OPINION OF ADVOCATE GENERAL

delivered on 6 May 2004 (1)

Legal framework

Community law

8. ‘Incineration on land’ is included in Annex IIA at point D10 and is therefore identified as a disposal operation. By contrast, ‘use principally as a fuel or other means to generate energy’ is identified in Annex IIB at point R1 as a recovery operation.

National law

12. Point 3.b of chapter 8 states that ‘in other cases, objections will in principle be raised against the transfer if the percentage of waste recoverable in the Member State of destination is inferior to that in the Member State of dispatch’.

‘If it is not possible to establish unequivocally that the percentage of waste effectively recovered is inferior in the State of destination, a margin can be applied in order to limit objections and appeals. The margin cannot exceed 20% of the relative value. Beyond 20%, the assessment will always result in an objection being raised. The whole is still examined with regard to the specific intended transfer.’

14. Following the Commission’s formal notice prior to the present proceedings, the Netherlands amended the note by deleting the penultimate sentence of the passage quoted.

15. Chapter 18 of the second part of the MJP-GA II deals with the difference between incineration as a recovery operation, in which the waste is primarily used as a fuel, and incineration as a method of disposal. It specifies that the incineration of hazardous waste will be regarded as a recovery operation only if the calorific value of the waste is greater than 11 500 Kj/kg in the case of waste with a chlorinate content inferior to 1%, or greater than 15 000 Kj/kg in the case of waste with a chlorinate content superior to 1%.

The action for infringement

16. After receiving various complaints alleging that the Netherlands had raised unjustified objections to the export of hazardous waste, the Commission sent a formal notice to the Netherlands by letter of 28 April 1999, setting out three respects in which it believed that the MJP GA-II might infringe Community law.

17. In response, the Netherlands Government modified the note at the foot of the page at point 3.b of chapter 8 of the MJP GA-II in the manner described above, (11) but made no other changes.

18. The Commission was not satisfied with that response, and sent a reasoned opinion to the Netherlands Government on 1 August 2000. The Netherlands replied on 8 November 2000, denying any infringement of Community law.

19. On 21 March 2002, the Commission applied to the Court for a declaration that the Netherlands has failed to fulfil its obligations under Article 7(4) of the Regulation, Article 1(e) and (f) and Article 7(1) of the Directive, and Article 82 EC read in combination with Article 86 EC.

21. In its submissions to the Court, the Commission does not develop any argument in support of its claim of an infringement of Article 7(1) of the Directive.

22. It is therefore necessary to consider only whether the MJP-GA II is contrary to Article 7(4) of the Regulation or constitutes an incorrect implementation of Article 1(e) and (f) of the Directive. I propose to deal first with the latter issue, which has recently been addressed by the Court.

The compatibility of the MJP-GA II with Article 1(e) and (f) of the Directive

23. The Commission submits that the distinction drawn in chapter 18 of the second part of the MJP-GA II between the disposal and the recovery of hazardous waste by incineration is incompatible with the Directive.

24. Since the parties submitted their observations in the present case, the Court has given judgment in Commission v Germany. (12)

26. The Directive specifically distinguishes between ‘incineration on land’ (which is classified by point D10 as a disposal operation) and ‘use principally as a fuel or other means to generate energy’ (which is identified by point R1 as a recovery operation). The Court held that the latter category should be interpreted as applying only ‘when the greater part of the waste is consumed during the operation and the greater part of the energy generated thereby is recovered and used’. (14)

27. In the light of its interpretation of point R1, the Court concluded that it would not be consistent with the Directive for a Member State to use either the calorific value of the waste or the amount of harmful substances contained in the incinerated waste as a criterion for determining whether the incineration of waste qualified as a disposal or a recovery operation. (15) Such criteria relate neither to the proportion of waste consumed nor to the proportion of energy recovered.

28. The Court has therefore explicitly declared a criterion based on the calorific value of waste to be incompatible with the Directive. The Court’s reasoning would extend also to a criterion based on the chlorinate content of waste prior to incineration. On the Court’s interpretation of point R1, the composition of the waste would be equally irrelevant whether measured before or after incineration.

