C-209/98

SYDHAVNENS STEN & GRUS

OPINION OF ADVOCATE GENERAL LEGER delivered on 21 October 1999 *

1. Must Article 90 of the EC Treaty (now undertakings to which Member States Article 86 EC), in conjunction with Arti- grant special or exclusive rights, Member cles 34 (now, after amendment, Article 29 States shall neither enact nor maintain in EC) and 86 (now Article 82 EC) thereof, be force any measure contrary to the rules construed as precluding national legislation contained in this Treaty, in particular to which grants, mainly to one undertaking, those rules provided for in Article 6 and the exclusive right to collect and recover Articles 85 to 94'. However, Article 90(2) non-hazardous waste produced in one part of the Treaty states that undertakings of the national territory but does not entrusted with the operation of services of prohibit the export of such waste for general economic interest or having the purposes of recovery? That, in essence, is character of a revenue-producing mono- the tenor of the questions referred to the poly may derogate from such rules, where Court for a preliminary ruling. such rules obstruct the performance, in law or in fact, of the particular tasks assigned to them.

I — The legal framework 3. Under Article 34 of the Treaty, quanti- tative restrictions on exports, and all mea- sures having equivalent effect, are prohib- ited between Member States. A — Community law

The Treaty 4. However, under Article 36 of the EC Treaty (now, after amendment, Article 30 EC), Member States are authorised, for reasons, in particular, of public morality, 2. Article 90(1) of the Treaty provides that: public policy, public security and the pro- '[I]n the case of public undertakings and tection of health and life of humans, animals or plants, to adopt measures pro- hibiting or restricting trade between Mem- * Original language: French. ber States.

6. Article 130r of the EC Treaty (now, after amendment, Article 174 EC) sets out the Council Regulation (EEC) No 259/93 of criteria, principles and objectives to be 1 February 1993 on the supervision and observed by the Community in preparing control of shipments of waste within, into its environmental policy. and out of the European Community 1 (hereinafter the 'regulation')

11. This regulation, which replaces Council Directive 84/631/EEC of 6 December 1984 7. Article 130r(2) states, in particular, that on the supervision and control within the Community policy on the environment is to European Community of the transfrontier be based on the principle that environmen- tal damage should as a priority be rectified at source. 1 — OJ 1993 L 30, p. 1.

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shipment of hazardous waste, 2is based on the Community system established by this Article 130s of the Treaty. It seeks to Regulation'. Under paragraph 3, 'Member organise the supervision and control of States shall inform the Commission of their transfrontier shipments of waste 3and to system for the supervision and control of establish minimum common rules for the shipments of waste'. Pursuant to para- supervision and control of shipments of graph 4, Member States may apply the waste within a Member State. 4 system of shipments of waste between Member States established by the regula- tion within their jurisdiction.

12. Article 1 states that 'This Regulation shall apply to shipments of waste within, into and out of the Community'. Council Directive 91/156/EEC of 18 March 1991 6 amending Directive 75/442/EEC on waste 7(hereinafter 'Direc- tive 91/156' or 'the Waste Directive')

tion, makes it clear that collection is the 19. Similarly, Article 6 requires Member first operation in waste management [sub- States to establish or designate the compe- paragraph (d)] and that 'collection' means tent authority or authorities to be respon- 'the gathering, sorting and/or mixing of sible for the implementation of the Waste waste for the purpose of transport' [sub- Directive. paragraph (g)].

17. Directive 91/156 confers broad discre- 20. The Member States' discretion is lim- tion on the Member States to determine ited by the obligation imposed on them to both the content and the system of the comply with certain requirements. instruments necessary to achieve the objec- tives pursued by it.

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B — National provisions priately large treatment plants; on grounds of investment and profitability, it was recommended that only a limited number of such plants be built. The legal system established for the man- agement of building waste in the Copenha- gen region

26. A definitive plan was adopted in mid- June 1994.

23. In accordance with Article 7 of the Waste Directive, following a request made in 1988 by the Danish Ministry of the Environment, the Hovedstadsråd (Copen- hagen City Council) drew up a waste 27. Like all municipalities in Denmark, the management plan for the Copenhagen Municipality of Copenhagen is responsible region. The ministry had found that for waste produced in its area. approximately one third of building waste, which accounts for 20% of all Denmark's waste, was produced in the Copenhagen region and that the few mobile crushing plants operating in that region had the capacity to handle only a relatively small 28. As part of that responsibility, and while proportion of that waste. the studies were being carried out by the Hovedstadsråd, the competent authorities of that municipality considered setting up a company to operate a regional stationary treatment plant. In June 1989, a working group made up of representatives of the 24. In 1988, according to the calculations Miljøstyrelsen (National Agency for the of the Municipality of Copenhagen (other- Protection of the Environment) and the wise referred to hereinafter as the 'defen- Hovedstadsråd published a press notice dant in the main proceedings'), only some inviting expressions of interest from all 16% of the estimated annual quantity of public or private parties wishing to become 382 000 tonnes of waste was recycled, involved in the project. while the remaining 84% was disposed of.

