Decision 5/2021 on waste management
9 February 2021
Decision number: I/2105/2020
Subject of the case:
Preliminary norm control aimed at establishing the lack of conformity with the Fundamental Law and annulling certain provisions of the chapter entitled “19. The amendment of the Act CLXXXV of 2012 on Waste” of the Act adopted on the Parliament’s session of 15 December 2020 on the amendment of certain Acts in the field of energy and waste management (Bill No. T/13958) (waste management)
In the course of the proceedings initiated by the motion of the President of the Republic, the Constitutional Court found that Section 49 (1) of the Act on Amendments to Certain Energy and Waste Management Acts, passed by the National Assembly on 15 December 2020, was contrary to the Fundamental Law. Under the challenged paragraph of the Act, the possessor of waste may dispose of it only by transferring it to the State, the concessionaire or the concessionaire’s subcontractor, which waste thus becomes the property of the State, the concessionaire or the concessionaire’s subcontractor; according to this, the ownership of production and industrial waste is taken away by law. However, as explained in the petition, these wastes represent value, but the law does not provide for the related compensation in any way, and it even foresees the obligation of the original waste holder to pay for these wastes, which causes double damage to the producer with respect to commercially tradeable wastes. In the opinion of the President of the Republic, the amendment violates the provision of the Fundamental Law guaranteeing the protection of the right to property by ordering the withdrawal of the property of production and industrial waste without full, unconditional and immediate compensation. In its decision, the Constitutional Court found that the challenged provision does in certain cases indeed restrict the ownership of waste by the possessor of waste who is also the owner of waste in such a way as to cause to it real and pecuniary disadvantage without providing for an obligation of compensation to secure proportionality. The Constitutional Court emphasized that it is the task of the law-maker to create a sufficiently differentiated system that simultaneously creates compensation for waste owners and takes into account the full enforcement of mandatory public service, environmental and public health aspects in such a manner to make them comply with our regulatory obligations under EU regulations. The President of the Republic also initiated to declare that Section 38 (2) and Section 62 of the Act are contrary to the Fundamental Law, but the Constitutional Court rejected the motion to that effect.