CELEX: 62002CJ0277
Language: en
Date: 2004-12-16
Title: Judgment of the Court (First Chamber) of 16 December 2004. # EU-Wood-Trading GmbH v Sonderabfall-Management-Gesellschaft Rheinland-Pfalz mbH. # Reference for a preliminary ruling: Oberverwaltungsgericht Rheinland-Pfalz - Germany. # Environment - Waste - Regulation (EEC) No 259/93 on shipments of waste - Waste intended for recovery - Objections - Powers of the authority of dispatch - Recovery contravening the requirements of Article 4 of Directive 75/442/EEC or those of national provisions - Power of the authority of dispatch to raise such objections. # Case C-277/02.

Case C-277/02
      EU-Wood-Trading GmbH
      v
      Sonderabfall-Management-Gesellschaft Rheinland-Pfalz mbH
      (Reference for a preliminary ruling from the Oberverwaltungsgericht Rheinland Pfalz)
      (Environment – Waste – Regulation (EEC) No 259/93 on shipments of waste – Waste intended for recovery – Objections – Powers of the authority of dispatch – Recovery contravening the requirements of Article 4 of Directive 75/442/EEC or those of national provisions – Power of  the authority of dispatch to raise such objections)
      Summary of the Judgment
      1.        Environment – Waste – Regulation No 259/93 on shipments of waste – Waste for recovery – Notification procedure applicable
            to shipments between Member States – System for objections raised against a shipment – Objections based on considerations
            connected both to the transport and to the recovery of the waste – Whether permissible
      (Council Regulation No 259/93, Art. 7(4)(a), first indent; Council Directive 75/442, Art. 7)
      2.        Environment – Waste – Regulation No 259/93 on shipments of waste – Waste for recovery – Notification procedure applicable
            to shipments between Member States – System for objections raised against a shipment – Objections raised by the competent
            authority of dispatch – Assessment of the effects of the recovery on health and the environment in the State of destination
            – Taking into consideration of stricter criteria in force in the State of dispatch – Whether permissible  – Conditions
      (Council Regulation No 259/93, Art. 7(4)(a), first indent; Council Directive 75/442, Art. 7)
      3.        Environment – Waste – Regulation No 259/93 on shipments of waste – Waste for recovery – Notification procedure applicable
            to shipments between Member States – System for objections raised against a shipment – Objections of the competent authority
            of dispatch based on the non-compliance of the recovery of the waste with the legal provisions of the State of dispatch –
            Not  permissible
      (Council Regulation No 259/93, Art. 7(4)(a), second indent)
      1.        The first indent of Article 7(4)(a) of Regulation No 259/93 on the supervision and control of shipments of waste within, into
         and out of the European Community, as amended by Decisions 98/368 and 1999/816, under which the competent authorities of dispatch
         and of destination are empowered to raise, pursuant to Directive 75/442, reasoned objections to a shipment of waste for recovery,
         is to be interpreted as meaning that such objections may be based on considerations connected not only to the actual transport
         of the waste in each competent authority’s area of jurisdiction but also on the recovery planned for that shipment. 
      
      (see para. 43, operative part 1)
      2.        The first indent of Article 7(4)(a) of Regulation No 259/93 on the supervision and control of shipments of waste within, into
         and out of the European Community, as amended by Decisions 98/368 and 1999/816, under which the competent authorities of dispatch
         and destination are empowered to raise, pursuant to Directive 75/442, reasoned objections to a shipment of waste for recovery,
         is to be interpreted as meaning that for the purposes of an objection to a shipment of waste the competent authority of dispatch
         may, in assessing the effects on health and the environment of the recovery envisaged at the destination, provided it complies
         with the principle of proportionality, rely on the criteria to which, to avoid such effects, the recovery of waste is subject
         in the State of dispatch, even where those criteria are stricter than those in force in the State of destination. 
      
      (see para. 54, operative part 2)
      3.        The second indent of Article 7(4)(a) of Regulation No 259/93 on the supervision and control of shipments of waste within,
         into and out of the European Community, as amended by Decisions 98/368 and 1999/816, under which the competent authorities
         of dispatch and destination are empowered to raise reasoned objections to a shipment of waste for recovery if that shipment
         does not comply with the laws and regulations for protection of the environment, public order, public safety or health protection,
         is to be interpreted as meaning that a competent authority of dispatch may not raise an objection to a shipment of waste based
         on the fact that the planned recovery does not comply with those provisions.
      
