C-324/99

A — Community provisions 2. The decree lays down a mandatory procedure for the processing of certain waste for disposal. Essentially, it requires producers and holders of hazardous waste established in Land Baden-Württemberg to Directive 75/442/EEC 5 offer such waste, for incineration, to a processing centre belonging to that Land. Those operators are therefore denied the opportunity of exporting that type of waste to another Member State for processing there. 4. The directive seeks to harmonise national legislation on waste disposal. It was adopted on the basis of Articles 100 1 — Original language: French. and 235 of the EC Treaty (now Articles 94 2 — Council Regulation of 1 February 1993 on the supervision EC and 308 EC). The provisions of that and control of shipments of waste within, into and out of the European Community (OJ 1993 L 30, p. 1, 'the regulation'). 3 — 'The Agency'. 5 — Council Directive of 15 July 1975 on waste (OJ 1975 4 — GBl, p. 586, 'the decree' or 'the decree in issue'. L 194, p. 39, 'the directive').

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directive have in particular been amended need for specialised installations for certain by Council Directive 91/156/EEC of types of waste. 18 March 1991, 6 based on Article 130s of the Treaty (now, after amendment, Article 175 EC).

2. The network must also enable waste to be disposed of in one of the nearest appropriate installations, by means of the most appropriate methods and technolo- 5. Under Articles 3, 4 and 5, the directive gies in order to ensure a high level of seeks, first, to prevent, reduce, recover and protection for the environment and public use waste; secondly, to protect human health.' health and the environment in the proces- sing of waste, whether the waste is intended for disposal or recovery; and, finally, to establish at Community level and, if possi- ble, at national level, an integrated network for waste disposal. 7. Article 7 of the directive requires Mem- ber States to draw up waste management plans to attain the objectives referred to in Articles 3, 4 and 5 and to allow them to take measures to prevent movements of waste which are not in accordance with those plans. 6. Article 5 of the directive provides:

'In order to implement the principles of 11. The first sentence of Paragraph 9(1) of proximity, priority for recovery and self- the Gesetz über die Vermeidung und sufficiency at Community and national Entsorgung von Abfällen und die Behan- levels in accordance with Directive dlung von Altlasten in Baden-Württemberg 75/442/EEC, Member States may take (Landesabfallgestez), 9 in the 15 October measures in accordance with the Treaty to 1996 version, 10most recently amended by prohibit generally or partially or to object Paragraph 4 of the Law of 16 July 1998, 11 systematically to shipments of waste. Such provides that the authorities of Land measures shall immediately be notified to Baden-Württemberg are to establish, toge- the Commission, which will inform the ther with the producers and holders of other Member States.' waste, plants for the processing and dis- posal of waste requiring special supervi- sion.

B — National provisions 12. The second sentence of Paragraph 9(2) of the LAbfG enables the Land Govern- ment to determine by regulation that pro- ducers and holders of that type of waste Relevant legislative provisions must offer it to the operators of the processing centres or to the agency set up in accordance with Paragraph 28a(1) of that law.

10. Paragraph 41(1) of the Federal law of 27 September 1994 8 defines waste for disposal requiring special supervision as 'waste from industrial undertakings or 13. Under the third sentence of Paragraph other economic undertakings or public 9(2) of the LAbfG, waste which cannot be

8 — Directed at promoting recycling and ensuring the environ- 9 — The Land law on waste ('the LAbfG'). mentally sound disposal of waste (Kreislaurwirtschafts- und Abfallgesetz, BGBl I, p. 2705, 'the Federal law of 27 Sep- 10 — GBl, p. 617. tember 1994). 11 — GBl, p. 422.

19. The second sentence of Paragraph 3(1) of the decree none the less provides for certain exceptions to that obligation, in particular where the quantity of waste to be 16. In the absence of an incineration centre processed is below certain thresholds or for special waste in Land Baden-Württem- where the waste is disposed of under berg, a joint operation was set up between certain conditions in plants belonging to that Land and Land Hamburg. the producers or holders of waste.

12 — GBl, p. 73. 14 — 'AVG'. 13 — 'SBW'. 15 — See points 23 and 24 of this Opinion.

