Provisional text
OPINION OF ADVOCATE GENERAL
ĆAPETA
delivered on 16 May 2024 (1)
Case C‑188/23
Land Niedersachsen
v
Conti 11. Container Schiffahrts-GmbH & Co. KG MS ‘MSC Flaminia’
(Request for a preliminary ruling from the Oberlandesgericht München (Higher Regional Court, Munich, Germany))
(Reference for a preliminary ruling - Environment – Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal – Regulation (EC) No 1013/2006 – Scope of application – Waste arising from a chemical fire and explosions on the high seas – Interpretation of judgment of 16 May 2019, Conti 11. Container Schiffahrt (C‑689/17, EU:C:2019:420))
I. Introduction
1. It is 05:42 am on 14 July 2012. The Flaminia, a container ship, is on a voyage from Charleston (United States) to Antwerp (Belgium) when, mid-Atlantic, a chemical fire erupts and explosions ensue. Extensive damage is caused and the ship is contaminated by dangerous and toxic residues. Several crew members die. The fire and explosions continue for days. The closest port is several hundred nautical miles away. After weeks of salvage efforts and denials of entry by several surrounding ports, the ship is ultimately towed into Wilhelmshaven (Germany).
2. The competent German authorities of the Land Niedersachsen (Land of Lower Saxony) (‘the Land’) order that the notification and consent procedure, within the meaning of the Regulation (EC) No 1013/2006, (2) be commenced before the Flaminia could be towed onwards to Mangalia (Romania) for the removal of (some of) the dangerous and toxic waste and repair of the ship.
3. Interpreting the Court’s 2017 judgment in Conti 11. Container Schiffahrt (3) as not requiring that procedure, Conti, the applicant in the main proceedings, is seeking compensation from the Land for the costs linked thereto.
4. For its part, the Land, in essence, claims that it would not have been possible, from the perspective of the protection of the environment, to allow a ship carrying approximately around 30 000 mt of toxic wastewater and other materials to depart from Wilhelmshaven to Mangalia without undergoing the notification and consent procedure in question. It considers that one of the obligations arising from the Basel Convention, (4) to which the European Union and its Member States are parties, is to provide for such a procedure for precisely those movements of such hazardous waste. If the Waste Shipments Regulation did not require notification for that type of movement, as the first instance court understood the judgment in Conti 11. Container Schiffahrt, the Land considers that the European Union would be in breach of its obligations under the Basel Convention.
5. The overarching question before the Court is thus one of interpreting its judgment in Conti 11. Container Schiffahrt: does that judgment expose the Waste Shipments Regulation to a potential incompatibility with the European Union’s obligations under the Basel Convention? And if not, did the Land correctly impose on Conti the notification and consent procedure provided for under the Waste Shipments Regulation?
II. The legal and factual context of the present case and the questions referred for a preliminary ruling
6. Conti is a German company based in Hamburg (Germany). At the material time, that company owned a container ship, organised as a one ship special purpose vehicle, sailing under the name Flaminia.
7. In November 2000, Conti chartered the Flaminia to MSC, a Swiss company based in Geneva (Switzerland).
8. From approximately November 2000 to June 2012, the Flaminia carried thousands of cargo containers to and from ports around the world, including the port of New Orleans (United States).
9. In June 2012, an American chemical manufacturer requested to ship three tank containers of 80% divinylbenzene (‘DVB’) out of New Orleans. DVB is a chemical compound that is used in water purification.
10. DVB must be kept below a certain temperature to prevent a chemical process called ‘auto-polymerisation’, which has the effect of resulting in rapid temperate increases and emission of flammable vapours. (5)
11. On 14 July 2012, while the Flaminia was mid-Atlantic en route from Charleston to Antwerp, an explosion occurred in the containers carrying the DVB, which led to a large fire on board.
12. Three crew members lost their lives. Hundreds of containers were destroyed and extensive damage was caused to the ship.
13. It is unclear what precisely led to the fire and explosions. (6)
14. After the crew and passengers had abandoned ship, the Flaminia was left drifting in the mid-Atlantic. The fires continued. (7) Another explosion ensued. (8)
15. Conti engaged salvors. To bring the fires under control and to salvage the ship and cargo, the salvors sprayed seawater onto the ship. One result of that process was that about 30 000 mt of firefighting water, contaminated with dangerous and toxic residues, remained in the holds of the Flaminia after the fire was brought under control.
16. It would later transpire that even after the discharge of the majority of the firefighting waters, 30 500 mt of waste material remained on board the ship, (9) consisting inter alia of sludge, fire-damaged solid cargo, contaminated water, and steel scrap.
