovery. The national court requests an answer to that question if Question 2a is answered in the affirmative and I have proposed such an affirmative answer. However, as the Commission observes, Question 2b only appears to be relevant if, in answer to Question 1, the waste in question is held to be green waste because it is only green waste for recovery which is generally exempt from the notification requirement in the Regulation. If the waste is not green waste, its movement should have been notified in any event, whether it was intended for recovery or for disposal. Since I suggest that the waste cannot be regarded as green waste, it might accordingly be deemed unnecessary to answer Question 2b. Nevertheless, in case a different view were to be taken of the classification of the waste, and since it is in principle for the national court to determine the necessity of its questions, I consider it appropriate to answer the second part of Question 2.
42 The only provision in the Regulation in relation to the information necessary as regards green waste for recovery is Article 11(1). (33) Article 11(1) provides that, in order to assist the tracking of shipments of waste for recovery listed in Annex II (i.e. green waste), such shipments must be accompanied by the following information, signed by the holder:
(a) the name and address of the holder;
(b) the usual commercial description of the waste;
(c) the quantity of the waste;
(d) the name and address of the consignee;
(e) the operations involving recovery, as listed in Annex IIB to the Waste Directive; and
(f) the anticipated date of shipment.
43 However, in relation to waste for recovery which must be notified under the Regulation, the Regulation provides that the notifier must make a contract with the consignee for the recovery of the waste, and must supply a copy of the contract to the competent authority upon request. If the waste is shipped between two establishments under the control of the same legal entity, the contract may be replaced by a declaration by the entity in question. (34)
44 Furthermore, Article 6(4) of the Regulation provides that the notifier must complete the consignment note and, if requested by competent authorities, supply additional information and documentation, and Article 6(5) provides that the consignment note must contain information with particular regard to certain matters. In so far as is relevant, those include the following:
- the source, composition and quantity of the waste for recovery, including the producer's identity and, in the case of waste from various sources, a detailed inventory of the waste and, if known, the identity of the original producer,
- the identity of the consignee of the waste, the location of the recovery centre and the type and duration of the authorisation under which the centre operates,
- the operations involving recovery as contained in Annex IIB to the Waste Directive,
- the planned method of disposal for the residual waste after recycling has taken place,
- the amount of the recycled material in relation to the residual waste,
- the estimated value of the recycled material.
45 All the information mentioned in paragraphs 42 to 44 above can serve as useful guidelines to transporters of waste as to what the competent authorities might require by way of proof that a particular shipment is destined for recovery. However, I agree with the Commission that it is difficult to determine, in the abstract, exactly what proof is necessary since each case will depend on its own facts. Indeed, the Regulation recognises the need for flexibility since it allows competent authorities to request additional information and documentation (Article 6(4)).
46 It can therefore be stated only that the information and evidence produced must be sufficient to satisfy the competent authority in question that the shipment is indeed destined for recovery. The competent authorities should have a discretion to require information or evidence other than that specified in the Regulation, particularly in view of their obligation in certain circumstances to ensure that waste which is transported illegally is taken back or disposed of or recovered in an environmentally sound manner (see Article 26 of the Regulation). Article 11(1) does not purport to be exhaustive as regards the evidence which might be required in relation to green waste for recovery. It merely lays down the information which must accompany such shipments in order to `assist' the tracking of them. Whilst there might be a danger of a competent authority unreasonably declining to be satisfied that a particular shipment of waste is intended for recovery, it is not appropriate to seek to pre-empt such problems by laying down strict criteria as to what is necessary and sufficient by way of proof.
47 The national court asks, however, about the minimum evidence which should be available. It is therefore envisaging not a situation in which a competent authority requires too much evidence but rather one in which it requires too little. In the interests of the Regulation's aim of environmental protection, the competent authorities must not be too lax as regards the standard of proof. In my view, the minimum information required in relation to unnotifiable green waste for recovery will normally be the information listed in Article 11. With that information further checks and enquiries can be made, and the very fact that no further information is listed in Article 11 suggests that it was considered that such information may, in the normal case, be sufficient. If in doubt as to the veracity of the information provided, the competent authority would, however, be obliged to check that information and if necessary to require further information or documentation, as appropriate.
