CELEX: 62002CJ0113
Language: en
Date: 2004-10-14
Title: Judgment of the Court (First Chamber) of 14 October 2004. # Commission of the European Communities v Kingdom of the Netherlands. # Regulation (EEC) No 259/93 on the supervision and control of shipments of waste - Directive 75/442/EEC on waste - National measure providing for objections to shipments of waste for recovery where 20% of the waste is recoverable in the Member State and the percentage of waste recoverable in the country of destination is lower - Measure of a Member State classifying an operation under point R1 (recovery by incineration) of Annex IIB to Directive 75/442 or under point D10 (disposal by incineration) of Annex IIA to that directive not according to the criterion of actual use but according to the calorific value of the incinerated waste. # Case C-113/02.

Case C-113/02
      Commission of the European Communities
      v
      Kingdom of the Netherlands
      (Regulation (EEC) No 259/93 on the supervision and control of shipments of waste – Directive 75/442/EEC on waste – National measure providing for objections to shipments of waste for recovery where 20% of the waste is recoverable in the
         Member State and the percentage of waste recoverable in the country of destination is lower – Measure of a Member State classifying an operation under point R1 (recovery by incineration) of Annex IIB to Directive 75/442
         or under point D10 (disposal by incineration) of Annex IIA to that directive not according to the criterion of actual use
         but according to the calorific value of the incinerated waste)
      
      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 – National measure justifying objections
            based only on the extent of recovery – Not permissible – Justification – None
      (Council Regulation No 259/93, Art. 7(4)( a), fifth indent)
      2.        Environment – Waste –  Directive 75/442 on waste – Annex IIB – Distinction between disposal operations and recovery operations
            – Classification as recovery operation – Conditions
      (Council Directive 75/442, as amended by Commission Decision 96/350, Annex IIB, point R1)
      1.        The fifth 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, pursuant to which the competent authorities of destination and dispatch may raise reasoned
         objections to a planned shipment of waste for recovery 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 from the economic and environmental point of view, precludes national rules on shipments
         of waste which refer only, for the purposes of making that assessment, to the first of those three criteria, namely the ratio
         of recoverable and non‑recoverable waste. That provision also precludes national rules on shipments of waste which refer only
         for the purposes of making that assessment to a comparison of the percentage of recoverable waste in the States of destination
         and dispatch. It is irrelevant in that regard that the competent national authorities retain the power to assess each application
         to ship on a case-by-case basis or that the rules on shipments in question apply both to imports and exports of waste and
         seek to achieve the highest possible degree of recovery in the Community.
      
      (see paras 17-21, 23-25)
      2.        The use of waste as a fuel is a recovery operation of the kind referred to in point R1 of Annex IIB to Directive 75/442 on
         waste, as amended by Decision 96/350, provided that three conditions are satisfied. First, the essential purpose of the operation
         referred to must be the generation of energy. Secondly, the energy generated by, and recovered from, combustion of the waste
         must be greater than the amount of energy consumed during the combustion process and that part of the surplus energy generated
         during combustion must effectively be used, either immediately in the form of the heat produced by incineration or, after
         processing, in the form of electricity. Thirdly, the greater part of the waste must be consumed during the operation and the
         greater part of the energy generated must be recovered and used.
      
      Criteria such as the calorific value of the waste, the amount of harmful substances contained in the incinerated waste or
         whether or not the waste has been mixed cannot, by contrast, be taken into consideration.
      
      (see paras 31-32)

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            JUDGMENT OF THE COURT (First Chamber)14 October 2004(1)
         
         
            
         
               (Regulation (EEC) No 259/93 on the supervision and control of shipments of waste  –  Directive 75/442/EEC on waste  –  National measure providing for objections to shipments of waste for recovery where 20% of the waste is recoverable in the
                  Member State and the percentage of waste recoverable in the country of destination is lower  –  Measure of a Member State classifying an operation under point R1 (recovery by incineration) of Annex IIB to Directive 75/442
                  or under point D10 (disposal by incineration) of Annex IIA to that directive not according to the criterion of actual use
                  but according to the calorific value of the incinerated waste)
               
