Chemische Afvalstoffen Dusseldorp BV and Others v Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer.
Date: 1998-06-25
27 In that respect, it should be noted, first, that Article 7 of the Directive provides that Member States are to draw up waste management plans in particular in order to attain the objectives set out in Articles 3, 4 and 5. Of those provisions, only Article 5 refers to the principles of self-sufficiency and proximity, and then solely in respect of waste for disposal.  Similarly, the seventh recital in the preamble, which refers to those principles, concerns that category of waste exclusively.
28 Secondly, the Regulation mentions those principles expressly only in the tenth recital in the preamble, which associates them solely with waste for disposal, and in Article 4(3)(a)(i) and (b), which sets out the type of measures which may be taken by the Member States and the competent authorities of dispatch and destination in order to implement them.  Since it is part of Chapter A of Title II of the Regulation, that provision concerns only the shipment of waste for disposal.
29 Article 7 of the Regulation, which is in Chapter B, concerning waste for recovery, and is the corresponding provision to Article 4, does not provide for the possibility of adopting measures to implement the principles of self-sufficiency and proximity.
30 It thus follows from the provisions of the Directive and the Regulation, and from the general scheme of the latter, that neither text provides for the application of the principles of self-sufficiency and proximity to waste for recovery.
31 That conclusion is borne out by the Council resolution of 7 May 1990 on waste policy (OJ 1990 C 122, p. 2), which is referred to in the second recital in the preamble to the Directive.  In that resolution, the Council specifies that the objective of self-sufficiency in waste disposal does not apply to recycling.
32 Furthermore, the explanatory memorandum in the initial proposal for the Regulation (COM(90) 415 final - SYN 305 of 26 October 1990) states that the criterion of proximity might justify intervention from the authorities in regard to waste for disposal.  That criterion is not mentioned in regard to waste for recovery;  in regard to the latter, only the criterion of environmentally sound management might be applied.
33 Finally, it should be noted that the difference in treatment between waste for disposal and waste for recovery reflects the different roles played by each type of waste in the development of the Community's environmental policy. By definition, only waste for recovery can contribute towards implementation of the principle of priority for recovery laid down in Article 4(3) of the Regulation.  It was in order to encourage such recovery in the Community as a whole, in particular by eliciting the best techologies, that the Community legislature stipulated that waste of that type should be able to move freely between Member States for processing, provided that transport poses no threat to the environment.  It therefore introduced for intra-Community shipment of that waste a more flexible procedure, which does not reflect the principles of self-sufficiency and proximity.
34 In view of those considerations, it must be concluded therefore that the Regulation and the Directive are to be interpreted as meaning that the principles of self-sufficiency and proximity do not apply to waste for recovery.
The interpretation of Article 130t of the Treaty
40 Article 34 prohibits quantitative restrictions on exports, as well as all measures having an equivalent effect.  According to the settled case-law of the Court, it concerns 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 (Case 155/80 Oebel [1981] ECR 1993, paragraph 15).
44 Even if the national measure in question could be justified by reasons relating to the protection of the environment, it is sufficient to point out that the arguments put forward by the Netherlands Government, concerning the profitability of the national undertaking AVR Chemie and the costs incurred by it, are of an economic nature.  The Court has held that aims of a purely economic nature cannot justify barriers to the fundamental principle of the free movement of goods (Case C-120/95 Decker [1998] ECR I-0000, paragraph 39).
49 It must therefore be concluded that the object and effect of application of the principles of self-sufficiency and proximity to waste for recovery, such as oil filters, is to restrict exports of that waste and is not justified, in circumstances such as those in the present case, by an imperative requirement relating to protection of the environment or the desire to protect the health and life of humans in accordance with Article 36 of the Treaty.  A Member State cannot therefore rely on Article 130t of the Treaty in order to apply the principles of self-sufficiency and proximity to such waste.
60 The grant of exclusive rights for the incineration of dangerous waste on the territory of a Member State as a whole must be regarded as conferring on the undertaking concerned a dominant position in a substantial part of the common market (see, to that effect, Case C-260/89 ERT [1991] ECR I-2925, paragraph 31).
61 Although merely creating a dominant position is not, in itself, incompatible with Article 86 of the Treaty, a Member State breaches the prohibitions laid down by Article 90 in conjunction with Article 86 if it adopts any law, regulation or administrative provision which enables an undertaking on which it has conferred exclusive rights to abuse its dominant position (see, to that effect, Case C-18/88 GB-Inno-BM [1991] ECR I-5941, paragraph 20).
65 It follows from the case-law of the Court that that provision may be relied upon to justify a measure contrary to Article 86 of the Treaty adopted in favour of an undertaking to which the State has granted exclusive rights if that measure is necessary to enable the undertaking to perform the particular task assigned to it and if it does not affect the development of trade in a manner contrary to the interest of the Community (see, to that effect, Case C-320/91 Corbeau [1993] ECR I-2533, paragraph 14, and Case C-159/94 Commission v France [1997] ECR I-5815, paragraph 49).