By-product is a substance or object, resulting from a production process, the primary aim of which is not the production of that item. By-products can come from a wide range of business sectors, and can have very different environmental impacts. An incorrect classification could be the cause of environmental damage or unnecessary costs for business.
As part of its Thematic Strategy on the prevention and recycling of waste of 21 December 2005, the Commission committed itself to tackle one of the issues around the waste definition, namely the distinction between waste and by-products. At that time, instead of proposing to define by-products in the legal text, the Commission came forward with clear guidance on the issue of waste and by-products: a Communication on waste and by-product.
The Communication is based on extensive jurisprudence of the Court of Justice of the EU concerning waste and by-products and, building on these foundations, provides non-binding Commission interpretation of these concepts. The Communication explains the business and environmental context around by-products. It then examines part by part the tests set out by the Court of Justice of the EU on this subject, and explains how the tests can be applied in practice. It gives a number of examples of some materials that can be classified as waste or by-products, explaining how they fit into the legal tests.
The Communication interprets the law as set down in Directive 2006/12/EC on waste and as interpreted by the Court of Justice of the EU. As of 22 December 2010, Directive 2006/12/EC on waste has been repealed and replaced by Directive 2008/98/EC on waste. The latter includes in Article 5 a definition of by-products and the main conditions which must be met by a substance or object to be classified as a by-product. Provisions of Article 5 were based on the case law of the Court of Justice of the EU, as was the Communication. Therefore, the case law and the Communication remain applicable inasmuch as they are not contrary to Directive 2008/98/EC.