48 In relation to shipments of green waste for storage, since storage only qualifies as a recovery operation if it constitutes storage pending a recovery operation, (35) there must be proof not only of the intention to store the waste but also as to the final recovery operation. That is so even if the final recovery is to take place outside the Community because the competent authorities have obligations under the Regulation in relation to exports of waste from the Community. (36)
49 In answer to Question 2b, I accordingly conclude that the minimum information that must normally be required by the competent authority for a finding that green waste is intended for recovery is the information set out in Article 11(1) of the Regulation; however, that authority is entitled or may be obliged to request such further information or evidence as may be necessary to show that the waste is destined for recovery.
Question 3
50 By its third question the Raad van State seeks to ascertain the extent of the duties and powers of the competent authority of destination to return illegally transported waste to the Member State of dispatch.
51 Shipments of waste which have not been notified to all competent authorities concerned are deemed to be illegal traffic by Article 26(1)(a) of the Regulation. (37) It is accordingly argued that the shipment of waste in question in the present case is illegal because it was not notified. The obligation to notify is, not surprisingly, imposed upon the notifier of the waste (Article 3(1) and Article 6(1) of the Regulation). The `notifier' of waste is defined at length in Article 2(g) of the Regulation. That definition includes, in certain circumstances, `the person having possession or legal control of the waste (holder)'. The Raad van State considers that in the present case Beside was the holder of the waste within the meaning of the Regulation and that, if notification was necessary, it should, therefore, have been Beside which notified the transport of the waste pursuant to the Regulation.
52 Since the alleged illegality in the present case is the responsibility of the notifier, Article 26(2) of the Regulation applies. As set out above, (38) Article 26(2) provides that when illegal traffic in waste is the responsibility of the notifier of the waste, the competent authority of dispatch shall ensure that the waste in question is either (a) taken back by the notifier or, if necessary, by the competent authority itself, into the State of dispatch, or if that is impracticable, (b) otherwise disposed of or recovered in an environmentally sound manner.
53 It is important to recall in particular that the second and third sentences of Article 26(2) provide that:
`In this case a further notification shall be made. No Member State of dispatch or Member State of transit shall oppose the return of this waste at the duly motivated request of the competent authority of destination and with an explanation of the reason.'
54 The Minister argues that it can be implied from that third sentence that the competent authority of destination is required or empowered to do what the competent authority of dispatch is obliged to do under the first sentence of that provision.
55 The Raad van State wonders whether the fact that the second sentence of Article 26(2) provides that the return of waste must be notified means that the reference in the third sentence of Article 26(2) to the Member State of dispatch is in fact a reference to the State which was the Member State of destination in relation to the original, illegal shipment. That interpretation is based on the fact that, in returning the waste, the Member State of destination in relation to the original shipment is acting as the State of dispatch. On that view, the obligation in the third sentence upon the `Member State of dispatch' not to oppose the return of the waste would be a reference to the State which was the Member State of destination in relation to the original shipment. The Raad van State reasons that it would follow that the Minister could not rely upon the third sentence of Article 26(2) as the basis of power to order the return of the waste to Germany.
56 It seems clear to me, however, that, as the Netherlands Government comments, the purpose of Article 26(2) is to ensure that Member States do not close their eyes to illegal shipments from their territory, by obliging them to take back such shipments when the illegality is the responsibility of the notifier. Moreover, as the Raad van State recognises, it would be odd for the reference to the competent authority of dispatch in one sentence and the reference to the competent authority of destination in another sentence in the same provision to mean the same authority. (39) Thus the obligation in the third sentence of Article 26(2) not to oppose the return of illegal waste which is the responsibility of the notifier, is, in my view, imposed upon the Member State from which the waste was originally dispatched.
57 I accordingly consider that the second and third sentences of Article 26(2) mean that the return of waste to the Member State of dispatch (i.e. the Member State from which the goods were originally dispatched) cannot be made unilaterally by the Member State of destination (i.e. the Member State where the waste arrived) without prior notification of the Member State of dispatch, but the Member State of dispatch cannot oppose the return of the waste if the request of the Member State of destination is duly reasoned. (40) (The Member State of dispatch could presumably, however, oppose the return of waste if it were impracticable for the notifier or the competent authority of dispatch to take back the waste, because in such circumstances the first sentence of Article 26(2) simply obliges the Member State of dispatch to ensure that the waste is otherwise disposed of in an environmentally sound manner.)
58 Although it is the duty of the Member State of dispatch to ensure the return or environmentally sound disposal or recovery of the waste, that State may need the assistance of the Member State of destination. It follows, in my view, from the aim and scheme of Article 26, (41) together with the general obligation of cooperation in Article 5 of the Treaty, that the Member State of destination is obliged to assist the Member State of dispatch to fulfil its obligations under Article 26(2).
