(Reference for a preliminary ruling– Environment– Directive 2012/19

The first question

34By its first question, the referring court asks, in essence, whether Article13(1) of Directive 2012/19 must be interpreted as precluding national legislation which imposes the obligation to finance the costs relating to the management of waste from photovoltaic panels placed on the market by 1January 2013 on the users of those panels and not on their producers.

35First of all, it must be stated that, whilst this question formally relates solely to the interpretation of Article13(1) of Directive 2012/19, it is apparent from the grounds of the request for a preliminary ruling that the referring court also raises the issue of that provision’s validity given that it might have retroactive effect. In essence, that court notes that such an effect could arise from the fact that, under that provision, the financing of the costs relating to the management of waste from photovoltaic panels must be borne by producers where the waste results from products placed on the market after 13August 2005, a date on which the period for transposition prescribed by the directive had not yet expired. Thus, that provision could create retroactive liability capable of exposing producers to serious economic risks.

36Although, within the framework of the distribution of tasks between the national courts and the Court of Justice for the implementation of Article267 TFEU, it is for the national courts to decide the relevance of the questions referred for a preliminary ruling, it remains, however, the task of the Court of Justice to derive from all the information provided by the national court those aspects of EU law which, having regard to the subject matter of the dispute, require interpretation, or whose validity requires appraisal (judgment of 17September 2020, Compagnie des pêches de Saint-Malo, C‑212/19, EU:C:2020:726, paragraph27 and the case-law cited).

37Consequently, in order to give the referring court a complete answer, it is appropriate also to examine the validity of Article13(1) of Directive 2012/19 in the light of the principle of legal certainty in so far as that provision requires the financing of the costs relating to the management of waste from photovoltaic panels to be provided for by producers in respect of waste from such panels placed on the market after 13August 2005, that is to say, on a date before that directive entered into force.

38Thus, as a first step, Article13(1) of Directive 2012/19 is to be interpreted, as requested by the referring court. If that provision is interpreted as precluding national legislation which imposes the obligation to finance the costs relating to the management of waste from photovoltaic panels placed on the market after 13August 2005 on their users and not on producers, it will be necessary, as a second step, to examine that provision’s validity.

39In that regard, first, in accordance with settled case-law, an interpretation of a provision of EU law cannot have the result of depriving the clear and precise wording of that provision of all effectiveness (judgment of 6September 2012, Czop and Punakova, C‑147/11 and C‑148/11, EU:C:2012:538, paragraph32 and the case-law cited). Thus, where the meaning of a provision of EU law is absolutely plain from its very wording, the Court cannot depart from that interpretation.

40Pursuant to Article13(1) of Directive 2012/19, Member States are to 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 13August 2005 is to be provided for by producers.

41According to the definition set out in Article3(1)(e) of that directive, the term ‘WEEE’ covers electrical or electronic equipment which is waste within the meaning of Article3(1) of Directive 2008/98, including all components, sub-assemblies and consumables which are part of the product at the time of discarding.

42In particular, in accordance with Article2(1)(a), Directive 2012/19 is to apply, from the transitional period running from 13August 2012 to 14August 2018, to EEE falling within the categories set out in AnnexI thereto, which expressly include photovoltaic panels. Photovoltaic panels are also referred to in AnnexII to the directive, which details those categories of EEE, and in recitals9 and 23, which state inter alia that products which have a long life cycle, such as photovoltaic panels, are now covered by the directive.

43As the Advocate General has observed, in essence, in point29 of her Opinion, the EU legislature thereby expressed its intention, entirely unambiguously, that photovoltaic panels are to be regarded as EEE, within the meaning of Article3(1)(a) of Directive 2012/19, and that they are therefore to fall within the scope of that directive.

44Accordingly, it must be held that Article13(1) of Directive 2012/19 requires the Member States to adopt the laws, regulations and administrative provisions necessary to place responsibility for the financing of the costs relating to the management of waste from photovoltaic panels on producers thereof and not on the users, if the panels were placed on the market after 13August 2005.