34. In accordance with those municipal regulations, the Municipality of Copenha- gen concluded agreements for the receipt 31. In 1992 and 1998, following the adop- and treatment of building waste with three tion of the Copenhagen regional waste undertakings, including principally RGS. management plan and the setting up of Other undertakings, although technically RGS, the Municipality of Copenhagen qualified to treat building waste, are there- adopted two regulations (hereinafter the fore excluded from the market in the 'municipal regulation of 1992' and the collection and recovery of building waste 'municipal regulation of 1998') establishing produced within the area under the Muni- a collection system exclusively for the cipality of Copenhagen. management of building waste. Under that system, the municipality can enter into contracts for the collection and recovery of building waste produced within its area only with a limited number of undertak- 35. The draft waste management plan ings. Other reception plants are, by the prepared by the Municipality of Copenha- same token, excluded from the market gen for 2000 provides that the quasi- except in cases where the law and the exclusive right conferred on RGS must be municipal regulations provide for exemp- reviewed at the end of a normal deprecia- tions designed to preserve recycling agree- tion period for plant and equipment. ments already concluded by waste produ- cers.

I I— Facts and procedure 32. Those municipal regulations implement a different collection system from that applicable, in principle, to other types of waste. The usual system takes the form of 36. Sydhavnens Sten & Grus ApS (herein- contracts concluded between the Munici- after: 'Sydhavnens Sten & Grus' or the pality of Copenhagen and all private under- 'plaintiff in the main proceedings') is a takings transporting and receiving waste company whose business has consisted, which satisfy environmental requirements. since 1983, in buying and selling materials

42. In November 1995 Syhavnens Sten & Grus brought an action against the Muni- cipality of Copenhagen before the Østre 38. That authorisation recognises that the Landsret (Eastern Regional Court). It plaintiff in the main proceedings has the sought primarily an order prohibiting the qualifications required from an environ- Municipality of Copenhagen from prevent- mental point of view to carry out the ing the transfer and treatment, by the operations involved in the treatment of reception plant operated by the plaintiff, building waste. It also allows it to recover of building waste produced within the area building waste received from neighbouring of that municipality. In the alternative, it- municipalities of the Municipality of claimed that the Municipality of Copenha- Copenhagen, but not to recover such waste gen should be ordered to grant it the produced within the area of the Munici- authorisation applied for in August 1994. pality of Copenhagen itself.

43. The national court was unsure whether the Municipality of Copenhagen was enti- 39. In August 1994 Sydhavnens Sten & tled, by means of municipal regulations, to Grus applied for authorisation to collect exclude technically qualified reception and recover building waste produced plants from the market in the treatment of within the area of the Municipality of non-hazardous building waste by relying Copenhagen. mainly on the concern to ensure the profit-

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ability of the newly built treatment centre. Treaty, in conjunction with Arti- Consequently, by order of 27 May 1998, cles 34 and 86 thereof, if the the national court decided to stay the communal provision forming the proceedings and to refer the following basis of that system provides that questions to the Court for a preliminary waste which is exported or ruling: imported is not covered by the communal system mentioned in Question 1(a)?

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cerning the receipt and recovery of III — The answers to the questions environmentally non-hazardous build- ing waste?

A — The first question

44. By its first question, which is subdivi- 3. (a) Must Article 7(3) of Directive ded into three subquestions, the national 75/442, as amended by Directive court is asking the Court to determine 91/156, be construed as meaning whether: that that provision and the power it grants to prevent movements of waste allow a communal system such as that described in Question 1(a) and thereby allow the com- mune to prevent the movement of (a) Article 90 in conjunction with Arti- environmentally non-hazardous cle 86 precludes national provisions building waste destined for recov- such as the municipal regulations of ery, if such movement is contrary 1992 and 1998 which, for reasons to the waste plan drawn up by the connected with the profitability of the commune? undertakings selected, reserves the col- lection and recovery of environmen- tally non-hazardous building waste within the area of the Municipality of Copenhagen principally for one parti- cular undertaking which has been spe- cially authorised or licensed, even though other undertakings hold authorisations to treat waste of the same type in accordance with Directive (b) Must Article 7(3) of Directive 91/156; 75/442, as amended by Directive 91/156, be construed as meaning that measures which a Member State or a competent authority in that Member State has adopted, and which are necessary to prevent (b) Article 90 in conjunction with Arti- movements of waste not in accor- cle 34 precludes legislation such as the dance with the waste plans of the municipal regulations of 1992 and authority, are valid and enforce- 1998 which contains no specific provi- able against individuals or under- sions relating to exports and imports of takings to which the measures are building waste or which expressly relevant only if the EC Commis- provides that exports and imports of sion has been notified of those such waste are not covered by the measures?' communal system in question;

