C-187/93

PARLIAMENT v COUNCIL

OPINION OF ADVOCATE GENERAL JACOBS delivered on 18 May 1994 *

My Lords, accordingly admissible under the case-law of 2 the Court.

3. The Regulation has both an 'internal' and 1. In this case the Parliament seeks the an 'external' aspect. That is to say, certain annulment of Council Regulation (EEC) provisions of the Regulation govern ship­ No 259/93 of 1 February 1993, on the super­ ments of waste within the Community, vision and control of shipments of waste whereas others are concerned with transfers within, into and out of the European Com­ between Member States and third countries, munity 1 (hereafter 'the Regulation'). The or with transit through the Community of Regulation was adopted under Article 130s waste destined for a third country. of the Treaty, but the Parliament submits that it should have been based on Art­ icles 100a and 113. The Kingdom of Spain has intervened in support of the Council.

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icle 113 does not require even consultation 7 control of shipments of hazardous waste. with the Parliament, the Parliament's prerog­ Thus paragraph 11 of the resolution declares atives could not be affected by the omission that the Council: 4 of Article 113 from the legal basis.

'CONSIDERS that movements of waste should be minimized and that the prevention of waste at source and the establishment of an adequate disposal network ... will play a vital role in this respect; 5. It follows that it will only be necessary to consider the internal aspects of the Regula­ tion. In what follows I will first set out the relevant provisions, and then discuss whether those provisions are more appropriately based on Article 130s or Article 100a. underlines that movements of waste must be subject to proper controls;

The Regulation invites the Commission to submit proposals for the amendment of Direc­ tive 84/631/EEC ....'

7. Directive 75/442 was accordingly amended by a subsequent directive. 8Rather 6. An important step in the development of than simply amending Directive 84/631, a comprehensive Community waste policy however, the Council decided to replace that was marked by the Council Resolution of 7 directive by a regulation, viz. the Regulation 5 May 1990. The resolution called, in partic­ contested in the present case. The preamble ular, for the amendment of Council Direc­ to the Regulation explains that its purpose is 6 tive 75/442/EEC on waste and of Council to replace Directive 84/631, in the light of Directive 84/631/EEC, which concerns the the Community's accession to the Basle

'... shipments of waste must be subject to prior notification to the competent authori­ ties ... so that these authorities may take all '... Council Directive 75/442/EEC of 15 necessary measures for the protection of 12 July 1975 on waste lays down in its Art­ human health and the environment, includ­ icle 5(1) that an integrated and adequate net­ ing the possibility of raising reasoned objec­ work of waste disposal installations, to be tions to the shipment; established by Member States through appropriate measures, ... must enable the Community as a whole to become self- sufficient in waste disposal and the Member States to move towards that aim individually, taking into account geographical circum­ ... Member States should be able to imple­ ment the principles of proximity, priority for recovery and self-sufficiency at Community 9 — See Council Decision 93/98/EEC of 1 February 1993 on and national levels — in accordance with the conclusion, on behalf of the Community, of the Con­ vention on the control of transboundary movements of Directive 75/442/EEC — by taking measures hazardous wastes and their disposal (Basle Convention) in accordance with the Treaty to prohibit (OJ 1993 L 39, p. 1). 10 — See the Decision of the Council and the Commis­ generally or partially or to object systemat­ sion 91/400/ECSC, EEC of 25 February 1991 on the con­ ically to shipments of waste for disposal, clusion of the Fourth ACP-EEC Convention (OJ 1991 L 229, p . 1). except in the case of hazardous waste pro­ 11 — Paris, 30 March 1992. duced in the Member State of dispatch in 12 — Cited above, note; amended by Directive 91/156, cited above, note. such a small quantity that the provision of

11. By Article 1, the Regulation applies to 'any difference between the provisions on shipments of waste within, into and out of disposal of hazardous waste ... may distort the Community, with the exception of the the conditions of competition and thus shipments listed in Article 1(2). However, directly affect the functioning of the com­ shipments of waste destined for recovery mon market; ... there are, in particular, differ­ only and listed in Annex II are in most cir­ ences between the procedures applying to cumstances excluded from the scope of cer- the supervision and control of the transfron­ tier shipment of hazardous waste within the Community; ... it is therefore necessary to 13 — See the fourth recital of the directive.

