The case centres on the German waste management company Interseroh Dienstleistungs which ships waste paper for recycling into new paperboard at the ESKA Graphic Board factory in Hoogezand in the Netherlands.
Interseroh believes that the waste paper, which can contain up to 10% ‘impurities’, should be deemed low risk to the environment under the Waste Shipments Regulation and therefore classed as green list waste’ and subject to reduced controls.
However, the local authority in Baden-Wurttemberg disputes that view and so Interseroh, via the local administrative court in Stuttgart, is seeking clarification from the European Court of Justice on the issue.
Impurities
Ahead of an official ruling by the court, expected in the coming weeks, Advocate General Eleanor Sharpston delivered an opinion last week (30 January) in which she said that “the presence of impurities at a level of 10% cannot be readily classified as trifling or insignificant” and therefore it should not be “assumed” that it would not cause difficulties for the recover of the waste in an environmentally sound manner.
She added that she believed it should be up to Interseroh to provide scientific evidence that this was not the case and that the “appropriate level of impurities that may be tolerated should not be established merely by a case-by-case approach.”
As with previous cases, the Advocate General says that is not for the court to set a standard on contamination, commenting: “In order to set appropriate rules as to what level of contamination may be tolerated, it would be necessary to take account of the views of stakeholders and industry experts as well as information on scientific and technical progress and the opinions of competent authorities of the member states.”
Concluding, she said the waste in question should be subject to the procedure of prior notification and consent and not green list controls.
The opinions of the Advocates General are advisory and do not bind the Court, but they are nonetheless very influential and are followed in the majority of cases.
A spokeswoman for Interseroh told letsrecycle.com: “We are not giving any comment to ongoing proceedings.”
Ashurst
Commenting on the case, Eleanor Reeves, a Co-Convenor of the UK Environmental Law Association (UKELA)’s Waste Working Group who also leads the environment and safety practice at international law firm Ashurst, said that the Advocate General’s Opinion was broadly aligned with the existing body of case law regarding shipments and contamination levels in particular.
She said: “The ruling demonstrates that in the Advocate Generals’ opinion, the ‘de minimis’ of 10% might be considered in principle to be excessive and I don’t think the industry would generally disagree with that. But what they have struggled with is certainty over what is and isn’t acceptable.”
“It is therefore helpful that the Advocate General has acknowledged that a case by case approach is not effective, and the interpretation of “a de minimis amount”, in the absence of internationally accepted criteria, is to be defined by national regulations and procedures”.
“The ruling demonstrates that in the Advocate Generals’ opinion, the ‘de minimis’ of 10% might be considered in principle to be excessive”
Ms Reeves explained that while industry wanted certainty, the regulators have so far resisted providing this, believing it was better for the protection of the environment and driving higher standards to assess this on a case-by-case basis.
Changes to the law in this area are something the UK may have more control over in a post-Brexit era, Ms Reeves explained, given that the EU Waste Shipment Regulation is no longer directly applicable here but has been transposed into UK law as part of the Withdrawal Act.
However, Ms Reeves said she thought it was unlikely that the Environment Agency would see this as an opportunity to provide more clarity, commenting: “I suspect that it is not likely to happen, given recent announcement on restricting the export of plastic waste, which suggests that we will see increasing scrutiny, rather than less.”
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