Content uploaded by Tomáš Peráček
Author content
All content in this area was uploaded by Tomáš Peráček on Dec 29, 2022
Content may be subject to copyright.
Section Enviromental Legislation, Multilateral Ralations and Funding Opportunities
SIGNIFICANCE OF THE WASTE ACT IN THE CONTEXT OF THE RIGHT
TO PROTECTION OF THE ENVIRONMENT
JUDr. PhDr. Tomáš Peráček, PhD.1
PhDr. Daniela Majerčáková, PhD.2
Mgr. Alexandra Mittelman3
1 Comenius University in Bratislava, Faculty of Management, Slovak Republic
2 Comenius University in Bratislava, Faculty of Management, Slovak Republic
3 Comenius University in Bratislava, Faculty of Management, Slovak Republic
ABSTRACT
Article 44 (1 through 5) of the Constitution of the Slovak Republic guarantees everybody
the right to a favorable environment. At the same time it requires that all entities protect
and cultivate the environment and it prohibits to jeopardize or to damage the environment
and natural resources exceeding levels prescribed by law.
In accordance with the Slovak Government’s Legislative Program for the year 2014 as
well as a follow up of the Slovak Government’s Manifesto for years 2012 – 2016 the
Ministry of Environment of the Slovak Republic has submitted a draft of the Waste Act.
The legislative draft was based on the Legislative Intent for the Waste Act as approved
by the National Council of the Slovak Republic in 2015 thus becoming a part of the legal
order of the Slovak Republic.
Aim of the new Waste Act is modification of the existing and setting up of new rules
within the waste management in order to create standard conditions (from the perspective
of the developed countries of the European Union) for making changes in the environment
that would enable development and implementation of activities within the waste
management and at the same time to create conditions for legal security comparable to
conditions in other European Union Member States. [1]
This paper’s intention is a thorough analysis of selected legal institutes relating in
particular to the reduction of waste being disposed of by landfill; as well as to the
regulation and focusing on waste prevention, minimizing of negative impacts of
generating and managing of waste on the environment and human health; and at the same
time to introduce and implement an extended producers’ and importers’ responsibility in
a standard way as is usual in other European Union Member States and its transfer to the
municipal level.[2]
Keywords: environment, human health, landfill, minimizing of negative impacts,
separation, waste,
Section Enviromental Legislation, Multilateral Ralations and Funding Opportunities
INTRODUCTION
Environmental law deals with behavior of humans towards the environment, i.e. with the impact
of humans on the condition of environment. Aim of legal regulation in this sphere is to achieve
a favorable state of environment that would enable existence and healthy development for not
only the present generation but future generations as well. This is a basic aim and if found in
legal literature a wider scope of legal regulation’s aims, i.e. extended with an aim to maintain
an ecological stability, it should be considered as an attempt to further define objectives in this
sphere.[3]
Article 44 (1 through 5) of the Constitution of the Slovak Republic guarantees everybody the
right to a favorable environment. At the same time it requires that all entities protect and
cultivate the environment and it prohibits to jeopardize or to damage the environment and
natural resources exceeding levels prescribed by law.
In accordance with the Slovak Government’s Legislative Program for the year 2014 as well as
a follow up of the Slovak Government’s Manifesto for years 2012 – 2016 the Ministry of
Environment of the Slovak Republic has submitted a draft of the Waste Act. The legislative
draft is in accordance with the Constitution of the Slovak Republic, Constitutional Acts and
other legal regulations, as well as with the international treaties legally binding for the Slovak
Republic, and is based on the Legislative Intent for the Waste Act as approved by the National
Council of the Slovak Republic in 2015 thus becoming a part of the legal order of the Slovak
Republic.
WASTE ACT
Aim of the new Act No. 79/2015 Coll. on waste and on changing and amending certain acts
(Waste Act), effective since January 1, 2016 is modification of the existing and setting up of
new rules within the waste management in order to create standard conditions (from the
perspective of the developed countries of the European Union) for making changes in the
environment that would enable development and implementation of activities within the waste
management and at the same time to create conditions for legal security comparable to
conditions in other European Union Member States.
As follows from the regulation of Art. 1 (1) the Waste Act regulates:
program documents in waste management,
measures to prevent waste generating,
rights and duties of legal entities and natural persons with regard to preventing and
managing waste,
extended producers’ responsibility,
management of dedicated products and waste streams,
municipal waste management,
transboundary movement of waste,
waste management information system,
activities of the Recycling Fund, process of its dissolution and cessation.
This scope of regulation was modified and has gone beyond the scope of the repealed Act
No. 223/2001 Coll. on waste and on changing and amending certain acts (Waste Act 2001) as
amended in areas such as program documents in waste management, extended producers’ and
importers’ responsibility, management of dedicated products and waste streams, transboundary
movement of waste, waste management information system, activities of the Recycling Fund,
Section Enviromental Legislation, Multilateral Ralations and Funding Opportunities
process of its dissolution and cessation. This change follows a significant change in the structure
of the new legislation as well as major content changes that are related to changes in the very
philosophy of the new Waste Act.
