OPINION OF ADVOCATE GENERAL

delivered on 21 July 2011 (1) (i)

Case C‑405/10

Staatsanwaltschaft Karlsruhe

(Reference for a preliminary ruling from the Amtsgericht Bruchsal (Germany))

(Protection of the environment – Regulation (EC) No 1013/2006 – Control of shipments of hazardous waste and other waste – Prohibition on the export of spent catalysts to Lebanon)

1. This case concerns Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste, (2) as amended by Commission Regulation (EC) No 308/2009 of 15 April 2009. (3)

2. Regulation No 1013/2006 establishes procedures for the supervision and control of shipments of hazardous waste and other waste between Member States, and between Member States and third countries.

3. Article 37 of Regulation No 1013/2006 lays down, inter alia, a procedure for consulting third countries in order to ascertain their intentions regarding the treatment of certain waste. Accordingly, those countries may choose to prohibit the export of waste into their territory, or to establish a procedure of prior written notification and consent, or to have no control procedure.

4. In response to the replies given by those countries, the European Commission adopted Regulation (EC) No 1418/2007 (4) and categorised the waste on the basis of those replies. In addition to the three options which had been proposed by the Commission in Regulation No 1013/2006, Regulation No 1418/2007 added a fourth possibility, namely the establishment, for the shipment of such waste, of other control procedures, to be implemented under national law in the country of destination.

5. Thus, in relation to Lebanon, the Commission listed waste in category B1120 in columns (a) and (d) of the Annex to Regulation No 1418/2007, entry in those columns signifying, respectively, that export to Lebanon is prohibited and that other control procedures are to be implemented by the country of destination.

6. It is that dual listing which is the subject-matter of the present case. The Amtsgericht Bruchsal (Germany) has doubts as to how it should be construed, that is to say, as to whether the effect is purely and simply to prohibit the export to Lebanon of waste in category B1120 or whether the possibility of exporting such waste is thereby left open.

7. In this opinion, I shall explain the reasons why I consider that Article 37 of Regulation No 1013/2006, read in conjunction with the Annex to Regulation No 1418/2007, is to be interpreted as meaning that the export to Lebanon of waste in category B1120 is prohibited.

I – Legal framework

A – The Basel Convention

8. The Convention on the control of transboundary movements of hazardous wastes and their disposal was signed in Basel on 22 March 1989 and approved on behalf of the Community by Council Decision 93/98/EEC of 1 February 1993. (5)

9. The purpose of the Basel Convention is to control, at international level, the management of hazardous waste and other waste in the interests of human health and the environment. It seeks, in particular, to reduce the volume of transboundary movements of hazardous waste and other waste.

10. Accordingly, recitals 1, 6, 7, 8 and 10 in the preamble to the Basel Convention state:

‘Aware of the risk of damage to human health and the environment caused by hazardous wastes and other wastes and the transboundary movement thereof,

…

Fully recognising that any State has the sovereign right to ban the entry or disposal of foreign hazardous wastes and other wastes in its territory,

Recognising also the increasing desire for the prohibition of transboundary movements of hazardous wastes and their disposal in other States, especially developing countries,

Convinced that hazardous wastes and other wastes should, as far as is compatible with environmentally sound and efficient management, be disposed of in the State where they were generated,

…

Considering that enhanced control of transboundary movement of hazardous wastes and other wastes will act as an incentive for their environmentally sound management and for the reduction of the volume of such transboundary movement’.

11. The Basel Convention also provides for waste to be categorised according to its hazardousness. Under Article 1(1)(a) and (b) of the Basel Convention, the waste listed in Annex I to the convention is to be regarded as hazardous waste, as is that which is not on that list but which is nevertheless defined as, or is considered to be, hazardous waste by the domestic legislation of the party of export, import or transit.

12. Moreover, it is pointed out in paragraph (a) of Annex I to the Basel Convention that the waste listed in Annex IX is not considered to be hazardous for the purposes of Article 1(a) of the convention.

13. The waste listed in Annex IX to the Basel Convention includes spent catalysts, identified under code B1120.

B – European Union (‘EU’) law

14. According to recital 1 to Regulation No 1013/2006, the main and predominant objective and component of that regulation is the protection of the environment.

