C-389/00

COMMISSION v GERMANY

OPINION OF ADVOCATE GENERAL TIZZANO delivered on 14 November 2002 1

1. In the present case, brought by the Community (hereinafter, 'Regulation Commission of the European Communities No 259/93' or 'the Regulation'). 2In par- under Article 226 EC, the Court has to find ticular, the Regulation gives effect to the whether, by imposing compulsory con- obligations undertaken by the Community tributions to a 'Solidarity Fund' on ship- in its accession to the international con- ments of waste to other Member States, the vention on the control of transboundary Federal Republic of Germany has infringed movements of hazardous wastes and their the prohibition on imposing charges having disposal, adopted at Basel on 22 March an effect equivalent to customs duties 1989 (hereinafter, the 'Basel Convention', which is laid down in Articles 9 and 12 of or 'the Convention'), to which all the the EC Treaty (now Articles 23 EC and 25 Member States also are party. The Con- EC). vention was approved for the Community in Council Decision 93/98/EEC of 1 February 1993. 3

I — Relevant law

3. For the purposes of this case, it should be A — International and Community legis- noted firstly that the system set out in the lation on transfrontier movements of waste Convention hinges upon a requirement to give notification of each transboundary movement of waste. Under Article 6 of the Convention, exports of waste are to be notified to the competent authorities of the 2. Within the Community legal system, State of import, which may consent to them transfrontier movements of waste are gov- or not. For its part, the State of export is erned by Council Regulation (EC) not to allow the waste to be shipped until it No 259/93 of 1 February 1993 on the has received proof of consent issued by the supervision and control of shipments of State of import and of the existence of a waste within, into and out of the European

'[w]here a shipment of waste to which the competent authorities concerned have con- 5. Article 9 of the Convention, on the other sented cannot be completed in accordance hand, governs cases of transboundary with the terms of the consignment note or movements of waste carried out in breach the contract referred to in Articles 3 and 6, of the requirements of prior notification the competent authority of dispatch shall, and consent laid down in Article 6 or with within 90 days after it has been informed the intention of disposing of the waste by thereof, ensure that the notifier returns the methods which contravene the Convention waste to its area of jurisdiction or else- and the general principles of international where within the State of dispatch unless it law. Article 9(1) defines such cases as is satisfied that the waste can be disposed of 'illegal traffic' in waste. Where illegal or recovered in an alternative and environ- traffic is the result of conduct on the part mentally sound manner'. of the generator or exporter of the waste, Article 9(2) requires the State of export to ensure that the generator or exporter takes 4 — In this Opinion, I shall not take account of the effect of the back the waste concerned or, if necessary, Basel Convention or of Regulation No 259/93 on move- ments of waste to and from non-Member countries, since to take it back itself into its territory; where these matters are not relevant to the present case.

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COMMISSION v GERMANY

8. For its part, Article 26(1) of the Regu- (e) which results in disposal or recovery in lation reflects Article 9 of the Convention contravention of Community or inter- by giving the following definition of illegal national rules... traffic in waste:

(d) which is not specified in a material way in the consignment note; or ...'.

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OPINION OF MR TIZZANO — CASE C-389/00

10. Furthermore, under Article 27(1) of the Regulation:

'All shipments of waste covered within the B — Relevant German legislation scope of this Regulation shall be subject to the provision of a financial guarantee or equivalent insurance covering costs for shipment, including cases referred to in Articles 25 and 26, and for disposal or 12. The Federal Republic of Germany recovery'. made provision for supervision and control of transfrontier shipments of waste in the Gesetz über die Überwachung und Kon- trolle der grenzüberschreitenden Verbring- ung von Abfällen (Law on supervision and control of transboundary shipments of waste) of 30 September 1994 (hereinafter, 11. On administrative costs and costs aris- 'the Law establishing the Fund' or 'the ing from the return, shipment, disposal or Law'); 5Paragraph 8(1) of the Law created recovery of waste, Article 33 of the Regu- a public organisation with legal person- lation provides as follows: ality, with the name Solidarfonds Abfall- rückführung (Solidarity fund for the return of waste; hereinafter, 'the Solidarity Fund' or 'the Fund').

I I— Facts and pre-litigation procedure

15. It should also be noted, as may be seen from Paragraph 7(1) of the Law, that the 17. In a letter of formal notice of 25 May requirement to contribute to the Solidarity 1998, the Commission informed Germany Fund does not replace, but accompanies, that, in its opinion, the requirement to the provision of a financial guarantee or contribute to the Solidarity Fund, apart insurance when notifying an export of from not being laid down in Regulation waste under Article 27 of Regulation No 259/93, constituted the imposition of a No 259/93. charge having an effect equivalent to a customs duty, contrary to Articles 9 and 12 of the EC Treaty (now Articles 23 EC and 25 EC), and consequently called on the German Government to submit its obser- vations on the matter.

