Opinion of the Advocate General — ECLI:EU:C:2021:619
Date: 2021-07-15
Language of the case: Czech
Subject matter: Environment;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Czechia

Summary C-181/20 — 1 
Case C-181/20 
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: 
24 April 2020 
Referring court: 
Nejvyšší soud (Czech Republic) 
Date of the decision to refer: 
12 March 2020 
Applicant: 
VYSOČINA WIND a.s. 
Defendant: 
Česká republika — Ministerstvo životního prostředí (Czech 
Republic — Ministry of the Environment) 
  
Subject matter of the main proceedings 
Interpretation of Article 13 of Directive 2012/19/EU of the European Parliament 
and of the Council of 4 July 2012 on waste electrical and electronic equipment 
(WEEE) (OJ L 197, 24.7.2012, p. 38). 
Liability of a Member State for damage caused to an individual by a breach of EU 
law 
Subject matter and legal basis of the reference for a preliminary ruling 
Article 267 TFEU 
Questions referred for a preliminary ruling 
1. Must Article 13 of Directive 2012/19/EU of the European Parliament and of 
the Council of 4 July 2012 on waste electrical and electronic equipment (WEEE) 
EN 
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be interpreted such that it prevents a Member State from imposing the obligation 
to finance the costs of the collection, treatment, recovery, and environmentally 
sound disposal of WEEE coming from photovoltaic panels placed on the market 
prior to 1 January 2013 on their users, rather than their producers? 
2. If the first question is answered in the affirmative, is the evaluation of the 
conditions for the liability of a Member State for damage caused to an individual 
due to a breach of EU law influenced by the fact – which was at issue in the 
original proceedings – that the Member State itself regulated the method of 
financing of waste from photovoltaic panels prior to the adoption of the directive, 
which newly included photovoltaic panels in the scope of EU regulation and 
imposed the obligation to finance the costs on producers, including in relation to 
panels placed on the market prior to the expiry of the directive’s implementation 
period (and the adoption of regulation at European Union level)? 
The provisions of EU law cited 
Directive 2012/19, Article 12(4) and Articles 13 and 24  
Article 5 TEU 
Relevant national law 
Law No 185/2001, on waste and amending certain other Laws (‘the Law on 
Waste’), Paragraph 37p and Paragraph 37h 
Brief presentation of the EU and national legal frameworks 
1 Article 13 of Directive 2012/19 imposes on Member States the obligation to 
ensure that the costs for the collection, treatment, recovery and environmentally 
sound disposal of waste (hereinafter referred to as “waste management”) resulting 
from electrical and electronic equipment placed on the market after 13 August 
2005 be financed by their producers. The management of ‘historical’ waste, i.e., 
waste resulting from products placed on the market prior to that date, is to be 
financed, in the case of the replacement of old products with new ones (unless 
Member States impose that obligation on users) by the producers of such new 
products, and in the case of other historical waste by users. This obligation, set 
already by Directive 2002/96/EC of the European Parliament and of the Council 
of 27 January 2003 on waste electrical and electronic equipment (WEEE) (OJ 
2003 L 37, p. 24; ‘the original 2002 Directive’) newly applies also to waste from 
photovoltaic panels. The period allowed for transposing Directive 2012/19 ended 
on 14 February 2014. 
2 The Czech Republic implemented its obligations arising from the original 2002 
Directive by enacting the Law on Waste. In 2012, prior to the adoption of 
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Directive 2012/19, a new Paragraph 37p was inserted in the Law, introducing a 
mechanism for financing the management of waste from photovoltaic panels. 
According to that provision, the obligation to finance the management of waste 
from photovoltaic panels placed on the market before 1 January 2013 is borne by 
the operator of the solar power plant, through equal sub-payments of recycling 
contributions. To that end, an obligation was set to enter into, by 30 June 2013, an 
agreement with an entity providing a collective financing system, such that the 
financing is obtained by 1 January 2019. In the case of photovoltaic panels placed 
on the market after 1 January 2013, the obligation falls on the producer. 
