C-172/82

In Case 172/82

R E F E R E N C E t o the C o u r t u n d e r Article 177 of the E E C T r e a t y by the T r i b u n a l de G r a n d e Instance [Regional C o u r t ] , Versailles, for a preliminary ruling in the action p e n d i n g before that c o u r t between

SYNDICAT N A T I O N A L DES FABRICANTS RAFFINEURS D ' H U I L E DE GRAISSAGE AND OTHERS

and

G R O U P E M E N T D ' I N T É R Ê T É C O N O M I Q U E " I N T E R - H U I L E S " AND O T H E R S ,

FABRICANTS RAFFINEURS D-HUILE DE GRAISSAGE v INTER-HUILES

Facts and issues

I — Facts and p r o c e d u r e products offered to them by holders, where appropriate in the zone assigned to them by the competent authorities". The disposal of waste oils is the subject of Council Directive 75/439/EEC of 16 The French Republic implemented the June 1975 (Official Journal 1975, L 194, directive in Decree No 79-981 of 21 p. 23). November 1979 "laying down rules for the recovery of waste oils" (Journal Officiel de la République Française of 23 The directive provides that Member November 1979, p. 2900), and further by States must take the necessary measures the Order of 21 November 1979 on the to ensure the safe collection and disposal "conditions for the collection of waste of waste oils, preferably by recycling oils in pursuance of Decree No 79-981 (Articles 2 to 4). Article 5 of the directive of 21 November 1979 laying down rules provides that "where the aims defined in for the recovery of waste oils" (Journal Articles 2, 3 and 4 cannot otherwise be Officiel de la République Française of 23 achieved, Member States shall take the November 1979, p. 2901) and by the necessary measures to ensure that one or Order of 21 November 1979 on the more undertakings carry out the "conditions for the disposal of waste oils collection and/or disposal of the in pursuance of Decree N o 79-981 of

JUDGMENT OF 10. 3. 1983 — CASE 172/82

Before the national court Inter-Huiles submitted, in particular, that application In order to ensure that all waste oils are of the French national legislation collected the whole country is constituted a measure having an effect partitioned into geographical zones equivalent to quantitative restrictions on (generally the départements), in each of exports and imports contrary to Article which an approved collector has been 30 of the EEC Treaty and, moreover, appointed by the Minister for the was not justified under the derogations Environment on the basis of an invitation permitted by Article 36 of the Treaty. In to tender and the opinion of an inter- consequence, the Tribunal de Grande departmental committee of approval; Instance, Versailles, decided by judgment of 9 June 1982 to stay the proceedings and to refer the following question to The approved collector is responsible for the Court of Justice for a preliminary the collection of all waste oils produced ruling: in the zone for which the approval has been granted; "Is the fact that collectors of waste oils may not lawfully deliver them to a The disposal of waste oils is likewise disposal or regenerating undertaking of a subject to an approval issued by the Member State of the EEC because of the Minister for the Environment. restrictions imposed upon them by Decree N o 79-981 of 21 November 1979 compatible with the provisions of Articles 30 and 34 of the Treaty establishing the The Syndicat National des Fabricants European Communities, which prohibit Raffineurs d'Huile de Graissage, quantitative restrictions on exports and together with 13 other plaintiffs, brought all measures having an equivalent an action before the Tribunal de Grande effect?"

In accordance with Article 20 of the Protocol on the Statute of the Court of II — S u m m a r y of the obser- Justice of the EEC written observations vations submitted to t h e were lodged by the Syndicat National Court des Fabricants Raffineurs d'Huile de Graissage and Others, represented by J. F. Renaud and A. Desmazières de Séchelles of the Paris Bar; by the The Syndicat National des Fabricants Groupement d'Intérêt Économique Raffineurs d'Huile de Graissage "Inter-Huiles" and Others, represented suggests, by way of a preliminary obser- by J. Thréard of the Paris Bar; by vation, that the Court should consider the Commission of the European the admissibility of the reference. It Communities, represented by its Legal submits that the reference was made on Adviser, R. Wägenbaur; and by the the basis of a memorandum, produced French Government, represented by by the co-defendants, addressed to the J. P. Costes of the General Secretariat of President of the European Parliament by the Comité Interministériel pour les the Directorate General of Research and Questions de Co-opération Économique Documentation of that institution, Européenne [Inter-departmental Com- concerning the appropriateness of a mittee for Questions on European question to be submitted to the Economie Cooperation]. Commission with the intention of raising doubts as to the validity of the legislation of a Member State and prompting the Commission to initiate against that State Upon hearing the report of the Judge- the procedure provided for under Anicie Rapporteur and the views of the 169 of the Treaty of Rome. In view of Advocate General, the Court decided to that fact in particular, and in the light of open the oral procedure without any the circumstances of the case the preparatory inquiry and to assign the reference for a preliminary ruling has the case to the Third Chamber. However, it same purpose as an action against the requested the French Government to Commission for failure to act in refusing reply in writing to the following two to initiate the above-mentioned pro- questions before 25 November 1982: cedure against the Member State, and as such is inadmissible.

