EU-Wood-Trading GmbH v Sonderabfall-Management-Gesellschaft Rheinland-Pfalz mbH.
Date: 2004-12-16
16. Article 7(4) of the Regulation provides:
‘(a) The competent authorities of destination and dispatch may raise reasoned objections to the planned shipment:
– in accordance with Directive 75/442/EEC, in particular Article 7 thereof, or
– if it is not in accordance with national laws and regulations relating to environmental protection, public order, public safety or health protection, or
– if the notifier or the consignee has previously been guilty of illegal trafficking. In this case, the competent authority of dispatch may refuse all shipments involving the person in question in accordance with national legislation, or
– if the shipment conflicts with obligations resulting from international conventions concluded by the Member State or Member States concerned, or
– 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.
(b) The competent authorities of transit may raise reasoned objections to the planned shipment based on the second, third and fourth indents of (a).’
33. It must be observed, as a preliminary point, that the question of shipments of waste is regulated by harmonisation at Community level by the Regulation, in order to ensure the protection of the environment (Case C-324/99 DaimlerChrysler [2001] ECR I-9897, paragraph 42).
34. The conditions and procedures laid down by the Regulation were adopted with a view to ensuring the protection of the environment, taking account of objectives falling within the scope of environmental policy such as the principles of proximity, priority for recovery and self-sufficiency at Community and national levels. In particular, they enable the Member States, for the purposes of implementing those principles, to take measures to prohibit generally or partially or to object systematically to and oppose shipments of waste which are not in conformity with the Directive. The Regulation falls within the framework of the environmental policy pursued by the Community and cannot be regarded as seeking to implement the free movement of waste within the Community (Case C‑187/93 Parliament v Council [1994] ECR I-2857, paragraphs 22 and 23).
42. Finally, since under Article 4 of the Directive the Member States are to take the measures necessary to ensure that waste is recovered or disposed of without endangering human health and without the use of processes or methods capable of harming the environment, the provisions of the first indent of Article 7(4)(a) of the Regulation must be interpreted as authorising the competent authorities of destination and of dispatch to raise objections to a shipment of waste for recovery on the ground that the planned recovery disregards the requirements arising from Article 4 of the Directive.
43. In view of the foregoing, the reply to the first and second questions must be that the first indent of Article 7(4)(a) of the Regulation is to be interpreted as meaning that the objections to a shipment of waste for recovery which the competent authorities of dispatch and of destination are empowered to raise may be based on considerations connected not only to the actual transport of the waste in each competent authority’s area of jurisdiction but also on the recovery planned for that shipment.
The third question
45. In that regard, as was stated in paragraph 33 of this judgment, the Regulation harmonised the question of shipments of waste in order to ensure the protection of the environment. On the other hand, as the Advocate General states in point 60 of his Opinion, the requirements governing the recovery of waste have not been the object of harmonisation measures. Therefore, under the first paragraph of Article 4 of the Directive, the Member States must take the necessary measures to ensure that waste is recovered without endangering human health and without using processes or methods which could harm the environment and, in particular, without risk to water, air, soil, plants and animals, without causing a nuisance through noise or odours, and without adversely affecting the countryside or places of special interest. Whilst that provision does not specify the actual content of the measures which must be taken, it is binding on the Member States as to the objective to be achieved, whilst leaving to the Member States a margin of discretion in assessing the need for such measures (Case C-365/97 Commission v Italy [1999] ECR I-7773, paragraphs 66 and 67).
46. In exercising that discretion, the Member States may, in setting their waste recovery standards, be led to adopt national measures whose requirement levels with regard to the objectives of protection of human health and the environment laid down by the Directive may differ substantially from one State to another. It is precisely in those circumstances that the questions referred by the national court arise and particularly the question whether, where the standards set by the Member State of dispatch to attain the abovementioned objectives are higher than those applicable in the State of destination, the competent authority of dispatch may, on the basis of the Regulation, raise an objection to the envisaged shipment by invoking the higher level of protection under its national standards. Since it must be accepted that the competent authorities of dispatch are empowered to raise objections to the shipment taking account of matters connected to the conditions in which the recovery of waste is carried out in the State of destination, the provisions of the first indent of Article 7(4)(a) of the Regulation imply that those authorities, in assessing the risks which such recovery would entail for human health and the environment, may take account of all relevant criteria in that regard, including those which are in force in the State of dispatch, even if they are stricter than those of the State of destination, and provided they are intended to avoid those risks. The competent authorities of dispatch cannot, however, be bound by the criteria of their State if such criteria are no more apt to avoid those risks than those of the State of destination.
48. It is true that such opposition may, as in the main proceedings, conflict with the position taken by the competent authority of destination where that authority, taking the view that the recovery meets the requirements of its own national standards, raises no objection to the envisaged shipment of waste. However, such a situation is inherent in the system established by the Regulation, which confers simultaneously on all the competent authorities the responsibility of ensuring that shipments are carried out in accordance with the Regulation (Case C-6/00 ASA [2002] ECR I-1961, paragraph 44). That divergence in the assessments of the different competent authorities cannot therefore be validly invoked, as being contrary to the principle of cooperation expressed in Article 10 EC, in order to require a different interpretation of the Regulation.
49. However, since the Community legislature stipulated that waste for recovery should be able to move freely between Member States for processing (Case C-203/96 Dusseldorp and Others [1998] ECR I-4075, paragraph 33), opposition by the competent authority of dispatch on the basis of its national waste recovery standards to a shipment can only be lawful in so far as those standards, in compliance with the principle of proportionality, are apt to attain the objectives pursued which are intended to prevent risks for human health and the environment, and do not go beyond what is necessary to attain them.
50. In that regard, the risks must be measured, not by the yardstick of general considerations, but on the basis of relevant scientific research (see to that effect, in particular, Case C-17/93 Van der Veldt  [1994] ECR I-3537, paragraph 17).
51. Furthermore, the fact that one Member State imposes less strict rules than another Member State does not necessarily mean that the stricter rules are disproportionate and hence incompatible with Community law (see Case C-294/00 Gräbner [2002] ECR I-6515, paragraph 46).
52. The mere fact that a Member State has chosen a system of protection different from that adopted by another Member State cannot affect the appraisal as to the need for and proportionality of the provisions adopted (Case C-67/98 Zenatti [1999] ECR I-7289, paragraph 34, and Gräbner , paragraph 47).
53. It is for the national court seised of an action challenging the opposition of the competent authority of dispatch to assess whether those national standards have been used in circumstances contrary to the principle of proportionality (see to that effect Case C-314/98 Snellers [2000] ECR I‑8633, paragraph 59).