29. Accordingly, it is clear that chapter 18 of the second part of the MJP-GA II infringes Article 1(e) and (f) of the Directive read in conjunction with point D9 of Annex IIA and point R1 of Annex IIB to the Directive.

The compatibility of the MJP-GA II with Article 7(4) of the Regulation

30. The remaining ground of the Commission’s action alleges that the criteria specified in chapter 8 of the first part of the MJP-GA II for deciding when objection will be made to shipments of waste for recovery are not compatible with Article 7(4) of the Regulation.

31.

The Commission submits that when Community legislation takes the form of a regulation, it leaves no place for national implementing measures unless such measures are expressly provided for. Such is not the case with Article 7(4) of the Regulation.

32.The Commission further submits that the criteria specified in chapter 8 of the first part of the MJP-GA II are incompatible with Article 7(4) of the Regulation. They provide for systematic objection to be raised against shipments of waste for recovery when the quantity of waste recoverable in the State of dispatch exceeds 20% and is equal or superior to the quantity of waste recoverable in the State of destination. They thereby introduce a subjective element into an assessment which should, under the fifth indent of Article 7(4)(a) of the Regulation, be based exclusively on the objective characteristics of each shipment. In so doing, they perpetuate the Netherlands’ commitment to a principle of self-sufficiency in the context of waste for recovery, contrary to the Court’s judgment in Dusseldorp.

33.As to whether national authorities are permitted to adopt national implementing rules of the kind at issue, the Netherlands Government notes that Article 30 of the Regulation expressly confers a competence upon Member States to take the measures needed to ensure that waste is shipped in accordance with its provisions.

34.The Netherlands Government denies that the criteria contained in chapter 8 of the first part of the MJP-GA II institute a policy of systematic objection. The chapter clearly provides that in all cases, shipments are to be considered individually. The statement in point 3.b of chapter 8 that objections will ‘in principle’ be raised is intended to indicate only that they will ordinarily, rather than always, be raised.

35.The Netherlands Government in any event considers that the criteria are in accordance with the fifth indent of Article 7(4)(a) of the Regulation. They legitimately advance the economic and environmental goals underlying that provision by favouring operations which achieve a higher degree of recovery. In so doing, they serve the objectives of encouraging the recovery of waste which is specified in Article 3(1)(b) of the Directive, and of ensuring a high level of environmental protection, as provided for in Article 174(2) EC.

36.Lastly, the Netherlands Government submits that the criteria specified in chapter 8 of the first part of the MJP-GA II are neutral, applying to both imports and exports of waste for recovery. Those criteria cannot therefore be said to constitute an instance of disguised protectionism.

37.It appears to me at least arguable that Member States may lay down criteria which specify the manner in which they will exercise the element of discretion accorded to them under Article 7(4)(a) of the Regulation.

38.It is true that ordinarily Member States are not permitted to enact national measures in order to give effect to Community regulations. Such measures are unnecessary given the self-implementing character of Community regulations, and carry the obvious risks both of error in the process of transposition and of confusion as to the Community law status of the norms in question.

39.That said, the Court’s case-law confirms that implementing measures are permissible in certain circumstances, in particular where a regulation expressly so provides.

40.It is arguable that the fifth indent of Article 7(4)(a) does confer an element of discretion on the Member States, and that the specification of criteria relating to the exercise of that discretion would promote legal certainty, aid consistency of decision-making, and facilitate the oversight of national policy by the Community institutions. The Court has specifically acknowledged a role for criteria in assessing individual cases under the fifth indent of Article 7(4)(a).

41.Even on the assumption that such national criteria are permissible under the fifth indent of Article 7(4)(a), however, it is clear that they must remain within the scope of that provision. The Court has on several occasions emphasised that the list contained in Article 7(4)(a) is exhaustive in character, and may not therefore be supplemented by the competent authorities in the Member States.

42.I do not consider the criteria specified in chapter 8 of the first part of the MJP-GA II to be consistent with the fifth indent of Article 7(4)(a) of the Regulation.

