C-37/92

Mr President, of waste oil which originate from more than Members of the Court, one holder. 5 This approval is granted on the basis of an invitation for tenders from appli- cants who prove that they fulfil the pre- scribed conditions, in particular as regards the means used, namely applicants whose A — Introduction tender guarantees the best conditions of col- lection with regard to protection of the envi- ronment. 6 Approval was valid for a period of four years. 7 1. This reference for a preliminary ruling from the Cour d'Appel, Douai (France), concerns the application of Community law in the field of the disposal of waste oil, more specifically, the application of the provisions on the free movement of goods and the Council directive on the disposal of waste oils. 1 The accused in the main proceedings, 3. It also appears from the relevant provi- Belgian nationals, are charged with disposing sions that the system of approval for collec- of waste, more specifically with 'collecting tion has been specified and supplemented by and transporting' waste oil, in France in various detailed rules. Under Article 4 of 1985 without the necessary approval. 2 Decree N o 79-981 each approval is limited to one of the geographical zones into which the whole of France is divided. In the relevant zone the holder of the approval (the 'approved collection undertaking' — 2. As appears from the legislation which the 'ramasseur agréé') has an obligation, under Cour d'Appel cites to explain this charge 3 Article 6(a) of Decree N o 79-981, as and the French Government has produced amended by Decree N o 85-387, to collect to the Court, 4 the necessary approval is waste oil. Article 8 of the Annex to the an authorization for the 'collection' Order of 29 March 1985 sets out the details ('ramassage') of waste oil, that is to say, gath- of this obligation in that the approved collec- ering, collecting and transporting quantities tion undertaking must remove within 14 days any quantity in excess of 200 litres of waste oil which is offered to it. * Original language: German. 1 — Directive 75/439 of 16 June 1975 on the disposal of waste oils, OJ 1975 L 194, p. 31. 2 — See p. 2 of the order for reference. 5 — See Article 1 of the Order of 29 March 1985 concerning the 3 — Article 24(5) of the Law of 15 July 1975; Decree of collection of waste oil. 21 November 1979; Order of 29 March 1985; Prefectoral 6 — Article 5 of the Annex to the abovementioned Order of Order of 30 August 1985. 29 March 1985. 4 — Annexes 1 to 4 of the French Government's reply to the 7 — Article 5(2) of Decree N o 79-981, as amended by Decree N o Court's questions. 85-387.

5. As the judgments in Inter-Huiles, 9 6. For the sake of completeness, it may be Rhône-Alpes Huiles, 10 ADBHU, 11 and mentioned here that the French system for 12 Commission v France show, this provision the disposal of waste oil originally included a was adopted on the basis of Article 5 of complete prohibition on the export of waste Council Directive 75/439. That article refers oil. In the abovementioned judgments, par­ ticularly Case 173/83 Commission v France, this was held by the Court to be incompati­ ble with Directive 75/439 and Article 34 of 8 — The combined effect of Articles 4(1) and 5(2) of Decree No 79-981, as amended by Decree No 89 648, in conjunction the Treaty. During the period to which the with Article 3 of the Order of 21 November 1979 and Article 5 of Annex 2 of the Circular of 5 December 1989, is present proceedings relate, Articles 3 and that the monopoly principle has in the meantime been 6 of Decree No 79-981 applied in the version replaced by the principle that the number of approved undertakings in each area is not limited, although this is of Decree No 85-387, according to which admittedly weakened by exceptions. holders and collection undertakings were 9 — Syndicat National des Fabricants Raffmeiirs d'Huile dc Graissage v Inter /Imies [1983] UCR 555. entitled to deliver the oil to disposal under­ 10 — Rhône-Alpes Iludes Glľ. v Syndical National des Fabricants takings in other Member States which pos­ Raffmeun d'I lude cl dc Graissage [1984] ECR 575. sessed a disposal permit within the meaning 11 - Procureur de la République v ADBHU [1985] LCR 531. 12 — Commission v France [1985] ECR 491. of Article 6 of the directive.

'May the French legislation establishing within France a system of collection and dis- posal of waste oil operated by undertakings 10. In my view, however, the question can- to which the administrative authorities grant not be regarded as inadmissible for that rea- approval for exclusive zones be interpreted, son. The request for 'interpretation' means in in the light of Articles 30 to 36 of the EEC reality that the Court is being asked to assess Treaty and the directive of the Council of the the French legislation by reference to a crite- Communities, as in fact allowing approval to rion which the national court considers deci- be granted only to national undertakings, sive as regards its compatibility with Article and must it accordingly be regarded as con- 30 et seq. of the Treaty and with the direc- sistent or inconsistent with the abovemen- tive. In the opinion of the Cour d'Appel, the tioned European provisions?' legislation contravenes Community law if it 'de facto allows approval to be issued only to domestic undertakings'.

