The “End of Waste” under EU Law

Vol. 28 No. 3

Mr. Brown is a Principal at Vincent Brown Associates and Visiting Professor of Environment Law, University of Strathclyde, Glasgow, UK.

The European Union has one of the most tightly regulated and precautionary legal systems in the world, governing industrial, commercial, and domestic (household) waste. The perspective of industry is that it is overly and unnecessarily weighted in favour of the environmental lobby and against genuine attempts by industrial manufacturers and waste processors to recycle waste materials or divert industrial by-products for beneficial economic reuse. This is especially the case in the unforgivingly tight regulatory environment of the United Kingdom, where there is a history of almost pathological governmental and regulatory resistance to the idea that industry can produce environmentally acceptable products and raw materials from wastes or other industrial residues or by-products. Sadly, that approach has not yet been consigned to history.

There are, though, gradual signs of an incremental shift, which has coincided with the global economic downturn. The European Commission recognised in its 2007 “Interpretative Communication on Waste and By-Products,” that an excessively wide interpretation of the definition of waste imposes unnecessary costs on business and reduces the attractiveness of materials that would otherwise be returned to the economy with no greater environmental impacts than if they were not so used. The Commission also admitted that differing case by case interpretations by competent authorities in different Member States (and, in the UK for example, as between different devolved jurisdictions) leads to unacceptable inequalities in the treatment of economic operators and obstacles in the internal market. However, the legal position remains a minefield for economic operators who may be venturing into this area of transforming waste streams and production residues into commercially valuable and realisable products and raw materials. The overall message is—the law is moving in your direction, but watch out for the old bear traps.

The underlying legal reality is the peculiar nature of EU law and its relationship with the laws of the Member States, combined with the overriding jurisdiction of the Court of Justice of the European Union (CJEU). From very early in the development of the EU legal system (Case 6/64 Flaminio Costa v. ENEL (1964) ECR 585 and Case 11/70 Internationale Handelsgesellschaft (1970) ECR 1125), the CJEU established that no rule of national law, not even a constitutional measure, can prevail against a contrary article of EU law, whether contained in one of the Treaties or in subordinate EU legislation such as an EU Regulation or an EU Directive. This doctrine has been further developed exponentially by the CJEU over the decades, primarily through the development of the doctrine of conforming interpretation (Case 14/83, Von Colson & Kamann v. Land Nordrhein-Westfalen [1984] ECR 1891). This doctrine requires all national courts to apply and interpret national law, adopted for the implementation of a Directive, in conformity with the wording and purpose of the relevant Directive. In the EU legal system, the CJEU is the ultimate arbiter. If you have a CJEU ruling on your side, then you have a card to play.

The root of the problem in Europe has always been the so-called Waste Framework Directive, the most recent 2008 version of which became law in the Member States in December 2010. It is the cornerstone of all law throughout the twenty-seven EU Member States regulating most forms of industrial and commercial residues, wastes, and by-products. Reams of consultation papers and strategies were produced ahead of the Directive, proclaiming that it would provide much needed clarification of the practical definition of “waste.”

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