Case C‑251/07

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 22 May 2008 ¹(1)

Case C‑251/07

Gävle Kraftvärme AB

v

Länsstyrelsen i Gävleborgs län

(Reference for a preliminary ruling from the Högsta domstolen (Sweden))

(Directive 2000/76 – Incineration of waste – Classification of a plant for the production of heat and electricity – Concepts of ‘incineration plant’ and ‘co-incineration plant’)

I–Introduction

1.This case concerns the interpretation of Directive 2000/76/EC of the European Parliament and of the Council of 4 December 2000 on the incineration of waste (2) (‘the Waste Incineration Directive’). More precisely, it is necessary to establish whether a plant for the production of heat and electricity (‘co-generation plant’) (3) falls to be considered as a whole or whether each boiler must be taken into account separately and new incineration plants are to be distinguished from co-incineration plants.

II–Legal framework

2.Article 1 of the Waste Incineration Directive sets out its objectives, as follows:

‘The aim of this Directive is to prevent or to limit as far as practicable negative effects on the environment, in particular pollution by emissions into air, soil, surface water and groundwater, and the resulting risks to human health, from the incineration and co-incineration of waste.

This aim shall be met by means of stringent operational conditions and technical requirements, through setting emission limit values for waste incineration and co-incineration plants within the Community and also through meeting the requirements of Directive 75/442/EEC.’

3.Incineration plants and co-incineration plants are defined in Article 3(4) and (5):

‘For the purposes of this Directive:

…

4.“incineration plant” means any stationary or mobile technical unit and equipment dedicated to the thermal treatment of wastes with or without recovery of the combustion heat generated. This includes the incineration by oxidation of waste as well as other thermal treatment processes such as pyrolysis, gasification or plasma processes in so far as the substances resulting from the treatment are subsequently incinerated.

This definition covers the site and the entire incineration plant including all incineration lines, waste reception, storage, on-site pretreatment facilities, [waste-, fuel- and air-supply systems], boiler, facilities for the treatment of exhaust gases, on-site facilities for treatment or storage of residues and waste water, stack, devices and systems for controlling incineration operations, recording and monitoring incineration conditions;

5.“co-incineration plant” means any stationary or mobile plant whose main purpose is the generation of energy or production of material products and:

–which uses wastes as a regular or additional fuel; or

–in which waste is thermally treated for the purpose of disposal.

If co-incineration takes place in such a way that the main purpose of the plant is not the generation of energy or production of material products but rather the thermal treatment of waste, the plant shall be regarded as an incineration plant within the meaning of point 4.

This definition covers the site and the entire plant including all co-incineration lines, waste reception, storage, on-site pretreatment facilities, waste-, fuel- and air-supply systems, boiler, facilities for the treatment of exhaust gases, on-site facilities for treatment or storage of residues and waste water, stack, devices and systems for controlling incineration operations, recording and monitoring incineration conditions;’.

4.Article 6(1) and (2) lays down different requirements for the operation of incineration plants and co-incineration plants:

‘1.Incineration plants shall be operated in order to achieve a level of incineration such that the slag and bottom ashes total organic carbon (TOC) content is less than 3% or their loss on ignition is less than 5% of the dry weight of the material. If necessary appropriate techniques of waste pretreatment shall be used.

Incineration plants shall be designed, equipped, built and operated in such a way that the gas resulting from the process is raised, after the last injection of combustion air, in a controlled and homogeneous fashion and even under the most unfavourable conditions, to a temperature of 850°C, as measured near the inner wall or at another representative point of the combustion chamber as authorised by the competent authority, for two seconds. If hazardous wastes with a content of more than 1% of halogenated organic substances, expressed as chlorine, are incinerated, the temperature has to be raised to 1100°C for at least two seconds.

Each line of the incineration plant shall be equipped with at least one auxiliary burner. This burner must be switched on automatically when the temperature of the combustion gases after the last injection of combustion air falls below 850°C or 1100°C as the case may be. It shall also be used during plant start-up and shut-down operations in order to ensure that the temperature of 850°C or 1100°C as the case may be is maintained at all times during these operations and as long as unburned waste is in the combustion chamber.

During start-up and shut-down or when the temperature of the combustion gas falls below 850°C or 1100°C as the case may be, the auxiliary burner shall not be fed with fuels which can cause higher emissions than those resulting from the burning of gasoil as defined in Article 1(1) of Council Directive 75/716/EEC, liquefied gas or natural gas.

