**Case C-221/06**

**Stadtgemeinde Frohnleiten and Gemeindebetriebe Frohnleiten GmbH**

**v**

**Bundesminister für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft**

(Reference for a preliminary ruling from the Verwaltungsgerichtshof)

(Reference for a preliminary ruling – Levy on the long-term depositing of waste at a waste disposal site – Levy payable by the operator of the waste disposal site and calculated according to the weight of the waste being deposited
and the state of the waste disposal site – Exemption from the levy in respect of the deposit of waste from contaminated sites in Austria – No exemption for the deposit of waste from contaminated sites located in other Member States – Article 90 EC – Internal taxation – Discrimination)

Opinion of Advocate General Sharpston delivered on 21 June 2007

Judgment of the Court (First Chamber), 8 November 2007

Summary of the Judgment

1.     *Free movement of goods – Customs duties – Charges having equivalent effect – Rules laid down in the Treaty*

*(Arts 23 EC, 25 EC and 90 EC)*

2.     *Tax provisions – Internal taxation – Provisions of the Treaty – Scope*

*(Art. 90 EC)*

3.     *Tax provisions – Internal taxation – Provisions of the Treaty – Scope*

*(Art. 90 EC)*

4.     *Tax provisions – Internal taxation – Prohibition of discrimination between imported products and similar domestic products*

*(Art. 90 EC)*

5.     *Environment – Waste – Regulation No 259/93 on shipments of waste*

*(Council Regulation No 259/93, Art. 4(3)(a)(i) and (b)(i))*

1.     The Treaty provisions relating to charges having equivalent effect and those relating to discriminatory internal taxation
cannot be applied together, so that under the system of the Treaty the same measure cannot belong to both categories at the
same time.

(see para. 26)

2.     Waste for disposal comes within the definition of ‘products’ within the meaning of Article 90 EC. Even if it has no intrinsic
commercial value, it may none the less give rise to commercial transactions in relation to the disposal or deposit thereof.
Internal taxation imposed on that waste is such as to render more difficult or more burdensome those commercial transactions
for an operator who seeks to dispose of that waste and, therefore, is liable to constitute a disguised restriction on the
free movement of that waste, a restriction that Article 90 EC is specifically intended to preclude in cases of discriminatory
treatment of imported waste.

(see paras 36, 38)

3.     Article 90 EC applies to internal taxation which is imposed on the use of imported products where those products are essentially
intended for such use and have been imported solely for that purpose. Furthermore, a charge which is imposed not on products
as such, but on the specific activity of an undertaking in connection with products and which is calculated according, inter
alia, to the weight of the products at issue, falls within the scope of Article 90 EC and, in so far as it has an immediate
effect on the cost of national and imported products, must be applied in a manner which is not discriminatory to imported
products. Since the only commercial transactions to which waste for disposal may give rise are those relating to its disposal
or deposit, the appropriate criterion for the purposes of assessing any restrictions on the free movement of such goods is
the effect of the levy on the price paid by economic operators to dispose of them.

(see paras 41, 43)

4.     The first paragraph of Article 90 EC precludes a national tax provision which exempts from the levy imposed on the long-term
depositing of waste at waste disposal sites in the Member State concerned deposits of waste derived from the rehabilitation
or safeguarding of disused hazardous sites or suspected contaminated sites located in that Member State alone, but excludes
exemption of deposits of waste derived from the rehabilitation or safeguarding of sites located in other Member States.

Although, as it now stands, Community law does not restrict the freedom of each Member State to establish a tax system which
differentiates between certain products, even products which are similar within the meaning of the first paragraph of Article 90
EC, on the basis of objective criteria, such differentiation is compatible with Community law only if it pursues objectives
which are themselves compatible with the requirements of the Treaty and its secondary legislation, and if the detailed rules
are such as to avoid any form of discrimination, direct or indirect, against imports from other Member States or any form
of protection of competing domestic products. Such a tax provison is liable to lead, in certain cases, to higher taxation
being imposed on imported products than on domestic products. Moreover, the difference of origin between domestic waste and
waste imported from other Member States is not sufficient to preclude their similarity for the purposes of the first paragraph
of Article 90 EC.

Such a difference in treatment cannot be justified by the material impossibility of identifying disused hazardous sites or
suspected contaminated sites in other Member States, since practical difficulties cannot justify the application of internal
taxation which discriminates against products from other Member States. Moreover, even if, in principle, Article 90 EC does
not require Member States to abolish differences which are objectively justified and which national legislation establishes
between internal taxes on domestic products, it is otherwise where such abolition is the only way of avoiding direct or indirect
discrimination against the imported products.

