OPINION OF ADVOCATE GENERAL

delivered on 23 November 1995 (*1)

Table of Contents

A — Introduction

B — Analysis

C — Conclusion

A — Introduction

1.This case concerns an appeal against an order of the Court of First Instance dismissing an application by three waste disposal undertakings against the Council. The undertakings are: Buralux SA, Satrod SA and Ourry SA, which are jointly engaged in disposal in France of waste from Germany.

2.For that purpose Buralux, whose registered office is in Luxembourg, concluded contracts in 1989 with various municipalities and districts in Germany for the collection, transport and disposal of domestic waste. These contracts were mostly for five years with the possibility of extension. Ourry's task was to transport, that is, to export, the waste to France where it was stored on a refuse dump operated by Satrod.

3.In August 1992 illegal dumping of hospital waste from Germany, declared as domestic waste, was discovered in France. Thereupon the French Minister for the Environment by Decree No 92-798 of 18 August 1992 prohibited the importation into France of domestic waste. That decree amends and supplements an earlier Decree No 90-267 of 23 March 1990 relating to import, export and transport of noxious waste. The new decree provides for two exceptions only:

(1)Importation of waste is possible if provision therefor is made in a waste management plan.

(2)If there is no such management plan, importation is possible on the basis of an agreement between France and the State wishing to export the waste.

According to the appellants there is no such agreement between France and Germany. Since in addition there are hardly any waste management plans in existence, they state that it may be assumed that importation of waste from Germany is no longer possible, which means that the appellant undertakings are no longer in a position to perform their contracts with German municipalities and districts.

4.On 1 February 1993 the Council issued a regulation on the supervision and control of shipments of waste within, into and out of the European Community. (1) That regulation is based in particular on Article 130s of the EEC Treaty. With regard to the shipment of waste between Member States Article 4(3)(a)(i) of the regulation provides that Member States may prohibit the importation of waste. The wording is as follows:

‘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.’ (2)

5.According to the second paragraph of Article 44 of the regulation, it was to become applicable 15 months after its publication, that is, on 6 May 1994.

6.On 6 April 1993 Buralux SA, Satrod SA and Ourry SA brought an action before the Court of Justice claiming

the annulment of Article 4(3)(a)(i) of Regulation No 259/93, and

an order that the Community pay compensation for damage on the ground of non-contractual liability. The amount of compensation claimed was ECU 22760000 for Buralux, ECU 6676000 for Satrod and ECU 3166000 for Ourry.

The Council contended that the Court should

—declare the claim for annulment inadmissible;

—in the alternative, reject the claim for annulment as unfounded;

—reject the claim for compensation as unfounded.

The application was referred to the Court of First Instance by order of the Court of Justice.

8.By order of 17 May 1994 the Court of First Instance rejected both the appellants' claims as inadmissible. The Court regarded the claim for annulment as inadmissible since the appellants were not individually concerned. In the Court's view the contested provision affects a given category of persons regarded generally and in the abstract. The appellants were therefore concerned only in their objective capacity as undertakings operating in the field of the disposal and transport of waste in the same way as all other undertakings in the same situation. The Court did not express a view as to whether the provision was of direct concern to them. The claim for compensation was also inadmissible as the appellants had not provided either in the application or in the reply any evidence as to the amount of the compensation claimed. That was contrary to Article 38(l)(c) of the Rules of Procedure of the Court of Justice which, like Article 44(1 )(c) of the Rules of Procedure of the Court of First Instance, required that the application should state the subject-matter of the proceedings and a summary of the pleas in law on which the application was based.

9.On 15 July 1994 the appellants lodged an appeal with the Court of Justice. The appellants claim that the Court of Justice should:

quash the order of the Court of First Instance of 17 May 1994 in so far as it declares the application inadmissible with regard both to the annulment sought and to the damages claimed;

—annul Article 4(3)(a)(i) of Council Regulation (EEC) No 259/93 of 1 February 1993;

—declare that the Community has incurred non-contractual liability;

—award by way of damages:

—the sum of ECU 22760000 to Buralux SA,

—the sum of ECU 6676000 to Satrod SA,

—the sum of ECU 3166000 to Ourry SA.

The Council contends that the Court should:

—by order dismiss the appeal, in so far as it concerns the claim for annulment, as clearly inadmissible and, in so far as it concerns the claim for compensation, as clearly inadmissible or clearly unfounded;

—in the alternative, dismiss the appeal as unfounded;

—in the further alternative, reject the claim for annulment and the claim for compensation as unfounded; and

—order all three of the appellant undertakings to pay the costs of the proceedings.

