JUDGMENT OF THE COURT (Sixth Chamber)

25 June 1998 (1)

(Shipments of waste for recovery — Principles of self-sufficiency and proximity)

In Case C-203/96,

REFERENCE to the Court under Article 177 of the EC Treaty by the Raad vanState (Netherlands) for a preliminary ruling in the proceedings pending before thatcourt between

Chemische Afvalstoffen Dusseldorp BV and Others

and

Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer

on the interpretation of Articles 34, 86, 90 and 130t of the EC Treaty, of CouncilDirective 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39), as amendedby Council Directive 91/156/EEC of 18 March 1991 (OJ 1991 L 78, p. 32), and ofCouncil Regulation (EEC) No 259/93 of 1 February 1993 on the supervision andcontrol of shipments of waste within, into and out of the European Community (OJ1993 L 30, p. 1),

THE COURT (Sixth Chamber),

composed of: H. Ragnemalm (Rapporteur), President of the Chamber, G.F.Mancini, P.J.G. Kapteyn, J.L. Murray and G. Hirsch, Judges,

Advocate General: F.G. Jacobs,

Registrar: H.A. Rühl, Principal Administrator,

after considering the written observations submitted on behalf of:

—    Chemische Afvalstoffen Dusseldorp BV and others, by B.J.M. Veldhovenof the Hague Bar, O.W. Brouwer of the Amsterdam Bar and F.P. Louis ofthe Brussels Bar,

—    the Netherlands Government, by J.G. Lammers, Deputy Legal Adviser inthe Ministry of Foreign Affairs, acting as Agent,

—    the French Government, by C. de Salins, Assistant Director in the LegalAffairs Directorate of the Ministry of Foreign Affairs, and R. Nadal,Assistant Foreign Affairs Secretary in the same directorate, acting asAgents,

—    the Commission of the European Communities, by H. van Vliet and M.Condou, of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Chemische Afvalstoffen Dusseldorp BV andOthers, represented by O.W. Brouwer and F.P. Louis, of the NetherlandsGovernment, represented by J.S. van den Oosterkamp, Assistant Legal Adviser inthe Ministry of Foreign Affairs, acting as Agent, of the Danish Government,represented by P. Biering, Head of Department in the Ministry of Foreign Affairs,acting as Agent, and of the Commission, represented by H. van Vliet, at thehearing on 3 July 1997,

after hearing the Opinion of the Advocate General at the sitting on 23 October1997,

gives the following

Judgment

1.

    By order of 23 April 1996, received at the Court on 14 June 1996, the NederlandseRaad van State (Netherlands Council of State) referred to the Court for apreliminary ruling under Article 177 of the EC Treaty four questions on theinterpretation of Articles 34, 86, 90 and 130t of the EC Treaty, of Council Directive

75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39), as amended byCouncil Directive 91/156/EEC of 18 March 1991 (OJ 1991 L 78, p. 32, hereinafter'the Directive‘), and of Council Regulation (EEC) No 259/93 of 1 February 1993on the supervision and control of shipments of waste within, into and out of theEuropean Community (OJ 1993 L 30, p. 1, hereinafter 'the Regulation‘).

2.

    Those questions were raised in proceedings between Chemische AfvalstoffenDusseldorp BV ('Dusseldorp‘), Factron Technik GmbH ('Factron‘) andDusseldorp Lichtenvoorde BV ('Dusseldorp Lichtenvoorde‘) and the Minister vanVolkshuisvesting, Ruimtelijke Ordening en Milieubeheer (the Netherlands Ministerfor Housing, Regional Development and the Environment; 'the Minister‘)concerning exports to Germany of waste for recovery there.

The Community legislation

The Directive

3.

    Article 1 of the Directive defines waste disposal operations and waste recoveryoperations as those described in Annex II A and Annex II B respectively, whicheach contain a precise list of the operations concerned.

4.

    Articles 3, 4 and 5 of the Directive lay down the following objectives: first, theprevention, reduction, recovery and use of waste; next, the protection of humanhealth and the environment in the processing of waste, whether for disposal orrecovery and, finally, the creation at Community level and, if possible, at nationallevel of an integrated network for the disposal of waste.

