Important legal notice

61993C0187

European Court reports 1994 Page I-02857 Swedish special edition Page I-00249 Finnish special edition Page I-00289

Opinion of the Advocate-General

My Lords,

2. At the time of the adoption of the Regulation, Article 100a required the cooperation procedure to be followed, whereas Article 130s required only consultation with the Parliament. There is therefore no doubt that, at least in so far as it relates to Article 100a, the action is brought for the purpose of protecting the Parliament' s prerogatives and is accordingly admissible under the case-law of the Court. (2)

5. It follows that it will only be necessary to consider the internal aspects of the Regulation. In what follows I will first set out the relevant provisions, and then discuss whether those provisions are more appropriately based on Article 130s or Article 100a.

The Regulation

6. An important step in the development of a comprehensive Community waste policy was marked by the Council Resolution of 7 May 1990. (5) The resolution called, in particular, for the amendment of Council Directive 75/442/EEC on waste (6) and of Council Directive 84/631/EEC, which concerns the control of shipments of hazardous waste. (7) Thus paragraph 11 of the resolution declares that the Council:

"CONSIDERS that movements of waste should be minimized and that the prevention of waste at source and the establishment of an adequate disposal network ... will play a vital role in this respect;

underlines that movements of waste must be subject to proper controls;

invites the Commission to submit proposals ... for the amendment of Directive 84/631/EEC ... ."

"... Council Directive 75/442/EEC of 15 July 1975 on waste (12) lays down in its Article 5(1) that an integrated and adequate network of waste disposal installations, to be established by Member States through appropriate measures, ... must enable the Community as a whole to become self-sufficient in waste disposal and the Member States to move towards that aim individually, taking into account geographical circumstances or the need for specialized installations for certain types of waste; ... Article 7 of the said Directive [requires] the drawing up of waste management plans ... which shall be notified to the Commission, and stipulates that Member States may take measures necessary to prevent movements of waste which are not in accordance with their waste management plans ... ."

"any difference between the provisions on disposal of hazardous waste ... may distort the conditions of competition and thus directly affect the functioning of the common market; ... there are, in particular, differences between the procedures applying to the supervision and control of the transfrontier shipment of hazardous waste within the Community; ... it is therefore necessary to approximate laws in this field, as provided for in Article 100 of the Treaty." (13)

10. The provisions of the Regulation which are relevant to the present proceedings are contained in Title I (Articles 1 and 2), entitled "Scope and definitions", in Title II (Articles 3 to 12), entitled "Shipments of waste between Member States", and in Title III (Article 13), entitled "Shipments of waste within Member States".

11. By Article 1, the Regulation applies to shipments of waste within, into and out of the Community, with the exception of the shipments listed in Article 1(2). However, shipments of waste destined for recovery only and listed in Annex II are in most circumstances excluded from the scope of certain provisions of the Regulation: see Article 1(3). Annex II contains the "green list" of non-hazardous wastes, as opposed to the hazardous wastes contained in the "amber list" of Annex III and in the "red list" of Annex IV. (14)

12. Article 2 defines certain terms for the purposes of the Regulation. It is to be noted, in particular, that the terms "waste", "disposal" and "recovery" have the same meanings as those defined in Article 1 of Directive 75/442, as amended by Council Directive 91/156/EEC. (15) Thus "recovery", for instance, means any of the operations in Annex II B to the directive, which lists various specific kinds of reclamation, regeneration and recycling.

13. As I have already mentioned, Title II of the Regulation is concerned with shipments of waste between Member States. A distinction is drawn between waste destined for disposal (Chapter A) and waste destined for recovery (Chapter B). (Chapter C is concerned with the shipment of waste for disposal and recovery between Member States with transit via third States). Whereas the provisions of Chapter A apply generally to waste for disposal, those of Chapter B apply only to waste listed in the "amber list" of Annex III and, with certain modifications, to other kinds of waste not included in Annex II (see Article 10). In addition, the information requirements of Article 11 apply to waste listed in Annex II.

14. It is therefore necessary to consider the provisions relating respectively to waste for disposal and waste for recovery, paying particular attention to the differences between the two, with a view to determining the appropriate Treaty basis of the Regulation in the light of the Court' s case-law as discussed below.

