Action brought on 3 July 2017 — European Commission v Czech Republic

(Case C-399/17)

Language of the case: Czech

Parties

Applicant: European Commission (represented by: P. Němečková and E. Sanfrutos Cano, acting as Agents)

Defendant: Czech Republic

Form of order sought

declare that, by failing to ensure that TPS-NOLO (Geobal) material shipped from the Czech Republic to Katowice, Poland, was transported back to the Czech Republic, the Czech Republic has failed to fulfil its obligations under Article 24(2) and Article 28(1) of Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste; ¹

order the Czech Republic to pay the costs.

Pleas in law and main arguments

1.    The TPS-NOLO (Geobal) material that was transported from the Czech Republic to Poland, which comes from hazardous wastes from a waste dump (the Ostramo lagoons), is deposited at another site in the Czech Republic and is classified as waste tar from refining, distilling or pyrolytic treatment of organic materials, is, according to the Polish authorities, waste falling within Annex IV to Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste (‘the Waste Shipments Regulation’).

2.    In view of the fact that the Czech Republic disputes the classification of the substance in question as waste, on the ground of the registration of the material under Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC ² (‘REACH’), a conflict situation has arisen, which is dealt with by Article 28(1) of the Waste Shipments Regulation, by providing that the material in question is to be treated as if it were waste.

3.    Registration of the material in accordance with registration under REACH does not ensure that use of the substance will not lead to a harmful overall effect on the environment or human health, or that the substance automatically ceases to be waste. Where there is no national decision that the substance in question has reached a state in which waste ceases to be waste, the registration of that substance under REACH may not be regarded as valid on the basis of Article 2(2) of REACH.

4.    As the substance in question was transported across the frontier without notification, the transport is to be regarded as an ‘illegal shipment’ under Article 2(35)(a) of the Waste Shipments Regulation. In that case, the competent authority of dispatch is to obtain information by an appropriate procedure to ensure that the waste in question is taken back in accordance with Article 24(2) of the regulation, which the Czech Republic unjustifiably refuses to do. That obligation is not precluded by Article 128 of REACH, which guarantees the free movement of substances, mixtures or articles within the meaning of Article 3 of REACH, since waste is expressly excluded from the scope of that regulation (see Article 2(2) of REACH).

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¹ OJ 2006 L 190, p. 1.

² OJ 2006 L 396, p. 1.