I. The individual "Case Luxembourg"

According to the European Court of Justice (ECJ), Luxembourg's decision to qualify the combustion of household waste in the Strasbourg incinerator as a disposal operation was not wrong, because in this case, no sufficient argumentation has been provided to prove that the waste in question was recovered in this incineration plant.

CEWEP points out, that this is the decision in an individual case. It does not generally exclude incineration in a waste incinerator from energy recovery.

In its arguments, the Court deviated essentially from the opinion of the Advocate General Jacobs, delivered on 26th September 2002, who put forward that it was only the primary objective of the plant that was decisive; therefore, an incineration plant only could dispose of waste. CEWEP welcomes that the Court does not only focus on the primary objective of the plant as Advocate General Jacobs did, but also on the particular measure and the waste.

In its Judgement on the "Case Luxembourg", the ECJ does not exclude that the main purpose of waste incineration in an incinerator can be energy recovery.

The ECJ criticised that the Commission has not adduced any evidence in the context of its action. This shows, contrary to what the competent Luxembourg authorities considered in the contested decision, that the principal objective of the operation in question was the recovery of waste. It has not provided any evidence at all of this, such as whether the waste in question was intended for a plant which, unless it was supplied with waste, would have had to operate using a primary energy source, the court pointed out (par. 44).

CEWEP would like to stress that in Europe there are many highly energy efficient waste treatment plants that replace the use of fossil fuels by delivering heat and electricity to citizens, hospitals, industry etc. and therefore contribute to climate protection by reducing CO₂ emissions.

The example, given by the Court in par. 44, is fulfilled by various Waste-to-Energy Plants.

Some incinerators have been built instead of a power plant; in addition the potential of incinerators to deliver energy have been considered at the planning of new power plants.

The "Fernwärme Wien", for instance, constructed the incinerator "Spittelau" instead of a power station to deliver heat to a hospital.

In Sweden, e.g., waste incineration with energy recovery covers approximately 11 % of the energy needed for district heating. In certain regions it covers some 40 % of the heating needs.

Indeed, the Commission did not argue referring to the principal objective of the operation in question but only maintained in that regard that the shipments of waste were intended for use as a means of generating energy (par. 45).

Therefore, the "Luxembourg" Judgement is referring to this individual case but it has to be stressed that the ECJ does not generally exclude waste incineration in a municipal waste incinerator from energy recovery.

According to the European Court of Justice (ECJ) a recovery operation under the point R1 of Annex II B to the Waste Directive, is to be assumed if the use of the waste fulfils a useful function (see II.) and the criteria for the "use principally as a fuel or other means to generate energy" are fulfilled, given by the ECJ in the par 32 - 34 (see III.).

II. Use of the waste to fulfil a useful function

According to the European Court of Justice the essential characteristic of a waste recovery operation is that its principal objective is that the waste serves a useful purpose in replacing other materials which would have had to be used for that purpose instead, thereby conserving natural resources (par. 36, see also ECJ in the ASA Case 6/00).

Referring to waste incineration this means, that a recovery operation shall be assumed, if the main purpose of the operation is to use the waste to fulfil a useful function, i.e. for generating energy and therefore replacing primary energy (i.e. fossil fuels), which should have been used otherwise.

The Waste-to-Energy Plants, represented by CEWEP, use the energy generated from waste, both for their own process, as well as for delivering electricity and/or district heating to third parties, for instance to provide citizens, enterprises and industry. If this energy was not be given by the use of waste, it would have to be provided by the use of primary energy sources (i.e. fossil fuels).

Thus, the waste fulfils a useful function by replacing fossil fuels which would have been used otherwise. Therefore natural raw materials are sustained.

III. Use principally as a fuel or other means to generate energy

The recovery operation "Use principally as a fuel or other means to generate energy" (point R1 of Annex II B to the Waste Directive) implies the incineration of waste (par. 32-34), if

1. the main purpose of the operation is the use of waste as a means of generating energy, i.e. the essential purpose of the operation referred to in that provision is to enable waste to fulfil a useful function, namely the generation of energy (par. 32);
   
   
2. it is indeed a "means to generate energy". This assumes both that the energy generated by, and reclaimed from, combustion of the waste is greater than the amount of energy consumed during the combustion process and that part of the surplus energy generated during combustion is effectively used (par. 33);
   
   and
   
   
3. the waste is used principally as a fuel or other means to generate energy, i.e. the greater part of the waste (= more than 50 %) is consumed during the operation and the greater part (= more than 50 %) of the energy generated is reclaimed and used (par. 34).
   

Whether the waste serves principally as a fuel or other means to generate energy, so that the conditions, given by the ECJ in par. 32 - 34 are fulfilled, depends on different factors, i.e. the plant`s technique, the waste characteristics and utilisation ratio of the plant, as well as on the possibilities to deliver the surplus energy.

It has to be considered that a waste incineration plant, that does not reach its utilisation limit/rate and combusts (low calorific) household waste, needs about the same energy for its operation as a plant that reaches its utilisation limit.

The plant`s energy efficiency rate will be lower than the one with a plant that reaches its utilisation limit combusting higher calorific waste.

It can be concluded that a waste with a higher calorific value could be generally used in a much more efficient way than household waste, for instance.

As to the actual energy use (see the conditions mentioned in par. 33 of the Judgement), the environment must also to be considered, as e.g. industrial customers or the connection with district heating nets.