In terms of negative definition of regulation, the Waste Act does not apply in particular to:
1. manure, straw or other natural agricultural material or woodland material which does
not evidence hazardous properties and is used in agriculture, forestry or for obtaining
energy out of this materials through processes or ways that do not damage environment
nor endanger human health,
2. management of air pollutants,
3. management, capture, transport and permanent storage of carbon dioxide into the
geological environment in accordance with special regulations,
4. management of waste from precious metals, radioactive waste or discarded explosives
and remnants from explosives’ manufacture,
5. soil, including non-excavated contaminated soil and buildings permanently connected
with ground,
6. uncontaminated soil and other naturally occurring material excavated in the course of
construction activities, if it is certain that the material will be used for the purposes of
construction in its natural state on the site from which it was excavated.
The term waste is in the Act defined as a movable object or substance whose possessor discards
it, or intends to discard it, or is in accordance with this Act or special regulations required to
discard it. In comparison to the definition provided by the Waste Act 2001 this definition is
broader in the sense that also a substance could be termed as waste. This was done in order to
harmonize Slovak legal order with the Directive 2008/98/EC of the European Parliament and
of the Council of November 19, 2008 on waste and repealing certain Directives. Waste is not
a substance or a movable object which is a byproduct, specific waste which has reached end-
of-waste state, waste which has undergone a process of preparation for re-use and meets the
requirements set for a product placed on the market as stipulated in special regulations, or waste
handed over for use in households.
Waste stream is a general term used in waste management programs as well as in the framework
directive. This is a group of waste types with similar characteristics allowing their further
common management. It follows introduction of an institute of extended producers’
responsibility within which there is a new term “dedicated waste stream: being defined.
Byproduct is a substance or a movable object that that meets the conditions specified by the
legislature. First and foremost it is a result of the manufacturing process whose primary goal is
not production of this substance or thing; its further use is arranged; it could be used directly
without further manufacturing as a common industrial practice; it is formed as an integral part
of the production process. Further use of such substance is in accordance with this act and
special regulations that stipulate requirements for the product, protection of environment and
human health from the viewpoint of its specific use, and at the same time it will not lead to
overall negative impacts on environment or human health. Finally, it must comply with specific
criteria, if they were set for such substance or thing by specific regulations, and obtain
appropriate approval.
End-of-waste state is a phase reached by some specific waste if it passes some type of waste
recovery operation including recycling and at the same time if it is waste for which there were
stipulated specific requirements by specific regulations or bylaws.
Section Enviromental Legislation, Multilateral Ralations and Funding Opportunities
It is necessary to particularly note the issue of biodegradable waste addressed by the Waste Act.
Biodegradable waste is waste that is capable of being decomposed via anaerobic or aerobic
processes, such as food waste, paper and cardboard waste, waste from gardens and parks.
Biological waste is biologically degradable waste from gardens and parks, food waste and
kitchen waste from households, restaurants, catering and retail businesses and comparable
waste from food industry. Biodegradable municipal waste consists of all kinds of biodegradable
waste that can be categorized into group 20 Communal Waste. These terms represent the subject
matter of the Directive’s transposition. Unchanged remains the definition of hazardous waste
meaning waste that has at least one hazardous property listed in the Annex of the Commission
Regulation (EU) No. 1357/2014 of December 18, 2014 replacing Annex III to Directive
2008/98/EC of the European Parliament and of the Council on waste and repealing certain
Directives.[4]
In the context of management and other handling of waste Slovak legislator has chosen the
easiest way and has transposed the EU Directive into the legal order of the Slovak Republic.
This EU Directive defines waste management as a set of activities directed at preventing and
reducing the production of waste and reducing their environmental hazards and at managing
waste. The only thing the legislator has added is a phrase “in accordance with this act” which
might be considered to be insufficient. Waste management is collection, transportation,
recovery and disposal of waste, including supervision of such operations and after-care for
disposal sites, while it also includes conduct of a dealer or a broker. The term waste
management is consistent with the existing definition and it continues to include the conduct of
a dealer or a broker.
Waste storage is a temporary deposit prior to any activity of waste recovery or disposal in a
facility where this waste should be recovered or disposed of. Unlike waste storage, waste
collection is just an activity consisting of a temporary deposit of waste by its possessor prior to
further management of it that is not considered to be a waste storage.