5.

    In that context, Article 5 of the Directive provides:

'1.    Member States shall take appropriate measures, in cooperation with otherMember States where this is necessary or advisable, to establish an integrated andadequate network of disposal installations, taking account of the best availabletechnology not involving excessive costs. The network must enable the Communityas a whole to become self-sufficient in waste disposal and the Member States tomove towards that aim individually, taking into account geographical circumstancesor the need for specialised installations for certain types of waste.

2.    The network must also enable waste to be disposed of in one of the nearestappropriate installations, by means of the most appropriate methods andtechnologies in order to ensure a high level of protection for the environment andpublic health.‘

6.

    Article 7 of the Directive requires the Member States to draw up wastemanagement plans in order to implement the objectives referred to in Articles 3,

4 and 5 and permits them to take measures to prevent movements of waste whichare not in accordance with those plans.

The Regulation

7.

    The Regulation deals with the shipment of waste, in particular between MemberStates.

8.

    Title II of the Regulation, entitled 'Shipments of waste between Member States‘,contains two separate chapters dealing with the procedure applicable to shipmentsof waste for disposal (Chapter A) and the procedure applicable to shipments ofwaste for recovery (Chapter B). The procedure laid down in respect of the lattercategory of waste is less onerous than that applicable to the former.

9.

    Article 4(3)(a)(i), which is in Chapter A, concerning shipments of waste fordisposal, provides:

'In order to implement the principles of proximity, priority for recovery and self-sufficiency at Community and national levels in accordance with Directive75/442/EEC, Member States may take measures in accordance with the Treaty toprohibit generally or partially or to object systematically to shipments of waste. Such measures shall immediately be notified to the Commission, which will informthe other Member States.‘

10.

    By contrast, Chapter B, which concerns shipments of waste for recovery, does notmention the principles of self-sufficiency and proximity.

11.

    Article 7(2) and (4)(a), in Chapter B, provides:

'2. The competent authorities of destination, dispatch and transit shall have 30 daysfollowing dispatch of the acknowledgement to object to the shipment. Suchobjection shall be based on paragraph 4. Any objection must be provided inwriting to the notifier and to other competent authorities concerned within the 30-day period.

...

4.(a). The competent authorities of destination and dispatch may raise reasonedobjections 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 toenvironmental protection, public order, public safety or health protection,

...‘

The national legislation

12.

    Paragraph 6.5 of the Netherlands' Long-term Plan for the Disposal of DangerousWaste of June 1993 ('the Long-term Plan‘), provides:

'Export is permitted if a superior processing technique exists abroad or if there isinsufficient capacity for processing a given type of waste in the Netherlands, unlessthat export makes it impossible to carry out disposal of an at least equivalent levelin the Netherlands. In that case, the waste shall be stockpiled pending disposal.‘

13.

    Sectoral Plan 19 of Part II of the Long-term Plan states, with regard to oil filters,that export is not permitted if the processing of those filters abroad is not superiorto that performed in the Netherlands.

14.

    Sectoral Plan 10 of Part II of the Long-term Plan, concerning waste forincineration, provides that, on account of the principle of self-sufficiency, the exportof dangerous waste for incineration must, in so far as is possible, be restricted interalia because the emission requirements for incineration are less strict abroad thanin the Netherlands.

15.

    In that Sectoral Plan, the pursuit of the best possible method of disposal is alsoimplemented by attributing to AVR Chemie CV ('AVR Chemie‘) responsibilityfor 'waste management‘. AVR Chemie is thus designated as the sole end-processor for the incineration of dangerous waste in a high-performance rotaryfurnace. Waste which has to be incinerated in such a furnace may be exported onlyby AVR Chemie, whose permit is subject to conditions intended to preventundesirable price increases.

16.

    AVR Chemie is a limited partnership between the Netherlands State, the districtof Rotterdam and eight industrial undertakings, including Akzo Nobel Nederland. The Netherlands State and the district of Rotterdam together hold a 55% share inAVR Chemie.

