Provisional text
OPINION OF ADVOCATE GENERAL
RANTOS
delivered on 21 May 2026 (1)
Case C‑730/23
Republic of Poland
v
Federal Republic of Germany
( Failure of a Member State to fulfil obligations – Article 259 TFEU – Regulation (EC) No 1013/2006 – Shipments of waste – Article 24(2) – Take-back of waste by the competent authority of dispatch in the event of illegal shipment – Refusal by the Federal Republic of Germany to arrange the take-back within 30 days of waste shipped from Germany to Poland – Article 28 – Disagreement on classification issues – Obligation to consider the waste at issue as waste listed in Annex IV to that regulation – Article 4(3) TEU – Principle of sincere cooperation )
I.      Introduction
1.        By its action, the Republic of Poland, supported in part by the European Commission, asks the Court to find that the Federal Republic of Germany has failed to fulfil its obligations under EU law and, more specifically, Regulation (EC) No 1013/2006, (2) as well as Article 4(3) TEU, in connection with several shipments of waste from Germany to six sites located in Poland.
2.        The main issue in the present case is the application of the principles of the unfettered production and assessment of evidence under that regulation, in one of the few actions for failure to fulfil obligations brought by a Member State.
II.    Legal context
3.        Article 24 of Regulation No 1013/2006, entitled ‘Take-back when a shipment is illegal’, provides, in paragraphs 1 to 3:
‘1.      Where a competent authority discovers a shipment that it considers to be an illegal shipment, it shall immediately inform the other competent authorities concerned.
2.      If an illegal shipment is the responsibility of the notifier, the competent authority of dispatch shall ensure that the waste in question is:
(a)      taken back by the notifier de facto; or, if no notification has been submitted;
(b)      taken back by the notifier de jure; or, if impracticable;
(c)      taken back by the competent authority of dispatch itself or by a natural or legal person on its behalf; or, if impracticable;
(d)      alternatively recovered or disposed of in the country of destination or dispatch by the competent authority of dispatch itself or by a natural or legal person on its behalf; or, if impracticable;
(e)      alternatively recovered or disposed of in another country by the competent authority of dispatch itself or by a natural or legal person on its behalf if all the competent authorities concerned agree.
This take-back, recovery or disposal shall take place within 30 days, or such other period as may be agreed between the competent authorities concerned after the competent authority of dispatch becomes aware of or has been advised in writing by the competent authorities of destination or transit of the illegal shipment and informed of the reason(s) therefor. Such advice may result from information submitted to the competent authorities of destination or transit, inter alia, by other competent authorities.
…
3.      If an illegal shipment is the responsibility of the consignee the competent authority of destination shall ensure that the waste in question is recovered or disposed of in an environmentally sound manner:
(a)      by the consignee; or, if impracticable,
(b)      by the competent authority itself or by a natural or legal person on its behalf.
…’
4.        Article 28 of that regulation, entitled ‘Disagreement on classification issues’, provides as follows, in paragraph 2:
‘If the competent authorities of dispatch and of destination cannot agree on the classification of the notified waste as being listed in Annex III, IIIA, IIIB or IV, the waste shall be regarded as listed in Annex IV.’
III. Background to the dispute and pre-litigation procedure
5.        During the period from 2015 to 2019, the Polish authorities discovered the presence of waste that they classified as an ‘illegal shipment’ of waste from Germany, within the meaning of Article 2(35) of Regulation No 1013/2006, at six sites located in Poland, namely: Tuplice (site 1), Stary Jawor (site 2), Sobolew (site 3), Gliwice (site 4), Sarbia (site 5) and Bzowo (site 6).
6.        Following requests by the Polish authorities to the German authorities to take back the waste at issue, which were not acted upon, on 26 July 2023 the Republic of Poland lodged a complaint with the Commission under the second paragraph of Article 259 TFEU, requesting it to issue a reasoned opinion on the ground that the refusal by the Federal Republic of Germany to take back the waste constituted an infringement of EU law. (3)
7.        After examining the written observations submitted by the Federal Republic of Germany, and hearing the Federal Republic of Germany and the Republic of Poland, the Commission, on 18 October 2023, issued a reasoned opinion in which it:
–        first, found that the Federal Republic of Germany had failed to fulfil its obligation to take back within 30 days the waste that had been illegally shipped to site 1, (4) and failed to fulfil its obligations relating to the recovery of waste classified under entry 17 08 02 as regards the shipment arranged by two German undertakings to site 2; (5)
–        secondly, concluded that it was unable to establish an infringement of EU law in respect of the other complaints relating to sites 2 to 6; and
–        thirdly, dismissed the complaints alleging infringement of Article 28(2) of Regulation No 1013/2006 and Article 4(3) TEU.
IV.    Procedure before the Court and forms of order sought
8.        By document lodged at the Court Registry on 29 November 2023, the Republic of Poland brought the present action for failure to fulfil obligations under Article 259 TFEU. It asks the Court to find that the Federal Republic of Germany failed to fulfil its obligations under EU law in relation to illegal shipments of waste to Poland, and to order the Federal Republic of Germany to pay the costs.
9.        By decision of 18 April 2024, the Commission was granted leave to intervene in support of the form of order sought by the Republic of Poland. (6)
10.      The Federal Republic of Germany asked the Court to dismiss the action and order the Republic of Poland to pay the costs.
V.      Analysis
11.      The Republic of Poland puts forward three complaints against the Federal Republic of Germany, alleging that the Federal Republic of Germany has, first, failed to fulfil its obligation to take back illegally shipped waste in accordance with Regulation No 1013/2006; (7) secondly, breached its obligation to treat that waste as waste listed in Annex IV to that regulation; (8) and thirdly, breached its obligation of sincere cooperation by failing to take measures to clarify the facts relating to the illegal shipment of waste. (9)
A.      The first complaint, alleging infringement of the obligation to take back illegally shipped waste
1.      Preliminary observations
12.      By its first complaint, the Republic of Poland argues, in essence, that the Federal Republic of Germany has failed to fulfil its obligations under Regulation No 1013/2006, by failing to take back the waste at issue. (10)
13.      In the first place, I should point out in that regard that, under Article 191(2) TFEU, EU policy on the environment is to aim at a high level of protection taking into account the diversity of situations in the various regions of the European Union. It is based on the precautionary principle and on the principle that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay. (11) To my mind, it follows from those principles that the producers of the waste have an additional responsibility when they ship waste outside the Member State in which it was produced.
