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The aim of these documents is to provide guidance in implementing the IPPC Directive 96/61/EC by suggesting an approach to some questions on how certain provisions of the Directive should be understood. The guidance does not represent an official position of the Commission and cannot be invoked as such in the context of legal proceedings. Final judgements concerning the interpretation of the Directive can only be made by the European Court of Justice.
The guidance was first placed on this website in April 2007 and covers the following issues:
Interpretation of "Installation" and "Operator" for the purposes of the IPPC Directive
Interpretation and determination of capacity under the IPPC Directive
Is the ferro-alloy industry covered by Annex I section 2.5(b)?
How should the term "treatment vat" in Annex I section 2.6 be understood?
Are enzymes covered by Annex I section 4 or 6.4?
Does Annex I section 4.2 include gaseous oxygen?
In Annex I section 6.1, what is the meaning of the term “industrial”?
What is meant by “board” in Annex I activity 6.1(b)?
In Annex I section 6.3, what is meant by “finished product”?
What is the relation between the IPPC Directive and the Directives listed in Annex II?
What is the meaning of the specific references to Council Directive 88/609/EEC in Article 4, Article 20(1) and the footnote to Annex I section 1.1?
Council Directive 88/609/EEC has now been repealed and replaced by Directive 2001/80/EC. The reference to Directive 88/609/EEC should therefore be understood as a reference to Directive 2001/80/EC.
Directive 2001/80/EC lays down specific requirements relating to certain categories of large combustion plants, including limit values for the emission of sulphur dioxide, nitrogen oxides and dust. Certain derogations from the limit values for sulphur dioxide emissions are allowed in the case of plants operating for limited hours or burning indigenous fuel.
In accordance with the principles outlined in the guidance on the relationship between the IPPC Directive and other Directives, the emission limit values remain in force, together with the associated derogations, as minimum requirements. They do not, however, provide any derogation from the obligations set out in IPPC.
Should the introductory paragraph 1 of Annex I be understood to be restricted to installations or parts of installations solely used for research, development or testing?
It seems highly unlikely that the intention could have been to exclude from the scope of the Directive installations or parts of installations normally used for industrial production simply because they are occasionally used for research, development or testing.
Is the ferro-alloy industry covered by Annex I section 2.5(b)?
The production of ferro-alloys involves alloyage of non-ferrous metals and is therefore covered by Annex I section 2.5(b).
How should the term “treatment vat” in Annex I section 2.6 be understood?
The thresholds for installations for surface treatment of metals and plastics in Annex I section 2.6 are expressed in terms of the volume of the treatment vats. In addition to the main process step, vats are typically used for processes such as soak clean, pickling, degreasing, acid dip, passivation and rinsing. With the exception of rinsing, all of these process steps involve an alteration of the surface as a result of an electrolytic or chemical process, and therefore fall under the definition of “treatment”. Conversely, non-electrolytic, non-chemical surface treatments such as ultrasound, grit blasting, water blasting and annealing are not considered to fall under this definition. For the purposes of determining which installations are covered in this section, the volume of the treatment vats is to be calculated as the total volume of vats used for those process steps involving alteration of the surface as a result of an electrolytic or chemical process.
It should nevertheless be noted that, for those installations covered by the Directive, all steps including rinsing should be regarded as an “associated activity” within the meaning of Article 2(3), in accordance with the guidance on the meaning of "installation".
In Annex I section 4, what is the meaning of "production on an industrial scale by chemical processing" and of the use of the term "basic" in particular in the expressions "basic organic chemicals" and "basic inorganic chemicals"?
“Production on an industrial scale”:
Annex I Section 4 ("chemical industry") contains no quantitative capacity thresholds but only a reference to "production on an industrial scale". The scale of chemical manufacture can vary from a few grams of a highly specialised product to many tonnes of a bulk chemical product, yet both scales may correspond to “industrial scale” for that particular activity. If the activity is carried out for "commercial purposes", it should be considered as production on an industrial scale, even if the material is an intermediate product and therefore not itself traded. By contrast, other activities producing chemicals exclusively for their own consumption - for example domestic, academic or laboratory activities - would not be covered.
Furthermore, "commercial purposes" may be taken generally to imply that the activity is being undertaken principally as a professional business activity. The existence of a form of trading account associated with the activity, or other such indicators, may illustrate the conduct of a business. If such indicators are absent, for example as may be the case in the small-scale production of "artisanal soap", it may be concluded that the activity is not being undertaken for "commercial purposes" and hence is not on an industrial scale.
