A substance is not excluded from the definition of waste in the relevant Community directive merely because it forms an integral part of an industrial production process

Inter-Environnement Wallonie has requested the Belgian Conseil d'État to annul an order of the Walloon Regional Executive on toxic or hazardous waste on the ground inter alia that it is contrary to certain provisions of the relevant Community directive.

However, the order in question was adopted before the end of the period prescribed for transposition of the directive. Since the validity of the order is to be assessed at the time of its adoption, the obligations of the Member States before the end of the transposition period must be determined before the obligations laid down in the directive are taken into consideration.

The Conseil d'État asked the Court of Justice to define the concept of waste for the purposes of the directive and sought to ascertain the obligations of Member States during the period prescribed for transposing such a directive. The legal problem in that second question is one of great general importance, and one never before brought before the Court.

The Court holds, in accordance with the broad interpretation of the definition of waste following from its previous decisions, that a substance is not excluded from the definition of waste in Article 1(a) of Council Directive 75/442, as amended, by the mere fact that it directly or indirectly forms an integral part of an industrial production process.

As regards the question whether the EEC Treaty precludes Member States from adopting measures contrary to a directive during its transposition period, the Court points out, first, that the obligation of a Member State to take all the measures necessary to achieve the result prescribed by a directive is a binding obligation.

Second, the Court observes that a directive has legal effect with respect to the Member State to which it is addressed from the moment it is notified.

While the directive lays down a period for transposition which is intended specifically to give the Member States enough time to adopt transposition measures, the fact remains that it is during that period that the Member States are required to take the measures necessary to ensure that the result prescribed by the directive will be achieved at the end of that period.

Although the Member States are not obliged to adopt those measures before the end of the period allowed for transposition, they must during that period refrain from taking any measures liable seriously to compromise the result prescribed by the directive concerned.

It will be for the national court to assess whether that is the case. The Court expresses an unfavourable view of national measures which purport to constitute full and definitive transposition of the directive although they are in fact incompatible with it.

The Court does not, however, raise any objection to the Member State adopting provisional measures or implementing the directive in stages, during the period allowed for transposition.

Solely for media use - unofficial document not binding on the Court of Justice

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