CELEX: C2001/200/93
Language: en
Date: 2001-07-14 00:00:00
Title: Case C-194/01: Action brought on 4 May 2001 by the Commission of the European Communities against the Republic of Austria

C 200/52               EN                    Official Journal of the European Communities                                    14.7.2001
Action brought on 4 May 2001 by the Commission of the                           it is concluded from the mere fact that a substance
 European Communities against the Republic of Austria                           or object, on ceasing to be used for the purpose for
                                                                                which it is intended, does not leave the establishment
                                                                                in which it is located that the holder does not discard,
                         (Case C-194/01)                                        intend to discard or stand under an obligation to
                                                                                discard that substance or object. The ultimate effect
                                                                                of that provision is that substances and objects
                         (2001/C 200/93)                                        which the holder intends to or must dispose of and
                                                                                in addition fall within the categories specified in
                                                                                Annex I to the framework waste directive are not
An action against the Republic of Austria was brought before                    covered by the provisions on waste disposal and
the Court of Justice of the European Communities on 4 May                       recovery if they are disposed of or recovered only in
2001 by the Commission of the European Communities,                             the holder’s establishment.
represented by Dr Götz zur Hausen, Legal Adviser in its Legal
Service, with an address for service in Luxembourg at the office
of Gerard Berscheid, of its Legal Service, Wagner Centre C 254,
Kirchberg, Luxembourg.
The applicant claims that the Court should:                                  —  The exemption in Paragraph 3(3)(5) of the
                                                                                Abfallwirtschaftsgesetz is drafted in such broad
1.    declare that the Republic of Austria has failed to fulfil its             terms that it does not even contain a reference to
      obligations under Council Directive 75/442/EEC (1) of                     the intended use of the substances or objects or a
      15 July 1975 on waste, as amended by Council Directive                    presumption or rule of evidence. It may be that,
      91/156/EEC (2) of 18 March 1991, in that it has not                       because of its specific properties and economic
      transposed the concept of waste as that concept is laid                   value, unalloyed scrap iron is generally sold to
      down by Article 1(a) of the directive, but:                               steel producers for use as a raw material in steel
                                                                                production. However, that does not automatically
                                                                                mean that it is not waste. Even a statutory presump-
      —     excludes in principle from the concept of waste
                                                                                tion which restricted the directive’s field of appli-
            objects used and recovered within an establishment;
                                                                                cation and resulted in substances and products that
                                                                                matched the directive’s definition of waste not being
      —     excludes unalloyed scrap iron generally and other                   covered would be impermissible, because it would
            waste (scrap) under certain circumstances from                      prejudice the effectiveness of Article 175 EC and of
            application of the provisions relating to waste:                    the directive. With regard to the exemption from
                                                                                the scope of the Abfallwirtschaftsgesetz for other
      —     has not transposed correctly the categories of waste                waste (scrap), laid down, for the duration of control
            under Annex I to the directive and the ‘European                    measures, by Paragraph 3(3)(6) of that Law, the
            waste catalogue’ under Commission Decision                          Republic of Austria has given notice that that
            94/3/EC of 20 December 1993 establishing a list of                  provision is to be repealed. Even if that exemption
            wastes pursuant to Article 1(a) of Council Directive                of an entire category of waste currently has no
            75/442/EEC on waste;                                                concrete effects because no control measures under
                                                                                the Versorgungssicherungsgesetz (Law on Security
2.    declare that, by not transposing correctly either the list of             of Supplies) are in force, it is inconsistent with the
      hazardous waste under Council Decision 94/904/EC of                       definition of the concept of waste in Article 1(a) of
      22 December 1994 establishing a list of hazardous waste                   the waste framework directive.
      pursuant to Article 1(4) of Council Directive 91/689/EEC
      of 12 December 1991 on hazardous waste or Annexes I
      and II to that directive, the Republic of Austria has failed
      to fulfil its obligations under Article 1(4) of Directive
      91/689/EEC;
                                                                             —  It follows from Article 1(a) of the directive that the
3.    order the Republic of Austria to pay the costs.                           question whether substances or objects fall within
                                                                                one of the categories specified in Annex I to the
                                                                                directive constitutes one of the two decisive criteria
                                                                                for defining waste under the directive. For that
Pleas in law and main arguments                                                 reason alone, the provisions of Annex I, which, as
                                                                                an integral part of the directive, are covered by
                                                                                the duty to transpose in Article 2 of Directive
—     Infringement of Article 1(a) of Directive 75/442/EEC                      91/156/EEC, must also be embodied in the national
                                                                                implementing provisions. However, the Austrian
      —     A general presumption, as contained in Paragraph 2                  provisions in force do not refer at all to Annex I to
            of the Abfallwirtschaftsgesetz (Austrian Law on                     the waste framework directive, and the definition of
            Waste Management), is inconsistent with the                         the concept of waste in those national provisions
            requirements of the directive. Under that provision,                does not correspond to the concept in the directive.