17. At the time of the explosion, the Flaminia found itself between Canada and the United Kingdom, around 650 nm from the nearest port (San Miguel, Azores, Portugal), on an eastward course. (10)
18. After the submission of a passage plan, the salvors towed the Flaminia through the English Channel to Wilhelmshaven, which was the only available port of refuge, (11) as the following map, (12) drawn up by the German Federal Bureau of Maritime Casualty Investigation, shows:
19. The ship arrived in the port of Wilhelmshaven on 9 September 2012. (13)
20. By letter of 30 November 2012, the Niedersächsisches Ministerium für Umwelt, Energie und Klimaschutz (Ministry of Lower Saxony for the Environment, Energy, and Climate Protection, Germany) informed Conti that the water used to extinguish the fire on board and the sludge and scrap metal thereon were to be classified as ‘waste’ within the meaning of the Waste Shipments Regulation. A notification and consent procedure, as provided for in that regulation, therefore had to be completed before the ship could leave for Romania.
21. Despite objections on the part of Conti, on 4 December 2012, the Gewerbeaufsichtsamt Oldenburg (Oldenburg Trade Supervisory Authority, Germany) ordered the completion of the notification and consent procedure for the transportation to Romania. It also issued a prohibition to move the ship prior to the completion of that procedure and the submission of an approved waste disposal strategy.
22. The applicant had to complete two notification procedures.
23. The first notification procedure concerned the transportation of some of the fire-extinguishing water on board the Flaminia from Wilhelmshaven to Odense (Denmark). (14)
24. The second notification procedure concerned the Flaminia’s transport of the rest of the waste from Wilhelmshaven to Mangalia. (15)
25. It is that second procedure that forms the basis of Conti’s claim before the referring court.
26. While it was not apparent from the order for reference, at the hearing, the parties confirmed that not all the remaining waste material was discharged in Mangalia. Instead, a further voyage to Aarhus (Denmark) and then Odense (Denmark) took place, where a total of approximately 28 400 mt of waste material was removed. (16)
27. As confirmed at the hearing, for that journey, Conti completed the notification procedure with the Romanian authorities.
28. After the waste removal in Denmark was completed, the Flaminia left Odense to Mangalia where repairs were carried out.
29. The fire and explosions on board the Flaminia resulted in multiple claims before the courts of different jurisdictions.
30. First, a number of claims were brought before the United States District Court for the Southern District of New York (United States). In July 2018, that court assigned fault for the fire aboard the Flaminia to the manufacturer of the tanks and the manufacturer of the DVB. In June 2023, that ruling was affirmed ‘in all material respects’ by the United States Court of Appeals for the Second Circuit. (17)
31. Second, the charter-party between Conti and MSC contained an arbitration clause which required all disputes arising out of the charter-party to be arbitrated in London (United Kingdom). Accordingly, while litigation progressed in New York (United States), Conti also pursued claims in arbitration under the charter-party. By the award dated 30 July 2021 and corrected on 1 September 2021, the arbitration panel established pursuant to the latter agreement, held that MSC had breached the charter-party and would be liable for approximately 200 million United States dollars (USD) (EUR 184 million) (‘the arbitral award’). An action seeking confirmation of that award pursuant to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (18) (also known as ‘the New York Convention’) is pending before the United States District Court for the Eastern District of Louisiana (United States). (19) A separate action by MSC to limit its liability to approximately 28.2 million pounds sterling (GBP) (EUR 32.9 million) was denied before the High Court of Justice (England & Wales) and the Court of Appeal (England & Wales). (20) Permission to appeal before the Supreme Court of the United Kingdom was granted on 19 December 2023, (21) with that case pending at the point of finalisation of my Opinion.
32. Finally, the administrative decision ordering the notification and consent procedure before Conti could move the Flaminia to Romania triggered the present action before German courts. At first instance, the Landgericht München I (Regional Court, Munich I, Germany) requested from the Court an interpretation of the Waste Shipments Regulation. Upon receiving the answer to its question in the judgment in Conti 11. Container Schiffahrt, that court awarded damages to Conti, holding that the notification and consent procedure was not required under the Waste Shipments Regulation. That first instance judgment was appealed before the referring court in the present case.
33. In the meantime, the Flaminia has returned to service. It is currently sailing as the ‘CMA CGM San Francisco’, flying the flag of Liberia.
