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Institutional Factors as Limitation for Biomass Circulation in the Internal Market

Valentina Colcelli

The paper aims to analyze the compatibility between goods free circulation rights and Biomass circulation crossing the EU internal market and the Member States legal systems. Biomass plants need to comply with the Local Authority policies and rules on renewable energy and transport, as well as with any policy adopted for the particular location, which are different in each Member State and also at the regional level. The Biomass as waste shall cease to be waste within the meaning of point (1) of Article 3 when it has undergone a recovery, any operation the principal result of which is waste serving a useful purpose by replacing other materials which would otherwise have been used to fulfil a particular function, or waste being prepared to fulfil that function, in the plant or in the wider economy. Therefore, the scope of the term 'waste' turns on the meaning of the term 'discard'. The directive does not provide any decisive criteria for determining the intention of the holder to discard a given substance. The Court of Justice has been asked on a number of occasions for preliminary rulings on whether various substances are to be regarded as waste. Nevertheless, it has provided a number of indicators from which it may be possible to infer the holder's intent. Thus, according to EU legal framework and leading case of Court of Justice, the concept of waste cannot be interpreted restrictively. The question whether or not a given substance is waste must be determined in the light of all the circumstances, regard being had to the aim of Directive and the need to ensure that its effectiveness is not undermined.

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