OPINION OF ADVOCATE GENERAL

BOT

delivered on 8 December 2011 ( 1 )

Case C-1/11

Interseroh Scrap and Metals Trading GmbH

v

Sonderabfall-Management-Gesellschaft Rheinland-Pfalz mbH (SAM)

(Reference for a preliminary ruling from the Verwaltungsgericht Mainz (Germany))

‛Protection of the environment — Shipments of waste — Regulation (EC) No 1013/2006 — Information to accompany shipments of green list waste — Confidential treatment — Scope’

1. This reference for a preliminary ruling concerns the interpretation of Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste, ( 2 ) as amended by Directive 2009/31/EC of the European Parliament and of the Council of 23 April 2009. ( 3 )

2. The Verwaltungsgericht Mainz (Administrative Court, Mainz) (Germany) refers to the Court four questions concerning in essence whether the obligation to provide information, laid down in Article 18(1) of the Regulation, can be limited by the right to protection of business secrecy.

3. In this case the Court is therefore called upon to examine the scope of the reference made in Article 18(4) of the Regulation to provisions requiring confidential treatment of information; to give consideration to the adoption in European Union law of a right to protection of business secrecy; and also, if appropriate, to examine such a right in the light of the information requirements imposed by environmental legislation.

4. In this Opinion I shall set out the reasons why I take the view, first, that the provisions to which Article 18(4) of the Regulation refers do not apply in relations between those involved in a shipment process, secondly, that Article 18(1) of that regulation precludes legislation of a Member State that, on grounds of protection of business secrecy, restricts access by the consignee of the waste to information concerning the waste producer that must be given in Field 6 of the document contained in Annex VII to that regulation and, lastly, that the abovementioned provisions are compatible with primary law.

I – The legal context

A – European Union law

5. The Regulation was adopted on the basis of Article 175(1) EC and its purpose is to provide a harmonised set of procedures whereby movements of waste can be limited in order to secure protection of the environment.

6. It repeals and replaces Council Regulation (EEC) No 259/93 of 1 February 1993, ( 4 ) which repealed Council Directive 84/631/EEC of 6 December 1984. ( 5 )

7. The new legislation is designed, inter alia, to incorporate the amendments to the lists of waste annexed to the Convention on the control of transboundary movements of hazardous wastes and their disposal, signed at Basel on 22 March 1989 and approved on behalf of the Community by Council Decision 93/98/EEC of 1 February 1993, ( 6 ) and also the content of Decision C(2001) 107 final of the Council of the Organisation for Economic Co-operation and Development (OECD) revising Decision C(92) 39 final on the Control of Transboundary Movements of Wastes Destined for Recovery Operations.

8. To that end, the Regulation establishes procedures and control regimes for the shipment of waste, depending on criteria based essentially on the type of waste shipped, the exporting State and the type of treatment to be applied to the waste at its destination, whether it is to be disposed of or recovered.

9. More specifically, it divides waste into three categories according to the degree of hazard and, consequently, the control procedure to be followed in relation to it. Thus, Annex III to the Regulation contains the green list, which covers waste regarded as presenting only negligible risks to human health and the environment during shipment. Such waste is, in principle, subject only to an information procedure. Annex IV to that Regulation, referred to as the ‘amber list’, lists wastes which, since they present a risk to human health and the environment, are subject to a more restrictive procedure of prior written notification and consent. Lastly, Annex V to that regulation comprises an untitled list of the most hazardous wastes, which are subject to an export ban.

10. Article 3(2) of the Regulation provides that shipments within the European Union, with or without transit through third countries, of wastes destined for recovery ( 7 ) are subject to the general information requirements laid down in Article 18 of that Regulation.

11. Article 18 of the Regulation provides: ‘1. Waste as referred to in Article 3(2) and (4) that is intended to be shipped shall be subject to the following procedural requirements: (a) In order to assist the tracking of shipments of such waste, the person under the jurisdiction of the country of dispatch who arranges the shipment shall ensure that the waste is accompanied by the document contained in Annex VII. (b) The document contained in Annex VII shall be signed by the person who arranges the shipment before the shipment takes place and shall be signed by the recovery facility or the laboratory and the consignee when the waste in question is received. … 3. For inspection, enforcement, planning and statistical purposes, Member States may in accordance with national legislation require information as referred to in paragraph 1 on shipments covered by this Article. 4. The information referred to in paragraph 1 shall be treated as confidential where this is required by Community and national legislation.’