11. On this view, the Court is being asked, not to interpret the French provisions, but to determine whether they are compatible with Community law from the point of view of any de facto exclusion of undertakings from 8. It will be necessary to consider the scope other Member States. of this question in great detail since the ques- tion provides the only information in the actual order for reference which defines the problem which the Court is called upon to resolve. Otherwise, the order contains only a 12. 2. The question must also be construed brief account of the facts, the procedure and in so far as, according to its wording, it seeks a reference to the relevant provisions of guidance concerning the consistency of national law. national provisions with Community law.

— Secondly, as already explained, these pro- visions could, in the opinion of the Cour d'Appel, be interpreted as de facto 18. Different conclusions can be drawn from 'allowing approval to be issued only to looking at the question in this way: domestic undertakings'.

— either the Court may consider the ques- tion as being limited to the effects of the monopoly, namely the fact that, once an 15. (a) In view of those factors, it may be concluded that there arc two other aspects of the French legislation which were clearly not 13 Section 3, above.

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undertaking has obtained approval for 21. The course of the procedure, to which collection, others cannot do so. This the national court expressly refers, confirms would follow if the de facto exclusion of that this is the correct interpretation of the undertakings from other Member States question. Consequently, it is necessary to were to be regarded only as an incom- begin with the judgment of the first-instance plete description of the abovementioned court in this action, the Tribunal Correction- effect of the monopoly; nel (Criminal Court), Laon, which prompted the Cour d'Appel, according to its own statement, to seek a ruling from the Court of Justice. 14

— or it may be assumed that the mention of the monopoly is only intended to demar- cate the general limits set by the national rules to the dispute. If this is so, the question may be construed as seeking guidance on the legality of certain detailed rules of the French system which 22. This first-instance judgment, which is in make it more difficult specifically for the file of the main action, contains the fol- undertakings from other Member States lowing passage: to obtain monopolistic approval in com- petition with domestic undertakings;

'(...) the corollary of the exclusive approval granted to one French undertaking for each '(...) on the one hand, Article 5 of Directive Département for the collection of waste oil is 75/439 of the Council of the European that any foreign undertaking, whether Communities on the disposal of waste oils approved or not, is debarred from collecting lays down that the Member States may pro- oil on French territory although, if they have vide for zones to be assigned to one or more obtained approval, which in principle is undertakings which, under Article 6, must granted on conditions and subject to safe- obtain a permit from the competent authori- guards conforming to the recommendations ties. of the EEC [Directive] 16 of 16 June 1975, those undertakings meet every guarantee for collecting waste oil in such a way as to ensure the protection of nature and the envi- (...) on the other, it is clear from the directive ronment. and from the judgments of the Court of Jus- tice of the European Communities that the only limit imposed on legislation of the Member States is the prohibition of any (...) it follows that the system of approval measure which may restrict Community which gives one French undertaking for each trade. Département a monopoly over the collection of waste oil cannot be justified by interests superior in rank to the free movement of goods enshrined in Article 36 of the Treaty (...) in ruling as it did, although the French of Rome, and that this system is therefore legislation on the collection and disposal of contrary to Article 34 of that Treaty.' 17 waste oil does not rule out the possibility that the prescribed approval may be obtained by any natural or legal person belonging to the European Economic Community, the 24. This decision, which acquitted the defen- appeal court misconstrued the meaning and dants, was upheld by the Cour d'Appel, the scope of the abovementioned provisions Amiens, by judgment of 30 January 1989. and principles'. 18

zone — has gradually overlaid a more gen- one — that an applicant must have a specific eral question, which was also raised initially, storage capacity in the zone concerned. as to whether collection undertakings autho- rized abroad require an (additional) authori- zation in France. 31. In contrast, the Commission, after mak- ing a general complaint in the written pro- cedure that, under the French rules, collec- 27. This confirms the interpretation which I tion undertakings authorized in other gave above of the question referred to the Member States had to obtain an additional Court. 19 approval, submitted at the hearing that the conditions for the grant of a French approval should be simplified to take account of the safeguards afforded by the authorization granted by the other Member State. 28. It could then be considered whether the national court seeks in addition guidance concerning the legality of rules which make it more difficult specifically for undertakings 32. In these circumstances I do not consider from other Member States to obtain it appropriate to examine the (potential) approval for collecting waste oil in compe- aspect of the question considered here. In tition with French undertakings. this connection I refer to the requirements laid down by the Court in the judgment in Telemarsicabruzzo 21 with regard to the admissibility of questions for a preliminary 29. In my view, it is unnecessary for the ruling. According to that judgment, 22 the Court to give a final answer on this point. necessity to provide an interpretation of The national court does not state which of Community law which will be of use the the rules of the French system are to be national court makes it necessary that the examined. This is no doubt why the French national court define the factual and legisla- Government and the Commission have con- tive context of the questions it is asking or, at sidered quite different points in this connec- the very least, explain the factual circum- tion. stances on which those questions are based.

