Meat and bonemeal shipment at heart of waste debate
A cross border shipment of meat and bonemeal destined for use as fuel in a Bulgarian energy-from-waste plant has forced the ECJ to clarify its position on the transport of carcases.
KVZ Retec v Austria
Transfrontier Shipments of Waste – Animal By-Products
The European Court of Justice has issued its judgement in the KVZ Retec case, for which the Advocate-General issued an Opinion toward the end of last year. The case concerns the interpretation of Regulation (EC) No. 259/93 on transfrontier shipments of waste and Regulation (EC) No. 1774/2002 on animal by-products in relation to a shipment of meat-and-bone-meal (MBM) for use as a fuel in a power station in Bulgaria.
The shipment was halted in Austria, court proceedings ensued, and the Vienna Regional Civil Court stayed those proceedings and referred the following questions to the ECJ:-
(a) that is free of SRM;
(b) that contains SRM in the form of Category 1 material under Regulation 1774/2002
illegal under Article 26(1)(a) and (b) of Regulation 259/93, in the absence of notification to and consent of the authorities concerned, on the ground that it involves waste within the meaning of Regulation 259/93?
The Commission’s contention was that ‘animal carcases’ covers only whole carcases of animals that have died in the course of agricultural production, whereas MBM is waste resulting from slaughter and rendering.
The Court stated that MBM is a material of a completely different nature from the material from which it was produced on account of the fact that it has undergone a specific process. This fundamental difference, it stated, is reflected in the clear distinction between ‘entire bodies or parts of animals’ and ‘products of animal origin’ made in Article 2(1)(a) of Regulation 1774/2002.
The Court also pointed to the fact that the concept of waste is not to be interpreted restrictively, and stated that this implied that a strict interpretation should be given to the exceptions to the concept of waste.
The Court therefore decided that MBM was not covered by the concept of ‘animal carcases’ within the meaning of Article 2(1)(b)(iii) of Directive 75/442/EEC on waste, and as such shipments of it were not automatically excluded from the scope of Regulation 259/93 on transfrontier shipments of waste.
The ECJ then turned its attention to the definition of waste under the 1975 Directive, being ‘any substance or object in the categories set out in Annex I which the holder discards or intends or is required to discard’.
MBM is covered by category Q16 under the Annex, therefore it fell to the Court to examine the provisions of the animal by-products Regulation to consider whether a requirement to discard MBM can be inferred from them.
The Regulation provides that if MBM contains SRM it must be either directly disposed of as waste by incineration in an approved incineration plant or else processed in an approved processing plant and then disposed of as waste by incineration, co-incineration or burial in an approved landfill. Therefore, the Court concluded, MBM containing SRM is waste on account of the requirement to discard it.
If MBM contains no SRM, it could be classified as a Category 3 material under the Regulation, as ‘animal by-products derived from the production of products intended for human consumption’.
Under the Regulation such by-products must be disposed of as waste by incineration in an approved incineration plant, or else it may be processed into products of economic value or used as raw material in a pet food plant.
Since the disposal of such by-products is optional, therefore, an absolute requirement to discard MBM not containing SRM cannot be inferred from the Regulation, and therefore it may not be waste.
The Court stated that it was a matter for the national court to determine whether the holder of the MBM intended to discard it in the circumstances. If they did, then it will be waste.
The Court held, in relation to the obligation to notify shipments of waste, that a notification obligation could not be imposed in relation to the shipment of MBM in so far as it is destined for recovery, and therefore appeared on the Green List.
In relation to MBM containing SRM, the Court pointed to the fact that in the introduction to the Green List it states that wastes cannot be moved as green list wastes if they are contaminated by other materials to an extent that increases the risks associated with the waste sufficiently to render it appropriate for inclusion in the amber or red lists, or to the extent that it prevents recovery of the waste in an environmentally sound manner.
The Court said that this was a matter for the national court to decide, although it recognised that, as stated in the Advocate-General’s Opinion, it seemed unlikely that SRM containing material would interfere with the recovery of the waste as a fuel.
Shipments of MBM are therefore only subject to the notification obligation where they are not on the green list or are no longer destined for recovery only.
The Court went on to say that since the purpose of the animal by-products Regulation was the prevention of the dispersal of pathogens, it should be applied in parallel with the tranfrontier shipment Regulation, and that in particular the Articles on transport, collection and storage, dispatch of animal by-products and processed products to other Member States, and records of consignments of animal by-products might be relevant in this context.
Again, it was for the national court to ensure that the shipment took place in accordance with the requirements of the Regulation.
The text of the case can be accessed at the following link.
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