               
             In Case C-113/02,ACTION under Article 226 EC for failure to fulfil obligations, brought on 27 March 2002,
            
            
            Commission of the European Communities,  represented by H. van Lier, acting as Agent, and M. van der Woude and R. Wezenbeek-Geuke, advocaten, with an address for service
            in Luxembourg,
            
            
            applicant,
            
            v
            Kingdom of the Netherlands,  represented by H. G. Sevenster, acting as Agent,
            
            defendant,
            
            
            THE COURT (First Chamber),,
            
             composed of: P. Jann (Rapporteur), President of the Chamber, A. Rosas, R. Silva de Lapuerta, K. Lenaerts and S. von Bahr,
            Judges, 
            
             Advocate General: F.G. Jacobs, Registrar: R. Grass,
             having regard to the written procedure,
            
            after hearing the Opinion of the Advocate General at the sitting on 6 May 2004,
         gives the following
         
         
         Judgment
         1
            
          By its application, the Commission of the European Communities has brought an action for a declaration that the Kingdom of
         the Netherlands has failed to fulfil its obligations under Article 7(4) 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), under Articles 1(e) and (f) and 7(1) 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 Commission Decision 96/350/EC of 24
         May 1996 (OJ 1996 L 135, p. 32), (hereinafter ‘Directive 75/442’) and under Article 82 EC, read in conjunction with Article
         86 EC. 
         
         
         
         2
            
          The Commission has withdrawn its pleas relating to infringement of Article 7(1) of Directive 75/442 and Article 82 EC, read
         in conjunction with Article 86 EC.
         
         
            
               Legal framework
            Community legislation Definitions
         
         
         3
            
          Article 2(i) and (k) of Regulation No 259/93 states, in relation to waste, that ‘disposal is as defined in Article 1(e) of
         Directive 75/442/EEC’ and ‘recovery is as defined in Article 1(f) of Directive 75/442/EEC’. 
         
         
         
         4
            
          According to Article 1(e) and (f) of that directive, ‘disposal’ means ‘any of the operations provided for in Annex II A’ and
         ‘recovery’ means ‘any of the operations provided for in Annex II B’. 
         
         
         
         5
            
         ‘Incineration on land’ is referred to at point D10 of Annex IIA to Directive 75/442 and is thus considered to be a ‘disposal’
         operation. By contrast, point R1 of Annex IIB to that directive provides that there is ‘recovery’ (by incineration) in cases
         of ‘[u]se principally as a fuel or other means to generate energy’.
         
          Substantive rules
         
         
         6
            
          As regards waste for recovery, the fifth indent of Article 7(4)(a) of Regulation No 259/93 provides: ‘[t]he competent authorities
         of destination and dispatch may raise reasoned objections to the planned shipment: …
         
         
         
          
         –
            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.’  
            
         
         
         
         National law
         
         7
            
          The The    Point 8.3 of Chapter 8 of the first part of the Meerjarenplan gevaarlijke afvalstoffen (multi-year plan for the management
         of hazardous waste) II 1997‑2007 (the ‘MJP-GA II’), which relates to imports and exports for recovery in the European Union,
         provides: 
         ‘The following considerations shall apply to the exercise of the objection procedure referred to in [the fifth indent of Article
         7(4)(a) to Regulation No 259/93]:
          The cross-border shipment of hazardous waste for recovery must be in keeping with the desire of the European Union to promote
         re-use. In that context, preference will be given to recovery over final disposal. To that end, regard should be had to the
         ratio of waste for recovery to waste which is not for recovery (the degree of recovery).
          Each notification shall be assessed with reference to that ground of objection – without limiting the substantive aspects
         of all the grounds of objection – in the following way:
         
         (a)
            When less than 20% (as a percentage of mass) of the quantity of waste intended for cross-border shipment is recovered in the
               State of dispatch – given the large quantity of waste requiring subsequent final disposal – the grounds for raising an objection
               specified in [Article 7 of] Regulation No 259/93 will be assessed separately for each specific request. In any event, the
               margin specified in the footnote to point (b) will not apply. The rate of 20% of recovered materials shall be calculated by
               weight on the basis of the original substance and no account shall be taken of any additional material arising as a result
               of treatment …
            
         
         
         (b)
            In other cases, objections will in principle be raised against the shipment if the percentage of waste recoverable in the
               Member State of destination is lower than that in the Member State of dispatch.’
            