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20. Paragraph 4(1) of the decree provides on 5 May 1994 for a term of 15 years, as follows: between SBW and AVG. 16

The agreement 'The Special Waste Agency shall send the waste offered to it to [SBW] for processing in the processing centres in accordance with Paragraph 1(2), provided that the waste can be processed in those plants. As regards [AVG]'s special incineration centre 23. According to the preamble to the in Hamburg, the obligation to deliver agreement, Land Hamburg is to make 20 000 tonnes per annum must be available, under a joint operation with observed. It shall send the waste sent to it Land Baden-Württemberg, a part of its in accordance with the first sentence to the incineration capacity for special waste processing centres.' offered by SBW, at a price of DEM 1 200 per tonne of waste delivered. The waste is to be incinerated at AVG's processing centre in Hamburg.

26. DaimlerChrysler argued before that court that the obligation to offer special 30. Being uncertain as to the compatibility waste produced by its factories in Land of the decree with Community law, the Baden-Württemberg to an incineration cen- Bundesverwaltungsgericht decided, by tre in Hamburg deprives it of the opportu- judgment of 24 June 1999, to stay proceed- nity to export that waste to Belgium for ings and to refer the following questions to incineration at a lower cost. On that point, the Court of Justice for a preliminary DaimlerChrysler stated that the shipment ruling: of waste to the plant in Hamburg, over a distance of generally between 600 and 800 km, entailed an additional cost of DEM 2 200 000 each year. '(1) Is the expression "in accordance with the Treaty" in Article 4(3)(a)(i) of Council Regulation (EEC) No 259/93 to be construed as meaning that, in the case of a general prohibition on the export of waste for disposal, where 27. In support of its claims, DaimlerChrys- that waste requires special supervision, ler argued that the obligation to offer waste which is justified by the principles of to AVG's incineration centre in Hamburg proximity, priority for recovery and amounts to a quantitative restriction on self-sufficiency in waste disposal, a imports prohibited by Article 34 of the EC further issue to be examined is whether Treaty (now, after amendment, Article 29 the export ban is compatible with EC) and also by the provisions of the primary law of the European Union, directive and the regulation. in particular with the prohibition of

(2) If Question 1 is answered in the affirmative, in the case of an export ban imposed by legislation and restricted as to quantity, is review of the legislative provision as such suffi- cient or must there be a review of each I I I— First question individual case in which an intended export is prohibited in application of the legislative provision? In that con- text, is it permissible, by the imposition of obligations to offer waste for dis- posal where that waste requires special Preliminary observations supervision to a domestic facility, to lay down for a period of 15 years a ban on the export of that waste, if at the time when those obligations were imposed 31. Before answering the first question, I the security sought in the treatment of consider it useful to set out, in order to waste could be obtained only by an avoid referring back to it, the factual and agreement of that duration concluded legal information provided by the national with the operator of that facility? court which is binding on the Court and on which my reasoning will be based. I shall then explain the nature of the concerns of the national court and the legal problems on which it seeks guidance.

(3) Are the Member States authorised by Article 4(3) of Regulation (EEC) Factual and legal information provided by No 259/93 to adopt legislation which, the national court in the context of obligations to offer waste for disposal where that waste requires special supervision, makes the shipment of such waste to other Mem- ber States subject to the condition that the intended disposal satisfies the 32. First, the decision for reference does requirements of the State of dispatch not mention the exact type of waste on environmental protection? produced by DaimlerChrysler which this

33. Secondly, according to the national court, the principle of the prohibition on exporting waste to Member States or to non-member countries for disposal is at issue. Paragraph 9 of the LAbfG requires producers and holders of waste established in Land Baden-Württemberg to dispose of The national court likewise states that the hazardous waste on German territory. On conclusion of the agreement seeks 'to that point, the decision for reference states neutralise the increasingly urgent problem that, under that provision of the LAbfG, of the proper disposal of hazardous waste the Government of Land Baden-Württem- produced in Land Baden-Württemberg' 26 berg adopted the decree. The actual word- and to overcome the economic context of ing of the decree and also its objective as the time which did not allow the establish- ment, in all Länder, of new processing and confirmed by the historical background are incineration plants in environmentally unambiguous. According to the national sound and economically viable condi- court, the requirement to dispose of hazar- tions. 2 7 dous waste produced in the Land in processing plants in Germany seeks 'to prohibit, or at least restrict, incineration in foreign plants'. 22 23 — See point 23 of this Opinion. 24 — Namely the principles of proximity, priority for recovery and self-sufficiency [see, on that point, the decision for reference (pp. 12 to 16)1. 25 — Decision for reference, p. 10. 21 — Council Directive of 20 March 1978, OJ 1978 L 84, p. 43. 26 — Ibid., p. 9. 22 — Decision for reference, p. 9. 27 — Ibid.

