The Constitutional Court of the Republic of Belarus comprising the Presiding Officer – Chairman P.P. Miklashevich, Deputy Chairwoman N.A. Karpovich, judges T.S. Boiko, T.V. Voronovich, S.Y. Danilyuk, L.G. Kozyreva, V.N. Ryabtsev, O.G. Sergeeva, A.G. Tikovenko, S.P. Chigrinov

on the basis of Article 116.1 of the Constitution of the Republic of Belarus, Article 22.3.2 of the Code of the Republic of Belarus on Judicial System and Status of Judges, Article 98 and Article 101.1 of the Law of the Republic of Belarus “On the Constitutional Proceedings”

in open court session in the exercise of obligatory preliminary review considered the constitutionality of the Law of the Republic of Belarus “On Amending the Law of the Republic of Belarus “On Waste Management”.

Having heard the reporting judge A.G. Tikovenko, having analysed the provisions of the Constitution of the Republic of Belarus (hereinafter, the Constitution), the Law of the Republic of Belarus “On Amending the Law of the Republic of Belarus “On Waste Management” and other legislative acts of the Republic of Belarus, the Constitutional Court of the Republic of Belarus found the following.

The Law of the Republic of Belarus “On Amending the Law of the Republic of Belarus “On Waste Management” (hereinafter, the Law) was adopted by the House of Representatives of the National Assembly of the Republic of Belarus on 2 April 2019, approved by the Council of the Republic of the National Assembly of the Republic of Belarus on 19 April 2019 and submitted for signing to the President of the Republic of Belarus.

The Law of the Republic of Belarus “On Waste Management” is hereby amended and completed with the view to improve the legal framework for waste management, as well as to harmonise the provisions of the said Law with the rules of other legislative acts of the Republic of Belarus and international legal acts constituting the law of the Eurasian Economic Union.

1. The Constitutional Court, based on the provisions of the Constitution and international legal acts, guided by Article 54.1 of the Law “On the Constitutional Proceedings”, reviews the constitutionality of the Law, taking into account the required supremacy and direct effect of the Constitution. In doing so the Constitutional Court assesses the compliance of the Law with the constitutional requirements in the light of the following:

the individual, his rights, freedoms and guarantees to secure them are recognised to be the supreme value and goal of the society and the State; safeguarding the rights and freedoms of citizens of the Republic of Belarus is the supreme goal of the State (Article 2.1; Article 21.1 of the Constitution);

Article 46 of the Constitution establishes everyone’s right to a conducive environment and to a compensation for the loss or damage caused by violation of this right and entrusts the State to supervise the rational utilisation of natural resources to protect and improve living conditions, and to preserve and restore the environment;

the citizens of the Republic of Belarus are guaranteed the right to health care which shall also be secured by measures to improve the environment (Article 45.1 and Article 45.3 of the Constitution);

the provisions of the Constitution stipulate that the exercise of the right of property shall not be contrary to social benefit and security, or be harmful to the environment or historical and cultural treasures, or infringe upon the rights and legally protected interests of others.  (Article 44.6); protection of the environment shall be the duty of everyone (Article 55); the State shall grant equal rights to all to conduct economic and other activities, except for those prohibited by law, and guarantee equal protection and equal conditions for development of all forms of ownership; the State shall regulate economic activities in the interests of the individual and society (Article 13.2 and Article 13.5);

the State shall take all measures at its disposal to establish the domestic and international order necessary for the full exercise of the rights and freedoms of the citizens of the Republic of Belarus that are specified by the Constitution; state bodies, officials and other persons who have been entrusted to exercise state functions shall, within their competence, take necessary measures to implement and protect personal rights and freedoms (Article 59.1 and Article 59.2 of the Constitution).