         
         
         
         
         8
            
          The footnote to point 3(b) of Chapter 8 of the first part of the MJP-GA II, as amended by Ministerial Decree No MJZ200019786
         of 3 March 2000 (Nederlandse Staatscourant of 24 March 2000, No 60, p. 18) states, in the version in force on the expiry of the period laid down in the reasoned opinion:
         
         ‘If it is not possible to establish unequivocally that the percentage of waste effectively recovered is lower in the State
         of destination, a margin may be applied in order to limit objections and appeals. The margin may not exceed 20% of the relative
         value. The whole is still examined with regard to the specific intended transfer. The rate shall be calculated in the same
         manner as under paragraph (a), by reference to the quantity of waste to be recovered in the country of origin.’ 
         
         
         
         9
            
          Chapter 18 of the second part of the MJP-GA II deals, inter alia, with the distinction between recovery (by incineration),
         in which the waste is primarily used as a fuel, and final disposal (by incineration). The criterion for that distinction is
         that hazardous waste having a chlorine content of  less than 1% is to be recovered if its calorific value is greater than
         11 500 KJ/kg and that hazardous waste having a chlorine content in excess of 1% is to be recovered if its calorific value
         is greater than 15 000 KJ/kg.
         
         Pre-litigation procedure
         
         10
            
          Having given the Kingdom of the Netherlands the opportunity to submit its observations, the Commission issued a reasoned opinion
         by letter of 1 August 2000, stating that it considered that certain elements of the national legislation relating to the management
         of hazardous waste were incompatible with Regulation No 259/93, Directive 75/442 and Article 86 EC, read in conjunction with
         Article 82 EC. It accordingly requested the Member State to adopt the measures necessary to comply with those provisions within
         two months of the date of notification of the opinion. Since it was not satisfied with the reply by the Netherlands authorities
         in their letter of 8 November 2000, the Commission decided to bring the present action. 
         
         The action
         
         11
            
          In support of its application, the Commission puts forward two complaints in relation to the Netherlands legislation regarding
         hazardous waste. 
         
         
         
         12
            
          Those complaints are based, in essence, on: 
         
         
         
          
         –
            the incompatibility with Article 7(4)(a) of Regulation No 259/93 of the Netherlands rules which provide that an objection
               may, in principle, be raised against a shipment of waste where at least 20% of the waste is recoverable in the Netherlands
               and the percentage of recoverable waste in the Member State of destination is lower than that in the Member State of dispatch
               (‘the Netherlands rules in question on the shipment of waste’); 
            
         
         
         
         
          
         –
            the incorrect transposition into national law of Article 1(e) and (f) of Directive 75/442 by the Netherlands measure which
               provides that recovery (by incineration) must be distinguished from disposal (by incineration) according to a criterion which
               combines a requirement relating to calorific value linked to the combustion of waste coupled with its chlorine content (‘the
               measure in question dealing with the distinction between recovery (by incineration) and disposal (by incineration)’).
            
         
         
         
         The first complaint Arguments of the parties
         
         
         13
            
          The Commission argues that, inasmuch as the Netherlands rules relating to the shipment of waste are based on the percentage
         of the waste recoverable in the Netherlands and in the country of destination, they are inconsistent with the criteria laid
         down under Article 7(4)(a) of Regulation No 259/93, which they purport to apply, and are accordingly incompatible with it.
         
         
         
         14
            
          In relation to the previous Netherlands rules on the shipment of waste, under which objections had been raised against exports
         of waste where treatment abroad was no more effective, unless treatment capacity in the Netherlands was inadequate or non-existent,
         the current Netherlands rules do no more than replace the criterion relating to the absence of ‘more effective’ treatment
         with that of a ‘lower degree of recovery’. 
         