15. To that end, Regulation No 1013/2006 establishes procedures and control regimes for the shipment of waste, depending inter alia on the origin, destination and route of the shipment, and on the type of waste shipped. (6) The rules established are also designed to implement the obligations arising under the Basel Convention (7) and to incorporate the content of Decision C(2001) 107 final of the Council of the Organisation for Economic Co-operation and Development (OECD) concerning the revision of Decision C(92) 39 final on the control of transboundary movements of wastes destined for recovery operations. (8)

16. More specifically, Regulation No 1013/2006 applies to the transboundary movement of waste between the Member States of the European Union, between the European Union and the Member States of the European Free Trade Association (‘EFTA countries’), between the European Union and the Member States of the OECD, and between the European Union and third countries party to the Basel Convention. For each of those types of shipment, it lays down a specific supervision and control procedure.

17. Regulation No 1013/2006 also establishes three lists of waste according to its hazardousness, hence according to the supervision and control procedure to be followed in its regard. Thus, Annex III to that regulation lists ‘“green” listed waste’. Such waste is subject, in principle, only to the general information requirements. Waste which is subject to a procedure requiring prior written notification and prior written consent (‘prior notification and consent procedure’) is listed in Annex IV to Regulation No 1013/2006 as ‘“amber” listed waste’. Lastly, the waste listed in Annex V to that regulation is the waste covered by an export prohibition.

18. Where there is a shipment of waste within the European Union, with or without transit through third countries, Article 18 of Regulation No 1013/2006 provides that ‘green’ listed waste must be accompanied by certain information, such as the name of the person who arranges the shipment, the actual quantity of waste shipped and the details of the recovery facility, and also by the shipping contract between the person who arranges the shipment and the consignee.

19. Article 35 of Regulation No 1013/2006 lays down a special procedure for export to EFTA countries party to the Basel Convention. Under that procedure, the shipment of waste to which that provision applies is subject to a prior notification and consent procedure involving the competent authorities of the country of dispatch and those of the country of destination.

20. As regards exports of waste to countries to which the OECD Decision does not apply, one of which is the Lebanese Republic, points (a) and (f) of Article 36(1) of Regulation No 1013/2006 prohibit, respectively, exports from the European Union of waste listed as hazardous in Annex V to that regulation for recovery in such countries and exports of waste the import of which has been prohibited by the country of destination.

21. As for the waste listed, inter alia, in Annex III to Regulation No 1013/2006, which reproduces the list set out in Annex IX to the Basel Convention and which includes spent catalysts, where Article 36 of that regulation does not prohibit the export of such waste for recovery to countries to which the OECD Decision does not apply, its export to such countries is subject to a special export procedure.

22. Under Article 37(1) of Regulation No 1013/2006, within 20 days of the entry into force of that regulation, the Commission is to send a written request to each country to which the OECD Decision does not apply, seeking confirmation in writing that the waste may be exported from the European Union for recovery there, and an indication as to which control procedure, if any, would be followed in the country of destination.

23. The EU legislature has provided that each country to which the OECD Decision does not apply is to choose between the following three options:

– an export prohibition; or

– the prior written notification and consent procedure, laid down in Article 35 of Regulation No 1013/2006; or

– no control in the country of destination. (9)

24. The Commission must then adopt a regulation taking into account all replies received. (10) If a country has not issued a confirmation as referred to in Article 37(1) of Regulation No 1013/2006 or if, for any reason, a country has not been contacted, the waste may be exported provided that this done in accordance with the prior notification and consent procedure laid down in Article 35 of that regulation. (11)

25. After replies had been received from the countries to which the OECD Decision does not apply, the Commission adopted Regulation No 1418/2007 pursuant to Article 37(1) of Regulation No 1013/2006. As we have already seen, the aim of Regulation No 1418/2007 is to establish control procedures for the export of waste intended for recovery in such countries, where this has not been prohibited under Article 36 of Regulation No 1013/2006. (12)

26. Since certain countries had made it known in their replies that they intended to follow control procedures applicable under national law that were distinct from those provided for under Article 37(1) of Regulation No 1013/2006, (13) the Commission added an extra option to those already listed in that provision.

