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Content updated: 13-03-2020 12:00

Some legal provisions regulating the activity of waste incineration are in conflict with the Constitution

18-02-2020

By its ruling adopted today, the Constitutional Court has recognised that Paragraph 6 of Article 4 of the Law on Waste Management, insofar as it provides that the waste management objects of national importance are allowed to be built at a distance not closer than 20 kilometres from a residential area if municipal waste that remains after sorting and is unsuitable for recycling but has energy value may be used or may be planned to be used in these objects as fuel to generate energy, is in conflict with Paragraphs 1 and 3 of Article 46 of the Constitution and the constitutional principle of a state under the rule of law. In addition, also the provision of the Law on Waste Management, whereby the Government was commissioned to establish the criteria for the recognition of waste management objects in which municipal waste unsuitable for recycling may be incinerated as being of national importance, and Items 5 and 6 of the Description of the Establishment and Recognition of Waste Management Objects of National Importance as approved by the government resolution (No 113) of 2 February 2000, which establish the above-mentioned criteria, were declared unconstitutional. Also Paragraph 3 of Article 3 of the Law Amending the Law on Waste Management, under which the right was granted to the Government to take decisions on the further implementation of the projects of waste incineration power plants that had already been launched, was ruled to be in conflict with Paragraphs 1 and 3 of Article 46 of the Constitution and the constitutional principle of a state under the rule of law.

In this ruling, the Constitutional Court recalled that freedom of economic activity, which is consolidated in Paragraph 1 of Article 46 of the Constitution, is not absolute, it may be subject to limitation where it is necessary to defend the values consolidated in the Constitution; the legislature may establish such limitations on the said activity where those limitations would aim to ensure the general welfare of the People, to protect against harmful impacts on human health and the environment, and to remedy the damage caused to the natural environment. However, under the Constitution, by means of a legal regulation, it is possible to establish such limitations on the economic activity that would not restrict freedom of the economic activity more than necessary to achieve constitutionally significant objectives, i.e. it is necessary to follow the principle of proportionality, as an element of the constitutional principle of a state under the rule of law, which means that the measures that are provided for in legal acts and applicable must be proportionate with the objectives sought.

The Constitutional Court also noted from the aspect relevant to this case that, in regulating the organisation of waste management as one of the types of economic activity, among other things, in establishing the requirements and conditions for the economic activity of waste management so that this legal regulation would comply with the requirement to serve the general welfare of the People established in Paragraph 3 of Article 46 of the Constitution, the legislature must pay regard to the requirement, stemming from the constitutional principle of a state under the rule of law, not to establish such a legal regulation under which the possibilities (implied by freedom of individual economic activity and economic initiative, which are consolidated in Paragraph 1 of Article 46 of the Constitution) of economic operators willing to engage in waste management activities to manage waste in the most environmentally and public health friendly manner would be disproportionately complicated, or it would be impossible, in general, to engage in this activity.

When deciding on the compliance of Paragraph 6 of Article 4 of the Law on Waste Management with Paragraph 3 of Article 46 of the Constitution, the Constitutional Court noted that the impugned legal regulation was aimed at reducing the negative impact of waste incineration facilities on the health of residents, therefore, to ensure the implementation of the imperative of the protection of public health, which is consolidated in Article 53 of the Constitution. The Constitutional Court also noted that the objective set by itself – to reduce the negative impact of waste incineration facilities on public health – can be achieved by other means less restrictive of the economic activity of waste incineration, e.g. by establishing the duty to carry out a mandatory environmental impact assessment of the planned economic activity during which, among other things, having taken into account of the place of the planned economic activity, the impact of this economic activity on the elements of the environment and public health is assessed, as well as by establishing the duty to implement the economic activity under the conditions for economic activity laid down in the integrated pollution prevention and control permit. Thus, the requirement to build the waste management objects of national importance, in which municipal waste unsuitable for recycling may be used as fuel to generate energy, at a distance not closer than 20 kilometres from a residential area established by the impugned legal regulation should be assessed as a restriction on the economic activity of waste incineration that disproportionately complicates the ability of economic operators to manage waste in the most environmentally and public health-friendly manner. The Constitutional Court noted that the requirement of the distance of 20 kilometres was not based on objective criteria. Consequently, as the Constitutional Court held, by means of the impugned legal regulation, the legislature did not comply with the imperative, stemming from Paragraph 1 of Article 46 of the Constitution, to guarantee freedom of economic activity and not to restrict it more than necessary to achieve constitutionally significant objectives and the imperative, stemming from Paragraph 3 of Article 46 of the Constitution, to regulate economic activity so that it serves the general welfare of the People; the legislature also disregarded the constitutional principle of a state under the rule of law, according to which, the measures established by legal acts must be proportionate to the objective sought.

If the Constitutional Court finds the unconstitutionality of the provisions consolidated in the same legal act the compliance of whose other provisions with the Constitution is impugned by the petitioner, the obligation of the Constitutional Court is to hold this fact; in implementing constitutional justice, the Constitutional Court must also hold the unconstitutionality of the substatutory legal act which falls within the competence of the Constitutional Court and which implements the provisions of the law impugned in the constitutional justice case.

