Commissioner for Fundamental Rights and Ombudsman for Future Generations Take a Stand on the Legal Basis for the Obligation to Pay Waste Transport Fees
The requirement of legal certainty stemming from the principle of the rule of law, as well as the right to a fair procedure are violated if a local waste management decree does not clearly specify the legal basis for invoicing with regard to enclosed garden properties, said, among others, the Commissioner for Fundamental Rights and his Deputy for Future Generations. Dr Ákos Kozma and Dr Gyula Bándi requested the municipality clerk to give meaningful responses to all the enquiries from the citizens in the future, and asked the mayor of the settlement to ensure the appropriate amendment and supplementation of the municipality decree on the order of waste management.
The complainant turned to the Commissioner for Fundamental Rights regarding a case concerning a real estate property rated as an ex-enclosed garden estate, vineyard and farm building located in Tordas: he complained of the legal basis of his obligation to pay a waste transport fee, and at the same time, he requested that the local regulation of waste management fees be reviewed. According to his petition, he is obliged to pay the public service fee for the real estate property that “he uses on a seasonal basis, as a tourist tax”, however, in his property, there is a farm building, which is unsuitable for residential purposes, and no household waste is generated there.
In their joint report No. AJB-669/2020, Dr Ákos Kozma and Dr Gyula Bándi concluded that the effect of the public service in question did not extend to the real estate properties without a construction, located at Tordas Öreghegy, in the area of “old enclosed gardens”, not qualifying as holiday homes and not suitable for habitual residence. The local waste management decree stipulates no provisions or procedural rules on how, under what conditions and in what procedure the exemption from the obligation to use waste management services can be enforced. The Ombudsman and his Deputy for Future Generations also emphasised that in the case of the Öreghegy real estate properties with constructions that are suitable for habitual residence, it cannot be clarified from the local decree how the seasonal use of the public service is obligatory for the users of the real estate properties.
The report established that the municipality clerk failed to meet his obligation to inform the complainant to a reasonable extent, and by giving an incorrect answer regarding the content of the local decree, and the lack of a meaningful response, he caused an impropriety with regard to the fundamental rights to a healthy environment, as well as to the right to petition and have an official procedure.
The Commissioner for Fundamental Rights and his deputy requested the clerk of the Municipality of Torda to give meaningful responses to all the inquiries from the citizens in the future, and to provide adequate information to the citizens. Furthermore, they proposed that in this specific case, he should investigate, in the framework of an on-site review, whether there is a structure suitable for human residence on the real estate property in question. Furthermore, the mayor of the Municipality of Torda was requested to ensure that the municipality decree on the order of waste management be amended and supplemented in line with the relevant laws and the conclusions of the report.