(see paras 56-57, 60, 70, 72-73, operative part)

5.     Once a Member State has refrained from taking measures to prohibit generally or partially or to object systematically, as
provided for in Article 4(3)(a)(i) of Regulation No 259/93 on the supervision and control of shipments of waste within, into
and out of the European Community, and has not raised any reasoned objections to a shipment of waste, as provided for in Article 4(3)(b)(i),
it cannot impose restrictions or limitations on the free movement in its territory of shipped waste on the basis of the principles
of proximity and self‐sufficiency at Community and national levels, since the conditions and procedures established by Regulation
No 259/93 in respect of shipments of waste between Member States were themselves adopted with a view to ensuring the protection
of the environment, taking account of those principles.

(see paras 64, 67)


JUDGMENT OF THE COURT (First Chamber)

8 November 2007 ([\*](#Footnote*))

(Reference for a preliminary ruling – Levy on the long-term depositing of waste at a waste disposal site – Levy payable by the operator of the waste disposal site and calculated according to the weight of the waste being deposited
and the state of the waste disposal site – Exemption from the levy in respect of the deposit of waste from contaminated sites in Austria – No exemption for the deposit of waste from contaminated sites located in other Member States – Article 90 EC – Internal taxation – Discrimination)

In Case C‐221/06,

REFERENCE for a preliminary ruling under Article 234 EC, by the Verwaltungsgerichtshof (Austria), made by decision of 27 April
2006, received at the Court on 15 May 2006, in the proceedings

**Stadtgemeinde Frohnleiten,**

**Gemeindebetriebe Frohnleiten GmbH**

v

**Bundesminister für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft,**

interested party:

**Republik Österreich,**

THE COURT (First Chamber),

composed of P. Jann, President of Chamber, A. Tizzano, R. Schintgen, A. Borg Barthet and M. Ilešič (Rapporteur), Judges,

Advocate General: E. Sharpston,

Registrar: B. Fülöp, Administrator,

having regard to the written procedure and further to the hearing on 29 March 2007,

after considering the observations submitted on behalf of:

–       the Stadtgemeinde Frohnleiten and Gemeindebetriebe Frohnleiten GmbH, by G. Eisenberger, Rechtsanwalt,

–       the Austrian Government, by E. Riedl, acting as Agent,

–       the Commission of the European Communities, by W. Mölls and M. Konstantinidis, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 21 June 2007,

gives the following

**Judgment**

1       This reference for a preliminary ruling concerns the interpretation of Articles 10 EC, 12 EC, 23 EC, 25 EC, 49 EC and 90 EC.

2       The reference has been made in the context of proceedings between the Stadtgemeinde Frohnleiten (municipality of Frohnleiten)
and the Gemeindebetriebe (municipal enterprise) Frohnleiten GmbH, on the one hand, and the Bundesminister für Land- und Forstwirtschaft,
Umwelt und Wasserwirtschaft (Federal Minister for Agriculture, Forestry, the Environment and Water Management, the ‘Minister’),
on the other, concerning the taxation of a deposit of waste coming from Italy at the Frohnleiten municipal waste disposal
site.

**Legal context**

*Community legislation*

3       Under Article 1 thereof, 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 (OJ 1993 L 30, p. 1), as amended by Commission Regulation (EC) No
2557/2001 of 28 December 2001 (OJ 2001 L 349, p. 1) (‘Regulation No 259/93’), applies inter alia to shipments of waste within
the Community.

4       Articles 3 to 5 of Regulation No 259/93 lay down the procedure applicable to shipments between Member States of waste for
disposal.

5       Under Article 3(1) of that regulation, ‘[w]here the notifier intends to ship waste for disposal from one Member State to another
Member State ... he shall notify the competent authority of destination’.

6       Article 4(1),(2)(a) and (c) and (3)(a)(i) and (b)(i) of that regulation provides:

‘1.      On receipt of the notification, the competent authority of destination shall ... send an acknowledgement to the notifier ...

2. (a) The competent authority of destination shall have 30 days following dispatch of the acknowledgement to take its decision authorising
the shipment, with or without conditions, or refusing it. It may also request additional information.

It shall give its authorisation only in the absence of objections on its part ...

...

...

(c)      The objections and conditions referred to in (a) ... shall be based on paragraph 3.

...

3. (a)(i) In order to implement the principles of proximity, priority for recovery and self-sufficiency at Community and national levels
in accordance with Directive 75/442/EEC, Member States may take measures in accordance with the Treaty to prohibit generally
or partially or to object systematically to shipments of waste. Such measures shall immediately be notified to the Commission,
which will inform the other Member States.

...

(b)      The competent authorities of dispatch and destination, while taking into account geographical circumstances or the need for
specialised installations for certain types of waste, may raise reasoned objections to planned shipments if they are not in
accordance with Directive 75/442/EEC, especially Articles 5 and 7:

         (i)   in order to implement the principle of self-sufficiency at Community and national levels’.

