Combatting waste crime

A number of Directives provide for the extended responsibility of producers (“Extended Producer Responsibility” or “EPR”), defined by the OECD as “an environmental policy approach in which a producer’s responsibility for a product is extended to the post-consumer stage of a product’s life cycle”. While the Waste Framework Directive provides that it is for the Member States to decide whether the producer of a product “has extended producer responsibility”, the implementation of EPR is indeed organised at various levels by the Directive on batteries and accumulators, the Directive on packaging and packaging waste, the Directive on end-of-life vehicles (better known as the “ELV Directive”), and the Directive on waste electrical and electronic equipment (generally referred to as the “WEEE Directive”). Those Directives primarily rely on the imposition of recovery and recycling targets on the Member States for the concerned end-of-life products. The Directives, however, afford the Member States a large discretion as to the ways of reaching those targets: primarily, by enticing the implementation of individual or, much more frequently, collective waste management systems, by the producers. The local public authorities are thus relieved of the burden of those types of waste, and the producers are encouraged to minimise their collection and recovery costs through eco-design.

In addition to the above general rules applicable to waste and hazardous waste and to the EPR Directives, there are specific provisions for certain activities, whether in relation to the type of waste management operation in question. Incineration is regulated by Directive 2010/75 on industrial emissions (“IED Directive”), which requires the prior authorisation of waste incineration and co-incineration plants, as well as their surveillance and monitoring. Disposal in landfills is the subject-matter of the Directive 1999/31 on the landfill of waste (“Landfill Directive”), which organises a comparable legal regime. Transboundary shipments are subject to Regulation (EC) No 1013/2006 on shipments of waste (“Waste Shipment Regulation”), which primarily purports to impellent the provisions of the above-mentioned Basel Convention, with some additional features dealing with transfers between Member States and even within Member States. Other Directives are related to specific main economic activities, such as Directive 86/278 of 12 June 1986 (on the protection of the environment and in particular of the soil, when sewage sludge is used in agriculture [1986] OJ L 181/6), or Directive 96/59 of 16 September 1996 (on the disposal of polychlorinated biphenyls and polychlorinated terphenyls (PCB/PCT) [1996] OJ L 243/31). Two more recent Directives are notable because of the difficulties raised by their implementation and the current importance of the problems they address: Directive 2006/21 on the management of waste from extractive activities (“Extractive Waste Directive”) and Regulation (EU) No 1257/2013 on ship recycling (“Ship Recycling Regulation”), respectively. The latter will be analysed in a following sub-section.

When faced with litigation somehow involving waste, the courts of a Member State will not normally enforce the EU law as such, but the national law which has transposed the corresponding EU legislation. In most cases, irrespective of the type of litigation considered, be it administrative, criminal, or civil and commercial, a primary issue is that of deciding whether the considered substance or object should be characterised as waste. Litigation in national courts may directly relate to EU legislation properly said, i.e. where one of the provisions of the waste directives or regulations mentioned above is in itself formally relied upon by the parties as the basis for the lawsuit or as a decisive legal argument. In addition, there are many cases where waste legislation comes up within a legal dispute not as a claim’s very legal basis or as a main, self-standing, legal argument, but in the context of the application of some other EU environmental law instruments.