17.

    The director of the waste management division of the Ministry of the Environmentis also the representative of the Netherlands State on the Surveillance Board ofAVR. The division is responsible for laying down the Netherlands' policy inrelation to the export of waste and decides, in practice, whether a particular exportmay be permitted or refused.

The facts

18.

    In 1994 Dusseldorp applied for authorisation to export to Germany two loads ofoil filters and related waste, weighing 2 000 and 60 tonnes respectively, forprocessing there by Factron.

19.

    By two decisions of 22 August 1994 the Minister raised objections to the exportpursuant to the Long-term Plan and Article 7(2) and (4)(a) of the Regulation.

20.

    On 13 September 1994 Dusseldorp, Factron and Dusseldorp Lichtenvoorde lodgeda complaint against those two decisions.

21.

    By a new decision of 8 December 1994, following a visit to Factron's premises bytwo officials of the Netherlands Ministry of the Environment, the Minister declaredthe complaints unfounded on the ground that the processing performed by Factronwas not of a higher quality than that performed by the Netherlands wasteprocessing and management undertaking, AVR Chemie.

22.

    By application of 18 January 1995 Dusseldorp, Factron and DusseldorpLichtenvoorde brought an action before the Raad van State seeking the annulmentof the Minister's decision of 8 December 1994 which, they maintain, is incompatiblewith the Community legislation.

The questions submitted for a preliminary ruling

23.

    The national court was uncertain as to whether the principles of self-sufficiency andproximity, as implemented in the Long-term Plan, could be applied to shipmentsof waste for recovery, and referred the following four questions to the Court ofJustice for a preliminary ruling:

'1.    (a)    Having regard to the scheme of Council Regulation (EEC) No 259/93of 1 February 1993 on the supervision and control of shipments ofwaste within, into and out of the European Community and CouncilDirective 75/442/EEC of 15 July 1975 on waste (as amended byDirective 91/156/EEC), read in conjunction with each other, do theprinciples of self-sufficiency and proximity apply solely to the shipmentbetween Member States of waste for disposal or also to waste forrecovery?

    (b)    If the Court of Justice takes the view that Regulation (EEC) No259/93 and Directive 75/442/EEC do not provide a basis for theapplication of the principles of self-sufficiency and proximity to theshipment between Member States of waste for recovery, can Article130t of the EC Treaty then provide a basis for rules such as thosecontained in the relevant part of the Long-term Plan for Disposal ofDangerous Waste of June 1993 drawn up by the NetherlandsGovernment?

2.    In the abovementioned Long-term Plan, the principles of self-sufficiency andproximity find specific expression in the pursuit of the best possible qualitymethod of disposal (including recovery) and continuity of disposal. Doesthis constitute a correct implementation of those principles?

3.    (a)    In so far as the criteria laid down in the Long-term Plan for objectingto the export of waste for recovery are in themselves acceptable, isthis then a case of a measure having equivalent effect within themeaning of Article 34 of the EC Treaty and is there any justificationfor it?

    (b)    In that context, if the principles of self-sufficiency and proximity maybe applied in regard to waste intended for recovery, does it make anydifference whether those principles are applied primarily within theCommunity as a whole or exclusively at national level?

4.    Are the exclusive rights to incinerate dangerous waste conferred by theNetherlands authority on AVR Chemie CV in Sectoral Plan 10 of Part IIof the Long-term Plan compatible with Article 90(1) and (2) in conjunctionwith Article 86 of the EC Treaty having regard to the reasons given for suchconferral in the Long-term Plan?‘

The first question

24.

    By its first question, the national court is essentially asking whether the Directiveand the Regulation are to be interpreted as meaning that the principles of self-sufficiency and proximity are applicable to shipments of waste for recovery. If not,it asks whether Article 130t permits Member States to extend the application ofthose principles to such waste.

The interpretation of the Directive and the Regulation

25.