The legislator particularly defines terms such as waste acquisition or waste purchase. Waste
acquisition means accumulation of waste from other person including its preliminary sorting
and temporary deposit in order to later transport it to the waste treatment facility. Waste
purchase is a particular kind of waste acquisition in case the waste is acquired by a legal entity
or a natural person acting as a businessman for an agreed price or some other consideration. As
a positive example could be viewed the addition of the term “waste purchase” which was used
in the existing Waste Act 2001 but was never defined as a waste acquisition for any type of
consideration or service for the person from whom is the waste being taken. Waste purchase is
therefore a certain form of its acquisition, but the purchaser, not any other person, with this
form of acquisition provides consideration that could be in a form other than monetary. In
practice for example happens that for a certain amount of brought in waste paper the purchaser
provides a pack of toilet paper.
Waste separation means sorting waste by types, categories or other criteria, or dividing waste
components that could be classified as separate kinds of waste after the division. At the same
time the term separated acquisition would be viewed as acquisition of already sorted waste.
Both these term were incorporated into the Waste Act as a transposition of Art. 3 (11) of the
framework directive, while the term “waste separation” is not a newly introduced concept as it
was recognized by the repealed Waste Act 2001. As seen above, the Act also regulates the
criteria for separation in such a way that it is possible to divide according to the waste types (6-
digit number in compliance with the Waste Catalogue, e.g. 200101 for paper and cardboard,
Section Enviromental Legislation, Multilateral Ralations and Funding Opportunities
200139 for plastics), but also according to the waste categories (other waste or hazardous waste)
or even according to other criteria.
Waste treatment, which is a literal reproduction of the existing wording and is once again only
a transposition of the Directive on waste, is defined as an activity that results in a change in the
chemical, biological or physical properties of the waste in order to permit or facilitate the
transport, recovery, treatment or for reducing the bulk or its hazardous properties.
From the wording of Art. 3 (10) of the Waste Act it follows that preparation of waste for re-use
is characterized as an activity of recovery related to the control, cleaning or repairing, through
which a product or a part of a product that became waste are prepared to be once again used
without any other pre-processing. This concept builds on the concept of waste recovery, which
is an activity whose principal result is a beneficial use of waste in order to replace other
materials in production activities or in wider economy, or ensuring readiness of waste of fulfill
this function. The list of activities of waste recovery is shown in the Annex 1 of the Waste Act.
Recycling could be understood as any activity of waste recovery through which the waste is
once again reprocessed into products, material or substances for the original purpose or for
other purposes. It also encompasses reprocessing of organic material. Though it does not
encompass energetical recovery nor reprocessing into materials that are meant to be used as
fuels or for backfilling operations.
In the context of increasing number of illegal dumps the legislator was forced to define in the
new act especially concepts such as waste producer and persons managing the waste. These are
not entirely new concepts as they were taken from the existing Waste Act 2001. The waste
producer is
every waste producer whose activities generate waste, or
a person who performs processing, mixing or other activities with waste, if they result
in a change in the nature or composition of the waste.
Possessor of waste is either the waste producer or the person who has the waste in possession.
The term possession must however be understood as a civil law institute that originated in
ancient Roman law and that is in its nature still relevant and current today.[5] Jurisprudence
understands possession as an independent legal relationship separate from the ownership which
may result in possessor being a different person than owner. From this perspective, possession
is a separate and independent institute of civil law. [6]
Legislator paid also attention to other definitions such as dealer or broker.
Dealer is an entrepreneur who while purchasing and consequently selling of waste acts in his
own name and on his own responsibility in order to gain profit, including an entrepreneur who
does not have the waste in possession physically. Broker is also defined as an entrepreneur who
however organizes waste recovery or waste disposal in the name of other people, including a
broker who does not have the waste in possession physically. From the content of both
definitions it follows that also such persons who do not have the waste in possession physically
could be subsumed under these definitions. The probable aim of these definitions was to
register and monitor activities of such subjects as well, since practice has shown many negative
phenomena. It happens that while the waste gets from the waste producer or its possessor to the
facility for its recovery or disposal it could pass between several subjects that does not have to
come into physical contact with it. It could not be ruled out that there will be illegal waste
management happening. Some parts of waste possessor apply to the dealer and the broker as
well, even in case they are not in possession of waste physically. [7]
Section Enviromental Legislation, Multilateral Ralations and Funding Opportunities
WASTE MANAGEMENT FACILITIES
Waste acquisition facility is an area bounded a fence or an area located in a building or
otherwise adequately secured against theft of waste and against entrance of strange persons
where the waste acquisition is being carried out. The waste recovery facility is a facility
designed to perform at least one activity listed in the Annex 1 of the Waste Act, which consists
of a technological unit with a set of machines and plants operated in accordance with their
documentation, while activities carried out by them are related and technologically continuous.
If such facility due to its design is fixed to the building, the space in which the facility is located
is considered not to be a waste recovery facility.