Pursuant to Article 120 of the Rules of Procedure of the Court of Justice, the Court decided to dispense with the oral pan of the proceedings in considering the appeal.

In the appellants' view the order of the Court of First Instance must be quashed because it wrongly assessed the meaning of the regulation at issue and above all of Article 4(3)(a)(i).

Article 4(3)(a)(i) of Regulation No 259/93, they claim, lays down not only the sphere of action of the Member States but also envisages precise measures such as prohibition of the shipment of waste. These had such serious consequences that it was no longer possible for the appellant undertakings to pursue their previous trade, that is to say that because the regulation conferred such far-reaching powers on the Member States, the undertakings' situation was directly threatened.

The provisions of Article 4(3)(a)(i) of Regulation No 259/93 are moreover explicit inasmuch as they affect undertakings engaged in transport of waste. In that respect no distinction is made between hazardous and non-hazardous waste and no conditions are laid down as regards applicability. In the appellants' view the result of all those factors is that the contested provision is of direct and individual concern to them.

According to the appellants' statements they are practically the only undertakings which engage in transport of waste from Germany to France. Elsewhere it is stated more precisely that the appellants are the only undertakings with which German municipalities and districts have concluded agreements. It is therefore possible, they claim, to identify specifically which undertakings are affected by the regulation, which is therefore of individual concern to them, the more so since the regulation is intended to apply to these very undertakings. In their view there can therefore be no doubt that the appellant undertakings are in the same position as recipients of a decision addressed to them.

Regulation No 259/93 is also of direct concern to the appellant undertakings because it was intended only to confirm the prior French provision which, contrary to the Treaty, prohibited importation of waste and which was of direct concern to the appellants.

Above all the appellants object that the Court of First Instance did not go into their arguments in relation to Case 11/82. (3) In that case the Court of Justice accepted the admissibility of the claim for annulment in a comparable situation.

In the Council's view, on the other hand, the Court of First Instance decided correctly. The Council shares that Court's opinion that the contested regulation merely establishes the framework for the measures of the Member States. It could not be of concern to the appellants as the regulation was addressed only to the Member States and not to individual undertakings. For that reason any individual concern is excluded from the outset.

As is clear from the wording, Article 4(3)(a)(i), it is contended, constitutes a general provision having effects for all economic operators, including future operators.

In the Council's opinion there can be no direct concern because a decision of the Member States is needed in order to produce legal effects as regards the appellant undertakings. Only when the Member States had adopted one of the measures available to them, with regard to which they had a wide latitude, could there be effects for individual undertakings.

As regards Case 11/82 (Piraiki-Patraiki), the Council thinks that the Court of First Instance was right not to go into the arguments put forward in this connection. That case-law is not applicable to this case. In Case 11/82 admissibility was accepted only because of a whole series of special features which are not present in this case.

Moreover the Council refutes the appellants' assertion that the contested regulation served only to confer retroactive legitimacy on the French legislation, which is alleged to be contrary to the Treaty. The regulation at issue was proposed by the President of the Council, with the Commission's agreement, in view of the judgment in Case C-2/90, delivered on 9 July 1992. (4) The intention was to give the Member States the opportunity to adopt measures, inter alia on grounds of protection of the environment, to restrict waste imports.

The point of departure for considering the admissibility of the application must be the second paragraph of Article 173 of the EEC Treaty, which provides:

‘Any natural or legal person may, under the same conditions, institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former.’

That means that even in the case of a regulation — as here — it may be contested by persons to whom the regulation is of direct and individual concern.

With a decision in the usual form no difficulties arise, as it names the persons to whom it is addressed. The position is more difficult in the case of a regulation, which is drafted in general and abstract terms. The appellants claim that the provision in question is of individual concern to them because it is intended to apply to the undertakings operating in the field of transfrontier shipments of waste. As the appellants are almost the only ones operating in that field, the regulation, they claim, is therefore intended to affect them above all. They are also quite particularly concerned because the provision at issue has especially severe consequences for them, namely the cessation of their previous activity.

According to the consistent case-law of the Court of Justice, for the appellants to be individually concerned it is not sufficient that their interests are adversely affected, that it is possible to identify them by number or name and that they are the only ones to whom the contested provision is applicable, provided that the measure, according to its purpose, is applicable to the appellants by virtue of an objective legal or factual situation which it defines. That is to say that, even though the contested regulation applies to the appellants, that does not mean that they are individually concerned, above all if they are concerned only in their general capacity as importers.