19. The Commission was not convinced by I I I— Legal analysis these arguments and, on 16 August 1999, sent a reasoned opinion to the Federal Republic of Germany, re-stating its pos- ition and, in particular, insisting on the fact that Community law recognises the special nature of waste as goods only with refer- ence to the needs of environmental pro- A — Ambit of the dispute tection, for the purposes of Articles 174 EC and 176 EC. According to the Commission, the requirement to contribute to the Soli- darity Fund imposed a condition on the free movement of goods which was additional 22. As we have seen, in the present case the to, and more restrictive than, those already Commission charges the Federal Republic laid down by Community legislation but of Germany with having subjected ship- for which there was no justification in ments of waste to other Member States to a Article 176 EC. compulsory contribution to the Solidarity Fund. Since, in the Commission's opinion, such a contribution constitutes a charge having an effect equivalent to a customs duty on the export of waste, the defendant government had infringed Articles 23 EC and 25 EC, which prohibit such charges. 20. Germany replied to the reasoned opinion in a letter of 21 January 2000, contesting again the points put forward by the Commission. In the letter, the German Government, apart from giving infor- mation relating to the objectives, function- ing and detailed arrangements for financing 23. The Commission supports its own view of the Solidarity Fund, stressed, in par- by noting, firstly, that the Court has con- ticular, that the system of contributions to sistently held that 'any pecuniary charge, the Solidarity Fund had contributed to a however small and whatever its designation reduction both in the number of inter- and mode of application, which is imposed ventions by the Fund and also, more unilaterally on domestic or foreign goods generally, in the volume of illegal traffic by reason of the fact that they cross a of waste coming from Germany. frontier' 8 constitutes a charge having effect equivalent to a customs duty. That, accord- ing to the Commission, is precisely the case with the contribution to the Fund, which is

in fact a pecuniary charge imposed unilat- customs duty, it does not in fact infringe erally by the Federal Republic and is the prohibition laid down by the Treaty. In intended to be charged on waste when it the German Government's view, such a crosses the German frontier. contribution falls within the second and/or third examples set out in the foregoing paragraph, meaning that it represents pay- ment for a service rendered to exporters of waste and, in any event, should be treated as amounts levied in connection with 24. Moreover, the Commission continues, inspections carried out to meet obligations this case does not involve any of the laid down by Community law. circumstances in which the Court has held that a pecuniary charge, even where levied in respect of a transfrontier movement of goods, does not fall within the definition of a charge having effect equivalent effect within the meaning of Articles 23 and 25 26. For my part, I would observe, first of EC. As we know, such is the case where a all, that it is not denied that, at least in the pecuniary charge is part of a general system abstract, the contribution at issue does of internal dues applied systematically and match the definition of a charge having in accordance with the same criteria to effect equivalent to a customs duty as set domestic products and imported products out in the case-law of the Court. In alike, 9or where it represents the payment determining whether the application is well for a service actually and individually founded, therefore, there is no need to rendered to an economic operator in an dwell on that point. On the other hand, it is amount proportionate to the cost of that necessary to make a detailed analysis of the service 10 or, lastly, where it is an amount justifications which the German Govern- levied by reason of inspections carried out ment has given to support its contention, to meet obligations laid down by Commu- and of the objections raised against them nity provisions. 11 According to the appli- by the Commission. cant, the contribution in question here has none of those characteristics.