34. Against the background described above, at the appeal stage of the procedure, initiated by Conti’s claim for damages arising from the allegedly unnecessary notification procedure in question, the Oberlandesgericht München (Higher Regional Court, Munich, Germany) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Is the exemption from the obligation to notify, set out in Article 1(3)(b) of [the Waste Shipments Regulation], invalid, as being contrary to the provisions of [the Basel Convention], in so far as the exemption would also remove the obligation to notify hazardous waste that is attributable to damage incurred by a ship at sea and that is to be regarded as waste within the meaning of that exemption provision in accordance with the judgment of the Court of Justice of the European Union of 16 May 2019 in Case C‑689/17?
(2) In the event that Question 1 is answered in the negative, is the exemption provided for in Article 1(3)(b) of [the Waste Shipments Regulation], to be interpreted, in the light of the requirements of [the Basel Convention], restrictively as meaning that residues in the form of scrap metal and fire-extinguishing water mixed with sludge and cargo residues such as those in the present case that are attributable to damage incurred at sea are not to be regarded as waste generated on board ships within the meaning of that provision?’
35. On 7 February 2024, the referring court informed the Court that it had ordered the suspension of proceedings before it, following a concordant request of both Conti and the Land. However, in a later communication with the Registry of the Court of Justice, that court also clarified that the proceedings before it may resume at any time, such that the present preliminary reference has not become devoid of purpose and the interpretation sought remains necessary.
36. Written observations were su bmitted to the Court by Conti, the Land, the European Parliament, the Council and the Commission. Those parties and the French Government presented oral argument at the hearing that took place on 27 February 2024.
III. Analysis
37. The main trigger for the present reference is the judgment of the Court in Conti 11. Container Schiffahrt; or, rather, how that ruling was understood and applied by the Landgericht München I (Regional Court, Munich I), when deciding on the present dispute at first instance.
38. The reference underlying the judgment in Conti 11. Container Schiffahrt sought an interpretation of the expression ‘waste generated on board ships’, as contained in Article 1(3)(b) of the Waste Shipments Regulation. That provision excludes from the scope of that regulation ‘waste generated on board vehicles, trains, aeroplanes and ships, until such waste is offloaded in order to be recovered or disposed of’.
39. The Court considered that that expression must be interpreted as encompassing also the waste attributable to damage on board a ship on the high seas. (22) Accordingly, waste of the type resulting from fire and explosions aboard the Flaminia, until it is offloaded in order to be recovered or disposed of, would be excluded from the scope of the Waste Shipments Regulation. (23)
40. The consequence of qualifying a situation as entering within the scope of Article 1(3)(b) of the Waste Shipments Regulation is that the notification and consent procedure underlying that regulation does not find application. Accordingly, in such a scenario, the notification and consent procedure, which that regulation imposes for the shipment of waste between, among others, two Member States, is not mandated until that waste is offloaded in order to be recovered or disposed of. Following that logic, the Landgericht München I (Regional Court, Munich I) held that Conti’s claim for damages against the Land could succeed.
41. The referring court, however, questions whether the resulting non-application of the notification and consent procedure for shipments of waste from a German to a Romanian port would be contrary to the Basel Convention.
42. Therefore, by its first question, that court essentially asks that the Court declare Article 1(3)(b) of the Waste Shipments Regulation invalid to the extent that it allows derogating from the system established by the Basel Convention. It considers that while the Court did not address that question in its judgment in Conti 11. Container Schiffahrt, an answer thereto would be relevant for the resolution of the dispute pending before it, since Conti would be entitled to claim compensation only if the exclusion arising from Article 1(3)(b) of the Waste Shipments Regulation applied in its favour.
43. By its second question, the referring court, in essence, requests that the Court read Article 1(3)(b) of the Waste Shipments Regulation in conformity with the Basel Convention so as to bring the former in line with the European Union’s obligations under the latter.
44. Therefore, at their heart, both questions aim at the finding that the notification and consent procedure imposed by the Land was warranted in the case of the Flaminia.
45. To my mind, that is indeed the requirement that the Waste Shipments Regulation imposes in the particular circumstances of the present case. However, I take that position not for the reason of a purported invalidity of Article 1(3)(b) of that regulation, but rather because of the inapplicability of that provision to the situation at issue. As I will show, the judgment in Conti 11. Container Schiffahrt does not lead to a different conclusion.
46. My Opinion is structured as follows. First, I will explain that the Basel Convention applies to the circumstances of the present case and requires the initiation of the notification and consent procedure in question. The Waste Shipments Regulation was enacted with the intention to organise the shipment of waste in the European Union so that it, among other objectives, conforms to the Basel Convention. Therefore, the Court should interpret the rules of the Waste Shipments Regulation in conformity with the Basel Convention (A).