12. Annex VII to the Regulation, to which Article 18 of that regulation refers, lists the information which must accompany shipments of waste, providing inter alia, in Field 6, that in the case of the waste generator (original producer, new producer or collector), its name, address, contact person, telephone number, fax number and e-mail address must be given.

B – National law

13. The Basic Law of the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland) requires that information concerning business secrets must be treated as confidential under the provisions of Paragraph 12 of that law, concerning freedom to conduct a business, and Paragraph 14, concerning the right to property. According to German case-law, an undertaking’s sources of supply are business secrets which fall to be protected as a fundamental right.

14. Paragraph 5(1) of the Law implementing Regulation No 1013/2006 and the Basel Convention of 22 March 1989 on the control of transboundary movements of hazardous waste and their disposal, ( 8 ) of 19 July 2007, ( 9 ) provides that, with regard to shipments under Article 18 of the Regulation, also in conjunction with Article 37(3), Article 38(1), Article 40(3), Article 42(1), Article 44(1), Article 45, Article 46(1), Article 47 or Article 48 of the Regulation, the person arranging the shipment must, so far as possible, complete the form contained in Annex VII to that regulation.

II – The dispute in the main proceedings and the questions referred for a preliminary ruling

15. The dispute in the main proceedings is between Interseroh Scrap and Metals Trading GmbH (‘Interseroh’), specialising in dealing in steel and metal scrap, and Sonderabfall-Management-Gesellschaft Rheinland-Pfalz mbH (SAM), entrusted by Land Rheinland-Pfalz with the supervision of specific waste streams.

16. Interseroh, in its capacity as an intermediary dealer, buys green list waste from a producer or collector and then sells it on to steelworks, foundries and ironworks, with the goods being delivered direct to the customer by the producer or collector.

17. That business model involves two separate contracts: one between the intermediary dealer and the waste producer, the other between that dealer and the consignee.

18. Under Article 18(1)(a) of the Regulation, Interseroh is required to provide in the document contained in Annex VII to that regulation various pieces of information from which the producer of the waste can be identified.

19. Interseroh considers that that requirement obliges it to disclose information regarding its sources of supply that is covered by business secrecy, the consequence of which, in Interseroh’s submission, is that its customers are in a position to conclude contracts directly with the producer, thus bypassing the waste recovery markets.

20. It was for that reason that the company decided to give its own name as the producer or collector in Field 6 of the document contained in Annex VII to the Regulation or to leave that Field blank, since, in its view, the name of the actual producer or collector would be clear in any event from the delivery note and weight certificate which must also accompany the shipment.

21. After being checked on 7 May 2009 and being ordered by SAM to pay a fine, Interseroh applied to the Verwaltungsgericht Mainz for a ruling that, as an intermediary dealer, it is under no obligation vis-à-vis its customer, to give the name of the waste producer.

22. The Verwaltungsgericht Mainz decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling: ‘(1) Does Article 18(4) of [the Regulation] also apply to those involved in the shipment process? (2) If not, is Article 18(1) of that regulation restricted by European Union primary law in order to protect business secrets? (3) If question 1 is answered in the affirmative, is the obligation under Article 18(1) of [that regulation] on the persons who arrange the shipments to disclose the name of the waste producer or waste collector to the consignee of the waste by means of the document set out in Annex VII [to the Regulation] limited by Article 18(4) [of that regulation] in order to protect business secrets? (4) If question 3 is answered in the affirmative, does the extent of the limitation depend on a weighing up of the interests (on the one hand, the business interests affected, on the other, protection of the environment) on a case-by-case basis?’

III – Analysis

A – Preliminary observations

23. Before answering the questions referred I consider it useful to summarise the legal information provided by the referring court and the nature of the legal issues on which it seeks clarification.

1. Legal information provided by the referring court

24. The national court states that although the provisions of German legislation governing the shipment of waste do not state that information regarding the waste producer or waste collector must be treated as confidential, such confidentiality is none the less required under Paragraph 12 in conjunction with Paragraph 14 of the Basic Law of the Federal Republic of Germany, since it is generally acknowledged that an undertaking’s sources of supply are business secrets and are protected as a fundamental right. I shall regard this account of the law given by the national court as an agreed fact.

2. The purpose and scope of the questions

25. The referring court is of the view that it is necessary to proceed on the assumption that Article 18(4) of the Regulation allows information provided for in Article 18(1) of that regulation to be treated as confidential only where such treatment is required under both European Union and national law. It bases that view on a comparison of Article 18(4) of the Regulation in the English and French versions with Article 21 of that regulation, which refers to ‘national or Community legislation’.

