62002CC0472_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1. This case concerns the interpretation of Regulation (EEC) No 259/93 (2) which lays down the procedural rules to which shipments of waste between Member States are subject. These rules differ according to whether the waste is for disposal or recovery. They are less onerous in the case of recovery than for disposal. The terms ‘disposal’ and ‘recovery’ are defined by Directive 75/442/EEC, (3) to which the Regulation expressly refers. (4)
2. The Regulation provides that a natural or legal person, called ‘the notifier’, who intends to ship waste for disposal or recovery from one Member State to another must give notice of the proposed shipment to the competent national authorities of the countries concerned – namely the competent authority of the country of destination, (5) that of the country from which the shipment is to be made (6) and, where appropriate, that of the country through which the waste is to pass in transit (7) – and to the consignee of the waste. The Regulation also states that the national legislation of each Member State may provide that it is the competent authority of dispatch which must transmit the proposal, which it has received from the notifier, to the other competent authorities and to the consignee.
3. In the present case the Court is asked to clarify the powers of a competent authority of dispatch whose national legislation makes it responsible for the transmission of the shipment proposal, where that authority disagrees with the classification of the proposal. The question is whether the authority, where it considers that a proposal classified as a ‘shipment of waste for recovery’ is in reality a shipment for purposes of disposal, is entitled to reclassify the shipment on its own initiative, whether it may return the file to the notifier, or whether it has an obligation to transmit the proposal as classified while retaining the power to object to the carrying out of the operation on the ground of the incorrect classification.
4. Before giving a brief account of the factual context in which the question has been referred to the Court, I shall set out the relevant provisions of the Regulation and also the judgment in ASA, (8) which is referred to in the order for reference and in which the Court provided some guidance that is relevant to the reply which I propose to give in the present case.
I – The Regulation
5. The aim of the Regulation is to provide a harmonised set of procedures whereby movements of waste can be limited in order to secure protection of the environment. (9) The preamble to the Regulation states that ‘shipments of waste must be subject to prior notification to the competent authorities enabling them to be duly informed in particular of the type, movement and disposal or recovery of the waste, so that these authorities may take all necessary measures for the protection of human health and the environment, including the possibility of raising reasoned objections to the shipment’. (10)
6. The notifier, who must give this notification, is defined in Article 2(g) of the Regulation as the original producer of the waste or, failing him, the collector or the holder of the waste who proposes to ship it or have it shipped.
7. The procedure for shipments of waste between Member States is laid down in Title II of the Regulation, of which Chapter A, comprising Articles 3 to 5, covers waste for disposal and Chapter B, comprising Articles 6 to 11, covers waste for recovery.
8. Articles 3 and 6 of the Regulation require, in identical terms, a notifier who intends to ship waste for disposal or for recovery respectively from one Member State to another to notify the competent authority of destination and to send a copy of the notification to the competent authorities of dispatch and of transit and to the consignee. (11) Notification is to be effected by means of the consignment note issued by the competent authority of dispatch. (12) The notifier must complete the consignment note and, if requested by the competent authorities, supply additional information and documentation. (13) In particular, he must provide information concerning disposal operations as referred to in Annex IIA to Directive 75/442 (14) where the waste is to be disposed of, or recovery operations as referred to in Annex IIB to the Directive (15) where the shipment is for recovery purposes. The notifier must also conclude a contract with the consignee for the disposal or the recovery of the waste, and the contract must meet the requirements set out in the Regulation. (16)
9. Under Articles 3(8) and 6(8) of the Regulation, ‘a competent authority of dispatch may, in accordance with national legislation, decide to transmit the notification itself instead of the notifier to the competent authority of destination, with copies to the consignee and to the competent authority of transit’.
