Posts Tagged definition
Your regular waste law teaser. Upper Tribunal finds in Devon Waste Management that ‘Fluff’ is not being discarded.
In  UKUT 0001 (TCC) Devon Waste Management, Biffa and Veolia v Inland Revenue, the tax and chancery chamber of the Upper Tribunal discussed the classification of ‘fluff’ as waste. The fluff at issue is not the type one may find in one’s pockets (or, dare I say, belly button). Rather, the “black bag” waste material that is disposed of at landfill sites and used by operators as a geomembrane liner and geotextile protection layer.
As Constantine Christofi at RPC reports, (see also UKUT at 22) the first tier tribunal – FTT had earlier found that that the use made of the material disposed of was only an indicator of whether there was an intention to discard the material, and that use was not conclusive in determining whether it was discarded. In the view of the FTT, the use of such material as a protective layer was not sufficient to negate an intention to discard it as it was destined for landfill in any event and because there was no physical difference between that material and the other general waste disposed of at the landfill sites. The FTT therefore held that the disposal of the waste was a taxable disposal by way of landfill: not everything that could be characterised as “use” was sufficient to negate an intention to discard.
The FTT had (UKUT does not at all) considered EU law precedent. UKUT relied on English authority and overturned the FTT’s finding on the basis of the FTT having fallen into the “once waste, always waste” trap (at 74). In deciding like this, UKUT itself in my view may have fallen into the alternative ‘once someone’s waste not that of another’ trap. At 52: ‘An owner of material does not discard it, within the meaning of the statutory provisions, if he keeps and uses it for his own purposes’. Making use of materials for the site operator’s purposes connected with regulatory compliance, when they are deposited in the cell, is use that is necessarily inconsistent with an intention to discard the materials.
This arguably is the kind of single criterion test which when it comes to (EU and UK) waste law has been rejected.
Update 24 May the Court yesterday confirmed the Opinion in its entirety.
Case C-658/17 WB is one of the first in which the annoying new rule on anonymisation at the CJEU kicks in. At issue is the characterisation of notaries as ‘court’ under the EU succession Regulation 650/2012.
Particularly with regard to succession law, notaries in the Member States carry out tasks which can be considered ‘judicial’. In some jurisdictions (especially in the Anglo-Saxon world) a court is involved in transferring the estate from the deceased to those inheriting. This is not the case in most Member States with a so-called ‘Latin’ office of notary. A private international law regulation concerning inheritance can therefore not solely be aimed at courts in the traditional sense of the word. In particular, notaries and registry offices, but also testamentary executors entrusted with judicial authority, need to be integrated.
The rules with regard to jurisdiction and applicable law included in the Regulation have to be complied with by all above-mentioned legal professions, though only to the extent that they exercise judicial functions. The Regulation therefore adopts, in Article 3(2), a functional approach of a ‘court’:
For the purposes of this Regulation, the term ‘court’ means any judicial authority and all other authorities and legal professionals with competence in matters of succession which exercise judicial functions or act pursuant to a delegation of power by a judicial authority or act under the control of a judicial authority, provided that such other authorities and legal professionals offer guarantees with regard to impartiality and the right of all parties to be heard and provided that their decisions under the law of the Member State in which they operate:
(a) may be made the subject of an appeal to or review by a judicial authority; and
(b) have a similar force and effect as a decision of a judicial authority on the same matter.
The Member States shall notify the Commission of the other authorities and legal professionals referred to in the first subparagraph in accordance with Article 79.
Outside of the exercise of judicial functions, notaries are not bound by the rules on jurisdiction, and the authentic instruments they issue circulate in accordance with the provisions on authentic instruments rather than ‘judgments’.
In accordance with Article 79 of the Regulation, the Commission (on the basis of notifications by the Member States) has established a list of the authorities and legal professions which need to be considered as ‘courts’ in accordance with this functional determination. This list will also be particularly interesting for internal national use.
However I have always emphasised to Member States compiling their lists, that unlike in the Insolvency Regulation, where the extent of cover of national proceedings is entirely in the hands of the Member States, for the Succession Regulation it is an autonomous EU definition which drives cover by the Regulation.
Bot AG agrees (Opinion of 28 February; not available in English). whether or not a particular office and /or function is included in the national notification is not determinant. An EU definition of Court kicks in. He refers in particular to his overview in C-484/15 Zulfikarpašić. Reference is also made to Pula Parking. Applied to the case at issue, Polish notaries by virtue of Polish law may only issue the Polish (not: EU) certificate of succession if there is consensus among the parties and no disagreement e.g. re jurisdiction. No judicial functions therefore and the certificate travels as an authentic instrument, not a judgment.
(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 6, Heading 6.2.1.
