“It is unfortunate that the difficulties of interpreting the pronouncements from the EC are compounded by the failure of the national authorities to agree a common approach to the definition of waste.”

Critically assess whether case law shows a “common approach” to the definition of waste.

Introduction

In OSS Group Ltd v Environment Agency, an appeal case concerning the question of when lubricating oil ceased to be waste, it was apparent that the Environment Agency (the Agency) and the Department for the Environment, Food and Rural Affairs (DEFRA) held different views about the definition of waste and, specifically, when a waste ceased to be a waste. The Agency’s view was that if the intended use of the material was combustion, the material remained a waste until the material had been burned, irrespective of whether the waste material was similar to a raw material. DEFRA’s view was that while the combustion of waste lubricating oil was a recovery operation and therefore the waste oil would remain waste until combustion was completed, material burned as fuel that was recovered from waste lubricating oil was not being discarded, and therefore was not a waste, where the material had the same characteristics as a virgin material. The judge in the original case, Burton J, concluded that the Agency’s view was correct, and that even where a waste ceased to be waste after processing, it would revert to being a waste when burned.

While the differences between the Agency and DEFRA’s views may not have seemed particularly significant, in practice they resulted in a situation where a recovered substance could be both a non-waste and a waste depending upon the proposed end-use of the product. This was the situation faced by Solvent Resource Management (SRM), who produced, for onward sale, product grade distillates (PGD) from recovered solvents. As a saleable product, PGD was a non-waste; however, when the material was used as a fuel in SRM’s plant, it reverted to being a waste even though there was no intention by, or requirement for, SRM to discard the material.

Carnwath LJ provided some clarity in the appeal by OSS, where he concluded that the Agency’s view was too narrow, and OSS‘s products could be burnt other than as fuel. Carnwath LJ considered that a “practical common sense” approach was required that was consistent with the aims of the WFD. He went on to conclude that:

“…in the light of this judgment, it may be possible for [the Department for the Environment, Food and Rural Affairs] and the [Environment Agency] to join forces in providing practical guidance for those affected. It is unfortunate that the difficulties of interpreting the pronouncements from Luxembourg are compounded by the failure of the national authorities to agree a common approach.”

Evidently, Carnwath LJ considered that a common approach to the definition of waste was not being taken. Through a consideration of the European and national case law relating to the definition of waste, it is intended that this paper will demonstrate that the European Court of Justice (ECJ) takes a consistent approach to the definition of waste, that being that any material or substance can be waste within the meaning of the Waste Framework Directive (WFD), while Member States and national authorities (including national Courts) do not take a consistent approach to the definition of waste.

Article 1(a) of the WFD defines ‘waste’ as:

“…any substance or object in the categories set out in Annex I which the holder discards or intends or is required to discard”.

The categories set out in Annex I cover items that would typically be considered waste and would therefore require discarding, such as out of date or off-specification products, materials spilled or contaminated, unusable parts, and various production residues. However, the WFD ensures that the definition is wide by specifying an additional category, which refers to:

“any materials, substances or products which are not contained in the above categories”.

Additional information on the materials and substances that are waste is provided in the European Waste List. However, the introductory notes to the list state that “the inclusion of a material in the list does not mean that the material is a waste in all circumstances. Materials are considered to be a waste only where the definition of waste in Article 1(a)…is met.” Determining whether a substance or object is indeed a waste will therefore depend wholly on the waste holder’s intention or requirement to ‘discard’ the material.

Varying approaches have been taken to determining whether something has been discarded, or whether the holder intends or is required to discard it. The Advocate General in his opinion in Tombesi considered that if a material was consigned to a recovery operation, it was an indication that it had been discarded and it was therefore a waste. He stated that:

“Under the Directive the sole question is whether the substance in issue is subject to a disposal or recovery operation within the meaning of Annex IIA or B”

The need to identify whether something had been discarded had effectively been bypassed by considering that all materials consigned to a recovery or disposal operation were waste. If it was identified that a material had been subject to an Annex IIA or B operation, it could be concluded that the material was discarded and was therefore waste. This approach was not supported in the judgment from the ECJ, however. The Advocate General’s approach in Tombesi was followed in other subsequent cases, for example Inter-Environnment Wallonie v Regione Wallone, where it was concluded that substances that were subject to a recovery process would normally be waste, and in Mayer Parry Recycling Ltd v Environment Agency, where the UK court held, on the basis of Tombesi, that scrap metal that was to be reused without being subject to a recovery process was not a waste.