2.Co-incineration plants shall be designed, equipped, built and operated in such a way that the gas resulting from the co-incineration of waste is raised in a controlled and homogeneous fashion and even under the most unfavourable conditions, to a temperature of 850°C for two seconds. If hazardous wastes with a content of more than 1% of halogenated organic substances, expressed as chlorine, are co-incinerated, the temperature has to be raised to 1100°C.’

5.Finally, reference should be made to recital 13 in the preamble to the directive, which concerns the relationship of that directive with Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control: (4)

‘Compliance with the emission limit values laid down by this Directive should be regarded as a necessary but not sufficient condition for compliance with the requirements of Directive 96/61/EC. Such compliance may involve more stringent emissions limit values for the pollutants envisaged by this Directive, emission limit values for other substances and other media, and other appropriate conditions.’

III–The dispute in the main proceedings and the questions referred for a preliminary ruling

6.Gävle Kraftvärme AB is an undertaking within the Gävle Energi group of companies, which, in turn, is wholly owned by an undertaking owned by the municipality of Gävle. It is, inter alia, responsible for producing district heating for Gävle’s district heating network.

7.Gävle Kraftvärme operates the Johannes co-generation plant. This is the undertaking’s own basic production plant in the district heating network and is used to produce heat and electricity. The plant consists of a solid fuel boiler, Boiler No 1, which, after its present completion works, will have a total installed supplied capacity of 85 MW. Heat is produced by incinerating primarily biofuel, including recycled wood, but trials including certain waste fuels are being carried out.

8.Gävle Kraftvärme is now planning an extension of the co-generation plant to include a further one or two boilers of a combined maximum installed supplied capacity of 85 MW. The undertaking intends first to build a new waste boiler of a maximum of 50 MW, Boiler No 2, to incinerate household and commercial waste. Thereafter, if the need arises, a new biofuel boiler, Boiler No 3, will be built with a supplied capacity which will meet future needs up to 85 MW. The situation may arise where Gävle Kraftvärme decides not to install a new waste boiler. In that case, the undertaking may install a new, larger, biofuel boiler of a maximum of 85 MW which covers all future needs.

9.Gävle Kraftvärme therefore applied for a permit for operations at the Johannes co-generation plant for a total installed supplied capacity of a maximum of 170 MW. The application was also for a permit to continue operating the present solid fuel boiler (Boiler No 1) with a total installed supplied capacity of 85 MW and to install and put into operation a new waste boiler (Boiler No 2) with a total installed supplied capacity of a maximum of 50 MW, on the one hand, and a new biofuel boiler (Boiler No 3) with a total installed supplied capacity of a maximum of 85 MW, on the other. The two new boilers’ combined supplied capacity was not, however, to exceed 85 MW. The application was also for a permit to carry out any additional changes and for any additional plant necessary for the increased operations.

10.The application covers the incineration of a maximum of 150000 tonnes of solid fuel based on waste per year in Boilers Nos 1 and 2. A maximum of 10000 tonnes of that waste will consist of hazardous waste, in the form of surface-treated wood or wood treated with wood preservative.

11.The approving authority took the view that the main purpose of the plant consisted in the production of energy and therefore authorised it – in accordance with Gävle Kraftvärme’s application – to operate as a co-incineration plant. The Länsstyrelsen i Gävleborgs län (regional authority) appealed against that decision. It took the view that Boiler No 2 should be classified as an incineration plant and not a co-incineration plant. That appeal succeeded at first instance.

12.Gävle Kraftvärme’s case is now pending before the referring court. Gävle Kraftvärme objects to classification of the boilers individually. It states that the entire Johanneswerk is instead a plant which ought to be assessed as a whole.

13.The referring court, the Högsta domstolen (Supreme Court, Sweden), therefore seeks a preliminary ruling on the following questions:

‘(1)Where a combined power and heating plant consists of a number of units (boilers), for the purposes of the interpretation of [the Waste Incineration Directive] …, is each unit to be assessed as a separate plant or is the assessment to cover the combined power and heating plant as a whole?

(2)For the purposes of the interpretation of [the Waste Incineration Directive], is a plant constructed for waste incineration but having as its main purpose the production of energy to be classified as an incineration plant or as a co-incineration plant?’

14.The Republic of Austria, the Kingdom of Sweden and the Commission of the European Communities took part in the written procedure. Only the Commission took part in the hearing of 17 April 2008.

IV–Legal assessment

A–The first question – the concept of ‘plant’

15.The Högsta domstolen asks first whether a co-generation plant with a number of units (boilers) is to be assessed on the basis of each unit or whether the co-generation plant is to be regarded as a whole.

