EU LEGISLATION ON WASTE 2011- European Commission WORKSHOP ON EU LEGISLATION WASTE © 2010 Microsoft Corporation. All rights reserved. Important ECJ case.

EU LEGISLATION ON WASTE

2011- European Commission

WORKSHOP ON EU LEGISLATION

WASTE

© 2010 Microsoft Corporation. All rights reserved.

Important ECJ case law on waste legislation

EU LEGISLATION ON NATURE PROTECTION


2011- European Commission 2

ECJ Decisions with respect to

Meaning /scope of waste / liability

Waste management plan

Packaging waste

Waste management – fly-tipping

Waste disposal costs – polluter pays principle

Content



Meaning / Scope of “Waste” (C-235/02 Saetti et Frediani – preliminary ruling)

Question:Does petroleum coke intentionally produced and used in an oil refinery - but resulting from the refining of crude oil waste – constitute waste within the meaning of Article 1(a) of Directive 75/442/EEC (identical with Art. 1 (a) of Directive 2006/12/EC)? Differentiation between by-product ./. waste

ECJ:Petroleum coke which is produced intentionally or in the course of producing other petroleum fuels in an oil refinery and is certain to be used as fuel to meet the energy needs of the refinery and those of other industries does not constitute waste within the meaning of Directive 75/442/EEC.



Meaning / Scope of “Waste” (C-252/05 Thames Water Utilities – preliminary ruling)

Question:Does waste water constitute waste where it escapes from a sewerage network maintained pursuant to the national legislation enacted to transpose Directive 91/271 (on urban waste water treatment)?

ECJ:The escape of waste water from a sewerage network constitutes an event by which the sewerage undertaker, the holder of that waste water, ‘discards‘ it. That it is spilled accidentally does not alter the outcome.

Waste water which escapes from a sewerage network maintained pursuant to Directive 91/271 and the legislation enacted to transpose that directive constitutes waste since that Directive does not ensure an equivalent level of protection – it has no objectives related to contaminated soil.



Meaning of Waste / Liability

(C-188/07 Erika Oil Spill – preliminary ruling)

Facts of the CaseOn 12 December 1999 the oil tanker Erika sank, spilling part of her cargo and oil from her bunkers at sea and causing pollution of the Atlantic coast of France.

Questions1. May heavy fuel oil sold as a combustible fuel be classified as waste

within the meaning of Article 1(a) of Directive 75/442?

2. Must heavy fuel oil that is accidentally spilled into the sea following a shipwreck be classified as waste within the meaning of category Q4 in Annex I to Directive 75/442?

(Annex Q4: Materials spilled, lost or having undergone other mishap, including any materials, equipment, etc., contaminated as a result of the mishap)




Questions

3. In the event of the sinking of an oil tanker, may the producer of the heavy fuel oil spilled at sea and/or the seller of the fuel and charterer of the ship carrying the fuel be required to bear the cost of disposing of the waste thus generated, even though the substance spilled at sea was transported by a third party, in this case a carrier by sea.



• (Article 15 of Directive 75/442: In accordance with the “polluter pays” principle, the cost of disposing of waste must be borne by:

• – the holder who has waste handled by a waste collector or by an undertaking as referred to in Article 9, and/or

• – the previous holders or the producer of the product from which the waste came.’)

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Meaning of Waste / Liability ECJAnswer 1: Heavy fuel oil sold as a combustible fuel, does not constitute waste within the meaning of Council Directive 75/442/EEC, where it is exploited or marketed on economically advantageous terms and is capable of actually being used as a fuel without requiring prior processing. Answer 2: Hydrocarbons accidentally spilled at sea following a shipwreck, mixed with water and sediment and drifting along the coast of a Member State until being washed up on that coast, constitute waste within the meaning of Article 1(a) of Directive 75/442, where they are no longer capable of being exploited or marketed without prior processing.