59 It is not, however, clear from the terms of Article 26(2) whether the Member State of destination may order the return of waste if, having been duly notified, the Member State of dispatch is unwilling to accept it back. The Finnish and Netherlands Governments argue that the Member State of destination should have the autonomous power to return the waste, provided it has sent a request first. In support of that view, they refer to a `Common Understanding of Correspondents' established following meetings on 7 November 1995 and 6 June 1996. (42) That Understanding, however, concerns the question whether the competent authority of destination can `require' the competent authority of dispatch to take back waste which was not notified because it was shipped as green waste for recovery but which, in the view of the competent authority of destination, does not constitute green waste, and it appears to assume that the Member States of dispatch and destination will reach agreement as to the return of the waste. Moreover, the Commission argues that the Member State of destination should not have autonomous power to return waste because, if the Member State of dispatch is not in agreement, the waste might be abandoned at the frontier. The German Government is similarly of the view that the Member State of destination cannot return waste without the agreement of the Member State of dispatch.
60 Since it is not, however, suggested in the present case that the Member State of dispatch has refused to accept the return of the waste, it is unnecessary to address that situation. It might be observed nevertheless that, pursuant to Article 4 of the Waste Directive, Member States are obliged to take the necessary measures to prohibit the `abandonment, dumping, or uncontrolled disposal of waste' and to ensure that waste is recovered or disposed of without endangering human health and without harming the environment.
61 In answer to the third question, I conclude that the competent authority of destination is not only entitled but obliged to assist the competent authority of dispatch in fulfilling its obligations under Article 26(2) of the Regulation; and that the Member State of dispatch is not entitled to oppose the return of the waste, provided that the return is not impracticable and it has received from the competent authority of destination a duly reasoned request for the return.
Conclusion
62 Accordingly, I am of the opinion that the questions referred by the Raad van State should be answered as follows:
(1) The expression `municipal/household waste' referred to under AD 160 in Annex III to Council Regulation (EEC) No 259/93 on the supervision and control of shipments of waste within, into and out of the Community, as subsequently amended, should be interpreted as also including waste which consists mainly of the solid plastic wastes referred to in Annex II to the Regulation, but also of various other wastes referred to in Annex II and a small quantity of materials not referred to therein, if the waste in question has not been properly sorted into appropriate categories.
(2) (a) The reference to storage of materials in Annex IIB of Council Directive 75/442/EEC on waste, as subsequently amended, should be interpreted as covering not only storage at the plant in which the other operations referred to in the Annex will take place, but also storage pending transport to such a plant (excluding temporary storage, pending collection, on the site where the waste is produced), regardless of whether that plant is situated inside or outside the Community.
(b) The minimum information that must normally be required by the competent authority for a finding that green waste is intended for recovery is the information set out in Article 11(1) of the Regulation; however, that authority is entitled or may be obliged to request such further information or evidence as may be necessary to show that the waste is destined for recovery.
(3) The competent authority of destination is not only entitled but obliged to assist the competent authority of dispatch in fulfilling its obligations under Article 26(2) of the Regulation; the Member State of dispatch is not entitled to oppose the return of the waste, provided that the return is not impracticable and it has received from the competent authority of destination a duly reasoned request for the return.
(1) - OJ 1993 L 30, p. 1.
(2) - OJ 1975 L 194, p. 39. All the substantive provisions of Directive 75/442 were replaced by Council Directive 91/156/EEC of 18 March 1991 amending Directive 75/442 on waste, OJ 1991 L 78, p. 32. Annexes IIA and IIB which were added by Directive 91/156 were amended by Commission Decision 96/350/EC of 24 May 1996 adapting Annexes IIA and IIB to Council Directive 75/442 on waste, OJ 1996 L 135, p. 32.
(3) - Article 44.
(4) - For the full definition of that term, see Article 2(d) of the Regulation.
(5) - For the full definition of that term, see Article 2(c) of the Regulation.
(6) - For the full definition of that term, see Article 2(e) of the Regulation.
(7) - Article 3(1) in relation to waste for disposal; Article 6(1) in relation to waste for recovery.
(8) - Article 4(2)(a).
(9) - Article 8(1). However, in the case of waste for recovery which is listed in the `red list of waste' in Annex IV, the consent must be provided in writing prior to commencement of shipment: Article 10.
