Entreprenørforeningens Affalds/Miljøsektion (FFAD) v Københavns Kommune.
Date: 2000-05-23
34 According to the settled case-law of the Court, Article 34 of the Treaty applies to national measures which have as their specific object or effect the restriction of patterns of exports and thereby the establishment of a difference in treatment between the domestic trade of a Member State and its export trade, in such a way as to provide a particular advantage for national production or for the domestic market of the State in question (see Case 172/82 Inter-Huiles and Others [1983] ECR 555, paragraph 12).
37 The Court would observe in limine that the mere fact that an exclusive right to process the building waste produced in a municipality is granted to a limited number of undertakings does not necessarily have the effect of creating a barrier to exports contrary to Article 34 of the Treaty, provided that waste producers are still able to export it (see, in that regard, Inter-Huiles, cited above, paragraph 11).
40 In the absence of an express exemption for exports, a provision such as the 1992 municipal regulation might be construed as containing an implicit prohibition on exports, contrary to Article 34 of the Treaty (see, in that regard, Case 173/83 Commission v France [1985] ECR 491, paragraph 7). It is for the national court to ascertain whether that was the position in the case before it.
48 As regards the justification based on the protection of the environment, and in particular the principle referred to in Article 130r(2) of the Treaty that environmental damage should as a priority be rectified at source, it must be pointed out that the protection of the environment cannot serve to justify any restriction on exports, particularly in the case of waste destined for recovery (see, to that effect, Case C-203/96 Dusseldorp and Others [1998] ECR I-4075, paragraph 49). That is so a fortiori where, as in the case before the national court, environmentally non-hazardous building waste is involved.
54 It follows that those three undertakings must be regarded as undertakings to which the Member State concerned has granted an exclusive right within the meaning of Article 90(1) of the Treaty (see, in that regard, Case C-320/91 Corbeau [1993] ECR I-2533, paragraph 8, and Joined Cases C-147/97 and C-148/97 Deutsche Post [2000] ECR I-825, paragraph 37).
57 As regards the question of the existence of a dominant position, the Court has repeatedly emphasised that the definition of the relevant market is of fundamental importance, as is the delimitation of the substantial part of the common market in which the undertaking may be able to engage in abuses which hinder effective competition (see, for example, Case C-242/95 GT-Link [1997] ECR I-4449, paragraph 36).
60 In that regard, it must be stated that it is for the national court to define the relevant market in the light of the facts available to it, first having regard to the particular features of the product or service in question and, second, with reference to a clearly defined geographical area in which it is marketed and where the conditions of competition are sufficiently homogeneous for it to be possible to evaluate the economic power of the undertaking or undertakings concerned (see Case 27/76 United Brands v Commission [1978] ECR 207, paragraph 11).
64 Next, once the limits of the area affected have been defined, it will be necessary to consider whether that area constitutes a substantial part of the common market having regard, in particular, to the volume of building waste produced and processed in the Municipality of Copenhagen and its importance in relation to building waste processing operations as a whole in Denmark (see, in that regard, Case C-179/90 Merci Convenzionali Porto di Genova [1991] ECR I-5889, paragraph 15, and GT-Link, cited above, paragraph 37).
66 It must be borne in mind that merely creating a dominant position by the grant special or exclusive rights within the meaning of Article 90(1) of the Treaty is not in itself incompatible with Article 86 of the Treaty. A Member State is in breach of the prohibitions contained in those two provisions only if the undertaking in question, merely by exercising the exclusive rights granted to it, is led to abuse its dominant position or when such rights are liable to create a situation in which that undertaking is led to commit such abuses (see, for example, Joined Cases C-115/97 to C-117/97 Brentjens' [1999] ECR I-6025, paragraph 93).
67 The Court has thus held that a Member State may, without infringing Article 86 of the Treaty, grant exclusive rights to certain undertakings provided they do not abuse their dominant position or are not led necessarily to commit an abuse (see Case C-266/96 Corsica Ferries France [1998] ECR I-3949, paragraph 41).
74 In that regard, it must be pointed out that it follows from the combined effect of paragraphs 1 and 2 of Article 90 that paragraph 2 may be relied upon to justify the grant by a Member State, to an undertaking entrusted with the operation of services of general economic interest, of exclusive rights which are contrary to, in particular, Article 86 of the Treaty, to the extent to which performance of the particular task assigned to that undertaking can be assured only through the grant of such rights and provided that the development of trade is not affected to such an extent as would be contrary to the interests of the Community (see, as regards exclusive rights contrary to Article 37 of the EC Treaty (now, after amendment, Article 31 EC), Case C-154/94 Commission v France [1997] ECR I-5815, paragraph 49).
75 The management of particular waste may properly be considered to be capable of forming the subject of a service of general economic interest, particularly where the service is designed to deal with an environmental problem.
77 Next, it is necessary to consider whether the exclusive right granted to the three undertakings is necessary for them to be able to perform the task of general economic interest which has been assigned to them under economically acceptable conditions (see Corbeau, cited above, paragraphs 14 and 16, and Brentjens', cited above, paragraph 107).
85 As regards Directive 75/442, the Court held in Case C-155/91 Commission v Council [1993] ECR I-939, paragraph 20, that the harmonisation provided for in Article 1 of Directive 75/442 has as its main object to ensure, with a view to protecting the environment, the effective management of waste in the Community, regardless of its origin, and has only ancillary effects on the conditions of competition and trade.
100 Neither the wording nor the purpose of that provision provides any ground for the view that failure by the Member States to observe their obligation to give prior notice in itself renders unlawful the measures thus adopted (see, in that regard, concerning Article 3(2) of Directive 75/442, in the version prior to Directive 91/156, Case 380/87 Enichem Base and Others [1989] ECR 2491, paragraph 22).