According to Paragraph 6 of Article 4 of the Law on Waste Management impugned by the petitioner, municipal waste that remains after sorting and is unsuitable for recycling but has energy value may only be incinerated in waste management objects that meet the criteria laid down by the Government for the recognition of waste management objects as being of national importance; the establishment of these criteria is assigned to the Government. The said criteria were established in the Description of the Establishment and Recognition of Waste Management Objects of National Importance (hereinafter referred to as the Description) as approved by the government resolution.

The Constitutional Court noted that the requirement that the waste management objects, in which municipal waste unsuitable for recycling may be used as fuel to generate energy, must meet the criteria established by the Government, under which these objects are recognised as objects of national importance, should be assessed as an essential condition for the economic activity of incineration of municipal waste that remains after sorting and is unsuitable for recycling.

The Constitutional Court underlined that, under the Constitution, among other things, Paragraphs 1 and 3 of Article 46 thereof, and the constitutional principle of a state under the rule of law, in seeking to ensure the public interest under Articles 53 and 54 of the Constitution that waste would be managed properly and would not endanger the environment and public health, the essential conditions for the economic activities of waste management, including clear criteria for determining the entities that may carry out the relevant waste management activities, must be laid down by means of a law. In view of the above, the Constitutional Court declared unconstitutional the legal regulation established in Paragraph 6 of Article 4 of the Law on Waste Management, insofar as it commissioned the Government to establish the criteria for the recognition of waste incineration objects as being of national importance, as well as Items 5 and 6 of the Description approved by the Government, which established the said criteria.

In this constitutional justice case, the petitioner also impugned the compliance of Paragraph 3 of Article 3 of the Law Amending the Law on Waste Management with the Constitution.

When deciding on the compliance of the impugned legal regulation with the Constitution, the Constitutional Court noted that, under Paragraph 3 of Article 3 of the Law Amending the Law on Waste Management, the Government was granted unrestricted discretion to adopt decisions, following public health interests, concerning the further implementation of the projects of waste incineration objects whose implementation had already been launched, among other things, to limit the implementation of such projects or to terminate them at all, regardless of whether or not an environmental impact assessment has been carried out for those projects; during this assessment, while taking into account, inter alia, the location of the economic activity planned, the impact of this economic activity on the elements of the environment and on public health is assessed, and, on the basis of this assessment, the economic activity of waste incineration may be authorised under the conditions laid down in the integrated pollution prevention and control permit, which includes the control of effects on the elements of the environment.

The Constitutional Court also noted that it is not clear from the impugned legal regulation how the Government would apply the criterion of public health interest when deciding on the further implementation of waste management objects of national importance already underway where non-recyclable municipal waste can be incinerated for generating energy.

In view of this, the Constitutional Court held that, by the impugned legal regulation consolidated in Paragraph 3 of Article 3 of the Law Amending the Law on Waste Management, preconditions were created to apply the decisions of the Government not only for the facts and consequences which had arisen prior to the entry into force of this law, therefore, to interfere with the legal relationships of economic activities of waste incineration already carried out or planned. In the event that the Government decides to limit or terminate the further implementation of existing projects of waste incineration objects, preconditions would be created not only to limit the planned or ongoing waste incineration economic activities by means of a substatutory legal act, but also to deny the legitimate expectations of the developers of such projects (economic operators) that the already started projects of waste incineration plants could actually be implemented in accordance with the documents permitting the economic activity. Thus, the Constitutional Court held that by means of the legal regulation consolidated in Paragraph 3 of Article 3 of the Law Amending the Law on Waste Management, the legislature disregarded the requirements, stemming from Paragraphs 1 and 3 of Article 46 of the Constitution, to establish the limitations on freedom of economic activity only by means of a law and to regulate economic activity so that it serves the general welfare of the People, as well as the requirement, stemming from the constitutional principle of a state under the rule of law, to ensure the protection of the legitimate expectations of economic operators implementing the economic activity of waste incineration.

In its ruling, the Constitutional Court held that Paragraph 1 of Article 107 of the Constitution consolidates the general rule that the force of decisions of the Constitutional Court is prospective. This means that as long as the Constitutional Court has not officially published a decision that a certain legal act (part thereof) is in conflict with the Constitution, it is presumed that the legal act in question (part thereof) is in compliance with the Constitution and that the legal effects that have appeared on the basis of such a legal act (part thereof) are legitimate. When the Constitutional Court adopts rulings, the stability of the legal system may not be violated and the confidence in subjects of legal relationships may not be undermined by means of legal acts adopted in a state. Therefore, the fact that it is held in this ruling of the Constitutional Court that Items 5 and 6 of the Description are in conflict with the Constitution may not in itself be the grounds for impugning the compliance of the legal acts adopted prior to the official publication of this ruling of the Constitutional Court which had been adopted by applying the criteria established in Items 5 and 6 of the Description for the waste management objects in which municipal waste unsuitable for recycling may be used as fuel to generate energy, under which these objects are recognised as objects of national importance.

The full text of this ruling of the Constitutional Court is available on the website of the Constitutional Court at https://www.lrkt.lt/lt/teismo-aktai/paieska/135/ta2075/content.