Opinion of the Advocate General — ECLI:EU:C:2024:794
Date: 2024-09-26
Language of the case: Slovenian
Procedure: Reference for a preliminary ruling
Origin: Slovenia

Summary C-254/23 ‒ 1 
Case C-254/23 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
20 April 2023 
Referring court:  
Ustavno sodišče Republike Slovenije (Slovenia) 
Date of the decision to refer:  
13 April 2023 
Petitioners for a review of constitutionality:  
INTERZERO Trajnostne rešitve za svet brez odpadkov d.o.o. 
Interzero Circular Solutions Europe GmbH 
and Others 
Surovina, družba za predelavo odpadkov d.o.o. 
DINOS, družba za pripravo sekundarnih surovin d.o.o. 
and Others 
Other party to the proceedings:  
Državni zbor Republike Slovenije 
  
Subject matter of the main proceedings 
Petitions for the initiation of proceedings for the review of the constitutionality of 
the Zakon o varstvu okolja (Law on environmental protection) to the extent that it 
governs the extended producer responsibility system and determines the transition 
period for the implementation of the new extended producer responsibility system; 
national legislation under which the collective fulfilment of the obligations 
flowing from extended producer responsibility (‘extended producer responsibility 
obligations’) must be carried out on a non-profit basis and by a single organisation 
(‘the Organisation’) and which prohibits capital links and family ties between the 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-254/23 
 
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Organisation and the contractors that collect or treat waste in the context of the 
extended producer responsibility system (‘Contractors’). 
Subject matter and legal basis of the request for a preliminary ruling 
Interpretation of EU law; Article 267 TFEU 
Questions referred for a preliminary ruling 
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), 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; 
– 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? 
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 and Articles 8 and 8a of Directive 
INTERZERO AND OTHERS 
 
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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? 
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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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? 
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; 
– 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 
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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? 
10. Must Article 16 of the Charter of Fundamental Rights of the European 
Union and Articles 49 and 56 TFEU to 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? 
Provisions of EU law relied on  
Articles 14, 49, 56 and 106 TFEU 
Protocol No 26 to the TFEU on services of general interest 
Charter of Fundamental Rights of the European Union (‘the Charter’), Articles 16 
and 17 
Directive 2008/98/EC of the European Parliament and of the Council of 
19 November 2008 on waste and repealing certain directives, as last amended by 
Directive (EU) 2018/851 of the European Parliament and of the Council of 
30 May 2018 amending Directive 2008/98/EC on waste, (‘the Framework 
Directive on Waste’), in particular, Articles 8 and 8a 
Directive 2006/123/EC of the European Parliament and of the Council of 
12 December 2006 on services in the internal market (‘the Services Directive’). 
Provisions of national law relied on  
Constitution of the Republic of Slovenia (‘the Slovenian Constitution’)  
Zakon o varstvu okolja (Law on the protection of the environment; ‘the ZVO-2’) 
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Succinct presentation of the facts and procedure in the main proceedings 
1 Two petitions have been lodged with the Ustavno sodišče (Constitutional Court, 
Slovenia) for the initiation of proceedings for the review of the constitutionality of 
the ZVO-2 to the extent that it governs the system of extended producer 
responsibility (‘the EPR’) and determines the transition period for the 
implementation of the new EPR system. The present case is thus a procedure for 
verifying the constitutionality of a law or, more precisely, certain provisions of the 
ZVO-2, that was initiated by petitioners. It is not, therefore, a procedure arising 
out of proceedings brought by applicants before an ordinary court. 
2 One petition for a review of constitutionality was lodged by certain commercial 
companies that manufacture products to which the EPR applies (producers), 
certain economic operators that, pursuant to environmental authorisations (‘EAs’) 
and decisions approving joint projects, carry out the collective fulfilment of the 
EPR obligations flowing from the Zakon o varstvu okolja (Law on the protection 
of the environment; ‘the ZVO-1’) (‘ZVO-1 operators’) and a commercial 
company that is established in another Member State of the European Union and 
holds a business share as a ZVO-1 operator and carries on the economic activity 
of waste management. The other petition was lodged by commercial companies 
that are both ZVO-1 operators and holders of an EA for the economic activity of 
waste management, together with commercial companies that are producers 
subject to the EPR and at the same time holders of an EA for carrying on the 
economic activity of waste management. 
The essential arguments of the parties in the main proceedings 
3 The petitioners base their challenge to the provisions at issue partly on EU law 
directly and partly on provisions of the Slovenian Constitution. 