But according to the Council that is precisely the position here. The appellants are no more concerned than any other economic operator who takes up activity in this field or would like to do so. In that respect it cannot be assumed, either, that the regulation is intended to apply to a given group of persons. Moreover it is addressed to all Member States, which means that firms in other Member States may be concerned in the same way.

As the Court has consistently held, the regulation must affect the appellants by reason of certain personal attributes or special circumstances in which they are differentiated from all other persons and which therefore distinguish them individually just as in the case of the person addressed, before it can be regarded as being of individual concern to them.

In the appellants' opinion it is above all the continuing contracts with German municipalities and districts which differentiate them from all other undertakings — a criterion which they say was recognized in Case 11/82 (Piraiki-Patraiki).

The basis of that action was Article 130(1) of the Act of Accession of the Hellenic Republic, which provides that a Member State may apply for authorization to take protective measures with regard to Greece. France did so, and was thereupon authorized by the Commission to restrict imports of cotton yarn from Greece for a given period. However, there were Greek undertakings which had concluded with French customers, for precisely that period, contracts which they were no longer able to fulfil. The question in that case was whether the Commission decision was of individual concern to the undertakings in question.

The Court declared in that connection that it was not sufficient that the undertakings in question were the main cotton exporters. Ultimately, however, the Court concluded that the decision was of individual concern, above all because the Commission was obliged to take into account in its decision precisely what effects the protective measures which it authorized would have in Greece. That is to say, the Commission took its decision having regard to the Greek undertakings and with knowledge of the contracts already concluded.

It is doubtful whether the case-law in the Piraiki-Patraiki case can be applied directly to the case now before us. There it was a question of protective measures against a single Member State, whereas here the regulation is addressed to all Member States and the measures envisaged may be adopted against all Member States. Moreover the Commission then had the obligation to take into account the effects of its decision on the economy of the Member State in question. Here the Council is laying down only the general framework for measures of the Member States. It is true that the original situation here is similar inasmuch as undertakings from Luxembourg have concluded contracts almost all of which were still valid when the regulation became applicable and could then no longer be fulfilled. Nevertheless it seems to me that in view of the special situation mentioned above, there was no compelling reason to apply to this case the case-law in Piraiki-Patraiki.

I should therefore like to refer in addition to the judgment in the Extramet case. That case, it is true, concerned an antidumping regulation, but the Court expressly indicated that irrespective of all criteria laid down for the existence of individual concern in antidumping proceedings, an applicant may still be individually concerned if his business activities depend to a very large extent on imports and he is seriously affected by the contested regulation. It was mentioned as a further criterion that the appellant was the largest importer of the product in question.

On the basis of these criteria it may very well be assumed that in this case the appellants by reason of special personal circumstances are differentiated from all other persons concerned. Buralux, together with its partners, is the largest importer, at least in the France/Germany area, and as it cannot fulfil its continuing contracts it is affected especially seriously by the regulation and the import prohibition envisaged therein. These contracts are almost all valid beyond the date on which the regulation was to become applicable. In my view it may therefore be stated that in this case it is of individual concern to the appellants.

As a further argument the appellants claim that it must be possible for economic operators to protect their legitimate interests when their market position is substantially affected. In this connection they refer to the Court's decision in Case 169/84. That case concerned a regulation providing procedural guarantees for undertakings entitling them to request the Commission to find an infringement of Community rules. The Court decided that in that connection they must be able to institute proceedings in order to protect their legitimate interests.

In the case now before the Court, however, the undertakings were provided with no guarantees on the basis of which they might later bring proceedings. These considerations do not therefore make it possible to allow the appellants an opportunity to take proceedings under Article 173, particularly as they are not thereby deprived of all legal protection. The Council also refers to the fact that the appellants have the opportunity to bring an action before national courts and to have the compatibility of the contested provision with Community law clarified in the context of a reference for a preliminary ruling under Article 177 of the EC Treaty.

Further, the appellants make lengthy comments with regard to the general tendency to extend legal remedies (the Parliament's legal remedy) and to the fact that a reference for a preliminary ruling under Article 177 of the EC Treaty must contain statements with regard to the factual background to the dispute. However, that cannot be relevant to the question at issue here as it is the wording of Article 173 of the EEC Treaty which is decisive for the remedy in the context of the claim for annulment. The interpretation of that wording and the circumstances in which it permits individuals to take action have already been discussed in detail.

I therefore come to the conclusion that the contested regulation is of individual concern to the appellants.