49. There is little doubt that the entities in question in the main proceedings, and in particular RGS, are engaged in an eco- 45. Article 90(1) of the Treaty provides nomic activity 14 and that they provide a that, in the case of public undertakings service for payment. Moreover, this point and undertakings to which Member States has not given rise to any discussion. It must grant special or exclusive rights, Member therefore be concluded that they are to be States must neither enact nor maintain in regarded as undertakings within the mean- force any measure contrary to the rules ing of Article 90(1) of the Treaty. contained in the Treaty and in particular those relating to competition. That provi- sion sets out to govern relations between the Member States and any private or public undertakings to which they grant special or exclusive rights. It also defines 50. With regard to the addressee of the the obligations to be complied with by the obligations provided for in Article 90(1) of State. the Treaty, the Court has consistently held that the concept of 'Member States' 'includes, in this context, the public autho- rities at the regional, provincial or commu- nal level — [which have obligations] 46. The answer to the first part of the first question presupposes that a situation such 13 — See one of the Court's most recent judgments, delivered on as that described by the national court falls 21 September 1999, in Case C-67/96 Albany International [1999] ECR I-5751, paragraph 77, and the judgments within the personal and material scope of cited under that reference. Article 90(1) of the Treaty. That presuppo- 14 — By analogy, see the judgment in Case C-203/96 Dusseldorp and Others [1998] ECR I-4075 and point 34 of this sition must therefore be verified. Opinion.

towards undertakings "to which [the Mem- 53. The Treaty gives no definition of ber States] grant special or exclusive 'exclusive rights'. However, it is clear from rights'". 15 the Court's case-law that, for the purposes of Article 90( 1 ) of the Treaty, they are to be understood as rights granted in an exclusive manner by a measure adopted by a State to a limited number of undertakings in all or part of the national territory. 51. It is not at all disputed that the regulations at issue were adopted by the Municipality of Copenhagen. It has been made clear that the Danish law on the environment delegates responsibility for enacting legislation on waste treatment to the communes. The Municipality of Copen- 54. Thus, in the judgment in lnler-Htiiles hagen must therefore be regarded as the and Others, 18 the Court held that a public authority required to comply with national measure such as that enacted by the obligations laid down in Article 90(1) the French legislation, which expressly of the Treaty. provided that only undertakings holding an approval granted by the competent national authorities could carry out the activities of collection and disposal of waste oils, had to be regarded as granting 52. It remains to be ascertained whether the undertaking concerned an exclusive the undertakings in question are granted right within the meaning of Article 90(1) exclusive rights. The Danish Govern- of the Treaty. ment, 16 the Commission and the plaintiff in the main proceedings take the view that the municipal regulations of 1992 and 1998 do grant them such rights. According to them, those exclusive rights consist in receiving and treating building waste from waste producers operating within the area 55. Similarly, in the judgment in Merci of the Municipality of Copenhagen. The Convenzionali Porto di Genova, 19 the Municipality of Copenhagen disputes that Court ruled that 'a clock-work undertaking and points to contracts concluded by it enjoying the exclusive right to organise with other undertakings, which relate both dock work for third parties, as well as a to the receipt and to the treatment of dock-work company having the exclusive building waste produced within its area. right to perform dock work must be In particular, it cites a contract concluded regarded as undertakings to which exclu- on 17 March 1992 with Farum Sten & sive rights have been granted by the State Gruskompagni A/S. 17 within the meaning of Article 90( 1 ) of the Treaty'. The exclusive right in that case derived from a provision of the Italian 15 — See, in particular, the judgment in Case 30/87 Bodson Navigation Code. [1988] ECR 2479, paragraph 3.3. 16 — See point 2.1.1, at the end, of the French translation of its written observations. 17 — See p. 44, second paragraph, of the French translation of 18 — Case 172/82 [1983] ECR 555, paragraph 15. its observations. 19 — Case C - 1 7 9 / 9 0 [1991] ECR I-5889, paragraph 9.