26. On the understanding that German legislation requires information concerning sources of supply to be treated as confidential, the referring court considers it necessary to ascertain whether European Union legislation also requires such information to be treated as confidential.

27. It therefore raises the question of the extent to which business secrecy is protected under Article 18(4) of the Regulation, and also, of the content and possible application, for the purposes of resolving the dispute in the main proceedings, of the rules of primary law.

28. In other words, the Verwaltungsgericht Mainz asks whether Article 18(4) of the Regulation itself contains a limitation on the obligation to give the consignee of the waste the information provided for in Article 18(1) of that regulation and, if not, whether such a limitation derives from primary law and the general principles of European Union law.

29. According to the Court’s settled case-law, it is for the referring court alone to determine the subject-matter of the questions it intends to refer. It is solely for the national courts before which actions are brought, and which must bear the responsibility for the subsequent judicial decision, to determine in the light of the particular features of each case both the need for a preliminary ruling in order to enable them to deliver judgment and the relevance of the questions which they submit to the Court. ( 10 )

30. I am of the view that it is apparent from the order for reference that, although formally the subject-matter of the questions is the interpretation of Article 18(1) and (4) of the Regulation, the Verwaltungsgericht Mainz, by asking in its second question about the effect of primary law on the scope of the obligation laid down in Article 18(1) of that regulation, necessarily expresses doubts as to the validity of that provision, so that the subject-matter of the question requires an assessment of validity to be made.

31. I propose that the Court should begin its examination of the present case by considering the first, third and fourth questions, all three of which relate to the interpretation of Article 18(4) of the Regulation, and for which I suggest a single answer. I shall then look at the second question, which deals with the compatibility of Article 18(1) of that regulation with the right to protection of business secrecy and which therefore entails, indirectly, an assessment of validity. Examination of the questions in that order is justified, to my mind, by the fact that the assessment of the validity of a measure necessarily implies an interpretation first of all.

B – The first, third and fourth questions

32. The referring court, by its first, third and fourth questions, asks the Court to give a ruling on the scope of Article 18(4) of the Regulation, which provides for confidential treatment of the information referred to in Article 18(1) ‘where this is required by Community and national legislation’. ( 11 )

33. It therefore assumes that Article 18(4) of the Regulation must be treated as a provision giving rise to obligations, the scope of which must be defined in order to decide whether it covers only third parties or also concerns those involved in the process of the shipment of waste.

34. Following that reasoning, the Belgian, Austrian and Portuguese Governments link Article 18(4) to Article 18(3) and consequently consider that the legislation to which Article 18(4) refers is merely that applying to authorities requesting information for inspection, enforcement, planning and statistical purposes. The reference to that legislation can therefore only cover the provisions relating to the confidential treatment of information by the relevant competent authorities of the Member States.

35. In contrast, Interseroh submits, on the basis of the wording of Article 18(4) of the Regulation, of its position in a separate paragraph within that article, and of its purpose, which is to ensure business secrecy, that the obligation to treat the information as confidential applies also to those involved in the shipment process.

36. The European Commission, adopting an intermediate position, considers that the confidentiality requirement applies not only to the relevant competent authorities of the Member States but also to the undertakings involved in the shipment of waste, but only in their relations with third parties; those undertakings may make contractual arrangements between themselves to contain the effects of unauthorised disclosure of information.

37. Before suggesting answers to the questions, I think it is appropriate first of all to clarify two points regarding how Article 18(4) of the Regulation must be construed.

38. It is important to note in the first place that that provision does not per se create any confidentiality requirement whose scope needs to be ascertained.

39. That provision was already contained, although in a slightly different wording since it referred only to national legislation, in Regulation No 259/93, Article 11(2) of which provided that the information accompanying shipments of waste was to be treated ‘confidentially in accordance with existing national regulations’.

40. It should be pointed out that neither Article 18(4) of the Regulation nor Article 11(2) of Regulation No 259/93, which it succeeded, creates per se any confidentiality requirement, it merely refers, with regard to the confidential treatment of information obtained under Article 18(1), to the application of the provisions of European Union law and the existing relevant national provisions. Confidential treatment of the information is therefore conceived of as an exception dependent upon the existence of specific rules.

41. Secondly, I do not think that it should be inferred from the use of the conjunction ‘and’ that confidential treatment must be provided for both by European Union legislation and by national legislation.