In the appellants' view Article 4(3)(a)(i) of Regulation No 259/93 is also of direct concern to them as the text of the contested provision mentions no conditions for the adoption of these stringent measures. The Member States may simply, and without having to fulfil preconditions of any kind, entirely prohibit the importation of waste. It is not even necessary to make a distinction between hazardous and non-hazardous waste. As the provision at issue puts no obstacles in the way of the Member States' prohibiting the importation of waste, they would not hesitate to take advantage of the opportunity. In that respect too the appellant undertakings are directly concerned.

The appellants also consider the provisions of the second paragraph of Article 44 of the regulation, according to which it was to become applicable only 15 months after publication, that is, on 6 May 1994. They state that as soon as the regulation entered into force in February 1993 it had immediate consequences for the appellant undertakings. Since then the German municipalities had turned for waste disposal no longer to France but to third countries.

The Council observes that it is impossible to speak of direct concern unless the provision at issue affects the appellants' situation automatically and without the need for any further decision. That is not the case here. The contested provision of the regulation takes effect against undertakings only when the Member State concerned makes use of the opportunity afforded it, and in that connection it must be added that a very wide margin of discretion is allowed the Member States. The Council thinks that there can therefore be no question of the appellants' being directly concerned.

Further, the appellants make lengthy comments with regard to the general tendency to extend legal remedies (the Parliament's legal remedy) and to the fact that a reference for a preliminary ruling under Article 177 of the EC Treaty must contain statements with regard to the factual background to the dispute. However, that cannot be relevant to the question at issue here as it is the wording of Article 173 of the EEC Treaty which is decisive for the remedy in the context of the claim for annulment. The interpretation of that wording and the circumstances in which it permits individuals to take action have already been discussed in detail.

In its order the Court of First Instance expressly refrained from considering whether the appellants were directly concerned, stating that it was no longer necessary to do so since it had been decided that they were not individually concerned. However, I shall consider this point also in my Opinion.

42.First of all the question arises whether the provision at issue was already of concern to the appellants at the time of the application in April 1993 so that they had an interest in taking proceedings even though the regulation became applicable only on 6 May 1994. As the regulation entered into force in February 1993 it must have been possible at that time for the appellants to take action against it, but on condition that it was of direct concern to them. That was the position if in May 1994 the regulation automatically — that is, without the need for a further decision, — became applicable in such a way as to be of direct concern to the appellants. But therein lies the doubt. In response to the appellants' argument that the regulation has been directly affecting their situation ever since it came into force, it must be observed that it was the French measure which basically prohibited the importation of waste and thus compelled the German municipalities to seek other States for export, and that dates not just from the entry into force of the contested regulation but from as far back as 18 August 1992, the date on which the French rules came into force.

43.According to the wording of Article 4(3)(a)(i) it is in the last resort the Member States which decide whether to adopt measures, and which measures, ‘to prohibit generally or partially ... shipments of waste’. Even if the contested regulation were to be declared void by the Court of Justice, that would have had no immediate effect on the appellants' situation. The French legislation prohibiting importation as from 1992 would still remain in force.

44.It is true that the appellants claim that the only purpose of the regulation was to make the French legislation lawful ex post facto. That can only be a matter of supposition. But even then they could not be considered to be directly concerned. Certainly the Court of Justice accepted that there was direct concern when the national authorities had previously announced that they would take certain decisions as soon as the Community institutions had provided the requisite authorization. In that case, however, it was a decision in an individual case requested by the Member State. The position is different here. This is a regulation which is addressed to all Member States and not only to France. Above all, however, the French rules preceded the issue of the regulation and had adverse effects for the appellants even before the regulation became applicable. That is to say, France did not await the adoption of the regulation before taking action. It follows that the regulation cannot be of direct concern to the appellants.

45.The claim for annulment is accordingly inadmissible.

46.According to Article 178 in conjunction with the second paragraph of Article 215 of the EC Treaty the Court of Justice has jurisdiction relating to compensation for damage caused by Community institutions, that is, in this case, the Council.

47.The Court of First Instance rejected this claim also as inadmissible as neither the application nor the reply gave any particulars of the amount of damages claimed, which it stated was contrary to Article 38(1 )(c) of the Rules of Procedure of the Court of Justice or to Article 44(l)(c) of the Rules of Procedure of the Court of First Instance, as the case might be, which required the application to state the subject-matter of the proceedings and a summary of the pleas in law on which the application was based.

48.The appellants claim on the other hand that they are entitled to compensation for the damage caused to them by the Council's action. That is possible even when the compensation cannot yet be quantified (when the damage is imminent and can be foreseen with sufficient certainty). In the opinion of Buralux, Satrod and Ourry, that was the position in this case. Moreover, they now claim, the amount of the damage may easily be quantified on the basis of all the accounts produced by the appellants. The amount thereof makes it possible to determine the previous turnover of Buralux and its partners, which is now reduced to nothing. The appellants had calculated the damage according to those figures.

