Opinion of the Advocate General — ECLI:EU:C:1997:508
Date: 1997-10-23
Language of the case: Dutch
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: Netherlands

Summary of the Judgment
1. Environment — Waste — Directive 75/442, as amended by Directive 91/156, and Regulation
No 259/93 — Waste for recovery — Principles of self-sufficiency and proximity — Inappli­
cable — Application by means of Article 130t of the Treaty — Not permissible in the case of
unjustified barriers to exports
(EC Treaty, Arts 36, 130s and 130t; Council Regulation No 259/93; Council Directive 75/442,
as amended by Directive 91/156)
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SUMMARY — CASE C-203/96
2. Competition — Public undertakings and undertakings on which Member States confer special
or exclusive rights — National legislation requiring delivery of certain waste for recovery to a
national undertaking with a monopoly in the incineration of dangerous waste — Obligation
having the effect of increasing the dominant position of the national undertaking — Not per­
missible
(EC Treaty, Arts 86 and 90)
1. Directive 75/442 on waste, as amended by
Directive 91/156, and Regulation No
259/93 on the supervision and control of
shipments of waste within, into and out
of the European Community cannot be
interpreted as meaning that the principles
of self-sufficiency and proximity are
applicable to shipments of waste for
recovery. That follows from the provi­
sions of the directive and the regulation
and from the preparatory texts. Further­
more, the difference in treatment between
waste for recovery and waste for disposal
reflects the intention of the Community
legislature to encourage recovery of waste
in the Community as whole, in particular
by eliciting the best technologies, which
means that waste of that type should be
able to move freely between Member
States for processing, thus excluding the
application of the principles of self-
sufficiency and proximity.
Article 130t of the Treaty, which autho­
rises Member States to adopt protective
measures which are more stringent than
those adopted pursuant to Article 130s, in
so far as they are compatible with the
Treaty, does not permit them to extend
the application of those principles to
waste for recovery when it is clear that
those principles create a barrier to exports
which is not justified either by an impera­
tive measure relating to protection of the
environment or by one of the derogations
provided for by Article 36 of the Treaty.
2. Article 90 of the Treaty, in conjunction
with Article 86, precludes rules such as
the Netherlands' Long-term Plan for the
Disposal of Dangerous Waste of June
1993, whereby a Member State requires
undertakings to deliver their waste for
recovery, such as oil filters, to a national
undertaking on which it has conferred the
exclusive right to incinerate dangerous
waste unless the processing of their waste
in another Member State is of a higher
quality than that performed by that
undertaking if, without any objective jus­
tification and without being necessary for
the performance of a task in the general
interest, those rules have the effect of
favouring the national undertaking and
increasing its dominant position.
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