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Federal Office for the Environment and A. v. B and Department of the Territories of the Canton of Geneva

Title:
Federal Office for the Environment and A. v. B and Department of the Territories of the Canton of Geneva
Party:
Switzerland
Region:
Europe
Type of document:
National - higher court
Date of text:
November 04, 2009
Data source:
InforMEA
Court name:
Tribunal Fédéral
Seat of court:
Lausanne
Reference number:
136 II 142
ECOLEX subject(s):
Waste & hazardous substances
Link to full text:
http://www.bger.ch/fr/index/juridiction/jurisdiction-inherit-template/jurisdiction-recht/jurisdiction-recht-leitentscheide1954.htm
Abstract:

This case concerned the notion of waste and according to the law of buildings that contain asbestos. In 2002, Company B bought a building to the company A. Company B found asbestos in the building. The company B. requested the Department of the Territory of the Canton of Geneva to distribute the costs of cleanup costs between the both companies according to the principle of the cleanup of polluted site. Department decided that these provisions cannot be applied in this situation. Company B appealed against the decision before the Cantonal Commission on constructions. It rejected the appeal. The Court of first instance judged that the asbestos in the building should be qualified as waste according and that this building must be considered as a polluted site. Company B sought the annulment of this decision before the Federal Court. The Federal Court ruled that art.32 c and 32 d of the Law for the Protection of Environment (LPE) cannot apply in this situation.

Company B claimed that asbestos cannot be considered as a waste (article 7 paragraph 6 LPE) and that the building cannot be qualified as a polluted site (article 2 para. 1 Osites). It affirmed that consequently the provisions on cleanup of polluted site and the repartition of cleanup costs (art.32c and 32d LPE) cannot apply in this case.

The Court reminded that a waste can be define as any moveable material disposed of by its holder or the disposal of which is required in the public interest. The question to know is asbestos can be qualified as waste is difficult, especially when it is included in fiber cement sheets.

Polluted sites are characterized as sites that include permanent storage sites, exploiting area or accident sites. The Federal Court stated that the presence of asbestos in a building is not covered by this definition.

In addition, the issue of asbestos was not addressed in the preparatory work of article 32 LPE. It is not possible to deduce that the legislator wanted to introduce an obligation to clean up buildings that contain asbestos.

Consequently article 32 c cannot apply in this situation.

Files:
136 II 142.pdf