4 The petitioners maintain that the contested provisions of the ZVO-2 conflict with 
Articles 2, 3.a, 14, 33 and 74 of the Slovenian Constitution, Articles 16 and 17 of 
the Charter and Article 1 of the First Additional Protocol to the European 
Convention for the Protection of Human Rights and Fundamental Freedoms. They 
allege that the contested provisions of the ZVO-2 also conflict with Articles 49, 
56, 102 and 106 TFEU, European Parliament and Council Directive 94/62/EC of 
20 December 1994 on packaging and packaging waste, as last amended by 
Directive (EU) 2018/852 of the European Parliament and of the Council of 
30 May 2018 amending Directive 94/62/EC on packaging and packaging waste, 
and the Framework Directive on Waste. The petitioners also maintain that the 
legislative framework at issue conflicts with the Services Directive and Directive 
(EU) 2015/1535 of the European Parliament and of the Council of 9 September 
2015 laying down a procedure for the provision of information in the field of 
technical regulations and of rules on Information Society services. 
5 The petitioners maintain that the legislation at issue is contrary to the Slovenian 
Constitution and the TFEU in that the legislature has transformed an economic 
INTERZERO AND OTHERS 
 
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activity oriented toward the market into an activity outside the market. The change 
in the nature of the activity, from a market-oriented economic activity to a non-
profit-making activity, is a restriction of the market of the highest degree. The 
legislature has also infringed the rights mentioned by establishing that only one 
entity may carry on the collective fulfilment of the obligations flowing from the 
EPR, namely the Organisation. 
6 The contested legislation imposes an undue restriction on freedom of 
establishment and the freedom to provide services. By means of the contested 
legislation, the State has raised insurmountable barriers to entry into the market 
for the collective fulfilment of the obligations flowing from the EPR. The 
legislation in question, a State measure, creates unequal opportunities for 
economic operators and distorts competition. 
7 The contested legislation runs counter to the right to private property, in that it 
restricts capital holdings in the Organisation and determines how profits are to be 
used. The petitioners also maintain that the contested legislation has undermined 
their legal expectations and breaches the principle of preserving confidence in 
legal rules. The entry into force of the contested legislation would mean that the 
petitioners that are ZVO-1 operators would have to cease their activities. The 
detriment to their position was unexpected. The legislature had no objective 
reason based on any overriding public interest to adopt such legislation. 
8 The petitioners further maintain that truly free competition in the market for the 
collective fulfilment of EPR obligations enabled substantial cost reductions to be 
achieved in packaging waste management. They cite, as an example, the regime in 
the Federal Republic of Germany, where the abolition of the monopoly is 
expected to stimulate new investment in infrastructure and reduce operating costs, 
while improving recycling rates. 
9 The petitioners also take issue with the rules that distinguish between the 
producers that will establish the Organisation and producers that will merely 
conclude a contract with the Organisation. They emphasise that the 
representatives of the two groups of producers compete with each other in the 
products market. The contested legislation will mean that one group of producers 
will be obliged to conclude a contract with the Organisation, which will be owned 
by their competitors in the market. The petitioners maintain that the rules laid 
down in the ZVO-2 that extend the restrictions on capital links beyond what is 
absolutely necessary in order to eliminate conflicts of interests make it impossible 
for some of them to pursue their activity of collectively fulfilling EPR obligations. 
That overly broad restriction of capital links is, they argue, disproportionate and 
excessive. 
10 The Državni zbor (the National Assembly of Slovenia) has not responded to the 
petition for a review of constitutionality. 
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11 The Government of the Republic of Slovenia has submitted observations on the 
petition for a review of constitutionality. It maintains that the Framework 
Directive on Waste laid down minimum requirements for EPR systems that had to 
be transposed into domestic law. It was therefore necessary to recast the EPR 
entirely within the Slovenian legal system. By means of the ZVO-2, appropriate 
and legitimate measures were adopted in order to transpose the obligations laid 
down in the Framework Directive on Waste. The aim of the EPR system and the 
purpose of introducing EPR obligations was to ensure efficacy in the separate 
collection of waste, to raise awareness and to inform people of the importance of 
waste prevention and about the re-use and disposal of waste, to change the 
behavioural habits of all those involved in the use of products and to ensure that 
waste from products is properly managed across the country. The economic 
efficiency of the EPR system was therefore an entirely secondary consideration to 
the fulfilment of EPR obligations. Product manufactures are responsible for 
compliance with the environmental aspects associated with products throughout 
their entire life cycle (from design to management at the point where they become 
waste). 
12 According to the Slovenian Government, the Framework Directive on Waste 
permits both EPR systems in which the collective fulfilment of EPR obligations is 
carried out by a single organisation and EPR systems in which that activity is 
carried out by several organisations. A centralised system with a single 
organisation has reportedly been introduced in various Member States, for 
example the Czech Republic and the Republic of Estonia. In the Slovenian 
Government’s opinion, competition between organisations does not improve the 
efficiency of the EPR system, as is clear from the rules in the Czech Republic. 