*National legislation*

7       In accordance with Paragraph 1 thereof, the purpose of the Law on the rehabilitation of disused hazardous sites (Altlastensanierungsgesetz)
of 7 June 1989 (BGBl. 299/1989; ‘the ALSAG’) is to finance the safeguarding and rehabilitation of disused hazardous sites.

8       As set out in Paragraph 2(1), (2), (3), (11), (13) and (14) of the ALSAG:

‘(1) ‘Disused hazardous sites’ are disused disposal premises and disused industrial sites as well as land and ground water
systems contaminated by these which – according to the results of a risk assessment – pose significant risk to the health
of humans or the environment. Contamination which is caused by emissions into the atmosphere does not come within the scope
of application of the Law.

(2) ‘Disused disposal premises’ are premises within which waste was disposed of either with or without authorisation.

(3) ‘Disused industrial sites’ are premises in which environmentally hazardous substances were handled.

...

(11) ‘Suspected contaminated sites’ are definable areas of disused disposal premises and disused industrial sites which may,
in view of their past use, pose significant risk to the health of humans or the environment.

(13) ‘Safeguarding’ is the prevention of environmental risks, in particular any discharges of toxic substances from disused
hazardous sites which are hazardous for health and for the environment.

(14) ‘Rehabilitation’ is the elimination of the cause of the risk or the elimination of the environmental contamination.’

9       Paragraph 3 of the ALSAG imposes a levy called ‘Altlastenbeitrag’ (disused hazardous site levy). Paragraph 3(1).1 and .2 and
(2).1 provides:

‘(1)      The following shall be subject to the Altlastenbeitrag:

1.      the long-term depositing of waste, including the transfer of waste to a waste disposal site, even if technical site construction
or other purposes are involved;

2.      the filling in or levelling of uneven ground with waste including its incorporation in geological structures, with the exception
of filling in or levelling which has a specific construction function in connection with a superior construction operation
(for example, road dikes and roadbeds, railway tracks and foundations, filling in excavations or drainage ditches);

...

(2)      The following shall be exempt from liability to pay the levy:

1.      the depositing, storage and transport of waste which is proven to arise in the course of safeguarding or rehabilitating

(a)      suspected contaminated sites entered in the register of suspected contaminated sites, or

(b)      disused hazardous sites entered in the register of disused hazardous sites.’

10     Pursuant to Paragraph 4(1) of the ALSAG, it is ‘the operator of a waste disposal site’, in particular, who is liable to the
Altlastenbeitrag.

11     Paragraph 5 of the ALSAG defines the ‘basis for calculating’ the Altlastenbeitrag as ‘the mass of the waste, corresponding
to the gross weight ... which is the weight of the waste, including packaging’.

12     The rate of the Altlastenbeitrag, expressed in euros ‘by tonne, rounded upwards’, is set in Paragraph 6 of the ALSAG. That
provision lays down a tariff which varies according to the nature of the waste, the date of deposit and the equipment of the
waste disposal site.

13     Under Paragraph 11 of the ALSAG, the revenue from the Altlastenbeitrag is used for the investigation and rehabilitation of
contaminated sites.

14     The register of suspected contaminated sites and the register of disused hazardous sites referred to in Paragraph 3(2).1 of
the ALSAG are regulated in Paragraph 13 of that law. That provision states:

‘(1) The Landeshauptmann shall inform the Federal Minister for Environment, Youth and Family of suspected contaminated sites.
For the purposes of the assessment of disused hazardous sites, the Federal Minister for Environment, Youth and Family shall
coordinate the national assessment, appraisal and evaluation of suspected contaminated sites in collaboration with the Federal
Minister for Economic Affairs and the Federal Minister for Agriculture and Forestry and shall arrange through the Landeshauptmann,
according to existing means (Paragraph 12(2)), additional inspections in so far as they are required for the assessment, appraisal
and evaluation of suspected contaminated sites and for the classification of priorities. The data and information gained from
the assessment shall be sent to the Umweltbundesamt [Federal Environment Office], analysed by the Umweltbundesamt and entered
in a register of suspected contaminated sites (Paragraph 11(2).2).

(2) For the purposes of the assessment of disused hazardous sites, the Federal Minister for Environment, Youth and Family
shall coordinate all measures for the assessment of the risk potential of the suspected contaminated sites covered. Suspected
contaminated sites found to require safeguarding or rehabilitation on the basis of the risk assessment shall be identified
as disused hazardous sites in a register of disused hazardous sites (Paragraph 11(2).2) to be kept by the Umweltbundesamt.
...’

15     According to the Verwaltungsgerichtshof (Administrative Court), naturally only areas located in Austria can be entered in
the register of suspected contaminated sites and the register of disused hazardous sites since those registers serve to assess
disused hazardous sites located in Austria for the purposes of preparation for their safeguarding and rehabilitation. For
that reason, only waste which comes from the safeguarding or rehabilitation of disused hazardous sites or suspected contaminated
sites in Austria qualifies for the exemption from the Atlastenbeitrag provided for in Paragraph 3(2).1 of the ALSAG.

