Opinion of the Advocate General — ECLI:EU:C:2026:424
Date: 2026-05-21
Language of the case: German

summary of the information and evidence contained in the complaint concerning the allegedly illegal shipments of waste, including to site 4. 59 Specifically, the waste under entry 19 12 12, namely ‘other wastes (including mixtures of materials) from mechanical treatment of wastes other than those mentioned in 19 12 11 [the latter entry referring to “other wastes (including mixtures of materials) from mechanical treatment of waste containing dangerous substances”]’. 60 Wurzer is reported to have shipped the waste via the organiser Trade & Service, which had signed a waste shipment contract with Inter-Nicco. Inter-Nicco then transported the waste, under a brokerage contract with Marko, to a facility in Gliwice, operated by the companies Ekobiopell and A&P, with which Marko had signed waste shipment contracts. 61 The plastic waste was contaminated by other materials, and so could not be classified as plastic waste. 62 See, on the presence of other companies mentioned by the Republic of Poland, footnote 58 of the present Opinion. 63 Once the shipments entered Polish territory, the initial Annex VII forms were replaced by new Annex VII forms indicating ‘Spółdzielnia Socjalna „PLUS” Żagań’ as the company in charge of the shipment, and ‘Sarbia 36’, as the consignee. In addition, the transport orders and invoices show the locations in Germany where Lobbe and Böhme are established as the place of loading, and Sarbia as the place of unloading. 64 The waste in question was shipped first to that undertaking in Jawiszowice and then to other consignees in Gliwice. 65 Furthermore, that waste was transported, not to the recovery facility identified in the transport documents and the Annex VII forms, but directly to Sarbia, where there was no recovery facility, and on the basis of falsified shipment documents. 66 See Annex B.20. 67 See Annex A.59 (documents relating to the delivery of waste from Germany to Gliwice). 68 From the documents produced by the Republic of Poland (such as invoices, transport orders, CMR documents, weighing slips and Annex VII forms; see, in that regard, Annex A.59), it seems likely that several shipments of waste were made directly from Germany to Gliwice. 69 In particular, the witness statements taken from the drivers during the criminal investigation (Annex A.58) and the statement of Marko’s representative (Annex A.56) do not provide conclusive evidence in that regard. Similarly, the photos taken during the inspection of waste from German (and Austrian) products are not sufficient, on their own, to attribute responsibility for that waste to the German companies in question (Annex A.48). Moreover, the fact that A&P and Ekobiopell hold no permits for the treatment of the waste does not mean that the German companies that produced that waste should be held liable, in the absence of a direct link between the Polish and German companies in question. 70 The Annex VII forms, completed by the two German companies in question, classify the waste as ‘green listed’ plastic waste. They list, on the one hand, Lobbe as the party who arranged the shipment and Havel in Chełmek as the consignee and recovery facility, and on the other hand, Böhme as the party who arranged the shipment, Recovery as the consignee, and Havel as the recovery facility. 71 In particular, mention should be made of the inspection carried out by the Polish authorities (Annex A.61) and the findings of an investigation carried out by the Tarnów regional public prosecutor’s office (Annex A.67). 72 This ‘neutralisation order’ consisted, in essence, of replacing the original documents (including the Annex VII forms) with falsified documents. For example, the Republic of Poland mentions an additional note in the transport contract between the Polish companies Karol and Hunters Investment, which states that ‘it is essential that the driver does not specify the destination of the goods when loading’ (see Annex A.66). 73 There is no evidence that the German companies were informed of this rerouting, which is primarily the responsibility of the Polish companies. In that regard, the Republic of Poland relies on an Annex VII form (Annex A.70) which supposedly proves the existence of cooperation between Lobbe and Logistics Hunters, the company allegedly in charge of transporting the waste directly from Germany to Sarbia. However, that document, like the other available Annex VII forms, actually concerns a shipment of waste to the Havel facility in Chełmek. In those circumstances, the question of the extent to which the waste at issue could be classified under entry 19 12 04 (corresponding to entry B3010 of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, signed on 22 March 1989, approved on behalf of the European Economic Community by Council Decision 93/98/EEC of 1 February 1993 (OJ 1993 L 39, p. 1)), given their level of impurity, is not decisive. In any event, it does not seem to be established that that waste exceeded the level of impurity permitted by the definition of entry B3010 of the Basel Convention, as interpreted in the light of the Commission document entitled ‘Frequently Asked Questions (FAQs) on Regulation (EC) 1013/2006 on shipments of waste’, which is available, in English, at the following address: https://ec.europa.eu/environment/pdf/waste/shipments/faq.pdf. 74 In that regard, the Republic of Poland merely reiterates, in its reply, that the quantity of waste present in Sarbia was estimated at around 8 700 tonnes, most of which came from Germany. 75 See Annexes A.72 (report from the inspection carried out at the site by the Polish authorities) and A.73 (photos taken at the site). 76 Mixed municipal waste, under entry 19 12 12 (around 70% of the waste), contaminated with organic matter, and other plastic waste, under entry 19 12 04 (around 30% of the waste), containing mineral contaminants. 77 Within the meaning of Article 2(35)(a), (b), (e) and (g)(i) and (iii) of Regulation No 1013/2006. 78 The shipments of waste to the site in question concern the German undertakings Lobbe, Vorberg Recycling GmbH, WAZ Werstoff-Aufberentulgs-Zentrum GmbH and TAK GmbH, and the Polish undertaking Ecomed Adam Macech, which leases a warehouse in Bzowo. 79 The inspection carried out by the Polish authorities and the findings of a criminal investigation carried out by the Tarnów regional public prosecutor’s office (see Annex A.74, letter from that public prosecutor’s office) are particularly relevant. 