27. Provision is accordingly made in the Annex to Regulation No 1418/2007 for the countries to which the OECD Decision does not apply to choose, as regards the waste listed in Annexes III and IIIA to Regulation No 1013/2006, between:

– a prohibition; or

– the prior notification and consent procedure laid down in Article 35 of Regulation No 1013/2006; or

– no control in the country of destination; or

– other control procedures followed in the country of destination under applicable national law.

28. Moreover, Article 1a of Regulation No 1418/2007 provides that, where, in its reply to a written request from the Commission in accordance with the first subparagraph of Article 37(1) of Regulation No 1013/2006, a country indicates that it will not prohibit the shipment of certain waste or apply the prior notification and consent procedure laid down in Article 35 of Regulation No 1013/2006, Article 18 of that regulation is to apply mutatis mutandis to such shipments.

C – National law

29. Under Paragraph 326(2) of the German Criminal Code (Strafgesetzbuch), any person who, contrary to a prohibition or without the required permit, brings waste within the meaning of Paragraph 326(1) (14) into, out of or through the territorial area to which that law applies, is to be punished by a term of imprisonment of up to five years or by a fine.

Paragraph 326(5)(1) of the Strafgesetzbuch provides that, if the perpetrator has acted out of carelessness, he may be given a custodial sentence of up to three years or a fine.

In addition, Paragraph 2 of the Ordinance on fines for the shipment of waste (Abfallverbringungsbußgeldverordnung), in the version in force on 18 November 2009, provides that anyone who, purposely or through carelessness, acts in breach of Regulation No 1418/2007 by exporting waste subject to an export ban under the Annex to that regulation is to be deemed to have committed an offence.

II – The main proceedings

QB, who is a German national, is the manager of ALU-KAT GmbH, a company whose seat is in Bruchsal (Germany) and whose activities include the recovery and disposal of waste metal, such as spent automotive catalytic converters.

On or around 25 May 2009, QB shipped 3794 spent automotive catalytic converters to Rotterdam (Netherlands). The catalysts were then to be shipped, as waste, by container to the AWADA Company for General Trading, which is in Lebanon, for recovery or disposal. Those catalysts were seized by the Netherlands customs authorities.

The referring court – the Amtsgericht Bruchsal (Bruchsal District Court) – states that QB was aware that the spent catalysts fell within waste category B1120 of Annex IX to the Basel Convention and that they were entered in column (a) of the Annex to Regulation No 1418/2007 and that, as a consequence, their export to Lebanon was prohibited.

The Staatsanwaltschaft Karlsruhe (Public Prosecutor’s Office, Karlsruhe) claims that, by shipping spent automotive catalysts to Rotterdam for export to Lebanon, QB infringed Paragraph 326(2) of the German Criminal Code and Paragraph 2(1) of the Ordinance on fines for the shipment of waste.

The Amtsgericht Bruchsal points out that waste in category B1120 is indeed entered in column (a) of the Annex to Regulation No 1418/2007, but it is also entered in column (d) of that annex, which signifies that other control procedures will be followed in the country of destination under applicable national law.

Accordingly, the Amtsgericht Bruchsal, which had doubts regarding the interpretation to be given to Article 37 of Regulation No 1013/2006, read in conjunction with the Annex to Regulation No 1418/2007, decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Are the rules laid down in Article 37 of [Regulation No 1013/2006], read in conjunction with [Regulation No 1418/2007], to be interpreted as meaning that it is prohibited to ship to Lebanon waste which falls within waste category B1120 of Annex IX to the Basel Convention?’

III – Analysis

By its question, the national court is asking, in essence, whether Article 37 of Regulation No 1013/2006, read in conjunction with the Annex to Regulation No 1418/2007, is to be interpreted as meaning that the export to Lebanon of waste in category B1120 is prohibited.

The source of the problem facing the national court is the fact that, in the Annex to Regulation No 1418/2007, spent catalysts, which fall within category B1120, are entered both in column (a) and in column (d).

Entry in column (a) of the Annex to Regulation No 1418/2007 means that export of the waste concerned is prohibited, whereas entry in column (d) means that a special control procedure will be implemented by the country of destination when the waste is shipped.

The issue is important for QB, because, if the shipment to Lebanon of waste in category B1120 is not prohibited, the constituent elements of the punishable offence as defined by German criminal law will be lacking.