2. The provisions of Article 1 of the Law determine the specifics of alienation of waste to another legal entity or individual entrepreneur (paragraph 4), the development and approval of state programs in the area of waste management (paragraph 8.3, paragraph 16, paragraph 32.2). Article 1 of the Law also specifies the powers of the President of the Republic of Belarus, the Council of Ministers of the Republic of Belarus, the Ministry of Natural Resources and Environmental Protection, the Ministry of Health, the Ministry of Emergency Situations, the Ministry of Antimonopoly Regulation and Trade, local councils of deputies, local executive and administrative bodies in the area of waste management (paragraphs 7–9, 11–14), the Ministry of Housing and Communal Services in the area of household waste management (paragraph 10). It also envisages legal duties in waste management for individual entrepreneurs and individuals (paragraph 19); establishes requirements for waste management (paragraphs 20–24), sets economic incentive measures in the area of waste management (paragraph 15).

The new wording of Article 3.3 of the Law “On Waste Management” allows for alienation of all types of waste to another legal entity or individual entrepreneur, who handles waste, only for the purpose of its subsequent preparation, landfilling, desactivation and (or) use (paragraph 4.4 of Article 1 of the Law). In accordance with Article 17.2 of the Law “On Waste Management” in a new wording legal entities handling waste, with the exception of micro-organisations, shall be required to: appoint officials (authorised persons) responsible for waste management; to elaborate and approve instructions for management of production waste, as well as ensure their observation; keep a record of waste and make its inventory under the procedure prescribed by the Law and other legislative acts on waste management (Article 1.19 of the Law).

In order to ensure economic incentive for legal entities and individual entrepreneurs engaged in waste management, it is envisaged to provide them with state financial support in the forms and (or) under the procedure established by legislative acts (paragraph 15.5 of Article 1 of the Law).

The above rules of the Law are aimed at stimulating the maximum use of waste, involving it in civil circulation as secondary raw materials, and ensuring environmental safety as a component of the national security of the Republic of Belarus.

When assessing the constitutionality of these provisions of the Law the Constitutional Court draws attention to the following. Waste management procedures, improved by the Law, envisage the release of individual entrepreneurs and microorganisations from the duty to appoint officials (authorised persons) responsible for waste management, to elaborate and approve instructions for the management of production waste, keep a record of waste and make an inventory under the established procedure. At the same time the Law imposes other duties in waste management upon (Article 1.19 of the Law). Thereby waste management is designed to ensure environmental safety and human health as well as economic efficiency of waste management. In particular, the scope of the said duties (stipulated by Article 17.1 of the Law “On Waste Management”) is supplemented by a provision requiring to abide by the provisions and rules established, including those stipulated in binding technical normative legal acts (subparagraph 1.7), that corresponds to one of the basic principles in waste management – the use of the latest scientific and technological achievements.

The Constitutional Court considers that when establishing these rules, the legislator acted within its discretionary powers, providing for appropriate requirements and conditions for waste management, aimed at guaranteeing constitutional rights, balancing the interests of economic entities and those of the man and society in the implementation of state environmental policy.

3. The provisions of Article 1 of the Law specify and extend, in particular, the competence of state bodies. Thus, in order to regulate relations in the area of waste management, Article 1 of the Law empowers the Ministry of Health to establish, in coordination with the Ministry of Natural Resources and Environmental Protection, the procedure for deactivation of wastes generated by dispersion of medicines, destruction of medical devices and equipment (paragraphs 11 and 31). The Ministry of Housing and Communal Services is authorised to approve together with the Ministry of Natural Resources and Environmental Protection the Technical Code of household waste treatment (paragraph 10). The Ministry of Natural Resources and Environmental Protection is empowered to approve the Nationwide Classification of the Republic of Belarus “Classification of Waste Generated in the Republic of Belarus” (paragraph 9). Article 111 of the Law “On Waste Management”, set out in a new wording, defines the competence of the Ministry of Antimonopoly Regulation and Trade, according to which it is entitled to issue, in coordination with the Ministry of Natural Resources and Environmental Protection, the Ministry of Industry (regarding scrap and waste of ferrous and non-ferrous metals), licenses and their duplicates for the export and (or) import of goods as well as to suspend, renew or terminate their validity (Article 1.1 of the Law).