The so-called ‘Tombesi-bypass’ presented problems, however, since a number of the specified recovery processes could also be normal industrial processes using ordinary raw materials that would not be classified as wastes (e.g. coal (fuel) combusted in a power station to generate electricity would not be classified as a recovery process). In ARCO Chemie Netherland Ltd vMinister von Volkshuivesting, the Advocate General’s opinion in Tombesi was not followed. It was considered that a substance consigned to a recovery operation listed in Annex IIB of the WFD was not necessarily to be considered as a waste, and it was first considered necessary to establish whether the material in question constituted waste (i.e. whether or not it had been discarded). The approach taken in ARCO and subsequent cases was different to that of the previous cases, and the need to establish a holder’s intention or requirement to discard a material became the determining factor when identifying whether a material or substance was waste. The underlying concept of the ECJ’s approach to the definition of waste was stated in ARCO as follows:

“Whether [a material or substance] is waste must be determined in the light of all the circumstances, by comparison with the definition set out in article 1(a) of the Directive, that is to say the discarding of the substance in question or the intention or requirement to discard it, regard being had to the aim of the Directive and the need to ensure that its effectiveness is not undermined.”

Essentially, the definition of waste therefore turned on the term ‘discard’. In his judgment in OSS, Carnwath LJ defined ‘discard’, as he had done previously in Mayer Parry Recycling Ltd v Environment Agency, as follows:

“The term ‘discard’ is used in a broad sense equivalent to ‘get rid of’; but it is coloured by the examples of waste given in Annex I and the waste catalogue, which indicate that it is concerned generally with materials which have ceased to be required for their original purpose, normally because they are unsuitable, unwanted or surplus to requirements …”

He noted, however, that it was clear that this was “only part of the story”, and referred to a number of cases subsequent to ARCO where the ECJ had attempted to provide objective criteria that could be used as evidence that a holder of a substance or material intended to discard that material and, therefore, the material should be considered as waste. Some of these criteria were summarised by Lord Reed in the conclusion to his judgment in Scottish Power Generation Ltd v Scottish Environmental Protection Agency:

“[F]or example, whether the material is produced intentionally; whether further processing is required before the material can be used; and whether the material is certain to be used[;]…whether the material is commonly regarded as waste; and whether, if it is used as fuel, its use as fuel is a common method of recovering waste. Since the status of a material has to be assessed on the basis of a comprehensive assessment of the circumstances of the particular case, it follows that none of the factors mentioned is conclusive in itself. The fact…that a material is produced intentionally, requires no further processing before it can be used, and is certain to be used, cannot be taken in isolation as determinative of its status.”

He went on to consider the criteria that could be used to assess when a substance ceased to be waste:

“The danger which is typical of waste is a danger of harm to human health or the environment caused by the manner of its disposal. The [WFD] seeks to address that danger by making waste subject to supervision designed to ensure that it is recovered or disposed of in a manner which is controlled so as to protect human health and the environment. Once a material has been classified as waste, it therefore remains subject to that supervision at least until that objective has been achieved. It is only then that the material may cease to be waste…When it is claimed that what was waste has ceased to be waste…it is accordingly necessary to assess whether that claim is well founded. That assessment requires consideration not only of whether the material in question can and will be used without further processing in the same way as a non-waste material, but also of whether the material can be used under the same conditions of environmental protection as the non-waste material with which it is otherwise comparable, without any greater danger of harm to human health or the environment. Other factors…may also be relevant in considering whether waste has been subjected to a recovery operation or merely to pre-treatment…”

The general approach taken by the ECJ to the definition of waste, that is that any material or substance may be waste where it has been or is required or intended to be discarded, is therefore considered to be consistent throughout the case law reviewed. However, as demonstrated in the remainder of this paper, the insistence of the ECJ that whether or not a material is waste, or ceases to be waste, must be determined on the basis of whether or not its holder intended or was required to discard it, even where this has no practical relevance, results in varying approaches being taken by Member States and national authorities to the definition of waste.