45Consequently, without prejudice to the examination of validity referred to in paragraph38 of the present judgment, Article13(1) of Directive 2012/19 must be interpreted as precluding national legislation which imposes the obligation to finance the costs relating to the management of waste from photovoltaic panels placed on the market after 13August 2005 on the users of those panels and not on their producers.

46In the light of that interpretation, it is necessary, second, as mentioned in paragraphs37 and 38 of the present judgment, also to assess the validity of that provision.

47In that regard, it should be recalled that the principle of legal certainty, which is one of the general principles of EU law, requires that rules of law be clear, precise and predictable in their effect, especially where they may have negative consequences for individuals and undertakings, so that persons may ascertain unequivocally what their rights and obligations are and may take steps accordingly (see, to that effect, judgments of 28March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraph161, and of 30April 2019, Italy v Council (Fishing quota for Mediterranean swordfish), C‑611/17, EU:C:2019:332, paragraph111 and the case-law cited). In addition, in accordance with settled case-law, whilst the principle of legal certainty precludes a new legal rule from applying retroactively, namely to a situation established prior to its entry into force, that same principle requires that any factual situation should normally, in the absence of any express contrary provision, be examined in the light of the legal rules existing at the time when the situation obtained (see, to that effect, judgments of 3September 2015, A2A, C‑89/14, EU:C:2015:537, paragraph37, and of 26March 2020, Hungeod and Others, C‑496/18 and C‑497/18, EU:C:2020:240, paragraph94 and the case-law cited).

48Furthermore, a new legal rule applies immediately to the future effects of a situation which arose under the old law, as well as to new legal situations (judgments of 15January 2019, E.B., C‑258/17, EU:C:2019:17, paragraph50, and of 14May 2020, Azienda Municipale Ambiente, C‑15/19, EU:C:2020:371, paragraph57 and the case-law cited). It may be otherwise, however, subject to the principle of the non-retroactivity of legal acts, if the new rule is accompanied by special provisions which specifically lay down the conditions for its temporal application (judgments of 16December 2010, Stichting Natuur en Milieu and Others, C‑266/09, EU:C:2010:779, paragraph32; of 26March 2015, Commission v Moravia Gas Storage, C‑596/13P, EU:C:2015:203, paragraph32; and of 15January 2019, E.B., C‑258/17, EU:C:2019:17, paragraph50).

49It may also exceptionally be otherwise, as the Advocate General has observed, in essence, in point63 of her Opinion, where an aim in the public interest so demands and where the legitimate expectations of those concerned are duly respected (judgments of 26April 2005, ‘Goed Wonen’, C‑376/02, EU:C:2005:251, paragraph33, and of 19March 2009, Mitsui & Co. Deutschland, C‑256/07, EU:C:2009:167, paragraph32).

50In the present instance, it is apparent from Article2(1)(a) of Directive 2012/19 that that directive applies to the equipment referred to in AnnexI thereto, including photovoltaic panels, from 13August 2012, a date which moreover coincides with the date of the directive’s entry into force, that is to say, in accordance with Article26 thereof, the 20th day after its publication in the Official Journal of the European Union on 24July 2012. On the other hand, under Article24(1) of the directive, the Member States had to comply with the directive’s provisions by 14February 2014.

51Thus, the legal rule laid down in Article13(1) of Directive 2012/19 applies, ratione temporis, only in so far as the operations listed therein for the collection, treatment, recovery and environmentally sound disposal of waste from photovoltaic panels are carried out from 13August 2012. Where such operations were carried out before that date, the panels in question no longer existed on that date, and the costs relating to those operations were already incurred on the date on which Directive 2012/19 entered into force, meaning that Article13(1) cannot apply to those operations.