14.      On that basis, Regulation No 1013/2006 pursues, inter alia, the objective of environmentally sound management of waste, as defined in Article 2(8) thereof. (12) That also implies, as is apparent from Article 2(34) thereof, that the shipment of the waste is solely for the purposes of its recovery or disposal. (13)
15.      In that context, Article 3 of that regulation, which essentially governs the procedures for the shipment of waste, provides, in paragraph 1, for the ‘procedure of prior written notification and consent’ for shipments of waste destined for disposal and numerous categories of waste destined for recovery and, in paragraph 2, for the ‘information procedure’, governed by Article 18 of that regulation, which is limited, in the case of other shipments of ‘green’ listed waste (exceeding 20 kg), (14) to the completion of a form and the conclusion of a contract between the person who arranges the shipment and the consignee for recovery of the waste, (15) those documents being drawn up in accordance with the instructions in the form contained in Annex VII to that regulation (‘the Annex VII form’).
16.      In the event of an illegal shipment of waste, as defined in Article 2(35) of Regulation No 1013/2006, (16) Article 24(2) of that regulation provides that, if that illegal shipment is the responsibility of the notifier, the competent authority of dispatch must ensure that the waste is taken back in principle within 30 days, or such other period as may be agreed between the competent authorities concerned, from the date that the competent authority of dispatch became aware of or was informed of the illegal shipment by the competent authorities of destination.
17.      In the second place, I note that, according to settled case-law of the Court, in proceedings for failure to fulfil obligations, it is for the Commission to establish the existence of the alleged failure and to place before the Court the information required to enable it to establish that the obligation has not been fulfilled, and in so doing the Commission may not rely on any presumption. (17) The same principles apply where an action for failure to fulfil obligations is brought by a Member State under Article 259 TFEU. (18) It is therefore in the light of those considerations that the evidence provided by the Republic of Poland must be examined, having regard to the principles of the unfettered production and assessment of evidence, as enshrined in the Court’s case-law. (19)
18.      In the present case, it is apparent from the allegations of the Republic of Poland that the waste at issue was allegedly shipped from Germany to Poland under the information procedure, outside the conditions laid down by Regulation No 1013/2006, both as regards the category of waste that could be shipped under that procedure and the permits held by the undertakings responsible for its treatment. In the case of site 1, since the Federal Republic of Germany has acknowledged the existence of illegal shipments, the only question in dispute is whether that Member State failed to comply with the time limit for taking back that waste, whereas, in the case of sites 2 to 6, the very existence of the allegedly illegal shipments attributable to the German undertakings in question must be examined. In the following points of the present Opinion, I will analyse those two situations separately.
2.      Site 1 (Tuplice)
19.      The Republic of Poland criticises the Federal Republic of Germany for having breached its obligation to take back, within 30 days, approximately 20 000 tonnes of zinc slag waste shipped illegally. (20)
20.      The parties and the Commission acknowledge that the waste in question was shipped illegally (21) and agree that the take-back of that waste was completed in December 2024. (22)
21.      As a preliminary point, I consider that the Federal Republic of Germany’s argument to the effect that the action is inadmissible or has become devoid of purpose since the waste has, in the meantime, been taken back should be dismissed. Indeed, in an action between States for failure to fulfil obligations based on Article 259 TFEU, the existence of any failure to fulfil obligations must be assessed having regard to the situation of the defendant Member State as it stood when the matter was first brought before the Commission under the second paragraph of that article. (23) In the present case, by that date, the time limit had largely expired. (24)
22.      In the first place, the Federal Republic of Germany states that decisions of its competent national authorities requiring the undertaking behind the shipments to take back the waste at issue have been the subject of judicial proceedings. It adds that it took several months to take back such a quantity of waste, owing to logistical constraints and the need to arrange a procurement procedure in accordance with EU rules. In view of those circumstances, the 30-day time limit provided for in the second subparagraph of Article 24(1) of Regulation No 1013/2006 did not apply.
23.      In that regard, I note that Article 24(2) of that regulation does not provide for any exception or grounds – including the volume of the waste – permitting the interruption of the time limit in question; the only possibility offered is for the competent authorities to set an alternative deadline. (25) In any event, failure to comply with the time limit, involving a delay, as in the present case, of nearly 10 years, cannot be justified by logistical reasons, or on the ground that the volume of waste would require a European tendering procedure to be organised. (26)
24.      In the second place, the Federal Republic of Germany contends that, during the pre-litigation procedure, the parties had an agreement under Article 24(2) of Regulation No 1013/2006 to await the outcome of the judicial proceedings before taking back the waste at issue, although this point is disputed by the Polish authorities. (27) The Federal Republic of Germany relies, in that regard, on correspondence exchanged between the Polish and German authorities, in which the Polish authorities allegedly announced their decision to await the outcome of the pending judicial proceedings and refrained from requesting the German authorities to take back the waste before the end of those proceedings. (28)
25.      In my view, that correspondence shows that the Polish authorities did not intend to bring the matter before the Court immediately. It could thus be inferred that they waited for a time to see how the proceedings pending in Germany unfolded. However, it is not unequivocally clear from that correspondence that the Polish authorities agreed to wait until the end of those proceedings. It is also common ground between the parties that, most recently at their hearing before the Commission on 20 September 2023, the Polish authorities clearly stated that such an agreement did not exist. Accordingly, I consider that the existence of an agreement on awaiting the outcome of judicial proceedings, as relied on by the Federal Republic of Germany, has not been established to the requisite legal standard.
26.      In those circumstances, I propose that the first complaint in respect of site 1 (Tuplice) be upheld.
3.      Sites 2 to 6
27.      As regards sites  2 to 6, the Republic of Poland submits that the Federal Republic of Germany infringed the rules on taking back illegally shipped waste, (29) whereas the Federal Republic of Germany challenges that assertion by refuting the very existence of the illegal shipments attributable to the German undertakings in question. (30)
28.      In the following points of the present Opinion, I shall examine together situations that present similarities, particularly as regards the category of waste shipped.
(a)    Sites 2 (Stary Jawor) and 3 (Sobolew)
29.      The Republic of Poland submits that, between April and September 2018, the Polish authorities found, during inspections at sites 2 and 3, (31) 1 156 and 1 039 tonnes of waste, respectively, (32) that had been shipped illegally (33) by German undertakings. (34) Instead of concrete waste (entry 17 01 01) (35) (‘the concrete waste’) declared in the Annex VII forms, those undertakings had shipped, according to the information procedure, mixed construction waste containing gypsum (‘the gypsum waste’), (36) not ‘green listed’, for recovery operations for which the consignees also did not have the necessary permits. (37) In addition, in some cases, the disputed waste – while classified by the German consignors as gypsum waste – had nevertheless been shipped to Polish undertakings that did not have a permit to recover that waste. (38)
30.      In that regard, it seems appropriate to draw a distinction between the question of the existence of the disputed waste shipments and the responsibility of the German undertakings in question.
31.      As regards the existence of the shipments (illegal or otherwise) of the disputed waste, a distinction must also be made between shipments of waste classified as concrete waste and those classified as gypsum waste.
