Ausdruck der Seite: Aktuell > Archive > 2009 > REMONDIS aktuell (03/2009) > News > A clear breach of European law
Waste paper collection
A clear breach of European law
A case for the EU Commission: the free movement of goods and competition rules must not be disregarded.
Federal Administrative Court ruling on waste paper triggers wave of criticism
The intention to extend the obligation of households to hand over their waste to local authorities to include recyclables violates several EU laws. This is shown by a report drawn up by the Hamburg-based competition lawyer, Dr Martin Dieckmann, on behalf of the BDE, the Federal Association of the German Waste Management Industry.
The reason behind the legal report was the so-called waste paper ruling issued by the Federal Administrative Court on 18 June 2009. In their ruling, the Leipzig judges stated that local councils had the right of first refusal to collect separated recyclable waste. Private households, the court ruled, must in principle hand over their household waste including any recyclables to public waste management businesses. They are not entitled to commission third parties to recycle such waste.
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The object of dispute: the waste paper bin – Who does waste paper belong to?A violation of the EC Treaty
The aim of the report was to establish whether the decision of the Federal Administrative Court is compatible with EU law. According to the 69-page report, this is not the case. The report states that the ruling is a breach of the European Waste Shipment Ordinance as well as of the European Waste Framework Directive. Furthermore, it also violates the principle of free movement of goods and disregards the competition rules of the EC Treaty.In addition, the Federal Administrative Court failed to meet its obligation to submit its legal opinion to the European Court of Justice for examination before passing its verdict. BDE President Peter Kurth: “We very much welcome this report as it makes it clear that administrative courts in Germany are also obliged to observe higher-ranking European law.”
Recycling sector under threat
The BDE believes that the Leipzig ruling jeopardizes the legal basis for waste management businesses, according to which they can collect recyclables from private households. Private sector businesses collect waste paper in many cities and districts. This is an important prerequisite for a reliable, economically viable and eco-friendly raw material sector.
The ruling, however, not only triggered a wave of protests from the BDE. Other associations such as the bvse (German Association for Secondary Raw Materials and Waste Management), and the BDSV (German Association of Steel Recycling & Waste Management Companies) have vetoed the decision.
Federal Constitutional Court and EU Commission now involved
The case heard by the Federal Administrative Court involved a specific conflict between a private sector company and the City of Kiel. The company is not prepared to accept this decision and has now taken the case to the Federal Constitutional Court. The BDE, acting as the largest representative of the interests of the private sector waste management branch in Germany, has welcomed the company’s decision to take the case a step further. In addition, the BDE has itself submitted a complaint to the European Commission. Its intention is to have it ascertained whether the Federal Republic of Germany has violated European law.
Keep within EU law
With its position confirmed by the Hamburg report, the BDE is now assuming that the controversial waste paper ruling will, in the end, fail. At the same time, the association is warning once again against the massive restrictions to free competition and free movement of goods. If the assessment of the Leipzig ruling is inserted into pending laws such as the amendment to the Waste Framework Directive, then this would have fatal consequences. It would then be questionable whether a fair, high quality supply of raw materials for the industry would be possible.
BDE President Peter Kurth: “We are appealing to the new Federal Government that they strictly observe European laws. There is no justification whatsoever for extending the obligation of the councils to provide waste collection services beyond that for mixed residual waste.”
The battle for waste paper |
The ruling of the Federal Administrative Court arose from an order issued by the state capital Kiel. It forbade a private sector waste management business to collect and recycle waste paper from private households. One of the reasons given for this decision was that, should the company pull out, the efficiency and the ability of the council to plan waste disposal could be compromised. The private sector recycling firm took legal action against this order and was successful to begin with – until the decision of the Schleswig-Holstein Administrative Appeals Tribunal was overturned by the controversial decision of the Federal Administrative Court. |
“When reaching its decision, the Federal Administrative Court would appear not to have taken the fact sufficiently into account that waste paper is a valuable secondary raw material that should not be lumped together with the collection of disposal waste.”
Hubert Neuhaus, Chairman of the Association of Paper Recycling and Vice President of the bvse
“The public sector must not curtail the first moves made by the Recycling Law towards privatisation and de-regulation. Additional handover obligations cannot be justified either from an economical or ecological point of view.”
BDI – Federation of German Industries