EU Waste Law

Civil and commercial courts are also sometimes confronted to waste law issues, and this will only increase with time.

The unlawful dumping or storage of waste on a piece of property can be detrimental to the environment at large, within and without such site. While this would be more often than not be a situation for administrative practice, it can be also detrimental to the neighbours or to a tenant or an acquirer of the piece of land in question, not to mention workers employed on that site. This obviously can give rise to a number of claims be it based on the applicable municipal property law, sales law, or civil liability law. In such a situation, the violation of waste law will allow the court to characterise the nuisance or trouble du voisinage, the defectiveness or non-compliance of the piece of real estate that was conveyed, or the fault or negligence of the owner or holder of the land vis-a-vis its neighbours.

There may be unfair competition issues triggered by the waste law. For example, where a producer does not comply with its obligations under Extended Producer Responsibility legal requirements, a phenomenon economists have described as that of the “free-rider”, its competitors may have a civil claim for damages, or even for injunctive relief, against him. One example of this is where there is a dispute as to whether certain type of equipment constitutes EEE or not under the WEEE Directive, or whether some part of a product should be deemed packaging under the Packaging and Packaging Waste Directive or whether it just happens to be part of the product. This may be raised as a defence by the defendant producer which is depicted as benefiting from the claimant’s contribution to a waste management system without contributing itself to such a system.

Bankruptcy practice may also incorporate the waste law when it comes to closing an industrial facility or terminating an operation, and having to deal with the waste left on site. The issue here for the bankruptcy organs is to find a potentially responsible person who is going to bear the costs of the clean-up of the site where the bankrupt estate cannot face what would otherwise have been its obligations. Bankruptcy courts have to deal with waste law considerations when seeking such a solvent contributor, turning to the successive holder of the waste, the owner of the site or even the producer of the product where the waste came from. For example, where neither the last operator, nor successive former operators, of a service station is able to face such clean-up obligations, the issue may arise of whether the oil company that provided the hydrocarbons that leaked and maintained the storage installations has engaged its liability under the Waste Framework Directive’s relevant provisions.