The concept of waste
An extensive jurisprudential interpretation partly contradicted
Difficulties in the characterisation of waste culminated with the Van de Walle matter in which the Court of Justice ruled that the holder of hydrocarbons which contaminate the underground soil and waters beneath a service-station discards them and that the contaminated soil is also waste even if it has not been excavated (Case C-1/03 Criminal proceedings against Paul Van de Walle, Daniel Laurent, Thierry Mersch and Texaco Belgium SA.). By the same token, waste water which escapes from Thames Water Utilities’ sewerage network is waste (Case C-252/05 The Queen on the application of Thames Water Utilities Ltd v South East London Division, Bromley Magistrates' Court), as well as the fuel oil spilled from the torn-apart hull of the oil tanker Erika that got mixed-up with salt water and sand (Case C-188/07 Commune de Mesquer v Total France SA and Total International Ltd.).
By reaction to this line of case-law, Directive 2008/98 excludes from its scope “land (in situ) including unexcavated contaminated soil and buildings permanently connected with land” (Article 2 (1)). It also excludes, to the extent that they are covered by other Community legislation, waste waters (Article 2 (2)), and no longer only those which are not “liquid waste”, as was the case under the former Directive.