57. Likewise, in its judgment in Centre 59. The argument expounded by the Muni- d'Insémination de la Crespelle, known as cipality of Copenhagen, that the documents 'La Crespelle', 21 the Court took the view in the main proceedings show that, during that 'by making the operation of the the period at issue, it concluded contracts insemination centres subject to authorisa- relating to similar services with undertak- tion and providing that each centre should ings other than those specially and exclu- have the exclusive right to serve a defined sively selected, 22 cannot cast doubt on that area, the national legislation granted those fact. The existence of exclusive rights is to centres exclusive rights'. be assessed in the light of the content of the national law in force or of any mandatory national provision of general application, and not in the light of specific practices of a competent authority, which can be chal- 58. In the present case, as we have seen, the lenged at any time and without notice. municipal regulations of 1992 and 1998 establish a system for the collection of building waste destined for recovery which involves the conclusion, by the defendant in the main proceedings, of agreements with a limited number of undertakings for the collection, receipt and treatment of waste produced within its area. Through the 60. I am therefore bound to conclude, at operation of those regulations, other under- this stage of my consideration of the case, takings, including Sydhavnens Sten & that, in a situation such as that described in Grus, are excluded from that market. It is the order for reference, undertakings enjoy- also apparent from the documents submit- ing the right to collect and recover non- ted to the Court that those regulations hazardous building waste in a particular provide for only one exception aimed at area are holders of exclusive rights within preserving recycling agreements already the meaning of Article 90(1) of the Treaty.

66. Firstly, the application of Article 86 of the Treaty presupposes that the undertak- ing in question has a dominant position 63. It will be recalled that Article 90(1) within the common market or in a sub- deals both with relations between the stantial part of it. 2 5 Member States and undertakings and with the obligations of those States, which it prohibits from enacting or maintaining in force certain measures which would be contrary to the provisions of the Treaty. Article 86 'applies only to anti-competitive 67. The Danish Government and the Muni- conduct engaged in by undertakings on cipality of Copenhagen maintain that it is their own initiative, not to measures solely for the national court to determine adopted by States'. 23 The Court has con- whether the undertakings in question enjoy sistently held that the aim of Article 90(1), a dominant position in a substantial part of in conjunction with Article 86, is to specify the common market and that, in any event, the conditions for the application of the the order for reference does not contain competition rules laid down by Article 86 sufficient information to enable the Court to undertakings granted special or exclusive to take a view on such a possibility. They rights by the Member States and to under- also point out that this condition is not takings entrusted with the operation of fulfilled, since, in particular, the exclusive services in the general interest. 24 right granted to the undertakings in ques- tion on the market in the receipt and treatment of non-hazardous building waste affects the area of the Municipality of Copenhagen and not Denmark as a whole. 64. In order to examine this question, it is In their view, that market is far from first necessary to ascertain that Article 86 is applicable. 25 — See, in particular, the judgments in Case C-41/90 Höfner and Elser [1991] ECR I-1979, paragraph 28, Case C-260/89 ERT [1991] ECR I-2925, paragraph 31, Merci Convenzionali Porto di Genova, cited above, para- 23 — See, in particular, the judgment in Corbeau, cited above, graph 14, Corbeau, cited above, paragraph 9, Case paragraph 10. C-163/96 Raso and Others (1998] ECR I-533, para- 24 — See, for example, the judgment in Bodson, cited above, graph 25, and Case C-266/96 Corsica Ferries France paragraph 16. [1998] ECR I-3949, paragraph 39.

69. According to the Court, a dominant position within the meaning of Article 86 'is characterised ... by a position of eco- nomic strength enjoyed by an undertaking 72. I have stated earlier that, in a situation which enables it to hinder the maintenance such as that described by the national of effective competition on the market by court, in which undertakings are granted allowing it to behave to an appreciable the right to collect, receive and recover, on extent independently of its competitors and an exclusive basis, non-hazardous building its customers'. 2 6 It is also clear from the Court's case-law that 'the application of 27 — Judgment in Bodson, cited above, paragraph 26. 28 — Judgment in Dusseldorp and Others, cited above, para- graph 60; see also the judgments in Corbeau, cited above, 26 — See, in particular, the judgments in Case 322/81 Michelin v paragraph 9, and Raso and Others, cited above, para- Commission [1983] ECR 3461, and in Bodson, cited graph 25, as well as the judgments cited under the latter above, paragraph 26. reference.