      (see para. 60, operative part 3)

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            JUDGMENT OF THE COURT (First Chamber)16 December 2004(1)
         
         
            
         
               (Environment  –  Waste  –  Regulation (EEC) No 259/93 on shipments of waste  –  Waste intended for recovery  –  Objections  –  Powers of the authority of dispatch  –  Recovery contravening the requirements of Article 4 of Directive 75/442/EEC or those of national provisions  –  Power of the authority of dispatch to raise such objections)
               
             In Case C-277/02,
             REFERENCE for a preliminary ruling under Article 234 EC from the Oberverwaltungsgericht Rheinland-Pfalz (Germany), made by
            decision of 3 July 2002, received on 29 July 2002, in the proceedings:
            
            
            
            EU-Wood-Trading GmbH
            
            v
            
            Sonderabfall-Management-Gesellschaft Rheinland-Pfalz mbH,
            
            
            
            
            THE COURT (First Chamber),,
            
             composed of: P. Jann, President of the Chamber, A. Rosas, R. Silva de Lapuerta, K. Lenaerts and K. Schiemann (Rapporteur),
            Judges,
            
             Advocate General: P. Léger,Registrar: L. Hewlett, Administrator,
             having regard to the written procedure and further to the hearing on 27 May 2004,after considering the observations submitted on behalf of:
            
            –
             EU-Wood-Trading GmbH, by T. Pschera and B. Enderle, Rechtsanwälte,
            
            –
             Sonderabfall-Management-Gesellschaft Rheinland-Pfalz mbH, by C. v. der Lühe, Rechtsanwalt,
            
            –
             the Danish Government, by J. Molde, acting as Agent,
            
            –
             the Austrian Government, by E. Riedl, acting as Agent,
            
            –
             the Commission of the European Communities, by U. Wölker and M. Konstantinidis, acting as Agents,
            
            
            
            after hearing the Opinion of the Advocate General at the sitting on 23 September 2004,
         gives the following
         
         
         Judgment
         1
            
          The request for a preliminary ruling concerns the interpretation of the first and second indents of Article 7(4)(a) of Council
         Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of
         the European Community (OJ 1993 L 30, p. 1), as amended by Commission Decisions 98/368/EC of 18 May 1998 (OJ 1998 L 165, p.
         20) and 1999/816/EC of 24 November 1999 (OJ 1999 L 316, p. 45), (hereinafter ‘the Regulation’).
         
         
         
         2
            
          That request was submitted in the course of an action between EU‑Wood‑Trading GmbH, established in Bürstadt (Germany) (hereinafter
         ‘EU‑Wood‑Trading’) against Sonderabfall-Management-Gesellschaft Rheinland-Pfalz mbH, regarding objections raised by the latter
         against the shipment of 3 500 tonnes of wood waste which EU‑Wood‑Trading was envisaging making to Italy.
         
         
            
               Legal framework
            Community legislation
         
         3
            
          The essential objective of Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39), as amended by Council
         Directive 91/156/EEC of 18 March 1991 (OJ 1991 L 78, p. 32), and by Commission Decision 96/350/EC of 24 May 1996 (OJ 1996
         L 135, p. 32), (hereinafter ‘the Directive’) is the protection of human health and the environment against harmful effects
         caused by the collection, transport, treatment, storage and tipping of waste. In particular, the fourth recital in the preamble
         to that Directive states that the recovery of waste and the use of recovered materials should be encouraged in order to conserve
         natural resources. 
         
         
         
         4
            
          Article 1(e) of the Directive defines ‘disposal’ as ‘any of the operations provided for in Annex II A’ and Article 1(f) defines
         ‘recovery’ as ‘any of the operations provided for in Annex II B’. 
         
         
         
         5
            
          The first subparagraph of Article 4 of the Directive provides: 
         ‘Member States shall take the necessary measures to ensure that waste is recovered or disposed of without endangering human
         health and without using processes or methods which could harm the environment, and in particular:
         
         
         
          
         –
            without risk to water, air, soil and plants and animals,
         
         
         
         
          
         –
            without causing a nuisance through noise or odours,
         
         
         
         
          
         –
            without adversely affecting the countryside or places of special interest.’
         
         
         
         
         
         6
            
          Under Article 7(1) of the Directive the competent authorities designated by the Member States must, in order to attain the
         objectives referred to in, among others, Article 4, draw up as soon as possible one or more waste management plans. Under
         Article 7(3) Member States may take the measures necessary to prevent movements of waste which are not in accordance with
         their waste management plans.
         