42. Article 18(4) of the Regulation may properly be read in conjunction with Article 21 of that regulation, concerning public access to notifications, which provides that the competent authorities of dispatch or destination may make publicly available by appropriate means, such as the internet, information on notifications of shipments they have consented to, ‘where such information is not confidential under national or [ ( 12 )] Community legislation’. The two elements are thus clearly shown in that article as being alternatives, by the use of the conjunction ‘or’, whereas Article 18(4) of the Regulation uses the conjunction ‘and’.

43. However, the conjunction ‘and’ may, linguistically, have a cumulative or distributive sense and must therefore be read in the context in which it is used. ( 13 ) Article 19(6) of the Proposal for a Regulation of the European Parliament and of the Council on shipments of waste, ( 14 ) was worded differently, since it provided that the information specified in Article 19(1) was to be treated confidentially ‘in accordance with Community and national legislation’. In the light of the purpose of Article 18(4) of the Regulation, I consider that the conjunction ‘and’ should not be construed as imposing a two-fold requirement. It is sufficient, in my view, for the national legislation to require confidential treatment of the information, although it is of course necessary for that national legislation to accord with European Union law and thus to come within the scope of the reference made by Article 18(4) of the Regulation.

44. It is therefore the scope of the reservation made in that article with regard to the application of national legislation and European Union legislation that should be examined more specifically.

45. That examination must be conducted taking into account the fact that the right to confidentiality is not stated as a principle but rather as an exception, which must therefore be interpreted strictly.

46. The rule of interpretation which I propose to adopt is consistent with the case-law of the Court, which in a judgment of 26 June 2003, in Commission v France , ( 15 ) held that French law was too general where it provided for refusal on the ground that dissemination of certain information would prejudice, ‘generally, secrets protected by legislation’. It requires that in every particular case the public interest served by disclosure should be weighed against the interest served by the refusal. ( 16 )

47. The issue of the scope of Article 18(4) of the Regulation subdivides into two questions.

48. The first is whether the provisions to which Article 18(4) of the Regulation refers are such that they restrict the requirement to state the name of waste producer in Field 6 of the document contained in Annex VII to that regulation.

49. The second is whether, if the answer to that first question is negative, those provisions will justify the information concerning the producer, given in the document contained in Annex VII to the Regulation, not being communicated to the consignee of the waste.

1. The requirement for the intermediary dealer to complete Field 6 of the document contained in Annex VII to the Regulation

50. I think I may say that it is clear from the provisions of Article 18 of the Regulation that Article 18(4) of that regulation contains no derogation from the requirement laid down in Article 18(1). The purpose of those two provisions is not the same, since the one requires information to be given, whilst the other is intended to state how that information is to be treated. In other words, Article 18(4) of the Regulation can apply only if the information has already been given in the document contained in Annex VII to that regulation, as provided in Article 18(1).

51. That interpretation is clear from the actual wording of Article 18(1) and (4) of the Regulation.

52. It is also in line with the general scheme of the procedure introduced by the Regulation, which excludes any exception to the requirement to provide information concerning the waste producer or waste collector where the person arranging the shipment is a dealer. Footnote 3 to Annex VII to the Regulation thus expressly states that when the person who arranges the shipment is not the producer or collector, information about the producer or collector must be provided. That clarification would be devoid of purpose if Article 18(4) of the Regulation were to be interpreted as allowing the intermediary dealer not to give details of the producer or collector. Thus, by expressly covering the business model on which Interseroh’s activity is based, the Regulation does not allow any derogation in this particular case.

53. On the basis of the above considerations I therefore propose that it should be concluded that Article 18(4) of the Regulation does not allow any derogation from the requirement laid down in Article 18(1)(a) of that regulation, whereby the person who arranges the shipment must ensure that the waste is accompanied by the document contained in Annex VII to that regulation.

54. I consider therefore that a dealer such as Interseroh in the present case cannot avoid giving in Field 6 of that document the name and other details of the waste producer or collector, on the ground, inter alia, that the same information appears in other documents, such as the delivery notes or weight certificates.

55. It therefore remains to be established whether Article 18(4) of the Regulation restricts the application of provisions which, without releasing the person who arranges the shipment from the requirement to complete Field 6 of that document, limit, inter alia on grounds of protection of the secrecy of sources of supply, the communication of that information to the consignee of the waste.

2. The requirement to communicate the name of the waste producer or waste collector to the consignee of the waste

56. It does not appear to me that Article 18(4) of the Regulation can be construed either according to the narrow interpretation proposed by the Belgian, Austrian and Portuguese governments or according to the broad approach proposed by Interseroh. I think that it is appropriate to adopt the Commission’s proposed interpretation, which falls between the two, for the following reasons.

