Waste management in Annex II, word for word
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149 € excl. VAT — all 9 lessons, the assessment and a verifiable certificate.
In this lesson
- Quote Annex II, point 2, exactly, and break it into its elements: who, which activity, which definition, which exclusion.
- Read the definition of waste management as replaced by Directive (EU) 2018/851, and the related definitions, knowing which text each comes from.
- Apply the principal-economic-activity exclusion as it is written, and record what the text leaves open.
- Identify the legal person that is the entity, and spot the activities that may place it in a second annex row.
One row in Annex II, without subsectors
Annex II of Directive (EU) 2022/2555 is headed other critical sectors, and waste management is its point 2. Each annex row has three columns: sector, subsector and type of entity. For waste management the subsector column is empty.
That matters when you register. Article 3(4)(c) asks each entity for “where applicable, the relevant sector and subsector referred to in Annex I or II”. A waste operator declares the sector, waste management, and no subsector. A list of waste subsectors in a template, such as collection, recycling or landfill, describes the market, not a category of the directive.
Waste management is neither in Annex I nor in the annex to Directive (EU) 2022/2557 on the resilience of critical entities (CER), which lists eleven sectors. Both facts shape the class of a waste operator (lesson m1l2).
Point 2, word for word
Sector column: Waste management. Subsector column: empty. Type of entity column:
“Undertakings carrying out waste management as defined in Article 3, point (9), of Directive 2008/98/EC of the European Parliament and of the Council (1), excluding undertakings for whom waste management is not their principal economic activity”
Footnote (1) identifies Directive 2008/98/EC of 19 November 2008 on waste, the Waste Framework Directive, by its original publication. The row has three elements: an undertaking, an activity defined by another act, and an exclusion.
The definition, as it reads today
Article 3, point 9, of the Waste Framework Directive is no longer in its 2008 wording. Article 1(3)(d) of Directive (EU) 2018/851 replaced it, and Member States had to transpose that amendment by 5 July 2020 (article 2(1) of Directive (EU) 2018/851), more than two years before NIS2 was adopted on 14 December 2022. The wording in force, from Directive (EU) 2018/851, defines waste management as:
“the collection, transport, recovery (including sorting), and disposal of waste, including the supervision of such operations and the after-care of disposal sites, and including actions taken as a dealer or broker”
The 2008 wording, from Directive 2008/98/EC, read “the collection, transport, recovery and disposal of waste, including the supervision of such operations and the after-care of disposal sites, and including actions taken as a dealer or broker”. The change is the words in brackets, with the comma after them: sorting is now expressly part of recovery. This course reads the Waste Framework Directive as amended by Directive (EU) 2018/851; check the consolidated version on EUR-Lex for any later amendment.
Seven elements, one reading to record
The definition covers collection, transport, recovery including sorting, and disposal; the supervision of those operations; the after-care of disposal sites; and actions taken as a dealer or broker. The text does not say expressly that one element is enough. But a dealer or broker need not take physical possession of the waste (definitions below), so it may carry out none of the physical operations, and is included all the same. That supports reading each element as sufficient on its own, but the text does not settle it: record it in your scope memo as a reading, not as settled law.
The definitions point 9 depends on
In article 3, Directive (EU) 2018/851 replaced points 4 and 9 and point (c) of point 12, inserted points 2a, 2b, 2c, 4a, 15a and 17a, and added point 21 (its article 1(3)). The definitions below were not touched, so they are quoted from the original Directive 2008/98/EC.
- Waste (point 1): “any substance or object which the holder discards or intends or is required to discard”.
- Dealer (point 7): “any undertaking which acts in the role of principal to purchase and subsequently sell waste, including such dealers who do not take physical possession of the waste”.
- Broker (point 8): “any undertaking arranging the recovery or disposal of waste on behalf of others, including such brokers who do not take physical possession of the waste”.
- Collection (point 10): “the gathering of waste, including the preliminary sorting and preliminary storage of waste for the purposes of transport to a waste treatment facility”.
- Treatment (point 14): “recovery or disposal operations, including preparation prior to recovery or disposal”.
- Recovery (point 15): “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”.
- Disposal (point 19): “any operation which is not recovery even where the operation has as a secondary consequence the reclamation of substances or energy”.
