Opinion of the Advocate General — ECLI:EU:C:1999:516
Date: 1999-10-21
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Environment;Free movement of goods;Measures having equivalent effect;Approximation of laws;Quantitative restrictions;Waste;Dominant position
Procedure: Reference for a preliminary ruling
Origin: Denmark

Summary of the Judgment 
1. Free movement of goods — Quantitative restrictions — Measures having equivalent 
effect — System for the collection and receipt of non-hazardous building waste 
destined for recovery authorising a limited number of undertakings to process the waste 
produced in a municipality — Obstacle to the expori of waste — Justification — 
Article 36 of the Treaty (now, after amendment, Article 30 EC) — Environmental 
protection — Absence 
(EC Treaty, Arts 34, 36 and 130r(2) (now, after amendment, Arts 29 EC, 30 EC and 
174(2) EC» 
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SUMMARY — CASE C-209/98 
2. Competition — Public undertakings — Undertakings on which Member States confer 
special or exclusive rights — Service of general economic interest — Concept — Waste 
management — Inclusion — Conditions 
(EC Treaty, Art. 90(3) (now Art. 86(3) EC)) 
3. Competition — Public undertakings and undertakings on which Member States confer 
special or exclusive rights — Introduction of a local system providing for a limited 
number of undertakings specially chosen to treat non-hazardous building waste 
produced in the area concerned and destined for recovery — Whether permissible 
(EC Treaty, Arts 86 and 90 (now Arts 82 EC and 86 EC)) 
4. Environment— Waste— Directive 75/442, as amended by Directive 91/156, and 
Regulation No 259/93 — Obligation on Member States to enter into contracts with all 
undertakings authorised to receive and recover non-environmentally-hazardous 
building waste — Absence 
(Council Regulation No 259/93; Council Directive 75/442, as amended by Directive 
91/156, Art. 10) 
5. Environment — Waste — Directive 75/442, as amended by Directive 91/156 — Power 
of a Member State to prohibit transport operations inconsistent with its management 
plan — Conditions — Obligation to communicate the measures concerned to the 
Commission — Failure to fulfil that obligation — Possibility for individuals to rely on 
the relevant provision — None 
(Council Directive 75/442, as amended by Directive 91/156, Art. 7(3)) 
1. Article 34 of the EC Treaty (now, after 
amendment, Article 29 EC) prohibits a 
system for the collection and receipt of 
non-hazardous building waste destined 
for recovery, under which a limited 
number of undertakings are authorised 
to process the waste produced in a 
municipality, if that system constitutes, 
in law or in fact, an obstacle to exports 
in that it does not allow producers of 
waste to export it, in particular 
through intermediaries. Such an obsta­
cle cannot be justified on the basis of 
Article 36 of the EC Treaty (now, after 
amendment, Article 30 EC) or in the 
interests of environmental protection, 
in particular by application of the 
principle referred to in Article 130r(2) 
of the EC Treaty (now, after amend­
ment, Article 174(2) EC) that damage 
should as a priority be rectified at 
source, in the absence of any indication 
of danger to the health or life of 
humans, animals or plants or danger 
to the environment. 
(see para. 51, operative part 1) 
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SYDHAVNENS STUN & GRUS 
2. The management of particular waste 
may properly be considered to be 
capable of forming the subject of a 
service of general economic interest, 
particularly where the service is 
designed to deal with an environmental 
problem. 
(see para. 75) 
3. Article 90 of the Treaty (now Arti­
cle 86 EC), read in conjunction with 
Article 86 of the Treaty (now Arti­
cle 82 EC), does not preclude the 
establishment of a local system under 
which, in order to resolve an environ­
mental problem resulting from the 
absence of processing capacity for 
non-hazardous building waste destined 
for recovery, a limited number of 
specially selected undertakings may 
process such waste in the area con­
cerned, thus making it possible to 
ensure a sufficiently large flow of such 
waste to those undertakings, and 
excludes other undertakings from pro­
cessing that waste, even though they 
are qualified to do so. 
(see para. 83, operative part 2) 
4. Neither Directive 75/442 on waste, as 
amended by Directive 91/156, nor 
Regulation No 259/93 on the super­
vision and monitoring of shipments of 
waste within, into and out of the 
European Community requires that 
Member States conclude contracts with 
all the undertakings authorised, within 
the meaning of Article 10 of that-
directive, to receive and recover envir­
onmentally non-hazardous building 
waste. 
(see para. 88, operative part 3) 
5. Article 7(3) of Directive 75/442 on 
waste, as amended by Directive 
91/156, which authorises Member 
States to take the measures necessary 
to prevent movements of waste which 
are not in accordance with their waste 
management plans, must be interpreted 
as meaning that it allows a Member 
State to take measures in relation to the 
shipment of waste, including measures 
which prohibit the shipment of non-
hazardous building waste destined for 
recovery, if the shipment is not in 
accordance with its waste management 
plan, on condition that that plan is 
compatible with the rules of the Treaty 
and of that directive. 
Furthermore, that provision must be 
interpreted as meaning that it does not 
confer on individuals any right on 
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SUMMARY — CASE C-209/98 
which they could rely before the 
national courts for the purpose of 
challenging a measure designed to 
prevent movements of waste which 
are not in accordance with a waste 
management plan, on the ground that 
that measure has not been communi­
cated to the Commission in accordance 
with that provision. 
(see paras 95 and 102 and 
operative part 4-5) 
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