         
         
         7
            
          The Regulation governs, in particular, the supervision and control of shipments of waste between Member States.
         
         
         
         8
            
          The ninth recital in the preamble to the Regulation states:
         ‘… shipments of waste must be subject to prior notification to the competent authorities enabling them to be duly informed
         in particular of the type, movement and disposal or recovery of the waste, so that these authorities may take all necessary
         measures for the protection of human health and the environment, including the possibility of raising reasoned objections
         to the shipment’. 
         
         
         
         9
            
          Article 2 of the Regulation provides:
         ‘For the purposes of this Regulation: 
         …
         (b)     competent authorities means the competent authorities designated by either the Member States in accordance with Article 36
         or non-Member States; 
         (c)     competent authority of dispatch means the competent authority, designated by the Member States in accordance with Article
         36, for the area from which the shipment is dispatched …; 
         (d)     competent authority of destination means the competent authority, designated by the Member States in accordance with Article
         36, for the area in which the shipment is received …;
         (e)     competent authority of transit means the single authority designated by Member States in accordance with Article 36 for the
         State through which the shipment is in transit; 
         …
         (g)     notifier means any natural person or corporate body to whom or to which the duty to notify is assigned, that is to say the
         person … who proposes to ship waste or have waste shipped …; 
         (i)     disposal is as defined in Article 1(e) of Directive 75/442/EEC; 
         …
         (k)     recovery is as defined in Article 1(f) of Directive 75/442/EEC;
         …’ 
         
         
         
         10
            
          Title II of the Regulation, entitled ‘Shipments of waste between Member States’, contains, among other things, two separate
         chapters, one dealing with the procedure which applies to shipments of waste for disposal (Chapter A, Articles 3 to 5) and
         the other dealing with the procedure which applies to shipments of waste for recovery (Chapter B, Articles 6 to 11). 
         
         
         
         11
            
          Under the provisions of Article 6(1) of the Regulation, where the waste producer or holder intends to ship waste for recovery
         listed in Annex III to the Regulation (orange waste list) from one Member State to another and/or pass it in transit through
         one or several other Member States, he shall notify the competent authority of destination and send copies of the notification
         to the competent authorities of dispatch and transit and to the consignee. 
         
         
         
         12
            
          Under Article 6(3) of the Regulation, notification is to be effected by means of the consignment note which is to be issued
         by the competent authority of dispatch. Article 6(5) specifies the information which the notifier must supply on the consignment
         note, among which is information concerning the operations involving recovery as contained in Annex II B to the Directive.
         
         
         
         13
            
          Under Article 6(6) of the Regulation, the notifier must conclude a contract with the consignee for the recovery of the waste
         and a copy of this contract must be supplied to the competent authority at its request. 
         
         
         
         14
            
          Under Article 6(8) of the Regulation, a competent authority of dispatch may, in accordance with national legislation, decide
         to transmit the notification itself instead of the notifier to the competent authority of destination, with copies to the
         consignee and to the competent authority of transit. 
         
         
         
         15
            
          Article 7(2) of the Regulation lays down the time-limit and the rules and procedures with which the competent authorities
         of destination, dispatch and transit must comply to object to notified planned shipments of waste for recovery. That provision
         provides, in particular, that objections must be based on Article 7(4). 
         
         
         
         16
            
          Article 7(4) of the Regulation provides: 
         
         ‘(a)
            The competent authorities of destination and dispatch may raise reasoned objections to the planned shipment: 
         
         
         
          
         
            
               –
                  in accordance with Directive 75/442/EEC, in particular Article 7 thereof, or
               
         
         
         
         
          
         
            
               –
                  if it is not in accordance with national laws and regulations relating to environmental protection, public order, public safety
                     or health protection, or
                  
               
         
         
         
         
          
         
            
               –
                  if the notifier or the consignee has previously been guilty of illegal trafficking. In this case, the competent authority
                     of dispatch may refuse all shipments involving the person in question in accordance with national legislation, or
                  
               
         
         
         
         
          
         
            
               –
                  if the shipment conflicts with obligations resulting from international conventions concluded by the Member State or Member
                     States concerned, or
                  
               
         
         
         
         
          
         
            
               –
                  if the ratio of the recoverable and non-recoverable waste, the estimated value of the materials to be finally recovered or
                     the cost of the recovery and the cost of the disposal of the non-recoverable fraction do not justify the recovery under economic
                     and environmental considerations.
                  
