7.11.2009

Official Journal of the European Union

C 267/32

(Case C-299/09)

2009/C 267/59

Language of the case: Czech

Referring court

Parties to the main proceedings

Applicant: DAR Duale Abfallwirtschaft und Verwertung Ruhrgebiet GmbH

Defendant: Ministerstvo životního prostředí

Questions referred

1.Must Article 2(i) and (k) of Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community, (1) in conjunction with Article 1(e) and (f) of Council Directive 75/442/EEC of 15 July 1975 on waste, (2) and with point D10 of Annex IIA and point R1 of Annex IIB to that directive, be interpreted to the effect that the first of the criteria defined by the Court of Justice in its judgment of 13 February 2003 in Case C-458/00 Commission v Luxembourg [2003] ECR I-1553 for it to be possible for the incineration of waste to be regarded as the recovery of waste to generate energy within the meaning of point R1 of Annex IIB to that directive (that is, the main purpose of the operation must be to enable waste to fulfil a useful function, namely the generation of energy) may also be satisfied in a case in which none of the circumstances is present which the Court of Justice mentioned in that judgment as factors testifying to recovery of waste, that is to say, where the operator of the installation in which waste is to be incinerated does not make a payment for the operation to the supplier of the waste and the installation is not technically adapted to be capable of operation on the basis of primary energy sources in the event of a shortage of waste?

2.If the answer to that question is in the affirmative, under what conditions may the operation be regarded in such a case as the recovery of waste?

(a) May the aspect of payment for the waste operation be disregarded altogether, or is it necessary at the very least, for it to be possible to regard the operation as the recovery of waste, that the income of the operator of the installation from the sale of the thermal or electrical energy obtained by the incineration of a certain quantity of waste exceeds the income of the operator of the installation from the payment for receiving the waste?

(b) As regards the nature of the installation of the recipient of waste, may it be regarded as a sufficient factor testifying to a waste recovery operation that in the decision authorising the operation of the installation it is formally classified as an installation for the recovery of waste for energy purposes and that the operator of the installation has contractually bound himself to feeding a certain quantity of thermal energy into the network and would face a contractual penalty if that obligation were breached, or is it a minimum condition for assessing the operation as the recovery of waste that the operator of the installation would from the legal, technical and economic point of view actually be capable of operating the installation, at least temporarily, on the basis of fuels other than waste?

(1) OJ 1993 L 30, p. 1.

(2) OJ 1975 L 194, p. 39.