Annexes I and II of the Waste Framework Directive list disposal and recovery operations, non-exhaustively. Incineration on land is disposal operation D 10; use principally as a fuel or other means to generate energy is recovery operation R 1. Whether an incinerator is classed as disposal or recovery does not change the NIS2 answer: both are waste management.
The definition of municipal waste inserted by Directive (EU) 2018/851 (point 2b) ends: “This definition is without prejudice to the allocation of responsibilities for waste management between public and private actors”. NIS2 follows the undertaking that carries the activity out, public or private.
The exclusion: principal economic activity
The row excludes “undertakings for whom waste management is not their principal economic activity”. Read it exactly. It applies to any undertaking, whatever its sector. The test is not whether waste management is substantial or important to the undertaking, but whether it is the principal economic activity. An undertaking that carries out waste management as a secondary activity is outside point 2, even if that activity is large.
Do not import the wording of the water rows. Annex I, point 7, excludes waste-water undertakings for which the activity is a “non-essential part of their general activity”: a different test. Nor confuse it with the “principal result” in the definition of recovery, which classifies an operation, not an undertaking.
What the text leaves open
Neither NIS2 nor the Waste Framework Directive says how the principal economic activity is measured. The text does not say whether it is turnover, headcount, assets or the activity registered with national authorities; whether it is assessed for the legal person alone or for its group; or over which period. Recital 21 of NIS2 anticipates entities that carry out activities some of which fall within and some outside the directive, and says the Commission could provide guidance; it does not settle the measure.
As practice, document several indicators side by side, such as the share of turnover, the share of staff and the activity declared in your company registration, and check the national transposition on /transposition. If they diverge, say so in the memo.
What the annex does not borrow
Point 2 borrows article 3, point (9), not article 2 of the Waste Framework Directive, which excludes certain materials from that directive's scope, such as radioactive waste (article 2(1)(d)) and waste waters to the extent covered by other Community legislation (article 2(2)(a)). Whether an undertaking handling only such materials is of the point 2 type is not settled by the annex wording: record the question. Waste-water undertakings have their own row, Annex I, point 7.
Who is the entity, and is it in two rows?
Article 2(1) applies to “public or private entities of a type referred to in Annex I or II”, and article 6(38) defines an entity as “a natural or legal person created and recognised as such under the national law of its place of establishment, which may, acting under its own name, exercise rights and be subject to obligations”. In a group, each company is assessed on its own activity, and a municipal waste company with legal personality is assessed like a private one. Where a municipality collects waste through its own departments, NIS2 does not define undertaking, and whether the municipality is of the point 2 type is not settled by the text; lesson m1l2 covers the public administration rules.
Check the other rows too. Annex I, point 1, lists “Producers as defined in Article 2, point (38), of Directive (EU) 2019/944” and “Operators of district heating or district cooling as defined in Article 2, point (19), of Directive (EU) 2018/2001”. An incinerator or landfill-gas plant that exports electricity or heat may meet those definitions, which this course does not reproduce: check them (see the energy certification). An entity of an Annex I type is classed differently (lesson m1l2).
What a supervisor will ask
- Why are you of the Annex II, point 2, type? A scope memo quoting the row and article 3(9) as amended, with each activity mapped to an element of the definition.
- Why does the exclusion apply, or not? The indicators used to establish the principal economic activity, and the reasoning where they diverge.
- Which legal person is the entity, and which other rows did you examine? An organisation chart and the energy or waste-water analysis.
- What did you declare for the list of entities? The information submitted under article 3(4): sector waste management, no subsector.
Key points
- Waste management is Annex II, point 2. It has no subsectors, and it is neither in Annex I nor in the CER annex.
- The row borrows article 3, point (9), of Directive 2008/98/EC, whose wording since Directive (EU) 2018/851 reads recovery (including sorting).
- Collection, transport, recovery, disposal, supervision, after-care, dealing and brokering are all covered; dealers and brokers need not touch the waste.
- The exclusion turns on the principal economic activity, a different test from the water rows; how it is measured is not defined.
- Assess each legal person, and check whether energy production or waste-water activities place it in an Annex I row as well.