“Production on an industrial scale by chemical processing”:
The Chapeau of section 4 makes reference to production on an industrial scale by "chemical processing". "Chemical processing" implies that transformation by one or several chemical reactions takes place during the production process. An activity involving only physical processing (for instance simple blending or mixing of substances which do not chemically react, dewatering, dilution, repackaging of acids/bases) would not be covered.
For activities involving essentially physical processing but to a certain degree some chemical reactions (for instance, the mixing of two or more chemical substances to produce a third one which is then immediately sprayed or painted onto a surface, or the situation where a two-component adhesive reacts to provide the actual adhesive material), competent authorities would have to exert their judgment on the basis that only "chemical installations" are covered by section 4 (section 4.5 uses another wording). Such types of activities carried out in places which would not commonly be considered as a chemical installation (for instance for building or repair activities) may be considered not covered by this part of Annex I.
Use of the term "basic":
Section 4 refers at several occasions to the term "basic" in the description of the substances of groups of substances listed in this section.
The term "basic" should be interpreted in a wide sense. It cannot only mean those chemicals requiring further processing, as some of the chemicals listed explicitly in section 4 of Annex I could themselves be final (but still basic) chemical products (for instance synthetic rubbers, dyes and pigments, polymers synthetic fibers) which can undergo further processing but not in the meaning of chemical production.
The term "basic chemicals" would not cover final products which can not be considered as chemical products. For instance, the production of tyres from rubber with other ingredients (such as carbon black, sulphur, textile) involves some form of chemical processing (in particular vulcanization) without producing a "basic chemical product".
As a general remark and in view of the very large number of possible situations (as regards chemical processing, chemical substances or groups of substances produced, types and places of activities), it remains for the competent authorities to make an informed and justified judgment on whether or not a particular installation falls under the scope of the IPPC Directive, using this guidance as a tool to promote consistency and prevent possible abuse in the interpretation of the scope of the Directive as regards section 4 of Annex I.
Are enzymes covered by Annex I section 4 or 6.4?Many plant health products and pharmaceutical products are enzymes, and these are covered by sections 4.4 and 4.5 respectively. Beyond this, there does not appear to be any sound argument for their general inclusion. In particular, the link between enzyme production and food production (section 6.4) is tenuous, since even though enzymes may be used in such activities they are not themselves food products.
Does Annex I section 4.2 include gaseous oxygen?Even though oxygen (O2) is not explicitly included in the list of gases in 4.2(a), it is clearly a “basic inorganic chemical”. However, this list given is indicative only since it begins with the words “gases, such as…”. The production of oxygen using a chemical process is therefore covered. However, oxygen is usually produced by physically (cryogenically) separating it from air. Since section 4 refers to “production...by chemical processing”, such physical separation from a mixture of gases seems not to be an Annex I activity.
Can an installation which produces explosives for the production of military weapons in installations operated by the armed forces be excluded from the IPPC Directive because of Art. 296 of the Treaty establishing the European Community?
Category n° 4.6 of Annex I of the IPPC Directive covers “Chemical installations for the production of explosives”
The IPPC Directive has no provision which excludes military installations from its scope. In contrast Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances excludes those installations[1]. A predecessor of the IPPC Directive, Council Directive 84/360 of 28 June 1984 on the combating of air pollution from industrial plants, also has a provision for the exclusion of industrial plants serving national defence purposes in its Art. 15[2].
Subject to the exemptions allowed under the Directive 2003/35/EC of the European Parliament and of the Council on Public Access to Environmental Information, a consequence of applicability of the IPPC Directive for military installations is that Member States are obliged to give the public access to the permit application if a new installation were to be built or an existing installation were to be substantially changed, amongst the other requirements of the Directive.
However, the Treaty establishing the European Community in Art. 296 includes a general exemption from the Treaty and therefore the whole Community legislation based on it.[3]
“Article 296
1. The provisions of this Treaty shall not preclude the application of the following rules:
(a) no Member State shall be obliged to supply information the disclosure of which it considers contrary to the essential interests of its security;
(b) any Member State may take such measures as it considers necessary for the protection of the essential interests of its security which are connected with the production of or trade in arms, munitions and war material; such measures shall not adversely affect the conditions of competition in the common market regarding products which are not intended for specifically military purposes.
2. The Council may, acting unanimously on a proposal from the Commission, make changes to the list, which it drew up on 15 April 1958, of the products to which the provisions of paragraph 1(b) apply.”
In conclusion, since there are already examples in other Community legislation based on Art. 174 of the Treaty, which explicitly excludes these installations, and the IPPC Directive includes no similar provision, installations for the production of explosives operated by the military are not excluded from the IPPC Directive in general.
There is a clear Community interest that these installations are operated in such a way that a high level of protection of the environment is safeguarded.
