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Insights // 05 December 2019

Definitions of Waste – Again! European Court Faces Questions

Partner Karen Jones, head of our Planning and Environmental Law team, discusses Openbaar Ministerie v Tronex BV (Case C-624/17) and further questions for the European Court  on the definitions of waste. 

The European Court has again faced questions on the interpretation of the concept of waste.  Openbaar Ministerie v Tronex BV (Case C-624/17) arose from an appeal against conviction in a Dutch criminal case. Tronex BV was convicted for a breach of Dutch law prohibiting transfrontier shipments of waste unless those shipments were notified to the appropriate regulators, documented and consented as required under Dutch law.

The facts were that Tronex operated a wholesale residual stock business dealing in various electrical appliances which had been returned by the consumer or were not current models and not within the seller’s current product range. It was intended to ship the various appliances to Tanzania in one consignment. The mixture of goods and the various ways they came into Tronex’s possession meant that some goods were in original packaging and unopened, other boxes were marked with a notice stating there were defects, glass in some of the kettles was damaged and some of the appliances had no packaging at all. Tronex did not carry out any particular inspection on the functionality of the appliances or take any steps for reuse of them and they were not being shipped for repair or to be recycled.

The Dutch court held that that shipment of the consignment would be unlawful because it was waste and was to take place without the correct consent of the appropriate regulators. Tronex was fined €5000.00 Tronex appealed arguing the electrical items were products and not waste and waste laws did not apply. The Dutch court sought the assistance of the ECJ by referring the issue of whether there was a distinction to be drawn between waste and products.

Article 3(1) Waste Directive 2008/98/EC defines waste as “any substance or object which the holder discards or intends or is required to discard”. The essential question was whether the appliances) which were a burden to retailers who would rather get rid of them (but had a value to Tronex) were waste.  

The difficulty here was that Tronex’s consignment was not separated but was a mixed consignment of waste and non-waste. The ECJ provided guidance to the Dutch court, which largely consisted of confirmation of principles already established. The Court restated that articles can be waste even if they have a residual value,  the condition of the appliances was a factor to consider and whether an item can be used for its original purpose without repair might indicate a waste status and the packaging of the appliances may be relevant. Here some products were in their original packaging and others had no packaging at all. The court also noted that the way that the parties described the consignment and whether the consignment of appliances can be sold without being repaired or whether their reuse was certain may be a factor.

The court confirmed that where a consignment contains appliances which had not previously been ascertained as in good working condition or which are not adequately protected from transport damage it would be a shipment of waste. Goods which are redundant in the seller’s product range and in unopened original packaging on the other hand, the court said must not “without indications to the contrary be regarded as waste”.

The consequence of the court’s decision appears to be to require consignments to be separated out to properly categorise the different elements. This judgement appears to anticipate that exercise being undertaken where what is more likely to occur is that the whole consignment will be categorised as waste (even if mixed with non-waste). This is not helpful in implementing the purposive interpretation required by Recital 6 of the Waste Directive “the first objective of any waste policy should be to minimise the negative effects of the generation and management of waste on human health and the environment”.

For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800. 

This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice. A similar article was first published in Waste Planning Magazine.

Karen Jones

Karen Jones

Partner, Planning & Environmental Law

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