Combatting waste crime

There are several other judgements of the CJEU concerning the character and classification of the substances transported across the borders. Most notably, in C-241/12 (Shell Nederland), the CJEU had to classify over 333 000 kilograms of an oil product returned by a buyer in Belgium to a Dutch company Shell. The buyer was unable to store or retain the oil product due to a fault in its composition caused, accidentally, at the loading of the initial transfer of the product from the Netherlands to Belgium. Determining whether the oil-product was ‘waste’ was essential for the criminal proceedings instituted against Shell. According to the CJEU, the client cannot be regarded as having intended to dispose of or recover the consignment at issue since it was returned based on the contract. It was, however, much more challenging to assess the position of Shell and determine whether Shell intended to ‘discard’ the consignment at issue, at the time when its contamination was disclosed. The CJEU took into account that the substance had commercial value and could be sold on the market without being processed. The decisive fact, however, was that Shell took back the consignment at issue with the intention of blending it and placing it back on the market. For that reason, it could not be considered waste under the WSR.

The case-law of the CJEU also helps to understand the relationship between the legal regimes introduced by various pieces of EU legislation. For example in C-634/17 (ReFood), the CJEU ruled that shipments of animal by-products falling within the scope of Regulation No 1069/2009 (Animal by-products Regulation), are excluded from the scope of the WSR, unless the Animal by-products Regulation expressly provides for the application of the WSR. In C-399/17 (Commission v Czech Republic), the Court has been called upon to decide whether the Czech Republic has failed to fulfil its obligations under the WSR by refusing to take back a substance known as TPS-NOLO (or Geobal) that had been shipped to Poland without respecting the requisite formalities of the WSR. The Czech Government argued that the substance was not waste since it was registered under the REACH Regulation (Regulation No 1907/2006) and was used as a fuel. The CJEU concluded that the Commission has failed to prove that the shipment in question was a shipment of waste within the meaning of the WSR and that it therefore did not constitute an illegal shipment for the purposes of that regulation. According to the CJEU, the mixture at issue may have been wrongly registered under the REACH Regulation in disregard of its classification as waste. However, such a hypothesis cannot be taken to demonstrate that the mixture is waste. While not permitting a definitive conclusion to the contrary, the registration of a substance under the REACH Regulation is, nevertheless, relevant for the purpose of determining whether that substance has ceased to be waste (see also C-358/11, Lapin ELY-keskus, liikenne ja cost-effectiveness).

In C-1/11 (Interseroh Scrap and Metals Trading), the national court asked, in essence, whether the obligation to provide information, laid down in Article 18(1) of the WSR, can be limited by the right to protection of business secrecy. The CJEU concluded that the consequence of the administrative tracking procedure provided for in the WSR is that the consignee of the shipment will be made aware of the name of the waste producer and no derogation may be inferred from that regulation. The scope of such confidentiality requirements is necessarily limited to the contacts which persons having access to the shipment document, namely the competent administrative authorities and persons involved in the shipment in question, have with third parties to that shipment.