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Responsibility for waste management and its costs

Any original waste producer or other holder shall be required to either carry out the treatment ofwaste herself or have it handled by someone who carries out waste treatment operations in accordance with pertinent provisions of the FDW. Treatment may also be arranged by a private or public waste collector. Member States may specify the conditions of responsibility and decide in which cases the original producer is to retain responsibility for the whole treatment chain or in which cases the responsibility of the producer and the holder can be shared or delegated among the actors of that chain (Art 15). This does not mean that Member States must permit an original waste producer or waste holder to dispose of waste independently and thereby, for example, be exempted from liability for payment of a municipal tax for

  • 32 Joined Cases C 418/97 and C 419/97 ARCO Chemie (n 23), para 95. See also Case C-457/02 Niselli ECLI:EU:C:2004:707.
  • 33 Council Regulation (EU) No 333/2011 establishing criteria determining when certain types of scrap metal cease to be waste under Directive 2008/98/EC of the European Parliament and of the Council [2011] OJ L 94/2; Commission Regulation (EU) No 1179/2012 establishing criteria determining when glass cullet ceases to be waste under Directive 2008/98/EC of the European Parliament and of the Council [2012] OJ L 337/31.

the disposal of waste.[1] [2] [3] [4] [5] [6] The Court of Justice has pointed out that EU law does not impose any specific method upon the Member States for financing the cost of waste management and that such cost may equally well be financed by means of a tax or a charge, or in any other manner.35

Subject to some exceptions, any establishment or undertaking intending to carry out waste treatment shall be required to obtain a permit from the competent authority. The permit shall specify, inter alia, the types and quantities of waste that may be treated, the method to be used, and the safety and precautionary measures to be taken. Incineration or co-incineration with energy recovery may only be permitted if the recovery of energy takes place with a high level of energy efficiency. (Arts 23-24.)

The requirement that waste treatment may not be carried out without a permit also entails an obligation for the Member States to make sure that the permit system set up is in fact applied and complied with, in particular by conducting appropriate checks for that purpose and ensuring that operations carried out without a permit are brought to an end and punished.36

The re-use and the prevention, recycling, and other recovery of waste may be strengthened through the introduction of so-called extended producer responsibility. Such measures may include an acceptance of returned products and of the waste that remains after those products have been used, as well as the subsequent management of the waste and financial responsibility for such activities. Member States may encourage the design of products in order to reduce their environmental impacts and the generation of waste in the course of the production and subsequent use of products.37 (Art 8.)

There is also specific EU legislation on producer responsibility, which is discussed presently in the subchapter on specific waste streams.

The FDW requires that the costs of waste management be borne by the original waste producer or by the current or previous waste holders in accordance with the polluter-pays principle. However, Member States may decide that the costs are to be borne partly or wholly by the producer of the product from which the waste came and that the distributors of such a product may share these costs.38 (Art 14.)

The Court of Justice has found it acceptable, subject to some conditions, that taxes or charges for waste management are calculated on the basis of an estimate of the volume of waste generated by users of that service rather than on the basis of the quantity of waste which they have actually produced and presented for collection.39

In order to enable the EU to become self-sufficient in waste disposal and in the recovery of waste collected from private households, and to enable the Member States to move towards that aim individually, the Member States must establish an integrated and adequate network of waste disposal installations and of installations for the recovery of mixed municipal waste collected from private households. Where necessary or advisable, this shall be made in cooperation with other Member States. The network shall enable waste to be disposed of or waste collected from private households to be recovered in one of the nearest appropriate installations, by means of the most appropriate methods and technologies, in order to ensure a high level of protection for the environment and public health. According to the Court of Justice Member State authorities are empowered to regulate or organise the management of such waste in such a way that it is treated in the nearest appropriate facility.[7] [8] In order to protect their networks the Member States may under certain circumstances limit incoming shipments of waste as well as outgoing shipments of waste on environmental grounds. This is further discussed below in the context of the regulation of shipments of waste. (Art 16.)

  • [1] CaseC-551/13 SETARECLI:EU:C:2014:2467, para 41.
  • [2] Ibid, para 47.
  • [3] 36 CaseC-196/13 Commission v Italy ECLI:EU:C:2014:2407, para 61.
  • [4] As part of the Circular Economy Package the Commission has proposed to introduce minimumoperating requirements for extended producer responsibility. See COM(2015) 595 final (n 20) 15-16.
  • [5] In previous versions of the FDW the responsibility of the producer of the product from whichthe waste came was not subject to Member State discretion but followed directly from the Directive.On the implications of that responsibility, see Case C-188/07 Commune de Mesquer (n 26), para 82.
  • [6] Case C-254/08 Futura Immobiliare and Others ECLI:EU:C:2009:479, para 57.
  • [7] Case C-292/12 Ragn-Sells ECLI:EU:C:2013:820, para 62.
  • [8] Council Directive 78/319/EEC on toxic and dangerous waste [1978] OJ L84/43. 42 Commission Decision 2000/532/EC replacing Decision 94/3/EC establishing a list of wastespursuant to Article 1(a) of Council Directive 75/442/EEC on waste and Council Decision 94/904/EC establishing a list of hazardous waste pursuant to Article 1(4) of Council Directive 91/689/EEC onhazardous waste [2000] J L226/3.
 
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