Limits to the characterisation of waste
By-products
Two sets of limits on the scope of the legal category of waste relate, respectively, to by-products and products obtained from recovered waste.
By-products
Directive 2008/98 integrates into law a distinction that has been established by Court cases. According to that distinction, a substance or an object obtained from a production process, the primary aim of which is not the production of that item may be regarded as a by-product rather than as waste provided four conditions are fulfilled. These conditions are as follows: the further use of the object or substance in question must be certain; it must be suitable for being used “directly without any further processing other than normal industrial practices”, after having been produced “as an integral part of a production process”; and its further reuse must be lawful in that such a substance or object fulfils all relevant products, environmental and health protection requirements for the specific use and will not lead to overall adverse environmental or human health impacts” (Article 5 (1)).
Case-law provides examples of such by-products: leftover rocks from the operation of a mine to be used without further processing in the necessary filling-in of the underground galleries (Case C-114/01 AvestaPolarit Chrome Oy; Case C-457/02 criminal proceedings against Antonio Niselli) and heavy fuel sold as combustible fuel (Case C-188/07 Commune de Mesquer v Total France SA and Total International Ltd.).