32.      In the first place, it is common ground between the parties that most of the documents concerning those companies – in particular the transport contracts and the Annex VII forms – mention shipments of concrete waste. (39) The Republic of Poland maintains, however, that those shipments were in reality a front for shipments of gypsum waste, as demonstrated mainly by the findings of the inspections conducted by the Polish authorities, which discovered, at the sites in question, the presence of gypsum waste, in addition to concrete waste or a mixture of the two.
33.      However, it seems to me that, while
it is true that the discovery of gypsum waste at the facilities inspected by the Polish authorities is an indication that waste other than that covered by
the recovery permits was shipped to those facilities, that fact does not, on its own, prove that the waste actually came from the disputed shipments. Indeed, those shipments were accompanied by Annex VII forms and other concordant transport documents, for which it follows that the disputed waste was consigned and received as concrete waste. There is no evidence that the shipments concealed other categories of waste, especially since, as the Republic of Poland itself acknowledges, concrete waste was also found at the sites in question.
34.      In the second place, it is also common ground between the parties that certain shipments of waste were classified by the undertakings in question as gypsum waste.
35.      First, as regards site 2, these are shipments between the German consignors ALBA Seehausen and Altmärkische and the Polish consignee Bravet. However, it has not been established that those shipments were the subject of a take-back request. Indeed, the documents relating to the requests to take back the waste referred to by the Republic of Poland do not mention those shipments. (40)
36.      Secondly, the parties agree that a contract for the shipment of gypsum waste existed between the German consignor Parentin and the Polish consignee Bravet. However, neither the Annex VII forms signed by the parties concerned nor other related documents mention such shipments. There is therefore no evidence that that contract was performed. (41)
37.      Thirdly, the parties also acknowledge the existence of shipments of waste, recorded as gypsum waste, made by the German consignors Drekopf and Recom to the facilities of the Polish consignee Bravet. Nevertheless, according to the evidence provided by the Republic of Poland, the Polish authorities did not request the take-back of that waste, since it had been mixed with other waste at site 2 such that it was no longer possible, according to them, to determine the provenance of the waste for each of the undertakings concerned. (42)
38.      As regards site 3, the shipments of waste declared as gypsum concerned shipments between the German consignor Parentin and the Polish consignee PPH LWN. However, those shipments were not mentioned prior to the application lodged by the Republic of Poland and, as argued by the Federal Republic of Germany, were not the subject of a take-back request by the Polish authorities. (43)
39.      In conclusion, I consider that the existence of illegal shipments of waste, for which the Federal Republic of Germany would be required to arrange the take-back, has not been established to the requisite legal standard and that the first complaint must be dismissed as regards sites 2 and 3.
40.      That being the case, for the sake of completeness, I will also examine the question of the responsibility of the German undertakings in question with regard to shipments of waste declared as gypsum waste, to facilities lacking the permits required for their recovery.
41.      In that regard, the parties do not agree on the responsibility of the producer of the waste or the person who arranges its shipment as regards the legality of the recovery operations carried out in the countries of destination of the waste when, on the one hand, the consignee of the waste or the operator of the recovery facility does not hold a valid permit for the treatment of that waste or, on the other hand, legally shipped waste is not correctly recovered in the country of destination. The question pertains, in particular, to the significance of the consignee’s signature on the Annex VII form or its declaration in the contract with the person arranging the shipment as regards the possession of the necessary permits.
42.      In the present case, the parties acknowledge that the consignees of the waste did not have the required permits for the recovery of gypsum waste. (44) In addition, with regard to site 2, I agree with the Republic of Poland that nor does the permit of the Polish consignee Bravet for the ‘collection’ of gypsum waste, as defined in Article 3(10) of Directive 2008/98, (45) imply the possibility of ‘preliminary storage’ of that waste, as provided for in recovery operation R 13. (46) Indeed, although the terms of those definitions may be misleading, the definition of ‘waste storage’, corresponding to recovery operation R 13 in Annex II to that directive, explicitly excludes ‘temporary storage’ within the meaning of Article 3(10) of that directive.
43.      Accordingly, in so far as the permits in question do not cover the recovery operations (R 5 or R 13) for which the waste was shipped, it should be examined whether the German undertakings that arranged the shipment can be held responsible for those shipments, particularly where the consignee of that waste has declared, on the Annex VII form (blocks 13 and 14) in the contract with the person who arranged the shipment, that it is in possession of the necessary permits. (47)
44.      In that regard, it is clear that, if it is established that the undertakings knew that the consignees lacked the necessary permits or that the waste had been diverted illegally to other sites, they should be held liable for the illegal shipments. Conversely, without evidence of such knowledge, it is necessary to determine the extent of their due diligence obligation as regards the unlawfulness in question.
45.      In general, I consider that, having regard to the enhanced due diligence obligation imposed on the consignor of the waste in the context of the shipment of waste outside the Member State where it was produced, (48) the consignor cannot be passive about whether the consignee holds the necessary permits. In other words, contrary to the position maintained by the Federal Republic of Germany, it cannot simply sign a waste shipment contract and complete the Annex VII form. Although overly burdensome requirements should not be imposed the consignor, it should nevertheless be expected to request a copy of the relevant permits, without being required to carry out in-depth checks, such as investigations or audits relating to the validity of those documents, which is solely a matter for the public authorities. (49)
46.      In the present case, as regards the waste shipped to site 2, I note that Bravet, the Polish company operating the site, had presented to the German consignors ALBA Seehausen and Altmärkische, (50) as well as Drekopf and Recom, (51) its permits for the collection of waste under entries 17 01 01 and 17 08 02 and for the recovery of waste under entry 17 01 01 only (and not under entry 17 08 02). Even so, those undertakings still arranged shipments of waste under entry 17 08 02 for the purpose of R 13 recovery operations.
47.      Accordingly, and without prejudice to the explanations set out in points 35 and 37 of the present Opinion, it would seem that the German undertakings in question are liable, in so far as they were aware of the consignee’s situation when completing the Annex VII form.
48.      However, I do not share the argument put forward by the Republic of Poland to the effect that the German undertakings are also liable because the German consignors ALBA Seehausen and Altmärkische only listed the Polish consignee Bravet as a recovery facility in block 7 of their Annex VII forms, whereas, since this was a transfer to an interim facility, they should also have mentioned the non-interim recovery facility.  Indeed, given that block 7 of the Annex VII form concerns only the ‘recovery facility’, indicating the facility that, according to the information contained in block 8, is required to carry out an R 13 recovery operation is therefore sufficient, even if that operation involves the storage of waste prior to another recovery operation (excluding temporary storage, before collection, at the waste production site). (52)
49.      Nor do I share the position defended by the Federal Republic of Germany, according to which the explicit requirement to indicate non-interim facilities laid down in the new Regulation (EU) 2024/1157 demonstrates that that indication is only required as from the entry into force of that regulation. (53)
50.      As regards the waste shipped to site 3, it is common ground between the parties that PPH LWN, the Polish company operating the site, did not have the necessary permits for the specific plots of land where the waste was to be unloaded.