The Slovenian Government disputes the petitioners’ assertion that the EPR system 
under the ZVO-2 entails the introduction of a monopolistic system that impinges 
on economic freedom. It is more important to the effectiveness of the EPR system 
that the State ensure the transparency of the organisation’s activities and the 
absence of distortions of competition in the market for waste management than the 
fact that the collective fulfilment of EPR obligations is carried out by a single 
organisation. The Slovenian Government maintains that it is precisely by having 
only one organisation that the EPR system is sure to be most effective. 
13 In the Slovenian Government’s opinion, the key role in the functioning of the EPR 
system falls to the producers. A comparative analysis of foreign regulations shows 
that EPR systems in which the producers themselves set up, operate and own the 
system are the most efficient in economic and environmental terms. The EPR 
systems will help to change the behaviour of producers in such a way that their 
activities generate the least possible amount of waste or in such a way that waste 
is as amenable as possible to re-use. The responsibility of producers goes beyond 
the mere obligation to pay the costs of ensuring that EPR obligations are fulfilled 
and extends to the actual implementation of the prescribed management of waste 
and the assumption of obligations and liabilities throughout the entire life cycle of 
their products. It is for this reason that there must be a link between producers and 
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the Organisation, so that the Organisation is able to ensure, on behalf of and for 
the account of producers, the proper management of waste. 
14 The Slovenian Government emphasises that, in introducing the EPR system and in 
regulating the operation of the Organisation, it is necessary to avert the risk of 
distortions of competition in the waste management market. The prohibition on 
waste management being carried out by the Organisation and the prohibition on 
the Organisation’s having capital links or family ties with producers should also 
ensure that the Organisation’s sole function is to fulfil EPR obligations and should 
prevent distortions of competition in the waste management market. 
15 In the course of the proceedings, the Constitutional Court has taken the opinion of 
the Ministrstvo za okolje, podnebje in energijo (Ministry of the Environment, 
Climate and Energy; ‘the Ministry’). The Ministry has clarified that the aim of the 
ZVO-2 is to preserve the environment and to protect nature and also to transpose 
the obligations imposed by a number of directives into Slovenian law. The 
Ministry maintains that the contested provisions entail no constitutionally 
unlawful tampering with the rights acquired by the petitioners. The Ministry 
asserts that it was necessary to modify the EPR system in order to comply with the 
minimum requirements laid down by the Framework Directive on Waste, for 
which reason the petitioners’ complaint that the amendment of the legislative 
framework was unforeseeable is without merit. The objectives pursued by the 
legislation justify interference in economic freedom and with the right to private 
property. The Ministry maintains that the rule governing the EPR system that 
provides for a single organisation is necessary and that it would not be possible to 
attain the objectives pursued by the modification of the system by means of less 
intrusive measures. The implementation of the EPR system cannot take second 
place to the generation of profits. The collective fulfilment of EPR obligations is 
not, in the Ministry’s opinion, an activity that can be freely carried on in the 
market or one that any party can engage in on account of its own commercial 
interests. The Ministry maintains that the contested provisions do not restrict 
freedom of establishment or the freedom to provide services. Waste management 
is a service of general economic interest (‘SGEI’) to which the Services Directive 
applies along with the rules on the internal market and competition. However, it is 
permissible to depart from those rules where it is necessary to do so in order for 
citizens to continue to have access to basic services. By means of the restrictions 
on capital links and family ties between producers having a holding in the 
Organisation and the Organisation itself, on the one hand, and Contractors, on the 
other, competition in the market for waste management is preserved and ensured. 
Succinct presentation of the reasoning in the reference for a preliminary 
ruling 
16 The petitioners argue that the legislative provisions at issue are unconstitutional, 
inter alia, on the basis of EU law. In other words, they maintain that those 
provisions are contrary not only to the Slovenian Constitution, but also to EU law. 
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The petitioners’ reference to EU law cannot be regarded as merely general, nor 
can it be said that it is irrelevant for the purposes of the present proceedings for a 
review of constitutionality. The Constitutional Court takes the view that the 
interpretation of EU law is indispensable for the purposes of the decision in this 
case. The Constitutional Court is indeed bound by the claims put forward by the 
petitioners, but is not bound by their legal characterisation in the petition for a 
review of constitutionality. Therefore, the Constitutional Court may, of its own 
initiative, find other provisions of EU law and of the Slovenian Constitution to be 
relevant. 