10. Unlike Article 6(8), Article 3(8) has a second subparagraph which provides as follows. Where national legislation makes it responsible for giving notification of the consignment note, ‘the competent authority of dispatch may decide not to proceed with notification if it has itself immediate objections to raise against the shipment in accordance with Article 4(3). It shall immediately inform the notifier of these objections.’ (17)
11. On receipt of the notification of a proposed shipment for the purposes of disposal or recovery, the competent authority of destination must, within three working days, send an acknowledgment to the notifier and copies thereof to the other competent authorities concerned and to the consignee. (18) The dispatch of the acknowledgment marks the starting point of the periods allowed to the authorities for adopting a position on the disposal or recovery operation.
12. With regard to disposal operations, Article 4 of the Regulation provides that they must be authorised by the authority of destination. Authorisation may be given only in the absence of objections on the part of the competent authorities of dispatch and transit. The competent authorities of dispatch and transit may raise objections or impose conditions on the shipment within 20 days following the dispatch of the acknowledgment. The authority of destination must take its decision to authorise the proposed shipment, with or without conditions, or to refuse it, not earlier than 21 days and not later than 30 days following the dispatch of the acknowledgment. (19)
13. The objections which may be raised and the conditions which may be imposed by the competent authorities are set out in Article 4(3). Under Article 4(3)(a), Member States may, 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, take measures to prohibit generally or partially or to object systematically to shipments of waste. Under Article 4(3)(b), the competent authorities of dispatch and destination may also raise reasoned objections to planned shipments if they are not in accordance with the Directive (i) in order to implement the principle of self-sufficiency at Community and national levels, (ii) in cases where the installation has to dispose of waste from a nearer source and the competent authority has given priority to this waste or (iii) in order to ensure that shipments are in accordance with waste management plans. Furthermore, under Article 4(3)(c), the competent authorities may raise reasoned objections to the planned shipment if (i) it is not in accordance with national legislation relating to environmental protection, public order, public safety or health protection, (ii) the notifier or the consignee has previously been guilty of illegal trafficking or (iii) the shipment conflicts with obligations resulting from international conventions concluded by the Member State or Member States concerned.
14. With regard to waste for recovery, Article 7 of the Regulation provides that the competent authorities of destination, dispatch and transit have 30 days following dispatch of the acknowledgment to object to the shipment (20) and 20 days following the dispatch of the acknowledgment in which to lay down conditions in respect of the transport of waste within their jurisdiction. (21) The grounds on which objections may be based are listed in Article 7(4) and are fewer in number than those in relation to waste for disposal. If no objection is lodged within the 30-day period, shipment may be effected within one year of that date. (22) However, the written consent of the competent authorities is required prior to shipment if the waste for recovery is listed in Annex IV to the Regulation, entitled ‘Red List of Wastes’ because such waste is considered particularly dangerous, or where the waste in question has not yet been assigned to one of the annexes to the Regulation. (23)
15. Article 26 of the Regulation, which is also referred to in the question from the national court, defines ‘illegal traffic’ and sets out the consequences thereof, depending on whether it must be attributed to the notifier or the consignee.
II – The ASA
judgment
16. In ASA, cited above, the Court was confronted with a situation in which the competent authority of dispatch had lodged an objection to a proposed shipment classified by the notifier as a recovery operation, because, according to that authority, it was a disposal operation. (24) In that case, Article 6(8) of the Regulation was not applicable and the applicant itself had to give notice of its proposal to all the competent authorities and to the consignee. The Court was asked whether the competent authority of dispatch is competent to verify whether a proposed shipment classified in the notification as a ‘shipment of waste for recovery’ does in fact correspond to that classification, whether, if that is the case, it may oppose the shipment if the notifier’s classification is incorrect, and upon which provision of Community law the authority must then rely.
