CELEX: 61990CC0002(01)
Language: en
Date: 1991-09-19
Title: Opinion of Mr Advocate General delivered on 19 September 1991. # Commission of the European Communities v Kingdom of Belgium. # Failure to fulfil obligations - Prohibition of tipping waste originating in another Member State. # Case C-2/90.

OPINION OF ADVOCATE GENERAL
      JACOBS
      delivered on 19 September 1991 (
            *1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      
               1. 
            
            
               The Court is already familiar with these proceedings, in which the Commission seeks a declaration that, by prohibiting the storage, tipping or dumping in Wallonia of waste from other Member States or from Belgian regions other than Wallonia, the Kingdom of Belgium has failed to fulfil its obligations under
               
                        (1)
                     
                     
                        Council Directive 75/442/EEC on waste (OJ 1975 L 194, p. 39);
                     
                  
                        (2)
                     
                     
                        Council Directive 84/631/EEC on the supervision and control within the European Community of the transfrontier shipment of hazardous waste (OJ 1984 L 326, p. 31);
                     
                  
                        (3)
                     
                     
                        Articles 30 and 36 of the EEC Treaty.
                     
                  
         
               2. 
            
            
               Oral argument was presented at a hearing on 27 November 1990, and I delivered my Opinion on 10 January 1991. However, by an Order dated 2 May 1991 made pursuant to Article 61 of the Rules of Procedure, the Court reopened the oral procedure in order to give the parties, the other Member States and the other institutions an opportunity to express their view on the following question: Is the movement of unusable and non-recyclable waste which is devoid of commercial value covered by the Treaty provisions concerning the free movement of goods, or are the commercial transactions relating to the disposal, tipping or destruction of such waste covered by the Treaty provisions concerning the free movement of services?
            
         
               3. 
            
            
               In addition, the Commission was invited to inform the Court of any Community legislative measures currently in preparation on the cross-border transfer or the storage, dumping or tipping of non-dangerous, non-recyclable waste, and was asked whether it intended to make any proposals for measures aimed at limiting cross-border movements of such waste. For its part, the Belgian Government was asked whether the provisions at issue in these proceedings (namely the decree of the Walloon Regional Executive of 19 March 1987, as amended by the decree of 23 July 1987) covered recyclable or non-recyclable waste.
            
         
               4. 
            
            
               Both the Commission and the Belgian Government replied to the questions specifically addressed to them as well as to the general question, but no other Member State or institution submitted any comments. As regards the question addressed to the Belgian Government, the latter stated that the provisions in question applied only to waste which either could not be, or was not in fact, used or recycled. It appears therefore that the decree of the Walloon Regional Executive applies to recyclable waste which is not destined for recycling, as well as to non-recyclable waste. In response to the question addressed to it, the Commission provided copies of a communication from the Commission to the Council and the Parliament of 14 September 1989, on a Community strategy for the management of waste, as well as of a proposal for a Council directive concerning the disposal of waste by landfill dated 22 May 1991. The Commission also drew the Court's attention to the proposal for a Council regulation on the supervision and control of shipments of waste within, into and out of the European Community (OJ 1990 C 289, p. 9), and to the recently adopted Council Directive 91/156/EEC of 18 March 1991 amending Directive 75/442/EEC on waste (OJ 1991 L 78, p. 32).
            
         Waste and the free movement of goods
      
               5.
            
            
               In my previous Opinion, at paragraph 16, I suggested that the Treaty provisions on the free movement of goods must be taken to apply to all types of waste product, even those which cannot be recycled or reused. It may be helpful to expand on the reasons I gave for that view, in the light of the response of the parties to the question put by the Court.
            
         
               6.
            
            
               The Treaty provisions concerning the free movement of goods are the cornerstone of the Community. According to Article 9 of the Treaty, the Community ‘shall be based upon a customs union which shall cover all trade in goods ...’. The Treaty does not however contain any definition of the term ‘goods’ (unlike, for instance, the ECSC Treaty, which contains a definition of the terms ‘coal’ and ‘steel’). This lack of a definition is perhaps already an indication that the term is to be given a wide meaning. In contrast, the term ‘services’ does receive at least a partial definition in Article 60 of the Treaty, which provides that:
               ‘Services shall be considered to be “services” within the meaning of this Treaty where they are normally provided for remuneration, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons.
               ...’
            
         
               7.
            
