Opinion of Advocate General Kokott delivered on 15 July 2021.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2021:619
• Date: 15 July 2021
• Celex Number: 62020CC0181
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 15 July 2021 (1)

Case C‑181/20

VYSOČINA WIND a.s.

v

Czech Republic

(Request for a preliminary ruling from the Nejvyšší soud (Supreme Court, Czech Republic))

(Request for a preliminary ruling – Directive 2012/19/EU – Waste – Waste electrical and electronic equipment (WEEE) – Costs for the collection, treatment, recovery and environmentally sound disposal of photovoltaic panels – Producer responsibility – Incorrect transposition of a directive – Liability of a Member State – Polluter-pays principle – Principle of non-retroactivity)

I. Introduction

1. In the main proceedings, Vysočina Wind seeks compensation from the Czech State on the ground that the latter incorrectly implemented the polluter-pays principle as given concrete expression by Directive 2012/19/EU (2) with regard to photovoltaic panels.

2. The liability claim under EU law is based on the judgment in Francovich and Others (3) and requires, inter alia, a sufficiently serious infringement of EU law. (4) Such an infringement could reside in an incorrect transposition of Directive 2012/19, but would be ruled out if the relevant rules of the directive infringe higher-ranking EU law, in particular the principle of non-retroactivity.

3. The Czech Republic has doubts as to the compatibility of Directive 2012/19, published in 2012, with EU law in so far as it provides that producers of photovoltaic panels are to bear the costs of disposing of all panels that they have already placed on the market since 13 August 2005. Therefore, that Member State adopted legislation imposing those costs on the users of the panels if they were placed on the market by 1 January 2013. Vysočina Wind operates a solar power plant and was required to bear costs on the basis of that legislation, and it is now seeking to recover them.

4. It is therefore necessary to clarify the extent to which the establishment of producer responsibility for photovoltaic panels is compatible with the principle of non-retroactivity.

II. Legal framework

A. EU legislation on the disposal of WEEE

1. Directive 2012/19

5. The subject matter of Directive 2012/19 is defined in Article 1:

‘This Directive lays down measures to protect the environment and human health by preventing or reducing the adverse impacts of the generation and management of waste from electrical and electronic equipment (WEEE) and by reducing overall impacts of resource use and improving the efficiency of such use in accordance with Articles 1 and 4 of [the Waste Directive (5)], thereby contributing to sustainable development.’

6. The scope of Directive 2012/19 follows, in particular, from Article 2(1):

‘This Directive shall apply to electrical and electronic equipment (EEE) as follows:

(a) from 13 August 2012 to 14 August 2018 (transitional period), subject to paragraph 3, to EEE falling within the categories set out in Annex I. Annex II contains an indicative list of EEE which falls within the categories set out in Annex I;

(b) from 15 August 2018, subject to paragraphs 3 and 4, to all EEE. All EEE shall be classified within the categories set out in Annex III. Annex IV contains a non-exhaustive list of EEE which falls within the categories set out in Annex III (open scope).’

7. Article 3(1) of Directive 2012/19 defines various terms:

‘For the purposes of this Directive, the following definitions shall apply:

(a) “electrical and electronic equipment” or “EEE” means equipment which is dependent on electric currents or electromagnetic fields in order to work properly and equipment for the generation, transfer and measurement of such currents and fields and designed for use with a voltage rating not exceeding 1 000 volts for alternating current and 1 500 volts for direct current;

…

(e) “waste electrical and electronic equipment” or “WEEE” means electrical or electronic equipment which is waste within the meaning of Article 3(1) of [the Waste Directive], including all components, sub-assemblies and consumables which are part of the product at the time of discarding;

…’

8. Annex I to Directive 2012/19 sets out the categories of EEE covered by the directive during the transitional period as provided for in Article 2(1)(a). Point 4 refers to consumer equipment and photovoltaic panels.

9. Moreover, photovoltaic panels are referred to in point 4 of the indicative list of EEE of Annex II to Directive 2012/19 which falls within the categories of Annex I.

