Commission v United Kingdom (Environment and consumers) [2004] EUECJ C-62/03 (16 December 2004)

Judgment By its application, the Commission of the European Communities asks the Court to declare that, by failing to take the measures necessary to comply with its obligations under Articles 1(a), (e) and (f), 2(1)(b), 3, 4, 5, 7, 8, 12, 13 and 14 of Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39), as amended by Council Directive 91/156/EEC of 18 March 1991 (OJ 1991 L 78, p. 32), and, most recently, by Commission Decision 96/350/EC of 24 May 1996 (OJ 1996 L 135, p. 32) (-�Directive 75/442-�), the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under that directive and under the EC Treaty. Legal framework Community legislation Directive 75/442 aims to approximate the laws of the Member States in the field of waste management. In particular, Articles 1 and 2 state: -�Article 1 For the purposes of this Directive: (a) -�waste-� shall mean any substance or object in the categories set out in Annex I which the holder discards or intends or is required to discard. The Commission, acting in accordance with the procedure laid down in Article 18, will draw up, not later than 1 April 1993, a list of wastes belonging to the categories listed in Annex I. This list will be periodically reviewed and, if necessary, revised by the same procedure; (b) -�producer-� shall mean anyone whose activities produce waste (-�original producer-�) and/or anyone who carries out pre-processing, mixing or other operations resulting in a change in the nature or composition of this waste; (c) -�holder-� shall mean the producer of the waste or the natural or legal person who is in possession of it; (d) -�management-� shall mean the collection, transport, recovery and disposal of waste, including the supervision of such operations and after-care of disposal sites; (e) -�disposal-� shall mean any of the operations provided for in Annex II A; (f) -�recovery-� shall mean any of the operations provided for in Annex II B; (g) -�collection-� shall mean the gathering, sorting and/or mixing of waste for the purpose of transport. Article 2 1. The following shall be excluded from the scope of this Directive: (a) gaseous effluents emitted into the atmosphere; (b) where they are already covered by other legislation: (i) radioactive waste; (ii) waste resulting from prospecting, extraction, treatment and storage of mineral resources and the working of quarries; (iii) animal carcases and the following agricultural waste: faecal matter and other natural, non-dangerous substances used in farming; (iv) waste waters, with the exception of waste in liquid form; (v) decommissioned explosives. 2. Specific rules for particular instances or supplementing those of this Directive on the management of particular categories of waste may be laid down by means of individual Directives.-� National legislation The United Kingdom has adopted a number of legislative provisions for the purposes of transposing Directive 75/442. These relate to Great Britain, Northern Ireland and Gibraltar. Pre-litigation procedure Since it considered that the measures adopted by the United Kingdom revealed inconsistencies and contained gaps in relation to the requirements of Directive 75/442, the Commission so informed the national authorities by letter of 20 January 1999. Following a reply from those authorities and having specified those matters in respect of which it considered there to have been inadequate transposition, by letter of 8 November 2000, the Commission called upon the Member State concerned to submit its observations pursuant to the first paragraph of Article 226 EC. The United Kingdom authorities replied by letter of 28 February 2001. Since it considered that reply to be unsatisfactory, the Commission sent a reasoned opinion to the United Kingdom on 24 July 2001, requesting it to take the measures necessary to comply within a period of two months from the date of its notification. By letter of 10 December 2001, the United Kingdom authorities acknowledged that the national legislation was inadequate in certain respects and stated that it would be amended shortly, although the outbreak of foot-and-mouth disease and waste disposal implications had delayed the drawing up of that legislation. On the other hand, those authorities contested other aspects of the Commission-�s reasoning. It was in those circumstances that the Commission decided to bring the present action. The action Failure to take account of Article 1(a) of Directive 75/442 The Commission states that the legislation applicable in Great Britain contains the same definition of waste as that in Article 1(a) of the directive, namely -�any substance or object -� which the holder discards or intends to discard or is required to discard-�. However, the provisions intended to implement the Directive-�s obligations apply only to a narrower category, that of -�controlled waste-�, defined in Section 75(4) of the Environmental Protection Act 1990 as -�household, industrial and commercial waste or any such waste-�. The same is true of the legislation applicable to Northern Ireland. Consequently, the Directive-�s obligations have not been implemented for waste other than -�controlled-� waste. The United Kingdom Government argues