               
         
         
         
         
         (b)
            The competent authorities of transit may raise reasoned objections to the planned shipment based on the second, third and
               fourth indents of (a).’
            
         
         
         
         
         17
            
          Article 26 of the Regulation provides: 
         ‘1.     Any shipment of waste effected: 
         ...
         (c)     with consent obtained from the competent authorities concerned through falsification, misrepresentation or fraud; or
         …
         (e)     which results in disposal or recovery in contravention of Community or international rules;
         …         shall be deemed to be illegal traffic.’
         
         
         
         18
            
          Under Article 30(1) of the Regulation: 
         ‘Member States shall take the measures needed to ensure that waste is shipped in accordance with the provisions of this Regulation.
         Such measures may include inspections of establishments and undertakings, in accordance with Article 13 of Directive 75/442/EEC,
         and spot checks of shipments.’
         
         
         
         19
            
          Article 34 of the Regulation provides:
         ‘1.     Without prejudice to the provisions of Article 26 and to Community and national provisions concerning civil liability and
         irrespective of the point of disposal or recovery of the waste, the producer of that waste shall take all the necessary steps
         to dispose of or recover or to arrange for disposal or recovery of the waste so as to protect the quality of the environment
         …
          2.       Member States shall take all necessary steps to ensure that the obligations laid down in paragraph 1 are carried out.’
         
         
         
         20
            
          Article 36 of the Regulation provides:
         ‘Member States shall designate the competent authority or authorities for the implementation of this Regulation. A single
         competent authority of transit shall be designated by each Member State.’
         
         National legislation
         
         21
            
          Paragraph 5(3) of the Gesetz zur Förderung der Kreislaufwirtschaft und Sicherung der umweltverträglichen Beseitigung von Abfällen
         (Law to promote recycling and to ensure environmentally friendly waste disposal) of 27 September 1994 (BGBl.1994 I, p. 2705,
         hereinafter ‘the Law of 27 September 1994’) prohibits any recovery of waste which leads to an increase in the concentration
         of pollutants in the closed substance cycle.
         
         
         
         22
            
          For the Land Rhineland-Palatinate, Sonderabfall-Management-Gesellschaft Rheinland-Pfalz mbH is responsible for organising
         the disposal of toxic waste.
         
         The main proceedings and the questions referred for a preliminary ruling
         
         23
            
          On 23 November 1999, EU‑Wood‑Trading notified Sonderabfall-Management-Gesellschaft Rheinland‑Pfalz mbH, as competent authority
         of dispatch, of its intention to transport 3 500 tonnes of wood waste to the undertaking Frati Luigi de Pomponesco, established
         in Italy.
         
         
         
         24
            
          According to that notification, the waste in question consisted, particularly, of treated or painted wood from demolitions,
         from furniture or from joinery off-cuts. It was intended that it be recovered for the production of chipboard panels. 
         
         
         
         25
            
          The documents annexed to the notification included a description of the recovery operation, statements certifying that the
         Italian authorities of destination had no objections to the import of that used wood and a laboratory report in which an analysis
         of the waste showed a lead content of 47 mg per kilogram of dry material.
         
         
         
         26
            
          By decision of 17 January 2000, the competent authority of dispatch objected to that shipment under the first and second indents
         of Article 7(4)(a) of the Regulation. The objection was based on the fact that, in view of the lead content of the waste in
         question, which exceeded a reference value fixed in a guideline of the Environment Ministry of the Land Rhineland-Palatinate,
         the recovery of that waste could not be carried out without endangering human health and harming the environment, contrary
         to the requirements both of the Directive and of the Law of 27 September 1994.
         
         
         
         27
            
          EU‑Wood‑Trading lodged an opposition with the competent authority of dispatch against those objections and produced another
         analysis of the waste showing, per kilogram of dry material, a lead content of 23 mg and an arsenic content of 3.4 mg. That
         opposition was rejected on 5 July 2000.
         
         
         
         28
            
          The action brought against that decision by EU‑Wood-Trading before the Verwaltungsgericht (Administrative Court) Mainz (Germany)
         was dismissed by judgment of 16 October 2001. EU‑Wood‑Trading appealed against that judgment to the Oberverwaltungsgericht
         (Higher Administrative Court) Rheinland-Pfalz. It claimed, in essence, that the competent authority of dispatch could not
         raise, against a shipment of waste for recovery, objections which relate, not to the transport of that waste, but to its recovery
         in another Member State.
         
