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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

02 MAY 2013

R (on the application of UK Recyclate Ltd) v (1) Secretary of State for Environment, Food and Rural Affairs and (2) Welsh Ministers [2013] EWHC 425 (Admin); (2013) PLLR 043

Environment - recycling - European Directive 2008/98/EC - ‘Waste Framework Directive' - whether transposition properly implemented Directive - statutory interpretation - Waste (England and Wales) Regulations 2011 - Waste (Amendment) (England and Wales) Regulations 2012 - technically, environmentally and economically practicable - necessity test

European Union Directive 2008/98/EC (‘the Waste Framework Directive') had been properly transposed into domestic law; the Directive only required separate collection of waste materials where it was both necessary and practicable to do so.

6 March 2013

Administrative Court

Hickinbottom J

(1)        Article 11 of the European Directive 2008/98/EC (‘the Waste Framework Directive') requires Member States to make provision for the separate collection of paper, glass, metal and plastic. This is qualified by the terms contained within Article 10(2). The Directive has been transposed into domestic law by Waste (England and Wales) Regulations 2011 and Waste (Amendment) (England and Wales) Regulations 2012.

(2)        The claimants (R), a group of organisations operating in waste recycling, claimed that European Directive 2009/98/EC (‘the Waste Framework Directive') had not been properly transposed into domestic law as Article 10(2) required that the only conditions in which separate collections were not required was where to do so was not technically, environmentally and economically practicable. The defendants argued that the exception was broader, including not just the practicability test but also a necessity test. R also argued that the Directive required a general decision to be made by the UK Government as to whether separate collections were practicable, and that this should not be left to local authorities.

(3)        Hickinbottom J held (1) that European Union Directives leave Member States with a broad discretion as to the form and methods used for transposition. Nothing in the Directive suggested anything more prescriptive. It was open to the UK to put in place the current scheme, leaving decisions as to practicability to local authorities, with enforcement undertaken by the Environment Agency. This approach seemed sensible given the local and context-specific nature of waste collection needs. Although the court was not required to make a factual finding, there was no evidence to suggest that separate collections were practicable across England and Wales. [42] - [45], [47], [51]. (2) That on a purposive approach it was clear that the Directive required separate collections only where this was both practicable and necessary. The word ‘where' in Article 10(2) meant if; the phrase ‘where necessary' applied to both compliance with the taking of ‘necessary measures to ensure that waste undergoes recovery operations' in Article 10(1) and ‘to facilitate or improve recovery' in Article 10(2). Nothing in the text suggested otherwise and the drafting clearly showed a purposive approach; this assessment fitted with a reading of the remainder of the Directive. Article 10(2) was to be given its ordinary meaning: that separate collection is necessary where it is necessary to ensure that waste undergoes recovery operations and necessary to facilitate or improve recovery. This ensures recovery is appropriately prioritised, given the Directive's overarching aim of delivering the best environmental outcome (Article 4(2)). Further, separate collection of waste was a subsidiary aim of the Directive, and a means of achieving the central objective. The principle of subsidiarity suggests that it would be unlikely for the European Commission to take a view of on the necessity and practicability of separate collection throughout the Union. If such collection were not necessary to achieve the key aims of the objective it would be contrary to principle for the Directive to require it. It was clear that the obligation to collect waste separately arose only where this was both necessary and practicable [54] - [56], [60] - [62], [64], [66].

Claim dismissed. Application for reference to the Court of Justice of the European Union refused.

Key paragraphs

[1] - Introduction

[2] - [5] - The parties

[6] - [10] - The background to the Waste Framework Directive

[11] - [20] - The Waste Framework Directive

[21] - [31] - Domestic transposition

[32] - [37] - The main issue: the parties' submissions

[38] - [51] - The Directive's requirements in respect of technical, environmental and economic practicability

[52] - [65] - The main issue: discussion

[66] - [68] - The main issue: conclusion

[69] - The failure properly to consult

[70] - [72] - The application to refer issues to the Court of Justice of the European Union

[73] - Conclusion

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