52In the light of the case-law cited in paragraphs47 and 48 of the present judgment, it should therefore be determined whether application of the legal rule, laid down in Article13(1) of Directive 2012/19, that producers are required to provide for the financing of the costs relating to the management of waste from photovoltaic panels placed on the market after 13August 2005, where those panels have, or will, become waste from 13August 2012, is such as to affect adversely a situation established before that directive entered into force or whether its application serves, on the contrary, to govern the future effects of a situation which arose before that directive entered into force.

53It should be recalled that, under the EU legislation which existed before Directive 2012/19 was adopted, the obligation to finance the costs relating to the management of waste from photovoltaic panels was governed by Article14 of Directive 2008/98, which left the Member States the choice of requiring the waste management costs to be borne either by the current or previous waste holders or by the producer or distributor of the photovoltaic panels.

54Consequently, where a Member State had chosen, before the adoption of Directive 2012/19, to require the costs relating to the management of waste from photovoltaic panels to be borne by the users of those panels and not their producers, as was the case in the Czech Republic, the entry into force of Article13(1) of Directive 2012/19, accompanied by the obligation to transpose that provision into national law, affected– as the Advocate General has observed in points53 and 57 of her Opinion– situations established before that directive entered into force.

55Such an alteration of the allocation of the costs relating to the management of waste from photovoltaic panels which was applied under the legislation existing on the date when those panels were placed on the market and sold at a particular price– a date and a commercial transaction whose subsequent alteration by the producer is not possible– cannot be regarded as amounting to the application of a new rule to the future effects of a situation which arose under the old rule since the effects in question are already certain in all respects and therefore established, unlike the effects which were at issue in the case that gave rise to the judgment of 14May 2020, Azienda Municipale Ambiente (C‑15/19, EU:C:2020:371), which related to an alteration, on a date when the landfill at issue was still operational, of the after-care period for the landfill after its closure.

56It is true that the validity of a provision of EU law cannot depend on the position in national law. However, where the EU legislature first gives the Member States a choice in determining the allocation of the costs relating to the management of waste from certain products and decides, subsequently, to establish a rule under which those costs must, in all Member States, be borne by producers, including in relation to products already placed on the market by the latter at a time when that earlier EU legislation was in force, that rule must be regarded as applying retroactively, within the meaning of the case-law cited in paragraph47 of the present judgment, and is therefore liable to infringe the principle of legal certainty.

57That being so, it must be determined whether Article13(1) of Directive 2012/19, in view of the fact that it applies to photovoltaic panels placed on the market between 13August 2005 and the date on which Directive 2012/19 entered into force, namely 13August 2012, and that it therefore governs situations established before the latter date, complies with the conditions resulting from the case-law recalled in paragraphs48 and 49 of the present judgment.

58It is true that that new rule is accompanied by special provisions which specifically lay down the conditions for its temporal application, within the meaning of that case-law, since it expressly and unambiguously covers waste from photovoltaic panels placed on the market after 13August 2005. However, a new legal rule which applies to previously established situations cannot be regarded as complying with the principle of the non-retroactivity of legal acts in so far as it alters, subsequently and unforeseeably, the allocation of costs the incurring of which can no longer be avoided, since operators could legitimately rely in the context of commercial transactions on the allocation of those costs that was provided for in the legislation existing at the time, and thus denies those operators any real possibility of taking appropriate steps following its entry into force.

59Furthermore, in so far as, in accordance with the case-law cited in paragraph49 of the present judgment, retroactive application of a new rule may also be justified where an aim in the public interest so demands and where the legitimate expectations of those concerned are duly respected, it must be stated that, in the present instance, the retroactive application of Article13(1) of Directive 2012/19 would be contrary to the objective set out in recital12 of that directive of encouraging producers to take into full account and facilitate, when designing their products, the repair, possible upgrading, re-use, disassembly and recycling of those products. Indeed, as the German Government submitted in its replies to the Court’s questions to be answered in writing, the achievement of such an objective seems difficult since producers were unable to foresee, when designing the photovoltaic panels, that they would subsequently be required to provide for the financing of the costs relating to the management of waste from those panels.

