By-products and end-of-waste
A related problem to that of defining wastes is the delineation between waste and so-called by-products. The Court of Justice has concluded that the concept of waste does not in principle exclude any kind of residue, industrial by-product or other substance arising from production processes and that substances forming part of an industrial process may constitute wasted8 The ensuing uncertainty is obviously liable to cause problems for many enterprises since the application of waste legislation to substances forming part of a normal industrial process may be costly and cumbersome whereas not doing so may amount to a violation of the law if the substance is found to be waste. The Court has later dealt with, inter alia, the question of whether a production residue that is used as fuel constitutes waste.29
Through the 2008 FDW the EU legislator has made an attempt, based largely on the relevant case law, to clarify the line between by-products and waste. This has been done by laying down conditions that must be met for a substance or object that results from a production process the primary aim of which is not the production of that item, to be regarded as a by-product and not as waste. Such a substance or object is a by-product only if: (a) further use is certain; (b) it can be used directly without any further processing other than normal industrial practice; (c) it is produced as an integral part of a production process; and (d) further use is lawful. The last point requires that the substance or object fulfils all relevant product, environmental, and health protection requirements for the specific use and will not lead to overall adverse environmental or human health impacts. If the use of a by-product is allowed under an environmental licence or general environmental rules, this can be used by Member States as a tool to decide that no overall adverse environmental or human health impacts are expected to occur.   When applying the case law on which the conditions regarding by-product status in the 2008 FDW are based, the Court of Justice has held that it is for the legal systems of the Member States to determine upon whom rests the burden of proof as to fulfilment of the criteria for by-product status. However, national rules must not result in it being excessively difficult to prove that substances must be regarded as by-products. At the same time it is clear that as a general rule only the holder of a substance or object can prove that she intends not to discard that substance or object but to permit its reuse in circumstances that are consistent with it being classified as a by-product. 31
On the basis of these conditions, measures may be adopted, in accordance with the regulatory procedure with scrutiny, to determine the criteria to be met for specific substances or objects to be regarded as a by-product and not as waste. At the time of writing no such measures had yet been adopted.
A related problem has been the determination of when a substance or object that has undergone a recovery operation ceases to be waste. The Court of Justice has addressed this issue on several occasions. It has, inter alia, found that the fact that a substance is the result of a complete recovery operation is only one of the factors to be taken into consideration for the purpose of determining whether it still constitutes wasted
Also in this area, the EU legislator has intended to clarify the legal situation by including a provision in the 2008 FDW. The Directive now sets out conditions to be used for the development of so-called end-of-waste criteria for specified waste. The four conditions to be met are: (a) that the substance or object is commonly used for specific purposes; (b) that a market or demand exists for such a substance or object; (c) that it fulfils the technical requirements for the specific purposes and meets the existing legislation and standards applicable to products; and (d) that its use will not lead to overall adverse environmental or human health impacts. On the basis of these conditions specific criteria shall be developed for determining when specified waste, including paper, glass, metal, tyres, and textile, shall cease to be waste after having undergone a recovery operation. Such measures are adopted in accordance with the regulatory procedure with scrutiny. So far criteria have been decided, inter alia, for certain types of scrap metal and for glass cullet.33 Where end-of-waste criteria have not been set at EU level, Member States may decide case-by-case whether certain waste has ceased to be waste, taking into account the applicable case law. The Commission is to be notified of any such decisions. (Art 6.)