Legislator has characterized a waste disposal facility differently. It is a facility designed to
perform at least one activity listed in the Annex 2 of the Waste Act, which consists of a
technological unit with a set of machines and plants operated in accordance with their
documentation, while activities carried out by them are related and technologically continuous.
If such facility due to its design is fixed to the building, even the space in which the facility is
located is considered to be a waste disposal facility.
Particularly with reference to the technical progress it was also necessary to define such an
achievement of science and technology, such as a mobile facility. It is a waste recovery facility
or a waste disposal facility, if it is operated in one place for no longer than six consecutive
months that
a) is structurally and technically adapted for frequent transfers from place to place,
b) in view of its specific construction is not to be and is not fixed to the ground or a
building,
c) is designed for waste recovery or waste disposal especially at the place where the waste
was produced and
d) does not require a building permit nor notification in accordance with the Building Act.
Here it should be noted that the legislator has without any changes only taken definitions of
waste recovery facility, waste disposal facility and mobile facility from the repealed Waste Act
2001. [8]
Landfill is the greatest risk for the protection of environment and therefore it was vitally
important to clearly define criteria for places suitable to serve as a landfill. It is a place with
waste disposal facilities, where waste is permanently deposited onto land or into the ground.
Internal dumps, on which the waste producer performs disposal of his own waste in the place
of production, as well as places which are permanently, meaning longer than one year, used as
a waste deposit, are considered to be landfills.
Landfill is not a facility or a place with a facility where there is waste being deposited for their
preparation prior to their further transport to a place where they will be modified, recovered or
disposed of, if the time of their deposit prior to their recovery or treatment is usually not longer
than three years or if the time of their deposit prior to their disposal does not exceed one year.
CONCLUSION
The new Waste Act includes three critical changes in comparison with the previous state of
waste management. The greatest change is the dissolution and cessation of the Recycling Fund
and the consequent cancelation of the obligation of producers and importers to pay the relevant
Section Enviromental Legislation, Multilateral Ralations and Funding Opportunities
fee. The whole system of safeguarding fulfillment of producers’ and importers’ obligations is
ensured through direct application of principle of extended producers’ and importers’
responsibilities, either individual as well as collective (producers’ responsibility organizations).
The second change directly affects creation and functioning of producers’ responsibility
organizations. An obligation to have these organizations authorized was introduced, with the
authorization being conducted by the Ministry of Environment of the Slovak Republic. The aim
is mainly to keep count of activities of these organizations. Ministry of Environment of the
Slovak Republic issues a similar kind of authorization to producers who are fulfilling their
obligations individually. The Act has also created conditions for the establishment of a
coordination center that will serve to support fulfillment of legal obligations of producers as
well as producers’ responsibility organizations.
The third change is a significant tightening of conditions and control over purchase of metal
waste from natural persons, non-entrepreneurs, and prohibition to deposit onto landfills
separated components of communal waste which are being subsumed under the extended
producers’ and importers’ responsibility as well as separated biodegradable waste. The Waste
Act has also ensured the transposition of Directive 2012/19/EU of the European Parliament and
of the Council of July 4, 2012 on waste electrical and electronic equipment (WEEE) as well as
of Directive 2013/56/EU of the European Parliament and of the Council of November 20, 2013
amending Directive 2006/66/EC of the European Parliament and of the Council on batteries
and accumulators and waste batteries and accumulators as regards the placing on the market of
portable batteries and accumulators containing cadmium intended for use in cordless power
tools, and of button cells with low mercury content, and repealing Commission Decision
2009/603/EC.
REFERENCES
[1] Milošovičová Petra., Nováčková Daniela., Uplatňovanie práva EÚ na Slovensku, Czech republic
republic, 2014, pp 88-99
[2] Nováčková Daniela., Milošovičová Petra., Medzinárodné ekonomické právo, Slovak
republic, 2011, pp 15-16.
[3] Košičiarová Soňa et alt., Právo životného prostredia, Slovak republic, 2002, pp 178-180.
[4] Stoličná Zuzana., Vývoj hospodárskej politiky SR od transformačného obdobia roku 1989
až po súčasnosť, Slovak republic, 2012, pp 11.
[5] Capandová P., Specificatio v rímskom práve, Res - věci v římském právu, Czech Republic, 2008,
pp 113-119.
[6] Capandová P., Vývoj občianskeho práva po druhej svetovej vojne do prijatia jednotného Občianskeho
zákonníka z roku 1950, Acta Facultatis Iuridicae Universitatis Comenianae, Slovak Republic, vol.
28, pp 53-79, 2010.
[7] Strážovská Ľubomíra., Malé a stredné podnikanie a rodinné podnikanie, Slovak republic,
2007, pp 55-60
[8] Petrinec Filip., Greguš Michal., Managing the "intengibles": business and entrepreneurship
perspectives in a global context, Italia, 2014, pp 1130-1140.
