Key definitions (“waste”, “by-product” etc)
The concept of waste
The scope of waste legislation is quite naturally determined by reference to the concept of waste. This is true even though the scope excludes such substances as gaseous effluents, radioactive waste, faecal matter, animal by-products or waste from extraction activities.
When faced with litigation somehow involving waste, the courts of a Member State will not normally enforce the EU law as such, but the national law which has transposed the corresponding EU legislation. In most cases, irrespective of the type of litigation considered, be it administrative, criminal, or civil and commercial, a primary issue is that of deciding whether the considered substance or object should be characterised as waste.
Because of the significant stakes involved in ascertaining whether an object or a substance is waste as much as because of its complexity, the concept of waste has given rise to a significant range of litigation since the first Waste Framework Directive (75/442/EEC) was adopted in 1975, and the limited improvements provided by the current Waste Framework Directive confirm how difficult it could be to determine this essential legal category and to confine it within certain limits.
The concept of waste
Waste is defined by the Waste Framework Directive as a “substance or object which the holder discards or intends to or is required to discard” [Article 3 (1)]. Therefore, the classification of a substance or object as ‘waste’ is to be inferred primarily from the holder’s actions and the meaning of the term ‘discard’ (see Case C-629/19 Sappi Austria Produktion and Wasserverband ‘Region Gratkorn-Gratwein’, § 42 and the case-law cited). That verb must be interpreted in the light of the aim of the Directive, but no decisive criteria is, however, suggested by such a Directive other than the holder’s intention to or action of discarding a given substance or object (Case C-457/02 Antonio Niselli, §33-34). The legal category of waste thus triggered the most significant difficulties of interpretation.
The existence of ‘waste’ must be determined in light of all the circumstances, some of which may constitute evidence that a substance or object has been discarded or of an intention or requirement to discard it. Among the circumstances that may constitute such evidence is the fact that a substance is a production or consumption residue, that is to say a product which was not itself sought and for which special precautions must be taken if it is used owing to the environmentally hazardous nature of its composition. Particular attention must be paid to the fact that the substance or object in question is not or is no longer of any use to its holder, such that that substance or object constitutes a burden which that holder will seek to discard.
The European Commission establishes, and revises on a regular basis, a list of wastes named the “European Waste Catalogue”. However, it merely provides a reference classification, a nomenclature. Substances and objects listed in this nomenclature, as well as on national listings which also happen to exist, only qualify as waste in consideration of the action, the intent or the duty of the holder to discard them (Case C-208/04 Inter-environnement Wallonie v. Région wallonne).
For instance, the concept of waste does not exclude substances and objects suitable for economic reuse. Goods such as waste oils (Case C-172/82 Fabricants raffineurs d'huile de graissage v. Inter-Huiles; Case C-295/82 Rhône-Alpes Huiles; Case C-240/83 ADBHU)) or waste of animal origin (albeit they may be purchased at “minimal” price, see Case C-118/86 Openbaar Ministerie v Nertsvoederfabriek Nederland), suitable for economic transactions, may be deemed waste.
Conversely, a gasoil cargo accidentally mixed-up with another substance shall not be deemed waste provided that its holder really intends to put it back on the market (Joined Cases C-241/12 and C-242/12 Shell Nederland and Belgian Shell; Joined Cases C-304/94, C-330/94, C-342/94 and C-224/95 Euro Tombesi and others). The fact that waste may retain commercial value and be collected on a commercial basis for the purposes of recycling or reuse is without impact on its characterisation. The obligation to discard goods likewise brings about their characterisation as waste.
Difficulties in the characterisation of waste culminated with the Van de Walle Case in which the CJEU ruled that the holder of hydrocarbons which contaminate the underground soil and waters beneath a service-station and that the contaminated soil is also waste even if it has not been excavated (Case C-1/03 Van de Walle and Others). By the same token, waste water which escapes from Thames Water Utilities’ sewerage network is waste (Case C-252/05 Thames Water Utilities), as well as the fuel oil spilled from the torn-apart hull of the oil tanker Erika that got mixed-up with salt water and sand (Case C-188/07 Commune de Mesquer).
Of those three rulings, only that on the heavy fuel oil of the Erika seems to have kept some relevance since, by reaction to this line of case-law, Waste Framework Directive excludes from its scope “land (in situ) including unexcavated contaminated soil and buildings permanently connected with land” [Article 2 (1)] as well as all waste waters [Article 2 (a)], and not only those which are not “liquid waste”, as was the case under the former Directive.