            
               As Article 60 makes clear, the concept of services covers a residual category of transactions not covered by the free movement of goods, capital or persons: see Joined Cases 60/84 and 61/84 Cinéthèque v Fédération nationale des cinémas français [1985] ECR 2605, paragraphs 10 and 11 of the judgment. The residual character of the services provisions of the Treaty has recently been demonstrated by Case C-239/90 Boscher, Studer et Fromentin v British Motors Wright [1991] ECR I-2023. There, a national provision which restricted the sale of goods by public auction, by imposing a local registration requirement on the owners of the goods, was held to be incompatible with Article 30 of the Treaty. Article 59 did not apply, even though the restriction was also no doubt a barrier to the provision of services by the auctioneers to clients established in another Member State.
            
         
               8.
            
            
               Thus, the provisions of the Treaty concerning the free movement of goods can apply, whether or not the transactions in question also provide the occasion for the provision of services. Even if it is accepted that the waste disposal contractor provides a ‘service’, within the meaning of the Treaty, to the producer of the waste, that would not be enough in itself to bring the transaction within the services provisions of the Treaty. Indeed, the latter provisions will only apply if the transaction in question is not covered by those concerning the free movement of goods. That is not to say that there are no circumstances in which a transaction involving both the movement of goods and the provision of services can properly be regarded as falling under Article 59: an example might be where goods are temporarily moved to another Member State for the purposes of restoration or repair. In such cases the movement of the goods is only an incidental feature of the transaction in question. However where, as in the present case, the whole point of the transaction is permanently to remove the object from one Member State to another in order that it can be stored, tipped or destroyed, the movement of goods cannot be regarded as merely incidental to the provision of services, even if the operations of storage, tipping or destruction are regarded as ‘services’ within the meaning of the Treaty: compare Case 18/84 Commission v France [1985] ECR 1339, at paragraph 12 of the judgment.
            
         
               9.
            
            
               There are consequently two issues to be considered: the first is whether non-recyclable waste is indeed ‘goods’ for the purposes of the Treaty, and the second is whether there is any other feature of the transactions in question which removes them from the ambit of the provisions concerning the free movement of goods. I shall discuss these two issues in turn.
            
         
               10.
            
            
               The scope of the concept of ‘goods’ was directly at issue in Case 7/68 Commission v Italy [1968] ECR 423. In that case, the Italian Government attempted to argue that articles having an artistic, historic, archaeological or ethnographic value were not ‘ordinary merchandise’, and hence were not goods falling under Article 16 of the Treaty (which prohibits customs duties on exports and charges having equivalent effect). Rejecting that argument, the Court stated at pp. 428-9 of its judgment:
               ‘Under Article 9 of the Treaty the Community is based on a customs union “which shall cover all trade in goods”. By goods, within the meaning of that provision, there must be understood products which can be valued in money and which are capable, as such, of forming the subject of commercial transactions.
               The articles covered by the Italian Law, whatever may be the characteristics which distinguish them from other types of merchandise, nevertheless resemble the latter, inasmuch as they can be valued in money and so be the subject of commercial transactions.’
            
         
               11.
            
            
               Referring to the passage quoted above, the Belgian Government argues that it is not sufficient for the articles in question to be the subject of commercial transactions; they must also ‘have a value’, by which the Belgian Government evidently means: have a positive, rather than a negative value. It seems to me however that the expression ‘valued in money’ in the quoted passage is not to be given such a restrictive interpretation. Given the issue before the Court in Case 7/68, it is evident that ‘valued in money’ was being contrasted, not with ‘valueless’ or ‘having a negative value’, but rather with ‘priceless’, in the sense of possessing a value (artistic, historic etc.) so great, or, perhaps, so indeterminate or ineffable, that it was incapable of expression in monetary terms. As the Court pointed out, not only could the articles be valued in monetary terms; the Italian tax in question was in fact calculated with reference to those monetary values.
            
         
               12.
            
            
               It is questionable whether the Court intended, in Case 7/68, to give an exhaustive definition of the term ‘goods’; but it is clear, in any case, that objects with a ‘negative’ value (that is to say, objects which the owner is willing to pay to have taken away) can be the subject of commercial transactions. Furthermore, the commercial activities of waste disposal and recycling would not be possible unless a price could be determined at which it will be commercially profitable to assume responsibility for the waste. Given a free market in waste, such ‘negative’ prices will be determined by market forces in a similar way to the more usual case of goods having a positive value. Waste is hence something which can be valued in money, thereby becoming the subject of commercial transactions. In my view, therefore, even if the definition of the term ‘goods’ given in Case 7/68 Italy were to be regarded as an exhaustive one, it would be consistent with that definition to classify objects with a negative value, such as non-recyclable waste, as goods for the purposes of the Treaty.
            
         
               13.
            