37. None the less, the Bundesverwaltungs- gericht considers that it cannot be abso- 38. The answer to the first question lutely certain on this point. 31 It considers depends on whether the regulation estab- that some doubt remains because the lishes a harmonised system for shipments of measures to be taken by the Member States waste at Community level. The purpose of under Article 4(3)(a)(i) of the regulation the Community legislative action which must be 'in accordance with the Treaty'. consists of harmonising national laws is specifically to ensure the establishment and operation of the common market. There- 28 — See, in particular, Case C-318/98 Fornasar and Others fore, in accordance with the settled case- [2000] ECR I-4785. law of the Court, where there has been 29 —See, in particular, Case 10/86 VAG France (19861 ECR 4071. harmonisation by a provision of secondary 30 — See in particular, Case C-2/90 Commission v Belgium (1992 ECR I-4431, 'Wallonie'; Case C-155/91 Commis- legislation, the question as to whether a sion v Council [1993] ECR I-939 and Case C-422/92 provision of national law implementing Commission v Germany (19951 ECR I-1097. 31 —According to the national court, 'on its interpretation of the relevant EU law, the matter cannot be deemed to be clarified beyond all reasonable doubt' (decision for refer- ence, p. 8). 32 — Decision for reference, p. 15.

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According to the Court, the regulation 41. The question of whether the regulation seeks to provide 'a harmonised set of lays down a harmonised system for move- procedures whereby movements of waste ments of waste at Community level was can be limited in order to secure protection resolved in Parliament v Council. 36 of the environment'. 39

33 — Case C-37/92 [1993] ECR I-4947. 37 — See, in particular, Parliament v Council, paragraphs 21, 22 34 — Council Directive of 16 June 1975 (OJ 1975 L 194, p. 23). and 26. 35 — Vanacker and Lesage, paragraph 9. 38 — That article constitutes the specific legal basis for the Community's competence relating to the environment. 36 — Case C-187/93 [1994] ECR I-2857, paragraph 26. 39 — See Parliament v Council, paragraph 26.

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44. It follows from the foregoing that the measures restricting or prohibiting the decree must be assessed solely in the light of movement of waste may be justified. 41 the provisions of the regulation and not those of Article 28 EC et seq.

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50. By the wording of Article 4(3)(a)(i) of The national court also considered that the the regulation and the choice of the expres- decree complied with the principle of sion 'in accordance with the Treaty', the proportionality. 4 6 As the examination of Community legislature shows its willing- the compatibility of the national measure ness to favour environmental protection, with the regulation has already been car- described by the Court as 'an imperative ried out, there is therefore no need to requirement of environmental protec- examine its compatibility with Article 28 tion', 4 3 as an exception to the principle of EC et seq. the free movement of goods. 44

43 — Ibid., paragraph 32. 55. Article 176 EC authorises Member 44 — See, als o, Ca se C - 3 7 9 / 9 8 PreussenElektra [2001] ECR States to adopt measures which are more I-20 99 , Paragraph 68 et seq., where the Court held that the protective of the environment than those obligation to purchase electricity produced from renew- able sources of energy, imposed on electricity supply provided for in Community law. In Dus- undertakings was compatible with Article 28 EC because it was based on considerations relating to environmental seldorp and Others47 the Court none the protection. The aim pursued by the disputed national less stated that, in exercising the discretion legislation consisted, in accordance with Article 174(1) EC, in ensuring careful and rational use of resources by granted by Article 176 EC, Member States promoting electricity production from renewable sources must ensure that they comply with Arti- of energy such as hydraulic energy, wind energy, solar energy, gas from waste dumps and sewage treatment plants cle 28 EC et seq. or products or residues and biological waste from agricul- ture and forestry. 45 — See, to that effect, Commission v Council, paragraph 13, where the Court held that 'imperative requirements relating to the protection of the environment justify 46 — See points 34 and 35 of this Opinion. exceptions to the free movement of waste'. 4 7 — Case C-203/96 [1998] ECR I-4075, paragraph 39.

