CELEX: C2002/144/27
Language: en
Date: 2002-06-15 00:00:00
Title: Case C-113/02: Action brought on 27 March 2002 by the Commission of the European Communities against the Kingdom of the Netherlands

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                  6.    If Article 3, first paragraph, of Directive 92/51/EEC
affirmative:                                                                   applies to professional teaching qualifications awarded
                                                                               after only two years’ higher education and training in
3.    Does Council Directive 89/48/EEC of 21 December 1988                     Austria:
      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’                In the event of failure to transpose Directive 92/51/EEC
      duration, or Council Directive 92/51/EEC of 18 June                      within the period prescribed in Article 17 thereof, does
      1992 on a second general system for the recognition                      Article 3, first paragraph, under (a), of that directive give
      of professional education and training to supplement                     rise to an entitlement to have a teaching qualification
      Directive 89/48/EEC preclude national legislation (in this               awarded in a Member State treated in the same way as
      instance, the Verordnung des baden-württembergischen                     the corresponding qualification for a teaching career in
      Kultusministeriums zur Umsetzung der Richtlinie 89/48/                   the host Member State without the host Member State
      EWG des Rates vom 21. Dezember 1988 über eine                            being permitted — where the particular conditions are
      allgemeine Regelung zur Anerkennung der Hochschuldi-                     fulfilled — first of all to require compensating measures
      plome, die eine mindestens dreijährige Berufsausbildung                  to be applied under Article 4 of the directive?
      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               (1) OJ L 019 of 24.1.1989, p. 16.
                                                                         (2) OJ L 209 of 24.7.1992, p. 25.
      system for the recognition of higher-education diplomas
      awarded on completion of professional education and
      training of at least three years’ duration, ‘EU-EWR-
      LehrerVO’) which makes recognition of a professional
      teaching qualification awarded or recognised in another
      Member State of the European Union
      a)    conditional, without exception, on completion of
            higher education and training of at least three years’
            duration,
      b)    requires the qualification to comprise at least two of       Action brought on 27 March 2002 by the Commission of
            the subjects stipulated for the teaching profession in       the European Communities against the Kingdom of the
            question in Baden-Württemberg?                                                           Netherlands
If the answer to question 1 is in the affirmative:
4.    Is the second subparagraph of Article 1(a) of Directive                                     (Case C-113/02)
      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                                       (2002/C 144/27)
      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            An action against the Kingdom of the Netherlands was brought
      and training of two years’ duration is recognised, for the         before the Court of Justice of the European Communities
      purposes of the application of the second subparagraph             on 27 March 2002 by the Commission of the European
      of Article 1(a) of Directive 89/48/EEC, as being of a              Communities, represented by H. van Lier, acting as Agent,
      level equivalent to the diploma (examination certificate)          assisted by M. van Der Woude and R. Wezenbeek-Geuke,
      currently awarded after three years’ study and confers the         lawyers.
      same rights in Austria in respect of the taking up or
      pursuit of the profession of primary-school teacher?
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               —     declare that the Kingdom of the Netherlands has failed
      professional teaching qualifications, as meaning that the                to fulfil its obligations under Article 7(4) of Council
      prerequisite of a ‘post-secondary course of more than                    Regulation (EEC) No 259/93 (1) of 1 February 1993 on
      four years’ duration,’ specified in that provision, only                 the supervision and control of shipments of waste
      encompasses the prescribed higher education and training                 within, into and out of the European Community and
      (higher-education studies) or as meaning that the pro-                   Articles 1(e) and (f) and 7(1) of Council Directive 75/442/
      bationary period of teaching practice (probationary ser-                 EEC (2) of 15 July 1975 on waste, as amended by Council
      vice) counts towards the ‘post-secondary course of more                  Directive 91/156/EEC (3) of 18 March 1991, and under
      than four years’ duration’?                                              Article 82 EC in conjunction with Article 86 EC;
 ---pagebreak--- 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             Reference for a preliminary ruling by the Oberlandesge-
      systematically raised. That possibility is not provided for          richt Innsbruck by order of that Court of 25 March 2002
      either in Regulation (EEC) No 259/93 or in Directive 75/             in the proceedings between Erich Gasser Gesellschaft m.
      442/EEC. The Netherlands treats the extent of the recov-                                  b. H. and MISAT s. r. l.
      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)                                   (Case C-116/02)
      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.                                   (2002/C 144/28)
      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             Reference has been made to the Court of Justice of the
      is to say, without regard to their own market situation —            European Communities by order of the Oberlandesgericht
      the characteristics of that individual request.                      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
—     The Netherlands applies a criterion consisting of a                  questions:
      requirement for the calorific value of incineration of the
      waste coupled with its chlorine content, and on that basis           1.   May a court which refers questions to the Court of Justice
      draws the dividing line between recovery, with the main                   for a preliminary ruling do so purely on the basis of a
      use being fuel from hazardous waste, and definitive                       party’s (unrefuted) submissions, whether they have been
      disposal of hazardous waste. However, in accordance                       contested or not contested (on good grounds), or is it
      with the provisions of the regulation and of the directive,               first required to clarify those questions as regards the
      the question whether waste is to be regarded as destined                  facts by the taking of appropriate evidence (and if so, to
      for disposal or as destined for recovery depends chiefly                  what extent)?
      on the way in which the waste is processed. That is the
      position, in particular, as regards the drawing of a                 2.   May a court other than the court first seised, within the
      distinction between waste for disposal, in terms of                       meaning of the first paragraph of Article 21 of the
      point D10 in Annex II A of the directive, and waste for                   Brussels Convention on Jurisdiction and the Enforcement
      recovery, in terms of point R9 in Annex II B. For that                    of Judgments in Civil and Commercial Matters [‘the
      reason, it is necessary to fulfil the criteria connected with             Brussels Convention’], review the jurisdiction of the court
      the processing installation or the relevant use; and the                  first seised if the second court has exclusive jurisdiction
      type and nature of contamination of the waste itself are                  pursuant to an agreement conferring jurisdiction under
      not relevant criteria for distinguishing between waste                    Article 17 of the Brussels Convention, or must the agreed
      destined for disposal and waste destined for recovery.                    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                 3.   Can the fact that court proceedings in a Contracting State
      Chapter 8.3 of Part I and Chapter 18 of Part II of the                    take an unjustifiably long time (for reasons largely
      Multi-annual Plan concerning hazardous waste for the                      unconnected with the conduct of the parties), so that
      period 1997-2007 are inconsistent with the obligations                    material detriment may be caused to one party, have the
      imposed on the Netherlands by Article 86 EC, inasmuch                     consequence that the court other than the court first
      as the effect of those rules is to protect and strengthen                 seised, within the meaning of Article 21, is not allowed
      the position of AVR Chemie to the detriment of its                        to proceed in accordance with that provision?