49.In the Council's view the documentary evidence produced by the appellants is not sufficient to quantify the level of damage. The determination of the turnover on the basis of the accounts is only one factor amongst several (though no doubt an important one). In any case, it contends, it is obvious that the turnover could never be equal to the damage suffered. None of the documents produced by the appellants contains data on the basis of which it would be possible to estimate the level of damage. Only contracts and accounts were produced, but no indications as to the period of calculation which had been taken as the basis or what method of calculation had been used in order to determine the amounts claimed. In this connection the Council points out once more that the regulation has been applicable only since 1994.

50.Since in the context of the appeal procedure the findings of the Court of First Instance on matters of fact are conclusive, it may be accepted that, apart from some accounts and contracts, the appellants did not produce anything from which any damage might have been calculated.

51.No further discussion is needed to make it clear that a few accounts with no indication of any period or method of calculation are not enough to make it possible to quantify any damage sustained. Even if it were possible to determine the undertakings' turnover on the basis of such accounts, further detailed statements from the appellants would have been needed to demonstrate that the turnover no longer available corresponded to the level of the damage sustained.

52.When the appellants point out that it is also possible to put forward a claim for compensation without first quantifying damage, it must be said that this is not such a case. In certain quite specific cases applicants are not expected to delay their claim for compensation until it is possible to quantify the damage, but that is not the position here. In principle it was possible to quantify the damage. The appellants have in each case quoted exact figures, but what they have not done is to produce a detailed calculation of the damage. It is therefore not only impossible to determine whether damage of the amount quoted was actually sustained; because of the missing particulars from the appellants it is not even possible to quantify any damage at all. On that ground the claim of noncontractual liability on the part of the Council must also be regarded as inadmissible.

53.It is therefore established that the Court of First Instance rightly rejected both claims as inadmissible and thus the appellants' appeal cannot succeed.

54.In the Council's view the appeal relating to the claim for annulment should be dismissed under Article 119 of the Rules of Procedure of the Court of Justice as clearly inadmissible because the claim for annulment itself is clearly inadmissible. With regard to the claim for compensation the appeal should be dismissed under Article 119 of the Rules of Procedure as clearly inadmissible or clearly unfounded because that claim is clearly inadmissible or clearly unfounded. In the alternative the appeal should be dismissed as unfounded.

55.That calls for the following comments: If the claim for annulment were, as the Council submits, clearly inadmissible, then the appeal relating thereto would have to be dismissed as clearly unfounded and not as clearly inadmissible. An appeal is inadmissible if the appellants were from the outset not entitled to bring an appeal (for example if the period for lodging an appeal had already run out). However, the Council has not made any observations on that subject. Nor is the appeal inadmissible here; it was only the claims at first instance which were inadmissible, but that means that the appeal was unfounded.

56.For the same reasons it is hard to see why the appeal with regard to compensation for non-contractual liability should be dismissed as clearly inadmissible.

57.In principle my view is that it would be inappropriate here to proceed under Article 119 of the Rules of Procedure of the Court of Justice. The claims in the proceedings at first instance are not clearly inadmissible. As may be seen, prolonged examination is necessary, relating in particular to Case 11/82 (Piraiki-Patraiki) and Case 358/89 (Extramet), to establish inadmissibility.

58.In addition the considerations which the Council has put forward in the alternative with regard to the substance of the appeal do not seem to me to be very precisely formulated. The Council refers first to Article 51 of the Statute of the Court of Justice of the EC, which provides that an appeal shall lie only on the grounds of lack of competence of the Court of First Instance, a breach of procedure or the infringement of Community law by that Court. In the Council's view it is not clear from the appeal which the appellants are referring to. It believes, however, that the appellant undertakings wish to object only to an infringement of Community law by the Court of First Instance. If that is the case, the Council continues, it appears from the considerations it has previously put forward that the appellants' observations with regard to the admissibility of the application are unfounded. For that reason the appeal must in the alternative be dismissed as unfounded. That seems to imply — as questions of procedure and competence are not at issue and since it is already established that the appellants' observations with regard to admissibility are unfounded — that the appeal should be dismissed as unfounded.

59.In conclusion, the appeal is dismissed as unfounded.

If the Council's ideas on this point are actually to be interpreted in that way, it seems to me that its views should be accepted and the appeal be dismissed as unfounded (though not in the alternative since, as I have shown in points 55 and 56, the appeal cannot be dismissed as inadmissible).

