2.

The theory shared by the French and Italian Governments and the Syndicat National appears to go further. They maintain that application of Article 5 necessarily entails a prohibition on exports. Thus if a Member State concludes that recourse to Article 5 is indispensable in order to achieve the aims of Articles 2 to 4, it must organize a system of exclusive concessions which restricts, or even eliminates, the free movement of waste oils. (a) To support that view, several different arguments have been put forward: (1) Thus attention has been drawn to the fact that the directive is based on Article 235 of the Treaty, which applies when the Treaty has not provided the powers necessary to carry out a Community measure which is thought to be required. On the basis of that it is argued that if the purpose of the directive were solely to confirm a principle which appears in the Treatyand is of direct application (such as the free movement of goods), the reference to Article 235 would be pointless. (2) It is said that it is necessary to grant undertakings an absolute right to exploit a particular area and therefore to prohibit exports as a reciprocal concession for their acceptance of the obligation imposed on them to effect the collection and disposal of all waste oils at prices fixed by the public authorities. The Syndicat National points out that the exclusive right to collect all oils is as necessary for approved collection undertakings as it is for holders and disposal undertakings. It enables the collectors to compensate for the unprofitable activities which they are required to perform under the terms and conditions of the tender by profitable ones which, if carried out in isolation, would be directed towards... the export market, thereby creating distortion of competition and artificial trade patterns. In addition, it provides holders who are not in a position to comply with the measures adopted pursuant to Article 4 with the guarantee that a collector will collect the oils which they are required, under Article 7, to deliver to one of the undertakings referred to in Article 5. Only an administrative system of approval for collectors which includes the obligation to ensure comprehensive collection will guarantee that all the oils are collected. In other words, the implementation of Article 5 together with the prohibition on exports is necessary for the implementation of Article 7, which is in turn indispensable for..the achievement of the aims of Article 4. Finally, it is said that approved disposal undertakings, especially regenerating undertakings, must have an exhaustive right to collect waste oils in order to provide them with quantities of oils for regeneration sufficient to ensure that their facilities are profitable. Only that will enable approved regenerating undertakings to accomplish the task which the authorities have entrusted to them, a task which assists both the protection of the environment and the conservation of energy, as the Syndicat National emphasizes. (3) The suggestion that Article 5 may be interpreted as excluding exports said to be confirmed by the general scheme of the directive, which shows that the requirement of not restricting intra-Community trade is a secondary aim in relation to the protection of the environment and the conservation of energy. It is maintained that the lastnamed objective is particularly important in view of the fact that in his reply to written question No 452/81 by Mr Müller-Hermann on the recovery of used oils Mr Narjes, representing the Commission, acknowledged the importance of waste oils in view of the critical situation in the Community with regard to energy and raw materials. The protection of the environment is referred to in the second and third recitals in the preamble to the directive and a fuel supply policy in the fourth recital, whereas the free movement of oils is mentioned only in the seventh. In addition, the last-mentioned objective is not implemented in any of the articles of the directive, in contrast to the other aims. (b) I may say immediately that in my opinion each of those arguments may be refuted. (1) As far as the reference to Article 235 of the Treaty is concerned, I think that a very clear explanation is provided in the second recital of the preamble to the directive. The reason for it is simply that a Community policy for the environment was considered necessary in order to achieve the objectives of the Community only after the signature of the Treaty in 1957, which did not, therefore, include specific provisions on the subject. (2) As to the requirement of comprehensive collection, that is unquestionably a requirement of public service which Member States may lawfully impose on collectors and approved disposal undertakings when implementing Article 5. However, I consider that the directive itself envisages a way of compensating for that burden without restricting exports. Article 13 provides that “as a reciprocal concession for the obligations imposed on them by the Member States pursuant to Article 5, indemnities may be granted to collection and/or disposal undertakings for the service rendered”. Article 13 makes the granting of those indemnities conditional on the observance of various conditions so as to ensure that they do not give rise to significant distortion of competition and artificial trade patterns. Article 14 provides, in particular, that the financing of the indemnities “must be in accordance with the ‘polluter pays’ principle”. Those conditions would seem sufficient to meet the objections raised by the Syndicat National, in