The Minister for the Environment acted outside his powers in providing for an indictable offence under the Waste Management Acts arising from an EU Directive requiring customers be advised about the environmental treatment of waste electrical and electronic equipment, the High Court has ruled.
Because the offence at issue - breach of obligations to clearly advise customers of the importance of recycling electrical and electronic waste - was inserted into the Waste Management Acts (WMA) 1996-2005 via EU Regulations and not by an Act of the Oireachtas, the Minister acted outside his powers, Mr Justice Daniel O’Keefe found.
He noted the Supreme Court previously ruled that the European Communities Act 1972, the primary provision for the implementing of Community law into Ireland, specifically states regulations made by a Minister enabling the implementation of Community law “shall not create an indictable offence”.
Under that Act, the legislature was retaining to itself the power to create indictable offences, the Supreme Court noted.
In this case, Mr Justice O’Keeffe said, the disputed offence, set out in Section 53L of the WMA, carries a maxium fine of €10 million or a maximum ten year jail term on conviction and was created under regulations enacted by the Minister in 2005 to meet the requirements of a 2003 European Council Directive on waste electrical and electronic equipment (the WEEE Directive).
The 2005 WEEE Regulations require the distributors of electronic and electrical equipment to clearly inform consumers - within one metre of the point of sale and in websites, brochures and direct mail comunications - of the environmental benefits of recycling such equipment, the return and collection systems available and the potential effect on the environment and human health of hazardous substances in such equipment.
The challenge to the legality of offences created under those regulations was brought by Spectra Photo (Retail Company) and Hooft Enterprises after they were charged before Dublin District Court with committing two offences contrary to Section 53L at premises at Grafton Street, Dublin, on October 6th, 2005.
They were charged with breaches of the 2005 Regulations through their alleged failure to fix a conspicuous notice within one metre of the point of sale of electrical and electronic equipment and by allegedly maintaining a website and issuing a catalogue and brochure which did not state “Producer Recycling Fund (amount of environmental management cost)” .
They secured leave in 2006 from the High Court to bring a judicial review challenge aimed at halting their prosecution on grounds the 2005 regulations were in excess of the powers of the Minister.
Mr Justice O’Keeffe today upheld their claims. He found the offence as contained in Section 53L(5) of the WMA was inserted by Regulation 5 of the WEEE Regulations and not by the Oireachtas.
The penalty was provided for by Section 10 of the WMA but Section 62 of the WMA does not contain any plain and clear language conferring a power on the Minister to create an indictable offence, he found. In those circumstances, the offences were made outside the principes and policies set down by the Oireachtas in the European Communities Act 1972 and were outside the powers of the Minister.