47. Second, I will establish that the interpretation adopted in the judgment in Conti 11. Container Schiffahrt does not render Article 1(3)(b) of the Waste Shipments Regulation incompatible with the requirements of the Basel Convention. In my view, the Court’s answer in that case related to the first leg of the Flaminia’s journey following the waste-generating accident – that is to say the journey from the high seas to Germany. Excluding that journey from the notification and consent procedure laid down in the Waste Shipments Regulation is consistent, as the Court explained in the judgment in Conti 11. Container Schiffahrt, with the environmental objectives of the Waste Shipments Regulation, objectives which that regulation shares with the Basel Convention (B).
48. Third, the present case does not relate to the Flaminia’s journey from the high seas to Germany. Rather, it concerns the second leg of its journey – that from the German port of Wilhelmshaven to the Romanian port of Mangalia. I will explain that Article 1(3)(b) of the Waste Shipments Regulation does not apply to that shipment of waste, even where said waste is ‘generated on board … ships’. The notification and consent procedure laid down in the Waste Shipments Regulation therefore applies (C).
49. Finally, and before I proceed, it is relevant to highlight that it is not disputed that the provisions of the Waste Shipments Regulation and the Basel Convention cover the type of waste that was shipped from Germany to Romania aboard the Flaminia; that is to say, residues in the form of scrap metal and fire-extinguishing water mixed with sludge and cargo residues. (24)For the purposes of my analysis, I will therefore proceed on the assumption that those instruments apply ratione materiae.
A. The Waste Shipments Regulation and the Basel Convention
50. Why is the Court’s interpretation of the Basel Convention necessary for the purposes of the present case?
51. EU legislation governing the shipment of hazardous waste between the Member States has existed since 1984. (25)
52. When the European Union signed the Basel Convention in 1989, (26) it sought to align its existing law with that convention by means of Regulation No 259/93. (27)
53. The Waste Shipments Regulation, the interpretation of which is at issue in the present case, repealed and replaced Regulation No 259/93 in 2006. (28) That, however, did not do away with the intention of aligning EU law with the Basel Convention.
54. Recital 3 of the Waste Shipments Regulation explains that it is ‘designed, inter alia, to make the existing Community system for the supervision and control of waste movements comply with the requirements of the Basel Convention’. (29)
55. By means of that recital, the EU legislature sought to make clear that the European Union wished to satisfy its obligations under the Basel Convention, (30) and that it accepted the basic principles laid down therein, such as the requirement to reduce to a minimum the shipments of hazardous waste (31) and the right of each Basel Convention party to prohibit the importation of hazardous waste into their territory. (32)
56. Both the Waste Shipments Regulation and the Basel Convention share the same objective of protecting human health and the environment.
57. Thus, recital 1 of the Waste Shipments Regulation provides that ‘the main and predominant objective and component’ of the Waste Shipments Regulation ‘is the protection of the environment’, with any effects ‘on international trade being only incidental’. (33)
58. Similarly, the first recital of the preamble to the Basel Convention explains that its signatory parties adopted that convention ‘aware of the risk of damage to human health and the environment caused by hazardous wastes and other wastes and the transboundary movement thereof’. (34)
59. The Basel Convention thus aims to establish a global framework to control the movement of hazardous wastes or other wastes, starting with the minimisation of the generation of such waste and encouraging the environmentally sound management thereof, especially if said waste is transported across borders. At the level of international environmental law, that convention accordingly embodies the idea that it is the generator of waste who holds the ultimate responsibility for that waste, from its initial generation to its disposal, all with a view to accomplishing a ‘cradle to grave’ management of trade in waste. (35)
60. The impetus of moving towards the global harmonisation of certain rules in the area of shipments of waste arguably arose from the Khian Sea incident. In 1986, that ship loaded toxic ash in Philadelphia (United States), was turned away in the Bahamas, dumped 4,000 mt of that ash on the beach of Gonaives (Haiti), scoured the world seas for an additional 16 months, and ultimately dumped the remaining 10,000 mt into the Atlantic and Indian Oceans. (36)
61. Against the fresh memory of that incident, the Basel Convention was adopted to regulate the ‘transboundary movement’ of ‘hazardous waste’. (37)
62. The term ‘transboundary movement’ is defined in Article 2(3) of the Basel Convention, as ‘any movement of hazardous wastes or other wastes from an area under the national jurisdiction of one State to or through an area under the national jurisdiction of another State or to or through an area not under the national jurisdiction of any State, provided at least two States are involved in the movement’. (38)
63. Read in good faith and in accordance with its ordinary meaning, (39) it is clear that, through that definition, and in particular by means of the word ‘any’, the Basel Convention sought to cover the broadest possible range of journeys to, from, between and through the signatory States.