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74. The Court has always held that the 76. The second argument put forward by definition of the relevant market must be the Danish Government and the Munici- made 'in the context of [a] market com- pality of Copenhagen — that it is a matter prising the totality of the products [or for the national court to assess the facts — services] which, with respect to their char- does not seem to me to be any more valid. acteristics, are particularly suitable for satisfying constant needs and are only to a limited extent interchangeable with other products [or other services]'. 3 0 In the present case, it appears that, under the 77. Although the Court has always held municipal regulations of 1992 and 1998, that 'the existence of such a dominant RGS is granted exclusive rights for the position is a question of factual assessment collection and recovery of non-hazardous for the national court', 3 2 it has also, just as building waste produced within the area of consistently, held that Article 177 of the EC the Municipality of Copenhagen. It must be Treaty (now Article 234 EC) establishes a concluded that the relevant market is that genuine cooperation between two separate of the collection and recovery of this type legal orders and that, within the framework of waste produced within the area of the of that cooperation, its duty is to provide Municipality of Copenhagen. the national court with all the information necessary to enable it to resolve the dispute 29 — See, in particular, the judgment in Case C-242/95 GT-Link [1997] ECR I-4449, paragraph 36. 30 — Judgment in Michelin v Commission, cited above, para- 31 — Judgment in Bodson, cited above, paragraph 28. graph 37. 32 — Ibid., paragraph 29.

8 1 . However, according to the Danish G o v e r n m e n t and the Municipality of Copenhagen, the area of the latter, to which the exclusive rights granted by the municipal regulations of 1992 and 1998 78. It is common ground that the national apply, is not identical with the Copenhagen court is asking the Court to interpret region. Moreover, the figures given by the concepts of Community law and especially national court were disputed at the hearing, to help it to identify a situation of abuse of notably by the Municipality of Copenha- a dominant position within the meaning of gen. Article 90(1) in conjunction with Arti- cle 86 of the Treaty, and not to resolve the dispute in the main proceedings.

83. First of all, it should be pointed out that the fact that the exclusive rights concern only a municipality is immaterial 87. It was reasonable to question whether, if that municipality represents a substantial in the context of the application of Arti- part of the market in the collection, receipt cle 90 in conjunction with Article 86 of the and recovery of non-hazardous building Treaty, the mere finding that exclusive waste. rights were conferred by a national measure automatically made it possible to establish the existence of abuse within the meaning of Article 86.

1997, d. II, p. 1; Blum, 'De Sacchi à Franzen en passant par La Crespelle: La Jurisprudence récente de l'article 9 0 ' , G P eur. N o 20, I I - 1 3 July 1999, p. 12; Charbit, 'L'article 90 du traité CE: I Développement des années 1994-1995, II Revirement sur la doctrine de l'abus automatique', Rev. dr. des aff. int., 1995, pp. 853 and 9 8 8 ; Chavrier, 'La jurisprudence de la Cour de justice sur l'application de l'article 90 du traité de Rome', CJEG, 1995, p . 125;

revolution: Article 90 and the triumph of the free market dominant position. in Europe's regulated sectors', European Competition Law Review, N o 2/1995, p. 78. 39 — See, in particular, Chavrier, 'Commentaire de l'article 86 du traité CE', cited above. 37 — See, in particular, the judgment in Bodson, cited above, 40 — C-18/88 [1991] ECR I-5941. paragraph 26; see also the judgments in Merci Convenzio- nali Porto di Genova, cited above, paragraph 15, Raso and 41 — Judgment cited above, paragraph 11. Others, cited above, paragraph 26, and Corsica Ferries 42 — C-393/92 [1994] ECR I-1477, paragraph 44. France, cited above, paragraph 38. 43 — Judgment in GB-Inno-BM, cited above, paragraph 25.