51.      In that regard, it seems to me that, while it is appropriate to acknowledge the existence of an enhanced due diligence obligation on the part of the producer or consignor of the waste, (54) that undertaking cannot be required to know and be accountable for the exact place of unloading of the waste inside the treatment facility duly identified in the relevant documents, where the waste is to be deposited. Such a requirement would be beyond its control, being a matter solely for the operator of the treatment facility. (55)
(b)    Sites 4 (Gliwice) and 5 (Sarbia)
52.      The Republic of Poland submits that, between February and May 2018, the Polish authorities discovered, during inspections carried out at sites 4 and 5, (56) 1 300 and 8 700 tonnes of waste, respectively, which had been the subject of illegal shipments (57) by German undertakings. (58) Unlike what had been indicated in the Annex VII forms, which mentioned plastic and rubber waste under entry 19 12 04 (‘plastic waste’), those undertakings had, under the information procedure, shipped waste not ‘green listed’ for recovery operations.
53.      In particular, the waste discovered at site 4 consisted of composite food packaging waste made from plastic and other materials (‘mixed municipal waste’), (59) produced by the German undertaking Wurzer and shipped to Gliwice under a series of contracts. (60) The waste discovered at site 5 consisted of compressed wire-tied bales, not associated with any identifiable entry, (61) a significant part of which had labels and barcodes attesting to their German origin, produced by Lobbe and Böhme, (62) and, although formally destined for Chełmek, were actually shipped to Sarbia, after ‘neutralisation’ of the transport documents. (63) Furthermore, the consignee of the waste shipped to site 4 merely acted as a broker (64) and only had a permit for the collection of plastic waste, whereas the consignee of the waste shipped to site 5 did not hold a permit for the recovery of that waste. (65)
54.      With regard to site 4, it is clear from the evidence provided by the Republic of Poland (Annex VII forms, transport documents known as ‘CMR documents’ and weighing slips) that the waste produced by Wurzer was classified as ‘green listed’ plastic waste shipped to the Polish undertaking Marko, which was authorised to carry out recovery operations on that waste and acknowledged receipt at the Jawiszowice site (and not at the Gliwice site). (66) The transport documents presented by the Republic of Poland, relating to shipments to Gliwice, cover only operations involving the Polish undertakings Marko, as consignor, and A&P, as consignee. (67) Even if, as the Republic of Poland argues, Marko’s handling of the waste from Germany was fictitious, since the shipments were transported directly from Wurzer to Gliwice, (68) that fact is not apparent from the documents drawn up by the German companies behind the shipments and, most importantly, cannot be directly attributed to them. Any such matter is the responsibility of the Polish undertakings involved. Neither is the other evidence put forward by the Republic of Poland decisive in that regard. (69) Furthermore, the application is vague about the quantity of waste attributable to the two German undertakings in question.
55.      With regard to site 5, all the documents (in particular the Annex VII forms) that can be linked to the companies Lobbe and Böhme concerned shipments of plastic waste made to the Polish undertakings Havel (by Lobbe and Böhme) and Recovery (by Böhme) in Chełmek. (70) The other evidence provided by the Republic of Poland (71) clearly demonstrates the presence, at the Sarbia site, of waste that can be linked to the German undertakings Lobbe and Böhme, which could have been diverted from their official destination and transported directly from Germany to Sarbia. However, that evidence is not sufficient to establish that those shipments were arranged, or authorised by, or even known to the German undertakings in question, or even brought to their attention. With regard, in particular, to the transport orders exchanged between the Polish undertakings, which included a ‘neutralisation order’, (72) the possibility cannot be ruled out that the rerouting of that waste was concealed from those German companies and is the sole responsibility of the Polish undertakings in question. (73) Moreover, the evidence provided by the Republic of Poland does not establish with sufficient precision the quantity of waste allegedly shipped by those German companies to the site in question, where waste from Poland and other countries was also found to be present. In such circumstances, it is not possible to identify the waste at issue, which creates an impediment to the take-back of the allegedly illegal shipments. (74)
(c)    Site 6 (Bzowo)
56.      The Republic of Poland argues that, between April and September 2017, the Polish authorities discovered, during inspections carried out at site 6, (75) 600 tonnes of mixed municipal waste (76) that had been the subject of illegal shipments (77) by German companies. (78) That waste was not ‘green listed’ and the Polish consignee did not hold a permit for its recovery.
57.      In that regard, it seems to me that the evidence provided by the Republic of Poland (79) demonstrates, on the one hand, the likely presence, in the warehouse, of mixed municipal waste from Germany, and, on the other hand, the absence of a permit for the recovery of that waste and the absence of a suitable facility at the Bzowo site. (80)
58.      However, there is no evidence to establish that the German companies in question were directly involved in those shipments. (81) In particular, the transport documents that can be linked to the German companies in question do not mention those shipments. (82) Although it is true that one of those Annex VII forms, completed by Vorberg Recycling, did not contain any mention of the recovery facility, (83) that fact alone does not, in my view, seem sufficient to support a finding of liability of the company in question, particularly since the document confirms the dispatch of plastic waste (and not mixed municipal waste, as found by the Polish authorities at the site in question) and given the lack of information as to the nature of the waste present at the site. (84)
4.      Conclusion on the first complaint
59.      In the light of the foregoing, I propose upholding the first complaint as regards the delay by the Federal Republic of Germany in taking back the waste relating to site 1. However, I propose dismissing that complaint as regards that Member State’s responsibility for taking back the waste shipped to sites 2 to 6.
B.      The second complaint, alleging infringement of the obligation to treat waste
60.      The Republic of Poland argues that the Federal Republic of Germany has failed to comply with the obligation to treat the waste discovered at sites 3 to 6 as waste listed in Annex IV to Regulation No 1013/2006, despite the existence of a disagreement between the competent authorities of dispatch and destination as to its classification. It therefore concludes that the Federal Republic of Germany has infringed Article 28(2) of that regulation.
61.      As regards the admissibility of the second complaint, it is clear from the complaint lodged with the Commission that the Republic of Poland raised that complaint solely in respect of site 5. (85) I therefore consider that complaint to be inadmissible as regards sites 3, 4 and 6.
62.      In any event, as I will explain in the following points of the present Opinion, that complaint is also unfounded in so far as it concerns the other sites mentioned by the Republic of Poland under its second complaint.