Nevertheless, since it could imply requirements which would be in conflict with essential security interests, such as public participation during the permit procedure, an exclusion from these provisions by a Member State would be justified according to Art. 296 (1a).
A general exemption from the complete IPPC Directive would not be appropriate. This is underpinned by the lack of an exclusion provision from the scope of the Directive whereas other Community environmental legislation includes similar provisions explicitly.
All requirements that are deemed non-sensitive from the point of view of national security can be fulfilled. Moreover, confidentiality aspects are not confined to military installations. The competent authorities also need to handle business secrets. Each Member State must manage confidentiality aspects in accordance with the principle of subsidiarity and Directive 2003/04/EC on Public Access to Environmental Information.
Does Annex I section 5.1 include installations mainly used for a purpose other than the treatment of waste but which treat external hazardous waste with a capacity exceeding 10 tonnes per day?
This question concerns co-incineration of waste in combustion installations or production installations such as cement kilns. It should first be noted that the question is only relevant in cases where the installation is not already covered by virtue of another part of Annex I.
Such installations are covered by section 5.1 provided that at least one of the recovery operations R1, R5, R6, R8, R9 defined in Annex II B of Directive 75/442/EEC (now replaced by Directive 2006/12/EC) is carried out. This includes, for example, combustion plants burning hazardous waste and cement kilns that consume more than 10 tonnes per day of hazardous waste as a means to generate energy or for any of the other recovery operations mentioned.
Some landfills covered by Council Directive 1999/31/EC on the landfill of waste also fall within the scope of Council Directive 96/61/EC concerning integrated pollution prevention and control (categories 5.1 and 5.4 in annex I). What are the IPPC provisions competent authorities have to take into account for these landfills, in addition to the requirements of the Landfill Directive?
The IPPC Directive covers a number of waste management operations that are listed in its annex I point 5. These include:
Different capacity thresholds apply to all these waste management operations.
Annex I point 5 of the IPPC Directive therefore limits the waste management techniques covered by the IPPC Directive to incineration, landfill and specified waste disposal and recovery operations designated by their R or D codes as defined in Directive 75/442/EC on waste (now replaced by Directive 2006/12/EC - hereafter called the Waste Framework Directive). Thus, the question is whether dismantling of end of life products is included in the D and R operations covered by the IPPC Directive. These are D1 to D15, R1, R5, R6, R8 and R9 for hazardous waste and D8, D9 for non-hazardous waste.
Paragraph 61 of the Judgement of the ECJ of 27 February 2002 on case C-6/00 states that some of the methods of disposal or recovery of waste may not be expressly mentioned amongst the operations listed in Annexes IIA and IIB of the Directive [the Waste Framework Directive], notably because they did not come into use until after the most recent adaptation of those annexes to reflect scientific and technical progress, and, second that certain operations are capable of falling within the wording of operations mentioned in annex IIA and in Annex IIB to the Directive. Thus, the lists of D and R operations are to be interpreted as non-exhaustive.
Dismantling of end of life products is a treatment operation that aims primarily at:
It cannot be considered that the IPPC directive covers such operations because:
However, it cannot be excluded that some disposal or recovery operations covered by the IPPC Directive take place in the same installation where the dismantling occurs. Some components or materials may be subject, after separation, to such operations. In this case an IPPC permit would be needed for the installations, if the capacity thresholds in Annex I point 5 of the IPPC Directive are met.
In conclusion, the IPPC Directive does not in principle cover dismantling of end of life products. However, attention has to be given to disposal and recovery operations potentially covered by the IPPC Directive that take place in the same installation.
This conclusion is without prejudice to the permitting requirements laid down by Directive 2006/12/EC on waste and Directive 2000/53/EC on end of life vehicles.
This conclusion is also without prejudice of the possibility for Member States to apply IPPC permits also to sectors not covered by the IPPC Directive.
In Annex I section 6.1, what is the meaning of the term “industrial”?
The relevance of this question concerns 6.1(a) (pulp production) for which there is no quantitative threshold. The response to the separate question concerning the chemical industry (Annex I section 4) also applies here.
What is meant by “board” in Annex I activity 6.1(b)?
Activity 6.1(b) refers to plants for the production of “paper and board”. In the English language, the term “board” could be interpreted as meaning cardboard or more broadly as including timber board made from compressed or laminated wood. However, other language versions of the Directive refer explicitly to cardboard. There is also a technical logic in grouping paper and cardboard. It is therefore considered that “board” means cardboard in this context.
Is a paper or board production installation which uses fibres (wooden or textile fibres) and washes these fibres before the actual production of paper, and which does not exceed the threshold of category n° 6.1 but exceeds the threshold of category n° 6.2, covered by the Directive?