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tain provisions of the Regulation: see Art­ Annex II (see Article 10). In addition, the icle 1(3). Annex II contains the 'green list' of information requirements of Article 11 apply non-hazardous wastes, as opposed to the to waste listed in Annex II. hazardous wastes contained in the 'amber list' of Annex III and in the 'red list' of Annex IV. 14

14. It is therefore necessary to consider the provisions relating respectively to waste for 12. Article 2 defines certain terms for the disposal and waste for recovery, paying par­ purposes of the Regulation. It is to be noted, ticular attention to the differences between in particular, that the terms 'waste', 'disposal' the two, with a view to determining the and 'recovery' have the same meanings as appropriate Treaty basis of the Regulation in those defined in Article 1 of Direc­ the light of the Court's case-law as discussed tive 75/442, as amended by Council Direc­ below. 5 tive 91/156/EEC. 1 Thus 'recovery', for instance, means any of the operations in Annex II B to the directive, which lists vari­ ous specific kinds of reclamation, regenera­ tion and recycling.

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although no express authorization is for disposal and those applicable to waste for required. recovery.

16. In the case of waste for disposal, Ar­­ icle 5(1) provides that:

18. Thus in the case of waste for disposal, Article 4(3)(a)(i) provides that:

'The shipment may be effected only after the notifier has received authorization from the competent authority of destination.'

PARLIAMENT v COUNCIL

waste, may raise reasoned objections to 19. In the case of waste for recovery, on the planned shipments if they are not in accor­ other hand, Article 7(4)(a) provides only dance with Directive 75/442/EEC, especially that: Articles 5 and 7:

'The competent authorities of destination and dispatch may raise reasoned objections (i) in order to implement the principle of to the planned shipment: self-sufficiency at Community and national levels;

— in accordance with Directive 75/442/EEC, in particular Article 7 thereof,

(ii) in cases where the installation has to dispose of waste from a nearer source and the competent authority has given priority to this waste; or

— if it is not in accordance with national (iii) in order to ensure that shipments are in laws and regulations relating to environ­ accordance with waste management mental protection, public order, public plans.' safety or health protection,

20. In the case of waste destined for recov­ 22. It can be seen therefore that, as regards ery, therefore, objection may be made to a waste for disposal previously covered by planned shipment only on reasoned grounds Directive 84/631, the Regulation permits which relate to the particular shipment con­ Member States to impose restrictions of a cerned. In the case of waste for disposal, on kind which were not previously permitted the other hand, Member States may intro­ under the directive. The need for Member duce general or partial prohibitions, or make States to have such a power follows from the systematic objections, provided that such new approach to waste management embod­ measures are in accordance with the Treaty. ied in the amended version of Direc­ tive 75/442 (which I shall refer to simply as the 'Directive on waste'). For, as we have seen, Article 5(1) of that directive requires the Member States to set up 'an integrated and adequate network of disposal installa­ tions ... [enabling] the Community as a whole to become self-sufficient in waste dis­ posal and the Member States to move towards that aim individually', and Article 7 requires them to draw up waste management plans and to take the measures necessary to prevent movements of waste which are not 21. An indication of what kind of measures in accordance with those plans. It is clear would indeed be compatible with the Treaty that, depending upon the circumstances, is provided by the Court's judgment in the such measures might include a total or par­ 16 'Wallonian waste' case. In that case, the tial ban on waste imported for disposal. Thus Commission brought infringement proceed­ the Regulation is far from providing for a ings against Belgium in respect of a measure complete harmonization of the rules govern­ adopted by the regional authorities of Wallo- ing the transfer of waste, and might in part nia which prohibited the use of Wallonian even be regarded (in the words of one com­ disposal installations for waste shipped from mentator) as an 'organized renationalization' 1 another Member State. As regards hazardous of the subject. 8 waste falling within the scope of Direc­ tive 84/631, the Court held that a general prohibition of that kind was inconsistent with the directive, which permitted only rea­ soned objections in respect of particular shipments. As regards waste not falling within the scope of the directive, however, the prohibition was held to be compatible with Article 30 of the Treaty: the Court referred in particular to the limited capacity 23. In contrast, as regards waste for recovery of existing waste disposal facilities in Wallo- the position under the Regulation is similar nia, and to an unusually large influx of waste to the position under Directive 84/631, in from other regions of the Community. 17 that only reasoned objections may be made which relate to particular shipments. Thus,

