Posts Tagged Waste
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.
One or two of you are aware I have written a whole handbook on EU waste law. That now needs updating as a result of the publication of the adopted ‘Circular Economy package’ – although implementation dates are some time off so if you do have a copy, do not discard it just yet.
The package includes amendments to the ELV, Batteries, WEEE, Landfill, packaging and packaging waste, and waste framework Directive.
I am hoping to write a paper on the package which will summarise the developments – watch this space.
Handbook of EU Waste law, 2nd ed. 2015: all chapters 🙂 .
‘Reading’ Arica Victims v Boliden Mineral (I have a copy of the case, but not yet a link to ECLI or other database; however there’s a good uncommented summary of the judgment here] leaves me frustrated simply for my lack of understanding of Swedish. Luckily Matilda Hellstorm at Lindahl has good review here (including a hyperlink to her earlier posting which alerted me to the case in 2017).
Boliden Mineral exported toxic waste to Chile in the ’80s, prior to either Basel or EU or OECD restraints (or indeed bans) kicking in. A first issue for consideration was determination of lex causae. Rome II does not apply ratione temporis (it only applies to tortious events occurring after its date of entry into force) – residual Swedish private international law applies, which determined lex causae as lex loci damni. The Court found this to include statute of limitation. This would have been 10 years under Swedish law, and a more generous (in Matilda’s report undefined) period under Chilean law. Statute of limitation therefore following lex causae – not lex fori.
Despite this being good for claimants, the case nevertheless failed. The Swedish court found against liability (for the reasons listed in Matilda’s report). (With a small exception seemingly relating to negligence in seeing waste being uncovered). Proof of causality seems to have been the biggest factor in not finding liability.
Leave to appeal has been applied for.
(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 8.
It is too readily assumed by many that general Member States’ obligations under the EU’s environmental laws are context only, and not really legally binding. In my Handbook of EU Waste law however I report on a number of cases where the European Court of Justice has rebuked Member States for having failed to take measures to attain some of these general objectives. These cases relate to waste law, evidently, however in other cases the Court’s case-law extends this to EU environmental law generally.
One can now add C-153/16 EC v Slovenia to this list. Slovenia had attempted to address the continuation of waste tyres storage and processing at an abandoned quarry, in contravention of an expired environmental permit. The company dug in its heels, ia via prolonged litigation, with storage and processing continuing.
The Court of Justice found that Slovenia had infringed the general duty of care provisions, as well as enforcement obligations of the landfill Directive and the waste framework Directive. (On the related issues with respect to hazardous waste, the Court found the Commission’s infringement proceedings wanting).
Not all that glitters is gold, of course. The direct effect of these general duty of care provisions remains an issue, as does the absence, arguably, in EU law of a duty of care directly imposed upon waste holders and processors. For that, citisens need to pass via national law wich as current case shows, is not always up to scratch.
A quick note on second-hand goods and VAT. For my review of Bot AG’s Opinion in C-471/15 Sjelle Autogenbrug, see here. The Court held yesterday and defined (at 32) second-hand goods essentially as follows: in order to be characterised as ‘second-hand goods’, it is only necessary that the used property has maintained the functionalities it possessed when new, and that it may, therefore, be reused as it is or after repair.
The Court does not refer to EU waste law yet the impact on that area of EU law is clear.
Handbook of EU Waste Law, second ed. 2016, Chapter 1.
Sjelle Autogenbrug, second hand goods. A core tutorial on the VAT mechanism and how in law, all is connected.
In C-471/15 Sjelle Autogenbrug, Bot AG opined a few weeks ago. I find myself curiously drawn to VAT cases these days. Especially since I reported how in a VAT case, the CJEU perhaps accidentally came to a major decision on the Aarhus Convention. Also have a look for instance on how the same AG discusses ‘cultural services’ within the context of VAT (C-592/15 BFI). Or perhaps it is because I have a past (and potentially, a future) in customs duties and excise.
