Issuance of guarantees for the owners of waste deposits Execution of the guarantee – is the legislative excess justified?

In the Official Gazette no. 673 of July 21, 2023, the Order of the Minister of the Environment no. 1935, which approves the Methodology for the establishment, management and use of the environmental financial guarantee provided for in art. 13 and to art. 40 letter a) of OG 2/2021, regarding waste storage (hereinafter referred to as the “Methodology” for short).
According to art. 2 of the Methodology, the environmental financial guarantee is the proof that the warehouse operator must present, certifying that the necessary financial resources are established to remedy construction deficiencies or that appeared during operation, or for compensation in the event of accidents caused by the warehouse’s activity .
The financial guarantee is worth 10% of the value of the works established by the technical project of the warehouse, for newly established warehouses, respectively 10% of the value of the works established by the technical project for the designed capacity, for existing warehouses. This value needs to be updated annually, until October 31 of each year, depending on the update of the value of the works established by the technical project of the warehouse (which will be done annually, until June 30, with the inflation coefficient, communicated by INS).
The guarantee can be constituted either in the form of a bank guarantee letter or other guarantee instrument, or by bank transfer to an account at the disposal of the Environment Fund Administration and is maintained throughout the period of operation, closure and post-closure monitoring of the deposit (even if for the stage of closure and post-closure monitoring of the warehouse, the owner constitutes a separate fund at the disposal of the Environment Administration, regulated by article 14 of OG 2/2021, regarding waste storage). What particularly attracted our attention is the context in which the Environment Fund Administration (hereinafter referred to as “AFM”) understands to execute the environmental financial guarantee. We also find similar situations in the field of waste management, recently regulated by GEO 125/2022, for the amendment and completion of GEO 196/2005, regarding the Environmental Fund.

According to art. 7 of the Methodology, the guarantee is executed in the following situations: a) if the National Environmental Guard finds non-conformities regarding the requirements for the protection of the environment and the health of the population and/or those from the environmental authorization/integrated environmental authorization and they are not remedied by the operator/owner or administrator of the warehouse or b) in case the owners or administrators of the warehouses enter the bankruptcy or judicial reorganization procedure. Therefore, in the situation where the owner or administrator of the warehouse enters bankruptcy or judicial reorganization proceedings, AFM has the right to capitalize on the financial guarantee, even if such insolvency situations do not necessarily involve a deficiency in the operation of the warehouse that would cause environmental damage, rather, they look at an economic imbalance between the financial availability available to the deposit and the accumulated claims.
Moreover, it would not be justified to capitalize on the guarantee in the case of judicial reorganization, which does not involve the termination of the activity nor the closing of the warehouse, but, on the contrary, the resuscitation of the activity in the optimal financial parameters of operation. In such a situation, the execution of the guarantee would even more represent an administrative abuse, without basis and interest. In both situations, we do not see how the existence of a damage could be justified and the causal link between the act (entering insolvency proceedings, which does not necessarily involve a deficiency in the functioning of the deposit) and damage (which exists and justifies the execution of the guarantee ).

Instead, the authority starts from the presumption of guilt of the economic agent, who, being subject to such a procedure, would violate per se and the environmental obligations that would accrue to him during the operation of the warehouse, regardless of the existence or not of an incriminated act by OG 2/2021, regarding the storage of waste that would cause damage. Moreover, we remind you that the guarantee established in favor of the AFM represents income to the budget of the Environment Fund, which is subject to the provisions of art. 12 para. 1 of GEO 196/2005, regarding the Environment Fund, in the sense that it follows the legal regime of taxes and fees, contributions and other amounts due to the general consolidated budget, regulated by the Code of Fiscal Procedure. According to paragraph 2 of the same article, including the enforcement procedure is carried out by the Environment Fund Administration in accordance with the provisions of the Fiscal Procedure Code. Therefore, the execution of the guarantee will fall under the procedure for the execution of a tax claim. However, according to the Fiscal Code in conjunction with Law 85/2014, on insolvency prevention and insolvency procedures, any enforced execution procedure started before the opening date of the insolvency procedure ends on the date of the decision of the court opening the procedure, and the fiscal body that registers an outstanding claim, will have the opportunity to register at the credit table, benefiting from the preferential rank granted by law.
Therefore, the execution of the guarantee in the situation provided for in art. 7 letter b) of the Methodology, we do not believe that it will be possible to achieve it as easily as the AFM would like, because, on the one hand, it would be achieved by circumventing some legislative provisions higher than the Order of the Minister, and on the other otherwise, it would even contravene the purpose of this Order, defined in art. 2 of Methodology. Even more interesting is article 8 of the Methodology, which stipulates that the amounts collected by the Environmental Fund Administration as a result of the execution of environmental financial guarantees remain at the disposal of the AFM, without mentioning any specific destination of these revenues, which should be used for the purpose of the Order, namely in order to remedy the malfunctions found at the respective warehouse, according to OG 2/2021. We observe that the legislative changes in the field of waste tend to increase the pecuniary pressure on all economic operators active in these markets, by setting up various guarantees in favor of AFM throughout the duration of their activity, or by sanctioning them as a result of the intervention of some legal situations , which have no implicit impact on the compliance of economic operators with environmental obligations. We will probably follow in the practice of the courts how this regulatory excess will be cut off from the environmental authority, which lately has been more concerned with expanding its sources of annual income than with monitoring and correcting the conduct of economic operators, in the context of an unstable regulatory framework , constantly subject to countless changes and adaptations.


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Dna. avocat Denisa Benga detine o expertiza vasta de mai bine de 12 ani in
domeniul specializat al gestionarii deșeurilor, un domeniu de nisa, care a
evoluat semnificativ in ultimii ani, odata cu extinderea si severizarea cadrului
normativ la nivel European, transpus in mare parte si la nivel national. Complexitatea domeniului protectiei mediului, cu precadere al celui privind gestionarea deseurilor (ambalaje, echipamante electrice si electronice, baterii, textile, depozite de deseuri, procese de colectare, reciclare si valorificare, implementareproceduri la nivel de autoritati publice locale) si permanenta inovare a companiilor pentru identificarea celor mai eficiente solutii care sa sprijine implementarea etapizata si ambitioasa aprincipiilor economiei circulare la nivel european determina implicit pentru acestea o permanenta expunere la riscuri sanctionatorii, in cadrul demersurilor strategice proprii de conformare cu obligatiilede mediu, din care decurg atat implicatii de natura contenciosului administrativ, cat si de natura fiscala- parte din obligatiile de mediu generand sanctiuni semnificative, supuse unui cadru de reglementare care urmeaza regimul juridic reglementat de Codul de procedura fiscala.
Dna Denisa Benga este recunoscuta in domeniul consultantei de mediu nu numai pentru solutiile „out of the box” oferite clientilor in situatii complexe, dar si pentru solutiile favorabile obtinute in litigiile administrative si fiscale cu autoritatile publice de mediu si fiscale, care au condus la modificarea practicii si legislatiei de mediu si fiscale si pentru activitatea sustinuta pe plan legislativ, privind demersuri de „lege ferenda” soldate cu succes, in sensul armonizarii cadrului legislativ national cu cel european in domeniul gestionarii deseurilor.

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