    The Netherlands Government and the Danish Government consider that theabsence of any express reference in the Directive and the Regulation to theprinciples of self-sufficiency and proximity in regard to waste for recovery does notpreclude the application of those principles to that type of waste. Article 7 of theDirective sets out a non-exhaustive list of the details which the waste managementplans must include.

26.

    Dusseldorp, the French Government and the Commission consider, by contrast,that the absence of any express reference to the principles of self-sufficiency andproximity in regard to waste for recovery in the Directive and the Regulation, andthe general scheme of the latter, indicate that those principles cannot be taken intoaccount in regard to waste for recovery.

27.

    In that respect, it should be noted, first, that Article 7 of the Directive provides thatMember States are to draw up waste management plans in particular in order toattain the objectives set out in Articles 3, 4 and 5. Of those provisions, only Article5 refers to the principles of self-sufficiency and proximity, and then solely in respectof waste for disposal. Similarly, the seventh recital in the preamble, which refersto those principles, concerns that category of waste exclusively.

28.

    Secondly, the Regulation mentions those principles expressly only in the tenthrecital in the preamble, which associates them solely with waste for disposal, andin Article 4(3)(a)(i) and (b), which sets out the type of measures which may betaken by the Member States and the competent authorities of dispatch anddestination in order to implement them. Since it is part of Chapter A of Title IIof 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 possibilityof 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 fromthe general scheme of the latter, that neither text provides for the application ofthe 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 wastepolicy (OJ 1990 C 122, p. 2), which is referred to in the second recital in thepreamble to the Directive. In that resolution, the Council specifies that theobjective of self-sufficiency in waste disposal does not apply to recycling.

32.

    Furthermore, the explanatory memorandum in the initial proposal for theRegulation (COM(90) 415 final — SYN 305 of 26 October 1990) states that thecriterion of proximity might justify intervention from the authorities in regard towaste for disposal. That criterion is not mentioned in regard to waste for recovery; in regard to the latter, only the criterion of environmentally sound managementmight be applied.

33.

    Finally, it should be noted that the difference in treatment between waste fordisposal and waste for recovery reflects the different roles played by each type ofwaste in the development of the Community's environmental policy. By definition,only waste for recovery can contribute towards implementation of the principle ofpriority for recovery laid down in Article 4(3) of the Regulation. It was in orderto encourage such recovery in the Community as a whole, in particular by elicitingthe best techologies, that the Community legislature stipulated that waste of thattype should be able to move freely between Member States for processing,provided that transport poses no threat to the environment. It thereforeintroduced 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 Regulationand 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

35.

    According to Dusseldorp and the Commission, the Regulation brought about fullharmonisation of the rules on shipments of waste between Member States, so thatin principle the latter can object to such shipments only on the basis of thatRegulation. Furthermore, Article 130t of the Treaty permits Member States toadopt rules only if they are compatible with, inter alia, Article 30 et seq. of theTreaty. They maintain that the Long-term Plan contains measures havingequivalent effect to quantitative restrictions on export prohibited by Article 34 ofthe Treaty, which are not justified either by imperative requirements relating to theprotection of the environment or under Article 36 of the EC Treaty.

36.

    According to the Netherlands Government, it can be concluded from the wordingand the general scheme of the Regulation and from Article 130t of the Treaty thatthe measures adopted pursuant to Article 130s constitute minimum harmonisation. In those circumstances, there is nothing to prevent Member States from seeking toachieve a higher level of protection on the basis of Article 130t. Furthermore, thePlan is not contrary to the Treaty and, in particular, does not contain anyprohibition on export. In the alternative, the Netherlands Government submitsthat, if the Long-term Plan does contain a prohibition on export for the purposesof Article 34, that prohibition is justified under Article 36 of the Treaty by thepursuit of the best method of disposal of waste and by the need for continuity ofdisposal, which are intended to protect the health and life of humans.

37.

    It should be noted that the Directive and the Regulation were adopted on the basisof Article 130s of the Treaty, which is referred to by Article 130t of the Treaty.

38.