Brief presentation of the facts and main proceedings 
3 The plaintiff is the operator of the ‘Vranovská ves II’ solar power plant. The 
power plant was put into operation in 2009, using photovoltaic panels placed on 
the market after 13 August 2005 but before 1 January 2013. Hence, the plaintiff 
entered into agreements with the relevant entities, in line with Paragraph 37p of 
the Law on Waste, on the basis of which it paid out a contribution for the 
recycling of electric waste from photovoltaic panels in the total amount of 
CZK 1,613,773.24, making three sub-payments in 2015 and 2016. 
4 The plaintiff maintains that the Czech Republic implemented Directive 2012/19 
incorrectly, as, pursuant to Article 13 of the Directive, the obligation to finance 
the management of waste from photovoltaic panels placed on the market after 
13 August 2005 lies with the producer, rather than the user. Due to that, the 
plaintiff incurred damage, as, pursuant to the still-applicable Paragraph 37p of the 
Law on Waste, it is obliged to pay a recycling contribution even after 14 February 
2014 (the expiry of the implementation period), which, according to EU law, is to 
be paid by the producer. The plaintiff has therefore brought an action against the 
Czech Republic for damages incurred by it due to a breach of EU law, 
corresponding to the amount of the contribution paid, of CZK 1,613,773.24. 
5 The Czech Republic maintains that the obligation of producers to finance the 
management of waste from photovoltaic panels is to apply only to photovoltaic 
panels placed on the market after the expiry of the implementation period 
(14 February 2014), as a retroactive imposition of an obligation would constitute 
impermissible retroactivity and a related breach of general legal principles of 
legitimate expectations and legal certainty. Furthermore, it objects that many 
producers that placed photovoltaic panels on the market between 2005 and 2013 
no longer exist and, hence, the obligation to finance waste management cannot be 
imposed on them. Finally, it states that the European Commission did not find any 
errors in the transposition of Article 13 of Directive 2012/19 during the EU Pilot 
proceedings, and no proceedings are being conducted against the Czech Republic 
due to a failure to comply with obligations arising from EU law. 
6 The Obvodní soud pro Prahu 10 (District Court for Prague 10) as the court of first 
instance, in its judgment of 6 April 2018 upheld the action; the Městský soud v 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-181/20 
 
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Praze (Municipal Court in Prague) in its judgment of 14 November 2018 
confirmed the judgment of the court of first instance. The Czech Republic filed an 
appeal on a point of law against the judgment of the Municipal Court in Prague to 
the referring court.  
Brief presentation of the grounds of the request for a preliminary ruling 
7 In the present case, it is necessary to answer the question whether the Czech 
Republic properly implemented Article 13 of Directive 2012/19 in relation to 
photovoltaic panels. To do so it is necessary to assess whether Article 13 of 
Directive 2012/19 prevents Member States from imposing the obligation to 
finance the management of waste from photovoltaic panels placed on the market 
before 1 January 2013 on the operators of a solar power plant (the users) , rather 
than on the producers. In the event of an affirmative answer, Paragraph 37p of the 
Law on Waste would be incompatible with EU law and the Member State’s 
liability for damages incurred by an individual due to a breach of EU law should 
be addressed. In this regard, the question would arise whether the circumstances 
concerned by the original proceedings may have an impact on the conditions for 
liability of the Member State. 
