CONSEIL PD D'ETAT
Judgment
in respect of the appeal No. 358923 FRENCH REPUBLIC
______IN THE NAME OF THE FRENCH PEOPLE COMPANY G...and others
______The Conseil d'Etat ruling Ms Sophie Roussel (Litigation Section, 6th and 1st sub-sections combined) Rapporteur
______On the report by the 6th sub-section
Mr Xavier de Lesquen of the Litigation Section
Rapporteur public
______
Session of 04 September 2013
Reading of 25 September 2013
______
Considering the appeal, recorded on 27 April 2012 by the litigation secretariat of the Conseil d'Etat, presented on behalf of the company G..., whose registered office is 162, avenue de Stalingrad at Colombes (92702), Mr D...G..., residing at..., Ms F...K...G..., residing at..., Ms B...H..., residing at..., Ms C...J...G..., residing at... and Ms A...I...E..., residing at... ; the company G...and others request the Conseil d'Etat:
1) to set aside Judgment No. 11BX01933 1 March 2012 by which the Administrative Court of Appeal of Bordeaux, firstly, set aside Judgment No. 0500083/0700907 of 20 December 2007 insofar as, by this judgment, the Limoges Administrative Court rejected their application seeking the annulment of the order of 13 June 2007 of the mayor of Le Palais-sur- Vienne (Haute-Vienne) giving them notice to take all measures to dispose of the waste located on their property located at "Le Puy-Moulinier", before 31 July 2007, failing which this would be performed automatically at their expense, and, secondly, dismissed their request seeking the annulment of the order;
2) settling the case on the merits, to grant their appeal;
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Considering the other evidence of the case;
Considering Directive 2006/12/EC of the European Parliament and of the Council of 05 April 2006;
Considering the Environment Code;
Considering the Code of Administrative Justice;
Having heard in open court:
- the report of Ms Sophie Roussel, Auditor,
- the submissions by Mr Xavier de Lesquen, rapporteur public
The SCP de Chaisemartin, Courjon, counsel for the company G... , for Mr G..., for Ms G..., for Ms H..., Ms G... and Ms E... and the SCP Thouin-Palat , Boucard, counsel for the municipality of Le Palais-sur-Vienne addressed the court before and after the submissions;
1. Whereas Articles L. 541-1 to L. 541-3 of the Environment Code result from the transposition of Articles 1, 8 and 17 of the Directive of the European Parliament and of the Council of 5 April 2006 on waste; whereas pursuant to II of Article L. 541-1 of the Code, in its version applicable on the date of the impugned order: "Waste within the meaning of this chapter is any residue of a process of production, transformation or use, any substance, material, product or more generally any abandoned movable property or which its holder intends to abandon"; whereas pursuant to Article L. 541-2 of the same code: "Any person who produces or holds waste under conditions which is such that it produces harmful effects on the soil, the flora and fauna, deteriorates the sites or landscapes, pollutes the air or water, cause noise and odours and, generally, harms human health and the environment, is obliged to dispose of the waste or cause it to be disposed of in accordance with the provisions of this chapter, under conditions that avoid such effects (…)"; whereas, under the terms of Article L. 541-3: "In the event of soil pollution, risk of soil pollution, or where waste is abandoned, deposited or processed contrary to the requirements of this chapter and of the regulations made for their application, the authority with enforcement power may, after notice, automatically perform the required work at the responsible party's expense (…)";
2. Whereas that the persons responsible for waste within the meaning of these provisions, interpreted in the light of the provisions of Articles 1, 8 and 17 of the Directive of the European Parliament and of the Council of 5 April 2006 relating to waste, are the producers or other holders of the waste alone; whereas, in the absence of any producer or any other known holder, the owner of the land on which the waste has been deposited may be considered to be their holder within the meaning of Article L. 541-2 of the Environment Code, in particular if it has been negligent with respect to abandonments of waste on its land, and accordingly be liable to the obligation to dispose of this waste;
3. Whereas, firstly, by basing itself on the double circumstance that the company Eureca, which was the holder of the waste, no longer existed and that the applicants, owners of the land on which the waste was present, had shown negligent behaviour in respect to it, ruling accordingly that the mayor of the municipality of Le Palais-sur-Vienne had been able regard them as the holders of the waste present on their land within the meaning of the provisions of Article L. 541-2 and charging them for the work required for its disposal, the Administrative Court of Appeal of Bordeaux did not commit an error of law;
4. Whereas, secondly, the Administrative Court of Appeal of Bordeaux in particular noted that the disputed waste resulted for the most part from the earlier operation of the rubber regenerating activity by the company G..., that the applicants had refrained from any monitoring and any upkeep of the land, in particular, for the purpose of limiting the risks of pollution of the Vienne river and the risk of fire, or conducted any work to facilitate access to the site by the emergency and fire-fighting services and that they had not taken any initiative to ensure the security of the site or to facilitate the organisation of the disposal of the waste; whereas on the contrary, it noted that Mr G... , without prior authorisation, had entrusted a construction plant company with the task of burying the waste in the natural depressions of the site to make it disappear and had also been found guilty of an offence for operating without authorisation a facility classified for the protection of the environment by a judgment of 3 November 1993 of the Court of Appeal of Limoges, confirmed by the Court of Cassation, and that the company G... had refused the Agence de l’environnement et de la maîtrise de l’énergie (Environment and energy control agency) authorisation to enter the site to remove the toxic products and to increase security; whereas given all the facts that it has thus identified, the Administrative Court of Appeal of Bordeaux, which has sufficiently responded the grounds argued before it without vitiating its judgment with a contradiction of grounds, has given to the facts which were put before it an exact legal characterisation and has not committed an error of law in finding that the applicants had been negligent in respect of the abandonment of waste on their land and by deducing that they should be regarded as holders of this waste within the meaning of Article L. 541-2 of the Environment Code; 5. Whereas, lastly, the ground arguing that the financial burden which would be likely to weigh on the applicants for disposing of the waste on the site would be clearly disproportionate was not raised before the court; whereas the applicants cannot therefore usefully invoke it to challenge the basis of the impugned judgment; whereas it may only, accordingly, be denied;
6. Whereas it follows from all of the foregoing that the appeal of the company G... and others must be dismissed;
7. Whereas, in the circumstances of the case, it is appropriate to order the company G..., Mr D...G..., Ms F...G..., Ms B...H..., Ms C...G..., and Ms A...E... to pay to the municipality of Le Palais-sur-Vienne the sum of EUR 500 pursuant to Article L. 761-1 of the Code of Administrative Justice; whereas these provisions preclude the municipality of Le Palais-sur-Vienne which is not, in this case, the losing party, from making a payment;
DISPOSITION:
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Article 1: The appeal of the company G... and others is dismissed.
Article 2: The company G..., Mr D...G..., Ms F...G..., Ms B...H..., Ms C...G... and Ms A...E... shall each pay a sum of EUR 500 to the municipality of Le Palais-sur-Vienne.
Article 3: This decision shall be notified to the company G..., the first petitioner named and to the municipality of Le Palais-sur-Vienne. The other petitioners shall be informed of this decision by SCP de Chaisemartin-Courjon, counsel at the Conseil d'Etat and the Court of Cassation, which represents them before the Conseil d'Etat.
A copy of it shall be sent for information to the Minister of Ecology, Sustainable Development and Energy.
No. 358923 - -