Interim results on legal implications in cross border trade for sewage sludge pellets and licensing of sewage sludge pellets for international trade

ENERCOM partner Kuhbier law firm (KLF) analysed and showed that the applicable legislation for trading and shipment of the ENERCOM-pellets depends on the classification as waste or a product.

In current analysis ENERCOM-pellets are not classified as dangerous goods and therefore no specific provisions will yet apply to the cross border shipment of products within the EU according to the CLP regulation. In any case, the classification as waste or as product would not complicate the application of free trade principles in line with the TFEU. In the Wallonia Waste Case C-2/90, the Court confirmed the application of the rules on free movement of goods even to waste by explicitly stating that cross border transport of waste does fall under Article 28 TEC now Article 34 TFEU. However, this does not mean that no other rules need to be obeyed when shipping the pellets across the border to another member state.

These rules might differ, depending on whether the Luxemburgish and German authorities treat the pellets as waste or as product. If the Luxemburg authorities would qualify the pellets as waste, they can in principle be traded as goods within the EU. To the knowledge of the authors there is no Community or national legislation which would establish an absolute trade ban for waste within the EU. On the one hand, the Luxemburg authorities in future could have the opinion, that the pellets have reached the end of waste status, but on the other hand the German authorities which are focused on import would not compulsory agree and maybe rather would have the opinion that the end of waste status has not yet been reached due to incomplete recovery. If so, ENERCOM-pellets would fall under Regulation EC Nr. 1013/2006 with its respective applicable provisions.