         
         
         29
            
          In those circumstances, the Oberverwaltungsgericht Rheinland-Pfalz, considering that the outcome of the action before it depended
         on an interpretation of Community law, decided to stay the proceedings and to refer the following questions to the Court for
         a preliminary ruling:
         ‘1.     Under the first indent of Article 7(4)(a) of Council Regulation (EEC) No 259/93 … can an objection to the shipment of waste
         for recovery be raised on the ground that the planned recovery contravenes the requirement arising from the first paragraph
         of Article 4 of Directive 75/442 … for waste to be recovered in a manner which is compatible with health and environmental
         imperatives?
          2.       If so, can such an objection be raised not only by the authority of destination but also by the authority of dispatch?
          3.       If so, is the authority of dispatch entitled to base its assessment of whether the planned recovery of the waste at the place
         of destination is compatible with health and environmental imperatives on the standards applicable in the State of dispatch
         even where they are higher than the standards applicable in the State of destination?
          4.       Under the second indent of Article 7(4)(a) of Regulation No 259/93, can an objection to the shipment of waste for recovery
         be raised on the ground that the planned recovery contravenes national laws and regulations relating to environmental protection,
         public order, public safety or health protection?
          5.       If so, can the authority of dispatch raise such an objection on the ground that the recovery contravenes national laws and
         regulations in force at the place of dispatch?’
         
         The questions referred for a preliminary rulingThe first and second questions
         
         30
            
          By its first and second questions, which it is appropriate to consider together, the referring court is asking, in essence,
         whether the objections to a shipment of waste which the competent authorities of dispatch and destination are entitled to
         raise under the first indent of Article 7(4)(a) of the Regulation can be based on considerations connected not only to the
         actual transport of the waste in each competent authority’s area of jurisdiction, but also to the recovery planned for that
         shipment. 
         
         
         
         31
            
          It must be noted at the outset that the Regulation does not define the term ‘shipment’. Since other provisions of the Regulation,
         particularly Article 7(3), use the expression ‘transport of waste’, the term ‘shipment’ in Article 7(4) of the Regulation
         cannot necessarily be confined to the transport of the waste.
         
         
         
         32
            
          It is appropriate, therefore, to place the term ‘shipment’ in its context and to interpret it according to the spirit and
         purpose of the provisions in question in order to determine whether they permit the raising of objections to a shipment of
         waste based on the recovery planned in the State of destination.
         
         
         
         33
            
          It must be observed, as a preliminary point, that the question of shipments of waste is regulated by harmonisation at Community
         level by the Regulation, in order to ensure the protection of the environment (Case C-324/99 DaimlerChrysler [2001] ECR I-9897, paragraph 42). 
         
         
         
         34
            
          The conditions and procedures laid down by the Regulation were adopted with a view to ensuring the protection of the environment,
         taking account of objectives falling within the scope of environmental policy such as the principles of proximity, priority
         for recovery and self-sufficiency at Community and national levels. In particular, they enable the Member States, for the
         purposes of implementing those principles, to take measures to prohibit generally or partially or to object systematically
         to and oppose shipments of waste which are not in conformity with the Directive. The Regulation falls within the framework
         of the environmental policy pursued by the Community and cannot be regarded as seeking to implement the free movement of waste
         within the Community (Case C‑187/93 Parliament  v Council [1994] ECR I-2857, paragraphs 22 and 23).
         
         
         
         35
            
          In the Community system thus established by the Regulation, it is clear that the objectives with which the Community legislature
         invested it seeking the protection of health and the environment could be compromised if, having regard to its purpose, the
         shipment of waste between Member States was not perceived in its entirety, that is to say from the point of departure of the
         waste in the State of dispatch to the end of its processing in the State of destination.
         
         
         
         36
            
          In that regard, it is clear from the ninth recital in the preamble that the Regulation establishes a procedure of prior notification
         of shipments of waste to the competent authorities enabling them to be duly informed not only of the type and movements of
         the waste but also of its disposal or recovery, so that those authorities may take all necessary measures for the protection
         of human health and the environment, including the possibility of raising reasoned objections.
         
         
         
         37
            
          For that purpose, the notifier must, under Article 6(5) of the Regulation, supply in the consignment note in support of the
         notification information relating not only to the composition and quantity of the waste for recovery and the details of its
         transport, but also to the conditions in which that waste is to be recovered. The Community legislature therefore intended
         that all the competent authorities be informed of the whole process of treatment of the waste up to the point when it no longer
         poses a risk to health or the environment.
         