In the analysis which follows, I shall explain why I think that the export to Lebanon of waste in category B1120 is prohibited.

The dual entry of that waste, in columns (a) and (d) of the Annex to Regulation No 1418/2007, which seems rather contradictory, is explained by the fact that, when the Commission asked the countries to which the OECD Decision does not apply to decide what they intended to do with regard to the classification of waste, some of those countries indicated that they planned to follow control procedures, applicable under national law, that were distinct from those provided for under Article 37(1) of Regulation No 1013/2006.

I reiterate that, under that provision, those countries may, in principle, choose between three options with regard to the shipping of waste: a prohibition, pure and simple; a prior notification and consent procedure; or no control whatsoever.

So far as Lebanon is concerned, it emerges from the observations submitted by the Commission that the Lebanese Ministry of Environment had returned the completed questionnaire by letter of 23 June 2007 and that, for the waste in category B1120, the competent Lebanese authorities had ticked column 1 of that questionnaire, which corresponds to column (a) of the Annex to Regulation No 1418/2007 and accordingly indicates a prohibition on exports.

Moreover, the Lebanese Ministry of Environment stated in that letter that the list provided by the competent Lebanese authorities was for reference only, because the categories used in Lebanon for classifying waste may differ from those established by the Commission.

It was that letter which prompted the Commission’s decision, in the case of Lebanon, to make an additional entry for waste in category B1120 in the Annex to Regulation No 1418/2007 so that, in the ‘Lebanon’ section of that annex, it is also entered in column (d).

Does that addition mean, however, that waste in that category may be exported from the European Union to Lebanon?

The Commission argues that, once that waste is entered in column (a) of the Annex to Regulation No 1418/2007, its export to Lebanon must be prohibited and that position remains unaltered by the fact that the waste is also entered in column (d) of that Annex.

I share that view, for the following reasons.

We have seen that the principal aim of Regulation No 1013/2006 is to protect the environment. In that regard, the Court stated in Commission v Parliament and Council that, in terms both of its objective and its content, that regulation is aimed primarily at protecting human health and the environment against the potentially adverse effects of cross-border shipments of waste. To that end, and in accordance with the obligations of the Member States under the Basel Convention, the EU legislature has set up a system for the control and supervision of shipments of waste within the European Union, as well as from and to third countries.

Accordingly, I note that, for shipments of waste within the European Union, with or without transit through third countries, and for shipments from the European Union to EFTA countries, Title II of Regulation No 1013/2006 constitutes the applicable common basis. In both cases, the person who is shipping the waste must, beforehand, give notification of that shipment, and obtain the consent of the competent authorities in the country of destination.

As regards shipments of waste to countries to which the OECD Decision does not apply, a different set of rules applies. The EU legislature has established a procedure for consulting those countries in order to ascertain their intentions with regard to the shipment of waste listed in Annex III to Regulation No 1013/2006, which includes spent catalysts.

Those countries may, inter alia, decide purely and simply to impose a prohibition on the export of certain waste. In my view, this reflects their sovereign right to ban the entry or disposal in their territory of hazardous waste, or other waste, from foreign countries.

The Lebanese Ministry of Environment clearly asserted that right by indicating, in the questionnaire returned to the Commission, that the export into Lebanese territory of waste in category B1120 was prohibited.

It is my view that, once the Lebanese Republic made known its intention to prohibit the import of such waste into its territory, the European Union was under an obligation to abide by Lebanon’s wishes and cannot lay down other procedures.

In that regard, Article 37(3) of Regulation No 1013/2006 and Article 1a of Regulation No 1418/2007 state that, where, in its reply to a written request sent by the Commission in accordance with Article 37(1) of Regulation No 1013/2006, a country indicates that it will not opt to prohibit certain shipments of waste or to apply the prior notification and consent procedure laid down in Article 35 of that regulation, Article 18 of that regulation is to apply mutatis mutandis to such shipments. Similarly, under the second subparagraph of Article 37(2) of Regulation No 1013/2006, if a country has not indicated its intentions regarding the procedures to be followed for shipments of waste into its territory, the prior notification and consent procedure laid down in Article 35 of that regulation is to apply.

This clearly shows that it is only where the country of destination has opted not to control shipments of waste, or where it has not made known its intentions, that it is open to the European Union to apply the procedure laid down in Article 18 of Regulation No 1013/2006 or that laid down in Article 35 of that regulation.

