C-173/83

JUDGMENT OF 7. 2. 1985 — CASE 173/83

JUDGMENT OF THE COURT 7 February 1985 1

In Case 173/83

Commission of the European Communities, represented by its Legal Adviser, Michel van Ackere, acting as Agent, assisted by Daniel Jacob of the Brussels Bar, with an address for service in Luxembourg at the office of Oreste Montako, Jean Monnet Building, Kirchberg, applicant,

French Republic, represented by Gilbert Guillaume, acting as Agent, assisted by Gérard Boivineau, Deputy Agent, with an address for service in Luxembourg at the French Embassy, 2 Rue Bertholet, defendant,

APPLICATION for a declaration that the French Republic has failed to fulfil its obligations under Article 34 of the EEC Treaty by establishing under Decree No 79-981 of 21 November 1979 and the two orders implementing it of the same date a scheme for the collection and disposal of waste oils which excludes the export of such oils to other Member States,

JUDGMENT

Facts and Issues

The facts of the case, the course of the for the disposal of waste oils in pursuance procedure and the conclusions, submissions of the decree (ibid., p. 2903). and arguments of the parties may be summarized as follows: That legislation provides as follows:

1. Facts and procedure Holders who accumulate stocks of waste oils as a result of their business activities 1.1. The disposal of waste oils is dealt with must either hand over their waste oils to by Council Directive No 75/439/EEC of authorized collectors or dispose themselves 16 June 1975 (Official Journal 1975, L 194, of the waste oils they produce provided that p. 23). they hold a licence issued by the Ministry of the Environment, or they must themselves deliver the oils to an approved disposal undertaking; The directive provides that Member States shall take the necessary measures to ensure the safe collection and disposal, preferably In order to ensure that all waste oils are by recycling, of waste oils (Articles 2 to 4). collected, the whole of France is divided Article 5 of the directive provides as into geographic zones (which generally follows: correspond to the départements), in each of which the Minister for the Environment has designated an authorized collector on the 'Where the aims defined in Articles 2, 3 and basis of a public invitation to tender and the 4 cannot otherwise be achieved, Member opinion of an inter-departmental committee States shall take the necessary measures to of approval. ensure that one or more undertakings cany out the collection and/or disposal of the products offered to them by holders, where The authorized collector is responsible for appropriate in the zone assigned to them by collecting all waste oils produced in the the competent authorities.' zone for which authorization has been granted;

3. Submissions and arguments of the In the meantime, on 21 July 1983, the parties Commission had received the French Government's reply to its reasoned opinion, although it did not reach the department in 3,1. In its application to the Court the charge until after the application had been Commission asserts that Decree No 79-981 drafted. In its reply the French Government of 21 November 1979 and its two contended that the aim of its national implementing orders of the same date legislation was not to prohibit the export of contravene Article 34 of the EEC Treaty waste oils, and it asked the Commission to because they establish a system under which reconsider its position. holders of waste oils are required to deliver them to authorized French collectors or disposal undertakings, collectors of waste 1.4. Upon hearing the report of the Judge oils are obliged to hand them over to auth­ Rapporteur and the views of the Advocate orized French disposal undertakings and General, the Court decided to open the oral those undertakings must process the oil in procedure without any preparatory inquiry. their plant. The relevant French legislation therefore has the effect of implicitly prohibiting any exports of waste oils abroad 2. Conclusions of the parties and in particular to other Member States.

The Commission claims that the Court The inspections carried out by the French should: customs authorities and the existence of a circular dated 26 October 1982 issued by the Ministry of Economic Affairs and the '(1) Declare that by establishing under Budget, requiring strict checks to be carried Decree No 79-981 of 21 November out at the frontiers to prevent any waste oils 1979 and two implementing orders of from being exported, only serves to confirm the same date a system for the the Commission's interpretation of the collection and disposal of waste oils French legislation.

It is, however, true that the control system introduced by the French authorities has the As regards the points of Decree No 79/981 effect of preventing waste oils from being to which the Commission objects in its exported to non-member countries, but it application, the French Government states has to be appreciated that in such a case that in order to remove any uncertainty for exportation is prohibited not as a good it is prepared to amend the contested commercial operation but as a means of decree in order to make it clear that the escaping the constraints which the aims of holders and authorized collectors of waste Directive No 75/439 necessarily entail. oils may hand them over to any disposal undertaking which has obtained the permit provided for in Article 6 of Directive No On the other hand, that justification cannot 75/439. apply to exports to other Member States, since by virtue of Directive No 75/439 itself, to which the disputed decree expressly The French Government again emphasizes refers in its preamble, the business of that such a textual amendment will not alter disposing of or regenerating waste oils may current practice under which the export of not be carried on in any part of the waste oils to other Member States is already Community except on conditions which permitted provided that the conditions laid

JUDGMENT OF 7. 2. 1985 — CASE 173/83

down in the Decree of 21 November 1979 he is unable to produce an attestation or Directive No 75/439 are observed. It showing that the ultimate recipient of the would merely elevate to the rank of a product is a disposal undertaking approved decree provisions which are at present by the competent authorities in the country contained in a circular. of destination.

