Legal Advisor Przemysław Ostrzyżek from the law firm Chałas i Wspólnicy explains the practical aspects of the interpretation of the Waste and Recycling Act.
Waste is any substance or item that the owner disposes of, intends to dispose of or is obliged to dispose of. There is a statutory definition of waste resulting from the provisions of the Act of December 14, 2012 on waste. What are the grounds for considering an item or substance to be waste?
– In the light of the above-mentioned Act, the will of the holder is decisive. Therefore, whether something is waste depends on the behavior of the owner and his or her intention to dispose of the item or substance. It is important that the concept of "disposal" does not mean renting, leasing, selling or donating, bearing in mind the interpretation of Directive 2008/98/EC. The purpose of the above-mentioned directive is to reduce the negative effects on health and the environment resulting from the production and management of waste, says the legal advisor.
E-waste: commercial value of waste and legal status
Getting rid of waste means both neutralizing and recovering it. Classifying an item or substance as waste does not exclude the possibility of its economic reuse.
– Waste may have commercial value and may be collected for recycling or regeneration, but its use in these processes does not change its status as waste. Since the decisive factor is the desire of the holder to dispose of an item or substance, having commercial value or deciding to recycle it does not deprive it of its waste status. What is important is the intention of the possessor, not the commercial value of the object or substance, or even the possibility of processing or regeneration, i.e. economic re-use. This has practical significance for assessing various behaviors of entrepreneurs, he says.
Import of electronic waste, e.g. post-accident cars
An example would be the business of importing post-accident cars, which essentially means importing car wrecks.
– The assessment of a vehicle imported from abroad having the status of waste depends on whether, at the moment of crossing the border, it can be used in accordance with its original purpose, i.e. whether it can legally travel on roads – as stated by the Supreme Administrative Court in its judgment of June 18, 2015 "It does not matter that the vehicle imported from abroad was later repaired, meets technical requirements and was registered, because at the time of import into Poland it was damaged and could not be used as intended," he explains.
If the previous owners of the vehicle did not carry out repairs enabling its use and did not obtain a reconstructed vehicle certificate enabling the vehicle to be registered, and taking into account the fact that the last owner sold the vehicle for an amount significantly below its market value, it can be concluded that the last owner, having no further use for the vehicle, , got rid of him.
– This constitutes a premise for recognizing the vehicle in question as waste under the Waste Act, according to which waste is understood as "any substance or object that the holder gets rid of, intends to get rid of or is obliged to get rid of" – as the Supreme Court ruled Administrative in the judgment of April 14, 2014 – says counsel Przemysław Ostrzyżek.
Repair and registration do not deprive it of waste status
In the light of the jurisprudence of administrative courts, what matters is the condition at the time of introducing the item into Poland and the will of the previous user, and repairing the vehicle and registering it does not deprive it of the status of waste. Based on Article. 18 of the Act of 20/01/2005 on the recycling of end-of-life vehicles, the owner of such a vehicle transfers it only to an entrepreneur running a dismantling station or an entrepreneur running a vehicle collection point. Repair of the vehicle in a professional bodywork and painting workshop or authorized service does not meet the statutory requirements for waste management and violates Art. 29 section 1 of the Waste Act, because waste must be processed in installations or devices. This means that waste can be deprived of the status of waste only by subjecting it to recovery processes, in particular recycling – in accordance with the judgment of the Supreme Administrative Court of May 18, 2021.