This is not the position in the present case, since the Lebanese Republic made it clear that it intended to prohibit the import into its territory of waste in category B1120.

The addition of column (d) to the Annex to Regulation No 1418/2007 cannot have the effect of going against that intention.

As we have seen, it is explained in recital 6 to Regulation No 1418/2007 that column (d) was added because of the replies given by some countries, in which they indicated that they intended to follow control procedures, applicable under national law, that were distinct from those provided for by the EU legislature.

Moreover, in the observations which it submitted to the Court, the Commission explains that column (d) was added to that annex because the European Union cannot require a third country, such as the Lebanese Republic, to apply import controls; nor, where import controls already exist, can it determine the manner in which they are to be carried out. Similarly, the Commission points out that, since the Lebanese Ministry of Environment stated in its reply that Lebanese waste category codes might differ from those used by the EU legislature, the Commission wished to draw the attention of companies established within the European Union to the fact that cases may arise where the import of certain waste is refused by the competent Lebanese authorities even though such imports are permitted under the categorisation system used by the EU legislature.

Accordingly, where a third country, such as the Lebanese Republic, has clearly indicated that it prohibits the import, into its territory, of waste in category B1120, the reason for entering that waste also in column (d) of the Annex to Regulation No 1418/2007 is only to inform the persons concerned that that country still has the sovereign right to establish control and supervision procedures for the shipment of waste which are distinct from the procedures laid down by the EU legislature and the right to refuse the import of certain waste on the basis of a categorisation system which differs from that adopted by EU law.

Besides, I note that, as regards Lebanon, all the waste listed in the Annex to Regulation No 1418/2007 is entered in column (d) as well as in column (a) or (b). To my mind, this clearly shows that the fact that the waste in question is entered in column (d) does not have the effect of making that waste subject to a procedure other than that freely chosen by the Lebanese Republic. If it were otherwise, the effect would be not only to render completely pointless the consultation procedure provided for in Article 37 of Regulation No 1013/2006, but also – and above all – to treat with shameless disregard the sovereign right of third countries to determine the procedures applicable to shipments of waste to their territory.

In any event, if – owing to the fact that waste in category B1120 is entered both in column (a) and in column (d) of the Annex to Regulation No 1418/2007 – doubt remained as to the procedure to be followed for the shipment of such waste to Lebanon, I believe that the objective of Regulation No 1013/2006 calls for the approach which best suits the purpose of protecting human health and the environment.

In that connection, it should be borne in mind that, in terms both of its objective and its content, Regulation No 1013/2006 is aimed primarily at protecting human health and the environment against the potentially adverse effects of cross-border shipments of waste. That applies both in relation to the European Union and in relation to the third countries to which waste is exported from the European Union.

In that regard, the countries which are party to the Basel Convention and which are aware, inter alia, of the risk to human health and the environment posed by the transboundary movement of hazardous waste and other waste consider that such waste should, so far as is compatible with environmentally sound and efficient management, be disposed of in the State in which it was generated. (31) Also, enhanced control of those transboundary movements will lead to a reduction in their volume. (32)

The restriction of shipments of waste is therefore an objective to be attained in order better to protect human health and the environment. The EU legislature itself stated that intention again in recital 8 to Regulation No 1013/2006.

I therefore consider that, where there is uncertainty regarding the treatment of waste, owing – as in the case before the referring court – to the fact that it is entered both in column (a) and in column (d) of the Annex to Regulation No 1418/2007, it is necessary to choose the narrowest approach, making it possible to limit shipments of waste: namely, the prohibition of exports. That is also the best approach for attaining the objective of protecting human health and the environment, which Regulation No 1013/2006 is designed to achieve.

Consequently, in the light of all those considerations, it is my view that Article 37 of Regulation No 1013/2006, read in conjunction with the Annex to Regulation No 1418/2007, is to be interpreted as meaning that the export to Lebanon of waste in category B1120 is prohibited.

Finally, and in order to deal with all the issues discussed at the hearing, the question as to whether or not the provisions examined above are sufficiently clear as to yield the elements constituting the basis for a national definition of a punishable offence in accordance with the principle of the legality of criminal offences and penalties falls within the exclusive jurisdiction of the national court.