The precise extent of that power may not be entirely clear in practice. Thus it may be 25. I note also that Chapter C (Article 12) of unclear when measures adopted by a Mem­ Title II gives a right of objection to third ber State are to be regarded as more stringent States of transit. versions of the Community measures, and when they are on the contrary to be regarded as measures of an entirely different kind, and hence as not permitted by Ar­­ 19 icle 130t. However, in the present case it is arguable that a Member State would be en­ titled in appropriate circumstances to impose 26. Title HI is concerned with shipments more stringent restrictions on the shipment within Member States. Article 13 provides of recoverable waste, for instance by impos­ that Member States must establish an appro­ ing a general or partial ban on such ship­ priate system of supervision and control of ments. Such a prohibition would now have shipments of waste within their jurisdiction. The system must be coherent with the sys­ tem established by the Regulation; a Member 19 — See Kramer, in Groeben/Thiesing/Ehlermann Kommentar State may, in particular, apply that system to zum EWC-Vertrag (4th edition, Baden-Baden 1991), pp. 4004-4005. purely domestic shipments.

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The previous case-law on the scope of Art- The Court then pointed out that, according icles 100a and 130s to its aim and content:

'the directive is concerned, indissociably, 27. The Court has considered the question with both the protection of the environment whether Article 130s or Article 100a should and the elimination of disparities in condi­ 23 form the legal basis of a measure on two pre­ tions of competition.' vious occasions.

'in the context of the organization of the powers of the Community the choice of the 29. From the 'Titanium Dioxide' case it can legal basis for a measure may not depend therefore be concluded that, where a direc­ simply on an institution's conviction as to tive pursues in equal measure both an inter­ the objective pursued but must be based on nal market and an environmental objective, objective factors which are amenable to judi­ the correct legal basis will be Article 100a. cial review ....' 22 However, the two objectives must indeed have equal weight; that was made clear by the subsequent case on the relation between Articles 100a and 130s. 20 — Case C-300/89 Commissionv Council [1991] ECR I-2867. 21 — Council Directive 89/428/EEC of 21 June 1989 on proce­ dures for harmonizing the programmes for the reduction and eventual elimination of pollution caused by waste from the titanium dioxide industry (OJ 1989 L 201, p . 56). 23 — Paragraph 13 of the judgment. 22 — Paragraph 10 of the judgment. 24 — See paragraphs 21 to 25 of the judgment.

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32. The Court's judgment in the 'Directive on waste' case is of particular relevance for our present purposes. For there is a close connection between the directive at issue in that case and the measure contested in the 31. The 'Directive on waste' case shows that present proceedings. Indeed, as the Council a measure which has an effect on the internal points out in its defence, the directive now market may none the less be correctly based provides the basic framework for all Com­ on Article 130s, provided that the environ­ munity legislation on waste. mental goals pursued by the measure form its principal objective. The directive at issue in that case can therefore be distinguished from the directive at issue in 'Titanium Dioxide'. In the latter case, as Advocate General Tesauro observed: 33. As we have seen, the measures which may be taken in order to restrict movements of waste for disposal, pursuant to Art­ icle 4(3)(a)(i) of the Regulation, implement the principles of 'proximity, priority for recovery and self-sufficiency ... in accordance 'it is impossible to identify in the directive with Directive 75/442/EEC'. Similarly, rea­ one main or predominant component and soned objections may be raised pursuant to another which is merely incidental or sec­ Article 4(3)(b) of the Regulation if the ship­ ments concerned 'are not in accordance with Directive 75/442/EEC, especially Articles 5

25 — Case C-155/91 Commission v Council [1993] ECR I-939. 26 — See above, note. 27 — See paragraphs 18 to 20 of the judgment, and see also Case C-70/88 Parliament v Council, cited above in note. 28 — See Titanium Dioxide', cited above in note, p. I-2885.