17. The Court observed that it follows from the system established by the Regulation that all the competent authorities to which the notification is addressed must check that the classification by the notifier is consistent with the Regulation and object to a shipment which is incorrectly classified. (25) The Court concluded therefrom that if the competent authority of dispatch considers that the purpose of the shipment has been incorrectly classified in the notification, the ground for its objection to the shipment must be the classification error itself, without reference to one of the specific provisions of the Regulation setting out the objections which the Member States may raise against a shipment of waste. (26)
18. The Court set out the effects of such an objection. Like the other objections provided for in the Regulation, it has the effect of preventing the shipment. (27) The notifier may then abstain from shipping the waste to another Member State, submit a new notification, or institute any appropriate proceedings to challenge the decision of the competent authority of dispatch objecting to the shipment. However, the Court made it clear that, in any event, it is not for a competent authority to reclassify on its own initiative the purpose of the shipment of waste, since such a unilateral reclassification would result in one and the same shipment being examined by different competent authorities in the light of provisions falling under different chapters of the Regulation, which would be incompatible with the system established by the Regulation. (28)
19. Moreover, the Court pointed out that in DaimlerChrysler (29) it had held that the procedure laid down by the Regulation provides the notifier with a guarantee that the proposed shipment will be examined within the periods prescribed by the Regulation and that he will be informed, upon the expiry of those periods at the latest, whether, and on what conditions, if any, the shipment can be carried out. (30) T he Court concluded therefrom that any objection by the competent authority of dispatch founded on the incorrect classification of a shipment as a shipment of waste for recovery, when, according to the authority, the waste is for disposal, must be raised within the period prescribed by Article 7(2) of the Regulation. (31)
III – Facts
20. Siomab SA (32) operates an incineration plant for household waste and similar products in Brussels. The plant produces residues, mainly ash and salts. In November 2001 Siomab concluded a contract with a German company for burying the salts in the galleries of salt mines at Teutschenthal, Germany. It gave notice of its proposed shipment on 4 December 2001 to the Institut bruxellois pour la gestion de l’environnement, (33) in its capacity as the competent authority of dispatch. In accordance with Article 6(8) of the Regulation, the Order of 7 July 1994 of the Government of the Brussels Capital Region relating to the import and export of waste confers upon the IBGE the task of transmitting the notification to the other competent authorities and to the consignee.
21. Siomab classified the planned operation as a recovery operation. The IBGE took the view that it was a disposal operation and on its own initiative reclassified the proposed shipment before notifying it to the competent authority of destination in Germany. The latter objected to the shipment on the ground that, under German mining law, recovery only, and not disposal, was permissible in the Teutschenthal mine.
22. Siomab sent its file to the IBGE once again on 9 April 2002, retaining the original classification of the operation. It contended that, in accordance with the judgment in ASA, the IBGE had to transmit the notification to the competent authority of destination, and was unable to reclassify the purpose of the shipment. On 29 April 2002 the IBGE, adhering to its assessment, returned the file to Siomab on the ground that the classification of the operation was incorrect.
23. Siomab then brought proceedings before the Conseil d’État (Council of State, Belgium) for the annulment of the IBGE’s decision refusing to transmit the notification of the proposed waste shipment to the competent authority of destination. On 14 May 2002 Siomab also applied for interim relief to require the IBGE to transmit the notification, without amendment, to the competent authority of destination. By order of 8 July 2002, the President of the Tribunal de première instance de Bruxelles (Court of First Instance, Brussels) (Belgium) dismissed Siomab’s application. Siomab lodged an appeal against the order with the Cour d’appel de Bruxelles (Court of Appeal, Brussels).
IV – The question referred
24. In support of its appeal, Siomab argued that, in accordance with the judgment in ASA, it was not for the IBGE to reclassify on its own initiative the purpose of the waste shipment and that, in the context of the specific procedure provided for in Article 6(8) of the Regulation concerning recovery operations, the Regulation does not empower the competent authority of dispatch to refuse to transmit the notification of the proposed shipment.
25. The IBGE contended that, on the contrary, it had the duty to verify the classification of the proposal and that therefore it was not required to transmit the notification in the case of abuse of the Regulation.