64. Accordingly, the movement of hazardous wastes and other wastes from Germany to Romania, such as that at issue in the present case, falls within the territorial scope of the Basel Convention.
65. That said, Article 1 of the Basel Convention nonetheless excludes two types of transboundary movement of hazardous wastes and other wastes from its scope of application, and thereby also from the resulting notification and consent procedure. The first such movement is that of radioactive waste subject to other international conventions (Article 1(3) thereof). The second type of movement is that of waste generated by the ‘normal’ operation of a ship, where another international instrument covers the discharge of that waste (Article 1(4) of the convention). (40)
66. Subject to confirmation, it is uncontested that the waste at issue in the present case is neither radioactive waste, nor that it was generated by the means of the ‘normal’ operation of the Flaminia. (41) Accordingly, its movement falls within the scope of the Basel Convention.
67. Given that the waste at issue falls within the scope of application of that convention, it cannot be moved from one State to another State without the prior informed consent of the State of import.
68. In this regard, Article 6(1) of the Basel Convention, which governs the transboundary movement of wastes between parties to that convention, requires that either the State of export, or the generator or exporter via the competent authority of the State of export, notify the competent authority of the States concerned of such a movement of waste. That notification must hence be made to the State of import and to those States through the territory of which the ship transits.
69. In addition, Article 6(3) of the Basel Convention prohibits the State of export to allow the transboundary movement of said wastes to commence until it has received written confirmation that the State of import has given its consent to that movement as well as confirmation of the existence of a contract with the disposer of the waste, specifying its environmentally sound management.
70. In short, the Basel Convention mandates the notification and consent procedure to be completed before any transboundary shipment of the type of waste that is not excluded from its scope can occur.
71. That includes the movement of the type of waste at issue in the present case, from Germany to Romania.
72. For movements of such wastes to, from, within and through the European Union and its Member States, the notification and consent procedure is regulated by the Waste Shipments Regulation. (42)
73. The European Union notified to the Basel Convention Secretariat the Waste Shipments Regulation as a regional ‘arrangement’, under Article 11(1) of the Basel Convention. In relevant part, that provision lays down that ‘parties may enter into bilateral, multilateral, or regional agreements or arrangements regarding transboundary movement of hazardous wastes or other wastes with Parties or non-Parties provided that such agreements or arrangements do not derogate from the environmentally sound management of hazardous wastes and other wastes as required by this Convention.’
74. The Waste Shipments Regulation territorially applies to four types of movements of waste: (i) shipments between Member States, with or without transit through a third country; (ii) imports of waste into the European Union from a third country; (iii) exports of waste from the European Union to a third country; and (iv) the transit of waste through the European Union of a shipment between third countries. (43)
75. By separating shipments into different categories, and thus adjusting the ‘procedures and control regimes for the shipment of waste’ depending on, inter alia, the ‘destination and the route of the shipment’, the Waste Shipments Regulation must be viewed as providing for the possibility of treating differently the distinct legs of a journey of a ship carrying waste falling within the scope of that regulation. (44)
76. From the point of view of the Waste Shipments Regulation, the movement of the waste at issue in the present case from Wilhelmshaven to Mangalia constitutes an intra-EU shipment, as described in Article 1(2)(a) and regulated by Title II thereof.
77. Articles 4 to 17 of the Waste Shipments Regulation govern in detail the procedure of prior written notification and consent that must be followed both when the waste is shipped for disposal or for recovery operations.
78. By virtue of that procedure, the ‘notifier’ – a natural or legal person, (45) which may include the ‘holder’, such as the producer of waste or the person in possession of it (46) – must initiate a notification and consent procedure about the intended shipment via the competent authority of dispatch and transit. (47) That person must also obtain the consent, with or without conditions, of the authorities of destination of that shipment. (48)
79. Accordingly, before commencing its journey from Wilhelmshaven to Mangalia, Conti, as ‘notifier’, was obliged, under the Waste Shipments Regulation, to initiate the notification and consent procedure via the competent German authorities and acquire the necessary consent from the Romanian authorities.
80. What Conti, however, claims is that the application of Article 1(3)(b) of the Waste Shipments Regulation to the situation at issue in the present case excludes its obligation to notify because the waste at issue must be classified as ‘waste generated on board vehicles, trains, aeroplanes and ships, until such waste is offloaded in order to be recovered or disposed of’.