57. It is true that that provision appears to refer principally to provisions of European Union law or to national provisions which allow Member States to derogate from the principle of freedom of access to environmental information enshrined in Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003. ( 17 )

58. That interpretation is supported by recital 23 in the preamble to the Regulation, which states that Member States should be required to ensure that, in accordance with the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, concluded on 25 June 1998 and approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005, ( 18 ) the relevant competent authorities are to make publicly available by appropriate means information on notifications of shipments, ‘where such information is not confidential under national or Community legislation’.

59. Directive 2003/4, the objective of which is to make the provisions of European Union law consistent with that convention, provides in Article 4(2)(d) that Member States may provide for a request for environmental information to be refused if disclosure of the information would adversely affect ‘the confidentiality of commercial or industrial information where such confidentiality is provided for by national or Community law to protect a legitimate economic interest, including the public interest in maintaining statistical confidentiality and tax secrecy’.

60. From the similarity of those different provisions, I conclude, like the Belgian, Austrian and Portuguese Governments, that Article 18(4) of the Regulation refers to provisions which derogate from the principle of the right of public access to environmental information held by the public authorities.

61. That is, moreover, according to the Commission’s report of 12 April 2011, ( 19 ) relating, inter alia, to the application of Article 18 of, and Annex VII to, the Regulation, the sense which appears to be the most generally accepted by the authorities entrusted by the Member States with the implementation of that regulation.

62. However, I consider that the reference made by that article must have a broader scope. It should be pointed out that Article 18(4) is drafted in general terms and that it is independent and separate from Article 18(3), which concerns communication of information to the authorities of the Member States. That two-fold consideration based both on the wording of Article 18(4) of the Regulation and on its position within that article, appears to me to exclude any interpretation that is overly restrictive.

63. I think therefore that the provisions to which Article 18(4) of the Regulation refers may apply to all persons who may hold information referred to in Article 18(1) of that regulation, that is to say, not only the authorities of dispatch or destination, but all natural or legal persons involved in the shipment of waste.

64. However, in my view, Article 18(4) of the Regulation applies to those involved in the shipment exclusively in their relations with third parties and not in their relations with one another, so that that provision cannot allow a dealer to conceal information from the consignee of the waste. There are two sets of considerations in favour of this.

65. The first is based on the general scheme of the Regulation, several provisions of which do not appear to me to be compatible with the dealer being able to conceal from the consignee information concerning identification of the producer.

66. The Regulation provides for the use of a single document, the content of which is set out in Annex VII to that regulation, and it does not contain any alternative arrangement allowing the use of two separate forms, one by the controlling authority and the other by the consignee, ( 20 ) or of a code which only the controlling authority could decipher. I should like to make clear on this point that, contrary to what the Belgian Government contends, Article 26(3) of the Regulation, which provides merely that the document contained in Annex VII to the Regulation may be completed in electronic form if it can be made readable at any time during transport, does not appear to me in any way to allow information relating to the waste producer to be blanked out. Nor do I think that it is for the Court to take the place of the European Union legislature by adopting itself procedures for avoiding disclosure of the name of the waste producer to the consignee of that waste.

67. Article 18(1)(b) of the Regulation provides, moreover, that the document contained in Annex VII to that regulation is to be signed by the recovery facility or the laboratory and the consignee when the waste is received, whilst Article 20(2) of the Regulation states that information given pursuant to Article 18(1) of that regulation must be kept for at least three years from the date when the shipment starts, inter alia, by the consignee and the facility receiving the waste. As a signatory and depositary of the document, the consignee cannot receive an edited version of it.

68. The second set of considerations concerns the practical effect of the Regulation.

69. In the first place, the Regulation makes Member States responsible for applying control measures in respect of shipments of waste and states that those measures include spot checks, which may be carried out at the point of origin, with the producer, holder or notifier; during the shipment; and also at the destination, with the consignee or the facility. The checks include, in addition to physical checking of the waste, inspection of documents and confirmation of the names of those involved.

70. It is apparent from those provisions that the authorities of the State of destination must be in a position to carry out checks at the place where the waste arrives. In order for such checks to be effective those authorities must be able to obtain from the consignee a single document in which the various Fields have been completed in full.

71. In addition, it should be noted that the Regulation, in accordance with all environmental legislation, imposes particular responsibility on the waste producer, and so it would appear essential that the latter should be identified.

72. Article 49(1) of the Regulation provides that producers must take the necessary steps to ensure that any waste they ship is managed without endangering human health and in an environmentally sound manner throughout the period of shipment and during its recovery and disposal. The producer’s responsibility does not end therefore once those operations have been completed.