16.The Waste Incineration Directive differentiates between incineration plants and co-incineration plants. The definition set out in Article 3(4) of the German language version of the directive provides that ‘incineration plant’ was any ‘technische Einheit’ (technical unit) or ‘Anlage’ (equipment). Other language versions avoid the double usage of the term ‘Anlage’. The French language version defines an ‘installation’ as ‘équipement’ or ‘unité technique’; in English a ‘plant’ is described as a ‘technical unit’ or ‘equipment’. The Swedish language version follows the two last-mentioned language versions, since it defines a ‘förbränningsanläggning’ as a ‘teknisk enhet’ or as ‘utrustning’.

17.Incineration plants are thus technical units or equipment.

18.In Article 3(5) of the Waste Incineration Directive, however, the different language versions agree on the definition of ‘co-incineration plant’: they are always defined as plants. Nevertheless, this cannot be understood as meaning that in relation to a co-incineration plant a different concept of ‘plant’ applies to that which applies to incineration plants. Rather that definition implicitly builds on the definition of incineration plant.

19.That unitary concept of ‘plant’ is evident in particular in the almost identical wording of the specific definition of both types of plant in the second subparagraph of Article 3(4) and the third subparagraph of Article 3(5) of the Waste Incineration Directive. Under those provisions, the definition extends to the site of the incineration or co-incineration plant and the plant as a whole, including all incineration lines, waste reception, storage, on-site pretreatment facilities, waste-, fuel- and air-supply systems, boiler, facilities for the treatment of exhaust gases, on-site facilities for treatment or storage of residues and waste water, stack, devices and systems for controlling incineration operations, recording and monitoring incineration conditions.

20.There is no mention, in that specific definition of the concept of ‘plant’, of several boilers; it refers to only one boiler. That implies that a plant normally has only one(5) boiler.

21.That interpretation corresponds to certain provisions relating to incineration plants laid down in Article 6(1) of the Waste Incineration Directive, since they can be applied only to an individual boiler. The first subparagraph of Article 6(1) requires a level of incineration such that the slag and bottom ashes total organic carbon content is less than 3% or their loss on ignition is less than 5% of the dry weight of the material. An analysis which related to several boilers at the same time would not permit a conclusion regarding the level of incineration to be drawn.

22.In accordance with the third and fourth subparagraphs of Article 6(1) of the Waste Incineration Directive, incineration plants must also have an auxiliary burner. (6) Thus every boiler needs its own auxiliary burner.

23.Thus, in essence, it is necessary to verify whether each individual boiler – with the equipment that goes with it – constitutes an incineration plant or a co-incineration plant.

24.However, the submissions of the Austrian and Swedish Governments raise the question to what extent a number of boilers can be included in one plant. The definition of ‘combustion plants’ in the third subparagraph of Article 2(7) of Directive 2001/80/EC of the European Parliament and of the Council of 23 October 2001 on the limitation of emissions of certain pollutants into the air from large combustion plants states: (7) ‘Where two or more separate new plants are installed in such a way that, taking technical and economic factors into account, their waste gases could, in the judgement of the competent authorities, be discharged through a common stack, the combination formed by such plants shall be regarded as a single unit’.

25.As the Commission correctly points out, however, that rule concerns a different directive with different objectives. Its application to incineration plants and co-incineration plants is therefore only conceivable after careful consideration.

26.It would, therefore, in essence, be possible to treat a number of co-incineration plants as a single unit for the application of emission values, since, by virtue of Annex II.2 to the Waste Incineration Directive, those values become stricter with increases in size of the plants. However, this is not a question which the Court is currently being asked to decide.

27.In any event, environmental protection provisions may not be circumvented by combining parts of plants. That would be contrary to the objective laid down in Article 1 of the Waste Incineration Directive that negative effects on the environment and risks to human health should be avoided. Thus, for example, an incineration plant comprising different boilers must have an auxiliary burner for each of those boilers.

28.The protection provisions would be unlawfully circumvented in particular if incineration plants and co-incineration plants were to be combined in such a way that the resulting plant as a whole were subject only to the in part less strict (8) requirements applying to a co-incineration plant. Accordingly, all parties are in agreement that incineration plants and co-incineration plants should not be aggregated.