that, apart from waste from premises used for agriculture and from any mine or quarry, all waste satisfying the definition of Directive 75/442 falls within one or other category of -�controlled waste-�. Those categories reflect the distribution of powers between various authorities in the field of waste management and have ensured efficient waste management in the United Kingdom. While it is true that during the pre-litigation procedure the United Kingdom authorities accepted that the general exclusion of waste from premises used for agriculture and from any mine or quarry was too broad in the light of the derogations permitted under Article 2 of Directive 75/442, that has no effect on the general definition of waste set out in national legislation and on the fact that the waste which is thereby classified as -�controlled-� corresponds to the waste referred to in the directive. The Commission-�s complaint must be upheld. Article 1(a) of Directive 75/442 not only provides the definition of waste for the purposes of the directive but also determines, in conjunction with Article 2(1), its scope. Article 2(1) states which types of waste are or may be excluded from the scope of the directive and in what circumstances such exclusion may occur, whereas in principle all waste specified in Article 1(a) is included in the directive. Accordingly, any provision of national law which limits generally the extent of the obligations arising under Directive 75/442 to a greater degree than those permitted under Article 2(1) is necessarily disregarding its scope under Article 1(a). In the present case, the United Kingdom Government has itself acknowledged that the definition of waste which is not -�controlled-� waste goes beyond what is permitted by Article 2(1) of Directive 75/442. The above findings do not prohibit a Member State from defining different categories of waste in national law, in particular to facilitate the organisation and control of waste management, provided that the obligations arising under Directive 75/442 or other provisions of Community law relating to such waste are complied with and that any categories that may be excluded from the application of legislation enacted to meet obligations under Directive 75/442 are so excluded in compliance with Article 2(1) of the directive. The United Kingdom has therefore failed to fulfil its obligations under Article 1(a) of Directive 75/442. Failure to take account of Article 1(e) and (f) of Directive 75/442 The Commission notes that those provisions define the disposal of waste as any of the operations provided for in Annex II A to Directive 75/442 and its recovery as any of the operations provided for in Annex II B thereto. However, the national legislation was not adapted in sufficient time following the amendment of those annexes by Decision 96/350, as the United Kingdom authorities acknowledge. The additions to or redefinitions of the categories set out in Annexes II A and II B to Directive 75/442 as adapted by Decision 96/350 may have amended the scope of certain of the obligations arising under the directive relating to the implementation of waste disposal operations or recovery of waste. In omitting to adapt its national legislation to take account of such amendments to the directive, the United Kingdom must consequently be considered to have failed to comply with the relevant provisions under the directive in their updated version. The United Kingdom has thus failed to comply with the obligations imposed on it under Article 1(e) and (f) of Directive 75/442. Failure to take account of Article 2(1)(b) of Directive 75/442 The Commission notes that Article 2(1)(b) of Directive 75/442 excludes from the scope of the directive certain categories of waste -�where they are already covered by other legislation-�. According to the Commission, contrary to the view taken by the United Kingdom authorities, the words -�other legislation-� must be interpreted as referring only to Community legislation. However, as the Court has already held, in so far as it is not a measure which implements Directive 75/442, in particular Article 11 of that directive, national legislation must also be regarded as -�other legislation-� within the meaning of Article 2(1)(b) of that directive, covering a category of waste mentioned in that provision, if it relates to the management of that waste as such, within the meaning of Article 1(d) of Directive 75/442, and if it results in a level of protection of the environment at least equivalent to that aimed at by that directive, whatever the date of its entry into force (Case C-114/01 AvestaPolarit Chrome [2003] ECR I-8725, paragraph 61). The Commission maintains in the alternative that, in any event, as regards mining and quarrying activities, the exclusion in Great Britain of all -�waste from any mine or quarry-� from the category of -�controlled waste-�, which alone is subject to the obligations resulting from Directive 75/442, is too wide in relation to the relevant category referred to in Article 2(1)(b) of the Directive, which excludes only mineral waste. According to the Commission, the United Kingdom authorities have acknowledged that fact but did not notify it of amending legislation remedying that situation in sufficient time. The United