'Is it compatible with Articles 30 to 36 and Directive 75/439 where, under national legis- lation concerning the collection of waste oil which makes the collection of oil in each of 'even though that article presupposes the the zones specified by that legislation subject existence of undertakings which have certain to approval granted for that zone and only special or exclusive rights, it does not follow one approval for collection can be granted that all the special or exclusive rights are nec- for a zone at any one time, so that other col- essarily compatible with the Treaty.' lection undertakings, including those from other Member States, cannot obtain approval for that zone before the expiry of an existing approval?'

38. The Court continued as follows:

II — The provisions of Community law to be applied 'That depends on different rules, to which Article 90(1) refers.'

interest on the basis of their obligation to waste oil undoubtedly constitutes 'goods' for collect waste oil. 25 the purposes of the Treaty 27 and that, in the context of those provisions, it is not Article 30 but only Article 34 which falls to be con- sidered as the sedes materiae. The contested 40. However, save in the case of State mea- monopoly certainly does not constitute a sures covered by Article 90(1) (that is to say, restriction on imports. measures adopted after the creation of the exclusive rights referred to therein), Article 90(2) presupposes conduct by an undertak- ing 26 (with the consequence of course that, under Article 5, the Member States must 44. In my opinion, however, the last- refrain from any measures likely to promote, mentioned provision is not applicable either encourage or reinforce conduct which is because the contested acts — although waste shown to be anti-competitive, even making oil does constitute goods — do not fall allowance for Article 90(2)). within the ambit of the protection conferred by the provisions concerning the free move- ment of goods at all. The obstacle created by the monopoly is in fact aimed at services 41. In the present case, however, the creation which could be supplied by undertakings other than the approved undertakings, with of the monopoly zones by the State cannot the result that, in view of the facts of the be connected with the behaviour of an case, Article 59 et seq. provide the proper undertaking. framework for this discussion. I should like to give the following explanations in this connection. 42. Under these circumstances, I shall go on to consider the problem before the Court from the viewpoint of the free movement of goods and the freedom to provide services in the sequence set out by Article 60. 45. There is no doubt that the rules govern- ing the monopoly system are not directly aimed at exports of waste oil. 28

48. This system creates particular problems 'not aid within the meaning of Article 92 et for holders of waste oil, especially if they seq. of the EEC Treaty, but rather consider- have small quantities, if they do not dispose ation for the services performed by the col- of it themselves and if they cannot transport lection or disposal undertakings.' it to an approved disposal undertaking. To cope with this specific situation, the French provisions lay down two obligations: the holder of waste oil must hand it over to an 52. Consequently a provision which creates approved collection undertaking 29 and the a monopoly for collection undertakings yet latter must take delivery of it. 30 to be designated, while excluding other com- petitors, is directed against the freedom to provide services, not the free movement of goods, and therefore Article 34 of the Treaty is not relevant. 49. The collection activity serves to fulfil both these obligations. Consequently, its essential economic importance does not con- sist in procuring waste oil for collection 53. This conclusion is not affected by the undertakings for the purpose of subsequent fact that the French system prevents collec- tion undertakings from other Member States

29 — Article 3 of Decree No 79-981. 30 — Section 3, above. 31 — See footnote 11.

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54. To conclude this point, it must be said 57. (2) Likewise it cannot be denied that the for the sake of completeness that any activity of collection undertakings falls infringement of Article 34 is very unlikely within the ambit of Article 59 et seq. It is an even if the collection operation is regarded as activity of an industrial and/or commercial a mere preliminary step towards a commer- character within the meaning of the second cial transaction and is therefore brought paragraph of Article 60. In this connection, I under Article 30 et seq. The Court has con- would point out generally that, in applying sistently held that a contravention of Article the Treaty to activities organized by the 34 presupposes that the measures in question State, care must always be taken to ensure that the economic rules of the Treaty are applied only within the limits imposed upon it. To be more precise, they must not be applied to activities which are reserved for 'have as their specific object or effect the the Member States by the Treaty because restriction of patterns of exports and thereby they are not of an economic nature. Thus the the establishment of a difference in treatment economic entities to which Article 85 et seq. between the domestic trade of a Member

34 — See, for example, Case C-47/90 Delhaize v Promalvin 32 — See Section 60, below. [1992] ECR I-3669, paragraph 12. 33 — See my Opinion in Case 173/83 Commission v France 35 — The judgment in ADBHU (footnote 11), paragraph 14 et [1985] ECR 491, at 497. seq. is to the same effect.