(10) - The Annexes to the Regulation were amended by Commission Decision 94/721/EC of 21 October 1994, adapting, pursuant to Article 42(3), Annexes II, III, and IV to Council Regulation (EEC) No 259/93 on the supervision and control of shipments of waste within, into and out of the European Community, OJ 1994 L 288, p. 36, and Commission Decision 96/660/EC of 14 November 1996 adapting, pursuant to Article 42(3), Annex II to Council Regulation (EEC) No 259/93, OJ 1996 L 304, p. 15.
(11) - Recital 14 of the Regulation.
(12) - Article 1(3)(a).
(13) - Originally general category D; subsequently amended by Commission Decision 94/721, cited in note 10.
(14) - Originally sub-category D 3915 10; subsequently amended by Commission Decision 94/721, cited in note 10.
(15) - Cited in note 10.
(16) - At paragraph 5 above.
(17) - Article 2(k).
(18) - Annex III as originally drafted referred to `household wastes', which it listed as one of the wastes on the amber list which were to be `re-examined as a matter of priority by the Review Mechanism of the OECD'. The categorization of `municipal/household wastes' as `AD 160' in the amber list of wastes was effected by Commission Decision 94/721, of 21 October 1994, cited in note 10.
(19) - That provision is set out at paragraphs 8 and 9 above.
(20) - The full text of that paragraph is cited at paragraph 6 above.
(21) - See Article 2(2) of Council Directive 91/689/EEC of 12 December 1991 on hazardous waste, which obliges Member States to take the necessary measures to require, subject to limited exceptions set out in Article 2(3), that establishments and undertakings which dispose of, recover, collect or transport hazardous waste `do not mix different categories of hazardous waste or mix hazardous waste with non-hazardous waste', OJ 1991 L 377, p. 20.
(22) - OECD Decision concerning the Control of Transfrontier Movements of Wastes Destined for Recovery Operations, C(92)39/FINAL.
(23) - Recital 3.
(24) - 20 December 1993, OJ 1994 L 5, p. 15.
(25) - Cited in note 2.
(26) - See paragraph 5 of the Introductory note.
(27) - Cited in note 22.
(28) - Convention on the control of transboundary movements of hazardous wastes and their disposal, approved, on behalf of the Community, by Council Decision 93/98/EEC of 1 February 1993, OJ 1993 L 39, p. 1. The text of the Convention is annexed to the Council Decision. The Waste Regulation gave effect to the Convention within the Community.
(29) - See paragraph 14 above.
(30) - See Article 2(k) and (i) of the Regulation, and Article 1(e) and (f) and Annexes IIA and IIB of the Directive. The relevant provisions of those Annexes were amended, subsequent to the facts of the present case, albeit not materially, by Commission Decision 96/350, cited in note 2.
(31) - Article 3(5) in relation to waste for disposal and Article 6(5) in relation to waste for recovery.
(32) - Article 4(2)(d) in relation to waste for disposal and Article 7(3) in relation to waste for recovery.
(33) - See Article 1(3)(a).
(34) - Article 6(6).
(35) - See paragraph 36 above.
(36) - Title IV of the Regulation.
(37) - Cited at paragraph 8 above.
(38) - At paragraph 9.
(39) - Compare Article 9(2) of the Convention on the control of transboundary movements of hazardous wastes and their disposal (`the Basel Convention'), which contains a similar provision to Article 26(2) of the Regulation. It provides simply that `the Parties concerned shall not oppose, hinder, or prevent the return of those wastes to the State of export'. (The fourth recital of the preamble to Council Decision 93/98, by which the Convention was approved on behalf of the Community, states that the Waste Regulation was `designed, inter alia, to make the existing Community system for the supervision and control of waste movements comply with the requirements of the Basel Convention and the Fourth ACP-EEC Convention'. The Basel Convention is also referred to in the first recital to the Regulation.)
(40) - With reference to the wording of the final sentence of Article 26(2), it is not entirely clear what `an explanation of the reason' adds to a `duly motivated request'.
(41) - See, in particular, the references to cooperation between competent authorities in Article 26(3) and 26(4).
(42) - `Sheet Information Paper, Regulation (EEC) No 259/93 on Shipments of Waste, Subject: Illegal traffic', AMP D(96) (annexed to the observations of the Finnish Government). Correspondents are designated by the Member States and the Commission pursuant to Article 37(1) of the Regulation; Article 37(2) provides that the Commission shall, if requested by Member States or if otherwise appropriate, periodically hold a meeting of the correspondents to examine with them the questions raised by the implementation of the Regulation.
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