EU waste legislation as main claim basis or argument
Administrative practice
As waste law involves a great deal of public policy, it should not come as a surprise that it gives rise to the largest number of administrative litigation cases before the courts of the Member States (A). However, for that very same reason, sanctions are to be applied when waste law is breached, and it therefore also triggers significant criminal practice (B). Lastly, although to a less significant extent, one notices a surge in civil and commercial practice involving waste law (C).
Administrative practice
Many cases deal with the authorisation or permit to conduct some activity in relation to waste. Oftentimes, the permit to operate a landfill, an incinerator, or some other waste treatment facility, is refused by the competent authority, or the terms and conditions thereof are found to be too drastic by the operator, who therefore brings a challenge against such an administrative decision in the court of competent jurisdiction. Conversely, many such permits are challenged by members of the public, either neighbours of the facility or NGOs, precisely because of the very fact that they were granted or that they are felt not to be demanding enough on the facilities’ operation.
Imports and exports of waste may lead to similar debates under the Waste Shipment Regulation. On the one hand, the holder of waste who purports to ship it over borders will challenge an administrative decision denying such an operation while, on the opposite, members of the public will find such a decision inappropriate.
In recent years, more specific and innovative types of administrative practice have arisen. For example, the approval of a waste management system implemented for the purpose of complying with legislation implementing Extended Producer Responsibility may be withheld by the competent authority or subjected to more drastic requirements than what its would-be operator would have wished, and the said would-be operator would challenge such administrative decision. In some other cases, national law may impose some penalties as enticement to take part in such a collective waste management system, e.g. by requiring the payment of a tax from producers who do not participate, and this may be challenged on the basis that such tax does not comply with the requirements of the applicable EPR Directives (Packaging and packaging waste Directive, WEEE Directive and ELVs Directive) – and with internal market law as well, but this is a different story (see, 2. EU waste legislation as an indirect basis or argument in litigation).