Török Zsófia GH4OLZ

EU Environmental Law
Case study

Túrkevei Tejtermelő Kft.

v
Országos Környezetvédelmi és Természetvédelmi Főfelügyelőség
Case C‑129/16

Summary:

In 2014, the competent Lower Environmental Protection Agency was informed that on the land,
owned by the Túrkevei Tejtermelő Kft., waste was being incinerated, under unlawful
circumstances. After further inspection, the agency has found that between 30 m3 and 40 m3
of waste, including metallic waste, had been incinerated in each of the three storing units on the
site and three lorries were present to transport the remaining metallic waste.

Therefore, the act has violated several national and community regulations, dealing with waste
management and environment protection, because the incineration inherently produces
omission that is polluting the air.

The Túrkevei Tejtermelő Kft. claimed that it had previously leased the land in question to a
natural person on 15 March 2014, attempting to prove that the lessee is liable instead of it;
however the person had died on 1 April 2014.

The agency decided to impose a fine of 500 000 HUF on the Túrkevei Tejtermelő Kft., in its
land owner capacity, for failing to comply with the provisions of Government Decree 306/2010.

The TTK’s dispute of the decision has been rejected by the agency. The inspectorate held up
the rejection of the complaint, arguing that the incineration has caused environmental hazard
and under the environmental protection laws, the persons who own or are in possession of the
property at the material time are to be held jointly and severally liable, except if they are able
to prove beyond reasonable doubt that it cannot be held responsible. In this case, the lessee
could no longer be liable due to his death, therefore the decision of the Lower Environmental
Protection Agency complies with the regulations and does not infringe on the TTK’s rights.
Török Zsófia GH4OLZ
EU Environmental Law
Case study
The TTK challenged the inspectorate’s decision before the Szolnoki Közigazgatási és
Munkaügyi Bíróság. This court deliberated if the application of national regulations were
compatible with EU law, because while the air pollution fine did not, by reason of its punitive
objective, come within the scope of the ‘remedial measures’ defined in Article 2(11) of
Directive 2004/35, Article 16 of the directive, in accordance with Article 193 TFEU, allows
Member States to implement more stringent provisions to prevent or remedy damage to the
environment. Also, the court refers to a previous judgment, in which it is established that the
environmental liability mechanism implemented by Directive 2004/35 can only be effective if
the competent authority is able to show a causal link between the activity of one or more
identifiable operators and concrete and quantifiable damage, irrespective of the type of
pollution caused, in order for remedial measures to be required of that operator or those
operators. Therefore, the Szolnoki Közigazgatási és Munkaügyi Bíróság claims, there is no
legal basis for imposing the fine, because no causal link can be established between the
environmental damage and the activity of the TTK.

The court referred the following questions to the Court of Justice for a preliminary ruling:

‘(1) Do Article 191 TFEU and the provisions of Directive [2004/35] preclude a provision of
national law which — going beyond the polluter-pays principle — permits the environmental
protection agency to hold specifically the owner of the property liable to pay compensation for
the environmental damage caused, without it first being necessary to determine whether there
is a causal link between the conduct of that person (a commercial undertaking) and the pollution
caused?

(2) If the first question is to be answered in the negative and, with regard to the air pollution,
it is not necessary to remedy the environmental damage, may a fine aimed at protecting air
quality be imposed on the basis of legislation of the Member State which is more stringent
within the meaning of Article 16 of Directive [2004/35] and Article 193 TFEU, or can that more
stringent legislation not, at any rate, result in the imposition of a fine which is solely punitive
in nature on the owner of the property, which is not responsible for the pollution caused?’

The ECJ ruled that the provisions of Directive 2004/35, read in the light of Articles 191 and
193 TFEU, mean that it is up to the referring court to determine through the inspection of the
Török Zsófia GH4OLZ
EU Environmental Law
Case study
facts, if the environmental damage in question falls under the scope of Directive 2004/35,
because air pollution does not in itself constitute environmental damage covered by Directive
2004/35. However, recital 4 of that directive states that environmental damage also includes
damage caused by airborne elements as far as they cause damage to water, land or protected
species or natural habitats. Also, that these provisions do not preclude the national legislation,
provided that such legislation complies with the general principles of EU law, all relevant
provisions of the EU and FEU Treaties and of the acts of secondary law of the European
Union.

The answer to the second question is that the correct interpretation of Article 16 of Directive
2004/35 and Article 193 TFEU is that the situation at issue in the main proceedings comes
within the scope of Directive 2004/35, and because it does not preclude the national
legislation in the question, therefore the provision that allows the imposition of the fine is
applicable, if it contributes to the attainment of the objective of more stringent protection and
the amount of the fine is proportionate and does not go beyond the necessary – these criteria
are for the national court to establish.

Analysis:

The case revolves around the question of environmental liability. The Directive 2004/35 of
EU environmental law creates a framework for environmental liability mechanism that allows
the prosecution of those indulging in activities dangerous for the environment. However its
main goal is to achieve the objectives laid down in Article 191(1) TFEU:

‘Union policy on the environment shall contribute to pursuit of the following objectives:

- preserving, protecting and improving the quality of the environment,

- protecting human health,

- prudent and rational utilisation of natural resources,

- promoting measures at international level to deal with regional or worldwide environmental

problems, and in particular combating climate change.’
Török Zsófia GH4OLZ
EU Environmental Law
Case study
Therefore, it follows the “polluter-pays” principle, meaning that those identifiable operators,
directly causing the pollution should bear the cost of the necessary preventive or remedial
measures. Such a framework of environmental liability leaves a number of issues uncovered
and offers no legal method in the aforementioned case, in which the operator is unidentifiable.
For instance, the Directive excludes air pollution from the definition of ‘environmental
damage’, only adding that ‘Environmental damage also includes damage caused by airborne
elements as far as they cause damage to water, land or protected species or natural habitats.’
In light of these definitions, the cumulative effect of individual air polluting cases are not
taken into account. One polluter’s omission might not cause direct damage to water, land or
protected species or natural habitats, but the pollution accumulates and may cause serious
damage.

However, in the case, the national legislation covered this issue, in a more stringent manner
than the EU provisions would suggest and the Lower Environmental Protection Agency has
decided according to it. Which meant that it imposed a punitive fine on the TTK, instead of
requiring preventive or remedial measures, because, even though there was no established
connection between the TTK’s activity and the environmental damage, the Hungarian
legislation allows the land-owner, whose property is the location of such environment
damaging operations, to be jointly and severally held liable. This provision is clearly goes
beyond the ‘polluter-pays’ principle and makes the land-owners responsible for activity that
takes place on their property, unless the owner identifies the actual user of the land and
unequivocally proves that he cannot be held responsible. The question arose if the national
provision is compatible with community law, but the ECJ ruled that community law does not
preclude national legislation in situations that are not covered by EU legislation and, in a
manner, more stringently impose the objectives set by the Treaties, if certain conditions are
met, which should be determined by the national court.

The subsidiarity principle prevails in this case, because the Court of Justice gives way to the
application of national legislation, in case it is more stringent than and is in compliance with
community law. Thus, EU legislation creates the framework in which the Member States,
local authorities are able to navigate and solve issues according to the state of the certain area
and attempt to achieve ‘high level of protection and improvement of the quality of the
environment’.
Török Zsófia GH4OLZ
EU Environmental Law
Case study
Citation:

http://curia.europa.eu/juris/document/document.jsf?docid=192696&mode=req&pageIndex=1
&dir=&occ=first&part=1&text=Hungary&doclang=EN&cid=1608671#ctx1