90. Assessing such situations is not always 88. However, in more recent judgments, easy. 47 However, the Court has pointed out the Court seems to have adopted a less that abuse of a dominant position is an liberal interpretation, from an economic objective concept. 48 In other words, 'abuse point of view, of Article 90 in conjunction may ... exist independently of any element with Article 86, which may be explained by of fault on the part of the dominant a concern to reconcile the requirements of undertaking'. 49 The Court has also pointed competition law and the willingness of the out that if the undertaking acts entirely on authors of the Treaty to 'tolerate' State its initiative, without State intervention, the monopolies. abuse of its dominant position will be attributable to that undertaking alone and its conduct examined in the light of Arti- cle 86. If, on the other hand, the State intervenes, the undertaking's conduct will be examined in the light of Articles 90 and 86. 50 89. Thus, in its recent case-law, the Court has held that 'merely creating a dominant position by granting exclusive rights within the meaning of Article 90(1) of the Treaty is not in itself incompatible with Article 86 of the Treaty. A Member State is in breach 9 1 . It should also be pointed out that, as of the prohibitions contained in those two the Court has consistently held, 51 it is provisions only if the undertaking in ques- immaterial that the national court did not tion, merely by exercising the exclusive identify any particular case of abuse. In rights granted to it, is led to abuse its that regard, the Court has held that any dominant position or when such rights are liable to create a situation in which that u n d e r t a k i n g is led t o c o m m i t s u c h 46 — Judgment in GT-Link, cited above, paragraph 3 3 , empha- abuses'. 45 It sometimes adds that 'any sis added. 4 7 — See, for example, the judgment in Albany Intenational, measure adopted by a Member State which cited above, paragraphs 96 and 97, where it seems to me that the Court held that abuse derived from the mere finding of the existence of a monopolistic position. 48 — Judgment in Case 85/76 Hoffmann-La Roche v Commis- sion [1979] ECR 4 6 1 , especially 5 4 1 . 44 — Point 24 of his Opinion in Case C-202/88 France v Commission [1991] ECR I-1223. 49 — See the Opinion of Advocate General Jacobs, especially point 126, in the GT-Link case, cited above. 45 — See the judgments delivered on 21 September 1999 in Albany International, cited above, paragraph 9 3 , emphasis 50 — See, in particular, the judgments in Bodson, cited above, added, Joined Cases C-115/97 to C-117/97 Brentjens' paragraphs 32 and 33, La Crespelle, cited above, para- Handelsonderneming [1999] ECR 1-6025, paragraph 9 3 , graphs 20 and 2 1 , and GT-Link, cited above, para- Case C-219/97 Maatschappij Drijvende Bokken [1999] graph 46. ECR I-6121, paragraph 8 3 , as well as the judgments cited 51 — See, in particular, the judgments in GB-lnno-BM, cited under those references, and the judgment in Dusseldorp above, paragraphs 2 3 and 24, and Raso and Others, cited and Others, cited above, paragraph 6 1 . above, paragraph 3 1 .

undertaking holding exclusive rights, which 94. 'Collection', for the purpose of the is able to distort in its favour the equal Waste Directive, means the waste manage- conditions of competition between the ment operation immediately following the various operators merely by exercising its production of waste 53 and consists of the monopoly, falls within the scope of the operations of gathering, sorting and mixing measures prohibited by Articles 90(1) and of waste for the purpose of transport. If the 86 of the Treaty. 52 municipal regulations in question reserve exclusive rights as regards the collection of building waste produced within the area of the Municipality of Copenhagen for three undertakings only, 54 the effect is to deprive waste producers of a choice of partners 92. The plaintiff in the main proceedings with whom they can conclude contracts for claims that, by granting the three under- the recovery, outside the national frontiers, takings in question exclusive rights with of waste generated by their activities. Those respect not only to the market in the producers are inevitably forced to split the recovery of building waste, but also to the various stages of the operation among market in the collection of such waste, the different partners. They are obliged to municipal regulations of 1992 and 1998 contract with RGS for the gathering, sort- deprive it of any access to the Community ing and mixing of the waste after the waste market in the collection of such waste, production stage, then with a transporter thereby unlawfully circumventing the com- and then, finally, with the waste recycling petition rules on that market and putting it operator based abroad. Only the two latter at a competitive disadvantage. partners can be freely chosen. The provi- sion in question thus necessarily has the effect of unreasonably restricting the com- petition rules within the common market in the treatment of waste and of restricting the commercial opportunities available to com- petitors operating on that market. 93. Those arguments seem to me to be relevant if that interpretation of the national legislation is confirmed by the national court. If it is indeed established that the municipal regulations grant to three undertakings only, including princi- pally RGS, exclusive rights for the collec- tion of waste, while at the same time leaving the waste producers a choice of dealing either with that centre or with third 95. That is why I conclude that national parties based abroad for the purpose of legislation which imposes on waste produ- recovering the waste, it seems to me that such a measure would give rise to a situation in which RGS could not avoid 53 — See my Opinion delivered on 16 September 1999 in the infringing Article 86 of the Treaty. Lirussi and Bizzaro case (judgment in Joined Cases C-175/98 and C-177/98 [1999] ECR I-6881). 54 — Which seems to be the case according to the explanations given by the national court, but which was disputed by the Danish Government and the defendant in the main 52 — See, in particular, the judgment in Raso and Others, cited proceedings in a note following the notification of the above, paragraph 29. Report for the Hearing and at the hearing.

