In the preliminary ruling on the case filed by the Dutch Council of State, the ECJ found that only the first step in the waste treatment process – in casu incineration - determines the waste treatment process classification (disposal or recovery). Referring to a recent judgment in the similar case C-228/00 Commission v Germany, the calorific value of the waste does not form a relevant criterion in this respect. Instead the three conditions formulated in case C-228/00 need to be checked: 1 main purpose of operation must be enabling the waste to be used as a means of generating energy, 2 conditions of operation must indicate that it is indeed a means to generate energy and 3 waste must be used principally as a fuel or other means of generating energy). The ECJ does not explain whether the caloric value could play a role under one or more of these three conditions.