60The fact, noted by the Parliament, the Council of the European Union and the Commission in their replies to the Court’s questions to be answered in writing, that under Article13 of Directive 2002/96 photovoltaic panels could possibly be added to AnnexIB to that directive, in the context of the amendments necessary for the purpose inter alia of adapting Article7(3) of the directive, concerning calculation of the WEEE recovery targets which producers were required to meet, to scientific and technical progress, cannot invalidate the reasoning set out in paragraphs47 to 59 of the present judgment. It is true that that provision gave notice back in 2002 that producers of photovoltaic panels might be called upon to bear the costs relating to the management of waste from panels placed on the market from a future date that would be laid down, should the need arise, in a new directive. However, it cannot serve as a basis for the conclusion that those producers should have expected that the obligation to finance the costs relating to the management of waste from EEE, as laid down in Article13(1) of Directive 2012/19, would be imposed upon them in respect of photovoltaic panels already placed on the market between 13August 2005 and 13August 2012.

61Accordingly, the retroactive application of Article13(1) of Directive 2012/19 infringes the principle of legal certainty.

62It follows that that provision must be held to be invalid in so far as it imposes on producers the obligation to finance the costs relating to the management of waste from photovoltaic panels placed on the market between 13August 2005 and 13August 2012.

63In the light of all the foregoing considerations, the answer to the first question is as follows:

–Article13(1) of Directive 2012/19 is invalid in so far as it imposes on producers the obligation to finance the costs relating to the management of waste from photovoltaic panels placed on the market between 13August 2005 and 13August 2012;

–Article13(1) of Directive 2012/19 must be interpreted as precluding national legislation which imposes on users of photovoltaic panels, and not on producers of those panels, the obligation to finance the costs relating to the management of waste from such panels placed on the market from 13August 2012, the date on which that directive entered into force.

The second question

64By its second question, the referring court asks, in essence, whether EU law must be interpreted as meaning that the fact that a Member State’s legislation that is contrary to an EU directive was adopted prior to the adoption of that directive affects the assessment of the conditions governing liability of that Member State for damage caused to an individual resulting from the breach of EU law.

65First of all, it is clear from the request for a preliminary ruling that this question has been asked in case Article13(1) of Directive 2012/19 were to require the obligation to finance the costs relating to the management of waste from photovoltaic panels to be borne by producers in respect of panels placed on the market by 1January 2013. Therefore, since it is apparent from the answer to the first question asked by the referring court that that obligation must be imposed in respect of photovoltaic panels placed on the market from the entry into force of Directive 2012/19, that is to say, 13August 2012, the referring court must be regarded as seeking, in essence, to ascertain by its second question whether the fact that the Czech waste legislation contrary to EU law was adopted before that directive affects the assessment of the conditions governing liability of the Czech Republic for damage caused to a user of photovoltaic panels placed on the market in the period from 13August 2012 to 1January 2013.

66It is apparent from the material in the file submitted to the Court that, as the Advocate General has observed in point94 of her Opinion, there are doubts as to whether the dispute in the main proceedings in fact concerns photovoltaic panels placed on the market in the period from 13August 2012 to 1January 2013.

67However, the Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 2July 2020, Magistrat der Stadt Wien (European hamster), C‑477/19, EU:C:2020:517, paragraph40 and the case-law cited).

68That said, since it is conceivable that VYSOČINA WIND did acquire and use, in the course of operating the solar power plant put into service in 2009, photovoltaic panels placed on the market in the period from 13August 2012 to 1January 2013, a matter which will be for the referring court to establish, it is appropriate, in order to give that court a useful answer, to reply to the second question.

69In that context, it must be recalled that the Court has repeatedly held that, under EU law, a right to reparation is conferred where three conditions are met: the rule of law infringed must be intended to confer rights on individuals; the breach must be sufficiently serious; and there must be a direct link between the breach of the obligation resting on the Member State and the damage sustained by the injured parties (judgments of 5March 1996, Brasserie du pêcheur and Factortame, C‑46/93 and C‑48/93, EU:C:1996:79, paragraph51, and of 8July 2021, Koleje Mazowieckie, C‑120/20, EU:C:2021:553, paragraph61).

