**Case C-411/06**

**Commission of the European Communities**

**v**

**European Parliament**

**and**

**Council of the European Union**

(Action for annulment − Regulation (EC) No 1013/2006 – Shipments of waste − Choice of legal basis – Articles 133 EC and 175(1) EC)

Summary of the Judgment

1.        *Acts of the institutions – Choice of legal basis – Criteria*

*(Art. 175(1), EC; European Parliament and Council Regulation No 1013/2006)*

2.        *Environment – Regulation on shipments of waste – Instrument falling principally under protection of human health and of the
environment*

*(Art. 133 EC and 175(1) EC; European Parliament and Council Regulation No 1013/2006)*

1.        The choice of legal basis for a Community measure must rest on objective factors amenable to judicial review, including in
particular the aim and the content of the measure.

If examination of a Community measure reveals that it pursues a twofold purpose or that it has a twofold component and if
one of those is identifiable as the main or predominant purpose or component, whereas the other is merely incidental, the
act must be based on a single legal basis, namely, that required by the main or predominant purpose or component. Exceptionally,
if on the other hand it is established that the act simultaneously pursues a number of objectives or has several components
that are indissociably linked, without one being secondary and indirect in relation to the other, such an act will have to
be founded on the various corresponding legal bases. This is not the case with respect to Regulation No 1013/2006 on shipments
of waste, which pursues the objective of protection of the environment and which, consequently, was validly founded on Article
175(1) EC. It is necessary to examine whether the objective and components of that regulation relating to the protection of
the environment must be regarded as being the main or predominant objective and component.

(see paras 45-50)

2.        It is evident from the analysis of Regulation No 1013/2006 on shipments of waste that, both by its objective and content,
it is aimed primarily at protecting human health and the environment against the potentially adverse effects of cross-border
shipments of waste. More specifically, in so far as the prior written notification and consent procedure clearly pursues an
environmental protection purpose in the field of shipments of waste between the Member States and, consequently, was correctly
based on Article 175(1) EC, it would not be coherent to consider that that same procedure, when it applies to shipments of
waste between Member States and third countries with the same environmental protection objective, as confirmed by recital
33 in the preamble to that regulation, is in the nature of an instrument of common commercial policy and must, on that ground,
be based on Article 133 EC. That conclusion is corroborated by an analysis of the legislative context of that regulation.

A broad interpretation of the concept of common commercial policy is not such as to call into question the finding that the
contested regulation is an instrument falling principally under environmental protection policy. Thus, a Community act may
fall within that area, even when the measures provided for by that act are liable to affect trade.

A Community act falls within the exclusive competence in the field of the common commercial policy provided for in Article
133 EC only if it relates specifically to international trade in that it is essentially intended to promote, facilitate or
govern trade and has direct and immediate effects on trade in the products concerned.

That is clearly not the situation in the present case. The aim of Regulation No 1013/2006 is not to define those characteristics
of waste which will enable it to circulate freely within the internal market or as part of commercial trade with third countries,
but to provide a harmonised set of procedures whereby movements of waste can be limited in order to secure protection of the
environment.

(see paras 62-64, 70-72)


JUDGMENT OF THE COURT (Grand Chamber)

8 September 2009 ([\*](#Footnote*))

(Action for annulment − Regulation (EC) No 1013/2006 – Shipments of waste − Choice of legal basis – Articles 133 EC and 175(1) EC)

In Case C‐411/06,

ACTION for annulment under Article 230 EC, brought on 2 October 2006,

**Commission of the European Communities,** represented by G. Valero Jordana, M. Huttunen and M. Konstantinidis, acting as Agents, with an address for service in Luxembourg,

applicant,

v

**European Parliament,** represented by I. Anagnostopoulou and U. Rösslein, acting as Agents, with an address for service in Luxembourg,

**Council of the European Union,** represented by M. Moore and K. Michoel, acting as Agents, with an address for service in Luxembourg,

defendants,

supported by:

**French Republic,** represented by G. de Bergues, A. Adam and G. Le Bras, acting as Agents,

**Republic of Austria,** represented by E. Riedl, acting as Agent, with an address for service in Luxembourg,

**United Kingdom of Great Britain and Northern Ireland,** represented by E. Jenkinson, E. O’Neil and S. Behzadi-Spencer, acting as Agents, assisted by A. Dashwood, Barrister,

interveners,

THE COURT (Grand Chamber),

composed of V. Skouris, President, P. Jann, C.W.A. Timmermans (Rapporteur), A. Rosas, K. Lenaerts, A. Ó Caoimh and J.-C. Bonichot,
Presidents of Chambers, E. Juhász, G. Arestis, A. Borg Barthet, U. Lõhmus, L. Bay Larsen and P. Lindh, Judges,

Advocate General: M. Poiares Maduro,

Registrar: M.-A. Gaudissart, Head of Unit,

having regard to the written procedure and further to the hearing on 13 January 2009,

after hearing the Opinion of the Advocate General at the sitting on 26 March 2009,

gives the following

**Judgment**

1        By this action, the Commission of the European Communities asks the Court to annul Regulation (EC) No 1013/2006 of the European
Parliament and of the Council of 14 June 2006 on shipments of waste (OJ 2006 L 190, p. 1) (‘the contested regulation’ or ‘the
Regulation’) in so far as it is based solely on Article 175(1) EC and not on Articles 175(1) and 133 EC.

