Waste management is primarily regulated on an EU level by the Directive 2008/98/EC, which outlines the notions of waste, recovery and disposal and establishes the essential obligations for waste management.
Article 1 states: “This Directive lays down measures aimed at protecting the environment and human health by preventing or reducing the negative impacts of waste generation and management, reducing the overall impacts of use and resources and improving their effectiveness”.
In particular, the Directive also lays down the obligation to obtain authorisation and registration for institutions or undertakings waste management activities, as well as the obligation for Member States to draw up national waste management plans.
At the national level, the relevant legislation is the Consolidated Bill for the Environment, with Article 179 reaffirming the priorities in the field of waste management;
– prevention of waste itself and subsequently its preparation for future reuse, followed, in this order, by recycling and other types of recovery operations and only finally, as a residual option, by disposal activities.
The key provision of the above mentioned decree, which takes up Article 3, point 1, of the Directive, is contained in Article 183, paragraph 1, letter a), where it is prescribed that waste is to be considered “any substance or object that the holder discards or intends or is obliged to discard”.
The central element of the concept of waste is to be found in the last part, where express reference is made to the will of the waste holder.
Think of it as an example to fully understand the definition in comment to the situations in which a given object can be considered as waste or not because of the conduct of the legitimate holder; the antique furniture from the ‘700’s left by the owner on the side of the road must necessarily be considered as waste under the law because abandoned (conduct of abandonment with any sanctioning profiles), while if delivered to an antique shop can not be considered, but good susceptible to economic evaluation.
There is an exceptional regime in the presence of mandatory conditions, on the occurrence of which a substance, object or material that the owner intends to dispose of is not considered waste but a by-product within the meaning and for the purposes of Article 184-bis of the Consolidated Act on the Environment.
The necessary prerequisites which are required to be met are applied with caution and rigidity, given its exceptional nature compared to the conditions on which the waste management system is based, and are as follows:
- the substance or object must originate from a production process;
- the re-use of the substance or object in the same production process must be certain;
- the substance or object must not undergo any further treatment (other than normal industrial practice);
- the subsequent use is legitimate.
The existence of these four standards must be contextual and the absence of only one of them results in the subjection of the substance to the legislation on waste and not to the regime of byproducts.
The Consolidated Act on the Environment has also redesigned, through Legislative Decree no. 205/2010, some very important concepts linked to the responsibility for waste management (articles 188, 189, 190 and 193 of Legislative Decree 152/2006) and to the sanctioning profiles (articles 258 and 260 of Legislative Decree 152/2006).