C-422/92

OPINION OF MR JACOBS — CASE C-422/92

OPINION OF ADVOCATE GENERAL JACOBS delivered on 16 March 1995 *

1. In these proceedings the Commission Directive 75/442, sets out in the original ver­ seeks a declaration that Germany has failed sion, which is the version relevant to these to fulfil its obligations under Council proceedings, a number of general provisions Directive 75/442/EEC, 1 Council Direc­ and general principles regarding waste dis­ 2 tive 78/319/EEC and Council Directive posal. Member States are required to take 3 84/631/EEC, as amended by Council appropriate steps to encourage the preven­ 4 Directive 86/279/EEC. All the directives tion, recycling and processing of waste (Arti­ have been substantially amended or repealed cle 3) and to take the necessary measures to during the administrative or judicial phase of ensure that waste is disposed of without the present proceedings. endangering human health or harming the environment (Article 4). Member States are to establish or designate the competent authority or authorities to be responsible, in a given zone, for the planning, organization, authorization and supervision of waste dis­ posal operations (Article 5). Any installation or undertaking treating, storing or tipping waste on behalf of third parties must obtain The Community legislation on waste a permit from the competent authority (Arti­ cle 8) and is also subject to periodic inspec­ tions by the latter (Article 9). Undertakings transporting, collecting, storing, tipping or treating their own waste, and those which collect or transport waste on behalf of third parties, are also to be subject to supervision by the competent authority (Article 10). 2. Prior to the Single European Act the 'Waste' is broadly defined in Article 1(a) as Treaty did not make specific provision for a any substance or object which the holder Community environmental policy. The disposes of or is required to dispose of pur­ Council nevertheless adopted a series of suant to the provisions of national law in directives on waste on the basis of Arti­ force. cles 100 and 235. The main Directive,

rules is excluded from the scope of the 4. It may be noted that Council 5 6 Directive. Directive 78/319 lays down spe­ Directive 76/403/EEC also lays down spe­ cific rules for toxic and dangerous waste. As cific rules for the disposal of polychlorinated in the case of Directive 75/442 Member biphenyls and terphenyls. The Directive is States are to encourage the prevention of not directly concerned by these proceedings. such waste and its processing and recycling (Article 4), are to ensure its disposal without endangering human health and the environ­ ment (Article 5) and are to establish or des­ ignate competent authorities, in a given area, for the planning, organization, authorization and supervision of waste disposal operations (Article 6). Member States are to ensure that 5. Directive 84/631, as amended by toxic and dangerous waste is kept separate Directive 86/279, establishes a system of from other matter, is appropriately labelled supervision and control of the transfrontier and is recorded and identified in respect of shipment of hazardous waste. 'Hazardous each site where it is deposited (Article 7). waste' means toxic and dangerous waste as Member States are permitted to take more defined in Article 1(b) of Directive 78/319, stringent measures (Article 8). A system of except for certain chlorinated and organic permits is established for installations, estab­ solvents, and PCB as defined in Article 1(a) lishments or undertakings carrying out the of Directive 76/403. Cross-border movement storage, treatment or deposit of waste (Arti­ of hazardous waste within the Community cle 9). The competent authorities are respon­ and exports to third countries are subject to sible for drawing up and keeping up to date a procedure involving notification of the plans for the disposal of such waste. Such competent authority of the Member State plans are to be made public and forwarded designated by the Directive as responsible to the Commission (Article 12). In cases of for issuing an acknowledgement of the noti­ emergency or grave danger Member States fication or raising objections. The Directive are to take steps, including temporary dero­ lists the grounds on which objections may be gations from the Directive, to ensure the raised and, in the case of objections raised by protection of the population and the envi­ the Member State of dispatch, distinguishes ronment (Article 13). Documentary require­ between movements between Member States ments are imposed on persons producing, and exports to third countries (Articles 3 and holding or disposing of such waste and with 4)· respect to identification of waste transported in the course of disposal (Article 14). A sys­ tem of inspections and supervision by the competent authorities is established (Arti­ cle 15).