particular. (3) Finally, there are a number of reasons for not interpreting the directive as permitting the free movement of waste oils to be sacrificed for the protection of the environment and the conservation of energy, however laudable such aims may be. In the first place, I find that justification contrary to the wording of Article 5. First, it is not disputed that the latter provides Member States with what amounts to a solution which represents, as its first words (“where the aims... cannot otherwise be achieved”) show, the lesser evil, and it should therefore be given a restrictive interpretation. Secondly, if that provision permits concessions to be granted for particular zones and even, if necessary, exclusive concessions (“one or more undertakings..., where appropriate in the zone assigned to them”), nothing in the wording thereof permits the conclusion that it sanctions a system of exclusive concessions by zone granted in conjunction with an absolute right to exploit the area concerned, as exists under the French scheme. The difference between a relative exclusive concession and an absolute exclusive concession is that, in the first case, the holder of the exclusive concession cannot object to the sale of goods to the holder of another exclusive concession outside its zone, whereas in the second case the partitioning of zones is absolute. That interpretation would also seem difficult to reconcile with the nature of the directive, which is a harmonizing directive based on Article 100 of the Treaty. The purpose of the directive is to approximate the laws of the Member States, the disparity of which may, remember, “create unequal conditions of competition and thus directly affect the functioning of the common market” (first recital of the preamble). Therefore, a national provision which makes it impossible to export and thus removes any suggestion of a common market in the sector concerned would appear to be directly contrary to the aims of the directive as set out in the first recital of the preamble thereto. Finally, if the proposed interpretation were to be accepted the result, I think, would be that Article 5 of the directive must be void for breach of Article 34 of the Treaty, the requirements of which can certainly not, in my opinion, have been overlooked by the authors of the directive. Note that the wording of the seventh recital of the preamble on the subject is imperative: “system... which will (not) create barriers to intra-Community trade”. Moreover, the fact that the requirement of free movement: is mentioned only in the seventh recital does not mean that it amounts to a secondary objective. On the contrary, by including it, the authors of the directive surely intended that each of the provisions of the directive should be interpreted in such a way that its implementation would not restrict trade within the Community. In any case, it is not correct to say that the requirement does not appear in the main body of the directive. As I have already said, the second paragraph of Article 13 provides that the indemnities granted to undertakings which are required to fulfil public service obligations under Article 5 “must be such as not... to give rise to artificial patters of trade in the products”. The artificial nature of the trade is, in my opinion, the only restriction actually imposed by the directive on the principle of the free movement of waste oils. Consequently, even if a Member State considers it necessary for the achievement of the objectives of Articles 2 to 4, it may not implement Article 5 in a manner which is incompatible with the free circulation of waste oils. Nothing in the rules established by the directive justifies sacrificing the principle of free circulation in favour of the protection of the environment or the conservation of energy. All those objectives must be attained concurrently. Article 5 cannot be interpreted as empowering Member States to be the sole judge of what they must do to protect the environment and ensure the conservation of energy within the Community while there exists, in the directive, a harmonized system. The only measures which Member States may adopt to ensure that the aims of the directive are achieved are those fixed by the directive itself. It is only within the framework of the directive that States may take action if they wish to remain in conformity with Community law. That task should be made easier for them by the discretion which Member States enjoy as regards the choice of means to achieve the results which the directive requires. (c) Finally, according to information provided by the Commission, which was not disputed by the Syndicat National, the existence in other Member States of legislation adopted in application of the directive and in conformity with it, which is not aimed at and does not'have the effect of restricting intra-Community trade, confirms that it is possible to protect the environment and to conserve energy without having to prohibit exports of waste oils. The Luxembourg and Netherlands legislation may be cited as examples of national legislation adopted specifically in order to implement the directive. ( 23 ) According to the Grand Ducal Regulation of 26 June 1980 on the disposal of waste oils, the fact that more than one approved collector works within the same specified area does not constitute grounds for refusing the approval. Any holder of an approval may obtain, at its request, the status of approved exporter. The Netherlands Law of 11 February 1976 laying down rules on chemical waste and waste oils ( 24 ) authorizes the export of waste oils.