            
               It may also be noted that the concepts of negative price and negative value are familiar to economists:
               ‘Negative quantities occur in economics, as in other sciences, when a variable, passing through zero, becomes less than nothing, so that the addition thereof causes not augmentation but diminution. Most economic quantities are susceptible of this change of sign. Thus wealth, affected with the minus sign, becomes debt ... Jevons proposes to employ discommodity to signify any substance or action which is the opposite of commodity, that is to say, anything which we desire to get rid of, like ashes or sewage (Theory, 2nd edn, p. 63). Such an article may be said to have negative value ...’
               ( The New Palgrave: A Dictionary of Economics edited by Eatwell, Milgate and Newman (London 1987); article ‘negative quantities’, reprinted from Palgrave's Dictionary of Political Economy).
               
            
         
               14.
            
            
               The next question to consider is whether there is any feature of the transactions concerned — namely, those involving the transportation across national frontiers of non-recyclable waste for the purpose of storage, tipping or disposal — which removes them from the ambit of Articles 30 to 36 of the Treaty.
            
         
               15.
            
            
               It should first be observed that objects can benefit from the Treaty provisions concerning the free movement of goods, whether or not they are being transported across national frontiers for the purposes of sale or resale. The principle of the free movement of goods is not limited to those goods which are intended to be traded in the Member State of importation; the principle extends, for instance, to the importation of goods by a private individual for the purposes of personal consumption: see Case 215/87 Schumacher v Hauptzolhmt Frankfurt am Main-Ost [1989] ECR 617, and Case C-362/88 GBINNOBM v Confédération du commerce luxembourgeois [1990] ECR I-667, and see also the remarks of Advocate General Warner in Case 34/79 R. v Henn and Darby [1979] ECR 3795, at p. 3827.
            
         
               16.
            
            
               It seems to me, moreover, that it would be wrong in principle to confine the free movement of goods to the movement of objects having a positive value. An object with a negative value, just as much as one with a positive value, is something to which property rights and obligations can attach. Among such rights and obligations must be numbered those relating to the safe disposal of the object. Under national law, the owner of an object will typically enjoy, not only the right to its lawful use, but also the right to decide, again within the limits of the law, upon the proper method of its disposal. It does not seem to me that any useful distinction can be drawn, for the present purposes, between the right to dispose of an object by consumption and the right to do so by storage, tipping or dumping. To an ecologist, for instance, the latter right may be more significant than the former. It follows, in my view, that the free movement of goods includes the freedom to move articles across a national frontier in order to dispose of them more cheaply or more safely in another Member State, just as much as it includes the freedom to move personal possessions across a frontier for the purpose of private consumption, as in Case 215/87 Schumacher (cited above in paragraph 15). Thus, the free movement of goods applies not only to goods intended for further trading, but also those destined for consumption, storage, or disposal.
            
         
               17.
            
            
               At the hearing, the Belgian Government sought to distinguish between the movement of an object for the purposes of consumption in another Member State, and the movement of waste for the purposes of disposal. It argued, in particular, that the consumption of a product constitutes the ‘very purpose’ of commercial transactions, and consequendy forms an essential part of the economic circuit of production, exchange and consumption. It appears therefore that the Belgian Government would not regard the production and disposal of waste as forming an essential part of the circuit of economic activity. This is a view I cannot accept. Both the manufacture and consumption of goods lead, not only to the production of objects having a positive utility, but also, with equal inevitability, to the generation of useless and sometimes harmful waste. Decisions concerning the disposal of such waste are as integral a part of the economic circuit as decisions relating to consumption, production or exchange.
            
         
               18.
            
            
               In my opinion, therefore, ‘goods’ for the purposes of the Treaty must be taken to include any movable physical object to which property rights or obligations attach (and which can therefore be valued in monetary terms, whether positive or negative). If the exercise of such rights, or the fulfilment of such obligations, involves the selection of a method of disposal, and if the method selected entails the movement of the object between Member States, national provisions restricting such movement fall to be examined under Articles 30 to 36 of the Treaty.
            
         
               19.
            
