Administrative fine in the area of illegal deposits: should the mayor issue a formal notice?
The Environmental Code, through its article L541-3, offers mayors a set of administrative sanctions to fight against illegal waste deposits. The interest? This allows a mayor to act directly for the public health of his territory.
An arsenal of sanctions against illegal deposits
Penalties provided by law are not limited to a simple fine. The text distinguishes between two sanctions hypotheses:
- An initial fine of up to 15,000 euros to sanction the act of deposit.
- Additional sanctions mentioned in points 1° to 5° of Article L541-3, which may include a fine of up to 150,000 euros, a daily fine or even the cleaning of waste at the expense of the offender.
However, these measures can only be applied after a formal notice from the polluter to clean the premises. If the latter does not comply, then the heaviest sanctions may come into play.
Formal notice and fine of up to 15,000 euros: a joint obligation?
A major question remains: is it possible to impose a fine directly without going through a formal notice?
The formal notice is a binding procedure, as it requires the municipality to leave the deposit on site in order to allow the polluter to remove it himself. However, nothing in the law or in current case law requires a systematic link between fines and formal notices.
Many sanctions mechanisms exist without the obligation of immediate reparation by the offender.
The interpretation of the word “and” in the legislation plays a key role in this analysis. When the letter of the text is not clear, we must look at the will of the legislator, and the parliamentary debate sheds light on this point.
The report of the Committee on Sustainable Development and Regional Planning on the bill adopted by the Senate after the start of the accelerated procedure, relating to the fight against waste and the circular economy (no. 2274) by Ms. Véronique Riotton and Ms. Stéphanie Kerbarh, states that:
“In order to overcome the constitutional difficulties posed by Article 12 AA while strengthening the mayor's administrative police powers in the area of waste, the committee adopted an amendment by your rapporteur to allow the mayor to impose, at the end of the adversarial procedure, an “immediate” administrative fine, i.e. before formal notice, of a maximum amount of 15,000 euros.”
Conclusion
Under positive law, the application of an immediate fine without formal notice is possible. It seems that if a clarification were to be made, it would go in that direction.
Especially since it is precisely to simplify things that the legislator created this procedure.
It is still up to the municipality to identify the polluter; for this, there are many ways to fight against this scourge, discover our 5 concrete solutions to remedy it.
Written by Josselin Biscarrat - Jurist in Environmental Law and Video Protection
To go further
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