In case the Court of Justice does not agree with my proposal and regards the claims as admissible, my views on the substance of the claims will be as follows.

In its response to the appeal, except for a few observations with regard to the substance of the claim for compensation (it is true, in the context of consideration of the admissibility), the Council puts forward observations on the substance only in the alternative in case the Court takes the view that the claims at first instance were admissible.

The Council's view is that in that case the Court of Justice should not refer the case back to the Court of First Instance but should itself give judgment in pursuance of Article 54 of the Statute of the Court of Justice. The content of the pleadings submitted provides a sufficient basis for a decision. The Council makes no further representations with regard to the substance of the claim for compensation. It merely refers to its pleadings submitted to the Court of First Instance, which contain detailed comments with regard to the substance. From them it may be seen, the Council states, that the claim for compensation is clearly inadmissible or clearly unfounded. It appears from its second alternative submission, however, that it regards both claims as unfounded.

The appellants, who regard the claims as well founded, have also expressed the view that the Court of Justice should not refer the matter back to the Court of First Instance. My own view is that if a decision should become necessary in the matter the Court of Justice should itself give final judgment.

As regards the substance of the claim for annulment, the appellants put forward several pleas in law.

In claiming that the contested regulation is void for lack of a sufficient statement of the reasons on which it is based, the appellants are claiming the infringement of essential procedural requirements, one of which is contained in Article 190 of the EC Treaty, which requires that regulations, directives and decisions state the reasons on which they are based. In the appellants' view the statement of reasons in the case of Regulation No 259/93 is insufficient as it contains inconsistencies. On the one hand reference is made to the fact that transfrontier shipments of waste must be governed by Community rules in order to make adequate control possible. On the other hand, however, the power of the Member States is greatly strengthened when they are provided with the opportunity to prohibit shipments of waste in quite general terms.

The Council thinks that there is no such inconsistency as asserted by the appellants. In the tenth recital in the preamble to the regulation it is envisaged that the Member States should be able to prohibit shipments of waste in order to implement the principle of self-sufficiency.

However, the fact that both aims are given in the recitals to the regulation does not guarantee that the recitals do not pursue contrary aims. But even within the recitals I cannot find any inconsistency. Even though the Member States are enabled to prohibit imports of waste entirely, care must be taken to ensure that such prohibition is possible only ‘in accordance with the Treaty’. That is to say that as regards the structure of the rules, the Member States are not entirely free. It is the Council's objective to achieve self-sufficiency in waste disposal through a network of waste disposal installations. (12) Control of waste shipment throughout the Community is not inconsistent with that. Until self-sufficiency in disposal is achieved and every Member State is in a position to dispose within the country of the waste which it produces itself, there will be transfrontier transport of waste which must, in order to attain the highest possible level of protection for the environment and human health, be placed under the control of Community rules. It follows from these considerations that the statement of the reasons on which the regulation is based is sufficient and not inconsistent.

In this connection the appellants state that waste is to be regarded as goods (even though with negative value). For that reason the provisions of the Treaty with regard to free movement of goods must be applicable even for waste, but they are infringed if the Member States are now able by a unilateral decision to close their frontiers to waste from neighbouring States. It was not permissible, in order to implement the principles of proximity and self-sufficiency in waste disposal, to adopt measures incompatible with the Treaty.

In its observations the Council points out that in the judgment in Case C-2/90, (13) to which the appellants refer, the Court of Justice also stated that waste constituted matter of a special kind which might justify restrictions on freedom of movement of goods. Moreover the contested regulation was not contrary to the Treaty since it required the measures adopted by the Member States to be in accordance with the Treaty.

As may be seen from the judgment in Case C-2/90, cited both by the appellants and by the Council, waste is to be regarded as goods and the provisions with regard to free movement of goods are therefore applicable also to waste. (14) However, Article 4(3)(a)(i) of Regulation No 259/93, which is at issue here, merely allows the Member States to restrict shipments of waste ‘in accordance with the Treaty’. It follows that infringement of the Treaty by reason of the contested regulation is impossible.

Moreover the EC Treaty itself envisages restrictions on the free movement of goods. Thus the Court of Justice expressly decided in Case C-2/90 that restrictions on free movement of waste were justified by imperative requirements of environmental protection. Although in that case the measures were intended only against waste from other Member States, the Court's view is that there is no discrimination. As the principle that environmental damage should where possible be remedied at source means that waste is to be regarded differently according to its place of origin, there is no discrimination if the measures are directed against waste from other Member States, which is therefore not being eliminated at its place of origin. (15) The contested regulation does not therefore constitute an infringement of the Treaty.

