Court considers whether carcasses are waste when sold as fuel

KVZ retec GmbH v Republic of Austria (Case C-176/05)

The Advocate-General of the European Court of Justice issued her Opinion on 7 September in a case involving shipments of animal by-products destined for use as fuel.

Just over 1,000 tonnes of meat-and-bone meal had been transported down the Danube from Germany, destined for incineration in a Bulgarian power station.

The ship got as far as Serbia before being refused passage by Serbian customs, who declared the cargo to be Waste. The owner decided to send the vessel back to Germany so that he might clarify the waste status.

The Serbian authorities allowed this, but the vessel was then stopped en route in Austria, where the authorities decided that the cargo was waste, and that its transportation to Bulgaria, and its return to Germany from Serbia, ought to have been notified to the Bulgarian authorities under Transfrontier Shipments of Waste legislation (TFS). The matter was litigated in the local court, and referred to the ECJ for a ruling.

The Opinion contains very useful consideration of TFS, the Animal By-Products Regulation, and the definition of Waste.

In essence it was held that animal by-products which contain "Category 1" material (i.e. possibly at risk of being contaminated with BSE-containing material) are, by definition, "waste" as the Animal By-Products Regulation requires their disposal.

However where they do not contain Category 1 material, the question of whether the substance is waste must be decided on the basis of existing jurisprudence, although the Advocate General in this case appears to have emphasised the importance of there being a market for the product as a crucial factor in determining waste status.

Moreover, even if the meal HAD been waste, it would not necessarily have been subject to the TFS requirements, as it could be subject instead to the special regime applicable to animal carcasses.

The case will be of particular interest to the rendering industry, as it raises some doubts as to whether tallow is necessarily waste.

Whether the Court will follow the lead of the Advocate General, and reach the same conclusions in its Judgment as she reached in her Option, will be known in the next 3-4 months when Judgment is handed down.

The case can be accessed at the following link.

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