Case C-194/01: Action brought on 4 May 2001 by the Commission of the European Communities against the Republic of Austria
Date: 2001-07-14
Institutions: Court of Justice
Subjects: Austria, European Commission, action for failure to fulfil an obligation, dangerous substance, metal waste, waste management

C 200/52

EN

Official Journal of the European Communities

14.7.2001

Action brought on 4 May 2001 by the Commission of the
European Communities against the Republic of Austria

(Case C-194/01)

(2001/C 200/93)

An action against the Republic of Austria was brought before
the Court of Justice of the European Communities on 4 May
2001 by the Commission of the European Communities,
represented by Dr Götz zur Hausen, Legal Adviser in its Legal
Service, with an address for service in Luxembourg at the office
of Gerard Berscheid, of its Legal Service, Wagner Centre C 254,
Kirchberg, Luxembourg.

The applicant claims that the Court should:

1.

declare that the Republic of Austria has failed to fulfil its
obligations under Council Directive 75/442/EEC (1) of
15 July 1975 on waste, as amended by Council Directive
91/156/EEC (2) of 18 March 1991, in that it has not
transposed the concept of waste as that concept is laid
down by Article 1(a) of the directive, but:

— excludes in principle from the concept of waste
objects used and recovered within an establishment;

— excludes unalloyed scrap iron generally and other
waste (scrap) under certain circumstances from
application of the provisions relating to waste:

— has not transposed correctly the categories of waste
under Annex I to the directive and the ‘European
waste
catalogue’ under Commission Decision
94/3/EC of 20 December 1993 establishing a list of
wastes pursuant to Article 1(a) of Council Directive
75/442/EEC on waste;

2.

declare that, by not transposing correctly either the list of
hazardous waste under Council Decision 94/904/EC of
22 December 1994 establishing a list of hazardous waste
pursuant to Article 1(4) of Council Directive 91/689/EEC
of 12 December 1991 on hazardous waste or Annexes I
and II to that directive, the Republic of Austria has failed
to fulfil its obligations under Article 1(4) of Directive
91/689/EEC;

3.

order the Republic of Austria to pay the costs.

Pleas in law and main arguments

— Infringement of Article 1(a) of Directive 75/442/EEC

— A general presumption, as contained in Paragraph 2
the Abfallwirtschaftsgesetz (Austrian Law on
of
Waste Management),
inconsistent with the
is
requirements of the directive. Under that provision,

it is concluded from the mere fact that a substance
or object, on ceasing to be used for the purpose for
which it is intended, does not leave the establishment
in which it is located that the holder does not discard,
intend to discard or stand under an obligation to
discard that substance or object. The ultimate effect
of that provision is that substances and objects
which the holder intends to or must dispose of and
in addition fall within the categories specified in
Annex I to the framework waste directive are not
covered by the provisions on waste disposal and
recovery if they are disposed of or recovered only in
the holder’s establishment.

— The

the
exemption in Paragraph 3(3)(5) of
Abfallwirtschaftsgesetz is drafted in such broad
terms that it does not even contain a reference to
the intended use of the substances or objects or a
presumption or rule of evidence. It may be that,
because of
its specific properties and economic
value, unalloyed scrap iron is generally sold to
steel producers for use as a raw material in steel
production. However, that does not automatically
mean that it is not waste. Even a statutory presump-
tion which restricted the directive’s field of appli-
cation and resulted in substances and products that
matched the directive’s definition of waste not being
covered would be impermissible, because it would
prejudice the effectiveness of Article 175 EC and of
the directive. With regard to the exemption from
the scope of the Abfallwirtschaftsgesetz for other
waste (scrap), laid down, for the duration of control
measures, by Paragraph 3(3)(6) of that Law, the
Republic of Austria has given notice that
that
provision is to be repealed. Even if that exemption
of an entire category of waste currently has no
concrete effects because no control measures under
the Versorgungssicherungsgesetz (Law on Security
of Supplies) are in force, it is inconsistent with the
definition of the concept of waste in Article 1(a) of
the waste framework directive.