The first question 
8 It is undisputed in the proceedings that Article 13 of Directive 2012/19 obliges the 
Member State to impose on producers the obligation to finance the management 
of waste from photovoltaic panels, if those panels were placed on the market after 
14 February 2014. It is likewise undisputed that, in terms of historical waste from 
photovoltaic panels (placed on the market before 13 August 2005), a Member 
State may impose that obligation on users. There is, however, a question as to this 
obligation in relation to panels placed on the market between 13 August 2005 and 
14 February 2014. 
9 Hence, the primary issue is whether photovoltaic panels placed on the market 
before 14 February 2014 fall within the substantive scope of Directive 2012/19. If 
so, the secondary issue is whether the imposition of an obligation in relation to 
photovoltaic panels placed on the market after 13 August 2005 would be 
retroactive and, if so, whether such retroactivity is impermissible. In the event of 
an affirmative answer to all these questions, it should be addressed how a Member 
State can transpose a directive that imposes on it an obligation to enact 
impermissible retroactive national legislation. 
10 The referring court is of the opinion that the two parties operate on the basis of 
different assumptions as to the point at which and ground due to which the 
obligation to finance waste management arose. Whereas the lower courts and the 
plaintiff obviously operate on the assumption that the obligation is to arise as a 
result of the generation of a specific item of waste, the Czech Republic evidently 
considers the mere placement of a product on the market to constitute the ground 
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for the occurrence of that obligation. In this regard, the legal opinions of both 
parties to the proceedings seem logical. If the obligation arises at the time waste is 
generated, Directive 2012/19 requires Member States to adopt legislation that is 
not retroactive from the point of view of EU law, as it only operates into the 
future, despite the fact that the entity obliged to finance waste management is in 
fact determined according to when the product from which the said waste is 
generated was placed on the market (13 August 2005). If, on the other hand, the 
obligation arises at the time of the placement of the product on the market, such 
placement on the market constitutes a final situation and the imposition of the 
obligation to finance waste management from such products by the Directive 
could indeed be retroactive. It could, among other things, apply to waste generated 
in the past and already financed, with respect to which the obligation to finance it 
would be shifted to another entity retroactively. 
11 According to the referring court, the obligation to finance waste management 
under Directive 2012/19 should arise only once electrical equipment (a 
photovoltaic panel) becomes waste. On the contrary, the assumption that the 
obligation to finance waste management occurs upon the placement of the product 
on the market seems incorrect, due to, among other things, the fact that it is not 
entirely clear when waste is generated. Essentially, this would involve a condition 
or documentation of a point in time, and this obligation would be conditional and 
uncertain until such time as waste is generated. In this regard, the arguments 
presented by the Czech Republic do not seem to be watertight, as retroactive 
effects would not be an issue in a situation when waste is generated after 
14 February 2014. According to the referring court, retroactivity could only be 
inferred if waste were generated prior to 14 February 2014. No provision of 
Directive 2012/19, however, states that the Directive should apply also to such 
waste and it expresses no intention of the European Union legislature to adopt 
retroactive legislation. 
12 According to the referring court, the correct interpretation of Article 13 of 
Directive 2012/19 should therefore be such that producers should have, as of 
14 February 2014, on the basis of national legislation, the obligation to pay the 
costs of the disposal of waste from photovoltaic panels placed on the market after 
13 August 2005, but only with respect to waste generated after 14 February 2014. 
This is not retroactivity for the purposes of EU law and, hence, the terms of its 
potential justification need not be examined. According to the referring court, 
priority should be given to this interpretation, including for the reason that (as has 
already been stated) Directive 2012/19 expresses no intention of the European 
Union legislature to adopt retroactive legislation. 
13 In the light of this interpretation, the conclusion can thus be reached, according to 
the referring court, that a Member State cannot transpose Article 13 of Directive 
2012/19 such that it imposes on users an obligation to finance the management of 
waste from photovoltaic panels placed on the market before 1 January 2013. 
Hence, the transposition of Directive 2012/19 by the Czech Republic cannot be 
considered correct. 
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14 The question arises, however, whether another conclusion can be reached, i.e., 
that a Member State may duly transpose Article 13 of Directive 2012/19 in such 
manner that it imposes on users the obligation to finance the management of waste 
from photovoltaic panels placed on the market before 1 January 2013, if the 
following circumstances are considered. 
