Judgment of the Constitutional Court of 5 March 2013 № 5-П on the review of constitutionality of Article 16 of the Federal law “On the Protection of Environment” and the Decree of the Government of the Russian Federation “On Approval of the Procedure for Determination of Pay and its Maximum Amounts for Pollution of Natural Environment, Disposal of Waste, Other Kinds of Harmful Affects” in connection with the complaint of limited liability company “Topol” 

Legal issue: the constitutionality of the public law payment in the form of pay for the placement of waste, given that the legislation does not determine who bears the duty to pay it – either the person generating the waste or a specialized organization which carries out its removal and burial - thus delegating the issue to courts’ discretion?

Ratio decidendi: having pointed out to the importance of certainty of relevant rules, the Court found uncertainty in both legislation and court practice related to the issue. As a result, the Court came to conclusion that the contested regulation does not conform to the Constitution 1) to the extent that it – by virtue of judicial interpretation – allows for levying the aforementioned payment from specialized organizations for the disposal during the year 2009 of the waste accumulated as a result of activities of other organizations on the basis of civil law contracts, at the conclusion of which the parties proceeded from the assumption that making payments for the negative impact on the environment is the duty of the organization by which activities the waste had been generated; and 2) to the extent, in which it allows for the application of fivefold multiplying coefficient for an extra limit disposal of waste to a specialized organization in cases when the waste being disposed was created due to activities of other organizations.

Dissenting opinion:
  • Justice Aranovskiy, concurring, explained that the pronouncement of the Court that legal regulation of payments for the disposal of waste does not exclude contractual forms should not be understood as if the Court thinks it acceptable that the waste-collecting organization, when providing services on the disposal and utilization of waste, might assume at the same time the rights of a collector of ecological payments, levying them from waste-generating organizations as a part of the pay for the services provided, in order to subsequently remit them to the budget: such a system would be fraught with monopolism, abuse of law and would effectively restore the obsolete system of ‘tax farming’. 

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Subject area:
Civil Law freedom of contract
Economic activities, finances taxes & dues