# C_2023252EN.01002801.xml

| 17.7.2023 | EN | Official Journal of the European Union | C 252/28 |
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17.7.2023

EN

Official Journal of the European Union

C 252/28

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Request for a preliminary ruling from the Ustavno sodišče Republike Slovenije (Slovenia) lodged on 20 April 2023 — INTERZERO Trajnostne rešitve za svet brez odpadkov d.o.o., Interzero Circular Solutions Europe GmbH and Others v Državni zbor Republike Slovenije

(Case C-254/23, INTERZERO and Others)

(2023/C 252/32)

Language of the case: Slovenian

Referring court

Ustavno sodišče Republike Slovenije

Parties to the main proceedings

Applicants: INTERZERO Trajnostne rešitve za svet brez odpadkov d.o.o., Interzero Circular Solutions Europe GmbH and Others

Defendant: Državni zbor Republike Slovenije

Questions referred

| 1. | Must a legal person that has the exclusive right to carry out the collective fulfilment of extended producer responsibility obligations in respect of products of the same type within the territory of the Republic of Slovenia be regarded as an undertaking entrusted with the operation of a service of general economic interest, within the meaning of Article 106(2) of the Treaty on the Functioning of the European Union (read in the light of Article 14 TFEU, Protocol No 26 on services of general interest and Articles 8 and 8a of Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain directives), (1) where that activity includes:






  — | the conclusion of contracts with the producers of certain products pursuant to which those producers entrust that legal person with the task of ensuring on their behalf the proper management of the waste resulting from those products; |
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1.

Must a legal person that has the exclusive right to carry out the collective fulfilment of extended producer responsibility obligations in respect of products of the same type within the territory of the Republic of Slovenia be regarded as an undertaking entrusted with the operation of a service of general economic interest, within the meaning of Article 106(2) of the Treaty on the Functioning of the European Union (read in the light of Article 14 TFEU, Protocol No 26 on services of general interest and Articles 8 and 8a of Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain directives), (1) where that activity includes:

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the conclusion of contracts with the producers of certain products pursuant to which those producers entrust that legal person with the task of ensuring on their behalf the proper management of the waste resulting from those products;

| — | the organisation of a system for the collection and treatment of waste (the conclusion of contracts with commercial companies to carry out, on the Organisation’s behalf, the collection and proper treatment of all waste resulting from products to which extended producer responsibility applies), and |
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the organisation of a system for the collection and treatment of waste (the conclusion of contracts with commercial companies to carry out, on the Organisation’s behalf, the collection and proper treatment of all waste resulting from products to which extended producer responsibility applies), and

| — | the keeping of a register of the products to which extended producer responsibility applies and which are placed on the market in the Republic of Slovenia, and the keeping of a register of the collected and treated waste resulting from the products to which extended producer responsibility applies, and the transmission of that data to the Ministry,
  and where that legal person is obliged, in order to carry out that activity, to conclude contracts both with producers having extended producer responsibility and with the commercial companies that will carry out the collection and treatment of waste? |
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the keeping of a register of the products to which extended producer responsibility applies and which are placed on the market in the Republic of Slovenia, and the keeping of a register of the collected and treated waste resulting from the products to which extended producer responsibility applies, and the transmission of that data to the Ministry,

and where that legal person is obliged, in order to carry out that activity, to conclude contracts both with producers having extended producer responsibility and with the commercial companies that will carry out the collection and treatment of waste?

| 2. | Must Articles 16 and 17 of the Charter of Fundamental Rights of the European Union, Articles 49, 56 and 106 TFEU, Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (2) and Articles 8 and 8a of Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain directives be interpreted as precluding legislation pursuant to which the collective fulfilment of extended producer responsibility obligations in respect of products of the same type may be carried out by only one legal person in the territory of the Member State and only on a non-profit-making basis, meaning that income must not exceed actual expenditure incurred in the collective fulfilment of the extended producer responsibility obligations and that the legal person in question must use any profits solely for carrying out its activities and implementing measures for the collective fulfilment of the extended producer responsibility obligations? |
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2.

