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

23VYSOČINA WIND operates a solar power plant, which was put into service in 2009 and is equipped with photovoltaic panels that were placed on the market after 13August 2005 but before 1January 2013.

24In accordance with the obligation laid down in Paragraph37p of the Law on waste, that company participated in the financing of the costs relating to the management of waste from photovoltaic panels and, for that purpose, paid contributions totalling 1613773.24 Czech koruny (CZK) (approximately EUR59500) in the course of 2015 and 2016.

25Since VYSOČINA WIND took the view that that obligation resulted directly from an incorrect transposition of Directive 2012/19 by the Czech Republic and that the payment of those contributions constituted harm, it brought an action for damages against that Member State before the Obvodní soud pro Prahu 10 (District Court, Prague 10, Czech Republic). In particular, it takes the view that Paragraph37p of the Law on waste is contrary to Article13(1) of Directive 2012/19 which makes the producer of EEE, and not its user, responsible for the financing of the costs relating to the management of waste from photovoltaic panels placed on the market after 13August 2005.

26By judgment of 6April 2018, that court upheld the action in its entirety. The Czech Republic brought an appeal against that judgment before the Městský soud v Praze (Prague City Court, Czech Republic), which dismissed the appeal as unfounded by judgment of 14November 2018. According to that court, it is clear from the wording of Article13(1) of Directive 2012/19 that the financing of the costs relating to the management of waste from photovoltaic panels placed on the market after 13August 2005 must be provided for by producers, with the result that Paragraph37p of the Law on waste, by continuing to impose that obligation on users, is incompatible with that directive.

27The Czech Republic accordingly appealed on a point of law to the Nejvyšší soud (Supreme Court, Czech Republic), contending, first, that the effect of that interpretation of Article13(1) of Directive 2012/19 is to render that provision unlawfully retroactive. Second, a number of producers who placed photovoltaic panels on the market between 2005 and 2013 are no longer in business, preventing provision being made for the financing of the costs relating to the management of waste from those panels. Third, the Czech Republic is of the view that the lack of observations on the part of the Commission in the EU pilot procedure concerning the transposition of Directive 2012/19 into national law and the lack of an infringement procedure initiated by the Commission against it show that it transposed Directive 2012/19 correctly, as the Commission allegedly confirmed at a bilateral meeting that was held on 1October 2018.

28The referring court is uncertain, in that context, as to the interpretation of Article13(1) of Directive 2012/19 inasmuch as, whilst it is not in dispute that that provision obliges the Member States to require producers to finance the costs relating to the management of waste from photovoltaic panels provided that they are panels placed on the market after the expiry of the period for transposition of that directive on 14February 2014, and that, for ‘historical waste’, from photovoltaic panels placed on the market before 13August 2005, the Member States may impose that obligation on users, the question arises, on the other hand, as to the application of that financing obligation in the case of waste from photovoltaic panels placed on the market between 13August 2005 and 14February 2014.

29According to the referring court, it is necessary, first of all, to determine when the obligation to finance the costs relating to the management of waste from photovoltaic panels arises. In that regard, it shares the view of the applicant in the main proceedings that that obligation is deemed to arise only when the waste is generated and not, as the Czech Republic contends, when the panels are placed on the market. Consequently, photovoltaic panels which were placed on the market before the period for transposition of Directive 2012/19 expired, on 14February 2014, and which give rise to waste after that date fall within the material scope of that directive, meaning that the obligation thus imposed by Article13(1) of the directive is not in any way retroactive.

30Next, the referring court is uncertain whether Directive 2012/19 was correctly transposed into Czech law given that, first, the Commission itself found, at the time of adoption of Directive 2003/108 amending Directive 2002/96, that the obligation to finance the costs relating to the management of waste from products placed on the market before the period for transposition of the latter directive expired created a retroactive liability likely to expose producers to serious economic risks, as such a finding may be applied in a similar manner to the photovoltaic panels newly included within the scope of EU legislation by Directive 2012/19. Second, the legitimate expectations of producers of photovoltaic panels who could not suppose that such a financing obligation would be imposed on them in respect of waste from panels already placed on the market in the past and who accordingly would not have factored the costs of such financing in the price of their products would be undermined. Third, a difference in treatment would be created between users who were already fulfilling the financing obligation laid down by national law before the expiry of the period for transposition of Directive 2012/19 and those who were not. The referring court observes, fourth, that the Federal Republic of Germany, the Hellenic Republic and the Republic of Austria likewise did not transpose the directive by maintaining the obligation on producers to finance the costs relating to the management of waste from products placed on the market after 13August 2005.

31Finally, the referring court wonders whether the national legislation conflicts with EU law in that, after the adoption of Directive 2012/19, the agreements which the operators of solar power plants were required to conclude in order to provide for the financing of the costs relating to the management of waste from photovoltaic panels and which stipulated payment of the related contributions in instalments were preserved even though that financing falls to the producer under that directive.

32In those circumstances, the Nejvyšší soud (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)Must Article13 of Directive [2012/19] be interpreted as meaning that it prevents a Member State from imposing the obligation to finance the costs of the collection, treatment, recovery, and environmentally sound disposal of WEEE coming from photovoltaic panels placed on the market [by] 1January 2013 on their users, rather than their producers?

(2)If the first question is answered in the affirmative, is the evaluation of the conditions for the liability of a Member State for damage caused to an individual due to a breach of EU law influenced by the fact– which is the case in the main proceedings– that the Member State itself regulated the method of financing of waste from photovoltaic panels prior [even] to the adoption of [Directive 2012/19], which newly included photovoltaic panels in the scope of EU regulation and imposed the obligation to finance the costs on producers, including in relation to panels placed on the market prior to the expiry of the directive’s implementation period (and the adoption of regulation at European Union level)?’

33In accordance with Article61(1) of its Rules of Procedure, the Court invited the parties to the main proceedings and the other interested persons referred to in Article23 of the Statute of the Court of Justice of the European Union to answer in writing certain questions relating, in particular, to the validity of Article13(1) of Directive 2012/19.