ECJ Answer 3 part 1:The national court may regard the seller of those hydrocarbons and

charterer of the ship carrying them as a producer of that waste, and

thereby as a ‘previous holder’ for the purposes of applying the first part of

the second indent of Article 15 of that directive (polluter pays),

if that court reaches the conclusion that that seller-charterer contributed to

the risk that the pollution caused by the shipwreck would occur, in

particular if he failed to take measures to prevent such an incident, such as

measures concerning the choice of ship. (Polluter-pays principle is now

regulated in Article 14 Directive 2008/98/EC)




ECJ Answer 3 part 2:If cost of disposing of the waste produced by an accidental spillage of hydrocarbons at sea is not borne by other instruments or if legislation prevents that cost are borne by the shipowner and/or the charterer, such a national law will then, in order to ensure that Article 15 of that directive is correctly transposed, have to make provision for that cost to be borne by the producer of the product from which the waste came.

In accordance with the ‘polluter pays’ principle, however, such a producer cannot be liable to bear that cost unless he has contributed by his conduct to the risk that the pollution caused by the shipwreck will occur.



Waste management plan(C-53/02 and C-217/02 preliminary rulings)

Facts of the CaseWallonia Government granted the company BIFFA a permit to operate a landfill in Belgium. That permit covered, inter alia, the extension of the waste disposal site.

Community and association (claimant):Despite Article 7 of Directive 2006/12, the Wallonia Government had not adopted any waste management plan on the date when that permit was issued. Besides, the permit was issued for a site not listed in any plan for waste disposal sites.



Wallonia government: Article 7 of the Directive has no direct effect. In addition, waste management plans have no binding effect and the Directive leaves it to Member States to decide whether a plan must identify the sites chosen or whether it may simply set out the criteria which establish the suitability of sites.

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Waste management planDirective 75/442/EC (also text of Directive 12/2006/EC)

Article 7:In order to attain the objectives referred to in Article 3, 4 and 5, the competent authority or authorities referred to in Article 6 shall be required to draw up as soon as possible one or more waste management plans. Such plans shall relate in particular to:

•the type, quantity and origin of waste to be recovered or disposed of,

•general technical requirements, •any special arrangements for particular wastes, •suitable disposal sites or installations.



• Article 9:• For the purposes of implementing Articles 4, 5 and 7, any

establishment or undertaking which carries out the operations specified in Annex II A shall obtain a permit from the competent authority.

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Waste management plan

Question 1:

Does the obligation to draw up one or more waste management plans relating in particular to “suitable disposal sites or installations” mean that the MS are required to mark on a geographical map the precise locations of the planned waste disposal sites or to determine location criteria which are sufficiently precise to enable the competent authority responsible for issuing a permit under Article 9 to ascertain whether the site or installation falls within the management framework prescribed by the plan?



• Question 2: • Does Article 7 whether or not read in conjunction with Article 9 or

with any other provision of the same directive, preclude a MS which has not adopted within the period prescribed one or more waste management plans relating to “suitable disposal sites or installations” from issuing individual permits to operate waste disposal installations, such as landfills?

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Waste management plan ECJ Answer 1:

Article 7 must be interpreted to mean that the management plan or plans which the competent authorities are required to draw up must include either a geographical map specifying the exact location of waste disposal sites or location criteria which are sufficiently precise to enable the competent authority responsible for issuing a permit to determine whether the site or installation in question falls within the management framework provided for by the plan.



• ECJ Answer 2: • Articles 4, 5 and 7 read in conjunction with Article 9 thereof, must be

interpreted as not precluding a Member State which has not adopted, within the period prescribed, one or more waste management plans relating to suitable sites or installations for waste disposal from issuing individual permits to operate such sites and installations.

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Packaging Waste(C-309/02 Radlberger, preliminary ruling)

Questions

1.Does Article 1(2) of Directive 94/62 preclude a Member State from promoting systems for the reuse of packaging, by requiring participation in a return and management system, so far as concerns drinks sectors in which the proportion of reusable packaging has fallen below the level determined in 1991?