The appellants claim that by the contested regulation the Council has infringed the principle of proportionality. The disadvantages arising for the appellant undertakings (bankruptcy) are disproportionately high and would exceed the normal risks run by economic operators. In their view the Council might have provided for a less severe measure, for instance prior notification of planned shipments.

The Council points out that the regulation at issue constitutes only a supplement to the existing extensive provisions in the field of waste disposal. Moreover it did everything necessary to ensure that the measure was not disproportionate. The French Government, not the Council, is responsible for the damage which has occurred in this case.

In an examination of proportionality a distinction must be drawn between the appropriateness of and the necessity for the contested measure. The appropriateness is not at issue here between any of the parties. The position is different with regard to the necessity. Here the appellants claim that the Council could have provided for a less severe measure, namely the prior notification of shipments planned. However, such a measure would not be appropriate for attaining the objective of self-sufficiency in waste disposal. Shipment would continue as before.

In answer to the appellants' argument that as a result of the contested regulation they suffered damage to an extent exceeding normal risks run by economic operators, the Council correctly points out that such disproportionality is to be ascribed to the French rules. The provision at issue in this case simply provides that the Member States may take measures to prohibit generally or partially shipments of waste. That is to say, the Member States have various courses open to them. The decision as to the measures they adopt is therefore a matter for the Member States, just as it is for them to assess the consequences in the context of the principle of proportionality. They are moreover obliged to lay down their measures in accordance with the Treaty. It is therefore not possible to adopt a disproportionate measure under Article 4(3)(a)(i). Finally I should like to point out that the regulation did not become applicable until 15 months after it entered into force and therefore gave the undertakings concerned the opportunity to adapt themselves to the changed circumstances. It is not therefore possible to find any disproportionality in the contested regulation.

In this connection the appellants claim that a citizen must be able to rely on the Community not to adopt any measures in contravention of freedom of movement of goods. It must also be possible to rely on the European Community not to change its position in the field of the environment.

In this connection the appellants claim that a citizen must be able to rely on the Community not to adopt any measures in contravention of freedom of movement of goods. It must also be possible to rely on the European Community not to change its position in the field of the environment.

The Council pointed out, on the other hand, that the regulation at issue was not yet applicable and gave those concerned sufficient time (15 months) to adapt themselves to the altered circumstances.

78.With regard to the appellants' argument it must be said, first, that, as previously indicated, the Community has not adopted any measure contrary to the free movement of goods. Apart from the adequate period of adjustment, to which the Council also has referred, there is another fact to be mentioned here. In Article 5(1) of Directive 75/442/EEC of 15 July 1975 on waste, in the 1991 version, (16) self-sufficiency in waste was set as the objective to be achieved. That means that from then on it had to be expected that transfrontier shipments of waste would be increasingly restricted and that waste would increasingly be disposed of at its place of origin. For these reasons the appellants cannot claim that they had a legitimate expectation that the Community would not change its position in the environmental field and that imports of waste would continue to be possible. First of all, it was not, as I have just shown, only in 1993 that the Community changed its position in the environmental field, and secondly the appellants could not rely on waste shipments continuing to be possible to the same extent as before. The appellants therefore have no legitimate expectation to protect.

79.Very little of the appellants' claims in this connection really concerns the concept of misuse of powers. Such misuse occurs when the action is taken for purposes other than those specified, that is, when the action pursues a subjectively illegal objective.

80.Regarded in the light of that definition the appellants' only relevant submission is the one which aims to prove that by the contested regulation the Council wished only to serve the interests of one Member State, namely France, and to confer legitimacy ex post facto on its illegal decree instead of introducing general rules with regard to waste disposal.

81.The Council points out that the rules were suggested by the President of the Council in agreement with the Commission in order to ensure, against the background of the judgment in Case C-2/90, that the Member States were enabled to adopt, on grounds of protection of the environment, measures restricting free movement of goods. Moreover, the Council continues, the measure was addressed to all Member States and could not therefore in any event have the effect of confirming a national measure retroactively.

82.The Council's view must be upheld, particularly as the appellants only conjecture that by the contested rules the Council merely wished to confer legality on the French rules previously adopted. Such retroactive legitimation would in any case be impossible. A regulation cannot confer legality on a national provision already adopted for the period before it was issued. That is the period at issue in this case, since the negative effects for the appellants arose from the French import prohibition, which was imposed as early as 1992. There is therefore no misuse of powers.

83.The appellants claim that when the contested regulation was issued the principle of subsidiarity was not observed, that is, that account was not taken either of all criteria for protection of the environment or of the situation in the Member States when the decision was taken as to whether the rules could best be adopted at national level or at Community level.