26. Since the Cour d’appel de Bruxelles took the view that interpretation of the Regulation was required in order to dispose of the case, it decided to stay proceedings and refer the following question to the Court:
‘Where a Member State has recourse to the mechanism by which the competent authority of dispatch gives notice of a consignment note under Articles 3(8) and 6(8) of [the] Regulation …, must Articles 3(8), 4(3), 6(8), 7(4) and 26 of the Regulation be interpreted as meaning:
(a) that the competent authority of dispatch within the meaning of the Regulation, which is empowered to verify whether a planned shipment classified in the notification as a “shipment of waste for recovery” actually fits that classification, may, when it considers that the classification is incorrect,
(i) refuse to transmit the consignment note because of that incorrect classification and ask the notifier to transmit a new consignment note to it,
(ii) transmit the consignment note after reclassifying the planned shipment as a “shipment of waste for disposal”,
(iii)	transmit the consignment note containing the incorrect classification, immediately accompanying its transmission with an objection based on that incorrect classification,
(b) or, on the contrary, that the competent authority of dispatch is required to send the notification as classified by the notifier to the competent authority of destination, while retaining the power, if it considers that the purpose of the shipment has been incorrectly classified, also to raise a reasoned objection on the basis of that erroneous classification, at the same time or subsequently?’
V – Appraisal
27. In substance, the question from the national court asks whether the Regulation must be interpreted as meaning that, where a Member State has recourse to the mechanism by which the competent authority of dispatch gives notice of a consignment note under Articles 3(8) and 6(8) of the Regulation, that authority, if it considers that the classification is incorrect,
– may refuse to effect the notification because of the incorrect classification of the proposed shipment and ask the notifier to transmit a new consignment note to it,
– may reclassify the proposed shipment on its own initiative before giving notification thereof, or
– must give the notification and at the same time or subsequently raise a reasoned objection on the basis of the erroneous classification.
28. In ASA, we saw that the Court held that if the competent authority of dispatch considers that the classification of the proposed shipment as being for the purpose of recovery is incorrect, the authority in question cannot amend on its own initiative the classification of the purpose of the waste shipment and must raise an objection within the period prescribed by Article 7(2) of the Regulation. In the present case, the question is whether that ruling can be applied where the legislation of a Member State provides that, pursuant to Articles 3(8) and 6(8) of the Regulation, the competent authority of dispatch must itself, instead of the notifier, transmit the notification of the proposed shipment to the other competent authorities and to the consignee.
29. Like the Commission, the Italian and Netherlands Governments and Siomab, and contrary to the other interveners, I consider that the replies given in ASA
are certainly applicable in a situation of that kind, so that the competent authority of dispatch is, in my view, not authorised to reclassify the proposed operation on its own initiative or to return the file to the notifier, but must transmit the consignment note and raise an objection within the period allowed for that purpose. My analysis is based on the wording of Articles 3(8) and 6(8) of the Regulation.
30. Those provisions enable Member States to entrust the competent authority of dispatch, instead of the notifier, with the task of transmitting the shipment proposal to the other competent authorities and to the consignee of the waste. It must be borne in mind that these provisions aim to harmonise at Community level the procedural rules applying to the shipment of waste. In no way do the provisions give the Member States the right to confer on the competent authority of dispatch power to reclassify on its own initiative the purpose of the shipment before transmitting the notification. Such reclassification would have the consequence that the proposal would be scrutinised by the other competent authorities as reclassified and no longer as presented by the notifier. However, Articles 3(8) and 6(8) of the Regulation do not derogate from the rules laid down respectively in Articles 3(1) to (5) and 6(1) to (5) of the Regulation, which show that it is incumbent on the notifier, and him alone, to classify the proposed shipment and to complete the consignment note to that effect.
31. It seems to me that a power for the competent authority of dispatch to refuse to transmit the notification and to return the file to the notifier if it considers that the classification of the proposal is incorrect is precluded by the very wording of the provisions in question.
