As previously highlighted in our newsletter over the summer, the Italian Waste Tracking System (“SISTRI”) shall continue to be suspended till 30 June 2013.
All those operating in the waste sector are aware that SISTRI should have entered into force in the first semester of 2010, however, after a series of deferrals, it has yet to be implemented.
Furthermore, when 30 June 2013 arrives, a new extension may be granted again, or perhaps the system shall be abandoned all together.
Nevertheless, the law requires a large number of operators to adhere to the SISTRI, which monitors hazardous as well as non-hazardous waste traceability, for example manufacturers, intermodal waste transporters and traders, recovery and disposal plants, ship-owners charterers, and other maritime agents.
The large and diverse number of operators obliged to adhere to the SISTRI highlights the wide scope of the monitoring service, from classic waste operators to other Italian companies which also produce waste.
The companies and entities, which were obliged to adhere to the system had to pay, upon signing up, important contributions sometimes amounting to thousands of Euros.
Refusing to adhere or pay the required contributions to SISTRI has severe consequences, including heavy administrative sanctions foreseen by art. 260-bis of Legislative Decree 152/2006, from € 2.600,00 to € 93.000,00 for more serious cases. Indeed, between 2010 and 2011, it seems that a total sum of around € 70.000.000,00 was paid as contributions to SISTRI. In 2012, the obligation to make contributions was suspended, however nothing was established with regard the reimbursement or investment of the sums already paid. Today, companies would like to know whether they can ask to be restituted the amounts paid in the past few years for a service that was never provided. This possibility should not be ruled out.
However, many are concerned that SISTRI’s operational failure shall not be followed by reimbursements, but rather a need to pay contributions again.
It shall be interesting to hear and assess the arguments presented before the Courts by the parties (in particular the respondent), in order to try to understand the reasons why SISTRI never came into operation, which may have the power of invalidating many of the claims for restitution of contributions paid.
Even though those in charge of the development of SISTRI had in the past assured that no issues arose that inhibited the monitoring system, it seems that the need to postpone its coming into operation is the result of technical problems, which affect its proper functioning.
The contributions that have already been made should still be invested in efforts to develop and implement the Waste Traceability System, regardless of the fact that, up until now, nobody has been able to take advantage of its services.
In addition, initiating judicial proceedings may not be worthwhile when comparing the sum of the contributions made with the time and costs involved in bringing a case before the Courts and potentially appealing it. However, if the affected companies were to join together, through a union or association, and advance one strong claim in Court, the results could be revealing.
Nevertheless, the Ministry shall most likely oppose any such attempts at seeking reimbursement through judicial or other means due to the high economic costs that it would face in the event that it had to succumb to such demands.
Indeed, if even just one Judge recognised the right to reimbursement of the contributions paid by waste companies, a flood of similar claims would ensue.