15 First, the referring court refers to the Commission’s reasoning in connection with 
the adoption of the original 2002 Directive, which in the end led the Commission 
to reject the idea of imposing the financing of historical waste on producers in 
general. The Commission concluded that, in the case of products placed on the 
market before the expiry of the deadline for the transposition of the original 2002 
Directive, the imposition of such an obligation would constitute an obligation with 
a retroactive effect that could expose producers to serious economic risks. These 
conclusions can be applied mutatis mutandis to photovoltaic panels that were 
newly included in the scope of EU legislation by Directive 2012/19. 
16 Secondly, related thereto is the potential importance of the protection of legitimate 
expectations of producers of photovoltaic panels. They may not have expected 
that, in the future, a retroactive obligation to finance waste would be imposed on 
them, i.e., including that generated from photovoltaic panels placed on the market 
in the past, and thus were unable to factor such costs in their prices. This may 
expose them to a serious economic risk.  
17 Thirdly, with the Czech Republic having adopted its own regulation for the 
financing of waste from photovoltaic panels first, which was to be subsequently 
amended in line with newly adopted EU regulation which also applies to panels in 
respect of which an obligation was previously imposed by national law, unfair 
treatment of users could occur: between those who did comply with the obligation 
set by national law before the expiry of the deadline for the transposition of 
Directive 2012 and those who did not. Paragraph 37p of the Law on Waste lays 
down the obligation to enter into an agreement and, on that basis, to finance the 
costs in advance, with the financing being split into several sub-payments. If an 
operator of a solar power plant failed to comply with its obligation, breaching 
national law, it could, in the event of a change in legislation due to the adoption of 
Directive 2012/19, gain an advantage compared to other users who have already 
complied with their obligation. The change in liability for financing would apply 
retroactively, even with respect to those entities that had already complied with 
the obligation. 
18 In this regard, the Czech Republic’s argument may be of relevance, that, if at the 
time of the enactment of the national legislation, the method of compliance 
involving the obligation to break the payment into several instalments had not 
been selected and an obligation to pay the entire amount in a lump sum had been 
imposed, the subsequent transfer of liability to another entity in line with newly 
adopted EU regulation could retroactively change the legal regime of an 
obligation that had already arisen and had been fulfilled in full (as opposed to in 
instalments).  
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19 Fourthly, the Czech Republic is not the only Member State to have transposed 
Article 13 of Directive 2012/19 in relation to photovoltaic panels such that it 
distinguished an entity obliged to finance waste management on the basis of a 
point at which the photovoltaic panel was placed on the market that is different 
from the date set by Directive 2012/19 — 13 August 2005. In this regard, the 
referring court refers to the German (Paragraph 7 Elektro- und 
Elektronikgerätegesetz) and Austrian (Paragraph 10 Elektroaltgeräteverordnung) 
legislation. 
20 Fifthly, the referring court points to a practical problem which the Czech Republic 
also raised, namely that a producer that placed photovoltaic panels on the market 
in the past may no longer exist and hence the obligation to finance the 
management of waste generated from such panels cannot be imposed on it. In this 
context, the referring court refers to the Greek legislation (Article 16-B-3 of 
Ministerial Decision No 23615/651/E.103), according to which in such a case that 
obligation is borne by the user. 
21 And finally, the sixth reason is the present approach of the Commission in 
monitoring the transposition of Directive 2012/19. The Commission has not 
initiated any proceedings against the Czech Republic due to its failure to comply 
with an obligation arising from EU law. On the contrary, according to the Czech 
Republic’s statement, it has reportedly been assured that the Czech legislation is 
in line with EU law. This is of importance, in particular, in a situation when the 
transposition of Article 13 of Directive 2012/19 in relation to photovoltaic panels 
is different in various Member States, as was stated above. 