96. Finally, it remains to be examined whether the abuse of a dominant position thus established may affect intra-Commu- 98. That factual assessment is also the task nity trade. 55 It is worth noting, however, of the national court, which alone is able to that the Court does not always reiterate the ascertain whether the activities of under- need for this third condition to be ful- takings enjoying a monopoly over a sub- filled. 56 Moreover, for that to be the case, stantial part of the territory of the Member the Court has held that 'That does not State in question affect, actually or poten- mean that the abuse must actually have tially, intra-Community trade and in parti- affected such trade ... [but that] it is cular the competition rules. According to sufficient to establish that the conduct is the Court, that task consists in 'consider[- capable of having such an effect ...'. 57 ing] whether, in the case before it, the activities of the group of undertakings [holding exclusive rights through the opera- tion of statutory provisions], and the monopoly they enjoy over a large part of the territory of a Member State, affect the importation of goods from other Member States or the possibility for competing 97. According to the Court, 'in order to undertakings established in other Member determine whether trade between Member States to provide services in the first- States is capable of being affected by an mentioned Member State'. 59 abuse of a dominant position, within the meaning of Article 86, account must be taken of the consequences for the effective competitive structure in the Common Mar- ket. In the case of services, those conse- quences may, in particular, ... consist in the activities of an undertaking or group of undertakings being, conducted in such a 99. It stands to reason that a system which 55 — See, in particular, the judgments in Bodson, cited above, reserves exclusively, principally for one paragraph 22, GB-lnno-BM, cited above, paragraph 27, and GT-Link, cited above, paragraph 44. undertaking, the collection of building 56 — See, in particular, the judgments in Corbeau, La Crespelle, Corsica Ferries France, Raso and Others and Dusseldorp and Others, all cited above. 57 — See, in particular, the judgment in GT-Link, cited above, 58 — Judgment in Bodson, cited above, paragraph 24. paragraph 44. 59 — Ibid., paragraph 25.

102. According to the Court's case-law, 'that provision may be relied upon to justify a measure contrary to Article 86 of 105. Finally, even assuming that the task the Treaty adopted in favour of an under- entrusted to that undertaking can indeed be taking to which the State has granted exclusive rights if that measure is necessary 60 — See the judgment in Dusseldorp and Others, cited above, to enable the undertaking to perform the paragraph 65, and the judgments cited under that refer- particular task assigned to it and if it does ence. 61 — See the judgment in Case C-159/94 Commission v Prance not affect the development of trade in a [1997] ECR I-5815, paragraphs 65 to 69.

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regarded as a task of general economic 2. Application of Articles 90 and 34 of the interest, the Court has also held that it is Treaty for the national government in question to show to the satisfaction of the national court that the granting of exclusive rights is necessary for the performance of the parti- cular task assigned to the undertaking and that, without the contested measure, the undertaking would be unable to carry out the task assigned to it. 62 107. In Question 1(b), the national court asks the Court to say whether Article 90 in conjunction with Article 34 of the Treaty must be construed as precluding legislation such as the municipal regulations of 1992 and 1998.

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110. There is little doubt that waste is treatment between the domestic trade of a 'goods' the movement of which, in accor- Member State and its export trade, in such dance with Article 30 of the EC Treaty a way as to provide a special advantage for (now, after amendment, Article 28 EC), 6 4 national products or for the domestic must in principle not be prevented and that market of the State in question'. 67 the system in question does not apply directly to trade in goods, but establishes a monopoly as regards the performance of services.

112. A measure having an effect equivalent to quantitative restrictions on exports, as prohibited by Article 34 of the Treaty, is defined by the Court as a national measure 'which [has] as [its] specific object or effect 115. However, if those regulations institute the restriction of patterns of exports and a monopoly over waste collection in the thereby the establishment of a difference in manner complained of by the plaintiff in the main proceedings — which is in any case for the national court to determine —, 64 — See, in particular, the judgment in Case C-2/90 Commis- sion v Belgium |1992] ECR I-4431, paragraph 28. 65 — See, in particular, the judgment.in Case 271/81 Société Coopérative d'Amélioration de l'Élevage et d'Insémination Artificielle du Béarn [1983] ECR 2057. 67 — Sec, in particular, the judgementsin Inter-Huiles and Others, cited above, paragraph 12, ami Dusscldor/i and 66 — See the judgment in Bodson, cited above, paragraph 10. Others, cited above, paragraph 40.

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it seems to me that they could be such as to 118. Finally, the national court asks the restrict patterns of exports and establish a Court to say whether Articles 36 and difference in treatment between the domes- 130r(2) of the Treaty may legitimately be tic trade of a Member State and its export relied on by a Member State which enacts trade, in such a way as to provide a special national measures with the object, for advantage for the domestic market of the purely economic reasons, of conferring on State in question. undertakings exclusive rights for the collec- tion and recovery of non-hazardous waste.

