The Polluter Pays Principle in the European Waste Framework Directive

Sammanfattning: The polluter pays principle is an economic principle through which external costs can be internalised. The principle is thus a way of allocating costs for pollution. The principle can also be described using a fairness argument, where it would seem fair that the polluter pays the costs for the pollution which he has contributed to. It has been extensively used in international law, and has been rewarded the status as one of the guiding environmental principles in European Union law. However, it is evident that the polluter pays principle contains ambiguities which have not been resolved at the international level. The principle does not answer the question of who shall be seen as polluter, when the pollution has occurred or which costs shall be covered. The polluter pays principle has been a part of European waste legislation since 1975. The main piece of legislation in EU waste law is the waste framework directive. The principle allocates liability for costs for waste disposal or waste management to the final holder of the waste, or the previous holders of the waste. The polluter pays principle under the EU waste law also provides for liability to be channelled to the producer of the product or the distributors or holders of this product. It can be said that the pollution under EU waste legislation occurs when the waste has been created. The European concept of waste has been interpreted numerous times by the Court of Justice. The concept must be interpreted broadly in order to uphold environmental protection, and the concept of waste turns on whether something has been discarded. When something has been referred to recovery or disposal operations, there exists a presumption that it has become waste, but factors such as the impression of the general public or the economic interest for the holder will also be necessary to consider. In most cases the polluter will be the final holder of the waste. There exists a possibility to channel liability to other actors within the polluter pays principle. This channelling does, according to the Court of Justice, require contribution to the risk of the pollution occurring to occur. The Court of Justice thus makes a proportional interpretation of the polluter pays principle where the polluter can only be held liable to pay to what he contributed. It has been held by the Court of Justice that the polluter pays principle encompasses ex ante as well as ex post applications. The polluter pays principle can thus serve as justification for a tax for waste management. The polluter pays principle might also be applicable to costs for monitoring. The polluter pays principle thus contains a wide discretionary ambit. The application of the principle might lead to different results in different member states. However, it must be kept in mind that the principle might be the best possible way of dealing with this form of pollution at the moment.