— It follows from Article 1(a) of the directive that the
question whether substances or objects fall within
one of the categories specified in Annex I to the
directive constitutes one of the two decisive criteria
for defining waste under the directive. For that
reason alone, the provisions of Annex I, which, as
an integral part of the directive, are covered by
the duty to transpose in Article 2 of Directive
91/156/EEC, must also be embodied in the national
implementing provisions. However, the Austrian
provisions in force do not refer at all to Annex I to
the waste framework directive, and the definition of
the concept of waste in those national provisions
does not correspond to the concept in the directive.

14.7.2001

EN

Official Journal of the European Communities

C 200/53

— Infringement of Article 1(4) of Directive 91/689/EEC:
Under the first indent of Article 1(4), a precise and
uniform definition of hazardous waste, required for
application of the directive, is achieved by reference to
Annexes I, II and III to the directive and the list of
hazardous waste to be drawn up in accordance with the
procedure laid down in Article 18. It follows that, in their
legislation to transpose the directive, the Member States
must take those annexes and that list as a basis for
determining the field of application of their national
provisions. The list, which is contained in Council
Decision 94/904/EC, supplements the provisions of the
directive on hazardous waste.

The possibility for the Member States to adopt stricter
protective measures in fields harmonised by Community
environmental provisions is not to be equated with an
option not to transpose such harmonisation measures.

4. Article 12 of the Trade Marks Directive provides that a
trade mark shall be ‘liable’ to revocation in specified
circumstances. When those circumstances exist, must the
court revoke the trade mark, or does the court retain any
discretion as to whether to revoke?

(1) OJ L 40, 11.2.1989, p. 1.

Action brought on 8 May 2001 by the Commission of the
European Communities against the Grand Duchy of
Luxembourg

(1) OJ L 194, 25.7.1975, p. 47.
(2) OJ L 78, 26.3.1991, p. 32.

(Case C-196/01)

(2001/C 200/95)

Reference for a preliminary ruling by the House of Lords,
by order of that court of 4 April 2001, in the case of
Scandecor Development AB and others against Scandecor
Marketing AB and another

(Case C-195/01)

(2001/C 200/94)

Reference has been made to the Court of Justice of the
European Communities by an order of the House of Lords of
4 April 2001, which was received at the Court Registry on
7 May 2001, for a preliminary ruling in the case of Scandecor
Development AB and others against Scandecor Marketing AB
and another, on the following questions:

1.

Is a trade mark to be regarded as liable to mislead the
public within the meaning of article 12(2)(b) of Council
Directive No 89/1104/EEC (1) of 21 December 1988 to
approximate the laws of the Member States relating to
trade marks (the ‘Trade Marks Directive’) if the origin of
the goods denoted by the mark is a bare exclusive
licensee?

2. What are the criteria to be applied in determining whether
a trading relationship comprises a single undertaking for
the purposes of the Trade Marks Directive?

3.

Is a company a person for the purpose of article 6(1)(a)
of the Trade Marks Directive?

An action against the Grand Duchy of Luxembourg was
brought before the Court of Justice on 8 May 2001 by the
Commission of the European Communities, represented by
H. Støvlbaek and J. Adda, acting as Agents, with an address for
service in Luxembourg.

The applicant claims that the Court should:

— declare that the Grand Duchy of Luxembourg has failed
to comply with its obligations under Article 1(a) of
Council Directive 75/442/EEC of 15 July 1975 on
waste (1), as amended by Council Directive 91/156 EC of
18 March 1991 (2) and Commission Decision 94/3/EC of
20 December 1993 establishing a list of wastes pursuant
to Article 1(a) of Council Directive 75/442/EEC on
waste (3);

— order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

— Although the Grand Duchy of Luxembourg was obliged,
under the fourth paragraph of Article 249 EC,
to
incorporate the European Waste Catalogue (EWC), for-
ming the subject-matter of Decision 94/3/EC, into its
national law, it has simply reproduced it in a ministerial
circular which is binding on the administrative authorities
but not on third parties.

— At the same time, the Grand Duchy of Luxembourg
introduced a nomenclature applying purely to Luxem-
bourg, which is totally different from the EWC. Various
operations in respect of which use of
the EWC is
precluded are linked to the implementation of national
measures designed to transpose the Community legis-
lation on waste. In addition, the coexistence of two lists
(the Luxembourg nomenclature and the EWC) between