There are in fact many differences between Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v MacKenzie  NSWLEC 99 and the CJEU’s Palin Granit; and the regulatory context in NSW is quite different from the EU’s. My title therefore is a crowd pleaser rather than legally sound. Yet some of the issues are similar, hence justifying inclusion in the comparative environmental law /waste law binder (and a good teaser for the W-E).
Samantha Daly and Clare Collett have excellent as well as extensive analysis here and I am happy mainly to refer.
Defendants received materials from recycling depots operated by skip bin companies in Sydney. These materials were recovered fines which had been processed and recycled from building and demolition waste, for which there was no market for re-sale at the time (due to the high volumes of such material produced by the recycling industry). This material was trucked to the Premises by transporters from the recyclers and placed in mounds or stockpiles on the Premises.
Was there a stockpile of ‘waste’? Palin Granit considers similar issues in para 36 in particular.
As I noted at the time, the long and the short of the case is whether the concept of ‘consumer’ under the protected categories of Brussels I (and Recast) is a dynamic or a static one; and what kind of impact assignment has on jurisdiction for protected categories.
On the first issue, Mr Schrems points to his history as a user, first having set up a personal account, subsequently, as he became the poster child for opposition to social media’s alleged infringement of privacy, a Facebook page. Each of those, he suggests, are the object of a separate contract with Facebook. FB suggests they are part of one and the same, initial contractual relationship. This one assumes, would assist FB with its line of argument that Herr Schrems’ initial use may have been covered by the forum consumentis, but that his subsequent professional use gazumps that initial qualification.
The Court suffices at 36 with the simple observation that the qualification as a single or dual contract is up to the national court (see inter alia the Gabriel, Engler and Ilsinger conundrum: Handbook, Chapter 2, Heading 188.8.131.52.a and generally the difficulties for the CJEU to force a harmonised notion of ‘contract’ upon the Member States), yet that nevertheless any such qualification needs to take into account the principles of interpretation of Brussels I’s protected categories: in particular, their restrictive interpretation. Whence it follows, the Court holds, that the interpretation needs to be dynamic, taking into account the subsequent (professional or not) use of the service: at 37-38: ‘il y a notamment lieu de tenir compte, s’agissant de services d’un réseau social numérique ayant vocation à être utilisés pendant une longue durée, de l’évolution ultérieure de l’usage qui est fait de ces services. Cette interprétation implique, notamment, qu’un requérant utilisateur de tels services pourrait invoquer la qualité de consommateur seulement si l’usage essentiellement non professionnel de ces services, pour lequel il a initialement conclu un contrat, n’a pas acquis, par la suite, un caractère essentiellement professionnel.’
The Court does add at 39-40 that acquired or existing knowledge of the sector or indeed the mere involvement in collective representation of the interests of the service’s users, has no impact on the qualification as a ‘consumer’: only professional use of the service does. (The Court in this respect refers to Article 169(1) TFEU’s objective to assist consumers with the representation of their collective interest).
On this point therefore the Court unlike the AG attaches more weight to restrictive interpretation than to predictability. (Bobek AG’s approach to the issue of dynamic /static was expressed more cautiously).
As for the assignment issue, the Court sides squarely with its AG: the assigned claims cannot be pursued in the jurisdiction which is the domicile of the assignee. That in my view de lega lata makes perfect sense.
(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 184.108.40.206.
Szpunar AG in Schlömp on the concept of ‘court’ (and lis alibi pendens) in the Lugano Convention. Caution: tongue-twister (Schlichtungsbehörde).
Update 4 January 2018 the CJEU held late December and confirmed the functional approach at 53 juncto 57.
I was delighted to learn something I had not been aware of in Szpunar AG’s Opinion in C-467/16 Brigitte Schlömp: namely the slightly diverging approach to the notion of ‘court’ in Brussels cq Lugano.
The AG also opines on the question of lis alibi pendens, suggesting (at 48) that since the conciliation procedure before the Behörd constitutes an integral part of proceedings before a(n) (ordinary) court, the moment of seizure of the Schlichtungsbehörde is the determining moment under the lis alibi pendens provisions of Articles 27 and 30 of the Lugano II Convention. [He also refers to  EWHC 2782 (Ch) Lehman Brothers Finance AG v Klaus Tschira Stiftung GmbH & Anor which followed the same approach].
Is the Swiss ‘Schlichtungsbehörde’ or conciliation authority, intervening in disputes between local councils and relatives with respect to maintenance and social care payments, a ‘court’ under Lugano?