Must Articles 16 and 17 of the Charter of Fundamental Rights of the European Union, Articles 49, 56 and 106 TFEU, Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (2) and Articles 8 and 8a of Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain directives be interpreted as precluding legislation pursuant to which the collective fulfilment of extended producer responsibility obligations in respect of products of the same type may be carried out by only one legal person in the territory of the Member State and only on a non-profit-making basis, meaning that income must not exceed actual expenditure incurred in the collective fulfilment of the extended producer responsibility obligations and that the legal person in question must use any profits solely for carrying out its activities and implementing measures for the collective fulfilment of the extended producer responsibility obligations?

| 3. | In the event that question 2 is answered in the negative, must Article 16 of the Charter of Fundament Rights of the European Union, Articles 49, 56 and 106 TFEU, the principles of legal certainty and of the protection of legitimate interests and Articles 8 and 8a of Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain directives be interpreted as precluding legislation by means of which a Member State changes the activity of the collective fulfilment of extended producer responsibility obligations in respect of products of the same type, transforming it from a regulated, market-oriented profit-making activity carried on by a number of economic operators into an activity that only one organisation is authorised to carry on and which must be carried out on a non-profit-making basis, as described in question 2? |
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3.

In the event that question 2 is answered in the negative, must Article 16 of the Charter of Fundament Rights of the European Union, Articles 49, 56 and 106 TFEU, the principles of legal certainty and of the protection of legitimate interests and Articles 8 and 8a of Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain directives be interpreted as precluding legislation by means of which a Member State changes the activity of the collective fulfilment of extended producer responsibility obligations in respect of products of the same type, transforming it from a regulated, market-oriented profit-making activity carried on by a number of economic operators into an activity that only one organisation is authorised to carry on and which must be carried out on a non-profit-making basis, as described in question 2?

| 4. | Must the provisions of EU law referred to in question 3 be interpreted as precluding national legislation which, by reason of the entry into force of a new legislative framework for the collective fulfilment of extended producer responsibility obligations, results, by operation of law (ex lege), in interference in individual relationships such as to terminate all contracts concluded between the economic operators that carried on the collective fulfilment of extended producer responsibility obligations in accordance with the previous regime and the producers having extended producer responsibility obligations, and between the economic operators that carried on the collective fulfilment of extended producer responsibility obligations in accordance with the previous regime and the economic operators that collected and treated waste resulting from products in respect of which the collective fulfilment of extended producer responsibility obligations must be carried out? |
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4.

Must the provisions of EU law referred to in question 3 be interpreted as precluding national legislation which, by reason of the entry into force of a new legislative framework for the collective fulfilment of extended producer responsibility obligations, results, by operation of law (ex lege), in interference in individual relationships such as to terminate all contracts concluded between the economic operators that carried on the collective fulfilment of extended producer responsibility obligations in accordance with the previous regime and the producers having extended producer responsibility obligations, and between the economic operators that carried on the collective fulfilment of extended producer responsibility obligations in accordance with the previous regime and the economic operators that collected and treated waste resulting from products in respect of which the collective fulfilment of extended producer responsibility obligations must be carried out?

| 5. | In circumstances where new legislation as described in questions 3 and 4 is adopted, must the principles of legal certainty and of the protection of legitimate expectations be interpreted as requiring the legislature to establish a transition period and/or to introduce a system of compensation? If so, what criteria determine the reasonableness of the transition period or the system of compensation? |
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5.

In circumstances where new legislation as described in questions 3 and 4 is adopted, must the principles of legal certainty and of the protection of legitimate expectations be interpreted as requiring the legislature to establish a transition period and/or to introduce a system of compensation? If so, what criteria determine the reasonableness of the transition period or the system of compensation?

| 6. | Must Article 16 of the Charter of Fundamental Rights of the European Union, Articles 49, 56 and 106 TFEU, Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market and Articles 8 and 8a of Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain directives be interpreted as precluding legislation pursuant to which producers that have extended producer responsibility obligations and place on the market 51 % of the products of the same type to which the extended producer responsibility obligation applies are required to establish a legal person entrusted with the collective fulfilment of the extended producer responsibility obligations, and pursuant to which producers of products of the same type must, in the event that authorisation is withdrawn, establish such a legal person anew, or must the abovementioned provisions of EU law be interpreted as precluding rules pursuant to which only producers may hold a share in such legal person? |
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6.