36. In the view of the Parliament, a measure which regulates the circulation of waste within the Community can only be based upon Article 100a of the Treaty. The Parlia­ ment accepts of course that the Regulation also pursues the objective of protecting the environment. However, it points out that (as the Court emphasized in 'Titanium Dioxide') the fact that a measure pursues an environ­ 34. As the Court emphasized in the 'Direc­ mental objective is not in itself sufficient to tive on waste' case, the purpose of such 32 bring the measure within Article 130s. arrangements is not to facilitate the free movement of waste. Their aim is rather to enable such movements to be limited, as far as possible, in order to secure protection of 31 the environment. Pursuant to that same objective, the Regulation establishes a uni­ 37. The Parliament draws a distinction form notification procedure which enables between the objectives of the Regulation and Member States to control movements of those of the Directive on waste. Although waste in accordance with their management the Parliament concedes that the aim of the plans. Thus at least one of the principal directive is to limit rather than to facilitate objectives of the Regulation is to implement movements of waste, it suggests that the a measure which, as the Court has held, was Regulation has an obverse aim to the one correctly based upon Article 130s. pursued by the directive: the aim of the Regu­ lation is to facilitate those transfers of waste which, having regard to the restrictions 29 — See above, paragraph. 30 — See paragraph. 31 — See the 'Directive on waste' case, cited in note, para­ graphs 10 and 15 of the judgment. 32 — See above, paragraph 28.

42. None the less, the Parliament has in my view failed to establish that the Regulation 40. It seems to me that the Parliament is cor­ should have been adopted under Art­ rect in suggesting that the provisions of Title icle 100a, rather than under Article 130s. It is III would not in themselves take the Regula­ no doubt true that, in laying down uniform tion outside the scope of Article 100a. The rules for the shipment of waste within the requirement to establish an appropriate sys­ Community, the Regulation will have a ben­ tem for domestic shipments, coherent with eficial effect on the internal market. For the the system laid down by Title II, can fairly very existence of such harmonized rules will be regarded as ancillary to the other require­ tend to facilitate the task of economic oper­ ments of the Regulation. For a domestic sys­ ators and to equalize conditions of competi­ tem which laid down substantially different tion in different Member States. As we have

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seen, however, a measure may be correctly 35 circulate freely within the internal market. based upon Article 130s even where it has an The measures introduced by Title II of the incidental effect on the functioning of the Regulation are not of that kind, however. internal market. Thus the test is whether the The aim of the Regulation is not to define environmental goals of the measure consti­ those characteristics of waste which will 33 tute its principal or predominant objective. enable waste to circulate freely within the internal market; rather, it is to provide a har­ monized set of procedures whereby move­ ments of waste can be prevented and con­ trolled in accordance with national law and with the requirements imposed by the direc­ tive on waste.

46. No doubt, in pursuing that objective the Regulation also aims to ensure that the restrictions imposed interfere to the least extent possible with the internal market. Thus paragraph 1 of the Council resolution on waste policy states that 'harmonization of 44. Of course, the free movement of goods measures at Community level should be may well be facilitated by measures which encouraged and rendered consistent with the 36 prevent the circulation of particular goods; development of the internal market ...'. As indeed, that is typically the way in which I have already observed, the establishment of internal market measures achieve their goal. a uniform notification procedure will in itself For example, the free movement of alkaline have a beneficial effect on the internal mar­ manganese batteries is facilitated by a mea­ ket. In particular, the provision of a 'tacit sure which ensures that the sale of batteries consent' procedure in the case of waste for containing more than a certain level of mer­ recovery has the effect of laying down a cury is prohibited in all Member States. Such strict deadline for objections, to the obvious a restriction is imposed in order that batter­ ies without an excessive level of mercury can 35 — See Council Directive 91/157/EEC of 18 March 1991 on batteries and accumulators containing certain dangerous substances (OJ 1991 L 78, p . 38), in particular Articles 3 and 9. 33 — See above, paragraph 31. 36 — Council Resolution of 7 May 1990, cited above in note 5; 34 — Cited above, note 25. my emphasis.

(1) dismiss the application;

(2) order the Parliament to pay the costs of the Council; and

(3) order Spain, as intervener, to bear its own costs.

37 — See above, paragraph 16.

38 — See above, paragraphs 20 and 23. 39 — See above, paragraph 24.

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