**Legal context**

*The Basel Convention*

2        The Convention on the control of transboundary movements of hazardous wastes and their disposal, signed at Basel on 22 March
1989, approved on behalf of the Community by Council Decision 93/98/EEC of 1 February 1993 (OJ 1993 L 39, p. 1) (‘the Basel
Convention’), states the following in the 8th to 10th recitals in the preamble thereto:

‘Convinced that hazardous wastes and other wastes should, as far as is compatible with environmentally sound and efficient
management, be disposed of in the State where they were generated,

Aware also that transboundary movements of such wastes from the State of their generation to any other State should be permitted
only when conducted under conditions which do not endanger human health and the environment, and under conditions in conformity
with the provisions of this Convention,

Considering that enhanced control of transboundary movement of hazardous wastes and other wastes will act as an incentive
for their environmentally sound management and for the reduction of the volume of such transboundary movement’.

3        Article 2(4) of that convention defines ‘disposal’ as ‘any operation specified in Annex IV to this Convention’. That Annex
IV contains a list of various types of disposal operations, including, in Section B thereof, the category of ‘[o]perations
which may lead to resource recovery, recycling, reclamation, direct reuse or alternative uses’.

*The contested regulation*

4        The contested regulation was adopted to replace and update the provisions 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 (OJ 1993 L 30, p. 1).
That latter regulation, based on Article 130s of the EEC Treaty (subsequently Article 130s of the EC Treaty, now, after amendment,
Article 175 EC), was adopted, inter alia, to implement the obligations under the Basel Convention.

5        It is apparent from recital 5 in the preamble to the contested regulation that it is intended also to integrate the content
of Decision C(2001)107/Final of the Council of the Organisation for Economic Co‐operation and Development (OECD) concerning
the revision of Decision C(92)39/Final on the control of transboundary movements of wastes destined for recovery operations
(‘the OECD Decision’), in order to harmonise waste lists with the Basel Convention and revise certain other requirements.
It was also decided at that time, according to recital 2 in the preamble to the contested regulation, to incorporate, in the
interests of clarity, a number of amendments to Regulation No 259/93 into a single text.

6        Recital 1 in the preamble to the contested regulation states that ‘[t]he main and predominant objective and component of this
Regulation is the protection of the environment, its effects on international trade being only incidental’.

7        According to recital 33 in the preamble to the contested regulation, ‘[t]he necessary steps should be taken to ensure that
... waste shipped within the Community and waste imported into the Community is managed, throughout the period of shipment and
including recovery or disposal in the country of destination, without endangering human health and without using processes
or methods which could harm the environment. As regards exports from the Community that are not prohibited, efforts should
be made to ensure that the waste is managed in an environmentally sound manner throughout the period of shipment and including
recovery or disposal in the third country of destination. ...’

8        Recital 42 in the preamble to that regulation states, with regard to the compliance of that regulation with the principles
of subsidiarity and proportionality, that ‘[s]ince the objective of this Regulation, namely to ensure protection of the environment
when waste is subject to shipment, cannot be sufficiently achieved by the Member States and can therefore, by reason of the
scale and effects thereof, be better achieved at Community level, the Community may adopt measures in accordance with the
principle of subsidiarity ... . In accordance with the principle of proportionality ..., this Regulation does not go beyond what
is necessary in order to achieve that objective’.

9        Article 1(1) of the contested regulation states that ‘[t]his Regulation establishes procedures and control regimes for the
shipment of waste, depending on the origin, destination and route of the shipment, the type of waste shipped and the type
of treatment to be applied to the waste at its destination’.

10      According to Article 1(2) of the contested regulation:

‘This Regulation shall apply to shipments of waste:

(a)      between Member States, within the Community or with transit through third countries;

(b)      imported into the Community from third countries;

(c)      exported from the Community to third countries;

(d)      in transit through the Community, on the way from and to third countries.’

11      Article 2 of the contested regulation contains definitions, including the following:

‘(30) “import” means any entry of waste into the Community but excluding transit through the Community;

(31)      “export” means the action of waste leaving the Community but excluding transit through the Community;

(32)      “transit” means a shipment of waste or a planned shipment of waste through one or more countries other than the country of
dispatch or destination;

(33)      “transport” means the carriage of waste by road, rail, air, sea or inland waterways;

(34)      “shipment” means the transport of waste destined for recovery or disposal which is planned or takes place:

(a)      between a country and another country; or

(b)      between a country and overseas countries and territories or other areas, under that country’s protection; or

(c)      between a country and any land area which is not part of any country under international law; or

(d)      between a country and the Antarctic; or

(e)      from one country through any of the areas referred to above; or

(f)      within a country through any of the areas referred to above and which originates in and ends in the same country; or

(g)      from a geographic area not under the jurisdiction of any country, to a country.’

12      Title II of the contested regulation, which comprises Articles 3 to 32 thereof, concerns shipments of waste within the Community
with or without transit through third countries. That title provides for the basic scheme under that regulation establishing
detailed rules relating to notification, procedural and monitoring obligations in respect of waste shipments. Under Article
3(1) of that regulation, shipments of all wastes destined for disposal, as well as, inter alia, shipments of wastes destined
for recovery listed in Annex IV to the contested regulation (‘orange list’), are to be subject to the procedure of prior written
notification and consent as laid down in the provisions of Title II. Annex IV also includes wastes listed in Annexes II and
VIII to the Basel Convention.