17 The referring court states that interpretation of Articles 16 and 17 of the Charter, 
Articles 49, 56 and 106 TFEU, the Services Directive and Articles 8 and 8a of the 
Framework Directive on Waste will be decisive in the assessment of legislation: 
(i) pursuant to which the Organisation must be established solely by 
producers that have EPR obligations and place on the market 51% of 
the products of the same type to which the EPR obligation applies, and 
pursuant to which those producers must, in the event that authorisation 
is withdrawn, establish such an organisation anew; 
(ii) pursuant to which the collective fulfilment of EPR obligations may be 
carried out by only one organisation that, by means of a special 
authorisation, has been granted the exclusive right to carry on that 
activity; 
(iii) pursuant to which the Organisation must fulfil the EPR obligations on 
a non-profit-making basis, and 
(iv) that prohibits capital links and family ties between the Organisation 
and Contractors and prohibits such links and ties between members of 
the Organisation’s governing body or supervisory body or its 
representative and Contractors, 
bearing in mind that the petitioners claim that those measures undermine the 
freedom to conduct a business (Article 16 of the Charter), the right to property 
(Article 17 of the Charter), freedom of establishment (Article 49 TFEU) and the 
freedom to provide services (Article 56 TFEU) and infringe the Services Directive 
and Articles 8 and 8a of the Framework Directive on Waste. 
18 The interpretation of Article 106 TFEU will also be decisive for the purposes of 
the assessment if a Member State claims that waste management is an SGEI, and 
the petitioners maintain that the conferral upon the Organisation of the exclusive 
right to carry on the collective fulfilment of EPR obligations is contrary to 
Article 106 TFEU, read together with Article 102 TFEU. 
19 Similarly, interpretation of the principles of legal certainty and of the protection of 
legitimate expectations will be essential for the purposes of the decision. Indeed, 
the petitioners maintain that, by modifying the EPR system, the legislature has 
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arbitrarily and unexpectedly undermined their acquired right to carry on the 
collective fulfilment of EPR obligations. 
20 The interpretation of the abovementioned rules of EU law will be essential in 
assessing whether the contested provisions of the ZVO-2 are consistent with the 
Slovenian Constitution because of the particular way in which EU law becomes 
part of the Republic of Slovenia’s legal system, which the Constitutional Court 
must also take into consideration in the present proceedings for reviewing the 
constitutionality of the provisions of the ZVO-2. When assessing regulations that 
implement EU law, the Constitutional Court must, in accordance with the 
Slovenian Constitution also, take into consideration primary and secondary EU 
legislation as well as the case-law of the Court of Justice. In its ruling on the 
present petition for a review of constitutionality, the Constitutional Court will also 
have to assess the petitioners’ arguments concerning the content and meaning of 
certain provisions of EU law, and assess their merits. Those rules of EU law, as 
well as other rules of EU law to which the petitioners do not expressly refer, 
appear to be decisively related, in terms of their content, to the subject matter of 
the decision, which is to say the question of the constitutionality of the contested 
provisions of the ZVO-2. In assessing the petitioners’ arguments, the 
Constitutional Court will have to take the abovementioned rules into account in its 
interpretation of the disputed legislation and of the Slovenian Constitution. 
The reasons for the questions referred for a preliminary ruling  
21 The questions referred for a preliminary ruling may be divided into four groups. 
The first group (comprising the first and second questions) concerns the issue of 
whether the collective fulfilment of EPR obligations may be classified as an 
SGEI. The second group of questions (comprising the third, fourth and fifth 
questions) concerns the lawfulness of the change in the legal regime of the EPR 
system and the previous regimes. The third group (comprising the sixth, seventh, 
eighth and ninth questions) concerns the assessment of the consistency with the 
TFEU and the Services Directive of the statutory provisions governing the holding 
of shares in the Organisation. The fourth group (the tenth question) concerns 
contractual autonomy. 
The first question  
22 According to Article 1 of Protocol No 26 on services of general interest, the 
Member States enjoy a broad discretion in providing, commissioning and 
organising SGEIs as closely as possible to the needs of users. The Member States 
can, therefore, while complying with EU law, define the scope of their own SGEIs 
and how they are organised, in particular, taking their own national policy 
objectives into account. In this context, the Member States have a broad discretion 
which the European Commission may challenge only in cases of manifest error. In 
accordance with the case-law of the Court of Justice, a service will be one of 
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general economic interest if the activity in question is of particular importance by 
comparison with other economic activities. 
23 Since the Court of Justice has not yet ruled on the question of whether the 
collective fulfilment of EPR obligations may be defined, from the perspective of 
EU law, as an SGEI, the Constitutional Court raises this first question, aware of 
the fact that, ultimately, it will be for it, as the referring court, to decide whether 
the tasks in question are associated with an SGEI. 
24 It is apparent from the contested legislative framework that the Organisation will 
be the only body entitled to carry on the collective fulfilment of EPR obligations 
in respect of products of the same type. That is clear both from the ZVO-2 and 
from the authorisation which, under the ZVO-2, the Organisation must obtain in 
order to carry on that activity. The Organisation will therefore be granted the 
exclusive right to carry on the collective fulfilment of EPR obligations in relation 
to products of the same type, an activity which the Constitutional Court considers 
to be an economic activity. The Organisation concludes contracts with producers 
under which it undertakes to fulfil, on their behalf, the EPR obligations and 
receives appropriate remuneration for doing so. This is therefore an offer of 
services supplied for consideration. Given that, it does not matter whether or not 
the offeror of the services aims to make a profit. Thus, even though the 
Organisation is required to operate on a non-profit basis, that can have no 
influence on the definition of the nature of the activity in question. 
