European Court of Justice: Solar manufacturers not liable for waste costs for panels shipped to EU before Aug. 2012

The European Court of Justice (ECJ) has ruled manufacturers of solar panels installed in the EU for a seven-year period after Aug. 13, 2005 will not have to bear the costs associated with managing waste from the products.

The decision, announced yesterday, came about after Czech renewables company Vysočina Wind brought an action for damages after it had contributed to such waste disposal costs in relation to a solar project it constructed after Aug. 13, 2005.

Under a Czech law in place at the time Vysočina installed its solar park, the developer – rather than the manufacturer of the solar panels used – was liable for associated waste management costs. As a result, Vysočina made contributions to such costs in 2015 and 2016 but it then brought the action for damages on the basis the Czech authorities had wrongly transposed into domestic law EU directive 2012/19 on waste electrical and electronic equipment (WEEE), which placed the financial burden on the panel manufacturers.

Vysočina's case was upheld in the first instance and on appeal and the Czech government appealed on a point of law to the country's supreme court, the Nejvyšší soud. That body referred the matter to the ECJ for a preliminary ruling, which can now be applied in the member state's legal system as the Czech court sees fit.

The ECJ noted that before the EU's WEEE directive entered into force, on Aug. 13, 2012, European member states had the freedom to place the obligation of paying for electrical waste management on either the manufacturer or user of solar panels. Because of that, the ECJ ruled, the introduction of the WEEE directive changed a previously established situation and, therefore, could not be applied retroactively.

In its ruling, the European court stated: “The court declares article 13(1) of the WEEE directive 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 13 August 2005 and 13 August 2012.”

The court also ruled Czech legislators, who had introduced domestic rules for electronic waste management liability a month before the entering into force of the EU's WEEE legislation, had not breached EU law.