32. As stated by the interveners whose view I share, only the second subparagraph of Article 3(8) of the Regulation enables the competent authority of dispatch to refuse to transmit the notification of the proposal, so that such a possibility exists only in the case of notification of a shipment of waste that, according to the consignment note, is for disposal. This possibility is nevertheless available only for the reasons set out in Article 4(3) of the Regulation, whose content is noted in point 13 above. Specifically, it is Article 4(3)(b) and (c) which lay down the reasons for which Member States may raise objections to a specific shipment of waste. (34) However, in my opinion, none of those reasons covers an error in the classification of the proposed shipment. (35) Furthermore, the Court has held that this list of cases in which a Member State may object to a shipment of waste for disposal is exhaustive, (36) so that it cannot be construed broadly in order to include an error in the classification of the proposal when that ground of objection is not expressly provided for therein. This reasoning is confirmed by the Court’s analysis of the Regulation in ASA . It follows from that judgment that the duty of all the competent authorities to check that the classification by the notifier is consistent with the provisions of the Regulation follows not from the specific provisions setting out the objections which the Member States may raise to waste shipments, namely Articles 4(3) and 7(4) of the Regulation, but from the system established by the Regulation. (37) In other words, misclassification is a separate ground of objection from those referred to in Articles 4(3) and 7(4) of the Regulation. (38)
33. We may therefore draw the following conclusions from these observations. First, it is only in the case of notification of a shipment of waste for disposal that the competent authority of dispatch may, under the specific procedure in Article 3(8) of the Regulation, refuse to effect transmission of the notification. Secondly, it may refuse to do so only on one of the grounds exhaustively set out in Article 4(3) of the Regulation, and that provision does not cover a situation where the competent authority of dispatch considers that the notifier’s classification of the proposal is incorrect. I infer from this that the competent authority of dispatch has no right to refuse to transmit the notification where it considers that the classification of the proposal in question is incorrect. A refusal to do so, where the shipment has been classified by the notifier as a disposal operation, would go beyond what is laid down by the Community legislature in the second subparagraph of Article 3(8) and in Article 4(3) of the Regulation. Where the shipment has been classified as a recovery operation, as in the present case, there would likewise be no legal basis at all for such refusal and the effect of allowing such a refusal would be to render the said provisions partially ineffective because there would be created, in the case of a shipment for recovery purposes, a possibility of refusal which, on a combined application of those provisions, is specifically prohibited in the context of the procedure for a shipment for disposal purposes, although that procedure is more onerous.
34. In my view, therefore, the effect of Articles 3(8) and 6(8) of the Regulation, which give the competent authority of dispatch the power to transmit the notification of the proposed shipment itself, instead of the notifier, to the other competent authorities and to the consignee, is that the competent authority of dispatch cannot reclassify the shipment on its own initiative or refuse to transmit the notification if it considers that the notifier’s classification of the shipment is incorrect. In such a case, the competent authority of dispatch must object to the shipment in question under the same conditions that would apply to that authority if the notification had to be transmitted by the notifier, that is to say, by lodging an objection within the period allowed for that purpose by Article 4 of the Regulation when faced with a shipment classified as a disposal operation, or by Article 7 in the case of a shipment proposed, according to the consignment note, for recovery purposes, as the Court has stated in ASA . In my opinion, this is confirmed by an examination of the system established by the Regulation.
35. As I have already said, in the system under the Regulation, it is the notifier who must complete the consignment note that must be transmitted to all the competent authorities and to the consignee of the waste. It is also the notifier who must conclude a contract with the consignee for the disposal or recovery of the waste. Consequently it is also the notifier, logically, who must classify the proposed shipment operation because the subject of the contract between him and the consignee depends on that classification. I have also explained that the competent authority of destination must acknowledge receipt of the notification of the proposal within three days and that it is the dispatch of the acknowledgment to the other competent authorities which causes the periods to start running for them to raise objections, request additional information or lay down conditions for carrying out the operation. I have thus explained that, under Article 4(2)(b) of the Regulation, the competent authority of dispatch may, within 20 days following the dispatch of the acknowledgment of receipt of notification of the shipment by the authority of destination, raise objections to a shipment of waste for disposal. Likewise, under Article 7(2) of the Regulation, the competent authority of dispatch may, within 30 days following the dispatch of the acknowledgment, raise an objection to a proposed shipment of waste for recovery.