84.The Council contends on the other hand that that can presumably only mean the principle of subsidiarity in Article 130r(4) of the Treaty. However, that does not constitute a superior rule of law for the protection of the individual within the meaning of the case-law of the Court of Justice.

85.If we look rather more closely at the appellants' submission here, we notice that the appellants do not actually allege an infringement of the principle of subsidiarity but rather only assert it without producing any evidence. In submitting that when the regulation was issued no consideration was given to the question of whether such rules might best be adopted at national or Community level, the appellants are making a mere assertion. No evidence of any kind is provided. Nor do the appellants claim that the rules would have been better adopted at national level; on the contrary, they indicate on several occasions that too much power should not be given to the Member States in relation to the restriction of shipments of waste. That means that the appellants' opinion is that this matter should be dealt with at Community level. But that is precisely what the Council has provided for. Even though the Member States are allowed a certain margin of manoeuvre here, it is nevertheless a Community regulation. It was issued by the Community, is addressed to all Member States, makes uniform rules and imposes the same requirements on all Member States. Moreover the measures adopted by the Member States must be in conformity with the Treaty. There is therefore no doubt that the sphere of waste shipments is regulated at Community level. When the appellants claim that excessive powers have been conceded to the Member States, that should in any event be examined under the heading of infringement of the Treaty, which has already been done. Infringement of the principle of subsidiarity is therefore not proved in any case.

86.It may be seen from the foregoing considerations that the claim for annulment under Article 173 of the EC Treaty is unfounded.

87.As it has not been possible to prove any illegal conduct on the Council's part in adopting the contested regulation, the claim for compensation too is unfounded. The claim is also unfounded in so far as it is not possible to see any causal connection between the adoption of the regulation and the damage which the appellants have undoubtedly suffered. (Moreover that corresponds to the Council's submission.)

Costs

88.Under the first paragraph of Article 122 of the Rules of Procedure of the Court of Justice, where an appeal is dismissed the Court is to make a decision as to costs. As that is the position here a decision must be made as to costs. Under Article 118 of the Rules of Procedure, the first subparagraph of Article 69(2) of those Rules is to be applied to the procedure on appeal. The first subparagraph of Article 69(2) provides that the unsuccessful party is to be ordered to pay the costs. As the appellants' appeal must be dismissed, they must be ordered to pay the costs.

I therefore propose that:

(1)the appeal should be dismissed as unfounded;

(2)the appellants should be ordered to pay the costs.

*1 Original language: German.

1 Council Regulation (EEC) No 259/93 of 1 February 1993 (OJ 1993 L 30, p. 1).

2 Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 47), which was amended by Directive 91/156/EEC (OJ 1991 L 78, p. 32).

3 The judgment in Case 11/82 Piraiki-Patraiki v Commission [1985] ECR 207.

4 Commission v Belgium [1992] ECR I-4431.

5 Judgments in Case 26/86 Deutz und Geldermann [1987] ECR 941 at p. 951, paragraph 8; in Case 147/83 Binderer [1985] ECR 257 at p. 271, paragraph 13; in Case 307/81 Alumisse [1982] ECR 3463 at p. 3472 et seq., paragraph 11; in Case 242/81 Roquette Frères [1982] ECR 3213 at p. 3230, paragraph 7; in Case 231/82 Spijker [1983] ECR 2559 at p. 2566, paragraph 9 et seq..

C-309/89 Codomiu [1994] ECR I-1853 at p. 1885 et seq., paragraph 18 et seq.

Judgments in Case 11/82, paragraph 11; Case 231/82, paragraph 8; Case C-25/62 Plaumann [1963] ECR 95 at p. 107; Case 26/86, paragraph 9; and Case C-309/89, paragraph 20.

Case 11/82, previously cited, see footnote 3.

Case C-358/89 Extrámét Industrie [1991] ECR I-2501.

Case C-358/89, paragraphs 16 and 17.

Cofaz v Commission [1986] ECR 391 at p. 414, paragraph 23.

Judgment in Case C-62/70 Bock v Commission [1971] ECR 897 at p. 908, paragraphs 7 and 8.

Seventh recital to Regulation No 259/93.

— Cited in footnote 4; paragraphs 30 and 32.

Casc C-2/90, paragraph 28.

Case C-2/90, paragraphs 30, 32, 34 and 36.

OJ 1975 L 194, p. 47. The directive was amended by Directive 91/156/EEC of 18 March 1991 (OJ 1991 L 78, p. 32).