Kingdom Government states that mining and mineral waste is in fact covered by legislation which ensures control of its disposal and recovery in Great Britain, but acknowledges that this is not the case for other waste from mines and quarries. In Northern Ireland and Gibraltar, waste from mining activities and quarries is not comprehensively covered by the obligations arising under the Directive (nor are decommissioned explosives in Gibraltar), but remedial measures are being drafted or were adopted after the end of the period laid down in the reasoned opinion. Contrary to what the Commission maintains, it is clear from the wording itself of the provision at issue that the category of -�waste resulting from prospecting, extraction, treatment and storage of mineral resources and the working of quarries-� referred to in the second indent of Article 2(1)(b) of Directive 75/442 is not limited purely to mineral waste. While it is true that such a category does not cover every type of waste produced where prospection, extraction, treatment or storage of mineral resources is undertaken or where a quarry is worked, it none the less covers all waste specifically linked to those activities. That point made, the documents before the Court show that the management of certain waste from the activities of mines and quarries was not covered by measures of organisation and control in sufficient time in Great Britain, and that the same applies to the management of all waste arising from those activities in Northern Ireland and Gibraltar and to waste arising from decommissioned explosives in Gibraltar. Similarly, the Commission submits that the exclusion in Great Britain and Northern Ireland of all waste from premises used for agriculture from the category of -�controlled-� waste, which alone is subject to the obligations resulting from Directive 75/442, is too wide in relation to the relevant category set out in Article 2(1)(b) of that directive, which refers limitatively to animal carcases and the following agricultural waste: faecal matter and other natural, non-dangerous substances used in farming. The United Kingdom Government acknowledges that only animal carcases, which are, moreover, subject to Regulation (EC) No 1774/2002 of the European Parliament and of the Council of 3 October 2002 laying down health rules concerning animal by-products not intended for human consumption (OJ 2002 L 273, p. 1), may fall within the scope of the exclusion in question and states that it will remedy the situation. It thus appears that the management of a number of types of waste from premises used for agriculture in Great Britain and Northern Ireland was also covered by measures of organisation and control in sufficient time. The United Kingdom has accordingly failed to fulfil its obligations, in omitting to have regard to the scope of Article 2(1)(b) of Directive 75/442. Articles 4 and 8 of Directive 75/442 According to the Commission, Sections 33(2) and 34(2) of the Environmental Protection Act 1990, in conjunction with other provisions of national law, improperly exclude an occupier of a domestic property from obligations arising under Articles 4 and 8 of Directive 75/442 in respect of household waste produced on the property, broadly understood to refer, for example, to waste from premises occupied by a charity or from prisons, or even to septic tank sludge. As regards Northern Ireland, the same situation arises. The United Kingdom acknowledges the problem and has confirmed its intention to clarify the relevant national legislation to make it clear that holders of household waste are exempted only from certain permit requirements, in accordance with Directive 75/442. The United Kingdom Government nevertheless explains in its defence that the legislation at issue gives rise to difficulties only to the extent that it could be interpreted as not prohibiting unauthorised or harmful depositing of household waste within the curtilage of the property where it was produced. Otherwise, however, the legislation satisfies the requirements of Articles 4 and 8 of Directive 75/442. The category of household waste referred to covers only waste produced on domestic property used wholly for the purposes of living accommodation, and while that legislation does not impose waste treatment obligations on the residential occupiers themselves, those obligations are met by the public authority responsible for the collection of household waste in its area. In that regard, the Commission replies that it is not sufficient to make those public authorities responsible for these obligations, since an occupier of domestic property is still a holder of waste when he produces it. It is clear, first of all, from the very explanations given by the United Kingdom Government that the second paragraph of Article 4 of Directive 75/442, which provides that Member States are to take the necessary measures to prohibit the abandonment, dumping or uncontrolled disposal of waste, was not fully implemented in sufficient time in Great Britain and Northern Ireland in relation to household waste, as such waste is defined in the national legislation. For the rest, in so far as the Commission-�s complaint amounts to a criticism of the United Kingdom for placing the obligations arising under