**The main proceedings and the question referred**

16     Gemeindebetriebe Frohnleiten GmbH, which is wholly owned by the Stadtgemeinde Frohnleiten, operates the municipal waste disposal
site at Frohnleiten.

17     In the fourth quarter of 2001 and the first quarter of 2002, a number of tonnes of shredded waste from Italy were deposited
at that waste disposal site. Their shipment to Austria had been authorised by the Austrian authorities, in accordance with
Articles 3 to 5 of Regulation No 259/93.

18     The waste arose in the course of the rehabilitation of an area located in the municipality of Rovigo (Italy) and identified
as requiring rehabilitation in the Italian plan for the rehabilitation of contaminated sites, drawn up pursuant to Article 22
of Decree-Law No 22 of 5 February 1997 (ordinary supplement to the Gazzetta Ufficiale della Repubblica Italiana (the Official
Gazette of the Italian Republic, ‘GURI’) No 38 of 15 February 1997), and the Decree of the Italian Environment Minister of
16 May 1989 (GURI No 121 of 26 May 1989, p. 12).

19     Taking the view that the waste was covered by the exemption under Paragraph 3(2).1 of the ALSAG on the ground that it came
from a contaminated site, the claimants in the main proceedings applied to the Bezirkshauptmannschaft Graz‐Umgebung (administrative
authorities of the District of Graz and surrounding area; ‘the BH’) for confirmation of the exemption.

20     By decision of 11 May 2004, the BH determined that the waste in question was exempt from the Altlastenbeitrag under Paragraph
3(2).1 of the ALSAG. On an appeal by the Austrian federal authority, the Landeshauptmann von Steiermark (head of the government
of Styria, ‘the LH’) confirmed the BH’s decision by decision of 30 November 2004. Both the BH and the LH found that any distinction
between categories of waste arising in the course of lawful measures for the rehabilitation or safeguarding of contaminated
sites according to whether it came from Austria or another Member State would be contary to Article 90 EC.

21     By decision of 10 January 2005, the Minister annulled the LH’s decision and decided that the waste in question should be subject
to the Altlastenbeitrag, as it did not come from a site entered in the register of suspected contaminated sites or the register
of disused hazardous sites. The Minister considered that the Altlastenbeitrag fell outside the scope of Article 90 EC because
it is not a levy on waste as such, but a levy on an operation. The levy is not charged on marketable products the cost of
which it increases and which are therefore disadvantaged when sold in Austria, but is a tax on any measure which definitively
ends the life cycle of such products.

22     The claimants in the main proceedings challenged the Minister’s decision before the Verwaltungsgerichtshof. They claim, in
essence, that the Altlastenbeitrag falls within the scope of Article 90 EC and that there would be a breach of that provision
if the tax were calculated differently depending on whether it is imposed on imported products or on similar domestic products,
with the result that imported products were more expensive.

23     The Verwaltungsgerichtshof notes that the ALSAG pursues environmental policy objectives, namely safeguarding and rehabilitating
disused hazardous sites. The implementation of that policy necessitates prior identification of the disused hazardous sites
by means of field inspections. Accordingly, only sites in Austria can be identified as disused hazardous sites within the
meaning of the ALSAG. According to the Verwaltungsgerichtshof, it does not follow that the Austrian authorities are required
to refrain from giving preferential treatment to the depositing of waste from such sites. It is not apparent from the case‐law
of the Court that the exemption under Paragraph 3(2).1 of the ALSAG infringes Community law.

24     Taking the view, however, that that interpretation is not free from doubt, the Verwaltungsgerichtshof decided to stay the
proceedings and to refer the following question to the Court:

‘Do Articles 10 EC, 12 EC, 23 EC, 25 EC, 49 EC or 90 EC preclude a national tax provision which makes the deposit of waste
at a waste disposal site subject to a tax (Altlastenbeitrag; disused hazardous site levy), but provides for exemption from
that tax for the deposit of waste which demonstrably derives from the safeguarding or rehabilitation of contaminated sites
(suspected contaminated sites or disused hazardous sites) if the sites (suspected contaminated sites or disused hazardous
sites) are entered in official registers provided for by law (Verdachtsflächenkataster; register of suspected contaminated
sites, or Altlastenatlas; register of disused hazardous sites), and only sites in Austria may be entered in those registers,
with the result that the tax exemption is also possible only in respect of the deposit of waste which originates from suspected
contaminated sites or disused hazardous sites located in Austria?’