payment for a service rendered to exporters is also necessary for the service to be one of waste, in the sense contemplated in the actually and individually rendered to the case-law of the Court, 12 the German economic operators. In this case, according Government starts from a particular prem- to the defendant government, an individual iss. That is to say, it assumes that Regu- service is actually rendered because, at the lation No 259/93 (and, before that, the time of an export of waste, every individual Basel Convention), while intended to pro- exporter enjoys the opportunity afforded tect the environment and health, is at the for that purpose by the existence of the same time also intended to further the free secondary liability of the State. It is there- movement of waste by setting down the fore justified that, through the contribution conditions on which transfrontier move- to the Solidarity Fund, the costs attaching ments of waste can be carried out. From to that liability should be transferred to the that standpoint, the measures established exporters of waste, particularly since Regu- by the Regulation must be regarded as lation No 259/93 leaves the Member States measures to open up the markets, 13 and free to establish the relevant financing among these, there must specifically be arrangements. numbered the secondary liability placed upon the Member States by Article 33(2) of the Regulation, for costs arising from the return, disposal or recovery of the waste in the cases of exports that are not completed or of illegal traffic, as contemplated in 29. Nor can it be objected, the German Article 25(1) and Article 26(2) of the Government continues, that the Fund is Regulation. By assuming that liability, the intended to intervene, pursuant to Federal Republic of Germany thus con- Article 33(2) of the Regulation, essentially tributed to making possible the free move- in instances of illegal traffic in waste. It has ment of the waste, so offering a service to in fact been objected that this intervention economic operators with an interest in primarily benefits those operators who exporting waste from German territory. have failed to follow the notification pro- cedure and have also failed to contribute to the Fund, while the contribution affects those operators who have complied with the procedure and have also provided the compulsory guarantee referred to in Article 27 of the Regulation, and whose compliance with the requirements of return, disposal or recovery is therefore already assured in principle by that guar- antee. 14 28. But, as we have seen, it is not sufficient in terms of the case-law of the Court for the contribution to be payment for a service: it

liable for any illegal export of waste, if liability is no more than the fulfilment of a identified, is required to bear the whole of specific obligation incumbent upon the the cost of return, disposal or recovery of Federal Republic under the Basel Conven- the waste, and is in addition subject to tion and Regulation No 259/93 and that it penal sanctions. But the important point, therefore cannot be regarded as a service the German Government stresses, is that, rendered to the operators concerned. In any were there no secondary State liability, the event, even were it so, the beneficiary — if operators in the industry would have no there were one — would be the industry as market for their activity, since other States a whole and not each operator taken would not readily consent to the import of individually. Such a shared benefit to the waste. In the end, therefore, it is in fact the exporters of waste would not, therefore, in operators who export in compliance with the light of the Lamaire judgment, 1 5be the Regulation — those who contribute to sufficient for contributions to the Solidarity the Solidarity Fund — who benefit from Fund to escape the prohibition laid down that liability. by the Treaty on imposing charges having equivalent effect.

34. I believe that a number of arguments Regulation is not to encourage movements can be put forward in support of this view. of waste but to limit them through a Firstly, it seems to me to be necessary to put harmonised set of procedures, in order to in perspective the significance of the Ger- secure observance of those requirements. 19 man Government's assertion that the State's secondary liability is intended to further the free movement of waste and may even be regarded as a market-opening measure. The intra-Community movement of waste is not founded on Regulation No 259/93 but directly on those provisions of the Treaty which require the free move- ment of goods. That was expressly 36. Admittedly, while pursuing its environ- acknowledged by the Court in Commission mental objective, the Regulation is also v Belgium ('the Walloon waste judg- concerned to ensure that the restrictions ment'), 17 which has been referred to a placed on movements of waste interfere to number of times in the present case, and it the least extent possible with the function- is not invalidated by the fact that, as that ing of the internal market and therefore judgment shows, restrictions justified by seeks to facilitate movements of waste the particular nature of waste may be carried out in accordance with that objec- placed upon that freedom, in the light of tive. But, clearly, the objective of freedom the environmental problems relating to the of movement is strictly ancillary and an management of waste. 18 instrument in the attainment of the envi- ronmental objective of the Regulation. 20

38. That, however, does not seem to me to be a sufficient ground for maintaining, as the German Government does, that at the 39. In short, it appears to me that in this time of exporting waste each economic case, as the Commission also has pointed operator obtains an advantage from the out, this is a situation similar to that opportunity which the State's secondary considered in the Lamaire case. 22 In that liability affords him for that purpose and case, the Court had to rule whether a that is why he is required to contribute to compulsory contribution to an agricultural- the relevant costs. There would be a basis products promotion board, imposed on for that contention if the outcome of exporters of such products in proportion secondary liability were the very possibility to the quantities exported, was a charge of exporting waste: in such a case it might having effect equivalent to a customs duty. be shown that the exporter is the same The Court found that it was, having noted person as the one actually and individually that the contribution was intended to benefiting from the measure concerned. But finance the board's promotional activity that is not the case where, as here, the in general and could not therefore represent advantage offered to operators consists consideration for a specific and individual merely in an improvement in the oppor- advantage provided to the economic oper- tunities for export. In such circumstances it ator: 23 a possible improvement in the is truly difficult to determine whether and opportunities for exporting agricultural to what extent the State's secondary liabil- products which arises from the promotion ity has facilitated a specific export oper- board's activity cannot constitute such an ation, and to be able to claim that the advantage.