Articles 4 and 8 of Directive 75/442 as regards household waste produced in domestic property not on the occupiers of that property but on the public authorities, it must first be stated that the first paragraph of Article 4 provides that the Member States are to take the measures necessary to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods likely to harm the environment, and in particular without risk to water, air, soil and plants and animals, without causing a nuisance through noise or odours and without adversely affecting the countryside or places of special interest. A Member State is fully entitled to give responsibility for recovery or disposal operations in relation to a category of waste to the public authorities. Should it do so, it would be natural for it to impose the obligations referred to above on those authorities and not on the producers or previous holders of the waste. The Commission is accordingly not justified in alleging as a matter of principle that the United Kingdom has failed to fulfil its obligations under the first paragraph of Article 4 of Directive 75/442, merely because in a certain number of cases it imposes the obligations mentioned there only on the public authorities. By contrast, Article 8 of Directive 75/442 provides that Member States are to take the necessary measures to ensure that any holder of waste has it handled by a private or public waste collector or by an undertaking which carries out disposal or recovery operations or that that holder carries out those operations himself in accordance with the provisions of the directive. Accordingly, where public authorities are exclusively responsible for the collection, transport, disposal or recovery of a category of waste, the Member States must take the steps necessary to ensure that the producers or previous holders of that waste are required to hand it over to them (see, to that effect, Case C-365/97 Commission v Italy [1999] ECR I-7773 , paragraph 108). It does not appear from the documents before the Court that the legislation relating to household waste in force in Great Britain and Northern Ireland imposes such an obligation on the occupiers of domestic property. In addition, the Commission challenges Section 45(1)(a) of the Environmental Protection Act 1990 and the corresponding provision in the Northern Irish legislation, namely Section 20 of the Waste and Contaminated Land (Northern Ireland) Order 1997, which, as an exception, allows those public authorities not to collect household waste situated in isolated or inaccessible places if they are satisfied that adequate arrangements have been made or could reasonably be expected to be made by the person controlling the waste. Articles 4 and 8 of Directive 75/442 do not, in any circumstances, allow an exemption for household waste collection. The latter statement is incorrect. Article 8 of Directive 75/442, the terms of which are referred to at paragraph 29 of this judgment, in fact specifically allows for holders of waste to have the alternative either of having it handled by a waste collector or undertaking which disposes of it or recovers it, or of carrying out those operations themselves in accordance with the provisions of the directive. Accordingly, for certain specific places, a Member State may release the public authorities responsible for the collection of household waste from the obligation to collect it. That dispensation assumes, however, that the holders of that waste in such a case are obliged to have it handled by a private waste collector or by an undertaking which will dispose of it or recover it or are obliged to carry out those operations themselves under the conditions laid down in Directive 75/442, particularly as regards compliance with the conditions set out in the first paragraph of Article 4 of the directive. In that regard, it is clear from the information provided by the United Kingdom Government in reply to a question of the Court, first, that the competent authorities will only decide not to collect household waste at a place which is isolated or inaccessible if the persons concerned can themselves transport it to an appropriate treatment plant and, secondly, that those authorities have various powers at their disposal to require, where applicable, the holders of waste to manage it in accordance with the provisions of Directive 75/442. However, the Commission maintains that there is no true -�initial and general-� obligation on the holders of household waste in such places to manage it in accordance with the directive, in particular Articles 4 and 8 thereof. That is clear from the documents before the Court. In particular, as is stated at paragraph 26 of this judgment, the United Kingdom Government has acknowledged that the national legislation in force could be interpreted as not prohibiting unauthorised or harmful dumping of household waste within the curtilage of the property where it was produced. Accordingly, the conditions which allow public authorities to be released from the obligation to collect household waste in certain places are not fully satisfied. In those circumstances, the Commission is right to submit that the rules allowing for the non-application of the requirements as to the collection of household waste in Great