Environmental Taxation: the Constitutional Court Limits the Supervision over the Public Waste Collectors

With this ordinance, the Brussels Parliament has decided that the owners of non-domestic waste are required to pay contributions to Net Brussel.

The reason behind it is that the authorities noted that many companies did not fulfil their obligations regarding the collection of non-domestic waste. However, the intended regulation did mention that, among other things, owners of non-domestic waste are exempted in case they could demonstrate to Net Brussel that they relied on external waste handlers for the collection of non-domestic waste.

The problem, in legal terms, is not the principle that owners of non-domestic waste have to contribute mandatorily. However, diverse private waste collectors are opposed to the supervisory power of Net Brussel. In fact, Net Brussel offers the service of collecting and handling non-domestic waste itself. In this way, Net Brussel is competing with private waste collectors.

The Constitutional Court noticed that, from this perspective, Net Brussel and private waste collectors find themselves in a similar situation. The Constitutional Court appointed that, due to the intended supervisory power, Net Brussel would gain insight in the commercial data of its private competitors without having to share its own data. The Constitutional Court therefore decided that the private waste collectors are discriminated by the regulation in question. This discrimination would improperly strengthen the competitiveness of Net Brussel on the non-domestic waste collection market.

The Council of State had warned against this in its preliminary recommendation. By issuing its judgement, the Constitutional Court criticises the Brussels’ ordinance maker.