36. In my opinion, therefore, the proper functioning of this system requires that the proposal as classified by the applicant actually be transmitted to the competent authorities concerned so that, first, the time‑limits laid down by the Regulation can begin to run and, second, all those authorities are put in a position to assess the proposal in question, particularly its classification. To accept that the competent authority of dispatch has the power to change the classification of the proposed shipment on its own initiative or to refuse to effect transmission would have the effect of depriving the notifier of his right under the Regulation to be able to ascertain, within the very brief periods allowed by the Regulation, the position of all the competent authorities regarding his proposed shipment. (39) It would also deprive the competent authorities of destination and transit of their right under the Regulation, as indicated in the ninth recital in the preamble, to be duly informed of the proposed shipment and to be able to raise their own objections to it, irrespective of the opinion of the competent authority of dispatch regarding the classification of the operation. (40)
37. No doubt such notification may entail a risk of divergent classifications of one and the same proposed shipment by the various competent authorities. However, as the Court held in ASA, this risk is inherent in the system established by the Regulation. (41) Above all, as the applicant made very clear at the hearing, it may be of advantage to the notifier in a case where, like the present one, the competent authority of dispatch disagrees with the notifier regarding the classification of the proposal in question. In such a case, the notifier has a definite interest in ascertaining the position of all the competent authorities regarding his proposal. In the present case, Siomab would certainly be in a better position to defend its interests in the context of its dispute with the IBGE concerning the classification of its proposed shipment if the authority of destination had also been able to state its views on the classification of the proposal. If the authority of destination had taken the view, like the IBGE, that the shipment in question was an operation for the purpose of disposal and if disposal operations were not authorised in the Teutschenthal mine, Siomab would have been able to abandon its shipment proposal and save bringing legal proceedings. Conversely, if the authority of destination had taken the view, contrary to the IBGE, that the disputed shipment was correctly classified by the notifier as a recovery operation, Siomab would be able to rely on this in its action before the Belgian court because, it should be remembered, ‘disposal’ and ‘recovery’ are concepts of Community law which must therefore not be defined differently from one Member State to another. (42) The risk of different classifications of one and the same shipment, inherent in the system established by the Regulation, may therefore, in the event of a dispute between the notifier and a competent authority, present an advantage to the notifier. As the Commission (correctly, i n my opinion) observed, the system set up by the Regulation requires there to be an opportunity for dialogue, within the time‑limits allowed by the Regulation, between all the competent authorities and the notifier concerning the classification of the proposed shipment.
38. In addition, this approach in no way compromises the powers of the competent authority of dispatch to check the classification of the proposal in question and to object to its being carried out if it considers that the classification is incorrect. Thus where, as in the present case, the proposed shipment has been classified as a recovery operation, it follows from Article 8 of the Regulation that the shipment cannot take place if that authority has raised an objection within the period allowed by Article 7(2) of the Regulation. The conclusion must be the same where the shipment has been classified as a disposal operation because, under Article 4(2)(a), such a shipment is to be authorised by the competent authority of destination within 30 days following the dispatch of the acknowledgment of receipt and such authorisation can be granted only if there have been no objections from the other competent authorities.