Ms Schlömp, who resides in Switzerland, is the daughter of Ms H.S., who receives supplementary social assistance from the Landratsamt Schwäbisch Hall (administrative authority of the district of Schwäbisch Hall) in Germany because of her care requirements. Under German law (indeed similarly in many a Member State), benefits handed out by social welfare bodies, are claim back from children of recipients, subject to ability to pay. To assert its claim for recovery, the German welfare body lodged an application for conciliation in regard to Ms Schlömp with the conciliation authority (‘Schlichtungsbehörde’), competent under Swiss law. What follows is a series of procedures left, right, even centre. Their exact order is outlined by the AG, they matter less for this post: what is relevant to my own insight, is whether a Schlichtungsbehörde under Swiss law is covered by the term ‘court’ within the scope of Articles 27 and 30 of the Lugano II Convention.
Here comes my moment of surprise: at 58: ‘the concept of ‘court’ in the Lugano II Convention differs from that in Regulations No 44/2001 and No 1215/2012, as that Convention contains an article which has no parallel in the latter two instruments: Article 62 of the Lugano II Convention states that the expression ‘court’ is to include any authorities designated by a State bound by that convention as having jurisdiction in the matters falling within the scope of that convention.’ Like in recent case-law under the Brussels I Recast, bodies which prima facie are outside the judicial system, may be considered ‘courts’. A confirmation of the functional as opposed to the formal classification approach.
(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 220.127.116.11.1.
Thank you Stefanie Roosen for flagging the issue in what after a bit of searching I take it to be Delta Lloyd v Witsen. At issue is not immediately a conflict of laws concern however the case does highlight a discussion often occurring with respect to choice of court and choice of law: when do mere references to general terms and conditions (GTCS) become binding upon parties, all the more so when these refer to industry standards. Here: HISWA standards, the ‘Nederlandsche Vereeniging voor Handel en Industrie op het Gebied van Scheepsbouw en Watersport’ est.1932. The Netherlands are a seafaring nation: HISWA is big.
During repairs to the yacht Kontiki, the rear cable of the shipyard’s portal crane broke, the Kontiki fell and she suffered severe damage. The shipyard had in the course of negotiation, agreement and confirmation referred to no less than three different HISWA sets. The Rechtbank Noord-Holland held that as a result, none was validly incorporated into the contract (neither incidentally was a mere sign quayside, limiting liability).
As I have reported on this blog before (e.g. here), there is no magic wand when it comes to GTCS: all that is required is due diligence. Neat filing and dito reference. Electronically or otherwise: it is elementary for all things legal.
(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 18.104.22.168.1.
Apologies for the truly misleading title. Trumpism and Brexitism is getting to me. Yes, it sounds awkward to hold that a tube which is at the very inside of product can be categorised as ‘packaging’. Yet it fits completely within the fabric of the EU’s Packaging and packaging and packaging waste Directive 94/62 (as amended).
The CJEU held 2 weeks ago in Joined Cases C‑313/15 and C‑530/15 Eco-Emballages et al., on the issue whether Rolls, tubes and cylinders around which flexible material is wound (‘Roll cores’) are ‘packaging’ within the meaning of the Directive, hence subject to recycling etc. targets and also to fees under collective schemes. The Directive defines packaging as
all products made of any materials of any nature to be used for the containment, protection, handling, delivery and presentation of goods, from raw materials to processed goods, from the producer to the user or the consumer. ‘Non-returnable’ items used for the same purposes shall also be considered to constitute packaging.
‘Packaging’ consists only of:
(a) sales packaging or primary packaging, i.e. packaging conceived so as to constitute a sales unit to the final user or consumer at the point of purchase;
(b) grouped packaging or secondary packaging, i.e. packaging conceived so as to constitute at the point of purchase a grouping of a certain number of sales units whether the latter is sold as such to the final user or consumer or whether it serves only as a means to replenish the shelves at the point of sale; it can be removed from the product without affecting its characteristics;
(c) transport packaging or tertiary packaging, i.e. packaging conceived so as to facilitate handling and transport of a number of sales units or grouped packagings in order to prevent physical handling and transport damage. Transport packaging does not include road, rail, ship and air containers….
This definitional article then continues with references to an illustrative Annex and an update of this Annex by way of comitology. Any such measures are adopted in accordance with the regulatory procedure with scrutiny, resulting in a new, 2013 Annex 1 to the Directive adopted by the Commission in February 2013, which specifically refers to rolls. At issue in the case was therefore whether the EC had acted ultra vires in that annex (which it had adopted ‘alone’ since the committee established by Article 21 of Directive 94/62 did not deliver an opinion and the Council did not take any decision on the Commission’s proposal).
The Court confirms that roll cores meet entirely with the core definition of the Directive: they protect from the inside the flexible products wound around them, which strengthens those products, allowing their presentation and facilitating their transport and use. A roll core is, moreover, a ‘non-returnable’ item, within the meaning of the second sentence of the first subparagraph of Article 3(1), once the flexible product wound around it has been used up.
A storm in a tea-cup therefore and rolls confirmed as packaging.
(Handbook of EU Waste law, second ed. OUP 2015, Chapter 4).