Case C-1/03

Paul Van de Walle and Others

v

Texaco Belgium SA

(Reference for a preliminary ruling from the Cour d’appel de Bruxelles)

(Environment – Waste – Directives 75/442/EEC and 91/156/EEC – Meaning of ‘waste’, ‘producer of waste’ and ‘holder of waste’ – Soil infiltrated by leaked hydrocarbons – Independent operation of a service station belonging to a petroleum company)

Summary of the Judgment

(Council Directive 75/442, as amended by Directive 91/156, Art. 1(a))

2. Environment – Waste – Directive 75/442, amended by Directive 91/156 – Holder of waste – Concept – Spilled hydrocarbons – Manager of a service station and petroleum undertaking supplying it – Included – Conditions

(Council Directive 75/442, as amended by Directive 91/156, Art. 1(c))

1. Hydrocarbons which are unintentionally spilled and cause soil and groundwater contamination are waste within the meaning of Article 1(a) of Council Directive 75/442 on waste, as amended by Council Directive 91/156, in so far as those substances are a production residue which the holder cannot re-use without prior processing and which he discards, albeit involuntarily, at the time of the production or distribution operations which relate to them.

The same is true for soil contaminated by hydrocarbons, since they cannot be separated from the land which they have contaminated and cannot be recovered or disposed of unless that land is also subject to the necessary decontamination. In addition, the fact that soil is not excavated has no bearing on its classification as waste.

(see paras 46-47, 50, 52-53, operative part)

2. Directive 75/442 on waste, as amended by Directive 91/156, distinguishes between practical recovery or disposal operations or the elimination of waste, which it makes the responsibility of any ‘holder of waste’, whether producer or possessor, and the financial burden of those operations, which, in accordance with the principle of polluter pays, it imposes on the persons who cause the waste, whether they are holders or former holders of the waste or even producers of the product from which the waste came.

Hydrocarbons spilled by accident as the result of a leak from a service station’s storage facilities which were bought by that service station to meet its operating needs, are in the possession of the service station’s manager. Moreover, it is the manager who, for the purpose of his operations, has them in stock when they became waste and who may be considered to be the person who ‘produced’ them within the meaning of Article 1(b) of Directive 75/442. Under those conditions, since he is at once the possessor and the producer of that waste, the service station manager must be considered to be their holder within the meaning of Article 1(c).

Nevertheless, if the poor condition of the service station’s storage facilities and the leak of hydrocarbons can be attributed to a disregard of contractual obligations by the petroleum undertaking which supplies that service station, or to any actions which could render that undertaking liable, that petroleum undertaking could be considered, as a result of its activities, to have ‘produced waste’ within the meaning of Article 1(b) of Directive 75/442 and it may accordingly be regarded as the holder of the waste.

(see paras 58-61, operative part)

JUDGMENT OF THE COURT (Second Chamber) 7 September 2004 (1)

(Environment – Waste – Directives 75/442/EEC and 91/156/EEC – Meaning of ‘waste’, ‘producer of waste’ and ‘holder of waste’ – Soil infiltrated by leaked hydrocarbons – Independent operation of a service station belonging to a petroleum company)

In Case C-1/03,REFERENCE for a preliminary ruling under Article 234 ECfrom the Cour d’appel de Bruxelles (Belgium), made by decision of 3 December 2002, registered at the Court on 3 January 2003, in the criminal proceedings before that court against

intervener:

THE COURT (Second Chamber),,

composed of: C.W.A. Timmermans, President of the Chamber, J.‑P. Puissochet (Rapporteur), R. Schintgen, F. Macken and N. Colneric, Judges,

Advocate General: J. Kokott,

having regard to the written procedure,after considering the observations submitted on behalf of:

after hearing the Opinion of the Advocate General at the sitting on 29 January 2004,

gives the following

‘For the purposes of this Directive:

‘In accordance with the “polluter pays” principle, the cost of disposing of waste must be borne by:

‘It is prohibited to abandon waste in a public or private area outside the sites authorised for that purpose by the competent public authority or without complying with the legislative provisions relating to the disposal of waste’.

‘Anyone producing or holding waste shall be required to dispose of it or have it disposed of in accordance with the provisions of this Order, under conditions which restrict harmful effects on soil, flora, fauna, air and water and, in general, without adversely affecting the environment or human health.

The Executive [of the Brussels‑Capital Region] shall ensure that the cost of disposing of waste is borne by the holder who has waste handled by a disposal undertaking or, failing that, by the previous holders or the producer of the product from which the waste came’.

On those grounds, the Court (Second Chamber) rules as follows:

Signatures.