25 The Services Directive established, in Article 17(1)(e) thereof, that waste 
management in a Member State may be defined as an SGEI, provided that the 
criteria mentioned in recital 70 of the directive are met. In addition, it is apparent 
from the Court of Justice’s case-law to date that the Court has acknowledged the 
existence of SGEIs in various areas of waste management, such as the collection 
of building waste, the disposal or incineration of waste, including hazardous 
waste, and the disposal and treatment of household refuse. Moreover, recital 24 of 
Directive 2018/851 states that public authorities too may be responsible for 
organising the operational aspects of managing waste from products that are 
subject to EPR systems, which suggests that it is a fortiori possible to describe a 
system for the collective fulfilment of EPR obligations as an SGEI. 
26 The Constitutional Court considers that the Organisation has been entrusted with 
an SGEI within the meaning of Article 106(2) TFEU. In Slovenian law there is no 
definition of SGEIs, although there is the widely used concept of public services 
of an economic nature, which are not necessarily the same thing as SGEIs. Public 
services of an economic nature are activities by means of which certain material 
goods, such as products and services, are guaranteed the continuous and regular 
supply of which is in the public interest. That public interest is reflected in the fact 
that public needs are satisfied whenever and to the extent that the products or 
services in question cannot be guaranteed in the market, and in the fact that, in 
ensuring the supply of these goods or services, making a profit takes second place 
to the satisfaction of public needs. 
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27 The present case is different. Although the characteristics of the regime for the 
collective fulfilment of EPR obligations (for example, the absence of a profit-
making objective, open access for all producers) might suggest that the legislature 
intended to institute a public service of an economic nature, that expression is 
never used in the ZVO-2. 
28 According to the settled case-law of the Court of Justice, the State’s intervention 
on the market, in the sense of its intervention in the functioning of the market, 
admittedly impedes the creation of a market open to competition. However, such 
intervention may be lawful if three conditions are satisfied. First, the intervention 
must be intended to achieve general economic interest objectives; secondly, the 
principle of proportionality must be observed; thirdly, the public service 
obligations established as a result of the State’s intervention must be clearly 
defined, unambiguous, non-discriminatory and verifiable. 
29 In the settled case-law of the Court of Justice, environmental protection and health 
protection are recognised as overriding reasons of general interest, including 
where waste management issues are involved. Given that, the Constitutional Court 
considers that the designation of the collective fulfilment of EPR obligations as a 
special task of public interest is in the general (economic) interest. The Court of 
Justice has not yet ruled on the question of what circumstances must be taken into 
account in defining the collective fulfilment of EPR obligations as an SGEI for the 
purpose of assessing whether the application of the TFEU rules would impede, in 
fact or in law, the performance of that activity or prevent the Organisation from 
carrying out the specific tasks assigned to it, or whether the maintenance of such 
rights is necessary to enable the Organisation to carry out SGEI tasks under 
economically acceptable conditions. 
30 The Constitutional Court considers that a measure designating the activity of 
collective fulfilment of EPR obligations as a special task in the public interest 
could ensure the attainment of the general economic interest objective pursued. In 
order for it to comply with the principle of proportionality, the State’s intervention 
must be confined to what is necessary in order to attain the objective pursued. For 
that reason, the necessity of the measure adopted must be verified regularly. It is 
apparent from the contested legislation that, for the grant of an exclusive right to 
the Organisation, no limit on the duration of the obligation to carry on the 
collective fulfilment of EPR obligations is specified, and so the Constitutional 
Court considers that obligation to be a permanent one. The method used must not 
go beyond what is necessary in order to attain the general economic interest 
objective pursued. Restrictions of competition, to the detriment of other economic 
operators, must be permitted if they are necessary in order to enable an 
undertaking entrusted with a task of general importance to carry out that task. In 
that context, consideration must be given to the economic conditions under which 
the undertaking operates and, in particular, the costs it must bear, as well as the 
legislation that applies to it, and specifically environmental legislation. The 
Constitutional Court therefore wonders what circumstances it should take into 
account in assessing whether the method of intervention used does not go beyond 
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what is necessary to attain the general economic interest objectives pursued, and 
whether there are no less restrictive measures. 
