Polluter Pays, Liability, Civil
In Wicklow County Council v Fenton (No 2.)[2002] 2 I.R. 583 the High Court (O’Sullivan J) held that a “fall-back” order may be made against individual directors and/or shareholders of a corporate entity under the provisions of s. 57 and s. 58, respectively, of the Waste Management Act 1996. This Court is now being asked by the fourth to seventh named respondents to hold that the case of Wicklow County Council v Fenton (No 2.) was wrongly decided. The Waste Management Act 1996 is the principal enactment in a scheme of legislation which, as of the date of this judgment, is to be collectively cited as “The Waste Management Acts 1996 to 2010". In this regard the most recent reconstitution of the scheme is as provided for in articles 2 and 3 respectively of the Waste Management (Landfill Levy) Order 2010, S.I. 13/2010. As of the date of the judgment in Fenton (No 2) the scheme bore the collective citation “The Waste Management Acts 1996 to 2001” and included just the principal Act as amended by the Waste Management (Amendment) Act 2001. Also at european level, a new Waste Framework Directive, namely Directive 2008/98/EC, has in turn recently replaced this Directive 2006/12/EC of the European Parliament and of the Council of 5 April 2006 on waste. Irish Courts have been concerned, as in the present case, with national legislation specifically enacted for the purpose of transposing EU law into domestic law, and in those circumstances the national and EU legislatures are to be presumed as having a shared or common intention to implement the relevant EU law. In those circumstances it is entirely legitimate and appropriate for a national Court to employ a teleological approach to interpreting national implementing legislation, and to construe it in the light of the EU legislation intended to be implemented. But the obligation on a national court to refer to the content of a directive when interpreting and applying the relevant rules of domestic law is limited by general principles of law, particularly those of legal certainty and non-retroactivity, and that obligation cannot serve as the basis for an interpretation of national law contra legem. While provision of Article 4(3) TEU (ex Article 10 EC) requires national courts to interpret national legislation in line with “the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union” there are no obligations on member states “arising out of the Treaties” requiring the implementation of the polluter pays principle save to the extent that “institutions of the Union” have acted to implement that principle, i.e. by means of EU Directives, Regulations or Decisions. In considering afresh the status of the polluter pays principle in terms of the Directives and other binding measures intended to be implemented by the Waste Management Acts 1996 – 2010 the proper approach is to consider that issue in the context of the entirety of those measures and in their most up to date form where relevant measures have been amended or substituted. The Court feels justified in characterising the Waste Framework Directive 2008/98/EC as the principal EU measures at issue and has been unable to identify any particular article of the Waste Framework Directive mandating the establishment of an enforcement system predicated upon the “polluter pays principle” and structured to ensure that liability, and in particular civil liability, is determined with reference to that principle. High Court held, by determination of preliminary issue, that Waste Management Act does not allow for “fall-back” orders to be made against individual directors and / or shareholders of corporate entity. Therefore the Waste Framework Directive has not been properly or adequately transposed in so far as enforcement is concerned, in so far as the existing enforcement procedures contained in s. 57 of the 1996 Act do not in fact allow for the making of fall back orders against individual shareholders/directors of a corporate entity. The earlier High Court decision focused unduly on intention of EU legislators and insufficiently on intention of the Oireachtas. The preliminary question is asnwered negatively.