29.Thus the application of the Waste Incineration Directive to a co-generation plant with a number of units (boilers) is to be undertaken on the basis that each unit, that is to say each boiler with its ancillary equipment, is a plant. However, it is possible to treat a number of mutually linked plants as a single plant for the purposes of application of certain provisions of the Waste Incineration Directive if doing so does not circumvent the provisions on avoidance of negative effects on the environment and risks to human health.

B–The second question – classification of a plant

30.By its second question, the Högsta domstolen asks whether a plant constructed for waste incineration but having as its main purpose the production of energy is to be classified as an incineration plant or as a co-incineration plant under the Waste Incineration Directive.

31.Differentiation of the two types of plant is of central importance to the Waste Incineration Directive, since it lays down different requirements for each type of plant. The possibility that a plant is both an incineration plant and a co-incineration plant is therefore excluded.

32.The German and probably also the Swedish versions of the definition of ‘incineration plant’ under Article 3(4) of the Waste Incineration Directive are formulated relatively widely: a plant is an incineration plant if the plant is dedicated (‘eingesetzt’ in German (9) or ‘avsedd’ (10) in Swedish) to the thermal treatment of wastes. At first sight, a plant constructed for the incineration of waste would be an incineration plant according to those definitions. The Swedish Government accordingly proposes that incineration plants and co-incineration plants be delimited on the basis of that definition. Co-incineration plants within the meaning of the directive would be, according to its understanding, plants which are not incineration plants.

33.However, that is contradictory, since such a definition of incineration plants would not differentiate between the plants, but would inevitably include co-incineration plants. (11) Co-incineration plants are admittedly defined, in accordance with Article 3(5) of the Waste Incineration Directive, by reference to their main purpose, that is to say the generation of energy or production of material products. However, they must also be used or intended for the thermal treatment of waste and therefore for incineration. Otherwise they would not be co-incineration plants, but other combustion plants.

34.The necessary differentiation between the two types of plant is instead to be found – as the Commission submits – in the second subparagraph of Article 3(5) of the Waste Incineration Directive. According to that provision, a plant is to be regarded as an incineration plant if co-incineration takes place in such a way that the main purpose of the plant is not the generation of energy or production of material products but rather the thermal treatment of waste.

35.Thus the two types of plant are to be distinguished according to their main purpose: if that is the thermal treatment of waste, the plant is an incineration plant, but if the main purpose is the generation of energy or production of material products, the plant is a co-incineration plant.

36.The reference to the main purpose is, moreover, more obvious in the French language version of the definition of incineration plant under Article 3(4) of the Waste Incineration Directive than in the German or Swedish language versions: according thereto the plant must be expressly intended for the thermal treatment of waste (‘destiné spécifiquement’).

37.Since different language versions of a Community text must be given a uniform interpretation, and the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part, (12) Article 3(4) of the Waste Incineration Directive must be interpreted in accordance with the French language version in such a way that there is no contradiction with the second subparagraph of Article 3(5).

38.As the Austrian Government submits, an interpretation based on the main purpose also reflects the case-law relating to the distinction between waste disposal and waste recycling. According to that case-law, the principal characteristic of a recycling measure is, by virtue of Article 3(1)(b) of the Waste Framework Directive (13) and under the fourth recital in the preamble thereto, that its principal objective is that the waste serve a useful purpose by replacing other materials which would have had to be used for that purpose, thereby conserving natural resources. (14) The combustion of waste therefore constitutes a recovery operation where its main purpose is to enable the waste to be used as a means of generating energy, replacing the use of a source of primary energy which would have had to have been used to fulfil that function. (15)

39.Without this leading to a different result, the Swedish Government rightly objects that that solution limits – as the Commission also contends – the application of stricter environmental rules for incineration plants. The differences essentially arise by virtue of the rules limited to incineration plants of Article 6(1) of the Waste Incineration Directive. They establish the residue in total organic carbon content and the loss on ignition in slag and bottom ashes and require an additional incinerator. (16) With respect, at least, to the additional incinerator, exceptions are possible under Article 6(4), provided that the values laid down under the directive are none the less observed.

40.These differences were specifically provided for by the Community legislature. In addition, it seems to have proceeded from the view that the requirements for co-incineration plants laid down in the Waste Incineration Directive would, on their own, clearly strengthen environmental protection. In that regard, it is apparent from the explanatory memorandum to the Waste Incineration Directive that, in the Commission’s view, co-incineration plants were not covered by the existing directives. (17)

41.By the Waste Incineration Directive, the legislature, at the very least, harmonised the requirements for co-incineration plants with those for incineration plants. Its aim was that the same requirements should apply to the part of the fuel consisting of waste as to the incineration of waste as such. However, limitative values were also laid down for the remainder of the fuel, which appear, in part, to be stricter than the requirements under Directive 2001/80. If untreated mixed municipal waste or more than 40% hazardous waste is incinerated, the limitative values applicable to incineration plants set out in Article 7(4) and the second subparagraph of Article 7(2) of the Waste Incineration Directive apply.