60. With regard more particularly to the remuneration that such an activity implies, in the case of collection undertakings it consists of benefits of various kinds, depending on 62. Thus undertakings in frontier areas the circumstances. First, the collection which have storage facilities available to them at a suitable location in their State of establishment can unquestionably operate in neighbouring States, as has obviously hap- 36 — Case C-41/90 Hofner and Elser v Macrotron [1991] ECR I-2017. pened in the present case. The fact that 37 — Joined Cases 159/91 and 160/91 Poucet v AGF [1993] ECR I-637. 38 — Case C-263/86 Belgian Stale v Humbel [1988] ECR 5365, paragraphs 15 to 18. 39 — See also Case C-159/90 Society for the Protection of Unborn 40 — Case 352/85 Bond van Advneerders [1988] ECU 2085, Children Ireland v Grogan and Others [1991] ECR I 4685, paragraph 16. paragraph 18. 41 — Case 205/84 Commission v Germany [1986] ECR 3755.

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approval is necessary does not lead to the kind which may justify certain restrictions application of Article 52 either. Such on the principle of the free movement of approval fulfils only one of the requirements goods. 46 However, the same must apply to for presence but otherwise has no bearing on freedom to provide services. Reference its permanence or frequency. should be made on this point to the judg- ment in ADBHU, 47 in which protection of the environment was recognized — in the sphere of the disposal of waste oil — to be a 63. Does the grant of the monopoly infringe ground capable of justifying restrictions on Article 59 on the ground that it impedes col- free trade described as a fundamental lection activity in so far as it could be offered right. 48 49 as a service by undertakings from other Member States?

42 — Case C-76/90 Säger v Dennemeyer [1991] ECR 1-4221, 67. However, the measure is justified from paragraph 12. 43 — Casc C-353/90 Commission v Netherlands [1991] ECR this viewpoint only if it complies with the 1-4069. 44 — Unlike most exclusive rights created by law, the present measure does not exclude competition completely, but restricts it to the time of the grant of the (monopoly) approval. However, this has no bearing on the application 46 — Case 302/86 Commission v Denmark [1988] ECR 1-4607, of the abovementioned principles. paragraph 8 et scq. 45 — Case C-353/90 Commission v Netherlands, paragraphs 22, 47 — [1985] ECR 531. 23 and 24 and the first sentence of paragraph 25. Here also the Court repeated that Article 90(1) as such docs not pro- 48 — Paragraph 9, at 548. vide a criterion for assessing the compatibility of exclusive 49 — Paragraph 13, at 549, and Opinion, at 534, right-hand col- rights with the Treaty (paragraph 33 et seq.). umn.

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principle of proportionality, that is to say it Rhône-Alpes Huiles judgments concerning must, inter alia, be necessary in order to the prohibitions of exports at issue there. attain the said objective. 50 Article 5 of the Just like the system of territorial monopolies directive takes this factor into account by in the present case, those export prohibitions stating that the introduction of a system of served to ensure the viability of certain — in zones is subject to the proviso that the aims that case, disposal — undertakings. On this defined in Articles 2, 3 and 4 cannot other- point the Court held as follows: wise be achieved.

69. As such reservations no longer appear justified in view of later developments, the abovementioned question ought to be exam- 71. However, the same considerations must ined here. In this respect, the Court should apply with regard to ensuring the profitabil- abide by its findings in the Inter-Huiles and

52 — See Inter-Huiles, paragraph 13, my emphasis. 50 — Sager, paragraph 15; Commission v Netherlands, paragraph 53 — Case 118/86 Openbaar Ministerie v Nertsvoederfabrtek 31; and ADBHU, paragraphs 13 and 15, see footnote 46. Nederland [1987] ECR I-3883, paragraph 16. 51 — At the time 1 used the phrase 'the fundamental freedom to 54 — Advocate General Da Cruz Vilaça was more explicit ([1987] engage in commerce or pursue a professional or trade activ- ECR 3894, at 3901, section 62 where reference is made to ity': [1985] ECR 532, at 534. the Ínter-Iludes judgment).

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55 — Case 72/83 Campus Oil v Minister for Industry and Energy 57 — See Campus Oil, paragraph 46. [1984] ECR I-2727, at paragraph 44 et seq. is into like effect. That judgment is basca on the special feature of the petroleum market in that it is very dependent on oil- producing non-member countries (see paragraphs 28 to 31 and 38 to 41). A special situation of that kind docs not arise here. See also Case C-347/88 Commission v Greece [1990] ECR I-4747, paragraphs 47, 48 and 49. 56 — It is necessary to distinguish cases where non-economic grounds may justify the establishment of a monopoly, c. g. grounds of public security and cultural or social grounds. The Court has taken up this point in the past when consid- ering the competition provisions of the Treaty; sec the detailed analysis by Advocate General Tesauro in the Cor- beau case, loc. cit.

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