13      Under the prior written notification and consent procedure, the notifier must supply, inter alia, on the one hand, under Articles
4(4) and 5 of the contested regulation, evidence of a contract concluded between the notifier and the consignee with respect
to the recovery or disposal of the notified waste and, on the other hand, pursuant to Articles 4(5) and 6 of that regulation,
evidence of establishment of a financial guarantee or equivalent insurance covering the costs of shipment, recovery or disposal
operations and storage of the waste in question. In the event of notification of a planned shipment of waste, the competent
authorities may, on grounds based essentially on environmental protection, listed in Articles 11 and 12 of that regulation,
lay down conditions in connection with their consent to that shipment or raise reasoned objections to such a shipment.

14      Articles 22 to 25 of the contested regulation impose an obligation to take back waste when a shipment cannot be completed
or when a shipment is illegal and provide for rules governing the costs of take-back. Specific rules relating to shipments
within the Community with transit via third countries are laid down in Articles 31 and 32 of that regulation.

15      The prior written notification and consent procedure does not apply to shipments of non-hazardous waste, listed inter alia
in Annex III to the contested regulation (‘green list’) and destined for recovery. Under Articles 3(2) and 18(1), such shipments
are subject only to a general information requirement. Nevertheless, under Article 18(2) of that regulation, a contract between
the person who arranges the shipment and the consignee for recovery of the waste is to be effective when the shipment starts
and evidence of such a contract must be available.

16      Title III of the contested regulation concerns shipments of waste exclusively within Member States. Under Article 33(1) of
that regulation, ‘Member States shall establish an appropriate system for the supervision and control of shipments of waste
exclusively within their jurisdiction. This system shall take account of the need for coherence with the Community system
established by Titles II and VII’.

17      Title IV of the contested regulation concerns the scheme for exports from the Community to third countries. Article 34(1)
and (2) of that regulation prohibits all exports of waste from the Community destined for disposal, except for exports of
waste destined for disposal in countries of the European Free Trade Association (EFTA) which are also parties to the Basel
Convention. In that case, under Article 35 of the Regulation, the provisions of Title II of the Regulation relating to the
prior written notification and consent procedure are to apply mutatis mutandis, with adaptations and additions. Exports from
the Community of wastes in the categories listed in Article 36(1) of the contested regulation, including exports from the
Community of hazardous wastes destined for recovery in countries to which the OECD Decision does not apply, are also prohibited.
As regards exports of non-hazardous waste (‘green list’) destined for recovery in the latter countries, Article 37 of the
Regulation provides that the Commission must obtain information on the applicable procedures. As regards exports of hazardous
and non-hazardous waste destined for recovery in countries to which the OECD Decision applies, under Article 38 of the Regulation,
the provisions of Title II of the Regulation are also to apply mutatis mutandis, with adaptations and additions.

18      Title V of the contested regulation governs imports of waste into the Community from third countries. Under Article 41 of
that regulation, imports into the Community of waste for disposal are prohibited except those from countries which are parties
to the Basel Convention or other countries with which the Community, or the Community and its Member States, have concluded
bilateral or multilateral agreements compatible with Community legislation and in accordance with Article 11 of that convention.
In those cases, pursuant to Articles 41(3) and 42 of the Regulation, the provisions of Title II of that regulation are to
apply mutatis mutandis, with adaptations and additions. Under Article 43(1) of the contested regulation, all imports into
the Community of waste destined for recovery are to be prohibited except those from countries to which the OECD Decision applies,
other countries which are parties to the Basel Convention or other countries with which the Community, or the Community and
its Member States, have concluded bilateral or multilateral agreements compatible with Community legislation and in accordance
with Article 11 of the Basel Convention. In those cases, pursuant to Articles 43(3), 44(1) and 45 of the contested regulation,
read in conjunction with Article 42 thereof, Title II is to apply mutatis mutandis, with adaptations and additions.

19      Title VI of the contested regulation lays down the rules applicable to the transit of waste through the Community from and
to third countries, which, in accordance with Articles 47 and 48 thereof, read in conjunction with Articles 42 and 44 thereof,
are also derived from Title II of the Regulation.

20      Title VII of the contested regulation contains additional provisions concerning the application of the Regulation with respect,
inter alia, to penalties, the designation of competent authorities and reports by the Member States. Among those provisions,
Article 49 lays down general obligations concerning environmental protection in the following terms:

‘1.      The producer, the notifier and other undertakings involved in a shipment of waste and/or its recovery or disposal shall take
the necessary steps to ensure that any waste they ship is managed without endangering human health and in an environmentally
sound manner throughout the period of shipment and during its recovery and disposal. ...

2.      In the case of exports from the Community, the competent authority of dispatch in the Community shall:

(a)      require and endeavour to secure that any waste exported is managed in an environmentally sound manner throughout the period
of shipment, including recovery as referred to in Articles 36 and 38 or disposal as referred to in Article 34, in the third
country of destination;

(b)      prohibit an export of waste to third countries if it has reason to believe that the waste will not be managed in accordance
with the requirements of point (a).

...

3.      In the case of imports into the Community, the competent authority of destination in the Community shall:

(a)      require and take the necessary steps to ensure that any waste shipped into its area of jurisdiction is managed without endangering
human health and without using processes or methods which could harm the environment, and in accordance with Article 4 of
Directive 2006/12/EC and other Community legislation on waste throughout the period of shipment, including recovery or disposal
in the country of destination;

(b)      prohibit an import of waste from third countries if it has reason to believe that the waste will not be managed in accordance
with the requirements of point (a).’