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56. In the present case, the competent V — Third question German authorities have only exercised a right conferred on them by Arti- cle 4(3)(a)(i) of the regulation. The decree cannot therefore be regarded as a more stringent measure provided for by Arti- cle 176 EC. It is therefore pointless to consider whether the decree is compatible with Article 176 EC. Preliminary observations

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— the agency is not able to send waste to 64. According to Article 4(3) of the Reg- one of the centres in Germany, ulation, the competent authorities of the Member State of dispatch may object to the intended shipment:

where the requirements complied with by the Member State of destination as regards waste processing are not those of the German State. — in order to implement the principles of proximity, priority for recovery and self-sufficiency; 48

61. In order to provide a useful response to the national court, I shall examine the question raised in the abovementioned — in cases where the installation has to context. dispose of waste from a nearer source and the competent authority has given priority to this waste; 49

Answer — in order to ensure that shipments are in accordance with waste management plans; 50 62. As we have seen, the conditions and procedures allowing Member States to restrict or prohibit shipments of waste within the Community are harmonised. Consequently, shipments of waste within the Community can be prohibited or — if the planned shipment is not in restricted only for the reasons expressly accordance with national laws and laid down in the regulation. regulations relating to environmental protection, public order, public safety or health protection 51 or if it conflicts with obligations resulting from inter- national conventions concluded by the

— if the notifier or the consignee was previously guilty of illegal trafficking (in this case, the competent authority of dispatch may refuse all shipments involving the person in question in 67. In my view, moreover, it appears accordance with national legisla- impossible to view the national provision tion). 53 as a more stringent protective measure provided for by Article 176 EC. 5 5The Government of Land Baden-Württemberg can exercise its discretion under that article only on condition that it complies with the requirements laid down in the provision. That, as we have seen, 56 presupposes that 65. It follows both from the wording of the the provisions of Article 28 EC et seq. and relevant provisions of the regulation and the principle of proportionality are from its structure and purpose that objec- observed. In the present case, this is clearly tions to shipments of waste within the not the case since the decree prohibits in Community seek essentially to allow Mem- principle the exporting of waste, with a ber States to ensure the shipment and view to its disposal, to other Member disposal of waste in a safe way for humans States. and for the environment. 5 4

72. In addition, I note that the regulation exhaustively governs the procedure applic- 69. By this question, the national court able to transfrontier shipments of waste asks the Court to interpret Article 3 et seq. within the Community. of the regulation. It specifically requests the Court to state whether those articles authorise a Member State to apply, before the notification procedure provided for in the case of transfrontier shipments of waste for disposal, a procedure of its own con- cerning the offer and allocation of such waste. 73. Articles 3 to 5 of the regulation set out the various formalities to be completed by the applicant and by the competent autho- rities, for the purpose of a shipment of waste for disposal to a Member State. 70. According to the national court, the procedure set up by the decree does not form part of the Community notification procedure. In its opinion, the decree estab- lishes a procedure which requires an eco- nomic operator wishing to make a ship- ment of waste for disposal in another 74. Under Article 3 of the regulation, the Member State to follow the national pro- notifier must first of all apply to the cedure laid down by the decree. It is only authority of the State of destination and where the waste is not allocated to one of inform the authority of the State of dis- the national facilities provided for that patch that it has done so; it must provide purpose that it is permissible to follow the information on the nature of the waste, the Community notification procedure laid route taken by the waste, transport, the down by Article 3 et seq. of the regulation. consignee of the waste, disposal operations

77. It follows from the wording of those 80. Such a mechanism is therefore clearly provisions that the Community legislature incompatible with the harmonised Com- established a complete and harmonised munity procedure. system concerning both the conditions to be satisfied and the procedure to follow for the shipment of waste to Member States. Its intention is therefore to prevent the com- petent authorities of the States of dispatch and of destination from establishing paral- lel procedures or imposing supplementary conditions. 81. Consequently, I propose that the Court should answer the fourth question to the effect that Article 3 et seq. of the regulation must be interpreted as meaning that they preclude a national measure which makes the notification procedure established by 78. From the structure and the wording of the regulation in respect of shipments of those provisions, it further appears that the waste to Member States conditional on a specific prior national procedure concern- ing the offer and allocation of waste for 57 —Article 3(1) to (8). disposal.

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Conclusion

82. In those circumstances, I propose that the Court should provide the following answers to the questions referred by the Bundesverwaltungsgericht:

(1) The lawfulness of a national measure adopted on the basis of Arti- cle 4(3)(a)(i) of Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community must be assessed solely in the light of the provisions of the regulation and not those of Article 28 EC et seq. The expression 'in accordance with the Treaty' in Article 4 must be interpreted as expressly authorising, in such a way as to be compatible with the provisions of the Treaty on restrictions on the free movement of goods, national measures based on the principles of proximity and self-sufficiency.