43.That provision focuses exclusively upon whether the proposed recovery operation is in itself economically and environmentally defensible. In performing such an assessment, three factors are specified: the ratio of recoverable to non-recoverable waste; the estimated value of the materials to be finally recovered; and the cost of the recovery taken together with the cost of the disposal of the non-recoverable fraction. No mention is made of the comparative effectiveness of recovery operations in the State of destination and the State of dispatch.

44.The national criteria at issue appear to me to depart in several respects from the test specified in the fifth indent of Article 7(4)(a).

45.Whilst it might be legitimate in assessing the economic and environmental justifications in support of a shipment to compare the effectiveness of the recovery operation following shipment with that of other operations available elsewhere within the Community, there does not appear to me to be any justification for comparing only the facilities available in the States of destination and dispatch.

46.As the Commission suggests, by focusing on the comparative effectiveness of recovery operations in the States of dispatch and destination, the criteria specified in chapter 8 of the first part of the MJP-GA II appear to preserve a place for considerations of proximity and self-sufficiency in the Netherlands’ policy. An objection is more likely to be raised to a shipment when the waste could be more effectively dealt with in the State of dispatch. It is therefore more probable that waste will be recovered in its country of origin than would be the case if the recovery operation in the State of destination were assessed independently and on its own merits. The Court in Dusseldorp held that, under Community law, considerations of proximity and self-sufficiency are not applicable in respect of shipments of waste for recovery.

47.The national criteria in question also appear to me to be flawed in adopting a measure of effectiveness which is based on only one of the criteria specified in the fifth indent of Article 7(4)(a), namely the ratio of recoverable to non-recoverable waste. As that provision makes clear, it is important also to consider the value of what is recovered and the costs involved in recovery and in disposal of the non-recoverable portion of the waste.

48.I do not consider that it makes any difference to my assessment whether the criteria specified in chapter 8 of the first part of the MJP-GA II are intended to operate systematically or merely to raise a presumption in support of objection. In either case, those criteria introduce into the assessment performed by the competent authority in the Netherlands an element which is not specified in the fifth indent of Article 7(4)(a). They also attach a special importance to only one of the measures of environmental and economic effectiveness specified in that provision.

49.Nor does it appear to me to matter that the criteria operate neutrally in the sense that they are applicable to shipments of waste both into and out of the Netherlands. In either case, they go beyond the grounds of objection exhaustively laid down by Article 7(4).

Conclusion

I am therefore of the opinion that the Court should:

1)declare that the Kingdom of the Netherlands has failed to fulfil its obligations under Article 7(4) of Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community and under Article 1(e) and (f) of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC of 18 March 1991 and Commission Decision 96/350/EC of 24 May 1996;

2)order the Kingdom of the Netherlands to pay the costs.

Original language: English.

OJ 1993 L 30, p. 1.

OJ 1975 L 194, p. 39.

OJ 1991 L 78, p. 32.

OJ 1996 L 135, p. 32.

Case C-228/00 Commission v Germany [2003] ECR I-1439.

Article 2(i) and (k) of the Regulation.

As identified in Annexes III and IV to the Regulation.

Article 6(1) of the Regulation.

The MJP-GA II was introduced in anticipation of the Court's judgment in Case C-203/96 Dusseldorp [1998] ECR I-4075, delivered on 25 June 1998, in which the Court held inter alia that the principles of self-sufficiency and proximity were not applicable to shipments of waste for recovery. The scheme which had previously operated in the Netherlands provided that export of waste was permitted if a superior processing technique existed abroad or if there was insufficient capacity for processing a given type of waste in the Netherlands.

At paragraph 14.

Case C-228/00, cited in note 6.

Paragraphs 34 to 36 of the judgment.

Paragraph 43 of the judgment.

Paragraph 47 of the judgment.

Cited in note 10 above.

See, for example, Case 39/72 Commission v Italy

[1973] ECR 101, paragraph 17 of the judgment.

18See, for example, Case 34/73 Variola [1973] ECR 981, paragraph 11 of the judgment.

20See, for example, Case C-6/00 ASA [2002] ECR I-1961, paragraph 36 of the judgment.

21Cited in note 10 above.