**Forms of order sought and procedure**

21      The Commission claims that the Court should:

–        annul the contested regulation;

–        declare that the effects of the annulled regulation are definitive pending the replacement of that regulation within a reasonable
period of time by an act adopted by the European Parliament and the Council of the European Union on the correct legal basis
of Articles 175(1) and 133 EC and justified accordingly in the recitals, and

–        order the Parliament and the Council to pay the costs.

22      The Parliament contends that the Court should:

–        dismiss the action in its entirety as unfounded, and

–        order the Commission to pay the costs.

23      The Council contends that, in the event that the action is held to be admissible, the Court should:

–        dismiss the action in its entirety, and

–        order the Commission to pay the costs.

24      By order of the President of the Court of 27 February 2007, the French Republic, the Republic of Austria and the United Kingdom
of Great Britain and Northern Ireland were granted leave to intervene in support of the forms of order sought by the Parliament
and the Council.

25      Following a request by the Parliament and the Council, made pursuant to the second subparagraph of Article 44(3) of the Rules
of Procedure of the Court of Justice, the case was assigned to the Grand Chamber.

**The action**

*Admissibility*

26      The Council raises an objection of inadmissibility on the ground that the Commission, contrary to the requirements of Article
38(1)(c) of the Rules of Procedure, fails to state in its application which provisions of the contested regulation should,
in its view, be based on Article 133 EC, which should be based on Article 175(1) EC and, as the case may be, which provisions
should be based on both articles.

27      Under Article 38(1)(c) of the Rules of Procedure, an application must state the subject-matter of the proceedings and a summary
of the pleas in law on which the application is based. That statement must be sufficiently clear and precise to enable the
defendant to prepare his defence and the Court to rule on the application. It is therefore necessary for the essential points
of law and of fact on which a case is based to be indicated coherently and intelligibly in the application itself (Case C‐195/04
*Commission* v *Finland* [2007] ECR I‐3351, paragraph 22, Case C‐412/04 *Commission* v *Italy* [2008] ECR I‐619, paragraph 103).

28      The Court finds that, by stating in its application that the contested regulation ought to have been based on Articles 133
EC and 175(1) EC and by explaining why it takes the view that the conditions for using a dual legal basis are fulfilled, the
Commission has satisfied the requirements under Article 38(1)(c) of the Rules of Procedure. The application evidently did
enable the defendants and the Member States to present their positions on a well-informed basis. Contrary to the Council’s
contentions, it is not necessary that an action challenging the legal basis of a Community act on the ground that it should
have been based on a dual legal basis should specify which parts or provisions of the contested measure properly come within
one or other of the legal bases cited, or both.

29      Accordingly, the Commission’s action is admissible.

*Substance*

 Arguments of the parties

30      The Commission puts forward a single plea in law, alleging infringement of the EC Treaty resulting from the choice by the
Parliament and the Council to base the contested regulation solely on Article 175(1) EC and not on Articles 133 EC and 175(1)
EC, as it had proposed. A dual legal basis is called for because both the purpose and the content of the Regulation comprise
two indissociable components, one relating to the common commercial policy and the other to protection of the environment,
neither of which can be regarded as secondary or indirect as compared with the other.

31      The Commission observes that, according to settled case-law, the scope of application of the common commercial policy is to
be given a wide interpretation and a measure regulating trade with third countries does not cease to be a commercial policy
measure only because it also serves objectives in fields other than trade, such as protection of the environment. In that
context, it refers to Article 6 EC, under which environmental protection requirements are to be integrated into the definition
and implementation of Community policies and activities referred to in Article 3 EC.

32      As regards the link between the contested regulation and the common commercial policy, the Commission argues that the wording
of Article 1(2) of the Regulation shows that it is not intended only to regulate shipments of waste in the Community for purely
environmental purposes, but that it also extends to imports into the Community of waste from third countries, exports of waste
from the Community to third countries and to waste in transit through the Community on the way from and to third countries.
It adds that, since waste is to be regarded as ‘goods’ for the purposes of the free movement of goods within the Community,
there can hardly be any doubt that the import, export and transit of such goods, regulated in particular by Titles IV to VI
of the Regulation, fall within the scope of the common commercial policy.

33      In so far as the environmental nature of the contested regulation follows from the environmental protection objectives pursued
by the Basel Convention, the Commission, whilst noting that that convention has an important commercial policy element, as
evidenced by the fact that it was considered by the World Trade Organisation (WTO), observes that the Regulation has a much
broader scope than that convention. The latter applies only to movements of hazardous waste destined for disposal, whereas
the contested regulation covers all waste, regardless of whether or not it is hazardous and whether it is destined for disposal
or recovery.

34      As to the possibility of founding a regulation on a dual legal basis comprising Articles 133 EC and 175(1) EC, the Commission
observes that the Court, in Case C-178/03 *Commission* v *Parliament and Council* [2006] ECR I-107, concerning the legal basis for Regulation (EC) No 304/2003 of the European Parliament and of the Council
of 28 January 2003 concerning the export and import of dangerous chemicals (OJ 2003 L 63, p. 1), accepted that, both the purposes
and the terms of that regulation contained commercial and environmental components which were linked so indissociably that
recourse to that dual legal basis was required.