80 See permit granted to Ecomed Adam Macech for the collection of plastic waste (Annex A.72, p. 3042). 81 For example, the photographs taken at site 6 (Annexes A.72 and A.73), depicting waste labelled with Lobbe’s identification number (10999), clearly proves that waste from that undertaking was present at the site. However, it does not demonstrate to the requisite legal standard that that undertaking was involved in its transportation. Although it cannot be ruled out that it was informed of the transport, it is also possible that the Polish undertakings in question arranged the illegal shipments without involving that undertaking. 82 For example, the Annex VII form elements that can be linked to Lobbe only concerned shipments of plastic waste (under entry 19 12 04) made to Havel in Chełmek (see Annex B.33). 83 See Annex A.74 (documents from the Tarnów public prosecutor’s office), in particular p. 3146. 84 Furthermore, it does not seem to me, contrary to the Republic of Poland’s assertion, that the judgment of 9 June 2016, Nutrivet (C‑69/15, EU:C:2016:425, paragraphs 37 and 38) is relevant in that regard. In that case, it was established that the accompanying documents at issue in the main proceedings listed a different company from that to which the waste shipments at issue in the main proceedings were actually supposed to be sent, established in another Member State, which was referred to as the recovery facility, even though it was not situated in the country of destination given in that document. 85 See paragraph 214 of the complaint (Annexes A.81 and B.5). For that reason, the Federal Republic of Germany submits that the complaint is inadmissible in so far as it is raised in respect of sites 3, 4 and 6, whereas the Republic of Poland, while acknowledging that its complaint referred only to site 5, maintains that the reference to sites 3, 4 and 6 in the application does not constitute an extension of the second complaint, but only a clarification made thereto. See, to that effect, Prete, L., Infringement Proceedings in EU Law, Wolters Kluwer, Alphen-sur-le-Rhin, 2017, p. 203. 86 Although the wording of Article 28(2) of Regulation No 1013/2006 uses the expression “‘notified’ waste”, it seems to me that this also applies to waste initially subject to the information procedure. Indeed, any other interpretation would lead to the paradoxical outcome that that provision would only apply (and thus create a notification obligation) when the waste has already been notified. The interpretation that I propose, however, appears to be consistent with the context in which that provision is set out, in Chapter 5 of that regulation, entitled ‘General administrative provisions’, as well as with its objective, which is precisely to resolve the differences of opinion between the authorities as to the application of Article 3 of that regulation. 87 In other words, Article 28(2) of Regulation No 1013/2006 establishes a subsidiary classification of waste in the event of differences of opinion between the authorities concerned, leading to the application of the procedure of prior written notification and consent provided for in Article 3(1) of that regulation. That approach is consistent with the precautionary principle and the principle that preventive action should be taken, in so far as it ensures the highest level of supervision and control under that regulation. It follows that the procedure of prior written notification and consent should be considered the default procedure in order to ensure optimal supervision and control of intra-EU shipments of waste to protect the environment and human health. The information procedure, on the other hand, is only appropriate for waste that requires a lower level of supervision and control. 88 That Member State questions the applicability of Article 4(3) TEU in the present case, on the ground that Regulation No 1013/2006 contains specific provisions on cooperation between Member States, thus constituting a lex specialis. 89 According to the Court’s case-law, a failure to fulfil the general obligation of sincere cooperation flowing from Article 4(3) TEU is distinct from a failure to fulfil the specific obligations in which that general obligation manifests itself. Therefore an infringement of that general obligation may be found only in so far as it covers conduct distinct from that which constitutes the infringement of those specific obligations (judgment of 17 December 2020, Commission v Slovenia (ECB Archives), C‑316/19, EU:C:2020:1030, paragraph 121 and the case-law cited). 90 See the case-law cited in the preceding footnote of the present Opinion. See also judgment of 30 April 2024, Latvia v Sweden (Deposit guarantee schemes) (C‑822/21, EU:C:2024:373, paragraphs 99 and 100 and the case-law cited). 91 Indeed, in an action for failure to fulfil obligations based on Article 258 TFEU, the Court of Justice has stated that the Commission, which does not have investigative powers of its own in this area, is largely reliant on the information provided by any complainants, private or public bodies active in the Member State concerned and that Member State itself; and that it is primarily for the national authorities to conduct the necessary on-the-spot checks, in a spirit of genuine cooperation and mindful of each Member State’s duty …, to facilitate the general task of the Commission (see, to that effect, judgment of 16 July 2015, Commission v Slovenia, C‑140/14, EU:C:2015:501, paragraphs 40 to 43 and the case-law cited). The same principle applies, by analogy, in an action for failure to fulfil obligations based on Article 259 TFEU. 92 See my analysis under the first complaint with regard to sites 2 to 6. 93 While the Court has repeatedly held that a Member State may not plead provisions, practices or circumstances existing in its internal legal order, including those resulting from its federal organisation, in order to justify a failure to comply with the obligations and time limits laid down in EU law (see, to that effect, judgment of 14 May 2002, Commission v Germany, C‑383/00, EU:C:2002:289, paragraph 20), the only situation relied on by the Polish authorities in that respect, relating to site 3, ended, following several exchanges (Annexes A.37, A.39 and A.40), with a refusal from the competent authorities (Annex A.44).