Case C-113/02: Action brought on 27 March 2002 by the Commission of the European Communities against the Kingdom of the Netherlands
Date: 2002-06-15
Institutions: Court of Justice
Subjects: Netherlands, export of waste, waste, waste disposal, waste management

C 144/16

EN

Official Journal of the European Communities

15.6.2002

If the answer to question 1 and/or question 2 is in the
affirmative:

6.

3. Does Council Directive 89/48/EEC of 21 December 1988
on a general system for the recognition of higher-
education diplomas awarded on completion of pro-
fessional education and training of at least three years’
duration, or Council Directive 92/51/EEC of 18 June
1992 on a second general system for the recognition
of professional education and training to supplement
Directive 89/48/EEC preclude national legislation (in this
instance, the Verordnung des baden-württembergischen
Kultusministeriums zur Umsetzung der Richtlinie 89/48/
EWG des Rates vom 21. Dezember 1988 über eine
allgemeine Regelung zur Anerkennung der Hochschuldi-
plome, die eine mindestens dreijährige Berufsausbildung
abschließen, für Lehrerberufe vom 15.08.1996 (Baden-
Württemberg Ministry of Education regulation for the
teaching profession of 15.08.1996 transposing Council
Directive 89/48/EEC of 21 December 1988 on a general
system for the recognition of higher-education diplomas
awarded on completion of professional education and
training of at
‘EU-EWR-
LehrerVO’) which makes recognition of a professional
teaching qualification awarded or recognised in another
Member State of the European Union

three years’ duration,

least

If Article 3,
first paragraph, of Directive 92/51/EEC
applies to professional teaching qualifications awarded
after only two years’ higher education and training in
Austria:

In the event of failure to transpose Directive 92/51/EEC
within the period prescribed in Article 17 thereof, does
Article 3, first paragraph, under (a), of that directive give
rise to an entitlement to have a teaching qualification
awarded in a Member State treated in the same way as
the corresponding qualification for a teaching career in
the host Member State without the host Member State
being permitted — where the particular conditions are
fulfilled — first of all to require compensating measures
to be applied under Article 4 of the directive?

(1) OJ L 019 of 24.1.1989, p. 16.
(2) OJ L 209 of 24.7.1992, p. 25.

a)

b)

conditional, without exception, on completion of
higher education and training of at least three years’
duration,

requires the qualification to comprise at least two of
the subjects stipulated for the teaching profession in
question in Baden-Württemberg?

Action brought on 27 March 2002 by the Commission of
the European Communities against the Kingdom of the
Netherlands

If the answer to question 1 is in the affirmative:

4.

Is the second subparagraph of Article 1(a) of Directive
89/48/EEC to be interpreted as meaning that the qualifi-
cation for the profession of primary-school
teacher
awarded on the basis of the former two-year system of
education and training in Austria is to be treated in the
same way as a diploma within the meaning of the first
subparagraph of Article 1(a) of Directive 89/48/EEC
where the competent authority in Austria confirms that
the examination certificate awarded following education
and training of two years’ duration is recognised, for the
purposes of the application of the second subparagraph
of Article 1(a) of Directive 89/48/EEC, as being of a
level equivalent to the diploma (examination certificate)
currently awarded after three years’ study and confers the
same rights in Austria in respect of the taking up or
pursuit of the profession of primary-school teacher?

(Case C-113/02)

(2002/C 144/27)

An action against the Kingdom of the Netherlands was brought
before the Court of Justice of the European Communities
on 27 March 2002 by the Commission of the European
Communities, represented by H. van Lier, acting as Agent,
assisted by M. van Der Woude and R. Wezenbeek-Geuke,
lawyers.

If the answer to question 2 is in the affirmative:

The applicant claims that the Court should:

5.

Is Article 3, second paragraph, of Directive 92/51/EEC
to be interpreted, with regard to the recognition of
professional teaching qualifications, as meaning that the
prerequisite of a ‘post-secondary course of more than
four years’ duration,’ specified in that provision, only
encompasses the prescribed higher education and training
(higher-education studies) or as meaning that the pro-
bationary period of teaching practice (probationary ser-
vice) counts towards the ‘post-secondary course of more
than four years’ duration’?

