UCO: Free choice of a legal regime? No.

26/05/2020

Used cooking oil (UCO), input for biodiesel production installations, is defined in the European regulations EU/1069/2009 and EU/142/2001 on animal byproducts (abp). UCO is abp, even if vegetable, since the products fried in the oil are (or can be) from animal origin, and therefore abp.

UCO is also defined as waste (Waste Framework Directive WFD EU/98/2008).  Conclusion is that UCO is abp and waste.

However, not both waste rules and abp rules are always applicable on the same time on activities with UCO. For an analysis of that, complex adjustment provisions in the both regimes are applicable. I studied that thoroughly, for more information please contact me.

The applicability of the regimes is depending on the destination of the UCO. For destination ‘biogas’, both regimes are applicable. For destination ‘biodiesel’, the WFD is not applicable, in the case the biodiesel process of the abp Regulation is applicable (alternative methods). For practitioners that means, trade document, permit NVWA (Dutch Food and Consumer Safety Authority), veterinarian check at entrance EU. But no Annex VII, VHIB, Eural code etc.

By the way, the Waste Shipment Regulation (EVOA) is not applicable on abp, unless contaminated with hazardous waste substances.

In practice there is much misunderstanding about the applicability of the regulations, both among the industry and among enforcers.

To make the confusion complete, our Dutch authorities have spread the policy that ‘a choice’ can be made by every individual company, between waste regulation and abp regulation, at the import of UCO in the EU, which choice should be permanent. That means, once ‘waste’, all further actions should be also performed under waste regulations. Questions about the legal basis for such ‘choice’ have never been answered. The standpoint appears to be based upon the website of the NVWA, where the sentence could be read on ‘veterinair online’:
‘For the import of used vegetable oil (UCO), the industry itself can choose whether to import the UCO as abp or as waste’

Clients tell me recently the policy seems to have changed. Also (January 2020?), the text of this part of ‘veterinair online’ has changed into:
‘For the import of UCO the industry itself can choose to import the UCO as waste or as abp. UCO can be imported as waste, so not with destination biodiesel, on code Y930.’

Let us assume that progressive insight has reached the NVWA, and they found out that the ‘free choice’ was never based upon the abp Regulations, although it was common policy and practice in the Netherlands for years. By the way, this practical approach probably could have been in favour of my clients.

Nevertheless, if policy is changed, this should prescribe a clear message to all relevant parties and bodies in this industry, instead of a quiet change of the website part. Further more, the industry should be granted a period to change their activities and permits to the new policy, which could have large consequences, not only for import, but also for the trade of products that are being produced at the biodieselproduction facility.