7. The Convention lays down a series of rules to achieve those objectives. In particu­ lar Article 4(1) precludes exports of waste to States imposing a general prohibition on imports of hazardous waste or other waste for disposal or not consenting to specific imports. Article 4(9) requires parties to ensure that the transboundary movement of hazardous wastes and other wastes is 9. On 18 March 1991 the Council adopted 9 allowed only if the State of export does not Directive 91/156/EEC substantially amend­ have the technical capacity and the necessary ing Directive 75/442. The Directive was 10 facilities, capacity or suitable disposal sites in adopted on the basis of Article 130s, intro­ order to dispose of the wastes in question in duced by the Single European Act, which an environmentally sound and efficient man­ introduced a specific legal basis for action ner, or if the wastes are required as a raw material for recycling or recovery industries in the State of import or is in accordance 8 — OJ 1990 C 122, p. 2. 9 — OJ 1991 L 78, p. 32. 10 — In Case C-155/91 Commission v Council[1993] ECR 1-939, the Court held that the Directive could validly be adopted on the basis of that provision (rather than Article 100a, 7 — OJ 1993 L 39, p. 1. upon which the Commission's proposal was based).

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12. Finally, it may be noted that in the 14 'Wallonian Waste' case the Court held that Belgian legislation prohibiting the 10. On 12 December 1991 the Council also deposit or discharge in Wallonia of waste adopted Directive 91/689/EEC on hazardous originating in other Member States or other waste, 11replacing Directive 78/319. regions of Belgium was incompatible with Directive 84/631. The Directive set up a sys­ tem enabling the national authorities con­ cerned to raise objections and thus prohibit transfrontier shipments of hazardous waste on grounds relating to the protection of the environment, public policy, safety and health protection; that system left no room for the Member States to impose a general prohibi­ tion on such movements. 11. On 1 February 1993 the Council replaced Directive 84/631 by Regulation

12 — OJ 1993 L 30, p. 1. 13 — In Case C-187/93 Parliament v Council [1994] ECR I- 11 — OJ 1991 L 377, p. 20. The Directive, as amended by Coun­ 2857 the Court held that the Regulation could properly be cil Directive 94/31/EC (OJ 1994 L 168, p. 28), repealed based on that provision. Directive 78/319 with effect from 27 June 1995. 14 — Case C-2/90 Commission v Belgium [1992] ECR 1-4431.

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(3) Germany has failed to comply fully with its obligation to notify to the Commis­ The Commission's complaints sion waste disposal programmes as required by Article 12 of Direc­ tive 78/319.

15 — Gesetz über die Vermeidung und Entsorgung von Abfällen (BGBl. 1986 I, p. 1410). 14. The national provisions contested 16 — Verordnung über die grenzüberschreitende Verbringung by the Commission are contained in the von Abfällen (BGBl. 1988 I, p. 2126).

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Admissibility categories in Annex I. Germany can scarcely object that the Commission's action is inad­ missible on the ground that the implementa­ tion period for amendments having no bear­ ing on the Commission's complaint has not expired.

16. That argument must fail. The Commis­ sion's action in this case is directed against Germany's alleged failure to implement the 18. It is certainly surprising that the Com­ original version of Directive 75/442. The fact mission should have decided to bring or con­ that the implementation period for the sub­ tinue its action in the knowledge that the sequent amending Directive had not expired Community had already amended at the date of the reasoned opinion or the Directive 75/442, and was about to replace application is irrelevant since, as I shall Directive 84/631, in order to take account of explain below, the Commission's complaint the principle of self-sufficiency in waste dis­ concerning the implementation of posal embodied in the Basle Convention. Directive 75/442 applies equally, if indeed Nor has the Commission given any satisfac­ not more clearly, to the amended Directive, tory explanation for continuing the proceed­ notwithstanding the Commission's obliga­ ings. It has not, for example, suggested that it tion to specify the wastes belonging to the was necessary to pursue its action in order to

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obtain a ruling on an important point of does not prevent the Commission from interpretation or to establish a basis for bringing such an action.' claims against Germany in respect of Directive 84/631.

19. Nevertheless the action must be consid­ 21. I therefore consider the application to be ered admissible. Directive 84/631 was still in admissible. force at the date of the reasoned opinion (and indeed also at the date of the applica­ tion to the Court). As the Court has held:

'any substance or object which the holder 19 disposes of or is required to dispose of pursuant to the provisions of national law in force.' 25. However, Paragraph 1(3) provides that the Law does not apply to:

23. That definition is repeated in Article 1(a) of Directive 78/319, although that Directive '7. Materials, other than those covered by applies only to 'toxic and dangerous' waste Paragraphs 2(2) and (3), 5, 5a and 15, which as defined in Article 1(b) of the Directive. by means of commercial collection are exploited in accordance with the Regulations in force, provided that evidence thereof is provided to the bodies responsible for waste disposal and overriding public interest does not otherwise require.' 24. The Commission does not take issue with the general definition of 'waste' in Para­ graph 1(1) of the Law. That provision states:

'It is clear ... that a substance of which its holder disposes may constitute waste within the meaning of Directives 75/442 and 78/319 even when it is capable of economic reutilization.'