Category n° 6.1 of Annex I of Council Directive 96/61/EC (IPPC) lists “Industrial plants for the production of:
(a) pulp from timber or other fibrous materials
(b) paper and board with a production capacity exceeding 20 tonnes
per day.”
Category n° 6.2 of Annex I of the IPPC Directive lists “Plants for the pre-treatment (operations such as washing, bleaching, mercerisation) or dyeing of fibres or textiles where the treatment capacity exceeds 10 tonnes per day” as being covered.
All paper and board production installations use fibres, and will wash, bleach or otherwise pre-treat these fibres before the actual production of paper or board. Thus, if this pre-treatment were considered to fall under activity 6.2, the effect would be to make installations pre-treating fibres prior to use in paper or board production subject to the Directive in the case of the fibre treatment capacity exceeding 10 tonnes per day. It seems unlikely that this was the intention, however, since it would effectively make the production capacity threshold of 6.1 (b) of 20 tonnes a day – which was specifically set for paper and board production – redundant. Moreover, there is a technical logic in the Directive’s grouping of paper and pulp activities together (6.1 (a) and (b)), and separately covering textiles (6.2), such that it would be anomalous if 6.2 also covered paper fibres, but with a different threshold.
In Annex I section 6.3, what is meant by “finished product”?
Tannery products frequently leave the installation in wet form, and consequently weigh considerably more than the final product. The inclusion of the qualifier “finished” in the term “finished products” implies some activity of finishing or treatment beyond what is actually carried out on-site. A “finished product” is thus a leather fit for making up into consumer goods, but not necessarily coated or coloured.
In Annex I section 6.4 (b) and (c), does the term “raw materials” apply to materials (such as flour) that have already been processed but are used as the raw material for the production of a food product?
The term “raw materials” is normally used to refer to any materials, processed or not, used as input into the overall industrial process.
What is the relation between the IPPC Directive and the Directives listed in Annex II?
The relevant provisions defining the relation between IPPC and the Directives listed in Annex II are Article 18 (2) and Article 20 (1) and (2).
In general, the Directives listed in Annex II contain two types of provisions in relation to specific substances and/or industrial sectors:The procedural provisions setting up authorisation systems will be superseded by the permitting procedure set out in IPPC once this is fully implemented - not later than 30 October 1999 for new installations and 30 October 2007 for existing installations.
In contrast, substantial provisions implying specific technical obligations will remain in force until such time as they are explicitly superseded by future legislation. Operators of industrial installations will thus be required to satisfy these technical obligations as well as the more general obligations set out in IPPC. Note that, according to Article 18(2), these technical requirements constitute minimum obligations. Therefore, stricter or additional permit conditions may need to be imposed in order to implement the IPPC Directive. The same applies to the requirements of other Community legislation, including that superseding the measures listed in Annex II or otherwise adopted after the IPPC Directive, such as the Waste Incineration Directive 2000/76/EC, the Large Combustion Plants Directive 2001/80/EC and the Solvent Emissions Directive 1999/13/EC.
[1] Council Directive
96/82/EC Article 4 : ‘Exclusions’ This Directive shall not apply
to the following:
(a) military establishments, installations or storage facilities;
(b) hazards created by ionizing radiation;
(c) the transport of dangerous substances and intermediate temporary
storage by road, rail, internal waterways, sea or air, outside the
establishments covered by this Directive, including loading and
unloading and transport to and from another means of transport at
docks, wharves or marshalling yards;
(d) the transport of dangerous substances in pipelines, including
pumping stations, outside establishments covered by this Directive;
(e) the activities of the extractive industries concerned with exploration
for, and the exploitation of, minerals in mines and quarries or
by means of boreholes;
(f) waste land-fill sites.
[2] Council Directive 84/360/EEC Article 15: The Directive does not apply to industrial plants serving national defence purposes.
[3] A judgement of
the Court (sixth chamber) from 16 September 1999, Case C-414/97
reads:
“21. It must be observed in that regard, as the Court has already
held in Case 222/84 Johnston [1986] ECR 1651, paragraph 26, that
the only articles in which the Treaty provides for derogations applicable
in situations which may involve public safety are Articles 36, 48,
56, 223 and 224 of the EC Treaty (now, after amendment, Articles
30 EC, 39 EC, 46 EC, 296 EC and 297 EC), which deal with exceptional
and clearly defined cases. Because of their limited character, those
articles do not lend themselves to a wide interpretation.
22. Accordingly, it is for the Member State which seeks to rely
on those exceptions to furnish evidence that the exemptions in question
do not go beyond the limits of such cases.(...)”
Article 223 EC is now Article 296 EC