What is the “State of the Art” after Malagrotta judgement?
This blog was written by Miriam Scolaro, Miriam is currently interning at Zero Waste Europe in the Brussels office.
For over 30 years Malagrotta landfill was the largest in Europe, collecting municipal waste from Rome and several surrounding municipalities of the Lazio region. The European Court of Justice (ECJ) has recently ruled that the Malagrotta landfill is in violation of EU landfill and waste management legislation.
During the infringement procedure it was proven that municipal solid waste (MSW) was disposed in Rome landfills (until at least the 1st of August 2012) without being subject to the proper treatments, or the stabilisation of the organic fraction. By acting this way Italy had violated EU legislation on landfill and waste management, in particular because of conferring landfilling MSW in Malagrotta and in other 5 landfill sites without previous pretreatment, they were not in compliance with the Landfill Directive. Moreover, according to the European Court of Justice (ECJ), Italy is also responsible for failing to establish an integrated and adequate network of waste disposal and installations for the recovery of mixed municipal waste, incorporating the best available techniques.
According to the “Malagrotta Judgement” Italy, had not only violated article 4 of the Waste Framework Directive – related to waste hierarchy – but also article 13 , which establishes that Member States shall take the necessary measures to ensure that waste management is carried out without endangering human health and without harming the environment. As required by the waste hierarchy, landfilling is the least preferable option for dealing with MSW and should be limited to the necessary minimum. However, where waste needs to be landfilled, it must be send to landfills which follow specific requirements fixed by the Landfill Directive, with one of them being the proper treatment of waste.
This point is a key issue which was addressed in the ECJ judgement, because, to avoid any risks, only waste that has been subject to treatment can be landfilled. But what does that “treatment” mean and what happened in those Italian landfills? According to the Landfill directive treatment means “the physical, thermal, chemical or biological processes, including sorting, that change the characteristics of waste in order to reduce its volume or hazardous nature, facilitate its handling or enhance recovery”. The Court of Justice concludes that Italy was sending waste to the Malagrotta landfill without sufficient treatment and therefore condemns Italy, as the Court understands that this should include the proper sorting of waste and the stabilisation of the organic fraction, so simply storing waste as in the Malagrotta case is simply not enough.
So, what is the “state of the art”, after the Malagrotta judgement? The European Commission is currently verifying compliance with this sentence across all of Europe, while the conclusions of the Commission’s study regarding the implementation are awaited, the situation continues unfortunately remains to be almost the same in many landfills.
Although the decisions around municipal waste are primarily local, the European Union sets out, in the Waste Framework Directive, the basic concept and principles related to waste management for Europe. The overall goal of legislation so far has been to have waste managed in a way that doesn’t jeopardise human health or damage the environment, with special attention to minimising risks to water, air, soil, plants or animals, nuisances through noise or odours, and the potential adverse effects on the countryside or places of special interest.
In order to prevent and reduce the adverse impacts of waste, it’s necessary to address the overall impact of resource use and to have an efficient and sustainable use of them. To do this, the directive introduced the well-known five-step Waste Hierarchy by which there is a preferred option of preventing the creation of waste, that is followed by preparation for re-use and recycling. At the bottom of the hierarchy, the Directive placed non-material recovery operations (e.g. so called ‘Waste-to-Energy’) and, lastly, disposal.
The top priority of waste management is the reduction of demand for virgin materials and the avoidance of waste creation, which is to be achieved by prevention – measures taken before a substance, material or product become waste – and by minimising the use of materials in products.
One tier lower there is ‘preparation for re-use’, meaning that once waste has been generated, the priority should be to make entire products or components able to be used again for the same purpose for which they were conceived, therefore, giving the product a new life mostly through repair activities.
If the product can’t be given a new life, the priority is given to recycling, including any recovery operation by which waste materials are reprocessed into products, materials or substances whether for the original or other purposes. The Member State (MS) shall take all measures to promote high quality of recycling and shall set up separate collection of waste for that extent.
After avoiding, reusing and recycling, the Waste Framework Directive places other recovery operations, such as ‘energy recovery’ by which waste is burned producing heat and electricity or, if no recovery operation is undertaken -that fulfils a concrete energy efficiency formula-, we find disposal of waste as least desirable option, including any operation intending to eliminate waste in a form that no recovery happens, be it material or energy.
Zero Waste Europe, as part of the Zero Waste International Alliance, focus on a more detailed and effective ‘Zero Waste Hierarchy’, focused on designing waste out the system instead of pursuing false solutions such as attempting to perfect incinerators and landfills. However, the Waste Hierarchy remains one of the most effective tools enshrined in EU legislation.
Although, the Waste Framework Directive offers reasonable guidance to manage waste in a sustainable way and makes waste management plans and separate collection of some fractions to a certain extent compulsory, it has been insufficient not only to make Europe resource-efficient but even to ensure sound and proper waste management. Proof of this is that the recommendation of separately collected bio-waste, aiming at re-introducing the carbon in the soils while diverting it from landfills is far from being generalised or that the recycling targets of 50% are far from being met in many Member States, even if only looking at paper, metal, glass and plastic.
Aside from the obligations set out in the Waste Framework Directive, EU law set out obligations through other relevant waste-related legislation, such as the ‘Landfill Directive’ or the ‘Packaging and Packaging Waste Directive’, and the jurisprudence of the ECJ. The Malagrotta Judgement is one of the most significant recent cases pursued by the ECJ this case provides effective guidance on the implementation of ‘Waste Framework Directive’ and the ‘Landfill Directive’ and is poised to have a big impact on the disposal of waste.
Has the Italian capital learnt anything about this history?
In Rome the main question always seems to remain where to place another landfill, and even, during the last days, the President of Ama (the public company that provides waste management in Rome) Daniele Fortini has alluded to the possibility of reopening Malagrotta. Once again, the attention isn’t on how to make Italy or Rome resource-efficient but mostly about how to get rid of waste to avoid an emergency. A short-term solution instead of a long term one. (At this point, the approach from a linear to a real circular economy don’t seem to be among the priorities and this contradicts above all the EU vision and goals).
Has EU Law learned anything about this?
For long the EU has focused waste legislation on ensuring the proper disposal of waste, on getting rid of it with the minimum nuisances to the environment, human health or society. *The idea of a circular economy changes the paradigm by emphasising the importance of extending the life and use of products and material.
Indeed, the Circular Economy Package could be the best opportunity for implementing the Malagrotta Judgement by ensuring that we don’t need to dispose of waste anymore. However, although it introduces for the first time the obligation of separate collection for bio-waste, the obligation only takes place if technically, environmentally and economically practicable. From this point of view, Zero Waste Europe defends the elimination of the proposed and existing loopholes on EU legislation by making, for instance, separate collection of waste truly mandatory and ensuring that bio-waste is composted or anaerobically digested. ZWE encourages the EU Legislator to enforce this judgement and truly implement waste hierarchy by effectively making waste prevention the centre of all waste policies.
On the other hand, the current EU legislation does not seem to be working to advance the waste hierarchy, for this reason many directives should be revised – this is would bring policy into line with the EU’s intention – including the WFD. One source of “inspiration” for EU Commission in order to make such a proposal should be the Zero Waste Hierarchy, which proposes a more ambitious waste hierarchy, including a real waste prevention plans. If we look for instance at the economic incentives at the EU level, they continue to reward disposal instead of recycling. So, in order to increase recycling the first thing that should be done is withdraw harmful subsidies. Then in our vision it is also necessary to regulate incineration overcapacity in order to make recycling more attractive and, the EU should start promoting legal and economic incentives, such as bans on the incineration and landfilling of recyclable waste.