Court of Justice of the European Communities
Published May 25, 2007
Regina (Thames Water Utilities Ltd) v Bromley Magistrates Court,
Environment Agency, interested party
Case C-252/05
Before C. W. A. Timmermans, President of Chamber, and Judges P. Kuris, J.
Makarczyk, L. Bay Larsen and J.-C. Bonichot Advocate General J. Kokott
(Opinion February 8, 2007)
Judgment May 10, 2007
Waste water which accidentally escaped from a sewerage system was discarded by
the sewerage management undertaking and was waste within the EC Waste
Directive.
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 on questions on the interpretation of Council Directive
75/442/EEC of July 15, 1975 on waste (OJ 1975 L194/39), as amended by
Council Directive 91/156/EEC of March 18, 1991 (OJ 1991 L78/32), and Council
Directive 91/271/EEC of May 21, 1991 concerning urban waste water treatment
(OJ 1991 L135/40).
Section 33(1) of the Environmental Protection Act 1990 provides: “(1) ... a
person shall not – (a) deposit controlled waste ... in or on any land...”
Thames Water Utilities Ltd, a statutory sewerage undertaking, responsible for
some 80,000 kilometres of sewerage pipes in the Thames region, was
prosecuted by the Environment Agency for illegally depositing waste, it
being alleged that, on 11 occasions between February and April 2003,
untreated sewage constituting controlled waste escaped into controlled
waters in or on to land in Kent.
The defence was that sewage which escaped did not amount to controlled waste.
Section 75(4) of the 1990 Act defined “controlled waste” as “household,
industrial and commercial waste”.
Regulation 7A of the Controlled Waste Regulations (SI 1992 No 588) provided
that, for the purposes of the 1990 Act: “waste which is not Directive waste
shall not be treated as household waste, industrial waste or commercial
waste”.
“Directive waste” was there defined as “any substance or object ... which the
producer or the person in possession of it discards or intends or is
required to discard but with the exception of anything excluded from the
scope of [Directive 75/442] by article 2 of the Directive”.
Article 1 of Directive 75/442 provided: “For the purposes of this Directive:
(a) ‘waste’ shall mean any substance or object in the categories set out in
Annex I which the holder discards or intends or is required to discard”.
Article 2 provided: “(1) The following shall be excluded from the scope of
this Directive: ... (b) where they are already covered by other legislation:
... (iv) waste waters, with the exception of waste in liquid form... “(2)
Specific rules for particular instances or supplementing those of this
Directive on the management of particular categories of waste may be laid
down by means of individual Directives.”
After Bromley Magistrates had refused to rule on a preliminary point of law as
to whether sewage such as that in issue constituted controlled waste, the
defendant brought proceedings for judicial review of that refusal, and the
High Court referred to the European Court the questions: (i) whether such
sewage was “Directive waste”, and if, in general it was, (ii) whether it was
none the less excluded by article 2(1)(b)(iv) or 2(2) of Directive 75/442,
regard being had in particular to Directive 91/271 and/ or the Water
Industry Act 1991.
In its judgment, the Second Chamber of the Court of Justice held:
1 In article 1(a) of Directive 75/442, the list in Annex I referred to
was only intended as guidance, and the classification of waste was to be
inferred primarily from the holder’s actions and the meaning of the term
“discard”.
“Discard” was to be interpreted in the light not only of the aims of Directive
75/442, namely, 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, which provided: “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...”
“To discard” therefore could not be interpreted restrictively. The fact that
waste water escaped from a sewerage network did not affect its character as
waste within the meaning of Directive 75/442.
The escape of waste water from a sewerage network constituted an event by
which the sewerage undertaker, the holder of the waste water, discarded it.
The fact that the waste water was spilled accidentally did not alter the
outcome.
2Under article 2(1)(b)(iv) of Directive 75/442, waste waters, except
waste in liquid form, were excluded from the scope of that Directive,
provided that they were already covered by other legislation.
The Court had already that “other legislation” could also refer to national
legislation.
However, to be regarded as “other legislation”, the rules in question had not
merely to relate to a particular substance, but also to contain precise
provisions organising its management as waste, so as to ensure a level of
protection at least equivalent to that resulting from Directive 75/442.
Directive 91/271 did not ensure such a level of protection, since, although it
regulated the collection, treatment and discharge of waste water, it did no
more, in relation to leakage of waste water, than to lay down a duty to
prevent the risk of such leaks when designing, constructing and maintaining
collecting systems, and it did not lay down any objective in relation to the
disposal of waste or decontamination of contaminated soil.
It would be for the national court to determine whether national legislation
met with the criteria stated.
Directive 75/442 was a framework directive, and any individual directive
providing for specific rules for the management of particular categories of
waste, as envisaged by article 2(2) of that directive, was a lex specialis
whose provisions would prevail over the framework directive.
In that context, Directive 91/271, as already stated, did not contain any
provision concerning waste water escaping from a sewerage network as such
and did not provide for specific rules for that purpose.
On those grounds, the European Court ruled:
1 Waste water which escaped from a sewerage network maintained by a
statutory sewerage undertaker pursuant to Directive 91/271, and the
legislation enacted to transpose that Directive, constituted waste within
the meaning of Directive 75/442.
2 Directive 91/271 was not “other legislation” within the meaning of
article 2(1)(b) of Directive 75/442.
It fell to the national court to ascertain whether, in accordance with the
criteria set out in the judgment, the national rules could be regarded as
being “other legislation” within the meaning of that provision.
Such was the case if those national rules contained precise provisions
organising the management of the waste in question and if they were such as
to ensure a level of protection of the environment equivalent to that
guaranteed by Directive 75/442.
3 Directive 91/271 could not be considered, as regarded the management
of waste water which escaped from a sewerage network, to be special
legislation, lex specialis, vis-à-vis Directive 75/442, and therefore could
not be applied pursuant to article 2(2) of Directive 75/442.
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