Combatting waste crime

The responsibilities of the economic agents involved are reinforced by the principle of Extended Producer Liability.

Responsibilities with respect to waste management in general
The primary responsibility of waste holders is to hand waste over to private or public waste collectors or dealers, unless the holders themselves are an establishment or undertaking which carries out waste treatment operations in compliance with applicable rules (Articles 13 and 15(1)). However, the same responsibility as the waste holder’s also applies to the “waste producer or other holder” (Article 15(1)) and this irrespective of whether such a person has the waste in its possession or not (Articles 3(5) and 3(6))! It should be stressed that, at this stage of the reasoning, the “waste producer” in question is not the producer of the product from which the waste came, but rather, according to the Directives’ own words, “anyone whose activities produce waste (original waste producer)” (Article 3(5)).

However, Member States may decide “that the responsibility for arranging waste management is to be borne partly or wholly by the producer of the product from which the waste came and that distributors of such a product may share this responsibility” (Article 15(3)).

The roles of previous holders, of the waste producer, and even of the producer of the product from which the waste came, are often important, especially when the last holder of the waste defaults. For instance, where the current holder is insolvent, it is traditional to look for a potentially responsible person. Directive 2008/98 provides that “in accordance with the polluter-pays principle, the cost of waste management shall be borne by the original waste producer or by the current or previous waste holders” (Article 14(1)). In contrast, it leaves it to the Member States to decide whether such costs “are to be borne partly or wholly by the producer of the product from which the waste came” and whether the distributors of such product “may share this cost” (Article 14(2)).

The current legal situation so described is quite regressive as compared to prior law from the point of view of the quest for a solvent potentially responsible person. The Court of Justice had decided under the former Directive (i.e., Directive 75/442) that, where the poor condition of a service-station’s storage facilities and the leak of hydrocarbons therefrom can be attributed to a disregard of contractual obligations by the petroleum undertaking which supplies that service-station or to actions which could render that oil company liable, its activities could be considered to “have produced waste” resulting from the soil and groundwater contamination. The Court of Justice relied on the provision of the former Directive which explicitly referred in such a case to the principle “polluter-pays” (Case C-1/03 Criminal proceedings against Paul Van de Walle, Daniel Laurent, Thierry Mersch and Texaco Belgium SA., §60-61). The Court of Justice even pushed that same underlying logic one step further in the Erika case with respect to hydrocarbons that had spilled at sea by accident: it ruled that the person who sold the goods to the final consignee and for that purpose chartered the ship which sank also produced the waste and that this person contributed by its conduct to the risk that the pollution caused by the ship wreck would occur (Case C-188/07 Commune de Mesquer v Total France SA and Total International Ltd., §73-82).