Scrap Metal Intended for Metal Production: The Thin Line between Waste and Products

Abstract

The authorities regularly have to cross swords with businesses on the issue as to whether a given substance has been completely recovered in order to escape the Caudine Forks of waste law. So far, it has been settled case law that national lawmakers could not adopt a definition of the notion of waste that would exclude objects and substances capable of commercial re-use. However, economic operators consider that the relatively broad definition of waste under Union law does not embrace all of the special features of their economic activities. By adopting the new Waste Framework Directive 2008/98/EC, the EU lawmaker sought to tailor the Directive’s scope in the best possible manner, in particular in providing for new arrangements under which certain classes of waste cease to be classified as such. In effect, in virtue of its Article 6 (1) and (2), certain specified waste shall cease to be waste when it has undergone a recovery operation and complies with specific criteria. Such criteria should be set for specific materials by the Commission in comitology. In this connection, the Council adopted Regulation (EU) No. 333/2011 on certain types of scrap metal which sets forth the criteria which make it possible to determine the time when certain types of scrap metal—iron, steel and aluminium—cease to be waste within the meaning of Directive 2008/98/EC where such scrap is intended for the metal production in steelworks, foundries and aluminium refiners. It is the aim of this article to explore some of the questions that the first regulation to implement Article 6 of the Directive is likely to raise.