| EUROPEAN COMMUNITY — Environment — Waste — Leakage of untreated sewage from sewage system — Whether escaped sewage “waste” within EC Directive — Waste water excluded from Directive when covered by lex specialis — Requirements for lex specialis to apply — Council Directive 75/442/EEC on waste (as amended by Council Directive 91/156/EEC) (“Directive 75/442”), arts 1(a), 2
R (Thames Water Utilities Ltd) v South East London Division, Bromley Magistrates’ Court (Environment Agency, interested party) (Case C-252/05)
ECJ: President of Chamber Timmermans, Judges Kūris, Makarczyk, Bay Larsen and Bonichot: 10 May 2007
The fact that the escape of waste water from a sewage system was accidental did not prevent the waste water from having been “discarded” and hence from being “waste” within Directive 75/442.
The Second Chamber of the Court of Justice of the European Communities so held, inter alia, on a reference for a preliminary ruling by the Queen’s Bench Division (Administrative Court).
S 33(1)(a) of the Environmental Protection Act 1990 provides that “a person shall not … deposit controlled waste … in or on any land”, and “controlled waste” is defined in the Act and subsidiary legislation so as to mean or include waste in the meaning of Directive 75/442 with the exception of anything excluded by art 2 of that Directive. Art 1(a) of Directive 75/442 defines “waste” as “any substance or object … which the holder discards …”, and art 2 provides: “(1) The following shall be excluded from the scope of this Directive: … (b) where they are already covered by other legislation: … (iv) waste waters … (2) Specific rules for particular instances … may be laid down by means of individual Directives.”
Criminal proceedings were brought against the applicant water authority for an offence against s 33(1) of the 1990 Act after untreated sewage had allegedly leaked from sewage pipes maintained by the applicant. The magistrates’ court declined to make a ruling on the question raised by the applicant whether sewage which had escaped could be “waste” within Directive 75/442, and in the judicial review proceedings brought by the applicant, the Administrative Court referred questions on arts 1 and 2 of the Directive to the European Court.
THE COURT said that “discard” was to be interpreted broadly, and the fact that waste water was spilled accidentally did not prevent it from being discarded. For that and other reasons, waste water which escaped from a sewerage network was “waste” within Directive 75/442. The matters excluded by art 2(1) of that Directive were subject to their being “covered by other legislation”. For that exclusion to operate, the “other legislation”, whether Community or national, had to contain precise provisions organising the management of waste and ensuring a level of protection equivalent to that provided for by Directive 75/442. It was for the national court to decide whether national legislation such as the Water Industry Act 1991 satisfied those criteria. As to Community legislation, Council Directive 91/271/EEC on urban waste water treatment did not satisfy them as it did not deal specifically with leakage of waste water. For the same reason, that Directive could not be regarded as an individual Directive laying down specific rules (as referred to in art 2(2) of Directive 75/442) which, as a lex specialis, would prevail over Directive 75/442 as the framework Directive.
|