63.      As regards the substance of the second complaint, I note that, under Article 28(2) of Regulation No 1013/2006, if the competent authorities of dispatch and of destination cannot agree on the classification of the notified waste (86) as being ‘green listed’ (Annexes III, IIIA and IIIB) or listed in Annex IV, that waste is to be regarded as listed in Annex IV. (87)
64.      First of all, in my opinion, it follows from the wording of that provision that the disagreement in question can only relate to the ‘classification’ of the waste and not the very existence of an illegal shipment of waste, including the identification of the party behind that shipment.
65.      Next, in view of the context in which that provision is set out, it appears that Article 28 of Regulation No 1013/2006, entitled ‘Disagreement on classification issues’, governs, in paragraphs 1 to 3 thereof, three specific situations: first, a disagreement on the classification of the subject matter of the shipment as waste or non-waste; secondly, a disagreement, as in the present case, on the classification of the notified waste as being ‘green listed’ or not; and, thirdly, a disagreement on the classification of the waste treatment operation notified. Thus, the provision is completely silent on the question of the existence of an illegal shipment.
66.      Lastly, as regards the
aim pursued by that provision, it seems to me that it seeks to resolve a procedural impasse concerning the treatment of the material shipped, and not to make a determination ex ante as to whether such a shipment exists.
67.      Accordingly, the question whether a shipment exists – which is the question that concerns us here – is subject to the general rules governing how evidence is to be adduced and appraised, rather than the specific presumptions provided for in Article 28 of Regulation No 1013/2006. In that context, it is clear from the settled case-law of the Court cited in point 17 of the present Opinion that, in proceedings for failure to fulfil obligations, it is for the Commission or the Member State that brought the action to prove the existence of the alleged infringement and to provide the Court with the information necessary for it to determine whether proof of that infringement has been made out, without being able to rely on any presumption for that purpose.
68.      It follows that the Commission, or the Member State bringing the action, may not simply rely on the presumption provided for in Article 28(1) of that regulation, or rely solely on the finding of a disagreement between the competent authorities of dispatch and destination as to the existence of an illegal shipment of waste, in order to infer that a shipment of waste must be subject to the procedure of prior written notification and consent.
69.      In the light of the foregoing, I propose that the second complaint be dismissed.
C.      The third complaint, alleging infringement of the obligation of sincere cooperation
70.      The Republic of Poland submits that the Federal Republic of Germany infringed its obligation of sincere cooperation under Article 4(3) TEU inasmuch as it failed to take measures to clarify the facts surrounding the illegal shipments of waste to the sites in question and thus enable the relevant provisions of Regulation No 1013/2006 to be applied. It criticises the Federal Republic of Germany, first, for having adopted a purely passive attitude during the exchanges, as evidenced by the lack of response or the belated response of the German authorities to several letters sent by the Polish authorities; secondly, for having simply referred the matter to the regional level when the federal authorities had been contacted owing to the lack of response from the competent regional authorities; thirdly, for having refused to take part in joint inspections; and, fourthly, for not having taken back the waste from site 1 (Tuplice) for eight years.
71.      As regards the admissibility of the third complaint, about which the Federal Republic of Germany has expressed reservations, I merely note that, in its complaint lodged with the Commission, the Republic of Poland put forward, albeit in very general terms, a plea alleging infringement of the obligation of sincere cooperation.
72.      As regards the applicability of Article 4(3) TEU, which is disputed by the Federal Republic of Germany in view of the existence of specific provisions applicable to the waste shipment procedure, (88) I consider that the existence of those specific provisions on cooperation between the Member States concerned in Regulation No 1013/2006 does not prevent the general principle of sincere cooperation between Member States enshrined in Article 4(3) TEU from being applied in respect of matters not expressly governed by that regulation. (89)
73.      In that respect, as regards site 1 (Tuplice), I note that, by its third complaint, alleging infringement of Article 4(3) TEU, the Republic of Poland refers, in essence, to the same conduct as that constituting the failure to comply with the time limit for the take-back of the waste provided for in the second subparagraph of Article 24(2) of Regulation No 1013/2006. However, since that infringement was alleged and established under the first complaint, that Member State may not also allege infringement of Article 4(3) TEU, which is a more general provision. (90)
74.      As regards the well-foundedness of the third complaint, relating to the German authorities’ alleged lack of cooperation with the Polish authorities, I note that, despite the complexity of the dossiers relating to the sites in question and the parties’ deeply divergent views on most of the information and evidence exchanged during the proceedings, they still cooperated with a view to finding solutions. However, those steps were largely unsuccessful.
75.      First of all, it does not seem to me that, by failing to act on the numerous take-back requests made by the Polish authorities, the German authorities infringed Article 4(3) TEU, in particular given that the German authorities cooperated with the Polish authorities, in particular by carrying out checks on the companies which, according to the Polish authorities, were suspected of being behind the illegal shipments of waste, (91) and that the evidence provided was not a sufficient basis for issuing take-back orders. (92)
76.      Next, the claim made vigorously by the Republic of Poland, to the effect that, in some cases, the German federal authorities referred the matter to the relevant regional authorities, does not in itself constitute evidence of infringement of their obligation to cooperate, given the regional authorities’ competence in matters of waste management. (93)
77.      Lastly, the alleged unwillingness of the German authorities to take part in joint inspections concerning sites 5 and 6 was justified by the lack of adequate information on the nature and provenance of the waste. This could, in my opinion, legitimately explain the disagreement with the Polish authorities, but is not sufficient to establish infringement of the obligation of sincere cooperation.
78.      In conclusion, it appears that the German authorities responded to the demands and requests made by the Polish authorities and conducted their own investigations into the German waste producers flagged up by the Polish authorities. While it is true that on several occasions there were delays in responding to their demands and requests, those delays affected both parties, such that any ‘passive’ attitude cannot be attributed solely to the Federal Republic of Germany.
79.      In the light of the foregoing, I propose that the third complaint be dismissed.
VI.    Conclusion
80.      In the light of the foregoing considerations, I propose that the Court should:
–        uphold the first complaint relating to site 1 (Tuplice); and
–        dismiss the remainder of the action.
1      Original language: French.
2      Regulation of the European Parliament and of the Council of 14 June 2006 on shipments of waste (OJ 2006 L 190, p. 1).
3      Specifically, this relates to the first and second subparagraphs of Article 24(2) and Article 28(2) of Regulation No 1013/2006, and Article 4(3) TEU. According to the application, the complaint also pertained to shipments of waste to site 7 (Babin), which is not the subject of the present action for failure to fulfil obligations.
4      First and second subparagraphs of Article 24(2), read in conjunction with Article 2(35)(e) and (g)(iii) of Regulation No 1013/2006.
5      First and second subparagraphs of Article 24(2), read in conjunction with Article 2(35)(g)(iii) of Regulation No 1013/2006.