15. In the case of both waste for disposal and waste for recovery, a mandatory notification procedure is established for the shipment of the waste. Notification is made by a consignment note issued by the competent authority of the Member State of dispatch. The notifier must complete the consignment note and supply certain specified information, and must enter into a contract with the consignee of the waste. The note is sent to the Member State of destination, with copies to the Member States of dispatch and of transit and to the consignee. In the case of waste for disposal, the Member State of destination is responsible for granting authorization for a shipment; however, as we have seen, the Member States of dispatch and transit also receive notice of the shipment and have the right to raise objections. In the case of waste for recovery, the Member States of dispatch, destination and transit have the right to object to a shipment, although no express authorization is required.

16. In the case of waste for disposal, Article 5(1) provides that:

"The shipment may be effected only after the notifier has received authorization from the competent authority of destination."

In the case of waste for recovery, on the other hand, provision is made for the tacit consent of the authorities concerned. Thus Article 8(1) provides that:

"The shipment may be effected after the 30-day period has passed if no objection has been lodged. Tacit consent, however, expires within one year from that date."

The 30-day period in question is that laid down in Article 7(2) for objections on the part of the competent authorities of destination, dispatch and transit.

17. There are other significant differences between the provisions applicable to waste for disposal and those applicable to waste for recovery.

"In order to implement the principles of proximity, priority for recovery and self-sufficiency at Community and national levels in accordance with Directive 75/442/EEC, Member States may take measures in accordance with the Treaty to prohibit generally or partially or to object systematically to shipments of waste. Such measures shall immediately be notified to the Commission, which will inform the other Member States."

In addition, Article 4(3)(b) provides that:

"The competent authorities of dispatch and destination, while taking into account geographical circumstances or the need for specialized installations for certain types of waste, may raise reasoned objections to planned shipments if they are not in accordance with Directive 75/442/EEC, especially Articles 5 and 7:

(i) in order to implement the principle of self-sufficiency at Community and national levels;

(ii) in cases where the installation has to dispose of waste from a nearer source and the competent authority has given priority to this waste;

(iii) in order to ensure that shipments are in accordance with waste management plans."

By Article 4(3)(c), moreover, the competent authorities of dispatch, destination and transit may raise reasoned objections on certain other grounds, in particular if the shipment contravenes national laws relating to environmental protection, public order, public safety or the protection of health.

"The competent authorities of destination and dispatch may raise reasoned objections to the planned shipment:

- in accordance with Directive 75/442/EEC, in particular Article 7 thereof, or

- if it is not in accordance with national laws and regulations relating to environmental protection, public order, public safety or health protection,

and on certain other grounds, some of which may also be relied upon by the Member State of transit (see Article 7(4)(b)).

20. In the case of waste destined for recovery, therefore, objection may be made to a planned shipment only on reasoned grounds which relate to the particular shipment concerned. In the case of waste for disposal, on the other hand, Member States may introduce general or partial prohibitions, or make systematic objections, provided that such measures are in accordance with the Treaty.

21. An indication of what kind of measures would indeed be compatible with the Treaty is provided by the Court' s judgment in the "Wallonian waste" case. (16) In that case, the Commission brought infringement proceedings against Belgium in respect of a measure adopted by the regional authorities of Wallonia which prohibited the use of Wallonian disposal installations for waste shipped from another Member State. As regards hazardous waste falling within the scope of Directive 84/631, the Court held that a general prohibition of that kind was inconsistent with the directive, which permitted only reasoned objections in respect of particular shipments. As regards waste not falling within the scope of the directive, however, the prohibition was held to be compatible with Article 30 of the Treaty: the Court referred in particular to the limited capacity of existing waste disposal facilities in Wallonia, and to an unusually large influx of waste from other regions of the Community. (17)

