Lahti Energia (Environment and consumers).

This reference for a preliminary ruling concerns the interpretation of Article 3 of Directive 2000/76/EC of the European Parliament and of the Council of 4 December 2000 on the incineration of waste. The reference was made in the course of proceedings between Lahti Energia Oy ('Lahti EnergiČ), an undertaking owned by the municipality of Lahti, and Itä-Suomen ympäristölupavirasto (East Finland Environmental Permit Authority, 'ympäristölupavirasto') concerning whether a complex comprising a gas plant and a power plant is subject to the requirements of Directive 2000/76. The case concerned the proper classification under Article 3 of Directive 2000/76/EC (Waste Incineration Directive) of a site owned by the applicant, which comprised a plant producing gas from waste (the gas plant) and a power plant that burned the gas that was produced (the power plant). In particular, the Court considered whether the two plants should be treated jointly for the purposes of the Waste Incineration Directive and whether the plant or plants should be considered to be an incineration plant, a co-incineration plant or whether one or both were outside the terms of the directive altogether. The Waste Incineration Directive is intended to provide minimum requirements for plants involved in the incineration of waste. Article 3(1) provides that ‘waste means any solid or liquid waste’ as defined in Directive 75/ 442/EEC on waste. Article 3 goes on to define an ‘incineration plant’ as one that is ‘dedicated to the thermal treatment of waste with or without recovery of the combustion heat generated’. A ‘co-incineration plant’ is one ‘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’. Article 7 provides that different annexes, which set out the relevant emissions limits, apply to incineration and co-incineration plants. However, the 27th recital of the Waste Incineration Directive states that co-incineration plants ‘should not be allowed to cause higher emissions of polluting substances in that part of the exhaust gas volume resulting from the co-incineration of waste’. The following question was referred to the ECJ: Is combustion as an additional fuel in the boiler of a power plant of gas generated in a gas plant to be regarded as an operation within the meaning of Article 3 of Directive 2000/76/EC, if the gas conducted for combustion is not purified after the gasification process? The ECJ held that the lack of purification radically altered the approach to classifying the two plants. The process of thermal treatment of the waste was commenced in the gas plant, but it was no longer completed there. Instead, the generation of energy or the production of a product was only realised when the gas created from waste in the gas plant was transferred to and burnt in the power plant. In these circumstances, the two plants fell to be considered jointly by reason of the technical and functional link between them. This categorisation was further justified by the fact that the harmful substances produced by the thermal treatment commenced in the gas plant were (at least in part) only released after the gas had been transferred to the power plant. The ECJ also rejected the applicant’s argument that the power plant could not be classified as a co-incineration plant unless it used, for the most part, non-purified gas from the gas plant. It noted that it was apparent from the 27th recital that co-incineration plants should not be allowed to cause higher emissions of polluting substances ‘in that part of the exhaust gas volume resulting from such co-incineration’ than those permitted for dedicated incineration plants. The ECJ concluded that the answer to the question posed was that the power plant should be regarded, jointly with the gas plant, as a co-incineration plant. Given this conclusion, the Court did not need to address an additional question on what bearing, if any, the quality of the wastehad on the assessment of the plant.