The Queen on the application of Thames Water Utilities Ltd v South East London Division, Bromley Magistrates' Court (District Judge Carr).
Date: 2007-05-10
24. Article 1(a) of Directive 75/442 defines waste as ‘any substance or object in the categories set out in Annex I which the holder discards or intends ... to discard’. The annex clarifies and illustrates that definition by providing a list of substances and objects which can be classified as waste. However, the list is only intended as guidance, and the classification of waste is to be inferred primarily from the holder’s actions and the meaning of the term ‘discard’ (see Case C-1/03 Van de Walle and Others  [2004] ECR I-7613, paragraph 42 and the case-law cited).
26. Under Article 2(1)(b)(iv) of Directive 75/442 this is the case with ‘waste waters, with the exception of waste in liquid form’. It is clear from that provision that the Community legislature intended expressly to classify waste waters as waste within the meaning of the directive, while providing that that waste may, in certain circumstances, fall outside the scope of the directive and, therefore, the general legal regime for waste which it establishes.
27. In this respect, the verb ‘to discard’ must be interpreted in the light not only of the aims of Directive 75/442, that is, the protection of human health and the environment against harmful effects caused by the collection, transport, treatment, storage and tipping of waste, but also of Article 174(2) EC. The latter provides that ‘Community policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Community. It shall be based on the precautionary principle and on the [principle] that preventive action should be taken …’. The verb ‘to discard’ therefore cannot be interpreted restrictively (see, to that effect, Joined Cases C‑418/97 and C-419/97 ARCO Chemie Nederland and Others  [2000] ECR I-4475, paragraphs 36 to 40).
28. The fact that waste water escapes from a sewerage network does not affect its character as ‘waste’ within the meaning of Directive 75/442. The escape of waste water from a sewerage network constitutes an event by which the sewerage undertaker, the holder of that waste water, ‘discards’ it. The fact that the waste water is spilled accidentally does not alter the outcome. The Court has held that accidental spillage of hydrocarbons onto land may be regarded as an action by which the holder of those hydrocarbons ‘discards’ them (see, to that effect, Van de Walle and Others , paragraph 47). The Court also held that Directive 75/442 would be made redundant in part if hydrocarbons which cause contamination were not considered waste on the sole ground that they were spilled by accident (see Van de Walle , paragraph 48). The same reasoning must be applied to waste water which leaks accidentally.
32. As the Court held in paragraph 49 of the judgment in Case C-114/01 AvestaPolarit Chrome  [2003] ECR I-8725, the expression ‘other legislation’ in Article 2(1)(b) of Directive 75/442 may also refer to national legislation.
33. However, to be regarded as ‘other legislation’ within the meaning of Article 2(1)(b) of Directive 75/442, the rules in question must not merely relate to a particular substance, but must contain precise provisions organising its management as waste within the meaning of Article 1(d) of the directive. Otherwise, the management of that waste would be organised neither on the basis of Directive 75/442 nor on that of another directive nor on that of national legislation, which would be contrary both to the wording of Article 2(1)(b) of Directive 75/442 and to the very objective of the Community legislation on waste (see, to that effect, AvestaPolarit Chrome , paragraph 52).
34. It follows that, for Community or national legislation to be regarded as ‘other legislation’, it must contain precise provisions organising the management of waste and ensure a level of protection which is at least equivalent to that resulting from Directive 75/442 and, more particularly, Articles 4, 8 and 15.
39. The Court has held that Directive 75/442, as amended by Directive 91/156, is a framework directive, Article 2(2) thereof providing that specific rules for particular instances, or supplementary rules, on the management of particular categories of waste may be laid down by means of individual directives. Such an individual directive may be considered to be special legislation (a lex specialis ) vis-à-vis Directive 75/442, so that its provisions prevail over those of Directive 75/442 in situations which it specifically seeks to regulate (see, to that effect, Case C-444/00 Mayer Parry Recycling [2003] ECR I-6163, paragraphs 51 and 57).