— declare that the Kingdom of the Netherlands has failed
to fulfil
its obligations under Article 7(4) of Council
Regulation (EEC) No 259/93 (1) of 1 February 1993 on
the supervision and control of shipments of waste
within, into and out of the European Community and
Articles 1(e) and (f) and 7(1) of Council Directive 75/442/
EEC (2) of 15 July 1975 on waste, as amended by Council
Directive 91/156/EEC (3) of 18 March 1991, and under
Article 82 EC in conjunction with Article 86 EC;

15.6.2002

EN

Official Journal of the European Communities

C 144/17

— order the Kingdom of the Netherlands to pay the costs.

foreign competitors. Those rules result in a situation
whereby more waste is regarded as destined for disposal,
so that more waste is presented to AVR Chemie for
incineration.

(1) OJ 1993 L 30, p. 1.
(2) OJ 1975 L 194, p. 39.
(3) OJ 1991 L 78, p. 32.

Pleas in law and main arguments

— In cases in which 20 % of waste in the Netherlands can
be re-used and, in the country of destination, a smaller
proportion of the waste can be recovered, objections are
systematically raised. That possibility is not provided for
either in Regulation (EEC) No 259/93 or in Directive 75/
442/EEC. The Netherlands treats the extent of the recov-
ery which can be achieved by means of the processing
capacity in the Netherlands as a subjective criterion for
the current application of the fifth indent of Article 7(4)
of Regulation (EEC) No 259/93. It is not apparent from
any of the provisions of Regulation (EEC) No 259/93 that
this constitutes the objective or scope of that regulation.
On the contrary, the fifth indent of Article 7(4) provides
that the Member States are to carry out an individual test
in respect of each request for export, in the course of
which they are to consider in an objective manner — that
is to say, without regard to their own market situation —
the characteristics of that individual request.

— The Netherlands applies a criterion consisting of a
requirement for the calorific value of incineration of the
waste coupled with its chlorine content, and on that basis
draws the dividing line between recovery, with the main
use being fuel from hazardous waste, and definitive
disposal of hazardous waste. However,
in accordance
with the provisions of the regulation and of the directive,
the question whether waste is to be regarded as destined
for disposal or as destined for recovery depends chiefly
on the way in which the waste is processed. That is the
in particular, as regards the drawing of a
position,
distinction between waste for disposal,
in terms of
point D10 in Annex II A of the directive, and waste for
recovery, in terms of point R9 in Annex II B. For that
reason, it is necessary to fulfil the criteria connected with
the processing installation or the relevant use; and the
type and nature of contamination of the waste itself are
not relevant criteria for distinguishing between waste
destined for disposal and waste destined for recovery.

Reference for a preliminary ruling by the Oberlandesge-
richt Innsbruck by order of that Court of 25 March 2002
in the proceedings between Erich Gasser Gesellschaft m.
b. H. and MISAT s. r. l.

(Case C-116/02)

(2002/C 144/28)

Reference has been made to the Court of Justice of the
European Communities by order of the Oberlandesgericht
Innsbruck (Higher Regional Court, Innsbruck) of 25 March
2002, received at the Court Registry on 2 April 2002, for a
preliminary ruling in the proceedings between Erich Gasser
Gesellschaft m. b. H. and MISAT s. r. l. on the following
questions:

1. May a court which refers questions to the Court of Justice
for a preliminary ruling do so purely on the basis of a
party’s (unrefuted) submissions, whether they have been
contested or not contested (on good grounds), or is it
first required to clarify those questions as regards the
facts by the taking of appropriate evidence (and if so, to
what extent)?

2. May a court other than the court first seised, within the
meaning of the first paragraph of Article 21 of the
Brussels Convention on Jurisdiction and the Enforcement
Judgments in Civil and Commercial Matters [‘the
of
Brussels Convention’], review the jurisdiction of the court
first seised if the second court has exclusive jurisdiction
pursuant to an agreement conferring jurisdiction under
Article 17 of the Brussels Convention, or must the agreed
second court proceed in accordance with Article 21 of
the Brussels Convention notwithstanding the agreement
conferring jurisdiction?

— The Commission considers that the rules contained in
Chapter 8.3 of Part I and Chapter 18 of Part II of the
Multi-annual Plan concerning hazardous waste for the
period 1997-2007 are inconsistent with the obligations
imposed on the Netherlands by Article 86 EC, inasmuch
as the effect of those rules is to protect and strengthen
the position of AVR Chemie to the detriment of its

3.

Can the fact that court proceedings in a Contracting State
take an unjustifiably long time (for reasons largely
unconnected with the conduct of the parties), so that
material detriment may be caused to one party, have the
consequence that the court other than the court first
seised, within the meaning of Article 21, is not allowed
to proceed in accordance with that provision?