EU Waste Law

Waste law sometimes appears in litigation not as the main basis for a claim or as a direct argument in support to a claim or in defence against such a claim, but more as some type of a collateral consideration in the context of the application of some other legislation, be it the general EU law (A) or the environmental law other than the waste legislation (B).

Waste law considerations in the application of general EU law
The range of the general EU law provisions is extremely large, as opposed to the waste law or even the environmental law in general which may implicate only to some waste law. The most well-known type of such situation is that concerning the internal market.

As was mentioned above, the fact that objects or substances may be characterised as waste does not rule out the possibility that they maintain an economic value and, as a result, that they can also be characterised as goods for the purpose of the internal market’s fundamental freedoms, especially free movement of goods. This may give rise to delicate conflicts between environmental legislation and the internal market rules. One such issue which has arisen recently, for example, is that where a municipality having retained a waste collector pursuant to a public procurement contract instructed said waste collector to bring the waste collected on its territory to nearby waste treatment facilities. This was in the spirit of the principles of proximity and self-sufficiency akin to waste law, but raised some questions with respect to free movement of goods and services.

Likewise, for a long time there have been State aids cases with respect to projects that merely implement waste law or help doing so: subsidies to the construction and/or operation of landfills, incinerators, waste management systems for extended producer responsibility purposes, etc. Also quite relevant were some cities’ practice of collecting and arranging for the treatment of certain wastes produced by undertakings which, as the waste holders’, should have borne such costs under the waste law and the polluter pays principle, e.g., medical waste.

Furthermore, there may be some antitrust concerns, such as when producers who are competitors on the relevant market of their products cooperate to set up the collective waste management systems mandated by the relevant directives. In the same breadth, the Member States may levy taxes, for example, precisely as an enticement for producers to contribute to a collective waste management system, not to mention municipal taxes for household waste collection and treatment. Such taxes may be challenged under the relevant Treaty on the Functioning of the European Union provisions on tax measures.