Environment, Highways and Leisure

February 17th, 2017 by James Goudie KC

In Case C-129/16, Turkevei v Orszagos, the ECJ is once again asked to clarify the consequences of the polluter-pays principle. This time, the question is whether the owner of a leased-out plot of land may be penalised because waste was illegally incinerated there and that owner did not identify who was the actual user of the land or prove that it, the owner, bears no responsibility for the breach. Although the national court raised this question in the context of the Environmental Liability Directive, that Directive is not applicable because it does not contain any provisions on penalties. Penalties for the illegal incineration of waste instead should rather be assigned to the Waste Directive.  It also is based on the polluter-pays principle and expressly requires effective penalties for breaches. Moreover, because penalties are involved, in addition to the polluter-pays principle, the proportionality principle, which limits the imposition of penalties, must also be considered, as must the presumption of innocence.

Advocate General Kokott, in an Opinion on 16 February 2017, advises as follows. Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage is not applicable to either the imposition of penalties for breaches of obligations under environmental law or to pollution of air quality which does not cause damage to protected species or natural habitats, water or land. Article 36(2) of Directive 2008/98/EC on waste, the polluter-pays principle in Article 191(2) TFEU, the principle in Article 49(3) of the Charter of Fundamental Rights that penalties must be proportionate, and the presumption of innocence in Article 48(1) of the Charter do not preclude the imposition of an appropriate penalty on the owner of a leased plot of land which is based on the statutorily determined presumption that the landowner and the actual user of the land share responsibility for the breach, on that land, of legal rules governing waste management, if it is in principle possible to rebut this presumption by means of reasonable evidence.  However, Member States cannot use Article 193 TFEU as the basis for imposing penalties for the breach of waste management obligations which are founded on unreasonable requirements or which are inappropriate.

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