42.Furthermore, it should be noted that the requirements of the Waste Incineration Directive are not exhaustive, since in accordance with recital 13 in the preamble thereto more stringent requirements may be laid down on the basis of Directive 96/61. In addition, especially where the latter directive is not applicable, Member States may lay down more stringent rules under Article 176 EC. (18)

43.Whether, in fact, almost all plants in which waste is incinerated are to be classified as co-incineration plants, as the Swedish Government fears, requires a practical examination. In that regard, the question is above all one of how the main purpose of a plant is identified. That must be established on the basis of objective criteria, (19) particularly since the operator’s subjective intentions cannot be examined.

44.As the Swedish Government submits, classification as a co-incineration plant cannot be based only on whether or not existing energy is used in the incineration of waste. Rather, it is laid down twice in the Waste Incineration Directive, that is to say, in Article 4(2)(b) and Article 6(6), that incineration plants must also recover the waste heat, so far as that is feasible or practicable.

45.If a plant is designed technically to incinerate only waste, that is at least an indication that the production of energy is not the main purpose of the incineration. That is even more the case if the operators of the plants expect to cease energy production from time to time if suitable waste is not available. That is not the case if the plant is largely or, at times, completely operated using other fuels. (20)

46.A scientific approach to waste incineration is also clearly important. If the waste has to be purchased and is substituted for expensive alternative fuels, that tends to support the theory that the main purpose is the production of energy. An essential aspect of the production of district heating is also the investment costs of the construction of the infrastructure for the distribution of heat compared with the costs of the construction of the boiler.

47.If, however, fees are levied for the incineration which exceed the proceeds arising out of the production of energy, it is rather to be assumed that the incineration of waste is the main purpose. That is even more the case if the plant is part of an infrastructure for waste disposal.

48.As the Commission also points out, contrary to the fears of the Swedish Government, it is, as regards the points of view set out above, of secondary importance whether the plant is operated by an undertaking whose main purpose is the management of waste or even the production of energy. Since any analysis must relate to each individual plant, in principle even to the specific boiler and the additional equipment that is associated with it, the main purpose of the undertaking as a whole cannot be decisive.

49.However, the Commission also rightly submitted in response to a question posed at the hearing that the main purpose of a plant is not permanently fixed, but the essential aspects can change. Thus it cannot be excluded that a new owner may change the operation of a plant in such a way that its main purpose must be reassessed.

50.In summary, it can thus be stated that the classification of a plant in which waste is incinerated depends on whether its main purpose is the thermal treatment of waste or the generation of energy or production of material products. The main purpose must be determined on the basis of objective criteria.

V–Conclusion

51.I propose that the Court should answer the reference for a preliminary ruling as follows:

(1)For the purposes of the application of Directive 2000/76/EC of the European Parliament and of the Council of 4 December 2000 on the incineration of waste to a plant for the production of heat and electricity with a number of units (boilers), each individual unit, that is to say each boiler with the equipment that is associated with it, is in principle to be treated as a plant. However, it is possible to treat a number of mutually linked plants as one plant for the application of certain provisions of that directive if requirements for the avoidance of environmental harm and danger to health are not thereby circumvented.

(2)Classification of a plant in which waste is incinerated as an incineration plant pursuant to Article 3(4) of Directive 2000/76/EC or as a co-incineration plant pursuant to Article 3(5) of that directive depends on whether its main purpose is the thermal treatment of waste or the generation of energy or production of material products. The main purpose must be determined on the basis of objective criteria.

1 – Original language: German.

2– OJ 2000 L 332, p.91.

3– See the definition in Article 3 of Directive 2004/8/EC of the European Parliament and of the Council of 11 February 2004 on the promotion of co-generation based on a useful heat demand in the internal energy market and amending Directive 92/42/EEC (OJ 2004 L 52, p.50).

4– OJ 1996 L 257, p.26.

5– The manner in which plants without their own incineration boilers are to be treated is the subject-matter of Case C‑317/07 Lahti Energia, shortly to come before the Court (see notice in OJ 2007 C 211, p. 26).