35      In that context, the Commission refers to various Community acts which were adopted on a dual legal basis comprising Articles 113
of the EEC Treaty (subsequently Article 113 of the EC Treaty, now, after amendment, Article 133 EC) and 130s of the EEC Treaty,
namely, inter alia, Council Regulation (EEC) No 3254/91 of 4 November 1991 prohibiting the use of leghold traps in the Community
and the introduction into the Community of pelts and manufactured goods of certain wild animal species originating in countries
which catch them by means of leghold traps or trapping methods which do not meet international humane trapping standards (OJ
1991 L 308, p. 1), Council Decision 98/392/EC of 23 March 1998 concerning the conclusion by the European Community of the
United Nations Convention of 10 December 1982 on the Law of the Sea and the Agreement of 28 July 1994 relating to the implementation
of Part XI thereof (OJ 1998 L 179, p. 1), and Council Regulation (EC) No 1420/1999 of 29 April 1999 establishing common rules
and procedures to apply to shipments to certain non-OECD countries of certain types of waste (OJ 1999 L 166, p. 6). Thus,
the Council has accepted in the past that acts may be adopted using the dual legal basis in question. In so far as the contested
regulation provides for similar rules to those laid down in Regulation No 1420/1999, the Commission considers that, if the
Council does not accept that the whole regime of shipments to non-OECD countries of waste destined for recovery has to be
based on the dual legal basis proposed, it will be in contradiction with what it accepted by adopting Regulation No 1420/1999.

36      According to the Commission, Article 176 EC does not preclude a combined application of Articles 133 EC and 175 EC as a legal
basis for a Community act. If that act was to regulate a certain matter in great detail, the possibility for the Member States
of maintaining or introducing more stringent protection measures would necessarily be limited. It is, moreover, clear from
the second sentence of Article 176 EC that such measures would have to be compatible with the other provisions of the Treaty,
including Article 133 EC.

37      The Commission points out that the question of the legal basis cannot be regarded as purely formal in nature, since the choice
between Articles 133 EC and 175 EC has important implications for the division of competence between the Community and its
Member States, the former conferring an exclusive competence on the Community, the latter conferring shared competences. The
choice of Article 175(1) EC as the sole legal basis for the contested regulation implies that the Member States have competence
to regulate exports and imports of waste, which would be bound to distort competition between undertakings of the Member States
in external markets and to create disturbances in the internal market of the Community.

38      The Parliament and the Council submit that detailed analysis of the structure and content of the contested regulation clearly
show that it has one main purpose, which is the protection of the environment. Whilst recitals 1 and 42 in the preamble to
the Regulation make express mention of that purpose, the remaining recitals make no mention of the pursuit of the objectives
of the common commercial policy. The Parliament and the Council state that the Regulation pursues the same main objective
and follows the same basic structure as Regulation No 259/93, which was based on Article 130s of the EEC Treaty alone. The
environmental purpose of the contested regulation is also apparent from the fact that, just like its predecessor, Regulation
No 259/93 is designed to implement the obligations under the Basel Convention, which is categorised as a multilateral agreement
on environmental protection for the purposes of the WTO and was concluded on behalf of the Community by Decision 93/98, adopted
on the basis of Article 130s of the EEC Treaty.

39      As regards the content of the contested regulation, the Parliament and the Council state that the rules laid down in Title
II of that regulation, which contains the core provisions governing shipments of waste, apply mutatis mutandis to Titles IV
to VI thereof, on extra-Community shipments of waste. Those institutions’ possible objections to shipments of waste can be
based only on environmental grounds. They also emphasise the importance of the general obligation imposed in Article 49 of
the contested regulation concerning the protection of the environment which applies to both imports and exports. Thus that
regulation establishes one coherent set of rules serving the protection of the environment, which do not actually facilitate
but rather impede trade.

40      In so far as, according to the Commission, the correct legal basis for intra-Community waste shipments governed by Title II
of the contested regulation is Article 175 EC, whereas, as regards shipments of waste between the Community and third countries
governed by Titles IV to VI of that regulation, the correct basis is Article 133 EC, such a position is not in line with the
choice to apply the same system, contained in Title II of the contested regulation, both to intra-Community and extra‐Community
shipments of waste. That position would also deprive the Community’s environmental policy of any possibility of external action
whenever goods might be affected.

41      As regards the Commission’s reliance on Case C‐178/03 *Commission* v *Parliament and Council*, the Parliament notes that the Commission has not shown to what extent the contested regulation is comparable to Regulation
No 304/2003 at issue in the case which gave rise to that judgment, or that the aims and content of those regulations present
the same characteristics, allowing an analogous conclusion to be drawn regarding their legal bases.

42      The Council, for its part, considers that that judgment implies logically that the parts of the contested regulation concerning
shipments of waste between the Community and third countries must have a dual legal basis consisting of Articles 133 EC and
175 EC, whilst the other parts of that regulation must, by contrast, be based on Article 175 EC alone. Nevertheless such a
result would be difficult to reconcile with the Court’s case-law regarding the predominant purpose test, given that it appears
to be accepted by the Commission that the other parts of the contested regulation were validly adopted on the basis of Article 175 EC.
Even if those parts of that regulation concerned with the shipment of waste between the Community and third countries did
pursue an objective linked to the common commercial policy, clearly that objective would be merely secondary, in the light
of the aim and content of that regulation ‘as a whole’, to the primary objective of the Regulation.

43      The Parliament and the Council express serious doubts as to the possibility of using both Article 133 EC and Article 175 EC
in combination as a legal basis for a Community act, since the Community’s competence in the field of commercial policy is
exclusive in nature, whereas it is shared with the Member States in the field of environmental policy. Accordingly, they have
difficulty seeing how Article 176 EC could be applied in the context of a legal act based on Article 133 EC and Article 175
EC. In that situation, the manifest intention of the drafters of the Treaty would be thwarted.