81. As I have explained in point 71 of this Opinion, the Basel Convention does not exclude the shipment of waste at issue from Germany to Romania from the notification and consent procedure.
82. Conform interpretation of the Waste Shipments Regulation with the Basel Convention, the need for which flows from the European Union’s international commitments entered into under Article 216(2) TFEU, reflecting the general international law principle of compliance with treaty commitments (pacta sunt servanda), (49) would therefore require an interpretation according to which Article 1(3)(b) thereof does not exclude said shipment from the scope of that regulation.
83. As there is no indication from which the Court could conclude that, when adopting the Waste Shipments Regulation, the European Union had wanted to depart from the commitments undertaken by means of the Basel Convention, (50) the Court should interpret the provisions of that regulation so as to make it compliant with that international agreement. (51)
84. For the purposes of the present case, that means that conform interpretation of the Waste Shipments Regulation would require an interpretation according to which Article 1(3)(b) thereof does not exclude the shipment from Germany to Romania from the scope of that regulation.
85. That objective requires that I turn to the judgment in Conti 11. Container Schiffahrt, to explain why that judgment does not, in my opinion, prevent such an interpretation when applied to the situation at issue in the present case.
B. The judgment in Conti 11. Container Schiffahrt
86. In the order for reference, the referring court explains that, in the light of the judgment in Conti 11. Container Schiffahrt, the Landgericht München I (Regional Court, Munich I), considered that the Land should not have ordered the completion of the notification and consent procedure under the Waste Shipments Regulation. The latter court had interpreted that judgment as excluding, from the scope of application of the Waste Shipments Regulation, the waste and residue that arose from the fire and explosions aboard the Flaminia. Accordingly, Conti could claim compensation from the Land for the costs arising from the wrongful application of the Waste Shipments Regulation.
87. To my mind, that is an incorrect reading of the Court’s judgment.
88. The judgment in Conti 11. Container Schiffahrt was formulated to respond to the question referred in that case, by which the Court was asked to clarify whether ‘residues from damage to a ship at sea in the form of scrap metal and fire extinguishing water mixed with sludge and cargo residues on board the ship’ must be classified as ‘waste generated on board … ships’ within the scope of Article 1(3)(b) of the Waste Shipments Regulation.
89. As formulated, the Landgericht München I (Regional Court, Munich I) accordingly did not seek to ascertain whether the notification and consent procedure provided for in the Waste Shipments Regulation was excluded, nor did it specify to which journey of the Flaminia the clarification request would be applied.
90. In the context of the situation described to it and in view of the way in which that question was asked, the Court responded that waste such as that at issue in the circumstances of the present case must be interpreted to fall within the scope of the notion of ‘waste generated on board ships’, such that it is excluded from the scope of application of the Waste Shipments Regulation, until offloaded to be recovered or disposed of. (52)
91. However, as is apparent from the justifications offered in support of its findings, (53) the Court interpreted that regulation in the context of the first leg of the Flaminia’s journey – that is to say from the high seas to the first port it reached after the accident, which was the German port of Wilhelmshaven. For example, the Court accentuated that, in the case of waste generated by an accident on the high seas, the person responsible for a ship would most likely ‘not be in position, before docking in a port’ (54) to be acquainted with all the information required for the notification and consent procedure to be undertaken. This, the Court continued, referring to the Opinion of the Advocate General, ‘could have the effect of delaying the ship’s entry into a safe port, which would increase the risk of marine pollution’. (55)
92. That reading of the judgment also arises from the Opinion of the Advocate General. For example, he explained that ‘it cannot be denied that, by this reference for a preliminary ruling, the referring court is only asking the Court about the applicability ratione materiae of Article 1(3)(b) of [the Waste Shipments Regulation] in the context of the assessment of the applicability of the regulation between the place in which the damage occurred and Germany’. (56)
93. Accordingly, as is apparent from the judgment in Conti 11. Container Schiffahrt, the Court reached the conclusion that the notification and consent procedure would not be warranted for the journey from the high seas to a port of a Member State based on a textual and contextual reading of Article 1(3)(b) of the Waste Shipments Regulation, albeit one influenced strongly by a teleological reading of that regulation. In the light of its objective to protect the environment, for that type of journey, it would be contrary to that regulation to require the completion of that procedure before a vessel like the Flaminia could be towed into a Member State port.
94. Accordingly, only for that journey, Article 1(3)(b) of the Waste Shipments Regulation must be read as not rendering applicable the notification and consent procedure laid down therein.