It is particularly interesting to ponder how terminology that is used across the board in EU law, specifically also regulatory law, is interpreted in the context of VAT. (Incidentally the Advocate General gives an excellent summary of VAT rules and why VAT can /should be set-off between traders). In the case at hand, Directive 2006/112 provides i.a. the following definition for second-hand goods: “second-hand goods” means movable tangible property that is suitable for further use as it is or after repair, other than works of art, collectors’ items or antiques and other than precious metals or precious stones as defined by the Member States;
Sjelle Autogenbrug I/S is a vehicle reuse undertaking whose main activity is the resale of used motor vehicle parts which it removes from end-of-life vehicles. It also engages in the environmental and waste treatment of end-of-life vehicles, a service for which it charges a standard price. Lastly, a lesser part of the undertaking’s overall turnover derives from the sale of scrap metal remaining after removal of the motor vehicle parts. Sjelle Autogenbrug purchases end-of-life vehicles — which are either vehicles whose lifespan has expired or total write-offs — from individuals and insurance companies who do not declare VAT on sales made. Sjelle Autogenbrug currently declares VAT pursuant to the applicable general rules. In 2010, it asked the tax authorities to apply the special margin scheme for second-hand goods to its activity of reselling used motor vehicle parts taken from end-of-life vehicles. The authorities refused.
Since the goods are reintroduced into the distribution chain, the taxable dealer is liable for VAT when he resells the goods. However, as the taxable dealer did not pay VAT when he purchased the second-hand goods from the non-taxable individual, he cannot deduct such VAT from the amount to be paid to the State, being an amount comprised exclusively of the VAT charged upon resale of those goods. This results in a lack of VAT neutrality and in the double taxation of the goods (at 26). The margin scheme was adopted to alleviate that difficulty. It aims to harmonise the rules applicable to the acquisition of new goods subject to VAT which are later resold as second-hand goods and to prevent double taxation and the distortion of competition between taxable persons in the area of second-hand goods.
The Danish government submits that the use in that provision of the words ‘as it is’ demonstrates that, in order to be classified as ‘second-hand goods’, the goods must retain their identity, which is not the case with spare parts since Sjelle Autogenbrug acquires, first of all, a complete vehicle. Furthermore, it argues that even if those spare parts could be classified as ‘second-hand goods’, it would not be possible to apply the margin scheme because the purchase price of the spare parts cannot be precisely determined.
Bot AG disagrees:
- the EU legislature did not intend to exclude goods originating from a single whole which could be separated, such as parts taken from end-of-life vehicles (at 33)
- the key factor in the classification of goods as ‘second-hand goods’ is that the used goods must retain the characteristics they had when new (at 35). He refers in this context also tho the end-of life-vehicles Directive, 2000/53, which defined ‘reuse’ as ‘any operation by which components of end-of-life vehicles are used for the same purpose for which they were conceived’. ‘Motor vehicle parts fall squarely within that definition since, even when separated from the vehicle, they retain their original characteristics as they will be reused for the same purpose in another vehicle. The fact that those parts were removed from the vehicle is therefore of little consequence.‘ (at 35)
The Advocate General further considered that were the special margin scheme not to be applied, dealers of second hand spare parts would be disfavoured vis-a-vis those dealing in new spare parts. Hardly indeed a result that would be conducive to the circular economy.
EU waste law does not employ the notion ‘second hand goods’. In practice these goods have raised all sorts of demarcation issues. Summarising all these, if one and the same good is simply passed on to ‘a second hand’, ie the original owner no longer has a use for it but it can be passed on by someone else who will employ it for its original purpose and without there being a need for treatment or processing, it should not be regarded as waste.
It is only be looking into all nooks and crannies of EU law that ambitious projects like the circular economy will be a real success. Current Opinion is a good illustration of such successful consideration.
Handbook of EU Waste Law, second ed. 2016, Chapter 1.