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Luxembourg case on recovery versus disposal
The European Court of Justice has ruled that waste incineration is a disposal operation regardless of whether energy is recovered.
Background
Two cases in the European Court of Justice (ECJ) ignited a dispute on whether waste incineration is disposal or recovery.
The first case concerned a European Commission bid to overrule a decision by Luxembourg to block exports of municipal waste for incineration in France. Luxembourg used the proximity principle to justify its ruling. The Commission argued that this was illegal because according to the EU's waste shipments regulation, the principle can only be used to prevent shipments going to disposal, whereas incineration with energy recovery is a recovery operation. The second case concerned a German attempt to prevent export of waste for incineration in Belgian cement kilns.
In both judgements, the ECJ gave the same set of three criteria that it said should be used to determine whether an operation is an 'R1' recovery operation as specified under the EU Waste Framework Directive, namely 'use principally as a fuel other means to generate energy':
- The operation's principal objective must be to allow the use of wastes to produce energy;
- The operation must be able to be considered effectively 'a means of producing energy' which requires that more energy is produced than consumed and that this surplus energy is put to an effective use as heat or electricity; and
- The majority of the waste must be consumed during the operation and the majority of energy produced recuperated and used.
Decision
The European Court of Justice delivered its decisions on the EU Commission vs. Luxembourg and EU Commission vs. Germany on 13 February 2003. In both cases it ruled that waste treatment in an incinerator is "disposal" regardless of energy recovery whereas treatment in a cement kiln is "recovery". These decisions were taken on the basis of existing waste legislation (75/442-EC) and evidence presented to the Court.
Impact on the UK
ESA believes that in both cases, waste is incinerated and energy is recovered therefore the recovery classification should apply equally.
Incineration is an essential part of integrated waste management in the UK and the recovery of energy from this process displaces fossil fuel energy generation, the climatic benefits of which should not be ignored.
Although the UK is not active in the cross border shipment of municipal waste for incineration, the ECJ ruling on the Luxembourg case might remove the incentive for recovering energy from incinerators, and see a move from dedicated efw plants to use waste as a fuel in other, less stringently regulated, combustion processes.
Next Steps
ESA and its European counterpart, FEAD, advocate that since the publishing and revision of the Waste Framework Directive (WFD) in 1975 and 1996 respectively, waste management practices have advanced to such an extent that there is no longer a clear distinction between recovery and disposal processes. The steady move towards greater resource efficiency and recovery within the EU has meant that many processes that were previously deemed to be disposal options now incorporate various aspects of recovery. ESA and FEAD are therefore urging the Commission to replace Annexes IIA and IIB of the Waste framework Directive with a single list of all waste treatment processes, incorporating the respective recovery operations where appropriate.
September 2003 
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