10. Article 13(1) of Directive 2012/19 governs the producer responsibility for the costs of disposing of equipment intended for professional use:

‘Member States shall ensure that the financing of the costs for the collection, treatment, recovery and environmentally sound disposal of WEEE from users other than private households resulting from products placed on the market after 13 August 2005 is to be provided for by producers.

For historical waste being replaced by new equivalent products or by new products fulfilling the same function, the financing of the costs shall be provided for by producers of those products when supplying them. Member States may, as an alternative, provide that users other than private households also be made, partly or totally, responsible for this financing.

For other historical waste, the financing of the costs shall be provided for by the users other than private households.’

11. Moreover, it follows from Article 12(4) of Directive 2012/19 that ‘WEEE from products placed on the market on or before 13 August 2005’ is to be regarded as ‘historical waste’.

12. The same provisions were already laid down in Article 9(1) and Article 8(3) of Directive 2002/96/EC on waste electrical and electronic equipment (WEEE). (6) However, the earlier directive did not apply to photovoltaic panels. It was not until Directive 2012/19 that they were covered.

13. Producer responsibility is addressed in recital 23 of Directive 2012/19:

‘… In order to give maximum effect to the concept of producer responsibility, each producer should be responsible for financing the management of the waste from his own products. The producer should be able to choose to fulfil this obligation either individually or by joining a collective scheme. Each producer should, when placing a product on the market, provide a financial guarantee to prevent costs for the management of WEEE from orphan products from falling on society or the remaining producers. The responsibility for the financing of the management of historical waste should be shared by all existing producers through collective financing schemes to which all producers that exist on the market when the costs occur contribute proportionately. Collective financing schemes should not have the effect of excluding niche and low-volume producers, importers and new entrants. Collective schemes could provide for differentiated fees based on how easily products and the valuable secondary raw materials that they contain could be recycled. In the case of products which have a long life cycle and which are now covered by this Directive, such as photovoltaic panels, the best possible use should be made of existing collection and recovery systems, provided that they meet the requirements laid down in this Directive.’

14. Directive 2012/19 was published on 24 July 2012 and, according to Article 24(1) thereof, was to be transposed by 14 February 2014.

2. The Waste Directive

15. In addition, reference must be made to the provisions regarding responsibility for waste laid down in the waste directives respectively applicable.

16. Article 15 of Waste Directive 75/442 (7) (initially Article 11) and Article 15 of Waste Directive 2006/12 (8) each provided as follows:

‘In accordance with the “polluter pays” principle, the cost of disposing of waste must be borne by:

… the holder who has waste handled by a waste collector or by an undertaking as referred to in Article 9; and/or

… the previous holders or the producer of the product from which the waste came.’

17. Article 14 of the Waste Directive, which is now applicable, contains a similar rule:

‘1. In accordance with the polluter-pays principle, the costs of waste management shall be borne by the original waste producer or by the current or previous waste holders.

2. Member States may decide that the costs of waste management are to be borne partly or wholly by the producer of the product from which the waste came and that the distributors of such product may share these costs.’

B. Czech law

18. The Czech Republic implemented its obligations arising from the original Directive 2002/96 by enacting the Law on waste. On 30 May 2012, prior to the adoption of Directive 2012/19, a new Paragraph 37p was inserted into that law, introducing a mechanism for financing the management of waste from photovoltaic panels. According to that provision, the obligation to finance the management of waste from photovoltaic panels placed on the market before 1 January 2013 is borne by the operator of the solar power plant, through equal sub-payments of recycling contributions. To that end, an obligation was set to enter into, by 30 June 2013, an agreement with an entity providing a collective financing system, such that the financing is obtained by 1 January 2019. In the case of photovoltaic panels placed on the market after 1 January 2013, the obligation falls on the producer.

III. Facts and request for a preliminary ruling

19. Vysočina Wind is the operator of the ‘Vranovská ves II’ solar power plant. The power plant was put into operation in 2009, using photovoltaic panels placed on the market after 13 August 2005. After the introduction of the new Paragraph 37p of the Czech Law on waste, Vysočina Wind therefore entered into agreements with the relevant entities, on the basis of which it paid out a contribution for the future recycling of electric waste from photovoltaic panels in the total amount of 1 613 773.24 Czech koruny (CZK)...