**The question referred for a preliminary ruling**

*Articles 23 EC, 25 EC and 90 EC*

25     By the first part of its question, the national court seeks to ascertain whether a national levy such as the Altlastenbeitrag
constitutes a charge having equivalent effect to a customs duty on imports within the meaning of Articles 23 EC and 25 EC
or internal taxation which is discriminatory and, therefore, contrary to Article 90 EC.

26     It must first be borne in mind that EC Treaty provisions relating to charges having equivalent effect and those relating to
discriminatory internal taxation cannot be applied together, so that under the system of the Treaty the same measure cannot
belong to both categories at the same time (see, in particular, Case C‐90/94 *Haahr Petroleum* [1997] ECR I‐4085, paragraph 19; Case C‐387/01 *Weigel* [2004] ECR I‐4981, paragraph 63, and Joined Cases C‐393/04 and C‐41/05 *Air Liquide Industries Belgium* [2006] ECR I‐5293, paragraph 50).

27     As regards Articles 23 EC and 25 EC, it is settled case-law that any pecuniary charge, however small and whatever its designation
and mode of application, which is imposed unilaterally on goods by reason of the fact that they cross a frontier, and which
is not a customs duty in the strict sense, constitutes a charge having equivalent effect within the meaning of Articles 23
EC and 25 EC (see, in particular, *Haahr Petroleum*, paragraph 20; Case C‐213/96 *Outokumpu* [1998] ECR I‐1777, paragraph 20; *Weigel*, paragraph 64, and *Air Liquide Industries Belgium*, paragraph 51).

28     In the light of that definition and as regards the characteristics of the Altlastenbeitrag, it should be noted that all long-term
depositing of waste is in principle subject to payment of that levy, whether the waste comes from Austria or another Member
State. A levy such as the Altlastenbeitrag is not therefore charged because a border of the Member State which imposed that
levy has been crossed.

29     Whether such a levy is consistent with Community law cannot therefore be assessed in the light of Articles 23 EC and 25 EC.

30     As regards Article 90 EC, that provision, within the system of the Treaty, supplements the provisions on the abolition of
customs duties and charges having equivalent effect. Its aim is to ensure free movement of goods between the Member States
in normal conditions of competition by the elimination of all forms of protection which may result from the application of
internal taxation that discriminates against products from other Member States (see, in particular, *Air Liquide Industries Belgium*, paragraph 55, and Case C‐313/05 *Brzeziński* [2007] ECR I‐513, paragraph 27).

31     According to settled case‐law, pecuniary charges resulting from a general system of internal taxation applied systematically,
in accordance with the same objective criteria, to categories of products irrespective of their origin or destination fall
within Article 90 EC (see *Air Liquide Industries Belgium*, paragraph 56 and the case-law cited).

32     In the first place, it should be ascertained whether a levy such as the Altlastenbeitrag constitutes internal taxation within
the meaning of Article 90 EC.

33     In this respect, the Court finds that that levy, which is manifestly of a fiscal nature, is charged on all long-term depositing
of waste at a waste disposal site, whether that waste comes from Austria or another Member State.

34     The Austrian Government submits however that the Altlastenbeitrag falls outside the scope of Article 90 EC on the ground that
it is not a levy imposed on products within the meaning of that provision. Since waste deposited at waste disposal sites has
no pecuniary value, the Altlastenbeitrag is not imposed on goods in trade the cost of which could be increased by that levy
and which could be disadvantaged when sold domestically.

35     According to the Austrian Government, the Altlastenbeitrag is imposed on a supply of services by the operator of the waste
disposal site and depends on the nature of that service. It states in particular that, under Paragraph 6 of the ALSAG, the
tax burden is determined not by the nature of the waste being deposited, but by the nature of the disposal installations and
by the quality of the management of those installations.

36     The Austrian Government’s argument that, since it has no market value, waste for disposal is not covered by the concept of
‘products’ within the meaning of Article 90 EC cannot succeed.

37     First, in Case C‐2/90 *Commission* v *Belgium* [1992] ECR I‐4431, ‘the *Walloon waste* judgment’, paragraph 28, the Court held that waste, whether recyclable or not, is to be regarded as ‘goods’ the movement
of which, in accordance with Article 30 of the EC Treaty (now, after amendment, Article 28 EC), must in principle not be prevented.

38     Second, the Court stated, at paragraphs 25 and 26 of that judgment, that waste for disposal, even if it has no intrinsic commercial
value, may none the less give rise to commercial transactions in relation to the disposal or deposit thereof. Internal taxation
imposed on that waste is such as to render more difficult or more burdensome those commercial transactions for an operator
who seeks to dispose of that waste and, therefore, is liable to constitute a disguised restriction on the free movement of
that waste, a restriction that Article 90 EC is specifically intended to preclude in cases of discriminatory treatment of
imported waste.

39     The Austrian Government’s argument that a levy such as the Altlastenbeitrag is not imposed on products but on a supply of
services should also be rejected.

