Whose waste is it anyway? Of elephants and definitions.

Jurisdictions worldwide are fast moving away from a ‘waste’ society to one of ‘resources’. landfill mining no longer surprises. Nor does the truism that there is more gold in one ton of mobile phones than there is in one tone of gold ore. Neither, incidentally, can I make anyone smile anymore proclaiming that clients now regularly request arguments, supporting the view that they are dealing in waste rather than in chemicals (such is the daunting prospect of being regulated under the REACH Regulation rather than the waste framework Directives and satellites). For an environmental as well as trade lawyer, the watershed moment which hit Article 35 TFEU (prohibition of exports: until recently unheard of, and revived precisely for environmental and public health reasons), now also hits the WTO: restrictions on exports are a hot item in the WTO, and the European Commission are pondering avenues to keep waste in the EU.

Amidst all of this renewed interest in many materials which until recently we could not wait to get rid off, there is one ‘ginormous’ as my kids would have it, elephant in the room: there is no consensus on the legal definition of ‘ownership’ of waste. European law does not help: neither European nor regional waste legislation contain any provisions on the ownership of waste. They rather apply the concepts of ‘waste producer’ and ‘waste holder’. While these concepts are decisive to impose particular legal liabilities, they are not directly decisive for the ownership of the waste. By way of example one can refer to the judgement of the European Court of Justice in the Van de Walle et al.-case, wherein Texaco was considered as a holder of the waste, despite the fact that it never had any possession over the waste.

The provisions of standard civil law therefore determine ownership. To my knowledge (I would love to hear from readers if they have any case-law from across the EU), case-law on this is scarce to non-existent. The criminal court of first instance at Antwerp came close recently-ish, in a case involving the collection of waste paper from private households (Openbaar Ministerie supported by Stad Antwerpen v G.F., H.M., and A.E, held 22 December 2011 – case on file with me should you be interested). Prosecution was based however on carrying out a licensed activity without a permit – not on theft. The case will now be continued in civil proceedings, for the City of Antwerp dragged its feet in calculating damage. Suggested defence: it was not yours to keep?

Geert.

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