Posts Tagged WFD
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.
Slowdown of recovery is not ‘environmental damage’ under the EU Directive. The High Court in Anglers’ Society.
R (Seiont, Gwyrfai and Llyfni Anglers’ Society) v Natural Resources Wales has a long history. That’s not meant to be a fairy tale opening: it actually has legal relevance.
Article 2(2) of the environmental liability Directive provides the following definition: “ ‘damage’ means a measurable adverse change in a natural resource or measurable impairment of a natural resource service which may occur directly or indirectly.” ‘Environmental damage’ is further defined in Article 2(1), providing a variety of layers which need ‘unpacking’ in the words of Hickinbottom J. He concludes, after lengthy and instructive analysis, that “damage” as defined in article 2(2) of the EL Directive is restricted to a deterioration in the environmental situation, and does not in addition include the prevention of an existing, already damaged environmental state from achieving a level which is acceptable in environmental terms – or a deceleration in such achievement. Since “environmental damage” is a subset of “damage”; “environmental damage” necessarily has that same restriction.
The judgment is very considered and there is not much point in repeating it here: please refer to the text for a thorough read on the ELD, the water framework Directive, habitats and much more.
In 2008, the Waste Framework Directive was amended (Directive 2008/98) among others to give Member States more leeway in restricting exports of municipal waste.
Article 16(1) WFD now provides
‘1. Member States shall take appropriate measures, in cooperation with other Member States where this is necessary or advisable, to establish an integrated and adequate network of waste disposal installations and of installations for the recovery of mixed municipal waste collected from private households, including where such collection also covers such waste from other producers, taking into account best available techniques.
By way of derogation from Regulation (EC) No 1013/2006, Member States may, in order to protect their network, limit incoming shipments of waste destined to incinerators that are classified as recovery, where it has been established that such shipments would result in national waste having to be disposed of or waste having to be treated in a way that is not consistent with their waste management plans. Member States shall notify the Commission of any such decision. Member States may also limit outgoing shipments of waste on environmental grounds as set out in Regulation (EC) No 1013/2006.‘
The waste at issue is also known as ‘household’ or ‘domestic’ waste. It is not precisely defined in the WFD, although there are various indications pointing to the origin of the waste being relevant: municipal waste is waste collected from private households. (Things are confused by waste collected from industry sometimes being assimilated with ‘household’ waste, namely when its composition is considered ‘similar’; here of course confusion enters. For domestic waste itself would seem to be defined not by its composition but rather by its origin (even though that origin often betrays its composition)).
In Italcave, the Italian Council of State held on the categorisation of waste originating from shredding, sifting and packaging plants (also known as STIR). Thank you to Lucciano Butti for alerting me to the case.
This is where my input ends, I fear: I should like to hear from those possessing knowledge of Italian beyond my limited, summer holiday driven capabilities (and shall update this posting accordingly). From what I understand, the treatment of the waste was relevant in determining the issue however nature of that treatment, and the wastes’ origin and composition is at this stage not entirely clear to me.
JÄÄSKINEN AG in Shell: Re-blended fuel was discarded. Waste status of off-spec and reverse logistics products remains uncertain.
I have reported earlier on the importance of the judicial review in Shell. JÄÄSKINEN AG this morning opined that A consignment consisting of fuel which the vendor takes back and processes through blending with a view to placing it back on the market, because the fuel had been unintentionally mixed with a substance and therefore no longer satisfies safety requirements so that it could not be stored by the buyer pursuant to an environmental permit, must be considered as waste
The Advocate-General’s Opinion was very much focused on the factual aspects of the case. Disappointingly, he did not much entertain many of the criteria suggested by the court at Rotterdam – for reasons of judicial economy, one imagines. However Advocate Generals do often get carried away on the analysis. A pitty that did not happen here. Core to the AG’s Opinion is his finding (at 25) that
re-blending of the fuel before its resale, in my opinion, points towards an intention to discard it, and the act of re-blending itself amounts to recovery;
With respect to the contractual context, the AG notes (at 26) that the fact that the contaminated fuel was ‘off-spec’ in relation to the specifications appearing in the contract between Shell and Carens is irrelevant to determining whether it amounts to waste under mandatory EU waste law, the latter being of a public law nature and not subject to the will of the parties to a contract.
While I am of the view that the contract cannot singlehandedly determine the qualification or not as waste, its (seemingly at least) outright dismissal by the AG as a factor to consider (at least in this para), is disappointing. It is not, I submit, in line with the WFD. Neither arguably is the link which the AG makes at 14 (and in his final Opinion) between an environmental permit, and the qualification of the substance as waste. Ad absurdum: a stolen tanker full of diesel is left for re-sale in a rented garage. The garage has not been given a permit for storage of diesel. Yet the diesel has not turned into waste.
With respect to the overall debate on reverse logistics, there is an interesting section in the Opinion at 37: ‘a consignment consisting of ULSD mixed unintentionally with MTBE and having as a result a flame point lower than allowed for diesel sold from the pump becomes waste within the meaning of Article 1(1)(a) of Directive 2006/12 at the point of contamination, and remains as such up to its recovery by blending or by its commercial re-classification in a manner that is objectively ascertainable.‘[emphasis added by me]. This latter part does open room for products re-sent across the logistics chain not to be considered waste, however there needs to be some kind of ‘objectively ascertainable’ re-classification: this requires some thinking in terms of compliance.
The AG makes the following comparison at 40:
I would like to close by emphasising that mere failure to fulfil agreed contractual specifications does not, as such, mean that a substance or product is necessarily to be considered as waste. If a trader delivers to a restaurant minced meat that is a mixture of beef and horse, instead of pure beef as agreed between the parties, he may be contractually obliged to accept return of the delivery without it thereby becoming waste. However, if the product results from accidental contamination of beef with horse meat during the processing of minced meat, he has an obligation to discard the minced meat up and until its precise characteristics have been ascertained and the minced meat is either disposed of or commercially reclassified, for example, as feed for minks, or as a beef-horse meat mixture for human consumption, provided it satisfies the relevant requirements under food-stuffs regulations. More generally, a non-intentionally manufactured mixture of compound is prima facie waste if the use to which it is intended to be put is not safe, in the absence of knowledge of its composition. This applies to products such as food or fuel whose qualities are important to human health and the environment.
In this section, therefore, the contractual context between parties to a transaction, does seem to enter the train of thought when deciding on the waste status of an off-spec or reverse logistics product.
The ink on the Opinion is literally still drying and undoubtedly there are more angles to it than I report above. However I for one should like the ECJ to state something more unequivocal on the impact of the contractual context, when it delivers its judgment presumably in the autumn.