40     According to settled case‐law, Article 90 EC must be interpreted widely so as to cover all taxation procedures which, directly
or indirectly, undermine the equal treatment of domestic products and imported products. The prohibition laid down in that
article must therefore apply whenever a fiscal charge is likely to discourage imports of goods originating in other Member
States to the benefit of domestic production (Case 20/76 *Schöttle* [1977] ECR 247, paragraph 13; Case 252/86 *Bergandi* [1988] ECR 1343, paragraph 25, and the case‐law cited, and Case C‐45/94 *Ayuntamiento de Ceuta* [1995] ECR I‐4385, paragraph 29).

41     In *Bergandi* and Joined Cases 317/86, 48/87, 49/87, 285/87, 363/87 to 367/87, 65/88 and 78/88 to 80/88 *Lambert and Others* [1989] ECR 787, the Court ruled that Article 95 of the EEC Treaty (which became Article 95 of the EC Treaty, now, after amendment,
Article 90 EC) applies to internal taxation which is imposed on the use of imported products where those products are essentially
intended for such use and have been imported solely for that purpose.

42     The Court finds that a levy such as the Altlastenbeitrag, the imposition of which is triggered by the long-term depositing
at a disposal site of waste for disposal, is imposed on the only commercial transaction to which that waste can still be subject,
other than those in relation to its disposal, and that, in the case of waste from other Member States which is subject to
that levy, such waste is imported into the levying Member State solely for the purpose of that transaction.

43     Furthermore, as is apparent from *Schöttle* (paragraphs 12 to 15) and *Haahr Petroleum* (paragraphs 38 and 40), a charge which is imposed not on products as such, but on the specific activity of an undertaking
in connection with products and which is calculated according, inter alia, to the weight of the products at issue, falls within
the scope of Article 90 EC and, in so far as it has an immediate effect on the cost of national and imported products, must
be applied in a manner which is not discriminatory to imported products.

44     That case‐law has been developed in the context of the movement of goods with a market value which are liable to be offered
for sale in the importing Member State, in respect of which the effect on cost was the appropriate criterion for the purposes
of assessing any restrictions on the free movement of goods.

45     By contrast, to the extent that, as recalled at paragraph 42 of this judgment, the only commercial transactions to which waste
for disposal may give rise are those relating to the disposal or deposit thereof, the appropriate criterion for the purposes
of assessing any restrictions on the free movement of those goods is that of the effect of the levy on the price paid by economic
operators to dispose of them.

46     In this respect, the Court finds that, first of all, the management of a waste disposal site is clearly an activity related
to the waste which is deposited there, next, although the quality of the equipment and management of the disposal site is
factored into the calculation of the Altlastenbeitrag, it is apparent from Paragraphs 5 and 6 of the ALSAG that the rate of
that levy also depends on the weight and nature of the waste deposited and finally, although that levy is paid by the operator
of the waste disposal site, he is able to pass it on in the cost of his service to the operator depositing the waste.

47     Consequently, a levy such as the Altlastenbeitrag amounts to internal taxation, for the purposes of Article 90 EC, which is
imposed indirectly on waste being deposited.

48     In the second place, it is necessary to ascertain whether internal taxation such as the Altlastenbeitrag discriminates in
a manner contrary to Article 90 EC.

49     According to settled case-law, the first paragraph of Article 90 EC is infringed where the tax charged on the imported product
and that charged on the similar domestic product are calculated in a different manner on the basis of different criteria which
lead, if only in certain cases, to higher taxation being imposed on the imported product (Case C‐152/89 *Commission* v *Luxembourg* [1991] ECR I‐3141, paragraph 20; *Weigel*, paragraph 67; and *Brzeziński*, paragraph 29).

50     It follows that a system of taxation is compatible with Article 90 EC only if it is so arranged as to exclude any possibility
of imported products being taxed more heavily than domestic products and, therefore, only if it cannot in any event have discriminatory
effect (*Commission* v *Luxembourg*, paragraphs 21 to 25; *Haahr Petroleum*, paragraph 34; Case C‐375/95 *Commission* v *Greece* [1996] ECR I‐5981, paragraph 29; Case C‐68/96 *Grundig Italiana* [1998] ECR I‐3775, paragraph 12; and *Brzeziński*, paragraph 40).

51     For the purposes of assessing whether or not a system of taxation is discriminatory, it is necessary to take into consideration
not only the rate of tax but also the basis of assessment and the detailed rules for levying the various duties (Case 55/79
*Commission* v *Ireland* [1980] ECR 481, paragraph 8, and the case‐law cited; Case C‐327/90 *Commission* v *Greece* [1992] ECR I‐3033, paragraph 11; and *Grundig Italiana*, paragraph 13).