         
         
         15
            
          The Netherlands Government maintains that the rules in question on the shipment of waste comply with the parameters laid down
         in the fifth indent of Article 7(4)(a) of Regulation No 259/93.
         
          Findings of the Court
         
         
         16
            
          According to settled case-law, Member States may adopt rules for the application of a regulation if they do not obstruct its
         direct applicability, do not conceal its Community nature and specify that a discretion granted by the regulation is being
         exercised, and provided that they adhere to the parameters laid down under it (see, to that effect, Case 94/77 Zerbone [1978] ECR 99, paragraph 27). 
         
         
         
         17
            
          It must be pointed out that the fifth indent of Article 7(4)(a) of Regulation No 259/93 states that the competent authorities
         of destination and dispatch may raise reasoned objections to a planned shipment of waste 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 from the economic and environmental point of view.
         
         
         
         18
            
          In order to determine whether a recovery operation can be justified from an economic and environmental point of view, the
         fifth indent of Article 7(4)(a) thus refers to three criteria, namely the ratio of recoverable and non-recoverable waste,
         the estimated value of the materials to be finally recovered and the cost of disposal of the non-recoverable fraction. 
         
         
         
         19
            
          In the present case, it must be held that the Netherlands rules on shipments of waste contravene Article 7(4)(a) of Regulation
         No 259/93 inasmuch as they go beyond the provision which they are intended to clarify.
         
         
         
         20
            
          The Netherlands rules on shipments of waste refer only to the ratio of recoverable and non-recoverable waste.
         
         
         
         21
            
          Moreover, by focusing on a comparison of the percentage of recoverable waste in the States of destination and dispatch, the
         Netherlands rules on shipments of waste allow an objection to be raised against a shipment of waste for recovery on the basis
         not only of an independent evaluation of the economic and environmental aspects of the recovery operation in the State of
         destination, but also of the treatment capacity available in the State of dispatch. The Court has held that, in the context
         of the Community rules on shipments of waste, considerations of self‑sufficiency and proximity do not apply to shipments of
         waste for recovery (Case C-203/96 Dusseldorp and Others [1998] ECR I-4075, paragraphs 27 to 34).
         
         
         
         22
            
          In those circumstances, the arguments put forward by the Netherlands Government to justify the compatibility of the rules
         in question on the shipment of waste with Article 7(4)(a) of Regulation No 259/93 cannot be accepted.
         
         
         
         23
            
          According to the Netherlands Government, the assessment should comprise a comparison of the quality of the treatment plants
         in the Member State of dispatch with those in the Member State of destination, because the fifth indent of Article 7(4)(a)
         of Regulation No 259/93 is to be interpreted in the light of the objectives laid down under the first indent of Article 3(1)(b)
         of Directive 75/442 and Article 174(2) EC, so that the highest possible degree of recovery in the Community may be achieved.
          It must be held in that regard that the objective pursued does not justify a comparison purely between the ratio of recoverable
         and non‑recoverable waste and between the treatment plants available in the Member State of dispatch and the Member State
         of destination, with no account being taken of the other criteria laid down under the fifth indent of Article 7(4)(a) of the
         regulation.It mus      
         
         
         
         24
            
          As for the argument that the rules in question on the shipment of waste do not prevent the Netherlands authorities assessing
         each application to ship waste individually and that objections remain the exception and not the rule, it must be pointed
         out that, since the Netherlands rules on the shipment of waste are not compatible with the Community legal framework, such
         a consideration is irrelevant for the purposes of assessing whether the fifth indent of Article 7(4)(a) of Regulation No 259/93
         has been contravened. 
         
         
         
         25
            
          With respect to the argument that the rules in question on shipments of waste are neutral to the extent that they apply both
         to imports and to exports of waste, it must be held that, as the Advocate General rightly pointed out at paragraph 49 of his
         Opinion, that point is irrelevant to an assessment of whether there has been a contravention of the fifth indent of Article
         7(4)(a) of the regulation.  In each case, the criteria laid down under the Netherlands rules on shipments of waste go beyond the grounds of objection
         exhaustively laid down by the Community legal framework. 
         