         
         
         38
            
          Moreover, the Regulation contains provisions, other than those at issue in the main action, the implementation of which implies
         that the authorities with power to control the shipment of waste for recovery may take into account factors relating to its
         recovery. Thus, the fifth indent of Article 7(4)(a) of the Regulation gives lack of justification of the recovery by economic
         and environmental considerations as a ground of objection to such a shipment. Likewise, the combined provisions of Articles
         26(1)(e) and 26(5) of the Regulation provide that the Member States are to take all appropriate legal action to prohibit and
         penalise the illegal traffic constituted by any waste shipment which results in disposal or recovery in contravention of Community
         or international rules.
         
         
         
         39
            
          From those considerations, it is clear that the Regulation, taken as a whole, permits all the competent authorities responsible
         for the control of shipments of waste to take account of matters connected not only to the transport of that waste but also
         to the conditions in which the waste is recovered.
         
         
         
         40
            
          As regards the first indent of Article 7(4)(a) of the Regulation, it is appropriate, first, to observe, as did the Advocate
         General in point 36 of his Opinion, that those provisions, which provide that the competent authorities of destination and
         of dispatch may raise reasoned objections to the planned shipment ‘in accordance with Directive 75/442/EEC, in particular
         Article 7 thereof’, must be interpreted as enabling those authorities to raise such objections on the basis of the Directive
         and, in particular, Article 7 thereof.
         
         
         
         41
            
          The use of the words ‘in particular’ before the mention of Article 7 of the Directive implies that the reference to that article
         is purely as an example, so that objections may also be raised on the basis of the Directive’s other provisions. Therefore,
         the fact that Article 7(3) of the Directive provides that the Member States may take the measures necessary to prevent ‘movements’
         of waste which are not in accordance with their waste management plans cannot limit to the transport alone of such waste the
         considerations on which the competent authorities may base objections which they raise under the first indent of Article 7(4)(a)
         of the Regulation.
         
         
         
         42
            
          Finally, since under Article 4 of the Directive the Member States are to take the measures necessary to ensure that waste
         is recovered or disposed of without endangering human health and without the use of processes or methods capable of harming
         the environment, the provisions of the first indent of Article 7(4)(a) of the Regulation must be interpreted as authorising
         the competent authorities of destination and of dispatch to raise objections to a shipment of waste for recovery on the ground
         that the planned recovery disregards the requirements arising from Article 4 of the Directive.
         
         
         
         43
            
          In view of the foregoing, the reply to the first and second questions must be that the first indent of Article 7(4)(a) of
         the Regulation is to be interpreted as meaning that the objections to a shipment of waste for recovery which the competent
         authorities of dispatch and of destination are empowered to raise may be based on considerations connected not only to the
         actual transport of the waste in each competent authority’s area of jurisdiction but also on the recovery planned for that
         shipment. 
         
         The third question
         
         44
            
          By its third question, the referring court is asking, in essence, whether the first indent of Article 7(4)(a) of the Regulation
         must be interpreted as meaning that the competent authority of dispatch, for the purposes of an objection to a shipment of
         waste, may, in assessing the effects on health and the environment of the recovery envisaged at the destination, rely on the
         criteria to which, in order to avoid such effects, the recovery of waste is subject in the State of dispatch, even where those
         criteria are stricter than those in force in the State of destination.
         
         
         
         45
            
          In that regard, as was stated in paragraph 33 of this judgment, the Regulation harmonised the question of shipments of waste
         in order to ensure the protection of the environment. On the other hand, as the Advocate General states in point 60 of his
         Opinion, the requirements governing the recovery of waste have not been the object of harmonisation measures. Therefore, under
         the first paragraph of Article 4 of the Directive, the Member States must take the necessary measures to ensure that waste
         is recovered without endangering human health and without using processes or methods which could harm the environment and,
         in particular, without risk to water, air, soil, plants and animals, without causing a nuisance through noise or odours, and
         without adversely affecting the countryside or places of special interest. Whilst that provision does not specify the actual
         content of the measures which must be taken, it is binding on the Member States as to the objective to be achieved, whilst
         leaving to the Member States a margin of discretion in assessing the need for such measures (Case C-365/97 Commission  v Italy [1999] ECR I-7773, paragraphs 66 and 67). 
         
