Exporters of recycled material could be forced to reveal sensitive commercial information following a ruling by the European Court of Justice.
Earlier this year, the Court of Justice was asked to interpret the 2006 European Waste Shipment Regulation in a case brought to the German courts by Interseroh, a scrap metal, paper, plastic and wood waste dealer from Schwerin in Northern Germany.
The firm claimed that it had lost clients due to a requirement in the Transfrontier Shipment of Waste Regulations to reveal the names of clients on legally required shipping documents, which must be provided by to waste producers and processors.
The ECJ ruling on March 29 means that exporters are prohibited from leaving sections of Annex VII, the document which is required accompany all shipments of waste transported overseas, blank. The document requires certain information to be made available including the type and source of the waste, as well as the recovery destination to ensure that it is likely to be treated properly.
Inspection
However, some companies leave some sections of Annex VII blank in order to safeguard sensitive commercial information, instead opting to provide this detail separately for inspection if requested.
In its statement to the court, Interseroh claimed that in its capacity as a trader of recovered materials, it acts as an intermediary dealer between the waste producer and the recycler, without taking physical possession of the material. As it is then responsible for arranging the shipment of the material abroad, Interseroh is required to ensure the documentation is completed.
Interseroh claimed that by filling out all of the required information on Annex VII, customers would then have access to the source of the waste, and in essence be able to remove the intermediary dealer from future arrangements. The company argued that this requirement infringed its right to protection of business secrets and represented a serious impediment to its economic activity.
Interpretation
Upon considering the case put forward by Interseroh, the ECJ ruled that the omission of the information could not be justified by citing protection of business secrets.
It said: Article 18(4) of Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste must be interpreted as not permitting an intermediary dealer arranging a shipment of waste not to disclose the name of the waste producer to the consignee of the shipment, even though such non-disclosure might be necessary in order to protect the business secrets of that intermediary dealer.
UK
Commenting on the case and its impact on the UK, a spokesman for the Environment Agency told letsrecycle.com that the Agency supported the ECJs ruling as it upholds the main aim of the regulation- to protect the environment. She also confirmed that the Agency would uphold the ruling and will require firms to provide all of the information requested when submitting the Annex VII forms.
She said: We have always considered full completion of the Annex VII form to be a requirement of the Waste Shipments Regulation. This is clearly set out in the Transfrontier Shipment of Waste Regulations 2007 and the recent ruling by the European Court of Justice supports this view.
Currently in the UK firms are required to hold the documentation for three years, but there is no obligation for them to send it to the Environment Agency unless requested.
Vincent Brown, partner at commercial law firm Semple Fraser, said that the ruling could lead some firms to seek to protect themselves contractually against the loss of business that the ruling could risk.
Speaking to letsrecycle.com he said: I dont yet have a feel about how this ruling will commercially impact in the UK, and it may well be that UK intermediaries comply already with the disclosure requirements of the TFS in their shipment documents without suffering undue commercial loss.
However, if this does become a bigger issue (and the Court judgment tends to ‘flag up’ the scope for the disclosures to be commercially exploited against intermediaries) then it may be that the only way to deal with it will be in the framing of relevant sections of the commercial contracts between intermediaries and their customers.
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