Key definitions (“waste”, “by-product” etc)
By-product
Limits on the scope of the legal category of waste relate to by-products and products obtained from recovered waste.
A by-product is a substance or an object which would otherwise be considered waste but meets specific criteria – and is not waste from legal perspective. The classification of ‘by-product’ and the status of ‘waste’ are mutually exclusive.
A by-product is obtained from a production process, the primary aim of which is not the production of that item; its further use must be certain; it must be suitable for being used “directly without any further processing other than normal industrial practices”, after having been produced “as an integral part of a production process”; and its further reuse must be lawful in that such a substance or object fulfils all relevant products, environmental and health protection requirements for the specific use and will not lead to overall adverse environmental or human health impacts” [Article 5 (1) of the Waste Framework Directive].
If the materials were not supplied immediately, it is appropriate to allow temporary storage for a reasonable period, until the works for which they are intended are carried out. That period of storage must, however, not exceed what is required in order for the undertaking concerned to be able to meet its contractual obligations (see Case C-113/12 Brady, § 45).
Case-law provides examples of by-products: leftover rocks from the operation of a mine to be used without further processing in the necessary filling-in of the underground galleries (Case C-114/01 AvestaPolarit Chrome; Case C-457/02 Niselli), slurry produced in a piggery used as fertiliser (Case C-113/12 Brady, §52-57), heavy fuel sold as combustible fuel (Case C-188/07 Commune de Mesquer), excavated soil and materials (Case C- 238/21 Porr Bau).
Recently, in Joined Cases C-21/19 and C-23/19 P.F. Kamstra Recycling and Others, the CJEU held that material which cannot be classified as a "by-product" may nevertheless be considered an "animal by-product" under the specific Animal by-products Regulation (No 1774/2002, replaced by No 1069/2009). There is no overlap or reference between these concepts.