6      The Commission supports the form of order sought by the applicant, in so far as it pertains to the infringements covered by its reasoned opinion.
7      The first and second subparagraphs of Article 24(2), read in conjunction with Article 2(35)(a), (b), (e) and (g)(i) and (iii) of that regulation.
8      Article 28(2) of Regulation No 1013/2006.
9      Article 4(3) TEU.
10      The first and second subparagraphs of Article 24(2), read in conjunction with Article 2(35)(a), (b), (e) and (g)(i) and (iii) of that regulation.
11      In particular, according to the principle of correction at the source or of proximity, EU legislation encourages the disposal or recovery of waste as close as possible to the place of production. In that respect, the waste shipment rules are an exception and require strict interpretation. See, inter alia, Article 16(3) of Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives (OJ 2008 L 312, p. 3), and recital 20 of Regulation No 1013/2006. See also, by analogy, judgment of 4 March 2010, Commission v Italy (C‑297/08, EU:C:2010:115, paragraphs 64 to 66 and the case-law cited).
12      According to recital 7 of Regulation No 1013/2006, it is important to organise and regulate the supervision and control of shipments of waste in a way which takes account of the need to preserve, protect and improve the quality of the environment and human health (see judgment of 9 June 2016, Nutrivet, C‑69/15, EU:C:2016:425, paragraph 32).
13      See judgment of 23 October 2025, Naturvårdsverket (Waste treatment after take-back), (C‑221/24 and C‑222/24, EU:C:2025:818, paragraph 49 and the case-law cited).
14      The list of waste subject to the general information requirements covered by Article 18 of Regulation No 1013/2006 is referred to, in Annex III to that regulation, as ‘“green” listed waste’.
15      Under Article 3(15) of Directive 2008/98, ‘recovery’ means any operation the principal result of which is waste serving a useful purpose by replacing other materials which would otherwise have been used to fulfil a particular function, or waste being prepared to fulfil that function, in the plant or in the wider economy. Annex II to that directive contains a non-exhaustive list of recovery operations, including operations R 5 (‘Recycling/reclamation of other inorganic materials’) and R 13 (‘Storage of waste pending any of the operations numbered R 1 to R 12 (excluding temporary storage, pending collection, on the site where the waste is produced)’).
16      Essentially, that provision defines, inter alia, ‘illegal shipment’ as any shipment of waste that has not been subject to the prior written notification and consent procedure (scenarios (a) and (b)), that results in recovery or disposal in violation of the relevant rules (scenario (e)), or that has been subject to the information procedure for waste not listed in Annexes III, IIIA or IIIB, or that has been effected in a way which is not specified in the Annex VII form (scenarios (g) (i) and (iii)).
17      See, inter alia, judgment of 14 March 2019, Commission v Czech Republic (C‑399/17, EU:C:2019:200, paragraph 51 and the case-law cited).
18      See, inter alia, in that regard, Prete, L., Infringement Proceedings in EU Law, Wolters Kluwer, Alphen-sur-le-Rhin, 2017, p. 191.
19      See, inter alia, judgment of 18 December 2025, Hamoudi v Frontex (C‑136/24 P, EU:C:2025:977, paragraph 114 and the case-law cited).
20      Within the meaning of Article 2(35)(e) and (g)(iii) of Regulation No 1013/2006.
21      The waste produced by the German company Befesa Zinc Freiberg GmbH was shipped to Poland, during the period between November 2013 and June 2015, by another German company, namely Mineral Projekt Gesellschaft fur Planung und Konstruktion GmbH, under entry 10 05 01, for the purpose of undergoing recovery operations R 13 and R 5. That waste was sent to the Polish company POO RYNIED S.C., designated in the form in Annex VII to Regulation No 1013/2006 as consignee of that waste for the purpose of its recovery. However, that company did not hold a permit for that recovery, and subsequently shipped the waste to the company EURO-TOR RECYCLING sp. z o.o. That company only had a permit for the recovery of part of the shipment and, moreover, had not been designated in the Annex VII form.
22      The German authorities had initially imposed the take-back of the waste on the company responsible for arranging the shipment, and then, after that company went bankrupt, asked the producer of the waste to bear the costs of taking back the waste.
23      See Opinion of Advocate General Pikamäe in Czech Republic v Poland (Turów mine) (C‑121/21, EU:C:2022:74, point 49). The situation differs from that of an action for failure to fulfil obligations brought under Article 258 TFEU, for which it is clear from settled case-law of the Court that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (see judgment of 5 November 2019, Commission v Poland (Independence of ordinary courts), C‑192/18, EU:C:2019:924, paragraph 45 and the case-law cited).
24      Incidentally, I note that that period would also be exceeded if the date of the Commission’s reasoned opinion were to be considered the dies a quo, as the Commission maintains in its written observations.
25      In addition, the legislation in force prior to Regulation No 1013/2006, namely 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), provided, in Article 26(2), for the same time limit in almost identical terms, namely ‘within 30 days from the time when the competent authority was informed of the illegal traffic or within such other period of time as may be agreed by the competent authorities concerned’ (see, also, with very similar wording, Article 14(2) of the Commission proposal for a Council Regulation (EEC) on the supervision and control of shipments of waste within, into and out of the European Community of 10 October 1990, (COM(90) 415 final)).
26      Furthermore, under Article 32(2)(c) of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65), the negotiated procedure without prior publication may be used for public works contracts, public supply contracts and public service contracts ‘in so far as is strictly necessary where, for reasons of extreme urgency brought about by events unforeseeable by the contracting authority, the time limits for the open or restricted procedures or competitive procedures with negotiation cannot be complied with’.
27      I note that Article 24(2) of Regulation No 1013/2006 does not make such an agreement subject to any particular formality.
28      These consist of excerpts from a letter of 19 January 2021 (Annex B.6) and an email of 2 May 2023 (Annex B.7) sent by the Polish authorities to the German authorities. The first letter said: ‘please inform the Chief Inspector of Environmental Protection what measures have been taken and whether the approximate date of return [of] the waste to Germany is already known’. The second was worded as follows: ‘… could you provide current stage of the case? Has the court already issued a ruling on the case?’. In that regard, the Court is required to carry out a factual assessment according to the principle of the unfettered assessment of evidence referred to in point 17 of the present Opinion.
29      The Republic of Poland alleges that the take-back of that waste within the meaning of Article 24(2) of Regulation No 1013/2006 was necessary, in certain cases, because the German undertakings allegedly shipped that waste as ‘green listed’ waste (see footnote 14 of the present Opinion), using the information procedure, whereas the same waste, not covered by that list, should have been shipped under the procedure of prior written notification and consent (see point 13 of the present Opinion). In other cases, that take-back was necessary because the Polish consignees of the waste did not hold the necessary permits for the treatment of that waste.