            
               Not only, as I have argued above, would it be wrong in principle to confine the Treaty rules on the free movement of goods to items having a positive value; it would also be difficult to do so in practice. As the Commission points out, no workable distinction can be drawn for the present purposes between recyclable and non-recyclable waste. Both forms of waste may be products with a negative value, since in both cases the generator of the waste may wish to pay to have it taken away, i. e. charge a ‘negative’ price. In the case of non-recyclable waste, the price will of course always be a negative one; but it may also be negative where the waste is recycled, since the proceeds from recycling may not fully cover transportation and reprocessing costs. In some cases waste may be recyclable, but not in fact destined for recycling; and it will be recalled that the decree of the Walloon Regional Executive covers such waste. Whether or not a given quantity of waste is recycled will depend on a number of variable factors, including the current state of technical knowledge, the cost of competing raw materials, the cost of the recycling process itself, and the intentions and capacity of the processor. In my view, therefore, it would be difficult in the extreme to differentiate between these various categories of waste, classifying one as ‘goods’, another merely as an opportunity for the provision of services; and the Court does not in fact appear to have been inclined to draw such a distinction in previous cases involving waste: see Case 172/82 Fabricants Raffineurs d'Huile de Graissage v Inter-Huiles [1983] ECR 555 and Case 240/83 Procureur de la République v ADBHU [1985] ECR 531. (In this connection, the Commission also refers to Joined Cases 372/85 to 374/85 Ministère Public v Traen [1987] ECR 2141 and Joined Cases C-206/88 and C-207/88 Vessoso and Zanetti [1990] ECR I-1461; it does not seem to me however that the scope of the free movement of goods was even indirectly at issue in those cases.)
            
         
               20.
            
            
               Moreover, a single consignment of waste may include both recyclable and non-recyclable waste, or may include recyclable waste, only some of which is in fact intended to be recycled. It would in my opinion be unsatisfactory to conclude that one part of the consignment benefited from free movement under Article 30 of the Treaty, and the remainder under Article 59.
            
         
               21.
            
            
               Not only would it be difficult to draw a distinction between recyclable and non-recyclable waste, it would also be difficult to draw a distinction between recyclable waste and other raw materials. It should be noted that ‘waste and scrap products’ are referred to in Article 4(2)(i) of Council Regulation No 802/68 on the common definition of the concept of the origin of goods (OJ, English Special Edition 1968 (I), p. 165). Furthermore, as the Commission observes, several types of waste are included in the Common Customs Tariff, no doubt because they are important sources of raw materials. It could be, of course, that the kinds of waste so included are those which normally have a positive rather than a negative market value; but I can see no reason for distinguishing between the two cases for the purposes of the principle of free movement, especially in view of the fact that a given type of waste product may at different times belong to either category, depending upon the cost and availability of other sources of raw materials.
            
         
               22.
            
            
               For all the above reasons, I reach the conclusion that the term ‘goods’ for the purposes of the Treaty covers non-recyclable and unusable waste, and that restrictions on the movement of such waste between Member States are covered by the Treaty provisions concerning the free movement of goods, rather than those concerning the free movement of services. Thus, notwithstanding that the national legislation at issue in these proceedings applies exclusively to waste which cannot be, or is not in fact, reused or recycled, I remain of the opinion that such legislation infringes Article 30 of the Treaty.
            
         
               23.
            
            
               At the hearing, there was some discussion of what measures a Member State might be permitted to take in order to safeguard particular regions or localities from an unwanted influx of non-recyclable waste. It is clear that such measures would have to be capable of justification, in accordance with well established principles, either under Article 36 or under one or other of the mandatory requirements recognized by Community law, among which is included environmental protection: see Case 302/86 Commission v Denmark [1988] ECR 4607. If justification is sought in terms of a mandatory requirement not mentioned in Article 36 itself, the measures in question must be indistinctly applicable to domestic and imported waste. Even if the transactions were to be classified as the provision of services, the justification for any restriction would in my opinion fall to be examined in accordance with similar principles. Thus, Article 56, which applies to services by virtue of Article 66, provides an exception to the free movement of services on grounds of public health; and in the case of indistinctly applicable measures, restrictions on services can be justified as measures taken in accordance with imperative requirements pertaining to the general interest (see Case C-288/89 Stichting Collectieve Antennevoorziening Gouda [1991] ECR I-4007, paragraph 13 of the judgment).
            
         
               24.
            
            
               Applying those principles, it seems to me that at least some restrictions on the transfer of waste could be justified on environmental grounds. Since environmental protection is a mandatory requirement not mentioned in Article 36, any such measure would however have to be indistinctly applicable to domestic and foreign waste. As I suggested in my previous Opinion, at paragraph 20, that condition may not be satisfied by a measure which simply restricts the use of the waste disposal facilities of a particular region or locality to waste produced in that locality or region. A provision of that type clearly favours domestically produced waste, especially where, as is the case with the decrees of the Walloon Regional Executive, exceptions may be made in the case of waste coming from other regions of the same Member State. Hence, in the circumstances of the present case, the measures in issue cannot be justified on grounds of environmental protection. In contrast, a provision applying throughout a region of a Member State, requiring waste to be disposed of within its locality of generation, might be said to be indistinctly applicable. Such a provision would prevent the exportation of locally produced waste to another locality or another Member State in exactly the same way that it prevented the disposal of waste coming from another State or locality. Such a measure might moreover be justified in terms of the need to reduce the amount of waste in transit and to limit the areas used for waste disposal. Whether or not the measure was in fact proportionate to those objectives could of course only be decided in the light of all the relevant circumstances.
            