28. There remains the question whether the German definition is in conformity with Directive 75/442. In its pleadings the Ger­ man Government refers to a ruling of the Bundesgerichtshof indicating that the con­ cept of waste is to be construed broadly in the light of the relevant Community provi­ sions and case-law and to a draft law designed to secure formal amendment of the 30. Directive 75/442, even in its original definition of waste in the German legislation. form, requires Member States to establish a Nevertheless in its rejoinder the German comprehensive system for waste manage­ Government refers to its communication of ment. As part of that system Member States 20 March 1992 replying to the reasoned must ensure that any holder of waste either opinion, where it acknowledges that Para­ disposes of it himself in a manner which graph 1(3), point 7, applies wherever goods neither endangers human health nor harms are made available for commercial collection, the environment or entrusts its disposal to a the rationale being that the objective inten­ private or public waste collector or disposal tion of the owner of the goods in such cases undertaking (Article 7). The Directive intro­ is to dispose of economic goods rather than duces a system of permits, together with waste. inspections, for installations or undertakings treating, storing or tipping waste on behalf of third parties (Articles 8 and 9). Undertak­ ings dealing with their own waste and those which collect or transport waste on behalf of third parties are subject to supervision by the competent authority (Article 10).

32. Any establishment or undertaking carry­ ing out the operations listed in Annex IIB must obtain a permit (Article 10). By virtue of Article 12 establishments or undertakings 35. I conclude that, by excluding certain cat­ which collect or transport waste on a com­ egories of recyclable waste from the scope of mercial basis or which arrange for the dis­ the Law, Germany is in breach of its obliga­ posal or recovery of waste on behalf of oth­ tion to implement Directive 75/442 but not ers must, where they are not subject to in breach of its obligation to implement authorization, be registered with the compe­ Directive 78/319. tent authorities. Moreover, under Arti­ cle 13 they are to be subject to appropriate periodic inspections by the competent authorities.

(2) Cross-border movement of hazardous waste

33. It is clear therefore that the system of supervision and management established by the Directive is intended to cover all objects 36. During the pre-litigation phase the and substances discarded by their owner, Commission put forward the general com­ even if they have a commercial value and are plaint that Paragraph 2 of the Law, which

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— without causing a nuisance through noise or odours;

40. Article 1 of Directive 84/631 reflects the 21 — Cited above in note 14. obligation imposed on Member States by

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Article 5 of Directive 78/319 by providing 2. Notification shall be effected by means of that: a uniform consignment note, hereinafter referred to as the "consignment note", to be drawn up in accordance with Article 15 and the contents of which are set out in Annex I.

'Member States shall, in accordance with the provisions of this Directive, take the neces­ sary measures for the supervision and con­ trol, with a view to the protection of human 3. When so notifying the competent author­ health and the environment, of the transfron­ ity of the Member State responsible for issu­ tier shipment of hazardous waste both ing the acknowledgement of receipt, the within the Community and on its entering holder of the waste shall provide it with sat­ and/or leaving the Community.' isfactory information on the following in particular:

Where the waste is disposed of in a third 2. Not later than one month after receipt of State bordering on the last Member State of the notification, the acknowledgement of transit, the latter shall be entitled to issue the receipt or any objection raised in accordance acknowledgement of receipt or to raise any with paragraph 3 shall be forwarded to the objection in place of the Member State holder of the waste: referred to in (c). A Member State of transit intending to exercise the right conferred upon it in this subparagraph shall communi­ cate it to the Commission and other Member States. It may not exercise this right earlier than three months following such communi­ (a) either by the competent authority of the cation. Member State of destination;

(b) in the case of shipments of waste from a 3. Objections must be substantiated on the third State in transit through the Com­ basis of laws and regulations relating to envi­ munity for disposal outside the Commu­ ronmental protection, public policy and nity, by the competent authorities of the public security or health protection which last Member State through which the are in conformity with this Directive, with shipment is due to pass; or other Community instruments or with inter­ national conventions on this subject con­ cluded by the Member State concerned prior to notification of this Directive.

(c) in the case of shipments of waste from a Member State for disposal outside the Community in a third State, by the com­ petent authorities of the Member State of dispatch, except in the case provided for in the last subparagraph of this paragraph

'A person who wishes to transport waste 42. The relevant German rules are contained out of or through the territory to in Paragraphs 2 and 13 of the Law and in the which the present Law applies must obtain

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authorization from the competent authority. (c) the elimination of the waste in the recip­ Such authorization may be granted only if: ient State is not liable to harm the public interest in the territory to which the present Law applies.'

