4.

The French Government attaches particular importance to the argument that it may clearly be seen from the relevant legislation as a whole that there is no prohibition on exports; in advancing this argument it has in mind a circular supplementing the decree and the implementing order, which deals with supervision of compliance with the rules on collection and disposal of waste oil and which the French Ministry of Economic Affairs sent to the competent authorities on 26 October 1982. Let me say straight away that, after mentioning the development of export routes designed to circumvent the statutory obligations governing the collection and disposal of waste oil. the circular states that exports must be strictly controlled and that exports to nonmember countries are not permitted. It does, however, provide that holders of waste oil and collectors approved by the French autl orities may export to other Member States, but subject to the restriction that only disposal undertakings authorized in other Member States (which must be proved by attestation) may be the recipients of such exports. As members of the Court are aware, the Commission does not consider this adequate either in form or as regards the substance of the legislation. (a) In my opinion, the Commission is right as far as the first point is concerned. The important thing is that the circular does not have the same status as the decree and the implementing orders. In view of the obvious interpretation of the decree and the orders, this may create doubt and uncertainty about whether exports are possible, which may have an inhibiting effect on exports, especially when one considers that it is stated at the end of the circular that: ‘Il va de soi que ces mesures transitoires — qui pourraient être réexaminées à la lumière des constations faites par le service — sont sans préjudice de la position du Gouvernement sur la licéité des exportations en cause au regard du droit communautaire.’ Another important point is that the circular was not published, so that it is not certain whether all interested parties were informed about it and could take advantage of it. Moreover it has been made clear in judgments of the Court that such considerations are relevant in appraising the way in which Member States apply the Treaty. I am thinking for example of the judgment in Case 167/73 ( 8 ) ([1974] ECR 359, paragraphs 41 and 42 at p. 372). As the Court is aware, in that judgment it was held that the maintenance of the French Code du Travail Maritime in an unamended form was objectionable — because it contravened the prohibition of discrimination laid down in the Treaty — in spite of the fact that the relevant Community law (Article 48 of the Treaty and Regulation No 1612/68) had direct effect and overrode French law, precisely because it allowed doubt and uncertainty to persist which could not be eliminated by purely administrative directions of an internal and oral nature. The same argument must undoubtedly apply in a case such as the present one, involving unpublished administrative instructions which may be revoked at any time. Indeed, even the French Government does not seem to ignore this. The Court has been told that the decree and orders implementing it (which were described as incomplete in this regard) are to be amended by the incorporation of the provisions contained in the circular (which has not happened yet but is to be done by the end of the year). (b) In view of those findings, which are basically sufficient to support a charge of infringement of the Treaty, no substantive examination of the circular is really required. However, I would like to say a few words about it precisely because the French Government intends to incorporate the provisions of the circular into its decree, and, once that is done, the question will certainly arise whether everything which is necessary to comply with Article 34 of the EEC Treaty has thus been done. The Commission considers the circular insufficient in several respects: first, because it provides for exports only to the holders of waste oil and collectors approved in France and not by French disposal undertakings and non-approved collectors; secondly, because it allows waste oil to be exported only to approved disposal undertakings in other Member States and thus not to collectors; and lastly because it requires the production of an attestation showing that the recipient is authorized to dispose of waste oil. (aa) Turning first to undertakings permitted to export, I would say that at the very least the fact that disposal undertakings are not mentioned (and therefore excluded) is objectionable. It is objectionable even though it may rightly be asked whether it is economically worth reselling waste oil, since presumably it is generally in the interests of undertakings to make use themselves of all the oil delivered to them in order to utilize their plant to best effect. But because the possibility cannot be completely ruled out that in certain cases it may be worth reselling oil to undertakings in other Member States, the categorical exclusion of such undertakings from export activities is hard to justify. On the other hand, I see no grounds for criticizing the exclusion of exports by unauthorized collectors. That exclusion must be considered in connection with the French legislation whereby, in accordance with Article 5 of the directive, France is divided into collecting zones and in each zone an undertaking has been granted an exclusive right to collect waste oil. That must necessarily mean that unauthorized collectors may not do business in the zones in question and also that they may not carry on such business for export purposes since otherwise the legislation would not achieve its purpose. In its second set of written submissions the Commission has indeed raised the question whether proper use was made in France of the possibility afforded by Article 5 since, referring to the phrase contained in Article 5 — ‘Where the aims defined in Articles 2, 3 and 4 cannot otherwise be achieved...’ — it took the view that it had not been shown that the division of France into zones and the grant of exclusive collecting rights were necessary for the purposes of the phrase quoted. However, the French Government rightly objected that that point had not been raised by the Commission in the administrative procedure or in the application, so that, since it was raised only in the reply, it must be treated as inadmissible. The Commission was clearly not deaf to those arguments because it expressly stated at the hearing that the French provisions on the establishment of zones and the grant of exclusive collection rights should not be called in question (which is apparently what Mr Narjes, a Member of the Commission, stated in reply to a question). Accordingly, in my opinion the right of unauthorized collectors to export really admits of no other view than that expressed above. (bb) As regards the question whether exports are rightly restricted to deliveries to approved disposal undertakings in other Member States (thus excluding authorized collectors in other Member States), no conclusive answer is to be found in the judgment in Case 172/82. ( 9 ) The fact that the judgment in that case deals with authorized disposal or regenerating undertakings in another Member State is simply explained by the limited scope of the questions submitted to the Court which referred only to the impossibility of delivering oil to a disposal or regenerating undertaking in a Member State of the EEC (see [1983] ECR 555, at page 558). ( 10 ) Nor can any decisive conclusion be drawn from the French legislation on exclusive collection franchises in certain zones or from Article 7 of the directive, which provides that: ‘A person holding waste oils must, if he is unable to comply with the measures taken pursuant to Article 4, place them at the disposal of the undertaking or undertakings referred to in Article 5.’ On the first point it must simply be remarked that it is not a matter of interfering in the business of collecting waste oil (which is not in fact a crossfrontier matter) but of the possibility, in particular for the holders of waste oil, of exporting such oil. If, however, holders of waste oil may deliver oil to collectors outside their zone without infringing the aforesaid exclusive right, it is hard to see why some other arrangement should apply to exports which, as is clearly stated in the preamble to the directive, may not be impeded, and which therefore certainly overrides the exclusive collection right. As regards the second point, the defendant government cannot deny that the only obligation arising under Article 7 is to place waste oil at the disposal of undertakings having a permit to collect it, but that no inference may be drawn from it, when read with Article 5, regarding the place where those undertakings must be established. In this connection the defendant argues on the basis of having effective control of the disposal of waste oil, to which the preamble to the directive indeed refers. The defendant also argues that it is simpler and more efficient to check a small number of disposal undertakings. Reservations about having too many intermediate stages were also expressed by the Italian Government in Case 240/83. ( 11 ) Lastly, as may be seen from studies conducted in 1980 and 1983, negligence in the implementation of the directive has been found in other Member States as a result of which a considerable proportion of the waste oil produced — 40% — was not disposed of properly and was perhaps burnt. To that argument it may be replied in particular that improper implementation of the directive by other Member States can certainly not justify conduct on the part of the defendant which is contrary to the Treaty with regard to exports. It is a matter for the Commission, exercising its supervisory duties, to bring it to an end. It is also unclear why the involvement of foreign collectors, for whose proper conduct the relevant Member State is responsible, should jeopardize the attainment of the aims of the directive. Consequently, there is no justification for exports of waste oil being limited to deliveries to approved disposal undertakings in other Member States. (cc) Finally, the circular requires the exporter to present an attestation showing that the recipient is authorized to dispose of waste oil. Assuming that the freedom to export should be extended to cover deliveries to foreign waste oil collectors, that requirement must clearly apply to them as well. Of course such attestations give no indication of the actual whereabouts of the waste oil. Therefore its efficacity as a means of control may be doubtful and it may be argued that it is sufficient for the name and address of the recipient to be stated, since this enables the necessary checks on the whereabouts of the oil to be carried out in the State to which the oil is to be sent and which is responsible for it as soon as it crosses the frontier. On the other hand, the Commission itself gave an affirmative answer to the question whether it is permissible, in the interests of implementing the directive effectively, to prohibit exports to undertakings having no permit to collect or dispose of waste oil. However, if such a distinction can be made when waste oil leaves a Member State, then it must, of course, also be possible at that moment to ascertain whether the authorization requirement is fulfilled, and in that regard it is not sufficient for administrative assistance to be provided afterwards, on the basis of the information provided to the customs authorities. Furthermore, it may also be readily assumed — and the French Government is indeed right on this point — that such attestations can be procured without any particular difficulties or costs which might hinder exports. That at any rate will be the case if a contract of sale has already been concluded with a foreign purchaser prior to delivery, which should be a feature of any serious export transaction, or if there is a longstanding business relationship. I therefore consider that the requirement in question is justified having regard to the proper implementation of the directive and that it is not a factor which makes exports more difficult or hinders them and against which an objection ought to be raised under Article 34 of the Treaty.