The waste hierarchy and waste management

When developing and implementing waste law and policy, the Member States must be guided by the priority order of what constitutes the best overall environmental option established through the so-called waste hierarchy. Top priority shall be given to prevention, followed by preparing for re-use, recycling, and other recovery, including energy recovery. Least desirable is disposal.

‘Prevention’ covers measures taken before a substance, material, or product has become waste, and which reduce the quantity of waste, the adverse impacts of the generated waste on the environment and human health, or the content of harmful substances in materials and products. ‘Re-use’ refers to any operation by which products or components that are not waste are used again for the same purpose for which they were conceived, whereas ‘recovery’ is any operation the principal result of which is waste serving a useful purpose by replacing other materials which would otherwise have been used to fulfil a particular function, or waste being prepared to fulfil that function. A non-exhaustive list of recovery operations can be found in Annex II. Among these are use principally as a fuel or other means to generate energy,i⁸ land treatment resulting in benefit to agriculture or ecological improvement, and recycling/reclamation of metals and metal compounds. ‘Recycling’ is any recovery operation by which waste materials are reprocessed into products, materials, or substances whether for the original or other purposes. Any operation which is not recovery is defined as ‘disposal’ even if it has as a secondary consequence the reclamation of substances or energy. The non-exhaustive list of disposal operations set out in Annex I includes, inter alia, deposit into or on to land, release into a water body, and incineration on land or at sea.

Specific waste streams may depart from the hierarchy when that is justified by life-cycle thinking on the overall impacts of the generation and management of such waste. (Arts 3 and 4.)

There is a general requirement that waste management shall be carried out without endangering human health or harming the environment. In particular it shall be without risk to water, air, soil, plants, or animals; without causing a nuisance through noise or odours; and without adversely affecting the countryside or places of special interest. (Art 13.)

The Court of Justice has found an almost identical provision in an earlier directive to be neither unconditional nor sufficiently precise to confer rights on which individuals may rely against the State, that is, lacking direct effect.^{[1] [2]} In fact, it is quite hard to conceive how waste management, that is, collection, transport, recovery, and disposal of waste, could be carried out without even a risk to water and soil and without causing nuisance.

In addition to the waste hierarchy, the FDW contains more concrete provisions on waste prevention, reuse, and recovery. Member States are generally required to take the necessary measures to ensure that waste undergoes recovery operations. Where necessary to facilitate or improve recovery, waste shall be collected separately if technically, environmentally, and economically practicable, and shall not be mixed with other waste or other material with different properties. Member States also shall take measures, as appropriate, to promote the re-use of products and preparation for re-use activities, notably by encouraging the establishment and support of re-use and repair networks, the use of economic instruments, procurement criteria, quantitative objectives, or other measures.

More specifically, the Member States shall take the necessary measures designed to achieve specific targets, including that by 2020 the preparation for re-use and the recycling of at least waste paper, metal, plastic, and glass from households shall be increased to a minimum of overall 50 per cent by weight^⁰ (Arts 10 and 11.)

The production of environmentally safe compost and other bio-waste based materials is to be promoted by encouraging the separate collection and proper treatment of bio-waste (Art 22).

Throughout the years the FDW has given rise to a large number of cases before the Court of Justice. The problem has predominantly been with the definition of waste and hence the applicability of waste legislation. Some of the more significant points in this chain of case law should be mentioned here. In 1990 the Court of Justice made clear that substances and objects which are capable of economic reutilisation are not excluded from the concept of wasted¹ That something has a positive value (ie someone is willing to pay for it) does not in itself prevent it from being classified as waste. In 1997, in Inter-Environnement Wallonie, the Court concluded that the scope of the term ‘waste’ turns on the meaning of the term ‘discard’, which covers both disposal and recovery of a substance or object.22 In ARCO Chemie Nederland the Court of Justice went on to state that ‘discard’ must be interpreted in light of the aim of the FDW and that the concept of waste cannot be interpreted restrictively.2³ The Court also found that the method of treatment or use of a substance does not determine conclusively whether or not it is to be classified as waste. The mere fact that a substance undergoes a recovery operation does, for example, not necessarily mean that it has been discarded. It may, however, serve to indicate the existence of waste. That something is commonly regarded as waste or is subject to treatment that is a common method of recovering waste may also be taken as evidence that the holder has discarded that substance or intends or is required to discard it. The fact that an object or substance is not, or is no longer, of any use to its holder but rather constitutes a burden may also constitute such evidence. In the end, however, waste within the meaning of the FDW must be determined in the light of all the circumstances, regard being had to the aim of the Directive and the need to ensure that its effectiveness is not underminedTh

Discarding does not even have to involve an intentional act. The Court of Justice has, for example, found the escape of waste water from a sewerage network to constitute an event by which the sewerage undertaker discards it.2⁵ Hydrocarbons accidentally spilled at sea following a shipwreck have also been deemed to have been (involuntarily) discarded^⁶ Typically, however, the determination of whether something is discarded is closely linked to the actions of the holder of the waste.2⁷ The definition of waste clearly involves a trade-off between clarity and legal certainty on the one hand, and the desire to cover all situations in which there is a ^{[3] [4] [5] [6] [7] [8] [9]}

significant risk that an object or substance will be handled in a way that is contrary to the objectives of the waste legislation on the other.

• [1] Case C-236/92 Comitato di Coordinamento per la Difesa della Cava and Others ECLI:EU:C:1994:60, para 14.
• [2] As part of the Circular Economy Package the Commission has proposed additional targets, including that by 2025, the preparing for re-use and the recycling of municipal waste shall be increasedto a minimum of 60 per cent by weight and that by 2030, the preparing for re-use and the recyclingof municipal waste shall be increased to a minimum of 65 per cent by weight. See Proposal for aDirective of the European Parliament and of the Council amending Directive 2008/98/EC on waste(2 December 2015) COM(2015) 595 final, 18.
• [3] Joined cases C-206/88 and C-207/88 Vessoso andZanetti ECLI:EU:C:1989:644.
• [4] Case C-129/96 Inter-Environnement Wallonie EU:C:1997:628, paras 26—27.
• [5] Joined Cases C-418/97 andC-419/97 ARCO ChemieNederlandand OthersECLI:EU:C:2000:318,paras 37 and 40.
• [6] 24 Ibid, paras 49, 64, and 73, and Joined Cases C-241/12 and C-242/12 Shell NetherlandsEU:C:2013:821, paras 41 and 42. For a more detailed list of factors which, according to the applicablecase law, should be taken into consideration in the determination of waste status see N de Sadeleer,‘Scrap Metal Intended for Metal Production: The Thin Line between Waste and Products’ (2012) 9Journal for European Environmental & Planning Law 136—63, 144—5.
• [7] Case C-252/05 Thames Water Utilities ECLI:EU:C:2007:276, para 28.
• [8] 26 CaseC-188/07 Commune deMesquer ECLI:EU:C:2008:359, para 63.
• [9] Joined Cases C-241/12 and C-242/12 Shell Netherlands (n 24), para 37.