95. That interpretation is not in contradiction with the aim of the Basel Convention, which, as I have explained, equally strives to protect the environment and human health. Moreover, the Basel Convention does not expressly regulate the circumstances, such as those at issue in the present case, where waste is produced through an accident at sea.
96. In fact, given that the Basel Convention grants a certain latitude to State parties to ensure that transboundary movements and the disposal of waste is conducted under conditions which do not endanger human health and the environment, (57) the Court had no reason to assess the compatibility of Article 1(3)(b) of the Waste Shipments Regulation with the Basel Convention in the context of the circumstances before it.
97. Consequently, in the judgment in Conti 11. Container Schiffahrt, the Court did not decide on, and therefore did not prejudice, an interpretation requiring that, once the Flaminia had reached the first safe port in Germany, its onward journey was subject to notification and consent.
98. In other words, the Court has yet to give its view on whether the notification and consent procedure envisaged by the Waste Shipments Regulation appl ies to the movement of waste between two Member State ports such as between Wilhelmshaven and Mangalia, when the waste that is being shipped is the result of an accident on the high seas. (58)
99. In response to the referring court’s first question, I therefore consider that the interpretation of Article 1(3)(b) of the Waste Shipments Regulation given by the Court in the judgment in Conti 11. Container Schiffahrt does not render that provision contrary to the Basel Convention.
100. As I will explain in the following section, I am, in fact, of the opinion that that provision does not even apply to the Flaminia’s journey from Germany to Romania.
C. The Land correctly interpreted the Waste Shipments Regulation
101. As I have suggested, (59) the Waste Shipments Regulation treats the journey from Germany to Romania separately and distinctly from that which formed the assessment in the judgment in Conti 11. Container Schiffahrt. (60)
102. T he disagreement between the parties in the main proceedings, and the question which the Court is invited to answer in the present case, is whether Article 1(3)(b) of the Waste Shipments Regulation may be relied upon to exempt the shipment between the ports of Wilhelmshaven and Mangalia from the notification and consent procedure laid down in Title II thereof.
103. To my mind, that is not the case here.
104. W hile the Court, in the judgment in Conti 11. Container Schiffahrt, interpreted Article 1(3)(b) of the Waste Shipments Regulation to be non-prescriptive as to the origin of waste or as to how it was generated, (61) that provision seems to lay down a temporal element for the exclusion of waste falling thereunder.
105. Indeed, as the text of that provision suggests, the exclusion from the scope of application of the Waste Shipments Regulation under Article 1(3)(b) thereof extends to any period of time ‘until such waste is offloaded in order to be recovered or disposed of’. (62)
106. It is true , as Conti essentially suggests, that that wording may be read as implying a point in time after the arrival of a ship in a port of a Member State. That, in turn, would mean that that ship’s mere (temporary) docking in a Member State port should not necessarily be viewed as the endpoint to the suspension of the notification and consent procedure for shipments of hazardous waste.
107. However, for reasons of legislative history and the aims of the Waste Shipments Regulation, I am not convinced by that argument.
108. L ooking at the preparatory documents for the Waste Shipments Regulation, in its initial legislative proposal from 2003, the Commission had proposed to limit the scope of Article 1(3)(b) to ‘waste generated on board civil aeroplanes whilst airborne, for the duration of the flight and until landing.’ (63)
109. During trilogue negotiations, that provision was then amended first to cover waste generated on aeroplanes ‘until such waste is offloaded in order to be recovered or disposed of’ and subsequently extended inter alia to waste generated on board of ships. (64)
110. While we are not privy to the reasons that led to that redrafting, according to the explanation provided by the rapporteur, (65) which was accepted also by the Commission, (66)the justification in the recommendation for second reading was that the inclusion, within the scope of the Waste Shipments Regulation, of waste generated whilst a plane was airborne, a ship seaborne, or a train rail-borne ‘would be disproportionate’.
111. Indeed, the other scenarios of Article 1(3) of the Waste Shipments Regulation govern situations in which some sort of procedure is guaranteed by another legal instrument. There was, accordingly, no need to add another layer of obligations to those types of situations. Therefore, Article 1(3) should not be understood as an intention, on the part of the EU legislature, to exclude any type of control over intra-EU shipments of waste in the situations enumerated therein.
112. In the same way, Article 1(3)(b) did not aim to exclude any type of control of shipments of waste. Rather, as the European Parliament, the Council and the Commission essentially explain, Article 1(3)(b) of the Waste Shipments Regulation was inserted to operate as a ‘fallback’ rule for any waste generated aboard vehicles, trains, planes and ships in instances where Article 1(3)(a) finds no application, and for which it would be ‘disproportionate’ to file a notification before reaching the vehicle, train, plane, or ship’s first stop.