73. Contrary to what Interseroh contends, the responsibility of the person who arranges the shipment of waste does not exclude the responsibility of the producer. Although responsibility for take-back in the case of an illegal shipment lies primarily with the person who arranged the shipment, ( 21 ) the Regulation, which assigns the take-back obligation and related costs according to a chain of responsibility, extending back from the notifier to ‘other natural or legal persons’ and finally to the competent authority of dispatch, enables producer responsibility to be ascertained where it is impossible to hold the person who arranged the shipment responsible. ( 22 ) In order to ensure that no waste is abandoned and to have a contributor where the current holder of the waste is insolvent, environmental legislation does not therefore in principle exclude the responsibility of the original producer, even if the latter is no longer in possession of the waste. ( 23 )

74. Where an illegal shipment is discovered which is not the responsibility of the consignee and the person who arranged the shipment cannot be held responsible, for example because that person is insolvent or has been wound up, the competent authorities must be able to contact the consignee or the recovery facility in order to ascertain the name of the producer, in order if appropriate to hold it responsible or oblige it to bear the cost of the return.

75. Those are the reasons why it must be held that: — first, Article 18(4) of the Regulation must be interpreted as referring only to provisions requiring confidential treatment of information referred to in Article 18(1) of that regulation as regards third parties to the process of the shipment of waste, and — secondly, that Article 18(1) of the Regulation must be interpreted as precluding legislation of a Member State which, for reasons connected with protection of business secrecy, restricts access by the consignee of the waste to information concerning the producer of the waste given in Field 6 of the document contained in Annex VII to that regulation.

C – The second question

76. By its second question, concerning the effect of primary law, the referring court questions indirectly whether the obligation under Article 18(1) of the Regulation is compatible with the requirements of protection of business secrecy arising from that law and from the general principles of European Union law.

77. In those circumstances, it is necessary to ascertain whether observance of fundamental rights precludes the interpretation of the Regulation given in point 75 above.

78. This question involves establishing whether business secrecy enjoys protection under European Union law and, if so, to what extent.

79. In reply it may be stated that the protection of business secrets is enshrined as a principle in European Union law.

80. This right is contained in the Charter of Fundamental Rights of the European Union, which includes it as a component of the right to good administration. Article 41(2) of that charter provides that the right to good administration includes, inter alia, ‘the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy’. That right also appears in Article 339 TFEU, which requires the members of the institutions of the Union not to disclose information of the kind covered by the obligation of professional secrecy, ‘in particular information about undertakings, their business relations or their cost components’.

81. In its case-law, the Court has referred on several occasions to the right to the protection of business secrecy, to which it has given the status of a general principle.

82. In AKZO Chemie and AKZO Chemie UK v Commission, ( 24 ) the Court, whilst pointing out that the relevant provisions in that case dealt with particular situations, none the less held that they were the expression of a general principle which applies during the course of the administrative procedure. ( 25 ) It reaffirmed in SEP v Commission, ( 26 ) the existence of a ‘general principle of the right of undertakings to the protection of their business secrets’. ( 27 )

83. Since the protection of business secrecy has been directly enshrined as a general principle, it does not appear to me to be necessary to ascertain whether it must be protected as a component of the right to property or of the freedom to pursue an economic activity.

84. In any event, that principle is not absolute, but must be viewed in relation to its function in society. Consequently, it may be restricted, provided the restrictions are justified by overriding requirements relating to the general interest, are appropriate for securing attainment of the objective pursued and do not go beyond what is necessary for attaining that objective.

85. Thus, in Varec the Court was, for example, prompted to balance the right of economic operators to the protection of their confidential information and their business secrets against the right of access to information concerning procedures for the award of public works contracts. ( 28 )

86. The balancing exercise to be carried out must, to my mind, take account of the fact that, according to Article 191(2) TFEU, the European Union’s policy on the environment is to aim at a high level of protection. That policy is based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay. Moreover, under Article 11 TFEU, ‘[e]nvironmental protection requirements must be integrated into the definition and implementation of the Union policies and activities, in particular with a view to promoting sustainable development’.

87. In my view, the decisive factors when striking a balance between protection of the environment and protection of the right to business secrecy must, on the one hand, be the contribution which the information in question makes to the protection of the environment and, on the other hand, the degree of damage to business secrecy resulting from the disclosure of that information.

88. The requirement for the dealer to disclose the name of the producer meets the public interest objective of protection of the environment.

