HAVET & VANHUFFEL – Association d’avocats
The Court of Justice of the European Union (CJUE) was seized of a preliminary question by the Court of Appeal of Stockholm, Real Estate and Environmental Division.
The case concerned two companies seeking to ship containers from Sweden to Cameroon (via Belgium) and to the Democratic Republic of the Congo (via Germany).
Believing that the containers contained waste, including hazardous waste, the Swedish Environmental Protection Agency concluded that the transfer constituted an illegal shipment of waste to third countries, and informed the companies that the two containers had to be returned to Sweden.
As the exporting companies were unable to arrange for the return of the containers to Sweden, the Agency organized the transport itself and issued the transfer notifications provided for under Article 24(2), third subparagraph, of Regulation No 1013/2006. It identified itself as the notifier and person responsible for the transfer, and indicated an approved waste reception facility in Sweden where the waste would be transferred for recovery.
Each of the exporting companies brought an action before the court of first instance against the Agency’s decisions. In partially upholding both appeals, that court held that, insofar as the decisions provided for the treatment of the container contents by the Agency, they infringed the right to property, as no legal basis authorized such an action.
The Agency appealed that judgment to the referring court, arguing that if Article 24(2)(a)(c) of Regulation No 1013/2006 were to be interpreted as not allowing the competent authority of the country of dispatch to recover waste within its territory when the exporter had not taken it back and was deemed incapable of treating it properly, such an interpretation would undermine the Regulation’s objectives.
The Court of Appeal of Stockholm asked, first, whether points (c) and (d) of Article 24(2), first subparagraph of the Regulation apply alternatively, and second, whether a take-back of waste under point (c) implies for the Agency an obligation or merely a possibility to carry out recovery or disposal. It also questioned the compatibility of such an effect with the right to property.
According to the Court of Justice, it follows from the wording of Article 24(2), first subparagraph, point (c) of Regulation No 1013/2006 that the take-back of waste by the competent authority of the country of dispatch, in the case of an illegal shipment for recovery or disposal, applies on a subsidiary basis. The authority intervenes only when the illegal shipment results from the notifier’s actions, and the notifier has neither taken back the waste nor demonstrated the intention or ability to manage it in an environmentally sound manner, or is likely to attempt another illegal transfer.
Thus, given the subsidiary nature of the authority’s intervention, the take-back of waste by that authority does not constitute a deprivation of property within the meaning of Article 17(1) of the Charter of Fundamental Rights of the European Union. Nevertheless, such a measure constitutes a limitation on the exercise of the right to property, falling within the regulation of the use of property under Article 17(1), third sentence of the Charter, since the destination of the waste must necessarily be its recovery or disposal.
The Court recalls that the right to property, guaranteed by Article 17(1) of the Charter, is not absolute, and its exercise may be subject to restrictions justified by objectives of general interest pursued by the Union, as provided for in Article 52(1) of the Charter.
In this case, the Court held that:
-
The requirement under Article 52(1) of the Charter, that restrictions on the exercise of the right to property must be “provided for by law,” is met, since Article 24(2)(a)(c) of Regulation No 1013/2006 must be interpreted as obliging the competent authority of the country of dispatch to recover or dispose of the waste taken back, which may restrict the property rights of their owners;
-
The protection of the environment and human health, the main objective of Regulation No 1013/2006, constitutes an objective of general interest capable of justifying such restrictions on the right to property;
-
The take-back of waste by the competent authority of the country of dispatch for recovery or disposal following an illegal shipment, insofar as it ensures the treatment of that waste, complies with the principle of proportionality. On the one hand, such a measure is apt to achieve the goal of protecting the environment and human health; on the other hand, the limitations caused — namely the restrictions on property rights — are not disproportionate in relation to that objective.
To access the judgment, follow this link: https://curia.europa.eu/juris/document/document.jsf?text=&docid=305420&pageIndex=0&doclang=fr&mode=req&dir=&occ=first&part=1&cid=5296443.