113. However, once the waste generated on board a ship reaches a safe harbour, it is either offloaded or shipped further, in which case the reasons for waving the notification and consent procedure do not exist anymore. From that moment on, such waste should no longer be regarded as ‘waste generated on board … ships’, in the sense of Article 1(3)(b) of the Waste Shipments Regulation.
114. Those considerations align with the Court ’s reading of Article 1(3)(b) in the judgment in Conti 11. Container Schiffahrt. As the Court explained therein, it is not always possible, when waste is generated on board a ship, to be acquainted with and to provide all the necessary information particulars to satisfy the notification and consent procedure laid down in the Waste Shipments Regulation. (67)
115. At the same time , the scope of application of Article 1(3)(b) of the Waste Shipments Regulation must be aligned with the general scope of application of Article 1(2) which covers the broadest possible shipments of waste to, from and within the European Union. (68) Accordingly, the period of non-application of the notification and consent procedure, until the point of ‘offloading’ of waste transported between EU ports, which represents a derogation from the general scope of application of the Waste Shipments Regulation, must be interpreted strictly. (69)
116. Read in that way, the suspension of the obligation to undertake the notification and consent procedure arising from that provision should be limited to the shortest practical period after the arrival of a ship in a Member State port to reduce to a minimum any potential risk to the environment arising from that shipment.
117. T hat type of reading is possible since it is not at all apparent from the preparatory documents to that provision, the wording or its context that the exclusion of the obligation to undertake the notification and consent procedure should extend to a point in time after the arrival of the plane, the ship or the train in a Member State.
118. Teleologically, t hat type of reading would also be most in line with the overarching objective of protecting the environment when shipments of hazardous wastes take place, given that it is for that principal purpose that a supervision and control regime exists in the Waste Shipments Regulation. (70)
119. In view of that overarching aim, it should not matter whether the hazardous waste is actually offloaded after the arrival of a ship in a Member State port. (71)
120. A s the French Government explained at the hearing, the converse might force the offloading of hazardous waste in a port in the European Union even in a situation where, in reality, for reasons of infrastructure or practicality or the state or location of the waste (such as where it is fused to the hull of the ship or trapped inside it) offloading would not be environmentally safe.
121. According to Conti, it is precisely because the infrastructure of the port of Wilhelmshaven did not practically allow for the unloading of all the hazardous waste on board that ship that it chose to move the Flaminia to the port of Mangalia for recovery and disposal of (part of) the waste at issue.
122. Finally, and of equal importance, an interpretation according to which Article 1(3)(b) of the Waste Shipments Regulation would not apply to the situation at issue in the present case would conform with the obligations imposed on the European Union under the Basel Convention.
123. The fact that the Basel Convention does not contain an exemption equivalent to Article 1(3)(b) of the Waste Shipments Regulation does not, on its own, lead to a conclusion that that regulation contravenes the Basel Convention. At the same time, however, that provision may not exempt the application of the notification and consent procedure in situations in which the Basel Convention clearly finds application.
124. For all of the above reasons, Article 1(3)(b) of the Waste Shipments Regulation must be read as suspending the obligation to undertake the notification and consent procedure laid down in that regulation for waste generated on board a ship as a result of an accident up until the point at which it arrives at a port of a Member State. For any subsequent shipments, such waste is no longer to be regarded as ‘waste generated on board … ships’ within the meaning of Article 1(3)(b).
125. I t therefore follows that the Land did not err in concluding that the journey between the port of Wilhelmshaven and the port of Mangalia must be subjected to the notification and consent procedure laid down in the Waste Shipments Regulation.
IV. Conclusion
126. I propose that the Court answer the questions referred for a preliminary ruling by the Oberlandesgericht München (Higher Regional Court, Munich, Germany) as follows:
(1) The examination of the first question has revealed nothing capable of affecting the validity of Article 1(3)(b) of Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste.
(2) Article 1(3)(b) of Regulation No 1013/2006
must be interpreted as meaning that residues in the form of scrap metal and fire-extinguishing water mixed with sludge and cargo residues that are attributable to damage incurred at sea must no longer be regarded as ‘waste generated on board … ships’, within the meaning of that provision, once a ship carrying such waste has arrived at a port in a Member State.
From that point onwards, any movement of that waste is subject to the procedure of prior written notification and consent laid down in Regulation No 1013/2006.