• Article 1 (2): The Directive lays down measures aimed, as a first priority, at preventing the production of packaging waste and, … at reusing packaging, at recycling and other forms of recovering packaging waste and, hence, at reducing the final disposal of such waste.)

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Packaging Waste

Questions

2. Does Article 28 EC (now: 34 TFEU) preclude national rules,

under which the proportion of reusable packaging in the sector

concerned determines whether producers and distributors using

non-reusable packaging may fulfill their deposit, return and

recovery obligations by participation in a global collection

system?

Article 34 TFEU (former Article 28): Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.



Packaging WasteECJ Answer 1: Article 1(2) of Directive 94/62/EC on packaging and packaging waste does not preclude the Member States from introducing measures designed to promote systems for the reuse of packaging.

ECJ Answer 2: Article 28 EC precludes national rules - such as those laid down in in the German Regulation on the Avoidance and Recovery of Packaging Waste - when they announce that a global packaging-waste collection system is tobe replaced by a deposit and return system without the producers and distributors concerned having a reasonable transitional period to adapt thereto and being assured that, at the time when the packaging-waste management system changes, they can actually participate in an operational system.



Waste management - fly-tipping

(C-365/97, EU-Commission / Italy)

EU-Commission:Italian authorities have not adopted the measures necessary to compel the operator of the unlawful tip to have the waste handled by a private or public waste collector. Consequently, Italy has failed to comply with its obligations under the first indent of Article 8 of the amended waste directive 2006/12/EC.

(now: Article 15 of Directive 2008/98/EC)



Waste management - fly-tippingItaly: The fact that the quarry was used for fly-tipping demonstrates not that Italy infringed that provision but merely that the relevant Italian provisions were contravened. By placing the tip under sequestration, the Italian authorities took the steps necessary to put an end to the abuse.

Article 8: Member States are to take the necessary measures to ensure that any holder of waste has it handled by a private or public waste collector or by an undertaking.

ECJ: By ordering the sequestration of the illegal tip and prosecuting the operator of that tip, Italy did not satisfy the specific obligation imposed on it by Article 8 of the amended waste directive.




(C-254/08 Futura Immobiliare - preliminary ruling)

Facts of the CaseFutura Immobiliare and Others are hotel businesses in a municipality. On that basis, they must pay the waste tax. However, under this tax, hoteliers are taxed more heavily than individuals occupying residential premises.

Claimant:The rate of the waste tax set for hotels is disproportionate to that laid down for residential property and, in reality, is based on their revenue-earning capacity rather than their waste-production capacity.




Italian government: The system is fully compatible with the ‘polluter pays’ principle as cost of management & disposal of the waste is placed on those who can influence its production. Parameters used for calculating the tax, such as the waste-production capacity of the various categories of users or the nature of the waste produced, are adequate.




Question

Must Article 15 (“polluter-pays principle) of Directive 2006/12

be interpreted as precluding national legislation which, for the

purposes of financing an urban waste management and

disposal service, provides for a tax or charge which is

calculated on the basis of an estimate of the volume of waste

generated by users of that service and not on the basis of the

quantity of waste which they have actually produced and

presented for collection?



Waste disposal costs – polluter pays principleECJ: Article 15 must be interpreted as not precluding national legislation which, for the purposes of financing an urban waste management and disposal service, provides for a tax or charge calculated on the basis of an estimate of the volume of waste generated by users of that service and not on the basis of the quantity of waste which they have actually produced and presented for collection.

It is, however, incumbent upon the national court to review, on the basis of the matters of fact and law placed before it, whether the tax for the disposal of private solid urban waste at issue in the main proceedings results in the allocation to certain ‘holders’, in the case in point hotel establishments, of costs which are manifestly disproportionate to the volumes or nature of the waste that they are liable to produce.

EU LEGISLATION ON WASTE 2011- European Commission WORKSHOP ON EU LEGISLATION WASTE © 2010 Microsoft Corporation. All rights reserved. Important ECJ case.

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