44      The intervening Member States put forward, in essence, a similar line of argument to that of the Parliament and the Council.

 Findings of the Court

45      It should be remembered, as a preliminary point, that, according to the Court’s settled case-law, the choice of legal basis
for a Community measure must rest on objective factors which are amenable to judicial review, including in particular the
aim and the content of the measure (see Case C‐178/03 *Commission* v *Parliament and Council*, paragraph 41, and Case C‐155/07 *Parliament* v *Council* [2008] ECR I‐0000, paragraph 34).

46      If examination of a Community measure reveals that it pursues a twofold purpose or that it has a twofold component and if
one of those is identifiable as the main or predominant purpose or component, whereas the other is merely incidental, the
act must be based on a single legal basis, namely that required by the main or predominant purpose or component (see Case
C‐178/03 *Commission* v *Parliament and Council*, paragraph 42, and Case C‐155/07 *Parliament* v *Council*, paragraph 35).

47      Exceptionally, if on the other hand it is established that the act simultaneously pursues a number of objectives or has several
components that are indissociably linked, without one being secondary and indirect in relation to the other, such an act will
have to be founded on the various corresponding legal bases (see Case C‐211/01 *Commission* v *Council* [2003] ECR I‐8913, paragraph 40, and Case C‐178/03 *Commission* v *Parliament and Council*, paragraph 43).

48      In the present case, it is not disputed that the contested regulation pursues the objective of protection of the environment
and that, consequently, it was, at least in part, validly founded on Article 175(1) EC. The dispute relates solely to the
question whether that regulation also pursues a common commercial policy objective and has components falling within that
policy which are indissociably linked to environmental protection-related components of such importance that the act ought
to have had a dual legal basis, namely Articles 133 EC and 175(1) EC.

49      In those circumstances, it is necessary to examine whether the objective and components of the contested regulation relating
to the protection of the environment must be regarded as being the main or predominant objective and component.

50      That is indeed the case.

51      First, as regards the objective of the contested regulation, recital 1 in the preamble thereto states that ‘[t]he main and
predominant objective and component of this Regulation is the protection of the environment’. Although disputed by the Commission,
that statement is reiterated in recital 42 in the preamble to that regulation, which was contained in the Commission’s proposal
for that same regulation and which states that the objective of the contested regulation is ‘to ensure protection of the environment
when waste is subject to shipment’.

52      The other recitals in the preamble to the contested regulation confirm the environmental purpose thereof. As stated by the
Advocate General in point 18 of his Opinion, apart from recitals 16 and 19, which refer to the proper functioning of the internal
market, all of the recitals, albeit some more directly than others, bespeak environmental concerns.

53      By way of example, recital 33 in the preamble to the contested regulation states that necessary steps should be taken to ensure
that waste shipped within the Community and waste imported into the Community is managed, throughout the period of shipment
and including recovery or disposal in the country of destination, ‘without endangering human health and without using processes
or methods which could harm the environment’ and that, as regards exports from the Community, ‘efforts should be made to ensure
that the waste is managed in an environmentally sound manner throughout the period of shipment and including recovery or disposal
in the third country of destination’.

54      By contrast, and as observed by the Parliament and the Council, the preamble to the contested regulation does not make any
reference to the pursuit of objectives falling within the common commercial policy.

55      As regards, secondly, the content of the contested regulation, Article 1 thereof states that that regulation ‘establishes
procedures and control regimes for the shipment of waste, depending on the origin, destination and route of the shipment,
the type of waste shipped and the type of treatment to be applied to the waste at its destination’. As is clear from the summary
of the content of the Regulation given in paragraphs 12 to 19 of this judgment, the principal instrument established by it
is the prior written notification and consent procedure, the details of which are set out at length in Title II of the Regulation,
relating to shipments of waste within the Community. That procedure is applicable, pursuant to Article 3(1) of the contested
regulation, to shipments within the Community of all wastes destined for disposal, and also to shipments of specific categories
of wastes destined for recovery.

56      The prior written notification and consent procedure is characterised by a number of elements aimed at ensuring that shipments
of waste are carried out in a manner which respects the need to protect the environment. Thus, in the context of that procedure,
under Articles 4(4), 5 and 22 to 24 of the contested regulation, the notifier of a shipment of waste must supply evidence
of a contract concluded between him and the recipient, laying down obligations with respect to the recovery or disposal of
the notified waste, as well as the obligation for the notifier to take back waste when a shipment cannot be completed or when
a shipment is illegal.

57      Moreover, under Articles 4(5) and (6) of the contested regulation, the notifier must establish a financial guarantee or equivalent
insurance covering the costs of shipment, recovery or disposal operations and storage of the waste in question.

58      When a shipment of notified waste is to be carried out, the competent authorities, when they opt to impose conditions for
their consent to a notified shipment or to raise reasoned objections to such a shipment, as provided for in Articles 9 to
12 of the contested regulation, must base them primarily on grounds relating to compliance with environmental protection legislation.

59      It follows that, like the prior informed consent procedure established by the Cartagena Protocol on Biosafety, the prior written
notification and consent procedure provided for by the contested regulation may be described as a typical instrument of environmental
policy (see, to that effect, Opinion 2/00 [2001] ECR I-9713, paragraph 33).