6 – See, with regard to auxiliary burners as the best available technique for waste incineration plants, the Reference Document on the Best Available Techniques for Waste Incineration, August 2006, p. 269 et seq. (http://ec.europa.eu/comm/environment/ippc/brefs/wi_bref_0806.pdf). The Commission prepared that document in collaboration with experts from the Member States on the basis of Directive 96/61.

7– OJ 2001 L 309, p.1.

8– See the detailed arguments set out in point 39 below.

9– The German language version is in that regard apparently based, unlike other language versions, on the text of Article 2(2) of Council Directive 94/67/EC of 16 December 1994 on the incineration of hazardous waste (OJ 1994 L 365, p. 34).

10– ‘Förbränningsanläggning: varje stationär eller mobil teknisk enhet eller utrustning avsedd för värmebehandling av avfall med eller utan återvinning av alstrad värme.’

11– See the Opinion of Advocate General Jacobs in Case C‑228/00 Commission v Germany [2003] ECR I‑1439, point 80, who took the view that the earlier directives on waste incineration, which contained a definition similar to that of the German language version of the Waste Incineration Directive, were also applicable to the recycling of waste. That case concerned Council Directive 89/369/EEC of 8 June 1989 on the prevention of air pollution from new municipal waste incineration plants (OJ 1989 L 163, p. 32), Council Directive 89/429/EEC of 21 June 1989 on the reduction of air pollution from existing municipal waste incineration plants (OJ 1989 L 203, p. 50) and Directive 94/67 (cited in footnote 9).

12– Case 29/69 Stauder [1969] ECR 419, paragraph 3; Case C‑72/95 Kraaijeveld and Others [1996] ECR I‑5403, paragraph 28; Case C‑300/05 ZVK [2006] ECR I‑11169, paragraph 16; and Case C‑56/06 Euro Tex [2007] ECR I‑4859, paragraph 27.

13– That case-law is based on Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39), as amended by Council Directive 91/156/EEC of 18 March 1991 (OJ 1991 L 78, p. 32), and Commission Decision 96/350/EC of 24 May 1996 (OJ 1996 L 135, p. 32). That directive was repealed by Directive 2006/12/EC of the European Parliament and of the Council of 5 April 2006 on waste (OJ 2006 L114, p. 9) and replaced without changes to its content by a consolidated version.

14– Case C‑6/00 ASA [2002] ECR I‑1961, paragraph 69; Case C‑444/00 Mayer Parry Recycling [2003] ECR I‑6163, paragraph 63; and Case C‑103/02 Commission v Italy [2004] ECR I‑9127, paragraph 62.

15– Case C‑228/00 Commission v Germany [2003] ECR I‑1439, paragraph 46; Case C‑458/00 Commission v Luxembourg [2003] ECR I‑1553, paragraph 37; and Case C‑116/01 SITA [2003] ECR I‑2969, paragraph 53.

16– See points 4 and 21 et seq. above.

17– COM(1998) 558 final, pp. 7 and 13. See, however, the contrary view in the Opinion of Advocate General Jacobs in Case C‑228/00 Commission v Germany (cited in footnote 11), which, at least in cases of waste recycling, assumed that those directives applied. The Court has not ruled on that question.

18– See Case C‑6/03 Deponiezweckverband Eiterköpfe [2005] ECR I‑2753.

19– See, with regard to determination of abusive objectives, Case C‑255/02 Halifax and Others [2006] ECR I‑1609, paragraph 75, and Case C‑251/06 Ing. Auer [2007] ECR I‑9689, paragraph 46; with regard to the determination of an intra-Community supply as regards the law on value added tax, Case C‑409/04 Teleos and Others [2007] ECR I‑7797, paragraph 39 et seq; with regard to the choice of legal basis of a Community measure, Case 45/86 Commission v Council [1987] ECR 1493, paragraph 11, Case C‑300/89 Commission v Council [1991] ECR I‑2867 (Titanium dioxide), paragraph 10, and Case C‑440/05 Commission v Council [2007] ECR I‑9097, paragraph 61; and, as regards the purpose of data processing, my Opinion of 8 May 2008 in Case C‑73/07 Satakunnan Markkinapörssi and Satamedia (not yet published in the ECR), point 85.

20– The comments on co-incineration in the Reference Document on Best Available Techniques for Large Combustion Plants, July 2006, p. 489 et seq. (http://ec.europa.eu/comm/environment/ippc/brefs/lcp_bref_0706.pdf), are based on the assumption that waste forms only a small part of the fuel used. The Commission prepared that document in collaboration with experts from the Member States on the basis of Directive 96/61.