22. It can be seen therefore that, as regards waste for disposal previously covered by Directive 84/631, the Regulation permits Member States to impose restrictions of a kind which were not previously permitted under the directive. The need for Member States to have such a power follows from the new approach to waste management embodied in the amended version of Directive 75/442 (which I shall refer to simply as the "Directive on waste"). For, as we have seen, Article 5(1) of that directive requires the Member States to set up "an integrated and adequate network of disposal installations ... [enabling] the Community as a whole to become self-sufficient in waste disposal and the Member States to move towards that aim individually", and Article 7 requires them to draw up waste management plans and to take the measures necessary to prevent movements of waste which are not in accordance with those plans. It is clear that, depending upon the circumstances, such measures might include a total or partial ban on waste imported for disposal. Thus the Regulation is far from providing for a complete harmonization of the rules governing the transfer of waste, and might in part even be regarded (in the words of one commentator) as an "organized renationalization" of the subject. (18)

23. In contrast, as regards waste for recovery the position under the Regulation is similar to the position under Directive 84/631, in that only reasoned objections may be made which relate to particular shipments. Thus, under the Regulation, Member States may not impose blanket restrictions on movements of waste for recovery. Even in the case of waste for recovery, however, such restrictions may not be absolutely precluded. For Article 130t of the Treaty, as amended by the Treaty on European Union, provides that:

"The protective measures adopted pursuant to Article 130s shall not prevent any Member State from maintaining or introducing more stringent protective measures. Such measures must be compatible with this Treaty. They shall be notified to the Commission."

The precise extent of that power may not be entirely clear in practice. Thus it may be unclear when measures adopted by a Member State are to be regarded as more stringent versions of the Community measures, and when they are on the contrary to be regarded as measures of an entirely different kind, and hence as not permitted by Article 130t. (19) However, in the present case it is arguable that a Member State would be entitled in appropriate circumstances to impose more stringent restrictions on the shipment of recoverable waste, for instance by imposing a general or partial ban on such shipments. Such a prohibition would now have to be notified to the Commission, which would then examine its compatibility with Article 30 of the Treaty.

Both in the case of waste for disposal and waste for recovery, the Regulation provides that the Member States of destination, dispatch and transit may lay down conditions in respect of the transport of waste within their jurisdiction. However, except in the case of conditions laid down by the Member State of destination in the case of waste for disposal, such conditions may not be more stringent than those laid down in respect of similar shipments occurring wholly within their jurisdiction: see Article 4(2)(a) and (d) and Article 7(3) of the Regulation.

I note also that Chapter C (Article 12) of Title II gives a right of objection to third States of transit.

Title III is concerned with shipments within Member States. Article 13 provides that Member States must establish an appropriate system of supervision and control of shipments of waste within their jurisdiction. The system must be coherent with the system established by the Regulation; a Member State may, in particular, apply that system to purely domestic shipments.

The previous case-law on the scope of Articles 100a and 130s

The Court has considered the question whether Article 130s or Article 100a should form the legal basis of a measure on two previous occasions.

In the "Titanium Dioxide" case (20) the Commission challenged a directive which harmonized certain waste elimination programmes for the titanium dioxide industry, on the ground that the directive had been incorrectly based on Article 130s of the Treaty. (21) The Court first observed that:

"in the context of the organization of the powers of the Community the choice of the legal basis for a measure may not depend simply on an institution' s conviction as to the objective pursued but must be based on objective factors which are amenable to judicial review ... ." (22)

The Court then pointed out that, according to its aim and content:

"the directive is concerned, indissociably, with both the protection of the environment and the elimination of disparities in conditions of competition." (23)

Since, in view of the nature of the cooperation procedure prescribed by Article 100a, it was not possible for a measure to be based on both Articles 100a and 130s, a choice had to be made between the two. In view of Article 130r(2) and Article 100a(3), the mere fact that the directive pursued the objective of environmental protection was not enough to bring it within Article 130s. The Court concluded that the directive was incorrectly based upon Article 130s, and should instead have been based upon Article 100a. (24)

From the "Titanium Dioxide" case it can therefore be concluded that, where a directive pursues in equal measure both an internal market and an environmental objective, the correct legal basis will be Article 100a. However, the two objectives must indeed have equal weight; that was made clear by the subsequent case on the relation between Articles 100a and 130s.

