Definition of “waste”, “by-product”, “end-of-waste status”
The concept of waste
The concept of waste is extensive, and this leads to ever renewed disputes.
The dereliction of waste: essential characterisation criteria
The concept of waste constitutes the cornerstone of legislation in this area because the scope of the Directive is defined through this concept in a non-limitative way. Waste is defined as a “substance or object which the holder discards or intends to or is required to discard” (Article 3 (1)).
The European Commission establishes, and revises on a regular basis, a list of wastes named the “European Waste Catalogue”. However, it merely provides a reference classification, a nomenclature. Substances and objects listed in this nomenclature, as well as on national listings which happen to also exist, only qualify as waste in consideration of the action, the intent or the duty of the holder to discard them (Case C-208/04 Inter-environnement Wallonie v. Région wallonne). According to the Court, “the scope of the meaning of ‘waste’ depends on the meaning of the verb ‘to discard’”, and that verb must be interpreted in the light of the aim of the Directive, but “no decisive criteria is, however, suggested by such a Directive other than the holder’s intention to or action of discarding a given substance or object (Case C-457/02 Antonio Niselli, §33-34). The legal category of waste thus triggered the most significant difficulties of interpretation.
For instance, the concept of waste does not exclude substances and objects suitable for economic reuse. Goods such as waste oils (Case C-172/82 Syndicat national des fabricants raffineurs d'huile de graissage and others v Groupement d'intérêt économique "Inter-Huiles" and others; Case C-295/82 Groupement d'Intérêt Economique "Rhône-Alpes Huiles" and others v Syndicat National des Fabricants Raffineurs d'Huile de Graissage and others; Case C-240/83 Procureur de la République v Association de défense des brûleurs d'huiles usagées (ADBHU)) or waste of animal origin (albeit they may be purchased at “minimal” price, see Case C-118/86 Openbaar Ministerie v Nertsvoederfabriek Nederland BV), suitable for economic transactions, may be deemed waste. Conversely, a gasoil cargo accidentally mixed-up with another substance shall not be deemed waste provided that its holder really intends to put it back on the market (Criminal proceedings against Shell Nederland Verkoopmaatschappij BV (C-241/12) and Belgian Shell NV (C-242/12) (joined cases); Joined Cases C-304/94, C-330/94, C-342/94 and C-224/95, criminal proceedings against Euro Tombesi and others). The fact that waste may retain commercial value and be collected on a commercial basis for the purposes of recycling or reuse is without impact on its characterisation. The obligation to discard goods likewise brings about their characterisation as waste. The much publicised matter of the exportation of the hull of the former aircraft carrier Clémenceau for the purpose of dismantling was resolved on the legal side by its characterisation as waste because it contained asbestos fibre, and the use of asbestos fibre was prohibited in France.
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 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.).
Of those three rulings, only that on the heavy fuel oil of the Erika seems to have kept some relevance since, 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)) as well as all waste waters (Article 2 (a)), and not only those which are not “liquid waste”, as was the case under the former Directive.