30      According to the Federal Republic of Germany, it has not been established that the illegal shipments were made, or that any illegal shipments can be attributed to the German companies in question. The Commission agrees with that position, except for part of the shipments relating to site 2.
31      See, respectively, Annexes A.14 and A.29 (reports from the inspections carried out at those sites by the Polish authorities).
32      As regards site 3, in its application the Republic of Poland refers to a quantity of 3 360 tonnes, and, in its reply, a quantity of 1 039 tonnes (see Annex C.2). At the hearing, it clarified that this was a rough estimate.
33      Within the meaning of Article 2(35)(e) and (g)(iii) of Regulation No 1013/2006 in respect of site 2, and within the meaning of Article 2(35)(a), (b), (e) and (g)(i) and (iii) of that regulation in respect of site 3.
34      The shipments of waste to site 2 involved, on the one hand, the German producers or consignors ALBA Niedersachsen-Anhalt GmbH (established in Braunschweig, Germany), ALBA Niedersachsen-Anhalt GmbH (established in Seehausen, Germany; ‘ALBA Seehausen’), Altmärkische Entsorgung und Transport GmbH (‘Altmärkische’), Schutt-Karl GmbH, Parentin GmbH, Drekopf Recyclingzentrum Leipzig GmbH (‘Drekopf’) and Recom Entsorgung (‘Recom’), and, on the other hand, the Polish consignee Bravet sp. z o.o. Waste shipments to site  3 concerned the German consignor Parentin and the Polish consignee PPH LWN sp. z o.o.
35      I refer, in the context of the present Opinion, to the European Waste Catalogue (EWC) and the classification it establishes, as referred to in Commission Decision 2000/532/EC of 3 May 2000 replacing Decision 94/3/EC establishing a list of wastes pursuant to Article 1(a) of Council Directive 75/442/EEC on waste and Council Decision 94/904/EC establishing a list of hazardous waste pursuant to Article 1(4) of Council Directive 91/689/EEC on hazardous waste (OJ 2000 L 226, p. 3). That decision was last amended by Commission Decision 2014/955/EU of 18 December 2014 (OJ 2014 L 370, p. 44).
36      More specifically, waste under entry 17 08 02, namely ‘gypsum-based construction materials other than those mentioned in 17 08 01’ (the latter entry referring to ‘gypsum-based construction materials contaminated with dangerous substances’).
37      The Polish company Bravet, consignee of the waste shipped to site 2, had a permit for the recovery (R 5 operations) of concrete waste and for the collection, but not recovery, of gypsum waste. Conversely, the Polish company PPH LWN, consignee of the waste shipped to site 3, did not have a permit for the collection or recovery (R 5 operations) of that waste, at least for the plots of land where it was unloaded.
38      The German undertakings in question, aware of the absence of a permit, are therefore responsible for those illegal shipments.
39      This is the case for all shipments of waste that the Republic of Poland attributes to ALBA Braunschweig and Schutt-Karl, as well as part of the shipments of waste attributed by that Member State to ALBA Seehausen, Altmärkische, Parentin, Drekopf and Recom.
40      See email of 11 January 2019 (Annex A.24) and letter of 5 March 2019 (Annex A.25). The Republic of Poland made no further observations in that regard in its reply.
41      Moreover, contrary to the position maintained by the Republic of Poland, the mere fact that gypsum waste was found at site 2 does not demonstrate to the requisite legal standard that that waste came from the German consignor Parentin.
42      In their correspondence with the German authorities about those shipments, the Polish authorities stated, in their email of 11 January 2019 (Annex A.24), written in English, that: ‘Normally in this situation we would request for take back but the waste has been mixed together with other plasterboard waste that was already deposited on the land. Therefore it is impossible to distinguish which waste came from which company. I do not know whether take-back in this situation is possible’. The authorities also sought their interlocutors’ opinion on the situation (‘please let me know your views on this’) and asked them to inform the German companies in question (namely Drekopf and Recom) that the Polish consignee Bravet could not treat the waste under entry 17 08 02 and that subsequent shipments of that waste should be blocked. The letter of 5 March 2019 (Annex A.25), in its English translation written by those authorities, reiterated the fact that the shipments in question ‘were mixed with each other and with the waste already on the site, which made it impossible to distinguish between them and take-back was not possible’. In its reply, the Republic of Poland explained that the waste had been unloaded and distributed at site 2 using a bulldozer.
43      Those shipments, declared as shipments of gypsum waste in the Annex VII forms, were mentioned neither in the first waste take-back request sent by the Polish authorities (Annex A.35), nor in subsequent exchanges (Annexes A.36 to A.44). In its reply, the Republic of Poland clarified that that circumstance had been mentioned to demonstrate that, contrary to the allegations of the German consignor Parentin, that consignor was not only sending concrete waste, but also gypsum waste. At the hearing, it referred to the email of 11 January 2024 (Annex A.24) (see footnote 42 to the present Opinion).
44      In particular, it is apparent from the case file submitted to the Court that the Polish undertaking Bravet, consignee of the waste at site 2, had a permit for the collection and recovery (R 5 operations) of concrete waste, as well as for the collection, but not the recovery, of gypsum waste (see Annexes A.15, A.17 and B.12), and that the Polish company PPH LWN, consignee of the waste at site 3, had a permit for the collection of concrete waste (for certain plots), but not the recovery of that waste (Annex A.30).
45      For the purposes of that provision, ‘collection’ means ‘the gathering of waste, including the preliminary sorting and preliminary storage of waste for the purposes of transport to a waste treatment facility’. Recital 15 of Directive 2008/98 states that ‘it is necessary to distinguish between the preliminary storage of waste pending its collection, the collection of waste and the storage of waste pending treatment’ and that ‘establishments or undertakings that produce waste in the course of their activities should not be regarded as engaged in waste management and subject to authorisation for the storage of their waste pending its collection’. Recital 16 of that directive states, inter alia, that ‘preliminary storage of waste within the definition of collection is understood as a storage activity pending its collection in facilities where waste is unloaded in order to permit its preparation for further transport for recovery or disposal elsewhere’. The recital adds that ‘the distinction between preliminary storage of waste pending collection and the storage of waste pending treatment should be made, in view of the objective of this Directive, according to the type of waste, the size and time period of storage and the objective of the collection’.