In the subsequent case, the "Directive on waste" case, (25) the Commission challenged the legal basis of Directive 91/156, which as we have seen amended Directive 75/442 on waste. (26) The Commission again argued that the directive should have been based upon Article 100a rather than Article 130s. On this occasion, however, the Commission was unsuccessful. The Court held that the object of the directive was not to promote the free movement of waste within the internal market, but rather to limit it according to the principle of "rectification at source". Although, by virtue of its harmonizing provisions, the directive did have an effect on the functioning of the internal market, that effect was only incidental to its main purpose which was environmental. (27)

The "Directive on waste" case shows that a measure which has an effect on the internal market may none the less be correctly based on Article 130s, provided that the environmental goals pursued by the measure form its principal objective. The directive at issue in that case can therefore be distinguished from the directive at issue in "Titanium Dioxide". In the latter case, as Advocate General Tesauro observed:

"it is impossible to identify in the directive one main or predominant component and another which is merely incidental or secondary, ... there are two components which are both essential and are inseparably linked." (28)

In contrast, in the "Directive on waste" case there was no doubt that the environmental objective of Directive 91/156 was to be regarded as its main or predominant component.

The Court' s judgment in the "Directive on waste" case is of particular relevance for our present purposes. For there is a close connection between the directive at issue in that case and the measure contested in the present proceedings. Indeed, as the Council points out in its defence, the directive now provides the basic framework for all Community legislation on waste.

As we have seen, the measures which may be taken in order to restrict movements of waste for disposal, pursuant to Article 4(3)(a)(i) of the Regulation, implement the principles of "proximity, priority for recovery and self-sufficiency ... in accordance with Directive 75/442/EEC". Similarly, reasoned objections may be raised pursuant to Article 4(3)(b) of the Regulation if the shipments concerned "are not in accordance with Directive 75/442/EEC, especially Articles 5 and 7". (29) As regards waste destined for recovery, reasoned objections to planned shipments may be made inter alia "in accordance with Directive 75/442/EEC, in particular Article 7 thereof". (30) It will be recalled that Article 7 of the directive provides for the drawing up of waste management plans, and requires the prevention of movements of waste inconsistent with such plans, and that Article 5 provides for the establishment of a network of disposal installations in accordance with the principle of self-sufficiency in waste disposal.

As the Court emphasized in the "Directive on waste" case, the purpose of such arrangements is not to facilitate the free movement of waste. Their aim is rather to enable such movements to be limited, as far as possible, in order to secure protection of the environment. (31) Pursuant to that same objective, the Regulation establishes a uniform notification procedure which enables Member States to control movements of waste in accordance with their management plans. Thus at least one of the principal objectives of the Regulation is to implement a measure which, as the Court has held, was correctly based upon Article 130s.

The submissions of the Parliament

The Parliament suggests that the Regulation has two principal objectives: to regulate the circulation of waste within the Community, and to regulate external trade in waste, that is to say exchanges of waste between the Community and third countries. As we have seen, the external aspects of the Regulation can be left out of account for the purposes of the present proceedings.

In the view of the Parliament, a measure which regulates the circulation of waste within the Community can only be based upon Article 100a of the Treaty. The Parliament accepts of course that the Regulation also pursues the objective of protecting the environment. However, it points out that (as the Court emphasized in "Titanium Dioxide") the fact that a measure pursues an environmental objective is not in itself sufficient to bring the measure within Article 130s. (32)

The Parliament draws a distinction between the objectives of the Regulation and those of the Directive on waste. Although the Parliament concedes that the aim of the directive is to limit rather than to facilitate movements of waste, it suggests that the Regulation has an obverse aim to the one pursued by the directive: the aim of the Regulation is to facilitate those transfers of waste which, having regard to the restrictions imposed pursuant to the directive, are none the less permitted.

In its reply the Parliament appears to go further, arguing that a measure can come within Article 100a even where it does not promote free movement within the internal market. It seems that in the Parliament' s view it is sufficient if the measure regulates movements of goods between Member States; it is not necessary for it actually to facilitate such movements.

The Parliament also suggests that Title III of the Regulation does not contain any provision which would take the Regulation outside the scope of Article 100a. Although that Title is concerned exclusively with shipments of waste within an individual Member State, its provisions can be regarded as ancillary to the system established by Title II. In any event, Title III does not impose any obligations on Member States additional to those already imposed by the Directive on waste.