89. Generally, as the Court held in Commission v Parliament and Council, ( 29 ) the Regulation, both by its objective and content, is aimed primarily at protecting human health and the environment against the potentially adverse effects of cross-border shipments of waste. ( 30 )

90. Although the prior written notification and consent procedure provided for in respect of hazardous waste by the Regulation is the typical instrument of environmental policy, ( 31 ) the information procedure provided for in respect of green list wastes also meets that objective. The Court has thus held that ‘the fact that the … regulation also applies to non-hazardous waste and to waste intended for recovery does not make it commercial or weaken its environmental dimension since waste, of whatever type it may be, is inherently harmful to the environment [ ( 32 )]’. ( 33 )

91. Whatever degree of hazard it presents, waste cannot be regarded as an ordinary commodity. It can move around only ‘with supervised freedom’ ( 34 ) its movements being necessarily restricted by imperative requirements relating to the protection of the environment.

92. The requirement to state the name and other details on the document given to the consignee of the waste would appear necessary to attain this objective.

93. It constitutes a two-fold guarantee of effectiveness for the controlling authorities and of security for the consignees responsible for the recovery of waste.

94. The effectiveness of checks on waste during transport or on arrival at the place of destination requires that the name of the producer should be immediately clear to the authorities of the State of transit or destination from the document accompanying the waste, without the need for them to contact the person arranging the shipment, who, according to Article 18(1)(a) of the Regulation, is located in the State of dispatch. As the Belgian Government contends, that piece of information provides a criterion for assessing whether there is any need to carry out a physical check, which is necessarily long and costly since it requires the immobilisation of the goods. The need to contact the dealer to find out the name of the producer would slow down control procedures and therefore raise serious difficulties in areas of activity such as maritime transport, which work on a ‘just-in-time’ basis.

95. It should be pointed out that, although green list waste is regarded as presenting minimum hazards for the environment and human health, the aim of the information requirement laid down in Article 18(1) of the Regulation is to remove the risk of the prior written notification and consent procedure provided for in respect of hazardous waste being circumvented. It is important, therefore, that the authorities of the Member States should be able to track the progress of waste continuously from its production to its final recovery, in order to check whether it is indeed green list waste and, where that is the case, that it has not been mixed with other material to an extent that impairs its environmentally sound recovery.

96. As regards safety of treatment, the Austrian Government rightly points out that it is through knowledge of the nature and composition of the waste that the consignee and the controlling authorities can ensure that the waste can be treated in an environmentally sound manner. Indication of the waste producer may per se be an essential piece of information where, for example, it is established that the producer normally produces dangerous waste. Moreover, where the recovery facility or the controlling authorities of the State of destination consider they have insufficient information, the producer may be asked to provide further details.

97. Awareness of the name of the producer therefore constitutes information that is needed by the consignee of the waste, and that name ought not to be withheld from the consignee when a dealer is used to arrange the shipment.

98. The breach of the right to protection of data covered by business secrecy which may result from this would seem to me to be a limited breach.

99. I share the Commission’s view that the parties to the shipment process may, with certain reservations, rely on contractual arrangements in their relations between themselves to offset the difficulties which may result from use by the consignee, for purposes other than those provided for in the Regulation, of information concerning the name of the producer.

100. I wonder, moreover, whether actual and serious damage would be caused to dealers as a result of disclosure of the names of producers. The information provided during the written procedure and at the hearing is insufficient for the Court to assess this fully.

101. It follows from the above considerations that the information system for green list waste introduced by the Regulation is proportionate.

102. I therefore conclude that consideration of the second question has disclosed no factor of such a kind as to affect the validity of Article 18(1) and (4) of the Regulation, as I propose to interpret it.

IV – Conclusion

103. I therefore propose that the Court should give the following answers to the questions referred by the Verwaltungsgericht Mainz: (1) Article 18(4) of Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste, as amended by Directive 2009/31/EC of the European Parliament and of the Council of 23 April 2009, must be interpreted as referring only to provisions requiring confidential treatment of information referred to in Article 18(1) of Regulation No 1013/2006, as amended by Directive 2009/31, as regards third parties to the process of the shipment of waste. (2) Article 18(1) of Regulation No 1013/2006, as amended by Directive 2009/31, must be interpreted as precluding legislation of a Member State which, for reasons connected with protection of business secrecy, restricts access by the consignee of the waste to information concerning the producer of the waste given in Field 6 of the document contained in Annex VII to that regulation. (3) Consideration of the second question referred has disclosed no factor of such a kind as to affect the validity of Article 18(1) and (4) of Regulation No 1013/2006, as amended by Directive 2009/31.

( 1 ) Original language: French.

