Environmental Law – Legal Regime governing End-of-Life Vehicles (RJVFV)
Right to the environment;
Right to private initiative;
Depollution, re-use and recycling operations;
Spare parts taken from end-of-life vehicles.
RULING No. 75/13
31 of January of 2013
Norms included in the Legal Regime governing End-of-Life Vehicles (RJVFV) set deadlines by which such vehicles must be the object of treatment in the form of depollution, re-use and recycling operations. These norms do not undermine the principle of re-use, and the allegation that they are in breach of the right to the environment is unfounded. In matters concerning social, economic and cultural rights the legislator enjoys a broad margin within which it is entitled to shape its legislative decisions. In this respect the Constitutional Court’s role is only to verify whether those decisions configure a manifest violation of the principle of proportionality. In the present case the Court held that the legislative measure is appropriate, inasmuch as the option to set short time limits was designed to ensure the fulfilment of constitutionally protected values (precisely the right to the environment, together with the right to health) and reduce the risks that the environment will be contaminated by the damaging waste contained in vehicles, and because the concrete operations that treatment enterprises must undertake within the eight-day time limit do not presuppose that all the parts of the vehicles be treated, but only the most damaging among them.
There is no violation of the fundamental right to private initiative here, because the latter’s normative scope subjects it to the limitations imposed by the other fundamental rights. This particular right does not benefit from the specific regime applicable to constitutional rights, freedoms and guarantees; grounds for the limitations that may be placed on it by the norm in question are to be found in European Union Law, the Constitution and infra-constitutional law; and, for both environmental and public-health reasons, the general interest also requires that provision be made for the collection and treatment of end-of-life vehicles.
There is no disproportionality in the restrictions imposed by the norm. The deadlines are appropriate to the need to ensure a balance between guaranteeing that environmentally damaging waste is always definitively treated on the one hand, and the appellant’s right to use the parts that are removed with a view to its legitimate pursuit of the goal of making a profit on the other.
Nor did the Court uphold the appellant’s allegation that the norm was organically unconstitutional because it breaches the Assembly of the Republic’s partially exclusive legislative competence, under the terms of which the government can only legislate on matters regarding constitutional rights, freedoms and guarantees when it has prior authorisation from the Assembly to do so. The Constitutional Court agreed with the appellant that the essential core of the right to private initiative – which itself presupposes the existence of a right not to be absolutely, unreasonably and unjustifiably prevented from engaging in a given economic activity – shares some of the characteristics of the constitutional rights, freedoms and guarantees, and to that extent can be considered a right that is analogous to the latter and should enjoy the protective constitutional regime applicable to them. However, not all the normative content of the right to free private initiative can benefit from that specific constitutional regime. In the case before the Court, the essential core of the right to free private initiative was not touched on by the application of the RJVFV norms. The imposition of legal time limits by which end-of-life vehicles must be treated can only be said to have conditioned some aspects of the way in which this activity is organised and exercised, and in the process to have reduced the profits to be gained therefrom. This conditioning does not interfere with the essential core of the fundamental right in question, which could be said to be equivalent to the negative dimension that typifies a right to a freedom.
At stake here were two norms in an Executive Law that transposed a Directive of the European Parliament and the Council on End-of-Life Vehicles into Portuguese law. The appellant alleged that these norms were both organically and materially unconstitutional.
With regard to the alleged material unconstitutionality, the appellant argued that setting short deadlines of eight days for performing depollution operations and forty-five days for re-use and recycling operations constituted a disproportionate restriction on the right to private initiative.
The Constitution subjects the freedom to engage in private initiatives to the requirement to respect other constitutional values with which that freedom may conflict. European Union Law, the Constitution, infra-constitutional law and the general interest all mean that it is necessary to provide for the collection and treatment of end-of-life vehicles, whose component parts may prove damaging to both the environment and public health.
It is consensual that in matters concerning social, economic and cultural rights the legislator enjoys a broad margin in which there is room for it to take legislative decisions. The Constitutional Court’s only role is to check whether such decisions configure a manifest violation of the principle of proportionality. Specifically in the present case, the Court found that the legislative measure appeared appropriate. The concrete operations that treatment enterprises must undertake within the eight-day time limit do not presuppose that all the parts of the vehicles be treated, but only the most damaging among them.
The Court was also of the view that the forty-five-day deadline for removing parts for re-use and recycling was not too short, but instead represented enough time to ensure a balance between guaranteeing that environmentally damaging waste is not left without a definitive treatment on the one hand, and the appellant’s right to use the parts that are removed with a view to the goal of making a profit which it legitimately pursues on the other. The time limits do not impose excessive speed on enterprises that collect and treat vehicles of this kind. The Court said that one must bear in mind that the legal regime was designed to transpose a European Directive which, although it did not set time limits, did say that end-of-life vehicles must be subjected to depollution treatment as quickly as possible. It is thus impossible to deny that the ordinary legislator was internationally bound to adopt legal norms that require maximum celerity in the treatment of such waste.
In addition, the Constitution charges the state with duties to protect the environment and public health. These duties are reflected in both regimes governing the licensing of given economic activities, and regimes under which those activities are administratively controlled. From this point of view the right to private initiative itself presupposes that due provision be made for the state and other public legal persons to carry out those missions.
The Court recalled that the characterisation of organic unconstitutionality shows that the fundamental right in question does not enjoy the benefit of the specific regime applicable to constitutional rights, freedoms and guarantees.
Rulings nos. 76/85 (06-05-1985); 328/94 (13-04-1994); 329/99 (02-06-1999); 187/01 (02-05-2001); 289/04 (27-04-2004); 304/2010 (14-07-2010); and 557/11 (16-11-2011).