In 2007, the Commission of the European Communities published a document intended to be used by Member States in interpreting the judgments from the ECJ. In Annex 1 to the document, a number of examples of wastes and non-wastes are given; however, the examples are introduced as follows:

“…There are many other examples that could have been used, and even the examples here may vary across the EU in some circumstances, notably if there is no certainty of use for a given by-product, or on the contrary, if use is certain for a material in a region or Member State, where this is not the case across the whole EU.”

Clearly, the position of the Commission in considering that a material might be waste in one Member State but not in another would appear to be wholly inconsistent with the aims of the WFD, and therefore inconsistent with the approach taken by the ECJ to the definition of waste. The seventh recital of the WDF is particularly noted in this regard:

“Moreover, discrepancies between Member States’ legislation with regard to waste disposal and recovery may affect the quality of the environment and the smooth operation of the internal market…”

While the ECJ may be consistent in its approach, the Commission of the European Communities does not appear to be adopting an approach consistent with the aims of the WFD.

Varying approaches to the definition of waste can also be seen to be taken by the Member States. In the case law this is apparent in relation to Member States’ failure to fully implement aspects of the WFD, and in submissions made by Member States on these and other European and national cases.

In relation to Member States’ implementation of the WFD, the following examples highlight well the varying approaches adopted. Germany historically excluded certain categories of recyclable waste from the scope of its domestic waste legislation, while the United Kingdom excluded agricultural waste from its definition of waste. Similarly, and more recently, Italy was found to have failed to fulfill its obligations under the WFD by excluding from its national legislation materials such as excavated earth and rock, food scraps and leftovers, and substances intended for recovery. Italian legislation historically also excluded substances or objects that were considered to be capable of economic reuse. It distinguished between ‘waste’ and ‘residues’, and provided for simplified procedures for the collection, transport, treatment and reuse of residues. Moreover, certain materials with specific commodity characteristics were excluded from the relevant legislation altogether.

In Tombesi, ARCO, Castle Cement, Palin Granit Oy, Mayer Parry, Saetti, and Thames Water v Bromley Magistrates Courtsubmissions to the Court were made by various Member States’ governments. Their submissions highlight the differing approaches adopted by the Member States, and as an example, a brief discussion of the submissions made in Tombesi is provided. The Danish government considered that the concept of waste included all residual products, defining residual products as those that are not the primary goal sought by the production process, do not have a constant economic value, and their use depends on the markets available for them. The French government agreed that waste included residues, and considered that waste continued to be waste until it was recovered. The Italian government argued that the definition of waste in the WFD placed too much importance on the subjective element of the intentions of the waste holder, and that it was legitimate to employ the possibility of use as a basic criterion and exclude from the notion of wastes substances that have recognized properties and are normally traded on markets. The Netherlands and UK governments took an intermediate view, with the Netherlands highlighting that secondary raw materials would not be waste, while the UK government argued that something was a waste when it left the normal commercial cycle or chain of utility and was consigned to a recovery operation. The Member States approach to the definition of waste clearly varies significantly.

As a final example of the approach taken to the definition of waste, it is useful to return to the OSS case and contrast this with other similar cases that have been concerned with a material derived from waste that was subsequently used as fuel. Such cases include ARCO, Castle Cement v Environment Agency, Scottish Power Generation Ltd v Scottish Environmental Protection Agency, Saetti v Frediani,and Lcopower BV v Secretary of State. On the facts of each case, materials in the first three cases were considered likely to be wastes despite the ‘recovery’ processes that the materials had been subjected to, while the materials in the remaining two were not considered to be wastes.

The OSS case followed the general approach taken in ARCO, where it was statedthat “[t]he operations to which a substance is subsequently submitted are not of crucial importance to its classification as waste”. However, in Castle Cement, which concerned a material recovered from waste solvents and liquids derived from waste sources by Solvent Resource Management, the fact that the material was burned as fuel was an important consideration in determining that the material remained waste. This was in spite of the fact that it had been produced to a specification specifically for use as fuel. This can be contrasted against Saetti, where petroleum coke, which was produced to a specification although was considered to be waste by its producer, was held not to be waste. In Scottish Power, the waste-derived fuel was again made to a specification; however, here it was considered that since the material could not be used as fuel in the same conditions of environmental protection as the raw material it was replacing, it must be considered waste. In relation to the materials characteristics, however, in Castle Cement, Stanley Burnton J considered that:

“Whether material is ‘waste’ cannot depend on whether any particular holder of it stores and uses it in an environmentally and otherwise safe manner. Its categorisation should depend on its qualities, not on the qualities of its storage or use.”