Must Article 16 of the Charter of Fundamental Rights of the European Union, Articles 49, 56 and 106 TFEU, Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market and Articles 8 and 8a of Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain directives be interpreted as precluding legislation pursuant to which producers that have extended producer responsibility obligations and place on the market 51 % of the products of the same type to which the extended producer responsibility obligation applies are required to establish a legal person entrusted with the collective fulfilment of the extended producer responsibility obligations, and pursuant to which producers of products of the same type must, in the event that authorisation is withdrawn, establish such a legal person anew, or must the abovementioned provisions of EU law be interpreted as precluding rules pursuant to which only producers may hold a share in such legal person?

| 7. | Must Article 16 of the Charter of Fundamental Rights of the European Union, Articles 49, 56 and 106 TFEU, Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market and Articles 8 and 8a of Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain directives be interpreted as precluding legislation pursuant to which producers that hold a share in the legal person that carries out the collective fulfilment of extended producer responsibility obligations may not be persons that carry on the collection or treatment of waste resulting from the products to which the collective fulfilment of extended producer responsibility obligations applies in that legal person? |
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7.

Must Article 16 of the Charter of Fundamental Rights of the European Union, Articles 49, 56 and 106 TFEU, Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market and Articles 8 and 8a of Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain directives be interpreted as precluding legislation pursuant to which producers that hold a share in the legal person that carries out the collective fulfilment of extended producer responsibility obligations may not be persons that carry on the collection or treatment of waste resulting from the products to which the collective fulfilment of extended producer responsibility obligations applies in that legal person?

| 8. | Must Article 16 of the Charter of Fundamental Rights of the European Union, Articles 49, 56 and 106 TFEU, Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market and Articles 8 and 8a of Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain directives be interpreted as precluding legislation pursuant to which a producer that holds a share in the legal person that carries out the collective fulfilment of extended producer responsibility obligations and the legal person that carries on the collective fulfilment of extended producer responsibility obligations may not:






  — | have direct or indirect capital links with the person carrying on the collection or treatment of waste resulting from products to which the collective fulfilment of obligations applies in the legal person that carries on the collective fulfilment of extended producer responsibility obligations or have management or control rights in that legal person; |
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8.

Must Article 16 of the Charter of Fundamental Rights of the European Union, Articles 49, 56 and 106 TFEU, Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market and Articles 8 and 8a of Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain directives be interpreted as precluding legislation pursuant to which a producer that holds a share in the legal person that carries out the collective fulfilment of extended producer responsibility obligations and the legal person that carries on the collective fulfilment of extended producer responsibility obligations may not:

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have direct or indirect capital links with the person carrying on the collection or treatment of waste resulting from products to which the collective fulfilment of obligations applies in the legal person that carries on the collective fulfilment of extended producer responsibility obligations or have management or control rights in that legal person;

| — | have capital links or family ties with a person that holds or controls voting rights in the governing body or supervisory body of the legal person referred to in the previous indent or with that legal person’s representative? |
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have capital links or family ties with a person that holds or controls voting rights in the governing body or supervisory body of the legal person referred to in the previous indent or with that legal person’s representative?

| 9. | Must Article 16 of the Charter of Fundamental Rights of the European Union, Articles 49, 56 and 106 TFEU, Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market and Articles 8 and 8a of Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain directives be interpreted as precluding legislation pursuant to which the restrictions mentioned in questions 7 and 8 apply equally to members of the governing body of the legal person that carries on the collective fulfilment of extended producer responsibility obligations, to members of the supervisory body of that legal person and to that legal person’s representative? |
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9.

Must Article 16 of the Charter of Fundamental Rights of the European Union, Articles 49, 56 and 106 TFEU, Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market and Articles 8 and 8a of Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain directives be interpreted as precluding legislation pursuant to which the restrictions mentioned in questions 7 and 8 apply equally to members of the governing body of the legal person that carries on the collective fulfilment of extended producer responsibility obligations, to members of the supervisory body of that legal person and to that legal person’s representative?

| 10. | Must Article 16 of the Charter of Fundamental Rights of the European Union and Articles 49 and 56 TFEU be interpreted as precluding legislation pursuant to which producers that have extended producer responsibility obligations and place on the market products intended for household use must without exception conclude a contract under which they entrust the legal person that has the authorisation to carry on the collective fulfilment of extended producer responsibility obligations with the task of fulfilling their obligations flowing from extended producer responsibility? |
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10.

Must Article 16 of the Charter of Fundamental Rights of the European Union and Articles 49 and 56 TFEU be interpreted as precluding legislation pursuant to which producers that have extended producer responsibility obligations and place on the market products intended for household use must without exception conclude a contract under which they entrust the legal person that has the authorisation to carry on the collective fulfilment of extended producer responsibility obligations with the task of fulfilling their obligations flowing from extended producer responsibility?

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(1)  OJ 2008 L 312, p. 3.

(2)  OJ 2006 L 176, p. 36.

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