UK loses third ECJ ruling on waste in a year

The European Court of Justice has held the UK to be in breach of several aspects of the 1975 EU waste framework Directive. The decision was the third against the UK for non-compliance with EU environmental laws during 2004, and underlined its deteriorating legal record over the past few years.

The number of a Member State’s convictions in the European Court of Justice is not necessarily an accurate guide to its record in transposing EU environmental laws and implementing them on the ground - the process for bringing Member States to book has too many imperfections for that.

Nonetheless, a Member State’s convictions do tell a story - and the story that is being told about the UK is of a steadily deteriorating legal record.

The UK now has at least 11 convictions for infringing EU environmental law (see table). Of these, nine have occurred since Labour took office in 1997, with three convictions making 2004 the worst year yet - and there are likely to be more this year.

In most cases, Labour had time to put right problems inherited from earlier Conservative administrations - but either omitted or chose not to do so.

The latest ECJ judgment was delivered on 16 December, with the UK being found to be in breach of provisions of ten articles of the waste framework Directive. The main deficiencies in UK law were:

  • The effective exclusion of some wastes from agriculture and mines and quarries from control under UK waste legislation.

    Many official promises to make good these shortcomings have been made since 1994, when the current waste management licensing regime was introduced. The most high-profile occasion was the Prime Minister’s "farming summit" in March 2000, when the Government promised a consultation in the summer on bringing agricultural wastes under normal waste controls (ENDS Report 302, pp 26-28 ).

    The consultation paper failed to materialise - indeed, the Government seemed indifferent to being in breach of EU law until forced to act by the European Court of Justice. Finally, just a few days before the case came before the ECJ, a consultation paper on ending the exclusions for both agricultural wastes and non-mineral wastes from mines and quarries was issued by the Environment Department (ENDS Report 359, pp 47-48 ).

  • Several legislative gaps in Northern Ireland, including the absence of an explicit duty on the authorities to meet the Directive’s objectives, notably during waste permitting, or to carry out "appropriate periodic inspections" of waste facilities. There is also no legislation transposing the Directive’s record-keeping requirements on operators of waste management facilities, while the Province’s legislation on registration of waste collection businesses and waste brokers is incomplete.

  • The exclusion of occupiers of domestic properties from normal obligations concerning the management of household waste.

    The main issues in contention here were provisions in sections 33-34 of the Environmental Protection Act 1990 exempting occupiers from the general prohibition on the unlicensed keeping, treatment or disposal of waste where these occur within the curtilage of the property where the waste was generated, and also exempting them from the "duty of care" on waste producers.

    The UK argued that its legislation makes household waste collection authorities responsible for complying with the Directive’s general duties concerning the safe management of waste.

    However, the European Commission pointed out that section 45 of the 1990 Act relieves waste collection authorities of their general duty to collect household waste where the waste is generated in an "isolated or inaccessible" place and adequate alternative arrangements have been or could "reasonably be expected to be" made for its disposal.

    The ECJ felt that this might be acceptable were adequate safeguards in place, but this was not the case with UK law.

    In particular, there is no express prohibition on unauthorised disposal or abandonment of household waste within the curtilage of the property on which it is generated. Since the Directive allows for waste to be disposed of by the producer himself only where its general requirements concerning safe management of wastes are met, it was clear that under UK law "the conditions which allow public authorities to be released from the obligation to collect household waste in certain places are not satisfied."

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