Waste and the Waste Hierarchy in Europe

Vol. 26 No. 3

Mr. Waite is a partner at Berwin Leighton Paisner LLP in London, England, and a member of the editorial board of Natural Resources & Environment.

The definition of “waste” in the European Commission (EC) Waste Framework Directive 2008/98/EC (WFD), which is mirrored in the United Kingdom (UK) legislation, is “any substance or object which the holder discards or intends or is required to discard.”

The term “discard” is not further defined and its interpretation has not proved straightforward. The European Court of Justice (ECJ) has given a number of decisions on the subject, which are not always easy to reconcile. Indeed, an English judge, Lord Justice Carnwath, commented in 2007 that “a search for logical coherence in the Luxembourg case-law is probably doomed to failure.” It appears that the key to understanding the meaning of waste is the “burden” principle: Material is not waste if its holder has a need for it and it is therefore not a burden to him or her.

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