The second question  
31 The Constitutional Court takes the view that the national legislation at issue falls 
within the scope of Articles 16 and 17 of the Charter, Articles 49, 56 and 106 
TFEU, the Services Directive and the Framework Directive on Waste. In light of 
the Court of Justice’s case-law, the Constitutional Court considers that national 
legislation under which exclusive rights to carry on an economic activity are 
conferred on a single private or public operator constitutes a restriction of freedom 
of establishment (Article 49 TFEU) and the freedom to provide services 
(Article 56 TFEU). The Court’s case-law also suggests that national legislation of 
this kind also constitutes a restriction of the freedom to conduct a business 
enshrined in Article 16 of the Charter. Similarly, such national legislation could be 
responsive to the requirements mentioned in Article 15(2)(d) of the Services 
Directive. Even if the collective fulfilment of EPR obligations is defined as an 
SGEI, account will still have to be taken of the Services Directive, in connection 
with freedom of establishment. 
32 It does not appear from its case-law that the Court of Justice has yet addressed the 
question of whether the fact that an activity must be carried out on a non-profit-
making basis, such that income does not exceed actual expenditure incurred in 
carrying out the activity and any profits are used solely for the pursuit of certain 
objectives, constitutes a restriction on the freedom to conduct a business 
(Article 16 of the Charter), freedom of establishment (Article 49 TFEU) and the 
freedom to provide services (Article 56 TFEU). 
33 Although it will be for the Constitutional Court to decide, in the proceedings for a 
review of constitutionality, whether the restrictions in national law are appropriate 
to the attainment of the objective pursued and whether they do not go beyond 
what is necessary in order to attain that objective, it is nevertheless for the Court 
of Justice, on the basis of the information available, to provide the Constitutional 
Court with the guidance necessary for that purpose, with reference to EU law. It is 
apparent from the case-law that the Court of Justice has already delivered various 
judgments ruling on the conditions that must be satisfied, by virtue of Article 16 
of the Charter, Articles 49 and 56 TFEU and Article 15(3) of the Services 
Directive, in order to justify national measures that could impede the exercise of 
freedom of establishment or the freedom to provide services. However, there are 
no rulings to be found in the Court’s case-law specifically concerning the 
collective fulfilment of EPR obligations. 
34 The question arises of whether the contested measures are capable of ensuring the 
attainment of the objective pursued. Although legislation may, in principle, 
achieve a general interest objective, it is also necessary for it to pursue that 
objective coherently. Indeed, according to the Court’s case-law, national 
legislation is appropriate to ensuring the attainment of a stated objective only if it 
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genuinely reflects a concern to attain that objective in a consistent and systematic 
manner. The Constitutional Court therefore wonders what circumstances it should 
take into account in assessing whether the legislation, pursuant to which the 
collective fulfilment of EPR obligations must be carried out on a non-profit basis 
by a single organisation, is capable of ensuring in a consistent manner the 
attainment of the abovementioned general interest objectives. 
35 There is also the question of whether the restriction satisfies the condition relating 
to the existence of less restrictive national measures by means of which the 
desired objective might be attained. The Court of Justice has not yet ruled on the 
question of what circumstances might justify the need for restrictions that could 
impede or make less attractive the collective fulfilment of EPR obligations. 
The third, fourth and fifth questions  
36 By means of the rules laid down in the ZVO-2, the legislature has substantially 
altered the EPR system. With those rules it has also significantly affected the 
positions of all the parties that participate in that system. The collective fulfilment 
of EPR obligations has been transformed from a normal market activity into an 
activity that only one organisation is allowed to carry out, and only on a non-
profit-making basis. That means that some ZVO-1 operators that have been 
carrying out the collective fulfilment of EPR obligations on the basis of an EA or 
an open-ended decision approving a collective project will no longer be able to 
carry on that activity. Account must also be taken of the fact that all the contracts 
that ZVO-1 operators concluded with producers and Contractors will be 
terminated ex lege. It must also be noted that the legislature only altered the 
conditions under which the collective fulfilment of EPR obligations is carried out; 
it did not alter the conditions for the performance of the economic activity of 
waste management. 
37 The Constitutional Court considers that the national legislation, which transforms 
an activity that has been carried on in the market with the aim of making a profit 
into a non-profit-making activity that only one organisation is authorised to carry 
on throughout the national territory, and which makes it impossible for the current 
providers of the service in question to continue to do so, constitutes a restriction of 
the freedom to conduct a business enshrined in Article 16 of the Charter and of the 
freedoms referred to in Articles 49 and 56 TFEU. However, in addition to that, 
such a situation is also protected by the principle of legal certainty, the corollary 
of which is the principle of the protection of legitimate expectations, which 
requires, in particular, that legal rules be clear and precise and have foreseeable 
effects, especially when they might have adverse consequences for individuals or 
undertakings. According to the case-law of the Court of Justice, the principle of 
the protection of legitimate expectations may be invoked by any economic 
operator that a national body has caused to entertain legitimate expectations. 