         
         
         46
            
          In exercising that discretion, the Member States may, in setting their waste recovery standards, be led to adopt national
         measures whose requirement levels with regard to the objectives of protection of human health and the environment laid down
         by the Directive may differ substantially from one State to another. It is precisely in those circumstances that the questions
         referred by the national court arise and particularly the question whether, where the standards set by the Member State of
         dispatch to attain the abovementioned objectives are higher than those applicable in the State of destination, the competent
         authority of dispatch may, on the basis of the Regulation, raise an objection to the envisaged shipment by invoking the higher
         level of protection under its national standards. Since it must be accepted that the competent authorities of dispatch are
         empowered to raise objections to the shipment taking account of matters connected to the conditions in which the recovery
         of waste is carried out in the State of destination, the provisions of the first indent of Article 7(4)(a) of the Regulation
         imply that those authorities, in assessing the risks which such recovery would entail for human health and the environment,
         may take account of all relevant criteria in that regard, including those which are in force in the State of dispatch, even
         if they are stricter than those of the State of destination, and provided they are intended to avoid those risks. The competent
         authorities of dispatch cannot, however, be bound by the criteria of their State if such criteria are no more apt to avoid
         those risks than those of the State of destination. 
         
         
         
         47
            
          That interpretation of the Regulation is evident, since it forms part of the environment policy of the Community, one of whose
         tasks is, according to Article 2 EC, to promote a high level of protection and improvement of the quality of the environment.
         That objective might be undermined if the competent authority of dispatch were prevented from relying on its own standards,
         representing a high level of environmental protection, and from opposing consequently a shipment of waste the conditions of
         recovery for which in the State of destination could harm human health or the environment.
         
         
         
         48
            
          It is true that such opposition may, as in the main proceedings, conflict with the position taken by the competent authority
         of destination where that authority, taking the view that the recovery meets the requirements of its own national standards,
         raises no objection to the envisaged shipment of waste. However, such a situation is inherent in the system established by
         the Regulation, which confers simultaneously on all the competent authorities the responsibility of ensuring that shipments
         are carried out in accordance with the Regulation (Case C-6/00 ASA [2002] ECR I-1961, paragraph 44). That divergence in the assessments of the different competent authorities cannot therefore
         be validly invoked, as being contrary to the principle of cooperation expressed in Article 10 EC, in order to require a different
         interpretation of the Regulation.
         
         
         
         49
            
          However, since the Community legislature stipulated that waste for recovery should be able to move freely between Member States
         for processing (Case C-203/96 Dusseldorp and Others [1998] ECR I-4075, paragraph 33), opposition by the competent authority of dispatch on the basis of its national waste recovery
         standards to a shipment can only be lawful in so far as those standards, in compliance with the principle of proportionality,
         are apt to attain the objectives pursued which are intended to prevent risks for human health and the environment, and do
         not go beyond what is necessary to attain them. 
         
         
         
         50
            
          In that regard, the risks must be measured, not by the yardstick of general considerations, but on the basis of relevant scientific
         research (see to that effect, in particular, Case C-17/93 Van der Veldt [1994] ECR I-3537, paragraph 17).
         
         
         
         51
            
          Furthermore, the fact that one Member State imposes less strict rules than another Member State does not necessarily mean
         that the stricter rules are disproportionate and hence incompatible with Community law (see Case C-294/00 Gräbner [2002] ECR I-6515, paragraph 46).
         
         
         
         52
            
          The mere fact that a Member State has chosen a system of protection different from that adopted by another Member State cannot
         affect the appraisal as to the need for and proportionality of the provisions adopted (Case C-67/98 Zenatti [1999] ECR I-7289, paragraph 34, and Gräbner, paragraph 47).
         
         
         
         53
            
          It is for the national court seised of an action challenging the opposition of the competent authority of dispatch to assess
         whether those national standards have been used in circumstances contrary to the principle of proportionality (see to that
         effect Case C-314/98 Snellers [2000] ECR I‑8633, paragraph 59).
         
         
         
         54
            
          In view of the foregoing, the reply to the third question must be that the first indent of Article 7(4)(a) of the Regulation
         is to be interpreted as meaning that for the purposes of an objection to a shipment of waste the competent authority of dispatch
         may, in assessing the effects on health and the environment of the recovery envisaged at the destination, provided it complies
         with the principle of proportionality, rely on the criteria to which, in order to avoid such effects, the recovery of waste
         is subject in the State of dispatch, even where those criteria are stricter than those in force in the State of destination.
         
