Commission of the European Communities v Council of the European Communities.
Date: 1993-03-17
7 According to what is now settled case-law, in the context of the organization of the powers of the Community, the choice of a legal basis for a measure must be based on objective factors which are amenable to judicial review. Those factors include, in particular, the aim and content of the measure (see, most recently, the judgment in Case C-295/90 Parliament v Council [1992] ECR I-4193, paragraph 13).
10 It appears from the above particulars that, according to its aim and content, the directive at issue has the object of ensuring the management of waste, whether it is of industrial or domestic origin, in accordance with the requirements of environmental protection.
12 Admittedly, waste, whether recyclable or not, is to be regarded as goods the movement of which, in accordance with Article 30 of the Treaty, must in principle not be prevented (judgment in Case C-2/90 Commission v Belgium [1992] ECR I-4431, paragraph 28).
13 However, the Court has held that imperative requirements relating to the protection of the environment justify exceptions to the free movement of waste. In that context, the Court has acknowledged that the principle that environmental damage should as a matter of priority be remedied at source, laid down by Article 130r(2) of the Treaty as a basis for action by the Community relating to the environment, entails that it is for each region, municipality or other local authority to take appropriate steps to ensure that its own waste is collected, treated and disposed of; it must accordingly be disposed of as close as possible to the place where it is produced, in order to limit as far as possible the transport of waste (judgment in Commission v Belgium, cited above, paragraph 34).
14 The aim of the directive is to implement those principles. It lays down, in particular in Article 5, the principle that the place at which waste is disposed of should be near the place where it was produced in order to ensure, as far as possible, that each Member State is self-suffient in waste disposal. Moreover, Article 7 of the directive authorizes Member States to prevent movements of waste for recovery or disposal which are not in accordance with their waste management plans.
15 In those circumstances, the directive cannot be regarded as intended to implement the free movement of waste within the Community, as, moreover, the Commission admitted at the hearing.
18 Admittedly, it must be acknowledged that some provisions of the directive, in particular the definitions set out in Article 1, affect the functioning of the internal market.
19 However, contrary to the Commission' s contention, the mere fact that the establishment or functioning of the internal market is affected is not sufficient for Article 100a of the Treaty to apply. It appears from the Court' s case-law that recourse to Article 100a is not justified where the measure to be adopted has only the incidental effect of harmonizing market conditions within the Community (judgment in Case C-70/88 Parliament v Council [1991] ECR I-4529, paragraph 17).
20 That is the case here. The harmonization provided for in Article 1 of the directive 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. As a result, it differs from Council Directive 89/428/EEC of 21 June 1989 on procedures for harmonizing the programmes for the reduction and eventual elimination of pollution caused by waste from the titanium dioxide industry (OJ 1989 L 201, p. 56), which was the subject of the judgment in the titanium dioxide case, cited above, and is intended to approximate national rules concerning production conditions in a given industrial sector with the aim of eliminating distortions of competition in that sector.
21 Accordingly, the contested directive must be deemed to have been validly adopted on the sole basis of Article 130s of the Treaty. The plea alleging that the wrong legal basis was chosen for the directive must therefore be rejected.
Article 18 of the directive
24 It must be held that, whilst the form of order sought by the Commission is to the effect that Directive 91/156 should be annulled, the form of order sought by Parliament is to the effect that Article 18 of the directive should be annulled on grounds which are entirely unconnected with those relied on by the Commission. Consequently, the grounds relied on by Parliament cannot be regarded as having the same object as those relied on by the Commission and must therefore be rejected as inadmissible.