UK Recyclate Ltd, R (on the application of) v Secretary of State for Environment, Food and Rural Affairs & Ors

The obligation to establish separate collection of paper, metal, plastic and glass under Article 11(1) of the Waste Framework Directive is subject to both necessity and technical, environmental and economic practicability. Necessity concerns whether separate collection is required to ensure, facilitate or improve recovery in accordance with the waste hierarchy and environmental protection requirements. Practicability is a sophisticated, context-specific proportionality assessment. It may produce different conclusions in different local circumstances. A Member State has broad discretion to choose the form and methods of transposition, including reliance on local authorities and enforcement bodies. The amended Regulation 13 of the Waste (England and Wales) Regulations 2011 properly transposed the Directive.

The claimants, commercial recycling businesses, challenged the amended Regulation 13 of the Waste (England and Wales) Regulations 2011. They argued that the regulation unlawfully added a necessity requirement to the obligation in Article 11(1) of the Waste Framework Directive, which required separate collection of paper, metal, plastic and glass by 2015. They also argued that practicability had to be determined centrally and applied throughout England and Wales.

The original proceedings challenged an earlier version of Regulation 13. They were stayed while the defendants amended it through the Waste (England and Wales) (Amendment) Regulations 2012. The central issues were the proper construction of the Directive and whether a reference to the Court of Justice was necessary.

1. The claim was dismissed. The application for a reference to the Court of Justice under Article 267 of the Treaty on the Functioning of the European Union was refused because the interpretation of Articles 10 and 11 of the Waste Framework Directive was clear.

2. The phrase “Subject to Article 10(2)” in the third paragraph of Article 11(1) imports the limitations in Article 10(2). Separate collection of paper, metal, plastic and glass is therefore required only where it is necessary to comply with Article 10(1), to facilitate or improve recovery, and is technically, environmentally and economically practicable.

3. The necessity requirement concerns recovery operations carried out in accordance with Articles 4 and 13. Those provisions must be understood in the context of the Directive’s primary objective of protecting human health and the environment and its overarching requirement to achieve the best overall environmental outcome.

4. “Technically, environmentally and economically practicable” is a term of art. It requires a sophisticated and context-specific balancing exercise, including the technical feasibility of the collection system, environmental benefits and detriments, costs, the added value of recovery and recycling, and proportionality. The assessment may differ between local areas and even between collection circumstances within the same area.

5. The Directive leaves Member States a broad discretion as to the form and methods of transposition. A compliant system may assign primary decision-making to local authorities and enforcement to an agency using compliance notices, stop notices, restoration notices and criminal sanctions. The United Kingdom was entitled to adopt that structure through the Waste (England and Wales) Regulations 2011.

6. The evidence did not establish that separate collection was technically, environmentally and economically practicable, or necessary, in every collection circumstance throughout England and Wales. The amended Regulation 13 therefore properly implemented Article 11(1).