60      As pointed out in paragraphs 17 and 18 of this judgment, the prior written notification and consent procedure provided for
in Title II of the contested regulation and applicable to shipments of waste within the Community is also to apply mutatis
mutandis, with adaptations and additions provided for by the relevant provisions of that regulation, to shipments of waste
between the Community and third countries in cases where exports from the Community or imports into the Community are not
prohibited under the provisions of Titles IV and V of that regulation. This is the case, pursuant to Articles 35 and 42 of
the Regulation, of exports of waste destined for disposal from the Community to EFTA countries which are parties to the Basel
Convention, and also imports into the Community of such waste originating from countries which are parties to that convention.
The same is true, under Articles 38 and 44 of the contested regulation, of exports and imports of waste destined for recovery
between the Community and the countries to which the OECD Decision applies. The same regime applies, under Articles 47 and
48 of the Regulation, in conjunction with Articles 42 and 44 thereof, in Title VI thereof, to shipments of waste through the
Community from and to third countries.

61      It is also important to bear in mind the obligation imposed by Article 49 of the contested regulation on the producer, the
notifier and other undertakings involved in a shipment of waste and/or its recovery or disposal to take ‘the necessary steps
to ensure that any waste they ship is managed without endangering human health and in an environmentally sound manner throughout
the period of shipment and during its recovery and disposal’. That obligation, which is general in nature, applies to all
shipments of waste, both within the Community and, mutatis mutandis pursuant to Article 49(2) and (3), between the Community
and third countries.

62      Consequently, it is evident from the above analysis of the contested regulation that, both by its objective and content, it
is aimed primarily at protecting human health and the environment against the potentially adverse effects of cross-border
shipments of waste.

63      More specifically, in so far as the prior written notification and consent procedure clearly pursues an environmental protection
purpose in the field of shipments of waste between the Member States and, consequently, was correctly based on Article 175(1)
EC, it would not be coherent to consider that that same procedure, when it applies to shipments of waste between Member States
and third countries with the same environmental protection objective, as confirmed by recital 33 in the preamble to the contested
regulation, is in the nature of an instrument of common commercial policy and must, on that ground, be based on Article 133
EC.

64      That conclusion is corroborated by an analysis of the legislative context of the contested regulation.

65      First, that regulation replaces Regulation No 259/93, which, whilst providing inter alia in Titles IV to VI for a scheme similar
to that provided for in Titles IV to VI of the contested regulation for imports and exports of waste between the Community
and third countries, and also for transit through the Community of waste originating from third countries, was adopted on
the basis of Article 130s of the EEC Treaty. The choice of that legal basis was endorsed by the Court in Case C‐187/93 *Parliament* v *Council* [1994] ECR I‐2857, as opposed to Article 100a of the EEC Treaty (subsequently 100a of the EC Treaty, now, after amendment,
Article 95 EC). The Court has also found that the supervision and control established by Regulation No 259/93 are intended
to protect the environment, not only within the Community but also in third countries to which waste is exported from the
Community (see Case C‐259/05 *Omni Metal Service* [2007] ECR I‐4945, paragraph 30).

66      Secondly, like its predecessor Regulation No 259/93, the contested regulation, as evidenced by recital 3 in the preamble thereto,
aims to implement the obligations under the Basel Convention. The environmental purpose of that convention is clear from the
preamble thereto, which states that ‘transboundary movements of [hazardous wastes and other wastes] from the State of their
generation to any other State should be permitted only when conducted under conditions which do not endanger human health
and the environment’ and emphasises the need for ‘their environmentally sound management’. In keeping with those objectives,
that convention which, as observed by the Parliament and the Council, was characterised as a multilateral environmental agreement
by the WTO, was approved on behalf of the Community by Decision 93/98, adopted on the sole basis of Article 130s of the EEC
Treaty.

67      As regards the Commission’s argument that the contested regulation is broader in scope than the Basel Convention, since it
applies to all waste destined for disposal and recovery, whereas the Convention covers only hazardous waste for disposal,
and that that difference denotes a commercial policy dimension to the Regulation, it must be pointed out that it is clear
from Article 2(4) of that convention, read in conjunction with Section B of Annex IV thereto, that the term ‘disposal’ used
in that convention covers ‘[o]perations which may lead to resource recovery, recycling, reclamation, direct reuse or alternative
uses’. As observed by the Advocate General in point 33 of his Opinion, the fact that the contested regulation also applies
to non-hazardous waste and to waste intended for recovery does not make it commercial or weaken its environmental dimension
since waste, of whatever type it may be, is inherently harmful to the environment (see, to that effect, Case C-9/00 *Palin Granit and Vehmassalon kansanterveystyön kuntayhtymän hallitus* [2002] ECR I-3533, paragraphs 36 and 45 to 51).

68      The foregoing analysis is not invalidated by the Commission’s line of argument that Titles IV to VI of the contested regulation,
concerning exports, imports and transit of waste, must be based on Article 133 EC because waste constitutes goods which may
be the object of commercial transactions and that the notion of common commercial policy should be interpreted broadly, since
it encompasses commercial measures which also pursue objectives in other areas, including environmental protection. Nor can
it be affected by the fact that, according to the terminology used in Article 1(2) of that regulation, shipments of waste
between the Community and third countries are categorised as ‘imports’ and ‘exports’.