         
         
         26
            
          In those circumstances, the first complaint is well founded. 
         
         The second complaint Arguments of the parties
         
         
         27
            
          The Commission argues that the Netherlands measure in question dealing with the distinction between recovery (by incineration)
         and disposal (by incineration) incorrectly transposes into national law Article 1(e) and (f) of Directive 75/442, read in
         conjunction with points D10 of Annex IIA and R1 of Annex IIB to that directive.
         
         
         
         28
            
          The Netherlands Government submits that the distinction between recovery (by incineration) and disposal (by incineration)
         established by the measure in question conforms to the classification set out in Directive 75/442.
         
          Findings of the Court
         
         
         29
            
          According to Article 1(e) and (f) of Directive 75/442, ‘disposal’ means ‘any of the operations provided for in Annex IIA’
         and ‘recovery’ means ‘any of the operations provided for in Annex IIB’.
         
         
         
         30
            
          According to point D10 of Annex IIA to Directive 75/442, ‘incineration on land’ is considered to be a ‘disposal’ operation.
         By contrast, point R1 of Annex IIB to that directive provides that there is ‘recovery’ (by incineration) in cases of ‘use
         principally as a fuel or other means to generate energy’.
         
         
         
         31
            
          In Case C-228/00 Commission v Germany [2003] ECR I-1439, paragraphs 41 to 43, the Court laid down three conditions for establishing whether the use of waste as
         a fuel is a recovery operation of the kind referred to in point R1 of Annex II B to Directive 75/442. First, the essential
         purpose of the operation referred to by that provision must be the generation of energy. Secondly, the energy generated by,
         and recovered from, combustion of the waste must be greater than the amount of energy consumed during the combustion process
         and that part of the surplus energy generated during combustion must effectively be used, either immediately in the form of
         the heat produced by incineration or, after processing, in the form of electricity. Thirdly, the greater part of the waste
         must be consumed during the operation and the greater part of the energy generated must be recovered and used. 
         
         
         
         32
            
          According to the Court, criteria such as the calorific value of the waste, the amount of harmful substances contained in the
         incinerated waste or whether or not the waste has been mixed cannot, by contrast, be taken into consideration (Commission  v Germany, paragraph 47). 
         
         
         
         33
            
          In the present case, since the Court has expressly declared criteria based on the calorific value or composition of waste
         to be incompatible with Directive 75/442, the arguments of the Netherlands Government in that regard must be rejected. 
         
         
         
         34
            
          Accordingly, the Netherlands measure in question dealing with the distinction between recovery (by incineration) and disposal
         (by incineration) is not consistent with Article 1(e) and (f) of that directive, read in conjunction with points D10 of Annex
         IIA and R1 of Annex IIB to the directive. The Kingdom of the Netherlands has thus failed to fulfil its obligation to transpose
         Article 1(e) and (f) of Directive 75/442 into internal law.
         
         
         
         35
            
          In those circumstances, the second complaint is well founded. 
         
         
         
         36
            
          In the light of the above, it must be held that the Kingdom of the Netherlands has failed to fulfil its obligations under
         Article 7(4) of Regulation No 259/93 and under Article 1(e) and (f) of  Directive 75/442.
         
         
         Costs
         37
            
          Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been
         applied for in the successful party’s pleadings. Since the Commission has applied for costs and the Kingdom of the Netherlands
         has essentially been unsuccessful, the Kingdom of the Netherlands must be ordered to pay the costs.
         
         
         
         
         
         
            
            
         
         
          On those grounds, the Court (First Chamber) hereby:
         
            
            
             
               1.
                  Declares that the Kingdom of the Netherlands has failed to fulfil its obligations under Article 7(4) 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 and under Article 1(e) and (f) of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive
                     91/156/EEC of 18 March 1991 and Commission Decision 96/350/EC of 24 May 1996;
                  
               
            
            
            
             
               2.
                  Orders the Kingdom of the Netherlands to pay the costs.
               
            
             Signatures.
      
      
          1 –
            
            Language of the case: Dutch.