         Recent and proposed Community legislation
      
               25.
            
            
               As mentioned above in paragraph 4, the Commission drew the Court's attention to various items of recent or proposed Community legislation on waste. In my previous Opinion, at paragraphs 23 to 26, I have already considered the Council Resolution of 7 May 1990 on waste policy (OJ 1990 C 122, p. 2) and the proposal for a Council regulation on the supervision and control of shipments of waste within, into and out of the European Community (OJ 1990 C 289, p. 9). I remain of the view that the general prohibition on the importation of waste instituted by the Walloon Regional Executive would not be justified by the Council Resolution or by the draft regulation, even if the former were a binding instrument or the latter were currently in force.
            
         
               26.
            
            
               Council Directive 91/156/EEC of 18 March 1991 fulfils an undertaking to amend Directive 75/442/EEC which was made by the Council in its resolution of 7 May 1990. Article 5 of the amended directive provides as follows:
               
                        ‘1.
                     
                     
                        Member States shall take appropriate measures ... to establish an integrated and adequate network of disposal installations ... The network must enable the Community as a whole to become self-sufficient in waste disposal, and the Member States to move towards that aim individually, taking into account geographical circumstances or the need for specialized installations for certain types of waste.
                     
                  
                        2.
                     
                     
                        The network must also enable waste to be disposed of in one of the nearest appropriate installations, by means of the most appropriate methods and technologies ...’.
                     
                  It seems to me that a unilateral prohibition by one Member State on the importation of waste could well be inconsistent with the establishment of such an integrated network. In particular, such a ban might have the consequence that waste from an adjacent Member State could not be disposed of in one of the nearest appropriate installations.
            
         
               27.
            
            
               It is true that Article 5 of the amended directive refers to the aim of Member States moving individually towards the goal of self-sufficiency in waste. It is clear however that this objective must not be achieved in a manner incompatible with Articles 30 to 36 of the Treaty. Thus, although a reduction in the cross-border movement of waste may be a legitimate aim of the Community's environmental policy, it is not to be attained by means of quantitative restrictions at national frontiers. It is to be achieved, rather, by an improvement in waste disposal facilities, and, above all perhaps, by means of a limitation on the amount of waste produced (see the fourth recital to the amending directive). In other words, it is to be attained by reducing the need to export waste rather than by banning its importation from other Member States.
            
         
               28.
            
            
               Furthermore, the aim of national self-sufficiency mentioned in Article 5 is qualified by the need to take ‘geographical circumstances’ into account, as well as by ‘the need for specialized installations for certain types of waste’; and the aim is to be achieved by means of the drawing up by the Member States of waste management plans under Article 7 of the amended directive. It is in relation to such plans that Member States are permitted to take the measures necessary to prevent movements of waste (see Article 7(3)).
            
         
               29.
            
            
               Accordingly, although I still take the view that the prohibition of the Walloon Regional Executive does not infringe the version of Directive 75/442/EEC which is currently in force, that might no longer be the case after 1 April 1993, when the time-limit for giving effect to the directive as amended expires.
            
         
               30.
            
            
               The proposal for a Council directive concerning the disposal of waste by landfill dated 22 May 1991 does not have any direct bearing upon the movement of waste between Member States, being concerned rather with the harmonization of procedures and criteria for the use of that method of disposal within the Member States. It is clear, none the less, that such a harmonization of standards at a high level of environmental protection (see the second recital to the draft directive) is an appropriate complement to the free movement of waste, and might indeed go some way towards meeting the concerns of the Walloon Regional Executive.
            
         Conclusion
      
               31.
            
            
               I accordingly remain of the opinion that the Court should:
               
                        (1)
                     
                     
                        declare that by prohibiting the storage, tipping or dumping in Wallonia of waste from other Member States and, insofar as waste originating in other Member States is concerned, from Belgian regions other than Wallonia, the Kingdom of Belgium has failed to fulfil its obligations under Council Directive 84/631/EEC and Article 30 of the EEC Treaty;
                     
                  
                        (2)
                     
                     
                        For the rest, dismiss the application;
                     
                  
                        (3)
                     
                     
                        Order the Kingdom of Belgium to pay the costs.
                     
                  
         (
            *1
         )	Original language: English.