Landowner can be held liable for waste incineration he did not know about

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Case C-129/16 Túrkevej Tejtermelö KFT, Judgment of 13 July 2017, ECLI:EU:C:2017:547

The Court of Justice has ruled that a national law requiring a landowner to pay a pecuniary fine for the incineration of waste on his land that he did not know about is compatible with EU law.

The ECJ was asked to decide whether a landowner could be held liable under EU law for waste incineration on his land which he did not know of and which he could not have prevented. The Court answered positively to that question.

TTK was the owner of a piece of land in Hungary. In March 2014, TTK leased that land to another person. That person died in April 2014. In July 2014, some 20 to 30m³ of waste were incinerated on that land. Under Hungarian law, in such a case, the land owner may be held jointly and severally liable for the incident. TTK was fined with a pecuniary sanction. The competent Hungarian court wanted to know whether this provision was compatible with EU law and whether the Hungarian authorities were entitled to impose a pecuniary sanction on the land owner.

The ECJ first confirmed earlier judgments that Article 191(2) TFEU did not allow the landowner to base his defence on that provision. Article 191(2) TFEU provides that the “polluter should pay”. Some linguistic versions of that provision, though, provide that the “polluter shall pay”. The land owner argued that since he was not the polluter – the person who had incinerated the waste – he could not be held responsible for the incident.

The ECJ was categorical, though: it ruled that Article 191(2) TFEU could not constitute a basis on which an individual person could base itself before a court. Only on measures adopted on the basis of Article 192 TFEU can give rise to arguments by individuals.

The Court then went on to examine Directive 2004/35 on environmental liability. It did not discuss the responsibility of the land owner under EU waste law, as the Hungarian court which had submitted the case had not asked for such an examination. The ECJ found that Directive 2004/35 did not normally include liability for air pollution damage, but agreed that such damage could be taken into consideration when the air pollution had caused damage to water, soil, species or habitats; it was up to the national court to find out whether this was the case.

The ECJ further continued by stating that Directive 2004/35 was based on the polluter-pays principle: it should be the polluter to remedy the damage, not other persons. As the land owner had not caused the environmental impairment, he could not be held liable under that Directive.

However, Article 16 of Directive 2004/35 allowed Member States to provide for a better protection of the environment than ensured by the Directive. This provision coincided with Article 193 TFEU which also allowed Member States to maintain or introduce more stringent provisions than those adopted at EU level, in order to protect the environment. As the Hungarian provision had the objective to ensure a better environmental protection that Directive 2004/35 by holding, under certain circumstances, the owner of land jointly and severally liable for environmental impairment, it was compatible with both Directive 2004/35 and Article193 TFEU.

Nevertheless, Directive 2004/35 provides for the remedying of environmental damage. The ECJ was thus also asked, whether the imposition of a pecuniary fine was really a more stringent requirement and could be imposed. It held that a sanction in the form of a pecuniary damage for environmental impairment was an appropriate instrument to make the better protection objective operational, provided that the sanction was proportionate and necessary. It was for the national court to decide on that.

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Mike Prince