I therefore consider that the Court does not have jurisdiction to reply to that question.

IV – Conclusion

In the light of the foregoing considerations, I propose that the Court reply to the Amtsgericht Bruchsal as follows:

Article 37 of Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste, as amended by Commission Regulation (EC) No 308/2009 of 15 April 2009, read in conjunction with the Annex to Commission Regulation (EC) No 1418/2007 of 29 November 2007 concerning the export for recovery of certain waste listed in Annex III or IIIA to Regulation No 1013/2006 of the European Parliament and of the Council to certain countries to which the OECD Decision on the control of transboundary movements of wastes does not apply, is to be interpreted as meaning that the export to Lebanon of waste in category B1120 is prohibited.

—

(1) Original language: French.

(i) The name in the introductory part and in points 32, 33, 34, 35 and 41 has been replaced with letters following a request for anonymisation.

(2) OJ 2006 L 190, p. 1.

(3) OJ 2009 L 97, p. 8; ‘Regulation No 1013/2006’.

(4) OJ 2007 L 316, p. 6, as amended by Commission Regulation (EC) No 740/2008 of 29 July 2008 (OJ 2008 L 201, p. 36) (‘Regulation No 1418/2007’).

(5) OJ 1993 L 39, p. 1; ‘the Basel Convention’.

(6) See Article 1(1) of Regulation No 1013/2006.

(7) See recital 3 to Regulation No 1013/2006.

(8) ‘The OECD Decision’.

(9) See points (a), (b) and (c) of the second subparagraph of Article 37(1) of Regulation No 1013/2006.

(10) See the first subparagraph of Article 37(2) of Regulation No 1013/2006.

(11) See the second subparagraph of Article 37(2) of Regulation No 1013/2006.

(12) See Article 1 of Regulation No 1418/2007 and recitals 1, 2 and 3 thereto.

(13) See recital 6 to Regulation No 1418/2007.

(14) This is, for example, waste which contains or can generate poisons or carriers of diseases which are dangerous to the public and are transmissible to human beings or animals or which, because of its nature, composition or quantity, is capable of polluting or otherwise detrimentally altering a body of water, the air or the soil in a lasting way, or endangering an existing population of animals or plants (see Paragraph 326(1)(1) and (4)(a) and (b) of the Criminal Code).

(15) See recital 6 to Regulation No 1418/2007.

(16) See paragraphs 4 and 5 of the Commission’s observations. See also the letter of the Lebanese Ministry of Environment on Internet site: http://trade.ec.europa.eu/doclib/docs/2007/july/tradoc_135243.pdf.

(17) See paragraph 6 of the Commission’s observations. See also the letter referred to in footnote 16, which states:

‘… due to the fact that … Questionnaire [relating to Regulation (EC) N. 1013/2006] adopted a codification for waste that differs from adopted Lebanese National codification, the information contained in this questionnaire is provided for reference only. [The Ministry of Environment] does not assume any responsibility whatsoever in connection with or resulting from any error or omission in connection with or resulting from the gathering of data, findings and interpretation or use thereof by the European Commission or any third party’.

(18) See paragraph 14 of the Commission’s observations.

(19) Case C-411/06 Commission v Parliament and Council [2009] ECR I‑7585.

(20) Paragraph 62.

(21) See Articles 3 and 35(1) of Regulation No 1013/2006.

(22) See Article 9(1) of Regulation No 1013/2006.

(23) See Article 37 of Regulation No 1013/2006 and paragraph 5 of Section 4.2.6 of the Explanatory Memorandum accompanying the Proposal for a Regulation of the European Parliament and of the Council of 30 June 2003 on Shipments of Waste (COM(2003) 379 final).

(24) See recital 6 to the Basel Convention and recital 9 to Regulation No 1013/2006.

(25) See the letter referred to in footnote 16.

(26) See also recital 5 to Regulation No 1418/2007.

(27) See paragraph 16.

(28) Idem.

(29) Commission v Parliament and Council, paragraph 62.

(30) See Case C-259/05 Omni Metal Service [2007] ECR I‑4945, paragraph 30.

(31) See recitals 1 and 8 to the Basel Convention.

(32) See recital 10 to the Basel Convention.