Czech Republic - Court of Justice of the European Union has ruled on the legality of the obligation of users of photovoltaic modules to contribute to their recycling

published on 17th Februar 2022

In its judgment in case C 181/20 of 25 January 2022, the Court of Justice of the European Union partially invalidated Directive 2012/19/EU on waste electrical and electronic equipment in so far as this directive obliges producers of photovoltaic modules to finance the costs of managing waste from these modules if they were placed on the market at a date prior to the entry into force of the directive. In this context, the court did not find any infringement of the Czech regulation in § 37p of the Waste Act No. 185/2001 Coll., which, among other things, imposes the costs on the users of the photovoltaic modules.

An operator of a PV system commissioned in the Czech Republic in 2005 had filed a lawsuit against the regulation in § 37p Waste Act, claiming a violation of Art. 13 (1) of Directive 2012/19/EU.

According to § 37p of the Waste Act, operators of PV systems that started operation before 2013 are obliged to conclude a contract with a recycling company registered with the Czech Ministry of the Environment for the takeover, recycling and disposal of the photovoltaic modules and to pay a cost contribution of CZK 8.50/kg in advance in four equal installments until the end of 2018. Membership in e.g. PV CYCLE is not sufficient. The operators vehemently criticize the obligation, especially because the cost contribution has to be paid far in advance and is disproportionate to the expected costs.

Via the Czech courts, the matter was finally referred to the Court of Justice of the European Union for a preliminary ruling, which decided as described at the beginning.

This decision was based on the prohibition of retroactivity and the requirement of legal certainty. Regarding the Czech regulation, the Court stated that the fact that a provision was inserted into the Waste Act more than one month before the adoption of the WEEE Directive, which provides for a contribution obligation for the users of photovoltaic modules that is contrary to this Directive, does not in itself constitute an infringement of Union law by the Czech Republic, since the achievement of the objective prescribed by the Directive cannot be regarded as seriously impaired before the Directive is part of the Union legal order.

Consequently, the legal disputes still pending in the Czech Republic on the legality of the obligation of users of photovoltaic modules to contribute to their recycling are likely to be decided in favor of the Czech Republic.

Beyond the Czech Republic, however, the ruling could also have an EU-wide impact for any similar cases, as the ruling partially invalidates Directive 2012/19/EU on waste electrical and electronic equipment.