 ---pagebreak--- 14.7.2001             EN                     Official Journal of the European Communities                                      C 200/53
—    Infringement of Article 1(4) of Directive 91/689/EEC:              4.    Article 12 of the Trade Marks Directive provides that a
     Under the first indent of Article 1(4), a precise and                    trade mark shall be ‘liable’ to revocation in specified
     uniform definition of hazardous waste, required for                      circumstances. When those circumstances exist, must the
     application of the directive, is achieved by reference to                court revoke the trade mark, or does the court retain any
     Annexes I, II and III to the directive and the list of                   discretion as to whether to revoke?
     hazardous waste to be drawn up in accordance with the
     procedure laid down in Article 18. It follows that, in their
     legislation to transpose the directive, the Member States          (1) OJ L 40, 11.2.1989, p. 1.
     must take those annexes and that list as a basis for
     determining the field of application of their national
     provisions. The list, which is contained in Council
     Decision 94/904/EC, supplements the provisions of the
     directive on hazardous waste.
     The possibility for the Member States to adopt stricter
     protective measures in fields harmonised by Community              Action brought on 8 May 2001 by the Commission of the
     environmental provisions is not to be equated with an              European Communities against the Grand Duchy of
     option not to transpose such harmonisation measures.                                          Luxembourg
                                                                                                 (Case C-196/01)
(1) OJ L 194, 25.7.1975, p. 47.
(2) OJ L 78, 26.3.1991, p. 32.                                                                   (2001/C 200/95)
                                                                        An action against the Grand Duchy of Luxembourg was
                                                                        brought before the Court of Justice on 8 May 2001 by the
                                                                        Commission of the European Communities, represented by
                                                                        H. Støvlbaek and J. Adda, acting as Agents, with an address for
                                                                        service in Luxembourg.
Reference for a preliminary ruling by the House of Lords,               The applicant claims that the Court should:
by order of that court of 4 April 2001, in the case of                  —     declare that the Grand Duchy of Luxembourg has failed
Scandecor Development AB and others against Scandecor                         to comply with its obligations under Article 1(a) of
                   Marketing AB and another                                   Council Directive 75/442/EEC of 15 July 1975 on
                                                                              waste (1), as amended by Council Directive 91/156 EC of
                        (Case C-195/01)                                       18 March 1991 (2) and Commission Decision 94/3/EC of
                                                                              20 December 1993 establishing a list of wastes pursuant
                                                                              to Article 1(a) of Council Directive 75/442/EEC on
                        (2001/C 200/94)                                       waste (3);
Reference has been made to the Court of Justice of the                  —     order the Grand Duchy of Luxembourg to pay the costs.
European Communities by an order of the House of Lords of
4 April 2001, which was received at the Court Registry on
7 May 2001, for a preliminary ruling in the case of Scandecor           Pleas in law and main arguments
Development AB and others against Scandecor Marketing AB
and another, on the following questions:
                                                                        —     Although the Grand Duchy of Luxembourg was obliged,
                                                                              under the fourth paragraph of Article 249 EC, to
1.   Is a trade mark to be regarded as liable to mislead the
                                                                              incorporate the European Waste Catalogue (EWC), for-
     public within the meaning of article 12(2)(b) of Council
                                                                              ming the subject-matter of Decision 94/3/EC, into its
     Directive No 89/1104/EEC (1) of 21 December 1988 to
                                                                              national law, it has simply reproduced it in a ministerial
     approximate the laws of the Member States relating to
                                                                              circular which is binding on the administrative authorities
     trade marks (the ‘Trade Marks Directive’) if the origin of
                                                                              but not on third parties.
     the goods denoted by the mark is a bare exclusive
     licensee?                                                          —     At the same time, the Grand Duchy of Luxembourg
                                                                              introduced a nomenclature applying purely to Luxem-
2.   What are the criteria to be applied in determining whether               bourg, which is totally different from the EWC. Various
     a trading relationship comprises a single undertaking for                operations in respect of which use of the EWC is
     the purposes of the Trade Marks Directive?                               precluded are linked to the implementation of national
                                                                              measures designed to transpose the Community legis-
3.   Is a company a person for the purpose of article 6(1)(a)                 lation on waste. In addition, the coexistence of two lists
     of the Trade Marks Directive?                                            (the Luxembourg nomenclature and the EWC) between