Trash or Treasure: Policy Tensions in EC Waste Regulation
(2007) 19(3) JEL 367-388
34 Pages Posted: 4 Jan 2021
Date Written: 2007
The EC Waste Directive acts as a framework for Community waste policy and regulation. The scope of the Directive is dictated by its central definition of ‘waste’. Unhelpfully this definition is ambiguous and the European Court of Justice has repeatedly been faced with its interpretation. In recent years, the Court has adopted a purposive approach to this exercise. This paper critiques that purposive approach, arguing that the ECJ’s identification of the Directive’s purposes is inadequate, and the application of its approach inconsistent. This paper examines the Directive’s purposes, focusing on the ‘principles’ enshrined in the EC Treaty, in particular, the preventive principle. The preventive principle contains layers of complexity, which reveal a policy tension in the Directive’s purposes between preventing and regulating waste.
That tension is not addressed by the ECJ in its recent jurisprudence on the waste definition. This jurisprudence, which primarily involves consideration of whether industrial by-products and residues are waste, is here critically analysed in light of the principled purposive approach suggested in this paper. This context is significant since the question of whether reusable by-products are waste exposes the core tension in the Directive’s purposes. It is also significant since efforts to reuse industrial by-products accord with the priority aim of EC waste policy to prevent waste generation, and any unprincipled reasoning of the ECJ which undermines such efforts must be rigorously scrutinised.
Keywords: waste regulation, EU waste directive, definition of waste
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