accordance with Article 3 of Decree No 2. French waste oils are exported to the 79-981. In any event, the alleged Federal Republic of Germany where restrictions should be examined not in they are regenerated or burnt, relation to Article 30 et seq. of the EEC whereas the collection of German Treaty, but in the context of Council waste oils is subsidized by the State; Directive 75/439/EEC, which provided for the harmonization of legislation with regard to the disposal of waste oils. The plaintiffs maintain that the French legislation is lawful in the context of that directive. The national provisions have 3. The approved French regenerating the same fundamental objectives as the undertakings, who are not subsidized, Community directive, namely the have insufficient raw material to carry protection of the environment and the out the task which is entrusted to recycling of waste oils. Furthermore, them in a manner which is profitable the requirement of not obstructing and in conformity with the clauses Community trade is only a secondary and conditions which are imposed on objective which may be subordinated to them. The operation and the aims of the achievement of others and the the energy policy of a Member State restrictions challenged by the defendants are being jeopardized; are among the possibilities envisaged by the directive and, more specifically, by Article 5 thereof.

4. In addition, the approved French collectors, who are not subsidized, are As regards the conformity of the French unable to carry out their task of provisions with Articles 85 and 90 of the collecting all waste oils in a manner Treaty of Rome, the plaintiffs refer to which is profitable. As a result, some the reply given by the Commission of the waste oils are not collected, to the European Communities to a question put detriment of the French environment. by Mr Galland, a Member of the European Parliament (Official Journal 1981, C 205, p. 10).

or suppress intra-Community trade in for the implementation of Directive waste oils and that, on the contrary, the 75/439/EEC establishes a comparable seventh recital in the preamble thereto system and restricts trade within the envisages the introduction of a system Community to šuch an extent as the which does not create barriers to intra- French system. The aims of the directive, Community trade or affect competition. and those of the protection of the health Furthermore, Inter-Huiles maintains that and life of humans, animals and plants Article 36 of the EEC Treaty may not be referred to in Article 36 of the EEC relied upon in this case, because the Treaty may equally well be attained if requirements of the protection of public waste oils may be delivered to a disposal health and the environment are satisfied undertaking of another Member State if, in accordance with Directive 75/439/ which has obtained, in that Member EEC, all the disposal undertakings State, the authorization provided for by within the European Economic Com- Article 6 of Directive 75/439/EEC. munity are required to obtain an authorization and are therefore subject to control.

JUDGMENT OF 10. 3. 1983 — CASE 172/82

1. As regards the collection of waste oils the holders, if they choose to transport their used oils themselves, or The Italian Government, represented by the approved collectors are required the Avvocato dello Stato, P. G. Ferri, to deliver those oils to approved intervened in the oral procedure in order disposal undertakings in accordance to affirm that the effect of Articles 5 and with the procedure laid down in 7 of the directive is to restrict the Article 8 of the Decree of 21 collection of waste oils to approved November 1979; undertakings.

FABRICANTS RAFFINEURS D'HUILE DE GRAISSAGE v INTER-HUILES

In reply to the question which was put to main action submitted their observations it in the course of the hearing, the in connection with that reply on 6 Commission communicated to the Court January 1983. on 22 December 1982 a summary of Member States' legislation on waste oils The Advocate General delivered her and an outline of trade patterns between opinion at the sitting of 10 February Member States. The plaintiffs in the 1983.

Decision

1 By judgment of 9 June 1982, which was received at the Court on 25 June 1982, the Tribunal de Grande Instance [Regional Court], Versailles, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Articles 30 and 34 of the Treaty in order to enable it to assess the compatibility with the Treaty of French Decree N o 79-981 of 21 November 1979, laying down rules for the recovery of waste oils (Journal Officiel de la République Française of 23 November 1979, p. 2900), and the orders implementing it.