The result of an assumption of the individual conditions, a generalising model was put at the basis (deviations are possible), shows that the Waste-to-Energy Plants, represented by CEWEP, are principally fulfilling the conditions, given by par 32 - 34 (see working paper).

IV. If municipal waste incinerators were excluded from energy recovery

Excluding municipal waste incinerators from energy recovery would cause harm to both the environment and the economy:

• CEWEP stresses that countries which still landfill a large part of their waste will not get incentives to invest into high-tech but expensive incinerators, if they are considered as disposal, i.e. on the same level as landfilling.
  
  Waste would continuously find the cheapest route and this is often landfill. Therefore, in landfill-dominated areas, recycling and recovery quota are lower than in countries with a high incineration rate, because in most cases landfilling is the cheaper way to get rid of the waste - at the environment`s expense. Thus, there are no incentives to recycle or recover waste.
  
  
• The Waste-to-Energy Plants, represented by CEWEP, reach very low emission values, thanks to their extensive flue gas cleaning systems.
  
  Although this causes a high energy need, CEWEP estimates, that their members obtain a good energy balance, meeting the conditions given by the ECJ in par. 32 - 34 for energy recovery.
  
  
• Therefore, excluding the plants from energy recovery, which adhere to the precautionary principle, and including energy recovery in industrial plants like cement kilns (see ECJ in the Case 228/00, delivered on the same day as the "Luxembourg Case"), would neither be an environmentally nor an economically sound solution.
  
  CEWEP points out, that it is not justified to discriminate the High-Tech incinerators, which emit less than industrial plants (see especially mercury) and which are financed mostly by European citizens overtaking environmental responsibility.
  
  It shall be considered that incinerators function as pollutant reducer, whereas co-incineration in cement-kilns fixes pollutants in the product (cement) and spread them into the environment. This is not a level-playing field.
  
  Therefore CEWEP is afraid of the increase of large-scale shipments of waste to industrial plants caused by the judgement of the European Court of Justice in the Case 228/00.
  
  Considering the priority for recovery the Judgements of the European Court of Justice C-228/00 and C-458/00 could be interpreted in the way - assuming the worst case - that waste has to be recovered in industrial plants (and therefore in plants with higher emissions) prior to those plants which are especially constructed with regard to the pollutant contents of waste.
  
  
• Also the guarantee of environmentally compatible waste treatment must be stressed.
  
  The question is if industrial plants want and will guarantee a long-term waste treatment because they are pending on trade cycles, e.g. the construction branch. To assure a long-term environmentally sound waste treatment a sufficient net of waste incinerators must be available.
  
  Therefore stability for investment must be given for Waste-to-Energy Plants (also with regard to the aims of the Landfill Directive).
  
  
• Whereas the Directive on the promotion of electricity produced from renewable energy sources encourages the use of the biogenic fraction in waste, for the purpose of supplying fossil fuels, the non-recognition of energy recovery in incinerators would discourage the improvement of the energy efficiency of these plants.
  
  The potentials to do this are high. Considering that the biogenic part of municipal waste is about 62 % (see a study undertaken by the Öko-Institut on behalf of ITAD, (See summary by CEWEP), Waste-to-Energy Plants contribute a significant portion to the aims of climate protection and could increase this, if they are encouraged to do so.
  
  
• CEWEP wants to allay any fears that waste incineration could inhibit recycling. This is most proven by Member States with high incineration rates like Austria, Denmark, Germany, The Netherlands, Sweden and Switzerland. Environmentally sound incinerators provided with appropriate flue gas cleaning systems are too expensive to preclude other recovery or recycling efforts.
  
  
• Last but not least, the psychological effect should be mentioned, thus the qualification as energy recovery is considered as much more positive and plays an important role concerning the fulfilment of certain recovery quota, given by European and national law.

V. Conclusions

Waste-to-Energy Plants - apart from fulfilling their task of a safe waste recovery/disposal - contribute to the energy supply, giving electricity, district heating and process steam. Thus they became a fixed part of public services. This (partly) replaces the energy produced by conventional power plants, using fossil fuels.

According to the first estimate, the Waste-to-Energy Plants, represented by CEWEP, fulfil the conditions demanded by the Court.

Excluding these plants from energy recovery cannot be the aim of a sound European Environmental policy.

All Waste-to-Energy Plants with a high environmental standard need a certain utilisation ratio in order to operate economically.

Therefore, it is essential that these plants can be certain to get the waste from a specific area. Otherwise waste will be unnecessarily shipped into plants with much lower emission standards (see III.).

The shipment of household waste is not welcome in Europe because of the above mentioned (see III.) ecological and economical reasons.

Advocate General Jacobs pointed out the environmental consequences of waste shipments in his Opinion on the "Luxembourg-Case". However, his Opinion and the final judgement in no way contributed to reducing such transportation, which occurs due to the absence of a level-playing field for waste management in the European Union.

The origin of waste could be used to determine the appropriateness of individual shipments in order that the proximity and self-sufficiency principles are adhered to.

CEWEP wishes to see minimum EU standards devised and implemented for waste operations in order that inappropriate shipments are prevented.

As long as this is not the case, competent authorities shall have the possibility to object against waste shipments in favour of plants with higher environmental standards, i.e. lower emissions.

Otherwise the losers are those who have invested in environment protection.

Brussels, 20 May 2003

Dr. Ella Stengler
- Managing Director -