1. the transport, treatment, storage or deposit of the waste is not likely to harm the public interest;

45. Paragraph 8 of the Regulation provides:

'A restricted authorization procedure shall apply:

(3) whether the transport of the waste out­ side the territory to which the Law (a) in the case of the transport of dangerous applies complies with existing waste waste out of the territory to which the disposal plans or similar provisions of Law applies to a Member State of the the Land.' European Communities,

... .’

48. It may thus be noted that the require­ ment in Paragraph 13(1), point 4(a), that the waste cannot adequately be disposed of in Germany does not apply in the case of exports of waste to other Member States. 47. Paragraph 11 of the Regulation provides:

'The competent authority shall examine in the course of the authorization procedure 49. In contrast to the Directive, which pro­ under Paragraph 10 vides for a system of notification and acknowledgement, the German rules pro­ hibit disposal of waste outside Germany unless expressly authorized under Para­ graph 13. However, Paragraph 7 of the Reg­ ulation provides that an application for authorization under Paragraph 13 of the (1) the lawfulness of the shipment and the Law corresponds to a 'notification' under reliability of the persons responsible for Article 3 of the Directive, and that an autho­ it (Paragraph 13(1), points 1 and 2, of rization under Paragraph 13 corresponds to the Law), an 'acknowledgement' under Article 4(1).

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50. The Commission maintains that, not­ withstanding those adaptations of the autho­ rization procedure, the Law and the Regula­ tion do not correctly implement the 52. Secondly, I do not consider that the Directive. It contends first that the principle imposition of a requirement of authorization that waste must be disposed of in Germany, is in itself contrary to the Directive. As we embodied in Paragraph 2 of the Law, is have seen, an authorization under the Law is incompatible with the provisions of declared to be equivalent to an 'acknowl­ Directives 84/631 and 86/279. Secondly, it edgement' of notification within the meaning considers that the requirement of authoriza­ of the Directive, and the refusal of authoriza­ tion for any cross-border movement of tion is declared to be equivalent to an 'objec­ waste laid down in Paragraph 13(1) is con­ tion'. Accordingly, as long as authorization is trary to Directive 84/631; the right to move granted whenever acknowledgement is waste granted by the Directive is reduced to required to be given under the Directive, and the possibility of authorization subject to is refused only where an objection can legit­ certain conditions being fulfilled. Thirdly, it imately be raised, authorization under the objects to two of the specific conditions for Law is equivalent to acknowledgement authorization of the cross-border movement under the Directive. The only question to be of waste. In relation to movements to other considered, therefore, is whether the criteria Member States, it objects to the requirement, for granting such authorization are consis­ in Paragraph 13(1), point 4(c), that the dis­ tent with the requirements of the Directive. posal of the waste in the State of destination should not be liable to harm the public inter­ est in Germany. In relation to exports to non-member countries, it objects both to that requirement and to the requirement that disposal of waste within the Land in which it is produced must be impossible and that the disposal of waste in another Land must be impossible or involve undue hardship for the 53. I turn therefore to the specific conditions person obliged to dispose of the waste. for authorization of movements of waste to

54. The Commission objects to the require­ ment in Paragraph 13(l)(4)(c) of the Law that the movement of waste should not involve any risk of harm to the public inter­ 56. As already noted, however, Article 12 of est in Germany. In its communication of Directive 78/319, to which Article 4(6) of 20 March 1992 replying to the reasoned Directive 84/631 refers, provides that plans opinion the German Government states that for the disposal of toxic and dangerous waste the concept of public interest encompasses are to cover such matters as the methods of the protection of environment. This is con­ disposal, specialized treatment centres and sistent with Paragraph 1 of the Law which, suitable disposal sites. The drawing up of as already noted, states that for the purposes such plans is a specific instance of the general of the Law 'waste' means 'movable objects obligation imposed by Article 5 to take the which the owner wishes to discard or the necessary measures to ensure that toxic and proper disposal of which is required in order dangerous waste is disposed of without to safeguard the public interest, in particular endangering human health and without the protection of the environment'. harming the environment in particular 'with­ out risk to water, air, soil, plants or animals; without causing a nuisance through noise or odours; without adversely affecting the countryside or places of special interest'.