39. Accordingly, I am inclined to take the view that Articles 3(8) and 6(8) of the Regulation confer on the competent authority of dispatch a circumscribed power by virtue of which it must transmit notification of the planned shipment as classified by the notifier to the other competent authorities and to the consignee. (43) If the competent authority of dispatch considers that the classification of the shipment is incorrect, it must raise an objection to the shipment. As regards the formal conditions for making such objection, I consider that the rules laid down by Article 4(2)(b) and the first subparagraph of Article 7(2) of the Regulation are applicable, so that the objection must be ‘conveyed in writing to the notifier, with copies to the other competent authorities concerned’. Regarding the question whether, as the national court asks, the objection must be sent simultaneously with the notification of the shipment proposal or later, both options appear to be authorised. What is important, in my view, is that the objection of the competent authority of dispatch must be made before the expiry of the time‑limit laid down in Article 4(2)(b) if the proposal is classified by the notifier as a transfer of waste for disposal, or in Article 7(2) if it is classified by him as a transfer of waste for recovery.
40. I shall therefore propose that the Court reply to the Cour d’appel de Bruxelles that the Regulation must be interpreted as meaning that, where a Member State has recourse to the mechanism by which the competent authority of dispatch gives notification of a consignment note under Articles 3(8) and 6(8) of the Regulation, the competent authority of dispatch, if it considers that the classification is incorrect, may neither refuse to effect that notification because of the incorrect classification of the proposed shipment and ask the notifier to transmit a new consignment note to it nor reclassify the proposed shipment on its own initiative before giving notification thereof. The competent authority of dispatch must effect the notification and make an objection on the ground of the incorrect classification. The objection must be conveyed in writing to the notifier with copies to the other authorities concerned within the time‑limit laid down in Article 4(2)(b) if the proposal is classified as a shipment of waste for disposal, or in Article 7(2) if it is classified as a shipment of waste for recovery.
VI – Conclusion
41. In view of the foregoing observations, I propose that the Court reply as follows to the question referred for a preliminary ruling by the Cour d’appel de Bruxelles:
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 must be interpreted as meaning that, where a Member State has recourse to the mechanism by which the competent authority of dispatch gives notification of a consignment note under Articles 3(8) and 6(8) of Regulation No 259/93, the competent authority of dispatch, if it considers that the classification is incorrect, may neither refuse to effect that notification because of the incorrect classification of the proposed shipment and ask the notifier to transmit a new consignment note to it nor reclassify the proposed shipment on its own initiative before giving notification thereof. The competent authority of dispatch must effect the notification and make an objection on the ground of the incorrect classification. The objection must be conveyed in writing to the notifier with copies to the other authorities concerned within the time‑limit laid down in Article 4(2)(b) if the proposal is classified as a shipment of waste for disposal, or in Article 7(2) if it is classified as a shipment of waste for recovery.
(1) .
(2)  –	Council Regulation 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 Decision 1999/816/EC of 24 November 1999 adapting, pursuant to Articles 16(1) and 42(3), Annexes II, III, IV and V to Council Regulation (EEC) No 259/93 on the supervision and control of shipments of waste within, into and out of the European Community (OJ 1999 L 316, p. 45) (‘the Regulation’).
(3)  –	Council Directive of 15 July 1975 on waste (OJ 1975 L 194, p. 39), as amended by Council Directive 91/156/EEC of 18 March 1991 (OJ 1991 L 78, p. 32) and by Commission Decision 96/350/EC of 24 May 1996 (OJ 1996 L 135, p. 32) (‘the Directive’).
(4)  –	Article 2(i) and (k).
(5)  –	‘The competent authority of destination’.
(6)  –	‘The competent authority of dispatch’.
(7)  –	‘The competent authority of transit’.
(8)  –	Case C-6/00 [2002] ECR I-1961.
(9)  –	Case C-187/93 Parliament v Council
[1994] ECR I-2857, paragraph 26.
(10)  –	Ninth recital.
(11)  –	Articles 3(1) and 6(1).
(12)  –	Articles 3(3) and 6(3).
(13)  –	Articles 3(4) and 6(4).
(14) –	Article 3(5).
(15) –	Fifth indent of Article 6(5).
(16)  –	Articles 3(6) and 6(6) of the Regulation.