         
         The fourth and fifth questions
         
         55
            
          By its fourth and fifth questions, which it is appropriate to consider together, the referring court is asking, in essence,
         whether the second indent of Article 7(4)(a) of the Regulation, under which reasoned objections may be raised against a planned
         shipment if it is not in accordance with the national laws and regulations relating to environmental protection, public order,
         public safety or health protection, enables the competent authority of dispatch to raise an objection based on the fact that
         the recovery envisaged does not comply with the national provisions.
         
         
         
         56
            
          As was said in paragraph 39 of this judgment, the Regulation, taken as a whole, permits all the competent authorities responsible
         for  the control of shipments of waste to take account of matters connected not only to the transport of that waste but also
         to the conditions in which the waste is recovered. However, consideration of all the provisions of Article 7(4) of the Regulation
         cannot lead to such a conclusion as regards the application of the second indent of Article 7(4)(a) of the Regulation without
         undermining the cohesion of that article.
         
         
         
         57
            
          It is important to note that Article 7(4)(b) of the Regulation enables competent authorities of transit to raise reasoned
         objections against the planned shipment based on the second, third and fourth indents of subparagraph (a) of that article,
         but not on the first and fifth indents thereof.
         
         
         
         58
            
          Thus the Regulation does not permit the competent authorities of transit, in contrast to the competent authorities of dispatch
         and of destination, to check that the waste will be processed in compliance with the Directive or that the recovery is properly
         justified from the economic and environmental point of view. 
         
         
         
         59
            
          In that context, by providing in the second indent of Article 7(4)(a) of the Regulation that the competent authorities may
         raise objections to the planned shipment if it does not comply with national laws and regulations, the Community legislature
         sought to safeguard, at each stage of the shipment, the efficacy of each Member State’s own provisions with regard to waste
         which is within the territory of that State. Thus, those provisions which govern shipment cover only operations relating to
         that shipment which occur during the time when it is within the respective territory of each of the competent authorities
         concerned. It follows that the competent authorities of dispatch cannot rely on those provisions to raise an objection to
         a recovery operation in the State of destination. 
         
         
         
         60
            
          In those circumstances, the reply to the fourth and fifth questions must be that the second indent of Article 7(4)(a) of the
         Regulation is to be interpreted as meaning that a competent authority of dispatch cannot rely on those provisions to raise
         an objection to a shipment of waste based on the fact that the planned recovery does not comply with the national laws and
         regulations for the protection of the environment, public order, public safety or health protection. 
         
         
         Costs
         61
            
          Since these proceedings are, for the parties to the main action, a step in the proceedings before the referring court, it
         is for that court to decide as to the costs. Costs incurred in submitting observations to the Court, other than those of the
         said parties, cannot be recovered.
         
         
         
         
         
         
            
            
         
         
          On those grounds, the Court (First Chamber) hereby rules:
         
            
            
             
               1.
                  The first indent of Article 7(4)(a) of Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control
                     of shipments of waste within, into and out of the European Community, as amended by Commission Decisions 98/368/EC of 18 May
                     1998 and 1999/816/EC of 24 November 1999, is to be interpreted as meaning that the objections to a shipment of waste for recovery
                     which the competent authorities of dispatch and of destination are empowered to raise may be based on considerations connected
                     not only to the actual transport of the waste in each competent authority’s area of jurisdiction but also on the recovery
                     planned for that shipment. 
                  
               
            
            
            
             
               2.
                  The first indent of Article 7(4)(a) of Regulation No 259/93, as amended by Decisions 98/368 and 1999/816, is to be interpreted
                     as meaning that for the purposes of an objection to a shipment of waste the competent authority of dispatch may, in assessing
                     the effects on health and the environment of the recovery envisaged at the destination, provided it complies with the principle
                     of proportionality, rely on the criteria to which, to avoid such effects, the recovery of waste is subject in the State of
                     dispatch, even where those criteria are stricter than those in force in the State of destination. 
                  
               
            
            
            
             
               3.
                  The second indent of Article 7(4)(a) of Regulation No 259/93, as amended by Decisions 98/368 and 1999/816, is to be interpreted
                     as meaning that a competent authority of dispatch may not rely on those provisions to raise an objection to a shipment of
                     waste based on the fact that the planned recovery does not comply with the national laws and regulations for protection of
                     the environment, public order, public safety or health protection.
                  
               
            
             Signatures.
      
      
          1 –
            
            Language of the case: German.