55. The Commission's complaint therefore amounts to the somewhat surprising conten­ tion that, in approving the disposal of haz­ ardous waste produced in Germany in another Member State, the German authori­ ties are precluded by Directive 84/631 from talcing account of the environmental impact of the disposal on German territory. The 57. It is entirely possible that the disposal of Commission justifies that contention on the hazardous waste in another Member State, basis that Article 4(6) of the Directive merely particularly an adjacent Member State, may allows the Member State of dispatch to lay have serious environmental consequences in down conditions in respect of the shipment Germany within the meaning of Article 5. It

58. It may be noted that the Commission has not adduced any evidence to show that the German authorities have interpreted the condition in question excessively broadly so as to prevent the transport of waste in cir­ 60. By virtue of Article 4(2)(c) of the Direc­ cumstances where there was no environmen­ tive, in the case of shipments for disposal tal threat in Germany. outside the Community, the Member State responsible for issuing the acknowledge­ ments of receipt under Article 4(2) is the Member State of dispatch, unless the last Member State of transit upon which the non-member country borders exercises its (b) Exports to non-member countries option to issue the acknowledgement of receipt or raise any objection in place of the Member State of dispatch. The grounds on which a Member State may object to exports outside the Community are somewhat broader than for intra-Community move­ ments. The objections raised must, under Article 4(3), 'be substantiated on the basis of 59. As regards authorization of exports of laws and regulations relating to environmen­ waste to non-member countries the Com­ tal protection, public policy and public secu­ mission objects to two conditions: rity or health protection which are in confor­ mity with this Directive, with other Community instruments or with interna­ tional conventions on this subject concluded by the Member State concerned prior to notification of this Directive'.

First, the condition, already considered in relation to movements to other Member States, that there should be no risk of harm to the public interest in Germany (Paragraph 13(1)(4)(c)); secondly, the requirement that there must be no suitable disposal site in the Land in which the waste 61. As in the case of exports to other Mem­ is produced and the use of waste disposal ber States, the Member State of dispatch may

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Directive. The issue here however is by the third recital in the preamble, which somewhat different, namely whether it is states: permissible for a Member State to refuse export of waste to a non-member country on the ground that the waste can adequately be disposed of in Germany. Unlike a general ban on importation, the German measure does not render meaningless the system of control established by the Directive.

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70. It follows that all the Commission's — for Baden-Württemberg only a draft was complaints relating to the cross-border submitted; movement of hazardous waste must be rejected.

— for Hessen, Lower Saxony, Rheinland- Pfalz, Bremen and the Saarland the plans (3) The failure to submit waste disposal were not updated, whereas the Commis­ plans sion received a new plan for Hamburg dated 9 February 1990;

— the plans for Bavaria, Berlin, Hessen, 71. As already noted, Article 12 of Lower Saxony and Rheinland-Pfalz do Directive 78/319 requires Member States to not appear to have been published. forward to the Commission plans for the disposal of toxic and dangerous waste which the competent authorities are required to draw up, keep up to date and make public.

73. In its application the Commission rejected the German Government's view that there was no infringement because Arti­ cle 12 of the Directive did not stipulate a 72. The Commission notes that by a letter of date for drawing up and updating the plans; 12 November 1988 Germany submitted to Article 21 of the Directive laid down a time- the Commission a series of plans for the limit for implementation of the Directive of Bundesländer. It claims that Germany had 24 months from the date of its notification. nevertheless failed to comply with Arti­ cle 12 in the following respects:

78. The Commission's complaint must therefore be upheld.

76. It seems clear that, although the German Government has to a very large extent com­ plied with its obligations under Article 12, the Commission is correct in its assertion that at the date specified in the reasoned opinion, i. e. 25 November 1991, implemen­ tation was deficient in certain respects. The 79. Before concluding, I must express reser­ German Government's communication of vations about the Commission's decision to 26 May 1993 appears to confirm that: commence and to maintain this action. The Commission's first claim, while not unfounded, has not disclosed any grounds for real concern for the environment. As for the second claim, which seems to have been the principal reason for bringing the action, I consider that the developments in the Com­ — in the case of Nordrhein-Westfalen cer­ munity's environmental policy which have tain plans had not been drawn up or taken place, as I have pointed out, since the notified; proceedings were initiated, could well have

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led the Commission to withdraw that claim. Costs The third claim, while it has identified cer­ tain relatively minor infringements, was scarcely such as to justify the resources required for an action of this kind. The Commission should in my view be encour­ aged to launch proceedings of this kind only after a careful assessment of its priorities, 80. Since the parties have succeeded on some with a view to making the best use of the heads and failed on others, they should be limited resources of the Court, the Member ordered to bear their own costs pursuant to States and the Commission itself. Article 69(3) of the Rules of Procedure.

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