(17)  –	As we shall see, Article 4(3) sets out the grounds upon which the competent authorities may object to the proposed disposal operation or impose certain conditions on it.
(18)  –	Articles 4(1) and 7(1).
(19) –	Article 4(2)(a) and (b).
(20) –	Article 7(2).
(21) –	Article 7(3).
(22) –	Article 8.
(23) –	Article 10.
(24) –	An Austrian company wished to ship to Germany slag and ashes produced by a waste-treatment plant in Vienna (Austria) for the purpose of filling galleries in a former salt mine at Kochendorf (Germany).
(25) –	Paragraphs 39 and 40.
(26) –	Paragraph 47.
(27) –	Ibid.
(28) –	Paragraph 48.
(29) –	Case C-324/99 [2001] ECR I-9897.
(30) –	Paragraph 49.
(31) –	Paragraph 50.
(32) –	‘Siomab’.
(33) –	‘The IBGE’.
(34) –	Article 4(3)(a) refers to the cases where Member States may take measures to prohibit generally or partially or to object systematically to shipments ( DaimlerChrysler, paragraph 51).
(35)  –	Article 4(3)(b) provides for the possibility of objection in only three instances: in order to implement the principle of self-sufficiency at Community and national levels, in cases where the installation has to dispose of waste which is from a nearer source and has been given priority, and in order to ensure that shipments are in accordance with waste management plans. Article 4(3)(c) refers to the following three grounds of objection: where the shipment is not in accordance with national provisions relating to environmental protection, public order, public safety or health protection, if the notifier was previously guilty of illegal trafficking and if the shipment conflicts with obligations resulting from international conventions.
(36) –	DaimlerChrysler, paragraph 50.
(37) –	ASA, paragraphs 40 and 47. See also the order in Joined Cases C-307/00 to C‑311/00 Oliehandel Koeweit and Others
[2003] ECR I-1821, paragraph 112. In ASA
the Court found that this obligation on all the competent authorities derives, in particular, from Article 26 of the Regulation, which requires Member States to prohibit and punish any illegal traffic, and from Article 30(1), which expressly imposes a general duty on Member States to take the requisite measures to ensure that waste is shipped in accordance with the provisions of the Regulation.
(38)  –	Chronologically, the error in classification must be raised before the grounds of objection referred to in Articles 4(3) and 7(4) of the Regulation. A competent authority can raise such a ground of objection only after verifying that the proposed shipment is correctly classified.
(39) –	DaimlerChrysler, paragraph 70. The intention, reflected in the Regulation, that the notifier should be able to hold the competent authorities to the time‑limits to be observed by them was very clearly expressed by the Economic and Social Committee in the preparatory work prior to the adoption of the Regulation (Opinion on the proposal for a Council Regulation (EEC) on the supervision and control of shipments of waste within, into and out of the Community (91/C 269/03) (OJ 1991 C 269, p. 10, point 2.3.2)).
(40) –	See, to that effect, Oliehandel Koeweit and Others, paragraph 102.
(41) –	ASA, paragraph 44.
(42) –	See, to that effect, Case C-228/00 Commission
v Germany
[2003] ECR I-1439, paragraph 36.
(43) –	I also share the Commission’s view that this conclusion should not go so far as to preclude the competent authority of dispatch, in the course of sound administration, from returning the file to the notifier if the consignment note has a formal defect which would prevent the proposal from being scrutinised by the competent authorities, such as the absence of a signature or certain mandatory particulars.
Also, neither Article 3(8) or 6(8) nor any other provision of the Regulation specifies a period within which the competent authority of dispatch must effect such transmission. I would think that, in view of the procedure laid down by the Regulation, the authority in question must effect the transmission within a short period after receipt of the consignment note and that, in any case, the period should not be longer than the period allowed to the competent authority of destination by Articles 4(2)(a) and 7(2) of the Regulation for expressing an opinion regarding the proposed shipment.