The Constitutional Court considers that the competence of state bodies, amended by the legislator, is based on Article 7.2 of the Constitution, according to which the State and all the bodies and officials thereof shall operate within the confines of the Constitution and acts of legislation adopted in accordance therewith, and is consistent with Article 107.10 defining the powers of the Council of Ministers. These amendments are aimed at improving the mechanism for the implementation of the State’s obligation to supervise the rational utilisation of natural resources to protect and improve living conditions, and to preserve and restore the environment as enshrined in Article 46.2 of the Constitution.

4. The Law (Article 1.5) sets forth in a new wording one of the basic principles enshrined in Article 4 of the Law “On Waste Management” – the principle of the best available techniques in waste management. This principle involves the use of the latest scientific and technological achievements, through which the prevention and reduction of waste generation and their environmental impact are ensured. The efficiency of the implementation of this principle, as follows from the provisions of Article 1 of the Law, is directly related to the strict compliance of legal entities, individual entrepreneurs and individuals with technical normative legal acts when using waste (paragraph 30), handling production waste (paragraph 20), managing waste in construction activities (paragraph 24), in the development of urban planning projects of general and detailed planning (paragraph 25), in waste deactivation (paragraph 31), placement, design and construction of facilities for storage, landfilling and deactivation of waste (paragraph 32), operation of facilities for storage, landfilling and deactivation of waste (paragraph 33).

In the opinion of the Constitutional Court, the institutional and comprehensive ensuring of the compliance with the best available techniques principle in waste management is aimed at guaranteeing everyone’s right to a conducive environment (Article 46 of the Constitution).

The Constitutional Court draws attention of the legislator to further development and enforcement of this principle in environmental legislation required in order to use the best available techniques as the most effective methods to prevent and reduce waste generation and its impact on the environment as a whole, taking into account economic and technical considerations and facilities within the territory of the Republic Belarus, as well as with a view to create conditions for the implementation of the “zero waste” provisions.

5. Article 34.1 of the Constitution guarantees the citizens’ right to receive, store and disseminate complete, reliable and timely information on the state of the environment. The Law “On Waste Management” provides legal entities and individuals, including individual entrepreneurs, with access to information in the area of waste management which is enshrined as one of the basic principles in the area (Article 4). This principle is implemented in the relevant duty of legal entities and individual entrepreneurs. According to the new wording of subparagraph 1.4 of Article 17.1 of the said Law, legal entities and individual entrepreneurs shall provide, under the established procedure, reliable information on waste management at the request of designated republican authorities in the area of waste management or of their territorial bodies, local executive and administrative bodies, as well as at the request of individuals and legal entities.

The new wording of Article 17 of the Law “On Waste Management” stipulates that individuals who are not individual entrepreneurs are required to ensure the collection of waste and its separation by type provided that legal entities, servicing dwellings, have created necessary conditions in accordance with this Law and other legislative acts on waste management, including those required by the technical normative legal acts (paragraph 3); legal entities servicing dwellings shall create conditions for producers of consumer waste to fulfill the requirements established by this Law and other legislative acts on waste management, including those required by technical normative legal acts (paragraph 6).

The constitutional right of everyone to a conducive environment (Article 46.1 of the Constitution) implies a corresponding obligation to protect it, arising from Article 55 of the Constitution, which considers the protection of the environment as the constitutional duty of everyone.

According to the Constitutional Court, local government and self-government bodies should not only properly inform the population about the need for rational management of consumer waste, about the importance of waste collection and its source separation, but they also should engage the public to participate in the enforcement measures in order to meet the requirements in the area of household waste management on the basis of the development of territorial public self-government.

6. In order to prevent from unauthorised waste sites Articles 8, 19, 21 and 25 of the Law “On Waste Management” are amended with a view to improve management of household waste generated in consumer and horticultural cooperatives. It is established that waste shall be collected and disposed of in accordance with the schemes for household waste management, developed and approved by local executive and administrative bodies in coordination with the territory bodies of the Ministry of Natural Resources and Environmental Protection, authorised state bodies and institutions responsible for sanitation supervision (paragraphs 9.9, 21.2, 21.3, 23, 27.10 of Article 1 of the Law).