It seems to me that the Parliament is correct in suggesting that the provisions of Title III would not in themselves take the Regulation outside the scope of Article 100a. The requirement to establish an appropriate system for domestic shipments, coherent with the system laid down by Title II, can fairly be regarded as ancillary to the other requirements of the Regulation. For a domestic system which laid down substantially different procedures might impair the operation of the Community rules. I cannot therefore accept the Council' s argument, put forward in its defence, according to which the requirements of Title III do not make any contribution to the harmonization achieved by the Regulation.

The Council also makes the point that the Regulation lays down rules governing the physical transfer of waste, rather than rules governing commercial transactions. However, it seems to me that that would not in itself prevent the Regulation from being an internal market measure. Goods cannot be traded across borders without being physically moved between Member States; indeed, that is one of the essential differences between goods and services. It follows that a measure which harmonizes the conditions under which goods can be transported between Member States may well be regarded as a measure facilitating the internal market.

None the less, the Parliament has in my view failed to establish that the Regulation should have been adopted under Article 100a, rather than under Article 130s. It is no doubt true that, in laying down uniform rules for the shipment of waste within the Community, the Regulation will have a beneficial effect on the internal market. For the very existence of such harmonized rules will tend to facilitate the task of economic operators and to equalize conditions of competition in different Member States. As we have seen, however, a measure may be correctly based upon Article 130s even where it has an incidental effect on the functioning of the internal market. Thus the test is whether the environmental goals of the measure constitute its principal or predominant objective. (33)

Contrary to the Parliament' s submission, however, a measure cannot be said to pursue an internal market objective merely because it is concerned with the movement of products between Member States: see the "Directive on waste" case. (34) It must rather be asked whether the measure has the overall objective of promoting, rather than restricting, such movements. As the Council points out, it is clear in the present case that the overriding objective of the Regulation is to enable movements of waste to be prevented.

Of course, the free movement of goods may well be facilitated by measures which prevent the circulation of particular goods; indeed, that is typically the way in which internal market measures achieve their goal. For example, the free movement of alkaline manganese batteries is facilitated by a measure which ensures that the sale of batteries containing more than a certain level of mercury is prohibited in all Member States. (35) The measures introduced by Title II of the Regulation are not of that kind, however. The aim of the Regulation is not to define those characteristics of waste which will enable waste to circulate freely within the internal market; rather, it is to provide a harmonized set of procedures whereby movements of waste can be prevented and controlled in accordance with national law and with the requirements imposed by the directive on waste.

In my view, therefore, any internal market concerns of the Regulation are subsidiary to its main objective, which is to enable movements of waste to be limited in order to secure protection of the environment.

No doubt, in pursuing that objective the Regulation also aims to ensure that the restrictions imposed interfere to the least extent possible with the internal market. Thus paragraph 1 of the Council resolution on waste policy states that "harmonization of measures at Community level should be encouraged and rendered consistent with the development of the internal market ...". (36) As I have already observed, the establishment of a uniform notification procedure will in itself have a beneficial effect on the internal market. In particular, the provision of a "tacit consent" procedure in the case of waste for recovery has the effect of laying down a strict deadline for objections, to the obvious benefit of the operators concerned. (37) Again, the requirement to make reasoned objections to transfers of such waste might in some circumstances limit a Member State' s powers to impose general restrictions on such transfers. (38) It will also be recalled that the Regulation prevents discrimination in respect of the conditions imposed on domestic and cross-border shipments. (39)

It cannot be denied, therefore, that in pursuing its environmental objective the Regulation also seeks to prevent distortions in competition and to facilitate such movements of waste as are consistent with the goal of environmental protection. However, it is clear that those aims are strictly ancillary to the Regulation' s primary objective. Indeed, it goes without saying that a measure which implements the environmental policy of the Community must do so, so far as possible, in a way which is consistent with the Community' s other policies. It would however be absurd to suggest that such a measure must be based on Article 100a of the Treaty merely because it is consistent with that article.

Conclusion

In my view, therefore, the Parliament' s action is to be rejected. The Parliament should accordingly be liable for costs in accordance with Article 69(2) of the Rules of Procedure, except that under Article 69(4) of those rules Spain, as intervener, should bear its own costs.