Britain and Northern Ireland fail to comply with Articles 4 and 8 of Directive 75/442. It follows from the above that the United Kingdom has failed to fulfil its obligations under Articles 4 and 8 of that directive. Article 12 of Directive 75/442 The Commission states that at the end of the period laid down in the reasoned opinion, the legislation applicable in Northern Ireland and Gibraltar did not provide, in accordance with Article 12 of Directive 75/442, that establishments or undertakings which collect or transport waste on a professional basis or which arrange for the disposal or recovery of waste on behalf of others (dealers or brokers), where not subject to authorisation, are to be registered with the competent authorities. Only one law applying to Northern Ireland partially satisfies that requirement, as from 11 March 2000. The United Kingdom authorities subsequently notified it of legislation concerning Gibraltar, deemed adequate by the Commission, but which entered into force only on 20 February 2003, that is to say after the expiry of the period prescribed in the reasoned opinion. Furthermore, the United Kingdom Government acknowledges in its defence that the legislation concerning Northern Ireland remains to be completed. It follows from the above that the United Kingdom has failed to fulfil its obligations under Article 12 of Directive 75/442 as regards Northern Ireland and Gibraltar. Article 13 of Directive 75/442 The Commission points out that Article 13 of Directive 75/442 requires establishments or undertakings referred to in Articles 9 to 12 of the Directive and which carry out disposal or recovery operations or collect or transport waste on a professional basis or which arrange for the disposal or recovery of waste on behalf of others are to be subject to appropriate periodic inspections by the competent authorities. According to the Commission, at the end of the period laid down in the reasoned opinion, the legislation in Northern Ireland and Gibraltar did not provide for such inspections, although some measures had been announced by the United Kingdom authorities. In that regard, the latter state in their defence that the necessary legislation for Northern Ireland is in the process of being adopted. With respect to Gibraltar, legislation which came into force on 20 February 2003 implements the requirements of Article 13 of Directive 75/442. In fact, the Commission announced at the hearing that it was withdrawing its complaint as far as Gibraltar was concerned. It must none the less be held that, on the expiry of the period laid down in the reasoned opinion, the United Kingdom had not fulfilled the obligations imposed on it under Article 13 of Directive 75/442 as regards Northern Ireland. Articles 3, 4, 5, 7 and 14 of Directive 75/442 as regards Northern Ireland The Commission complains of: - the absence of national legislation placing a duty on the competent authorities to ensure that the objectives of Articles 3, 4 and 5 of Directive 75/442 are implemented, in particular with regard to the issuing of the permits referred to in Articles 9 and 10 and the requirements of Article 11 of the Directive; - the absence of a duty to draw up waste management plans in respect of disposal and recovery at sea as required by Article 7(1) of Directive 75/442; - the absence of legislation providing, in accordance with Article 14 of Directive 75/442, that -�[a]ll establishments or undertakings referred to in Articles 9 and 10 shall: - keep a record of the quantity, nature, origin and, where relevant, the destination, frequency of collection, mode of transport and treatment method in respect of the waste referred to in Annex I and the operations referred to in Annex II A or B, - make this information available, on request, to the competent authorities referred to in Article 6.-� The United Kingdom Government acknowledges that it has failed to fulfil its obligations in these respects and that amending legislation remains necessary. It is thus clear from the documents before the Court that the United Kingdom has failed to fulfil the obligations imposed on it under Articles 3, 4, 5, 7(1) and 14 of Directive 75/442. It follows from all of the above that, by failing to adopt the measures necessary to comply with its obligations under Articles 1(a), (e) and (f), 2(1)(b), 3, 4, 5, 7(1), 8, 12, 13 and 14 of Directive 75/442, the United Kingdom has failed to fulfil its obligations under that directive. Costs Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party-�s pleadings. Since the Commission has applied for costs and the United Kingdom has been unsuccessful, the latter must be ordered to pay the costs. On those grounds, the Court (Third Chamber) hereby: 1. Declares that, by failing to take the measures necessary to comply with the obligations under Articles 1(a), (e) and (f), 2(1)(b), 3, 4, 5, 7(1), 8, 12, 13 and 14 of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC of 18 March 1991 and, most recently, by Commission Decision 96/350/EC of 24 May 1996, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under that directive; 2. Orders the United Kingdom of Great Britain and Northern Ireland to pay the costs. Signatures. - Language of the case: English. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII