25 June 2020 by James Langley

ECJ rules on ‘green list’ waste paper shipments

Following a protracted legal case between a German waste management company and the local authority in the state of Baden-Württemberg, in May the European Court of Justice ruled that intra-EU waste paper shipments containing some contamination could be shipped as so-called ‘green list waste’. James Langley wrangles with the legalese and examines the finer details of the case.


On 28 May the European Court of Justice ruled that waste paper containing some contamination could be shipped subject to reduced controls under EU waste shipments regulation.

While it confirmed this could include non-paper contamination, the Court would not be drawn on how much contamination would be acceptable.

The European Court of Justice would not be drawn on how much contamination would be acceptable

Instead, it confirmed that such waste must not be contaminated to the extent that it prevents recovery in an environmentally sound manner.

The ruling is understood to apply for movements within Europe.

The Court invited EU member states to draw up criteria to help operators and competent authorities understand the application of the green list waste controls.

With new post-Brexit laws set to come into force on 1 January 2021, it is unclear what this ruling means for the UK.

Some have said it means the UK’s recycled paper and cardboard industry can operate under lighter touch requirements, though there is a certain margin of discretion for each member state to establish criteria for contamination which would prevent the recovery of a mixture of waste.

To make matters more difficult, the Court’s formal ruling is not yet available in English.

Eleanor Reeves, counsel at international law firm Ashurst, told letsrecycle.com: “The Court’s judgment has not yet been formally released in English, despite other language versions being made available.

“A draft English version is in circulation; however, it contains numerous errors and is subject to approval by the Court.”

Germany

The ruling follows a long dispute between a German waste management company and the local authority in the state of Baden-Württemberg (see letsrecycle.com story).

Interseroh Dienstleistungs GmbH collects used sales packaging. It sends processed paper for recycling into paperboard at a factory in Hoogezand in the Netherlands, operated by ESKA Graphic Board BV (ESKA).

Interseroh believes the paper it ships, which can contain up to 10% ‘impurities’ such as beverage cartons, plastics or metals, is of low risk to the environment and can therefore be shipped under general notification requirements.

Shipments not subject to general notification requirements are either shipped under the more onerous prior informed consent regime or prohibited from export altogether.

Green list

On 20 May 2015, ESKA was told by the Administrative Jurisdiction Division of the Council of State, the highest general administrative court in the Netherlands, that the waste paper shipped by Interseroh counted as green list waste.

The European Court of Justice is based in Luxembourg (picture: Shutterstock)

Interseroh requested that SAA, the special waste agency in the Baden-Württemberg region responsible for waste shipment arrangements in the German state, also classify the waste mixture as green list, but SAA refused.

On 1 June 2016, Interseroh appealed before the Verwaltungsgericht Stuttgart, the state’s administrative court. The court decided to stay proceedings and refer the matter to the Court of Justice of the EU.

On 30 January, ahead of an official ruling, advocate general Eleanor Sharpston gave her opinion on the case. She said “the presence of impurities at a level of 10% cannot be readily classified as trifling or insignificant” and it should not be “assumed” it would not cause difficulties for the recovery of the waste in an environmentally sound manner.

Interseroh requested the reopening of oral proceedings on 18 February, disputing several points of advocate general Sharpston’s opinion. The Court confirmed it was not bound by the advocate general’s opinion but said it would not reopen the oral procedure.

Regulation

The dispute stemmed from differing interpretations of Article 3(2) of Regulation 1013/2006 of the European parliament and the Council of the European Union on the shipment of waste.

Wastepaper, cardboard and paper products are classified under code B3020

EU regulation transposes the international waste shipments regime as laid out in the Basel Convention. Designed to reduce the movements of hazardous waste between nations, the Basel Convention defines paper, paperboard and paper product waste as containing principally organic constituents.

Wastes listed in Annex IX to the Basel Convention are not considered hazardous unless they contain substances in quantities that would give the waste hazardous characteristics. Annex IX includes wastes classified under code B3020; namely, wastepaper, cardboard and paper products.

Annex IX is reproduced in the EU waste shipments regulation. Annex III of the regulation sets out a list of ‘green’ waste, subjecting wastes classified as B3020 to so-called Article 18 controls.

Under Article 18, green list waste can be exported without permission from or payment of fees to the competent authorities of the countries involved in the shipment, unless more stringent controls are required by the importing country.

Under Article 3(2), wastes subject to Article 18 controls are either:

(a) listed in Annexes III and IIIB, or;

(b) listed in Annex IIIA as mixtures of two or more types of waste in Annex III which do not fall within a single entry in Annex III, provided that any contamination in the shipments: (i) does not increase the risk to such an extent that the waste should be subject to prior informed consent, or (ii) prevents the recovery of the wastes in an environmentally sound manner.

So, under Annex IX shipments of solely wastepaper, cardboard or paper products are not considered hazardous and under Annex III can be exported without permission from or payment to the competent authorities of the countries involved.

Complications arise from a mixture of such materials, as Interseroh found.

Judgment

The Court ruled that:

(1) Article 3(2)(a) does not apply to a mixture of paper wastes (i.e. mixtures of the constituent parts of Basel Code B3020).

(2) Article 3(2)(b) does apply to a mixture of paper wastes, provided that the mixture does not contain substances covered by the fourth indent of B3020 and the conditions of Annex IIIA are fulfilled. The Court observed that Interseroh’s shipments could contain up to 4% beverage cartons, which would fall under the fourth indent of B3020.

(3) In relation to the Annex IIIA conditions, there is a certain margin of discretion for each member state to establish criteria for contamination which would prevent the recovery of a mixture of waste in an environmentally sound manner. The Court suggested Recital 39 could be used as the basis for establishing such criteria. This could include the type of impurities, the properties of the waste that comprise the impurities and whether they are hazardous, the amount of impurities, and available technology.

Implications for the UK

It is unclear how this ruling will apply to the UK in the post-Brexit era, adding an extra dimension to an already fiendishly complicated case.

“The ruling may also lead to increased due diligence checks across the supply chain, and in particular, operational processes and technology”

Eleanor Reeves, Ashurst

Nevertheless, Ms Reeves says she believes the case should still pique the interest of British recyclers.

She told letsrecycle.com: “The UK’s treatment of EU case law during the Brexit transition period is complex. From 1 January 2021 there will be new arrangements for the movement of waste between the UK and the EU.

“The case will nevertheless be of interest to the UK recycling industry, because the judgment may signal a new approach by EU competent authorities in relation to acceptable levels of contamination for green list waste shipments.

“In practice, the ruling may also lead to increased due diligence checks across the supply chain, and in particular, operational processes and technology.”

She added: “Importantly, the Court reiterated that until such criteria have been established, then Article 28(2) will apply, meaning that if the competent authorities of dispatch and destination cannot agree on the classification of waste, then it will be subject to the more onerous prior informed consent regime.”

Useful links

The court ruling can be seen in full here.

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