The development of watertight definitions of what is or is not waste has bedeviled waste legislation, both nationally and at EC level. A key policy dilemma concerns recycling and reuse, where some countries have tended to exclude such activities from waste disposal controls in order to encourage recycling.
In 1991, the definition of "waste" in the 1975 EC framework Directive on waste was amended to read "any substance or object in the categories set out in Annex I which the holder discards or intends or is required to discard." The intention behind the 1991 amendment was to provide a more common definition of waste in order to improve the efficiency of waste legislation throughout the EC.
The original 1975 Directive did contain a definition of waste - "any substance or object which the holder disposes of, or is required to dispose of, pursuant to the provisions of national law in force" - but the European Commission and Council had become concerned at the differences in national interpretation which this had permitted.
It cannot be said that the 1991 amendments provided absolute clarity, though the broad intentions are apparent. Annex I contains a whole range of objects and substances, including both those with no commercial value, such as unusable parts and time-expired products, and various categories of residues from production processes or consumption which may, or may not, have commercial value.
The exclusivity of the listing exercise is then spoilt by the last category which encompasses "any materials, substances or products which are not contained in the above categories." In any event, inclusion on the list is not the sole criterion. "Discarding" must also take place. No definition of this crucial term is provided, and the rationale of the change from "disposal" in the original Directive to "discard" is not explained.
The Tombesi and associated cases concerned a number of references from Italian courts which raised the question of the compatibility of Italian waste legislation with EC law. The Italian implementing legislation was complex. 1982 legislation had implemented the 1975 Directive by defining waste as meaning "any substance or object deriving from human activity or natural cycles which is abandoned or destined to be abandoned."
This was followed in 1988 by a "decree-law" - which becomes inoperative unless converted by Parliament into formal law - which introduced arrangements for residues capable of reuse which differed from those applicable to waste in general. A series of subsequent decree-laws had introduced further provisions concerning waste. Materials quoted with specific commodity characteristics in commodity exchanges or official lists were excluded from the scope of the decree-laws.
As the ECJ concluded, although there were differences between them, the essential content of the decree-laws was the same. They drew a distinction between "waste" and "residues" and applied simplified procedures of control to the collection, transport, treatment and reuse of such residues. Some items were excluded altogether.
The cases concerned a number of criminal proceedings brought against industries concerning waste offences. They included activities involving olive oil residues, marble rubble and debris from a marble factory, and pitch residues captured by electrostatic filters used in cooking ovens.
The defendants argued that according to the Italian decree-laws, the materials involved were no longer to be regarded as waste - implying that no offences were committed. The Italian court, concerned at the compatibility of the Italian legislation with EC law, then sought guidance from the ECJ as to whether the EC definitions of waste encompassed reusable residues and certain other materials.
Where the European Commission brings proceedings against a Member State for failure to comply with EC obligations, and the case reaches the ECJ, the Court is entitled to rule on the validity of the national legislation. But in the present case the Court could only provide an interpretation of EC law, leaving it to the national court to decide whether the domestic legislation was compatible. In such cases, the ECJ often gives strong hints, but the final decision strictly rests with the national courts.
The Court first noted that, in accordance with its previous case law, a Directive which had not been properly implemented may not impose direct obligations. On the other hand, the 1993 Regulation on shipment of wastes, which incorporated the general EC definition of waste, has direct application.
The Court noted that the Regulation excludes shipments within a Member State from most of its provisions, but nevertheless requires Member States to establish an appropriate system for the supervision and control of wastes within their jurisdiction. According to the preamble, this must reflect "minimum criteria" in order to ensure a high level of environmental protection. The Court therefore concluded that in relation to shipments of waste within a Member State, the common definition of waste had direct application.
The key issue was to what extent this definition excluded substances or objects capable of economic reuse. The Court observed that its case law on the previous definition had concluded that national legislation which defines waste as excluding substances or objects which are capable of economic reutilisation was not compatible with the 1975 Directive as originally drafted. As might have been expected, it concluded that this approach was not affected by the 1991 amendments.
The Court noted that the 1975 Directive as amended obliges Member States to take measures to encourage the recovery of wastes by means of recycling, reuse or reclamation. The Directive lists various types of waste management operations which require permits, and these include both disposal and recycling operations. The Court concluded, therefore, that the system of supervision and control established by EC law "is intended to cover all objects and substances discarded by their owners even if they have a commercial value and are collected on a commercial basis for recycling, reclamation or reuse." It made no difference that the materials in question may be the subject of a transaction or quoted on public or private commercial lists.
The Italian court put forward a number of specific examples and sought guidance on whether they could fall outside the scope of EC legislation on the grounds that they related to reusable residues. They included a deactivation process intended merely to make a waste harmless, landfill tipping in hollows or embankments, the incineration of waste creating marketable residues, the classification of waste as a reusable residue without its characteristics or purpose being defined, and the grinding of waste without its characteristics being altered in any way. Given the Court's broad interpretation of the definition of waste, it was hardly surprising that it decided that none of these were excluded from the definition.
Tombesi is unlikely to be the last word on the issue. Lawyers still wrestle with the meaning of "discard", and the 1994 UK circular on waste which discusses the term focuses on the concept of the "chain of utility" or "commercial cycle" in order to provide some limitation to the scope of the controls. Second hand clothes shops, for example, would be surprised to be considered as handling waste, yet a broad approach to the definition might include them. Tombesi, while providing significant guidance, does not explore the notion of discarding in detail, despite its centrality to the fundamental definitions, and further decisions can only be expected.