3.4. In its rejoinder, the French 3.3. To those arguments the Commission Government reiterates its view that the replies, that the fact that waste oils are whole legislation at issue, including the exported from France to other Member circular of 26 October 1982 should be States does not prove that a piece of considered, and draws a distinction between legislation is not — actually or potentially the activities of the authorized disposal or — obstructing exports and secondly that the regenerating undertakings and those of the circular of 26 October 1982, which in collectors. certain cases liberalizes the export of the products in question, does not cure the infringement of Article 34 of the EEC With regard to the former undertakings, the Treaty. The maintenance of Decree No French Government contends that if it is not 79-981 and of the orders adopted to established that the recipient is a disposal or implement it is a source of legal uncertainty regenerating undertaking authorized by which may in itself obstruct exports. Fur­ another Member State, the prohibition of thermore, the circular contains various exports is in accordance with Directive No export restrictions which are not justified in 75/439, and in particular with the first Community law. paragraph of Article 6 and the third recital of the preamble.

In particular, the second indent of paragraph 3 (b) in Part B of the circular As regards collectors and the French system does not permit exports unless the recipient of exclusive zones for which licences are of the product is an approved disposal or granted, the French Government argues that regenerating undertaking, to the exclusion it does not constitute an obstacle to exports of approved collectors established in other and is moreover allowed by Directive No Member States, whilst the second indent of 75/439, in particular by Article 5 thereof. paragraph 2 (b) and the second indent of paragraph 3 (b) of Part B prohibit all exports if the exporter is a collector who is The Commission's submission that the not approved by the French authorities or if French Government has not furnished

2 The decree and implementing orders were adopted by the French Government in order to implement Council Directive No 75/439/EEC of 16 June 1975 on the disposal of waste oils (Official Journal 1975, L 194, p. 23), enacted in particular on

JUDGMENT OF 7. 2. 1985 — CASE 173/83

the basis of Articles 100 and 235 of the Treaty with the aim of protecting the environment against the detrimental effects of the discharging, depositing or processing of such oils.

3 Articles 2 to 4 of the directive provide that Member States are to take the necessary measures to ensure the safe collection and disposal — preferably by recycling — of waste oils. Article 5 of the directive provides as follows: 'Where the aims defined in Articles 2, 3 and 4 cannot otherwise be achieved, Member States shall take the necessary measures to ensure that one or more undertakings carry out the collection and / or disposal of the products offered to them by holders, where appropriate in the zone assigned to them by the competent authorities.' The first paragraph of Article 6 also provides that '... any undertaking which disposes of waste oils must obtain a permit.'

COMMISSION / FRANCE

6 The French Government contends that an express exemption for exports is unnecessary because no provision in the French legislation explicitly prohibits exports and because it is a general principle of French law that anything which is not prohibited is permitted.

7 Such an argument cannot be accepted. In view of the above provisions, the French legislation contains an implicit prohibition against exporting waste oils to other countries, including the other Member States of the Community, by not providing for any exemption for the resale of waste oils to collectors or disposal under­ takings which have obtained in those States the permit provided for in Article 6 of Directive No 75/439. The principle pleaded by the French Government cannot apply in this case, which involves legal provisions containing an implicit yet clear prohibition. Furthermore, even if such a principle were applicable in this case, it would still leave some doubts about the legal position. The French legislation would therefore in any case have an inhibitory effect on export trade.

8 According to consistent case-law, such a situation may constitute an obstacle to trade between Member States, forbidden by Article 34 of the EEC Treaty.

9 The French Government also contends that the national legislation must be considered as a whole. Besides the decree and the two implementing orders of 21 November 1979 it also comprises a circular dated 26 October 1982 which expressly provides for the possibility of exporting waste oils to disposal under­ takings in other Member States on the sole condition that a certificate showing that such undertakings are authorized under national law is produced.

15 That argument must be rejected since the aim of Directive No 75/439, as indeed is clear from the seventh recital of its preamble, is the application of a system of treatment for waste oils 'which will neither create barriers to intra-Community trade nor affect competition'.

16 It follows from the foregoing that by precluding the exportation of waste oils to other Member States under the system for the collection and disposal of such oils set up under Decree No 79-981 of 21 November 1979 and its two implementing orders of the same date, the French Republic has failed to fulfil its obligations under Article 34 of the EEC Treaty.

Costs

17 Under Articles 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. Since the defendant has failed in its submissions it should be ordered to pay the costs.

COMMISSION / FRANCE

On those grounds,

Delivered in open court in Luxembourg on 7 February 1985.

P. Heim A. J. Mackenzie Stuart Registrar President