52     A national provision, such as Paragraph 3(2).1 of the ALSAG, which reserves the benefit of exemption from internal taxation
to certain domestic products, to the exclusion of imported products, is liable to lead, in certain cases, to higher taxation
being imposed on imported products than on domestic products. Such a provision is therefore in principle contrary to the prohibition
on discrimination laid down in Article 90 EC (see, to that effect, Case C‐212/96 *Chevassus‐Marche* [1998] ECR I‐743, paragraph 26).

53     The Austrian Government claims, however, that Article 90 EC does not preclude that levy since the Austrian legislation does
not establish any inequality of treatment between similar situations. The purpose of the Altlastenbeitrag is to finance the
safeguarding and rehabilitation of disused hazardous sites. The exemption from that levy under Paragraph 3(2).1 of the ALSAG
pursues the same objective. Such an objective presupposes prior identification of the contaminated sites by means of field
inspections, which can be undertaken only in Austria. There is therefore an objective difference between Austrian sites, which
can alone be identified, and sites in other Member States.

54     The Austrian Government further states that there is also an objective difference according to whether the rehabilitation
of a site and the waste disposal occur in the same Member State or in two different Member States, which rules out any inequality
of treatment amounting to discrimination. A Member State is not required to treat facts relating to the territory of another
Member State in the same way as similar facts relating to its own territory, provided that it does not discriminate on the
basis of the nationality of the economic operators. In the present case, the exemption under Paragraph 3(2).1 of the ALSAG
applies on the basis of a criterion, the carrying out of the rehabilitation of a contaminated site in Austria, which is objective
and non‐discriminatory. That exemption does not infringe Article 90 EC since there is no discrimination in relation to goods
from other Member States.

55     Those arguments must be rejected.

56     First of all, although it is settled case‐law that, as it now stands, Community law does not restrict the freedom of each
Member State to establish a tax system which differentiates between certain products, even products which are similar within
the meaning of the first paragraph of Article 90 EC, on the basis of objective criteria, such differentiation is compatible
with Community law, however, only if it pursues objectives which are themselves compatible with the requirements of the Treaty
and its secondary legislation, and if the detailed rules are such as to avoid any form of discrimination, direct or indirect,
against imports from other Member States or any form of protection of competing domestic products (*Outokumpu*, paragraph 30, and Joined Cases C‐290/05 and C‐333/05 *Nádasdi and Németh* [2006] ECR I‐10115, paragraph 51).

57     As stated at paragraph 52 of this judgment, a national provision such as Paragraph 3(2).1 of the ALSAG is liable to lead,
in certain cases, to higher taxation being imposed on imported products than on domestic products. Thus, even if the objective
of rehabilitating domestic sites contaminated by waste is compatible with the requirements of the Treaty and secondary legislation,
such a provision cannot itself be compatible with Article 90 EC.

58     Next, assuming that the Austrian Government’s arguments must be construed as calling into question the similarity between
waste imported from other Member States and waste produced in Austria, they must also be rejected.

59     First, leaving aside their geographical origin, categories of waste similarly intended for disposal by means of long‐term
depositing are clearly similar products. In particular, it should be noted that the exemption from the levy under Paragraph
3(2).1 of the ALSAG draws no distinction according to the hazardous nature or other characteristics of the waste deposited.

60     Second, the question whether the difference of origin between domestic waste and waste imported from other Member States is
sufficient to preclude their similarity for the purposes of the first paragraph of Article 90 EC must be answered in the negative.

61     It is true that, at paragraphs 34 and 35 of the *Walloon waste* judgment, the Court noted the particular nature of waste, arising from the fact that, pursuant to the principle that environmental
damage should as a matter of priority be remedied at source, which is consistent with the principles of proximity and self‐sufficiency,
waste must be disposed of as close as possible to the place where it is produced, in order to limit as far as possible the
transport of waste. It concluded, at paragraph 36 of that judgment, that, having regard to the differences between waste produced
in different places and to the connection of the waste with its place of production, national rules which treat differently
waste produced domestically and that coming from other Member States are not discriminatory.

62     However, that finding related only to non‐hazardous waste, which did not fall within the scope of Council Directive 84/631/EEC
of 6 December 1984 on the supervision and control within the European Community of the transfrontier shipment of hazardous
waste (OJ 1984 L 326, p. 31).

63     Since the *Walloon waste* judgment, the Community legislature has adopted Regulation No 259/93, which repealed and replaced Directive 84/631, whilst
extending the system set up to all waste, hazardous and non‐hazardous, with the exception of certain types of specific waste
exhaustively listed in Article 1 of that regulation.