5 To that extent, it is established that the French legislation prohibits, by implication, the export of waste oils to foreign countries, including other Member States of the Community. Thus no provision is made for a dero- gation permitting re-sale to disposal undertakings of other Member States who have obtained the authorization envisaged by Article 6 of Directive 75/439/EEC.

6 The Groupement d'Intérêt Économique· "Inter-Huiles" submitted before the national court that the French legislation was -incompatible with the Community rules on the free movement of goods. Accordingly, the Tribunal de Grande Instance, Versailles, stayed the proceedings and referred the following question to the Court of Justice for a preliminary ruling:

"Is the fact that collectors of waste oils may not lawfully deliver them to a disposal or regenerating undertaking of a Member State of the EEC because of the restrictions imposed on them by Decree N o 79-981 of 21 November 1979 compatible with the provisions of Articles 30 and 34 of the Treaty establishing the European Communities, which prohibit quantitative restrictions on exports and all measures having an equivalent effect?"

T h e j u r i s d i c t i o n of t h e C o u r t of J u s t i c e

; The Syndicat National des Fabricants Raffineurs d'Huiles de Graissage maintains in the first place that the Court has no jurisdiction to reply to the question submitted for a preliminary ruling inasmuch as that question has the same purpose as an action against the Commission for failure to act in

FABRICANTS RAFFINEURS D'HUILE DE GRAISSAGE v INTER-HUILES

ii Although Article 5 of Directive 75/439/EEC may therefore be interpreted as authorizing Member States, if they so wish, to grant an exclusive right to one or more undertakings to collect or dispose of oils in the zone which is allotted to them, such a right does not automatically authorize the

JUDGMENT OF 10. 3. 1983 — CASE 172/82

governments of the Member States to establish barriers to exports. Indeed, such a partitioning of the markets is neither contemplated in the Council directive nor compatible with the objectives set out therein.

i2 That conclusion is reinforced by Article 34 of the EEC Treaty, which prohibits all measures having an effect equivalent to quantitative restrictions on exports. As the Court has repeatedly held, the prohibition concerns all national measures which have as their specific object or effect the restriction of patterns of exports and thereby the establishment of a difference in treatment between the domestic trade of a Member State and its export trade, in such a way as to provide a special advantage for national products or for the domestic market of the State in question. Consequently, provisions which contravene those rules are also contrary to Article 34 of the Treaty.

n It has also been suggested that the disputed legislation satisfies an economic requirement, since only the collection of all waste oils is sufficient to ensure the profitability of undertakings approved for the disposal of waste oils and, therefore, the achievement of the aims of the directive. That argument cannot be accepted. Articles 13 and 14 of the directive provide that, by way of compensation for the obligations imposed on the undertakings for the implementation of Article 5, Member States may, without placing restrictions on exports, grant to such undertakings "indemnities" financed in accordance with the principle of "polluter pays".

Costs

i7 The costs incurred by the French and Italian Governments and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable.

is As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the proceedings pending before the national court, costs are a matter for that court.

On those grounds,

T H E C O U R T (Third Chamber),

in answer to the question referred to it by the Tribunal de Grande Instance, Versailles, by judgment of 9 June 1982, hereby rules:

Principal Administrator President of the Third Chamber

OPINION OF MRS ADVOCATE GENERAL ROZÈS DELIVERED ON 10 FEBRUARY 1983 *

Mr President, disposal of waste and the recovery of Members of the Court, materials and with the Council Directive of 16 June 1975 on the disposal of waste oils. The Court has received a reference from The decree provided in particular for the the Tribunal de Grande Instance granting of an approval which would [Regional Court], Versailles, for a pre- give to collectors, whether legal or liminary ruling on the interpretation of natural persons, the exclusive right to Articles 34 and 36 of the EEC Treaty so operate within a specified geographical as to enable that court to assess the zone. compatibility with Community law of the French legislation on the recovery of The Syndicat National des Fabricants waste oils. Raffineurs d'Huiles de Graissage and other undertakings, who had been granted such an approval, brought an I — The legislation consists of a decree action before the Tribunal de Grande of 21 November 1979 and orders of the Instance, Versailles, against the same day, adopted in accordance with Groupement d'Intérêt Économique the French Law of 15 July 1975 on the "Inter-Huiles" and 12 of its members,

1 — Translated from the French.