Such legal regulation of the procedure for household waste management is aimed at restoring the environment, guaranteeing the human rights stipulated by Article 45.1 and Article 46 of the Constitution, preserving aesthetic appeal of natural landscapes, their aesthetic and social and economic value, as well as at developing ecological culture of the population.

7. The Constitution establishes that the Republic of Belarus shall recognise the supremacy of the generally recognised principles of international law and shall ensure the compliance of laws therewith. Conclusion of treaties that are contrary to the Constitution shall not be permitted (Article 8.1 and Article 8.3).

Article 27.2 of the Law “On Waste Management” in a new wording prohibits import and / or export by individuals of hazardous waste as goods for personal use (Article 1.29 of the Law). This rule meets the requirement to prohibit for the individuals to import into the customs territory of the Eurasian Economic Union and (or) to export from the customs territory of the Eurasian Economic Union hazardous waste as goods for personal use, as specified in paragraph 3“a” of the Regulation on import into the customs territory of the Eurasian Economic Union and export from the customs territory of the Eurasian Economic Union of hazardous waste (Appendix 7 to the Decision of the Board of the Eurasian Economic Commission of April 21, 2015 no. 30 “On non-tariff regulation measures”).

The Constitutional Court considers that the above provision and other provisions of the Law (Article 1.8; Article 1.9) are consistent with the provisions of Article 8 of the Constitution and are aimed at observing international environmental standards in the area of transboundary movement of hazardous wastes and their environmental management within the Eurasian Economic Union, at respecting the rules of supranational law, further harmonisation of national environmental law with it. Thereby the exercise of the citizens’ constitutional rights and the development of the Eurasian integration are ensured (Articles 45.1 and Article 46.1 of the Constitution).

The Law provides for formal amendments of the concepts of “type of waste”, “secondary material resources”, “inventory of waste”, “household waste”, “waste desactivation”, “waste management”, “waste desactivation facilities”, “facilities for waste use”,  “waste destruction”, “waste storage”, “waste preparation ”(Article 1.2 of the Law). The analysis of the content of these provisions shows that they are focused on ensuring clarity and consistency of the rules, further improvement of legislation on waste management, that corresponds to the rule of law (Article 7.1 of the Constitution) and the principle of legal certainty based on it, implying interconnection of normative legal acts, their consistency with each other, clarity and accuracy of legal rules, excluding their different understanding and thereby ensuring the formation of a uniform law enforcement practice.

Thus, the amendments to the Law “On Waste Management” are aimed at improving the legislative regulation related to the development of entrepreneurial activity, ensuring the reduction of waste generation, creating conditions for their maximum use and preventing from harmful effects on the environment.

The Law has been adopted by the House of Representatives of the National Assembly of the Republic of Belarus and approved by the Council of the Republic of the National Assembly of the Republic of Belarus in accordance with Article 97.1.2 and Article 98.1.1 of the Constitution. When adopting the Law the chambers of the National Assembly of the Republic of Belarus acted within the competence under Articles 97–100 of the Constitution.

In view of the foregoing the Constitutional Court concludes that the Law is in conformity with the Constitution as regards the contents of its rules, form of the act, procedure of its adoption.

Guided by Article 116.1, Article 116.7 of the Constitution of the Republic of Belarus, Article 24.2 of the Code of the Republic of Belarus on Judicial System and Status of Judges, Articles 103–105 of the Law of the Republic of Belarus “On the Constitutional Proceedings” the Constitutional Court of the Republic of Belarus

RULED: 

1. To recognise the Law of the Republic of Belarus “On Amending the Law of the Republic of Belarus “On Waste Management” to be conforming to the Constitution of the Republic of Belarus.

2. The present Decision shall come into force from the date of adoption.

3. To publish the present Decision in accordance with legislative acts.

Presiding Officer –

Petr Miklashevich,

Chairman

Constitutional Court

Republic of Belarus