64     The Court has held that the conditions and procedures established by Regulation No 259/93 in respect of shipments of waste
between Member States were adopted with a view to ensuring the protection of the environment, taking account of objectives
falling within the scope of environmental policy such as the principles of proximity, priority for recovery and self-sufficiency
at Community and national levels (Case C‐187/93 *Parliament* v *Council* [1994] ECR I‐2857, paragraphs 21 and 22, and Case C‐324/99 *DaimlerChrysler* [2001] ECR I‐9897, paragraph 41).

65     The Court has also held that Regulation No 259/93 governs in a harmonised manner, at Community level, the question of shipments
of waste in order to ensure the protection of the environment (*DaimlerChrysler*, paragraph 42).

66     Article 4(3) of that regulation provides inter alia, in points (a)(i) and (b)(i) respectively, for the possibility for the
authorities of the Member State of destination to take measures to prohibit generally or partially or to object systematically
to shipments of waste and to raise reasoned objections to planned shipments of waste, and this is in order to implement the
principles of proximity and self‐sufficiency at Community and national levels.

67     It follows that once a Member State has refrained from taking measures to prohibit generally or partially or to object systematically,
as provided for in Article 4(3)(a)(i) of Regulation No 259/93, and has not raised any reasoned objections to a shipment of
waste, as provided for in Article 4(3)(b)(i), it cannot impose restrictions or limitations on the free movement in its territory
of shipped waste on the basis of the principles of proximity and self‐sufficiency at Community and national levels (see, to
that effect, as regards Directive 84/631, the *Walloon waste* judgment, paragraphs 20 and 21).

68     Such is the case where, as in the main proceedings, the authorities of a Member State authorise, in accordance with Articles 3
to 5 of Regulation No 259/93, the shipment on their territory of waste from another Member State.

69     Furthermore, paragraphs 34 to 36 of the *Walloon waste* judgment did not relate to the examination of a fiscal measure in the light of Article 95 of the EEC Treaty, but formed part
of reasoning relating to whether it is possible to justify a national measure which constitutes an obstacle to the free movement
of waste for the purposes of Article 30 of the EEC Treaty (which became Article 30 of the EC Treaty, now, after amendment,
Article 28 EC) by the imperative requirement of environmental protection (see the *Walloon waste* judgment, paragraphs 29 to 34).

70     Lastly, as regards the material impossibility, pleaded by the Austrian Government, of identifying disused hazardous sites
or suspected contaminated sites in other Member States, it must be pointed out that practical difficulties cannot justify
the application of internal taxation which discriminates against products from other Member States (*Commission* v *Greece*, paragraph 47, and *Outokumpu*, paragraph 38).

71     While it may indeed be extremely difficult for the Austrian authorities to ensure that sites located in other Member States,
from which waste imported into Austria comes, satisfy the requirements laid down in the Austrian legislation at issue in the
main proceedings in order to be categorised as disused hazardous sites or suspected contaminated sites, that legislation does
not even give the importer the opportunity of adducing that proof in order to qualify for the exemption applicable to waste
from disused hazardous sites or suspected contaminated sites in Austria (see, to that effect, *Outokumpu*, paragraph 39).

72     Moreover, even if, in principle, Article 90 EC does not require Member States to abolish differences which are objectively
justified and which national legislation establishes between internal taxes on domestic products, it is otherwise where such
abolition is the only way of avoiding direct or indirect discrimination against the imported products (Case 21/79 *Commission* v *Italy* [1980] ECR 1, paragraph 16, and *Outokumpu*, paragraph 40).

73     In the light of all the foregoing considerations, the answer to the first part of the question referred for a preliminary
ruling must be that the first paragraph of Article 90 EC precludes a national tax provision such as Paragraph 3(2).1 of the
ALSAG which exempts from the levy imposed on the long-term depositing of waste at waste disposal sites in the Member State
concerned deposits of waste derived from the rehabilitation or safeguarding of disused hazardous sites or suspected contaminated
sites located in that Member State alone, but excludes exemption of deposits of waste derived from the rehabilitation or safeguarding
of sites located in other Member States.

*The interpretation of Articles 10 EC, 12 EC and 49 EC*

74     In the light of the Court’s answer to the first part of the question referred for a preliminary ruling, there is no need to
interpret Articles 10 EC, 12 EC and 49 EC.

**Costs**

75     Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
of those parties, are not recoverable.

On those grounds, the Court (First Chamber) hereby rules:

**The first paragraph of Article 90 EC precludes a national tax provision such as Paragraph 3(2).1 of the Law on the rehabilitation
of disused hazardous sites (Altlastensanierungsgesetz) of 7 June 1989 which exempts from the levy imposed on the long-term
depositing of waste at waste disposal sites in the Member State concerned deposits of waste derived from the rehabilitation
or safeguarding of disused hazardous sites or suspected contaminated sites located in that Member State alone, but excludes
exemption of deposits of waste derived from the rehabilitation or safeguarding of sites located in other Member States.**

[Signatures]

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[\*](#Footref*) Language of the case: German.