The second question 
22 If the first preliminary issue is answered in the affirmative, the issue arises of the 
liability of the Czech Republic for damage caused to the plaintiff as an operator of 
a solar power plant as a result of a breach of EU law (i.e., incorrect transposition 
of Article 13 of Directive 2012). 
23 Case-law of the Court of Justice indicates that, in order for a Member State to be 
liable for such damage to an individual, the conditions for liability must be met: 1) 
a breach of EU law (e.g., incorrect transposition of a Directive); 2) occurrence of 
harm incurred by an individual; 3) a direct causal link between the breach of EU 
law and the occurrence of the harm; and 4) sufficient seriousness of the breach of 
EU law (e.g., judgments in Francovich (C-6/90 a C-9/90) and Brasserie du 
pêcheur (C-46/93 a C-48/93)). 
24 According to the referring court, the question arises whether any of the 
circumstances described above in the original proceedings may be of relevance to 
the assessment of these conditions. 
25 It may primarily be relevant in this regard that, in the present case, the Member 
State (the Czech Republic) itself regulated the financing of waste from 
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photovoltaic panels at national level prior to the adoption of Directive 2012/19, 
which newly included photovoltaic panels within the scope of EU regulation and 
imposed the obligation to finance the costs of waste management on producers 
with respect to photovoltaic panels placed on the market before the expiry of its 
implementation period (and the adoption of the legislation concerned at European 
Union level). 
26 According to the applicable national legislation, operators of solar power plants 
were obliged to enter into an agreement on arrangements for the financing of 
waste from photovoltaic panels in the form of instalments by 30 June 2013, i.e., at 
a time when that legislation was not contrary to EU law. After the adoption of 
Directive 2012/19, the agreement between the operator of a solar power plant and 
the entity providing collective performance of the obligation continued to apply, 
and the operator of a solar power plant continued to be obliged to fulfil its 
obligations under the agreement. First, the issue arises whether it is possible, in 
that case, to object, after the expiry of the implementation period, about an 
infringement of EU law due to payment of an instalment when the obligation was 
set and partially fulfilled before the adoption of the EU legislation. 
27 Furthermore, in the case at hand, given the above, there may not have been a 
causal link between, on the one hand, compliance with the obligation to enter into 
an agreement set by national law and the payment of a contribution to a collective 
system on the basis of the agreement and, on the other hand, the transposition of 
Directive 2012/19. For that reason, the question also arises whether the harm 
claimed, which occurred due to the incorrect transposition of Directive 2012 as a 
result of  which the operator of a solar power plant was obliged to continue to pay 
a contribution for the management of waste from photovoltaic panels, even 
though, according to the EU legislation, the management of such waste was to be 
financed by the producer, has a direct causal link with the incorrect transposition 
of Directive 2012, as required by EU law. 
28 Furthermore, the impact of this fact, in relation to the requirement of ‘sufficient 
seriousness’ of a breach of EU law, is uncertain. Due to the adoption of the EU 
legislation, liability is transferred with retroactive effect, even in respect of 
photovoltaic panels with regard to which the financing obligation had been set by 
national law for a specific entity, and which obligation may moreover have 
already been fulfilled in full. This occurs in a situation where Article 13 of 
Directive 2012/19 has been transposed differently in various Member States and, 
at least according to the claim made by the Czech Republic, the transposition has 
not been found incorrect by the Commission. 
29 In the opinion of the Supreme Court, the questions referred for a preliminary 
ruling cannot be considered either acte clair or acte éclairé. The Supreme Court, 
as a court whose decision cannot be appealed, as specified in Article 267 TFEU, 
therefore considers it necessary to submit these issues to the Court of Justice. 
Given the different methods of transposition of Article 13 of Directive 2012/19 in 
relation to photovoltaic panels in the various Member States, the response to these 
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questions may be of relevance not only to the original proceedings but also at 
European Union level in general, as it may ensure future uniform application of 
EU law throughout all EU Member States.