Nevertheless, where a prudent and circumspect economic operator could have 
foreseen the adoption of a measure likely to affect its interests, that principle 
cannot be invoked if the measure is adopted. 
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38 The Constitutional Court does not agree with the petitioners’ claim that the 
modification of the EPR system described above is in no way lawful from the 
perspective of Article 16 of the Charter and Articles 49 and 56 TFEU. It is clear 
from the case-law of the Court of Justice that an economic operator may not 
assume that there will be no changes in the law of any type and may solely contest 
the manner in which such changes are implemented. That case-law also shows 
that contracting parties are free to define, subject to the observance of mandatory 
and public policy provisions, the content of their legal relationships, including the 
consequences flowing from termination or a failure to fulfil respective obligations. 
39 The Constitutional Court considers that the amendment of the legislation – by 
virtue of which the conditions under which the collective fulfilment of EPR 
obligations is carried on are significantly altered, while at the same time existing 
EAs and decisions approving joint projects cease to be valid, along with the 
contracts concluded between ZVO-1 operators and producers and between ZVO-I 
operators and Contractors – is lawful if it is necessitated by overriding reasons in 
the public interest. However, any amendment of the legislative framework calls 
for either a transitional regime of reasonable duration or a system of reasonable 
compensation. 
40 The principle of legal certainty does not prohibit changes in the law, but does 
require the legislature to take account of the particular situation of economic 
operators and provide, where necessary, for adaptation to the application of the 
new legal rules. The Court of Justice has indeed held, with reference to producers 
and distributors, that, when an existing system for the management of packaging 
waste is modified, a reasonable transition period must be ensured, so that 
producers and distributors can adapt, and so that, when the packaging waste 
management system is modified, every producer and distributor can actually 
participate in the operational system. Similarly, the Court has already clarified 
that, when a national legislature revokes authorisations which enable the holder to 
carry on an economic activity, it must allow those parties either a sufficiently long 
transition period in which to adapt or a system of reasonable compensation. 
However, there are conflicting opinions in the Court’s case-law and, in certain 
circumstances, a transition period has not been regarded as necessary. The Court 
has held that, although the principle of the protection of legitimate expectation is 
one of the fundamental principles of EU law, economic operators can have no 
justified expectations regarding the preservation of an existing situation, which 
may be altered by the EU institutions or by the national authorities exercising their 
own discretionary powers, in particular in connection with the functioning of the 
market, which is constantly adapting to changes in economic relations. Moreover, 
a prudent and circumspect economic operator may not, on every occasion that it is 
able to foresee the adoption of an EU measure or a national measure likely to 
affect its interests, invoke that principle in the event that the measure in question 
is adopted. 
41 As regards the transition period, the Court has already held that, even if the EU 
has previously created a situation capable of giving rise to legitimate expectations, 
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which is to say, whenever an EU body gives precise, unconditional and consistent 
assurances originating from authorised and reliable sources, an overriding public 
interest may preclude transitional measures from being adopted in respect of 
situations which arose before the new rules came into force but which are still 
subject to change. Given that, the Constitutional Court wonders whether, in the 
circumstances described in the order for reference, a transition period is really 
necessary and, if it is, what criteria determine the reasonableness of the transition 
period or of a system of compensation. 
The sixth question  
42 The Constitutional Court does not believe that the Court of Justice has yet ruled 
on the question of whether national legislation pursuant to which producers must 
establish an organisation and only producers may hold a share in that organisation 
constitutes a restriction of the freedom to conduct a business (Article 16 of the 
Charter), of freedom of establishment (Article 49 TFEU) and of the freedom to 
provide services (Article 56 TFEU). If it is held that such a measure does 
constitute a restriction of the freedom to conduct a business, of freedom of 
establishment and of the freedom to provide services, then the Constitutional 
Court will have to address the question of whether the measure can be justified. 
43 The next question that arises is whether such a restriction is capable of ensuring 
the attainment of the objective pursued. Measures whereby a Member State 
restricts the ownership of an undertaking, because of a belief that there is a risk 
that persons who are not producers might influence the organisation’s 
management, in such a way that it adopts economic strategies that could imperil 
the objective of ensuring high quality management of waste resulting from 
products to which EPR obligations apply and would reduce management costs, 
could probably be appropriate measures for attaining the objective of an EPR 
system that operates effectively. 
44 Then there is the question of whether the restriction satisfies the condition relating 
to the existence of less restrictive national measures by means of which the 
desired objective might be attained. Since the Court of Justice has not yet ruled on 
the question of what circumstances might necessitate restrictions that could 
impede or make less attractive the collective fulfilment of EPR obligations, the 
Constitutional Court raises that question. 
