EU Waste Law

When faced with litigation somehow involving waste, the courts of a Member State will not normally enforce the EU law as such. The EU waste law instruments, as well as other EU environmental law and a significant part of the EU law in general, takes the form of Directives, that normally would have been transposed into national law. As a result, disputes brought before a national court will be based on, and argued with respect to, the national law transposing the EU legislation.

There are of course situations where it is indeed the EU law as such which is relied upon in a national court, such as where a Directive has not been transposed, where a national provision transposing the EU law must be interpreted or where its legality is challenged under the EU law. However, this is not the most likely situation. For the purposes of this Chapter, there will be no distinction made as to whether it is formally an EU or a national legal provision incorporating such EU provision into national law which is formally relied upon.

At least one question may be raised in pretty much all possible types of legal disputes involving waste: that question is precisely whether the substance or object (the subject-matter of the dispute) is to be characterised as waste or not. As was seen in Chapter II, litigation involving the characterisation of waste has been very steadily defined over the years. It should thus be expected that, at least in a vast majority of cases where waste legislation is relied upon, one of the parties, generally the defendant, will make an attempt to avoid the application of such legislation altogether by arguing that there was no waste involved. The diversity of situations of this kind was illustrated above and it is easily understandable that a court, be it the Court of Justice or a court of a Member State, will sometimes find it difficult to ascertain whether the holder of a substance or of an object discards it or intends or is required to discard it - and thus whether that substance or object is indeed waste. Likewise, it is still quite often argued that a substance or an object should not be deemed waste because it is susceptible of economic reuse. While such a legal issue has been clarified to a large extent by the EU and national case-law, the development of such limitations to the legal category of waste as those concerning by-products and products obtained out of recovered waste has opened the door to new uncertainties, especially following the adoption of the current Waste Framework Directive. The case-law mentioned in Chapter II illustrates the diversity of waste characterisation issues which may be brought before a Member State’s court as they are not different from those which had to be resolved by the Court of Justice of the European Union (hereinafter – CJEU).

Other litigation in the national courts involving waste law may relate to the EU waste legislation either directly or indirectly. Where litigation in national courts directly relates to the EU legislation properly said, one of the provisions of the waste directives or regulations mentioned in previous Chapters is in itself formally relied upon by the Parties as the basis for the lawsuit or as a decisive legal argument (§1). However, there are many cases where waste legislation comes up within a legal dispute not as a claim on a very legal basis or as a main, self-standing, legal argument, but in the context of the application of some other EU environmental law instrument, i.e., in an indirect way (§2).