This view can itself be contrasted with the ECJ’s approach to the definition of waste, which depends not on the quality of the material but on the intention or requirement of the holder to discard that material.

In conclusion, while it appears from the case law that the ECJ has, on balance, taken a consistent approach to the definition of waste, its insistence on relying on the holder’s intention or requirement to discard the material has resulted in Member States and national authorities (including the national Courts) taking, unsurprisingly, an inconsistent approach to the definition of waste. The self-proclaimed ‘clarification’ document published by the Commission of the European Communities collates and prioritises the judgments from the ECJ, but it is questionable whether the approach taken is consistent with the overall aim of the WFD. Stanley Burnton J confessed to finding parts of the ECJ’s judgments ‘Delphic’ and, while apparently consistent throughout the relevant cases, I would tend to agree. The third recital of the WFD states the following:

“Common terminology and a definition of waste are needed in order to improve the efficiency of waste management in the Community.”

Perhaps it should read “…and a workable, comprehendible definition of waste…”?

References

ARCO Chemie Netherland Ltd vMinister von Volkshuivesting and EOPN [2003] Env LR 40 (Case C-418/97) 15 June 2000

Bell, S. and McGillivray, D., Environmental Law (Oxford: OUP, Sixth Edition, 2006

Castle Cement v Environment Agency [2001] EWHC Admin 224

Commission Decision 2000/532 of 3 May 2000 ( [2000] O.J. L226/3 ) replacing Decision 94/3 ( [1994] O.J. L5/15 ) establishing a list of wastes pursuant to Article 1(a) of Council Directive 75/442 ( [1975] O.J. L194/39 ) on waste and Council Decision 94/904 ( [1994] O.J. L356/14 ) establishing a list of hazardous waste pursuant to Article 1(4) of Council Directive 91/689 ( [1991] O.J. L377/20 ) on hazardous waste, as amended by Council Decision 2001/573 ( [2001] O.J. L203/18 ) of 23 July 232001 amending Decision 2000/532 as regards the list of wastes

Commission of the European Communities v Italy (Cases C-194/05, C-195/05, and C-263/05) 18 December 2007 reported in EU Focus 2008, 225, 15-17

Commission of the European Communities v United Kingdom [2004] All ER (D) 279 (Case C-62/03) 16 December 2004

Commission of the European Communities, 2007. Communication from the Commission to the Council and the European Parliament on the Interpretative Communication on waste and by-products. Brussels, 21 February 2007, COM(2007) 59 final

Commission of the Eurpoean Communities v Germany [1996] 1 CMLR 383 (Case C-422/92) 10 May 1995

Council Directive 2006/12/EC of the European Parliament and of the Council of 5 April 2006 on waste

Criminal Proceedings against Niselli (Case C-457/02)

Criminal Proceedings against E. Zanetti and Others [1990] I ECR 1509 (Case C-359/88) 28 March 1990

Euro Tombesi and Others [1997] 3 CMLR 673 (Joined Cases C-304/94, C-330/94, C-342/94, C-224/95) 25 June 1997

Icopower BV v Secretary of State (Unreported May 14, 2003) cited in OSS Group Ltd v Environment Agency [2008] Env LR 8

Inter-Environnement Wallonie v Regione Wallonne [1998] All ER 155 (Case C-129/96) 18 December 1997

Mayer Parry Recycling Ltd v Environment Agency [1999] 1 CMLR 963

OSS Group Ltd v Environment Agency [2007] Env LR 19

OSS Group Ltd v Environment Agency [2008] Env LR 8

Palin Granit Oy v Lounais-Suomen Ymparistokeskus [2003] All ER (EC) 366 (Case C-9/00) 18 April 2002

Saetti v Frediani [2004] Env LR 37 (Case C-235/02) 15 January 2004

Scottish Power Generation Ltd v Scottish Environment Protection Agency (No.1) [2005] SLT 98 OH

Thames Water Utilities v Bromely Magistrates Court [2008] Env LR 3 (Case C-252/05) 10 May 2007