40. I think that similar reasoning can be intervention by the State and, in this case, applied in the present case: a measure, such intervention by the Solidarity Fund fit as the State's secondary liability as referred together for the purposes of Article 33(2) to in Article 33(2) of Regulation No 259/93, of the Regulation. As we have seen, the which has the effect of improving the secondary liability which is laid down in opportunities for exporting waste from that provision can be invoked to cover the Germany may produce an advantage of a costs of return, disposal or recovery of general and diffuse kind for the entire waste in two instances: firstly, where it has category of economic operators concerned not been possible to complete an export of in the export of waste, but it certainly does waste under the detailed rules made and not afford an actual and individual advan- authorised by the competent authorities of tage to the economic operators concerned. the Member States concerned (Article 25(1) And that is because, as I said earlier, 24 it of the Regulation); and, secondly, where seems to me to be excessively difficult to waste is illegally exported, that is to say, establish a particular correlation between essentially, without prior notification the secondary liability and the carrying out and/or consent, or with incorrect or falsi- of a particular commercial waste-export fied notification or, again, with a view to operation, such as to establish a bilateral disposal or recovery in contravention of relationship between the enhanced oppor- Community or international rules, if the tunities afforded by such liability and the notifier or the person who should have contribution sought from the exporters. given notice is responsible for such an illegal export of waste (Article 26(1) of the Regulation). 25 It must be considered however, firstly, that the possibility of such costs arising is usually covered by the special guarantee which exporters must provide when notifying under Article 27 of the Regulation and, secondly, in this instance, that, by virtue of the Law creating 41. In the light of those considerations, I the Fund and the Fund Regulation, therefore consider that the German Gov- exporters are also called upon to contribute ernment has not succeeded in showing that to the Solidarity Fund at that time. the contribution to the Solidarity Fund constitutes proper payment for a service actually and individually provided to econ- omic operators in the sense indicated in the case-law of the Court.

44. It is of course possible that the Fund will also be called upon to intervene in cases where the compulsory guarantee under Article 27 of the Regulation has C — Whether the contribution in dispute been provided, but that could occur only if, may be compared to a measure imposed by for whatever reason, the guarantee was Community law for the purpose of fur- found to be insufficient or inoperative and thering the free movement of goods where the operator was in any event unable to meet the relevant costs. That possibility is therefore clearly more remote than the possibility of the Fund intervening in cases of illegal traffic of waste, where either no 1. Arguments of the parties notification has been given (and the oper- ator responsible is therefore presumably unknown, the guarantee prescribed in Article 27 has not been provided and the contribution to the Fund not paid) or the notification is incorrect or falsified (and 47. As I have already mentioned 27 in therefore, neither the guarantee nor the disproof of the alleged infringement of contribution to the Fund has been deter- Articles 23 and 25 EC, the Federal Repub- mined correctly). lic of Germany cites a number of judgments of the Court which, subject to certain 26 — And, of course, they have not provided the guarantee or insurance under Article 27 of the Regulation, or have provided too small an amount. 27 — See point 25.

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OPINION OF MR TIZZANO— CASE C-389/00

48. According to the defendant govern- ment, all those conditions are fulfilled here: first of all, like the inspections referred to above, the State's secondary liability is laid down by Community law in the interest of 2. Assessment the free movement of goods, with the object of permitting and furthering the movement of waste while observing the requirements of environmental protection which derive from the specific nature of that waste. That liability is obligatory and uniform for all waste within the Commu- 50. Again, the objections raised by the nity. Lastly, the amount of the contribu- Commission seems to me, in substance, to tions laid down in the Law establishing the be well founded both as regards the assess- ment of the purpose of the liability in question and as regards the relationship 28 — In addition to the Bauhuis judgment, also cited by the Commission (see footnote 11), the German Government cites, among others, the judgment in Case C-111/89 Bakker Hillegom [1990] ECR I-1735. 30 — On this, the Commission cites the Bakker Hillegom 29 — Judgment in Commission v Germany, cited in footnote 8. judgment (cited in footnote 28), paragraph 14.