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121. It should be noted that Article 130t of B — The second question the Treaty also allows Member States to maintain or introduce more stringent pro- tective measures, provided that such mea- sures are justified primarily or even exclu- sively by the concern to protect the envir- onment effectively. 125. By its second question, the national court asks the Court to say whether the provisions of the Waste Directive, in parti- cular Article 10, must be construed as obliging Member States to conclude agree- ments for the receipt and recovery of environmentally non-hazardous building 122. However, the arguments put forward waste with all undertakings complying by the defendant in the main proceedings with the requirements of the Waste Direc- and by the Danish Government clearly tive. relate to the profitability of the undertak- ings enjoying exclusive rights and to the costs which they have to cover.

126. All the parties, except the plaintiff in the main proceedings, submit that such 123. The Court has held that aims of a interpretation does not follow cither from purely economic nature cannot justify a the wording of the provisions of the Waste barrier either to the fundamental principle Directive or from its objective. of the free movement of goods 71 or to the competition rules. 72

ments laid down in that provision. To that C — The third question end, an authorisation must be issued by the competent authority specifically designated by the State concerned (Articles 6 and 10 of the Waste Directive). 130. The third question, which is subdivi- ded into two subquestions, also concerns the interpretation of the Waste Directive. The Court is asked to say whether Article 7 must be construed as allowing national legislation to prohibit movements of non- hazardous waste destined for recovery, if such movements are contrary to the waste 128. The Court has thus held that '[t]he management plan laid down by that legis- harmonisation provided for in Article 1 of lation. The Court is further asked to the directive has as its main object to determine whether, in order for such legis- ensure, with a view to protecting the lation to be capable of producing legal environment, the effective management of effects as against individuals, the Member waste in the Community, regardless of its State which adopted that legislation must origin, and has only ancillary effects on the first have informed the Commission conditions of competition and trade'. 74 thereof.

136. Exercise of the power provided for in Article 130t presupposes the application of 133. By the same token, where a Member provisions based on Articles 130r and 130s State does not enact any measures the effect of the Treaty, namely, the implementation of which is to prohibit movements of waste of specific measures to protect the environ- within the Community, it does not seem to ment, and does not arise where measures be either expedient or necessary to inform are adopted on another legal basis, even if the Commission of that. the reasons given for such measures are of an environmental nature.

ple, movements of waste for recovery may 140. The Court has invariably held that not be restricted or prohibited by Member only 'the provisions of a directive [which] States. However, to qualify that case-law, I appear, as far as their subject-matter is think that exceptions should be allowed in concerned, to be unconditional and suffi- exceptional and sufficiently established ciently precise ... may, in the absence of cases. Thus a Member State which can implementing measures adopted within the show that movements of waste in a spe- prescribed period, be relied upon as against cially protected area would give rise to any national provision which is incompa- serious or irreversible environmental con- tible with the directive or in so far as the sequences should be able to obtain author- provisions define rights which individuals isation to restrict or prohibit movements of are able to assert against the State'. 78 waste contrary to that interest.

141. Article 7(3) of the Waste Directive provides that more stringent national pro- tective measures adopted by a State must be 138. It must therefore be concluded, in sent to the Commission for information. It answer to the first part of the third is patently obvious that that provision question, that a Member State has the allows the State very broad discretion, power to maintain or adopt national mea- leaving it free to decide not only to adopt sures aimed at protecting the higher-rank- a protective measure, but also the content ing interests of the environment. of such a clause. That is why Article 7(3) of the Waste Directive cannot be given direct effect.

(b) Article 90 of the Treaty in conjunction with Article 34 of the EC Treaty (now, after amendment, Article 29 EC) must be construed as precluding national legislation as described above which has the effect of restricting patterns of exports and of establishing a difference in treatment as between a Member State's domestic trade and its export trade, so as to provide a particular advantage for the domestic market of the State in question.

(c) Article 36 of the EC Treaty (now, after amendment, Article 30 EC) and Article 130r(2) of the EC Treaty (now, after amendment, Article 174(2) EC), which lays down the principle that environmental damage should as a priority be rectified at source, must be construed as not serving to justify restrictions of the competition rules and of the principle of the free movement of goods in the case of non-hazardous waste destined for recovery, in so far as the Member State concerned justifies the measures

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adopted by the need to ensure the treatment capacity of the approved undertakings.

(2) Directive 91/156 must be construed as not obliging Member States to conclude agreements for the receipt and recovery of non-hazardous building waste with all undertakings complying with the requirements which it lays down.