The seventh, eighth and ninth questions 
45 The Constitutional Court wonders whether legislation that establishes the 
characteristics that must be possessed by producers holding a share in the 
Organisation, members of the Organisation’s governing body, members of its 
supervisory body and its representatives could constitute a restriction of the 
freedom to conduct a business (Article 16 of the Charter), of freedom of 
establishment (Article 49 TFEU) and of the freedom to provide services 
(Article 56 TFEU. The Constitutional Court considers that such national 
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legislation could be responsive to the requirements mentioned in Article 15(2)(c) 
of the Services Directive. 
46 The contested legislation also affects the position in the Organisation of producers 
that have EPR obligations and at the same time also carry on the collection or 
treatment of waste resulting from products to which the collective fulfilment of 
EPR obligations applies. Such producers will not be able to hold a share in the 
Organisation and may only have the status of producers that join an organisation 
that has already been set up, by concluding a contract with it. That in effect 
means, inter alia, that a producer that has EPR obligations in connection with 
packaging waste and is also engaged in the collection or treatment of such waste 
may not hold a share in the organisation that carries out the collective fulfilment 
of EPR obligations. 
47 The Constitutional Court does not believe that the Court of Justice has yet ruled 
on the question of whether legislation as described in the previous paragraph 
constitutes a restriction of the freedom to conduct a business (Article 16 of the 
Charter), of freedom of establishment (Article 49 TFTEU) and of the freedom to 
provide services (Article 56 TFEU). The Constitutional Court considers that such 
national legislation could reflect a requirement as contemplated by 
Article 15(2)(c) of the Services Directive. 
48 If it is held that the measure in question does constitute a restriction of the 
freedom to conduct a business, freedom of establishment and the freedom to 
provide services, or reflects requirements referred to in Article 15(2) of the 
Services Directive, the Constitutional Court wonders whether such national 
measures, which might impede the exercise of the freedoms referred to in 
Articles 49 and 56 TFEU or make the exercise of those rights less interesting, 
fulfil the necessary conditions to be regarded as justified. 
49 The question also arises of whether the restrictions in question could be directly or 
indirectly discriminatory. The Constitutional Court considers that the 
requirements at issue are neither directly nor indirectly discriminatory, since the 
requirements that apply to producers that are shareholders, to members of the 
Organisation’s governing body or supervisory body and to the Organisation’s 
representatives apply regardless of the location of the registered office or the 
nationality of the person in question. The Constitutional Court does not, therefore, 
consider that the requirements are discriminatory within the meaning of 
Article 15(3)(a) of the Services Directive. 
50 The next question is whether the restrictions are capable of ensuring the 
attainment of the objective pursued. The Constitutional Court is of the opinion 
that a measure whereby a Member State restricts reciprocal relationships between 
an organisation, its shareholders, its governing bodies and contractors could be 
appropriate for attaining the objective of reducing conflicts of interests between 
those parties in the interests of environmental protection and the protection of 
competition. 
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19 
51 The last question is whether the restrictions satisfy the condition relating to the 
existence of less restrictive national measures by means of which the desired 
objective could be attained. The Constitutional Court raises this question because 
the Court of Justice has not yet addressed the issue of what circumstances might 
necessitate restrictions that could impede or make less attractive the collective 
fulfilment of EPR obligations. 
The tenth question 
52 It is clear from the contested legislation that producers that have EPR 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 holds 
the authorisation to carry on the collective fulfilment of EPR obligations (the 
Organisation) with the task of fulfilling their EPR obligations. Thus, the law 
compels them to conclude a contract. If they fail to conclude such a contract, they 
risk a fine of between EUR 40 000 and EUR 75 000. The Constitutional Court 
therefore considers that the imposition of an obligation to conclude a contract 
constitutes a substantial interference with the freedom to conclude contracts 
which, in principle, economic operators enjoy. Indeed, having regard to the 
Court’s position, the contractual freedom of producers is so diminished that this 
restriction could undermine the very substance of their right to free economic 
initiative. The Constitutional Court therefore raises the question of whether this 
restriction is consistent with EU law. 
53 The next question is whether the restrictions of freedom of establishment, of the 
freedom to provide services and of freedom of economic initiative caused by the 
contested legislation can be justified on grounds of general (economic) interest, 
that is to say, reasons relating to the protection of the environment. 
54 54 As stated, the contractual freedom of producers is so diminished that the 
restriction in question could undermine the very substance of their right to 
freedom of economic initiative. However, it should be noted that the obligation of 
collective fulfilment of EPR obligations applies only to products subject to EPR 
that are intended for household use, while for other products subject to EPR that 
are not intended for household use the ZVO-2 permits the fulfilment of EPR 
obligations to be carried out autonomously. For this reason, the Constitutional 
Court considers that the legislation should probably not be regarded as 
undermining the very substance of the freedom of economic initiative. The 
Constitutional Court therefore wonders at what point it is possible to consider that 
contractual freedom is so compromised that the restriction in question undermines 
the very essence of the right to freedom of economic initiative.