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COMMISSION v GERMANY

51. Firstly, I, too, believe that it is not possible to characterise the secondary lia- bility of the State, as provided in Regu- lation No 259/93, as a measure intended to further the free movement of goods (in this case, of waste) in the same way as the inspections ruled upon in the judgments cited by the German Government. As I have said earlier, even though it is conceiv- 53. Referring only to the rulings cited by able that the secondary liability of the State the parties, I note for example that, in the may indirectly have the effect of furthering Bauhuis judgment, 33 the Court held that exports of waste carried out in conformity charges levied in connection with health with the environmental objective of the inspections upon the export of live animals Regulation, the chief end and the primary pursuant to Directive 64/432/EEC 34 were effect of that liability are different. 31 compatible with the prohibition on impos- ing charges having equivalent effect,

because the express purpose of the directive mentioned above: in my opinion, the was to eliminate obstacles to trade arising Regulation is not, as I have said earlier, 41 from differences in the national laws of a measure intended to further the free Member States regarding animal health movement of goods in the sense indicated provisions by the introduction of a har- in the case-law of the Court regarding fees monised system of inspections. 35 Similarly, charged for inspections on export or in the judgments in Commission v Nether- import, and particularly so if it is con- lands 36 and Bakker Hillegom, 37 the Court sidered that, in the present context, the acknowledged the lawfulness of fees levied concept of 'measure intended to further the for plant-health inspections upon export as free movement of goods' essentially defines provided in an international convention to the scope of an exception to the fundamen- which all the Member States were party, in tal prohibition on imposing taxes having order to eliminate duplicated inspections at equivalent effect which is laid down in frontiers. 38 So also, in the judgment in Articles 23 and 25 EC. 42 Very clearly, this Commission v Germany, 39the Court ruled requires a narrow interpretation of that that it was lawful to impose a fee to concept and therefore requires the exclu- compensate for the costs of the veterinary sion from it of measures not having pri- inspections, on the import of animals, marily and fundamentally the objective introduced by Directive 81/389/EEC within stated. the context of harmonisation intended to remove technical obstacles to trade caused by differences between national laws con- cerning the transport of animals. 40

ment the Court clarified the scope of that Federal Republic of Germany in meeting its condition by stating that it 'cannot be secondary-liability obligations under considered to have been satisfied unless Article 33(2) of Regulation No 259/93. 4 5 there is a direct link between the amount of However, I would note that, even if that the fee and the actual inspection in respect were the case, the fact remains that this of which the fee is charged' and that 'such a correspondence would be between the total link is present when the amount of the fees amounts of the charges levied on exporters is calculated on the basis of the duration of and the disbursements effected by the Fund. the inspection, the number of persons Such a correspondence is not, however, required, the cost of materials, overheads enough to fulfil the condition of a direct or other similar factors, which does not relationship between charges and costs preclude a fixed-rate assessment of inspec- which, as we have just seen, must in fact tion costs, such as, for example, a fixed be established at an individual and specific hourly rate'. 43 It is therefore possible to level. pass on to the economic operator con- cerned only the actual costs of the specific inspection for which that operator is asked to pay the tax or charge in question.

I - 2019

OPINION OF MR TIZZANO — CASE C-389/00

German legislation, how it can be claimed between the size of the contribution sought that there is a direct relationship, in the from the individual operator and the cost of sense indicated by the case-law, between the activity — assuming there has been the charges borne by an exporter of waste any — undertaken in respect of the and the costs of the activity actually under- latter. 48 taken by the administration in respect of him. I have already shown the reasons for which I consider that the assumption of secondary liability under Article 33(2) of the Regulation is not a service individually and actually provided to each exporter of 60. That having been said, I must in any waste. Those same reasons apply here to event point out that, in accordance with rule out any such relationship between Article 33(1) of Regulation No 259/93, the charges and costs. As we have seen, this administrative costs relating to the pro- secondary liability can at the very most be cedure for notifying exports of waste and to reflected in a collective and diffuse advan- any inspections necessary are already tage for the entire category of the economic charged to operators regardless of the operators concerned; clearly, however, that obligation placed upon them of contribu- does not make it possible to determine ting to the Solidarity Fund. 4 9 In my whether and to what extent that liability opinion, therefore, at the most it is those has produced effects as regards any par- costs, and not the contributions to the ticular operator Or, therefore, to determine Fund, which could be linked to the obli- the cost which the latter should bear. 47 gations imposed by the Community legis- lation.

64. In the light of all of the foregoing considerations, I propose that the Court should declare as follows:

(1) By making shipments of waste from its territory subject to a compulsory contribution to the Solidarity Fund established by the Law of 30 September 1994, the Federal Republic of Germany has failed to fulfil its obligations under Articles 23 and 25 EC.

(2) The Federal Republic of Germany shall pay the costs.

I - 2021