46      Annex II to Directive 2008/98 defines the ‘R 13 recovery operation’ as the ‘storage of waste pending any of the operations numbered R 1 to R 12 (excluding temporary storage, pending collection, on the site where the waste is produced)’. Furthermore, the footnote to that definition states that ‘temporary storage means preliminary storage according to point 10 of Article 3’ of that directive (see footnote 45 of the present Opinion). In the present case, it appears that the permit issued to the Polish consignee Bravet for the ‘collection’ of waste (Annexes A.17 and B.12) does not refer to R 13 recovery operations and, in any event, describes the collection method, in point 2(3)(a), as an operation by which the waste is, inter alia, ‘stored for a certain time until a sufficient quantity is collected, then shipped by means of transport to another waste holder having the appropriate permit for waste management’. That definition corresponds, in my view, to that of ‘collection’ within the meaning of Article 3(10) of Directive 2008/98 and differs from that of ‘storage’ as envisaged in the context of recovery operation R 13.
47      The question therefore arises of the allocation of the risk between, on the one hand, the producers or consignors of the waste and, on the other hand, the consignees of that waste, in the event of incorrect information contained in the Annex VII form or in other documents relating to the shipment of that waste.
48      See footnote 11 of the present Opinion.
49      In that regard, I do not fully concur in the Commission’s position in its reasoned opinion to the effect that, in essence, the persons who arrange the shipment are held responsible only when they have ‘easy access’ to information about the permits when completing the Annex VII form. That approach seems to me too vague and limited as regards the responsibility of the producer or consignor of the waste who, although not required to carry out checks on the validity of the required documents (any falsification of those documents is obviously the sole responsibility of the undertaking that provided them), cannot be satisfied with the consignee’s declarations alone, but is required to adopt a proactive approach consisting, at the very least, in requesting a copy of the consignee’s permit (unless, for example, a copy was provided in connection with previous shipments). Moreover, at the hearing, the Commission was unable to specify the actual situations in which it could be established that an undertaking has ‘easy access’ to information about the permits, which depends on factual circumstances often beyond the undertaking’s control and which, therefore, are not decisive as regards the assessment of the undertaking’s diligence. In my opinion, that relatively strict approach towards the producer or consignor of the waste is also based (i) on Article 15(2) of Directive 2008/98, according to which, when the waste is transferred for preliminary treatment from the original producer or holder to a dealer or an establishment or undertaking which carries out waste treatment operations or by a waste collector, the responsibility for carrying out a complete recovery or disposal operation is not, as a general rule, discharged, and (ii) on recital 18 of Regulation No 1013/2006, according to which, considering the responsibility of waste producers for the environmentally sound management of waste, the notification and movement documents for waste shipments should, where practicable, be filled in by the waste producers themselves. See, also, to that effect and by analogy, judgment of 3 October 2013, Brady (C‑113/12, EU:C:2013:627, paragraph 78).
50      See point 35 of the present Opinion.
51      See point 37 of the present Opinion.
52      It is true that the Annex VII form refers to the instructions in Annex IC of Regulation No 1013/2006 and that point 21 of that annex states, inter alia, that, as regards the block relating to the recovery facility, ‘corresponding information on the subsequent facility or facilities, where any subsequent R12/R13 … operations takes or take place or may take place should be provided’. I note, however, that those instructions pertain to the notification documents and apply only incidentally to the notification procedure documents. The requirement to indicate non-interim recovery facilities is only provided for in Article 15(a) of that regulation, which is part of Chapter 1 thereof, on the procedure of prior written notification and consent, and not the information procedure (the provision in question states that ‘where a shipment of waste is destined for an interim recovery or disposal operation, all the facilities where subsequent interim as well as non-interim recovery and disposal operations are envisaged shall also be indicated in the notification document in addition to the initial interim recovery or disposal operation’). I also note that the instructions relating to the information procedure do not include the clarification in point 5 of the second paragraph of Annex II to that regulation, concerning information relating to the notification, according to which ‘if the waste is destined for an interim recovery or disposal operation, similar information regarding all facilities where subsequent interim and non-interim recovery or disposal operations are envisaged shall be indicated’. The absence of that clarification in the instructions relating to the information procedure leads me to conclude that the relevant requirements are less stringent than those relating to the procedure of prior written notification and consent for the indication of recovery facilities.
53      Regulation of the European Parliament and of the Council of 11 April 2024 on shipments of waste, amending Regulations (EU) No 1257/2013 and (EU) 2020/1056 and repealing [Regulation No 1013/2006] (OJ 2024 L 1157). Article 18(7) of that new regulation provides, explicitly and for the first time, that ‘where a shipment is destined for interim recovery, the facility where the interim or non-interim recovery directly following the initial interim recovery is envisaged, and the R-codes of those operations, shall also be indicated in the Annex VII document in addition to the initial interim recovery, as well as, where practicable, the facilities where subsequent interim or non-interim recovery is envisaged and the R-codes of the related recovery operations’. In my opinion, it does not necessarily follow from that provision that the indication of subsequent facilities, where a shipment is destined for interim recovery (‘where practicable’), would not be mandatory before the entry into force of that regulation, namely on 21 May 2026. In the absence of any indication to that effect in the recitals or the travaux préparatoires leading to the adoption of that regulation, that provision could be interpreted as specifying an obligation already provided for, although not explicitly identified, in Regulation No 1013/2006.
54      See footnote 11 and point 45 of the present Opinion.
55      Moreover, even from a purely factual point of view, I wonder how the consignor, who normally uses a third-party carrier to provide the transport to the recovery facility, could have any control, or even knowledge, of the exact place inside the recovery facility where the waste is unloaded.
56      See, Annexes A.48 and A.61 respectively (reports from the inspections carried out at those sites by the Polish authorities).
57      Within the meaning of Article 2(35)(a), (b), (e) and (g)(i) and (iii) of Regulation No 1013/2006.
58      The shipments of waste to site 4 concerned the German producer Wurzer Wertstoff GmbH (‘Wurzer’), the German exporter Trade & Service GmbH and the Polish intermediaries Inter-Nicco sp. z o.o. sp.k and F.H.U. Marko (‘Marko’), as well as the Polish consignees Ekobiopell Invest sp. z o.o. (‘Ekobiopell’) and A&P sp. z o.o. The shipments of waste to site 5 concerned the German consignors Böhme GmbH and Lobbe RSW GmbH (‘Lobbe’) and the Polish consignees Havel Investment sp. z o.o. (‘Havel’) and Recovery Green Recycling sp. z o.o. (‘Recovery’), on land owned by RS Robert Szymkowicz. In its application, the Republic of Poland mentions the code of another German undertaking whose identity was not specified, but merely concludes that the waste relating to Lobbe and Böhme should be taken back. It also refers, in its reply, to allegedly illegal shipments of waste from the German companies PB Solutions GmbH, Borchers Kreislaufwirtschaft GmbH and ALBA Recycling GmbH, although without providing sufficient evidence of the involvement of those companies in the shipments of waste to site 5. Moreover, the shipments of waste allegedly attributable to those companies are not even mentioned in Annex C.2, which provides a 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).