( 2 ) OJ 2006 L 190, p. 1.

( 3 ) OJ 2009 L 140, p. 114, ‘the Regulation’.

( 4 ) Regulation on the supervision and control of shipments of waste within, into and out of the European Community (OJ 1993 L 30, p. 1).

( 5 ) Directive on the supervision and control within the European Community of the transfrontier shipment of hazardous waste (OJ 1984 L 326, p. 31).

( 6 ) OJ 1993 L 39, p. 1.

( 7 ) All waste destined for disposal operations is subject to the more restrictive procedure of prior written notification and consent laid down in Chapter 1 of that Regulation.

( 8 ) Gesetz zur Ausführung der Verordnung (EG) Nr. 1013/2006 des Europäischen Parlaments und des Rates vom 14. Juni 2006 über die Verbringung von Abfällen und des Basler Übereinkommens vom 22. März 1989 über die Kontrolle der grenzüberschreitenden Verbringung gefährlicher Abfälle und ihrer Entsorgung.

( 9 ) BGBl. 2007 I, p. 1462.

( 10 ) See Case C-316/09 MSD Sharp & Dohme [2011] ECR I-3249, paragraph 21 and the case-law cited.

( 11 ) In the French version, the verb is plural whereas the subject is singular.

( 12 ) Emphasis added.

( 13 ) See, for an assessment by the Court of the meaning of the conjunction ‘or’, Case C-304/02 Commission v France [2005] ECR I-6263, paragraph 83.

( 14 ) Proposal submitted by the Commission on 30 June 2003 (COM(2003) 379 final).

( 15 ) C-233/00 [2003] ECR I-6625.

( 16 ) See Case C-266/09 Stichting Natuur en Milieu and Others [2010] ECR I-13119.

( 17 ) Directive on public access to environmental information and repealing Council Directive 90/313/EEC (OJ 2003 L 41, p. 26).

( 18 ) OJ 2005 L 124, p. 1.

( 19 ) Report available in English on the Commission’s web site: ‘Assessment and guidance for the implementation of EU waste legislation in Member States’. It is stated on page 23 of the report that:

‘In the majority of cases “confidentiality” pursuant to Article 18(4) is interpreted as compliant with data protection law requirements throughout data management by [Competent Authorities].

Ireland is the only Member State which interprets the legislation in a way that “persons who arrange the shipment” (box 1) may omit the information on consignee and recovery facility by referring to the exporter. Box 2 and 7 in this case will be filled with “Confidential - please refer to box 1”.’

( 20 ) In the Commission report mentioned in footnote 14, only the Slovene authority declared that it could accept the use of two forms (‘Slovenia declares that it can also accept if there are two Annex VII documents for the same shipment. In the first could be the data about the producer and in the second the data about recovery, so that you can get all required data’ (p. 25)).

( 21 ) See Article 24(9) of the Regulation.

( 22 ) Article 24(9) and Article 25(4) of the Regulation do not relieve the notifier of all responsibility, since they provide only that the person who arranges the shipment is to be subject to the same obligations as the notifier. According to the ranking established in Article 2(15)(a) of that regulation, the notifier is first of all (i) the original producer.

( 23 ) Article 24(10) and Article 25(5) of the Regulation expressly state that they are without prejudice to Community and national provisions concerning liability. Article 15(2) 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), provides that the original producer or holder remain responsible for the complete recovery or disposal operation, even if the waste is transferred to other persons for preliminary treatment. Without prejudice to the Regulation, that provision moreover allows Member States to specify the conditions of responsibility and decide in which cases the original producer is to retain responsibility for the whole treatment chain or in which cases the responsibility of the producer and the holder can be shared or delegated among the actors of the treatment chain.

( 24 ) Case 53/85 [1986] ECR 1965.

( 25 ) Paragraph 28.

( 26 ) Case C-36/92 P [1994] ECR I-1911.

( 27 ) Paragraphs 36 and 37. See also Case C-450/06 Varec [2008] ECR I-581, paragraph 49).

( 28 ) Paragraphs 51 and 52.

( 29 ) Case C-411/06 [2009] ECR I-7585.

( 30 ) Paragraph 62.

( 31 ) Paragraph 59 and the case-law cited.

( 32 ) Emphasis added.

( 33 ) Commission v Parliament and Council, paragraph 67 and the case-law cited.

( 34 ) See Gillardin, J., ‘Les déchets: des marchandises en liberté surveillée’ [Waste: goods with restricted freedom], L’entreprise et la gestion des déchets, Bruylant, Brussels, 1993, p. 63.