70In addition, it is clear from settled case-law that it is, in principle, for the national courts to apply the conditions mentioned in the previous paragraph for establishing the liability of a Member State for damage caused to individuals by breaches of EU law for which the State can be held responsible, acting in accordance with the guidelines laid down by the Court for the application of those conditions (judgment of 29July 2019, Hochtief Solutions Magyarországi Fióktelepe, C‑620/17, EU:C:2019:630, paragraph40 and the case-law cited).

71As regards, in particular, the second of those conditions, it should be noted that, in order to determine whether a sufficiently serious breach of EU law has occurred, the national court before which a claim for compensation has been brought must take account of all the factors which characterise the situation put before it (judgment of 29July 2019, Hochtief Solutions Magyarországi Fióktelepe, C‑620/17, EU:C:2019:630, paragraph42).

72In the present instance, it is apparent from the documents before the Court that, more than a month before Directive 2012/19 was adopted, namely on 30May 2012, the Czech legislature inserted in the Law on waste Paragraph37p which establishes the responsibility of users for the financing of the costs relating to the management of waste from photovoltaic panels placed on the market by 1January 2013. In that context, the referring court seeks, in particular, to ascertain whether the fact that the Czech Republic amended its waste legislation before Directive 2012/19 was even adopted can be raised against it in order to give rise to liability on its part because that national legislation conflicts with the directive.

73In order to answer that question, it should be noted that Directive 2012/19 itself prescribes in Article24(1) a period on the expiry of which the laws, regulations and administrative provisions necessary to comply with the directive must have entered into force in the Member States, that is to say, by 14February 2014.

74In that regard, whilst Directive 2012/19 in itself applies, ratione temporis, from 13August 2012, it should be pointed out that, in accordance with settled case-law of the Court, since the period referred to in the previous paragraph is intended in particular to give the Member States the time necessary to adopt the measures transposing a directive, they cannot be faulted for not having transposed it into their internal legal order before expiry of that period. Nevertheless, it is during the period for transposition of the directive that the Member States must take the measures necessary to ensure that the result prescribed by it is achieved at the end of that period (judgments of 18December 1997, Inter-Environnement Wallonie, C‑129/96, EU:C:1997:628, paragraphs43 and 44, and of 27October 2016, Milev, C‑439/16PPU, EU:C:2016:818, paragraphs30 and 31).

75It follows, in accordance with equally settled case-law, that, during the period for transposition of a directive, the Member States to which it is addressed must refrain from taking any measures liable seriously to compromise the achievement of the result prescribed by that directive (see, to that effect, judgments of 18December 1997, Inter-Environnement Wallonie, C‑129/96, EU:C:1997:628, paragraph45, and of 13November 2019, Lietuvos Respublikos Seimo narių grupė, C‑2/18, EU:C:2019:962, paragraph55).

76In the present case, Paragraph37p of the Law on waste was adopted even before Directive 2012/19 was adopted and published in the Official Journal of the European Union, meaning that the period for transposition had not yet started to run, and even before that directive was capable of producing legal effects vis-à-vis the Member States to which it is addressed.

77Therefore, the Czech Republic cannot be found to have acted contrary to the case-law recalled in paragraph75 of the present judgment.

78It follows that the insertion in the Law on waste, more than a month before Directive 2012/19 was adopted, of Paragraph37p, which establishes the responsibility of users for the financing of the costs relating to the management of waste from photovoltaic panels placed on the market by 1January 2013, is not, in itself, capable of constituting a sufficiently serious breach of EU law.

79In the light of all the foregoing considerations, the answer to the second question is that EU law must be interpreted as meaning that the fact that a Member State adopted legislation contrary to an EU directive prior to the adoption of that directive does not constitute, in itself, a breach of EU law, since the achievement of the result prescribed by the directive cannot be regarded as seriously compromised before the directive forms part of the EU legal order.