I am therefore of the opinion that the Court should:

dismiss the application;

order the Parliament to pay the costs of the Council; and

order Spain, as intervener, to bear its own costs.

(*) Original language: English.

(1) - OJ 1993 L 30, p. 1. The title of the French version of the Regulation refers only to shipments of waste into and out of the Community ( ... des transferts de déchets à l' entrée et à la sortie de la Communauté européenne ). However, the title of the English version reflects more accurately the content of the Regulation.

(2) - See Case C-70/88 Parliament v Council [1990] ECR I-2041 ( Capacity of the European Parliament to bring an action for annulment ). See now Article 173, third paragraph, of the Treaty as amended by the Treaty on European Union.

(3) - See in particular Article 130r(4) of the Treaty (previously Article 130r(5)).

(4) - Cf. Case C-70/88 Parliament v Council ( Radioactive contamination of foodstuffs ) [1991] ECR I-4529, paragraph 20 of the judgment.

(5) - Council Resolution of 7 May 1990 on waste policy (OJ 1990 C 122, p. 2).

(6) - OJ 1975 L 194, p. 39.

(7) - Council Directive 84/631/EEC of 6 December 1984 on the supervision and control within the European Community of the transfrontier shipment of hazardous waste (OJ 1984 L 326, p. 31).

(8) - Council Directive 91/156/EEC of 18 March 1991 amending Directive 75/442/EEC on waste (OJ 1991 L 78, p. 32).

(9) - See Council Decision 93/98/EEC of 1 February 1993 on the conclusion, on behalf of the Community, of the Convention on the control of transboundary movements of hazardous wastes and their disposal (Basle Convention) (OJ 1993 L 39, p. 1).

(10) - See the Decision of the Council and the Commission 91/400/ECSC, EEC of 25 February 1991 on the conclusion of the Fourth ACP-EEC Convention (OJ 1991 L 229, p. 1).

(11) - Paris, 30 March 1992.

(12) - Cited above, note ; amended by Directive 91/156, cited above, note .

(13) - See the fourth recital of the directive.

(14) - Those lists are based on the Decision of the OECD Council of 30 March 1992, cited above in note .

(15) - Cited above in notes and .

(16) - Case 2/90 Commission v Belgium [1992] ECR I-4431.

(17) - See paragraphs 20 to 21 and 31 to 32 of the judgment.

(18) - See Geradin, in European Law Review vol. 18 (1993) at p. 426.

(19) - See Kraemer, in Groeben/Thiesing/Ehlermann Kommentar zum EWG-Vertrag (4th edition, Baden-Baden 1991), pp. 4004-4005.

(20)- Case C-300/89 Commission v Council [1991] ECR I-2867.

(21)- Council Directive 89/428/EEC of 21 June 1989 on procedures for harmonizing the programmes for the reduction and eventual elimination of pollution caused by waste from the titanium dioxide industry (OJ 1989 L 201, p. 56).

(22)- Paragraph 10 of the judgment.

(23)- Paragraph 13 of the judgment.

(24)- See paragraphs 21 to 25 of the judgment.

(25)- Case C-155/91 Commission v Council [1993] ECR I-939.

(26)- See above, note .

(27)- See paragraphs 18 to 20 of the judgment, and see also Case C-70/88 Parliament v Council, cited above in note .

(28)- See Titanium Dioxide , cited above in note , p. I-2885.

(29)- See above, paragraph .

(30)- See paragraph .

(31)- See the Directive on waste case, cited in note , paragraphs 10 and 15 of the judgment.

(32)- See above, paragraph 28.

(33)- See above, paragraph 31.

(34)- Cited above, note 25.

(35)- See Council Directive 91/157/EEC of 18 March 1991 on batteries and accumulators containing certain dangerous substances (OJ 1991 L 78, p. 38), in particular Articles 3 and 9.

(36)- Council Resolution of 7 May 1990, cited above in note 5; my emphasis.

(37)- See above, paragraph 16.

(38)- See above, paragraphs 20 and 23.

(39)- See above, paragraph 24.