On 28 March 2019, the European Court of Justice (ECJ) handed down a ruling which clarified the obligations of waste holders in ‘grey area’ situations where their waste could be classified as either hazardous or non-hazardous.

These ‘grey area’ situations arise in the context of the Waste Framework Directive (2008/98/EC) definition of “hazardous waste” – as waste that displays one or more of the hazardous properties listed in Annex III of the Directive. The Directive also mandated the European Commission to established a list of waste (the EC List) to assist in such categorisation waste, and pursuant to which hazardous waste may be something which is either (a) listed in the EC List as hazardous waste or (b) not listed in the EC List but containing one or more of the hazardous properties listed in Annex III.

The classification is important because all waste must be so classified before it is moved, disposed of or recovered, and the classification determines the controls that apply to movement of the waste and how it can be managed.

Wastes that may be classified as either hazardous or non-hazardous are known as “mirror hazardous” and “mirror non-hazardous entries”. Wastes not in either category are either always hazardous (“absolute hazardous waste”) or always non-hazardous (“absolute non-hazardous waste”). If waste is mirror hazardous or mirror non-hazardous, the waste-holder must carry out an assessment to determine whether it is hazardous waste.

Case no. C-487/17, Verlezza and others [2019: EUECJ], related to Italian criminal proceedings brought against a large number of people accused of treating waste as non-hazardous where it could have been assigned a mirror code as either hazardous or non-hazardous.

The European Court made the following key points to clarify the classification and assessment obligations on holders of waste that is mirror hazardous or mirror non-hazardous:

  • Where the waste-holder does not know the composition of waste that may be mirror hazardous or mirror non-hazardous, the waste holder must gather information to enable it to gain sufficient knowledge of that composition;
  • There are several different ways in which that information could be obtained, including carrying out chemical analyses;
  • EU waste legislation does not provide that the purpose of chemical analysis is to determine the absence of any hazardous substance in the waste;
  • The waste-holder is not required to rebut a presumption that that waste is hazardous. However, EU waste legislation requires a waste-holder to look for hazardous substances that may reasonably be found in that waste, and, in that respect, it has no discretion;
  • Importantly, where there are doubts over the hazardous properties of waste that may be classified under mirror codes, or where it is impossible to determine with certainty that there are no hazardous substances in that waste, the waste must be classified as hazardous waste in accordance with the precautionary principle.

For those wondering why we continue to report European Court rulings even as the UK is on the brink of EU exit, this is because these rulings are likely to retain their effect in UK law even after Brexit, even in the event of a No Deal, especially in areas such as this where the ECJ is interpreting pre-Exit EU law, which will of course be ‘retained EU law’ under the European Union (Withdrawal) Act 2018.