69      It should be borne in mind in that regard that the prior written notification and consent procedure applies to all shipments
of waste, irrespective of any commercial context in which they might take place. The term ‘shipment’ is defined in Article
2(34) of the contested regulation in a neutral manner as ‘the transport of waste destined for recovery or disposal ...’. The
term ‘transport’, in turn, is defined in Article 2(33) of that regulation as ‘the carriage of waste by road, rail, air, sea
or inland waterways’. ‘Import’ and ‘export’ are also defined, in Article 2(30) and (31) of the Regulation, in neutral terms,
as ‘any entry of waste into the Community ...’ and ‘the action of waste leaving the Community ...’ respectively. The contested
regulation thus emphasises the carriage of waste with a view to its treatment rather than carriage thereof for commercial
purposes. Even if waste is shipped in the context of commercial trade, the fact remains that the prior written notification
and consent procedure is aimed solely at protecting against risks to human health and the environment arising from such shipments
and not to promote, facilitate or govern commercial trade (see, by analogy, Opinion 2/00, paragraphs 37 and 38).

70      Moreover, a broad interpretation of the concept of common commercial policy is not such as to call into question the finding
that the contested regulation is an instrument falling principally under environmental protection policy. As the Court has
held, a Community act may fall within that area, even when the measures provided for by that act are liable to affect trade
(see, to that effect, Opinion 2/00, paragraph 40).

71      A Community act falls within the exclusive competence in the field of the common commercial policy provided for in Article
133 EC only if it relates specifically to international trade in that it is essentially intended to promote, facilitate or
govern trade and has direct and immediate effects on trade in the products concerned (see Case C-347/03 *Regione autonoma Friuli-Venezia Giulia and ERSA* [2005] ECR I-3785, paragraph 75 and case-law cited).

72      That is clearly not the situation in the present case. As with its predecessor, the aim of the contested regulation is not
to define those characteristics of waste which will enable it to circulate freely within the internal market or as part of
commercial trade with third countries, but to provide a harmonised set of procedures whereby movements of waste can be limited
in order to secure protection of the environment (see, to that effect, Case C‐187/93 *Parliament* v *Council*, paragraph 26).

73      As to the Commission’s argument that the Court should, in the present case, take the same approach as in Case C-178/03 *Commission* v *Parliament and Council*, suffice it to note that Regulation No 304/2003 concerning the export and import of dangerous chemicals, which was at issue
in that case, is not comparable to the contested regulation.

74      The principal objective of Regulation No 304/2003 is to implement the Rotterdam Convention on the Prior Informed Consent Procedure
for Certain Hazardous Chemicals and Pesticides in International Trade, approved, on behalf of the European Community, by Council
Decision 2003/106/EC of 19 December 2002 (OJ 2003 L 63, p. 27) (‘the Rotterdam Convention’). Given the clear convergence between
the provisions of that convention and those of the Regulation, which implements the latter at Community level, the Court found
that use of the same legal bases both for the decision approving that convention and for that regulation was necessary (see
Case C-178/03 *Commission* v *Parliament and Council*, paragraphs 45 and 47).

75      In that regard, in Case C‐94/03 *Commission* v *Council* [2006] ECR I‐1, paragraph 43, the Court inferred from a detailed analysis of the Rotterdam Convention that it also aimed
to promote shared responsibility and cooperative efforts in the international trade of certain hazardous chemicals and that
it was through the adoption of measures of a commercial nature, relating to trade in certain hazardous chemicals or pesticides,
that the parties to that convention sought to attain the objective of protecting human health and the environment. The Court
concluded that the commercial components of that convention could not be regarded as merely incidental to the objective of
environmental protection pursued thereby (see, to that effect, Case C‐94/03 *Commission* v *Council*, paragraphs 37 and 42), and that the two components falling within the scope of the common commercial policy and protection
of human health and the environment are indissociably linked and neither of them can be regarded as secondary or indirect
as compared with the other. The decision approving that convention on behalf of the Community thus ought to have been based
on Articles 133 EC and 175(1) EC, in conjunction with the relevant provisions of Article 300 EC (see Case C‐94/03 *Commission* v *Council*, paragraph 51). Similarly, the Court has held that Regulation No 304/2003 implementing the Rotterdam Convention ought to
have been founded on Articles 133 EC and 175(1) EC (Case C‐178/03 *Commission* v *Parliament and Council*).

76      As shown by the analysis in paragraphs 51 to 67 of this judgment, the contested regulation does not contain such components
of common commercial policy as to justify recourse to a dual legal basis. Accordingly, the Commission may not rely on Case
C-178/03 *Commission* v *Parliament and Council* in order to justify a finding to the contrary.

77      Moreover, the Commission’s line of argument intended to demonstrate, by reference to the Community acts referred to in paragraph
35 of this judgment, the existence of a practice of adopting acts using a dual legal basis consisting of Articles 133 EC and
175(1) EC cannot be accepted. The legal basis for an act must be determined having regard to its own aim and content and not
to the legal basis used for the adoption of other Community acts which might, in certain cases, display similar characteristics
(see Case C-178/03 *Commission* v *Parliament and Council*, paragraph 55 and case-law cited).

78      In the light of all the above considerations, the Commission’s action must be dismissed.

**Costs**

79      Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been
applied for in the successful parties’ pleadings. Since the Parliament and the Council have asked that the Commission be ordered
to pay the costs and the Commission has been unsuccessful, the Commission must be ordered to pay the costs. Pursuant to the
first subparagraph of Article 69(4), the interveners in this case must bear their own costs.

On those grounds, the Court (Grand Chamber) hereby:

1.      **Dismisses the action;**

2.      **Orders the Commission of the European Communities to pay the costs;**

3.      **Orders the French Republic, the Republic of Austria and the United Kingdom of Great Britain and Northern Ireland to bear their
own costs.**

[Signatures]

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