    Article 130t of the Treaty provides:

'The protective measures adopted pursuant to Article 130s shall not prevent anyMember State from maintaining or introducing more stringent protective measures. Such measures must be compatible with this Treaty. They shall be notified to theCommission.‘

39.

    It is therefore necessary to consider whether, in accordance with that provision,measures such as those adopted in the Long-term Plan for the application of theprinciples of self-sufficiency and proximity to waste for recovery are compatiblewith Article 34 of the Treaty.

40.

    Article 34 prohibits quantitative restrictions on exports, as well as all measureshaving an equivalent effect. According to the settled case-law of the Court, itconcerns national measures which have as their specific object or effect therestriction of patterns of exports and thereby the establishment of a difference intreatment between the domestic trade of a Member State and its export trade, insuch a way as to provide a particular advantage for national production or for thedomestic market of the State in question (Case 155/80 Oebel [1981] ECR 1993,paragraph 15).

41.

    Sectoral Plan 19 of Part II of the Long-term Plan provides that export is notpermitted unless the processing of oil filters abroad is superior to that performedin the Netherlands.

42.

    It is plain that the object and effect of such a provision is to restrict exports and toprovide a particular advantage for national production.

43.

    However, the Netherlands Government submits, first, that the aforementionedprovision of the Long-term Plan could be justified by an imperative requirementrelating to protection of the environment. In its submission, the measures inquestion are necessary to enable AVR Chemie to operate in a profitable mannerwith sufficient material of which to dispose and to ensure it a sufficient supply ofoil filters for use as fuel. In the absence of a sufficient supply, AVR Chemie wouldbe obliged to use a less environmentally friendly fuel or to obtain other fuels whichare equally friendly to the environment but involve additional costs.

44.

    Even if the national measure in question could be justified by reasons relating tothe protection of the environment, it is sufficient to point out that the argumentsput forward by the Netherlands Government, concerning the profitability of thenational undertaking AVR Chemie and the costs incurred by it, are of an economicnature. The Court has held that aims of a purely economic nature cannot justifybarriers to the fundamental principle of the free movement of goods (CaseC-120/95 Decker [1998] ECR I-0000, paragraph 39).

45.

    The Netherlands Government considers, secondly, that the contested provision ofthe Long-term Plan is justified under the derogation provided for by Article 36 ofthe Treaty concerning the protection of the health and life of humans.

46.

    Such a justification would be relevant if the processing of oil filters in otherMember States and their shipment over a greater distance as a result of their beingexported posed a threat to the health and life of humans.

47.

    The documents before the Court do not, however, show that to be the case. Onthe one hand, the Netherlands Government itself conceded that the processing offilters in Germany was comparable to that performed by AVR Chemie. On theother, it has not been established that the shipment of the oil filters posed a threatto the environment or to the life and health of humans.

48.

    It follows that restrictions on the export of waste for recovery such as thoseintroduced by the rules in the Netherlands were not necessary for the protectionof the health and life of humans in accordance with Article 36 of the Treaty.

49.

    It must therefore be concluded that the object and effect of application of theprinciples 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 asthose in the present case, by an imperative requirement relating to protection ofthe environment or the desire to protect the health and life of humans inaccordance with Article 36 of the Treaty. A Member State cannot therefore relyon Article 130t of the Treaty in order to apply the principles of self-sufficiency andproximity to such waste.

50.

    In those circumstances the answer to the first question must be that the Directiveand the Regulation cannot be interpreted as meaning that the principles of self-sufficiency and proximity are applicable to shipments of waste for recovery. Article130t of the Treaty does not permit Member States to extend the application ofthose principles to such waste when it is clear that they create a barrier to exportswhich is not justified either by an imperative measure relating to protection of theenvironment or by one of derogations provided for by Article 36 of the Treaty.

The second and third questions

51.

    The second and third questions were raised by the national court only in the eventof a finding by the Court that the principles of self-sufficiency and proximity areapplicable to waste for recovery pursuant either to the Directive and theRegulation or to Article 130t of the Treaty.

52.

    In the light of the answer to the first question, it is not necessary to answer thesequestions.

The fourth question

53.

    By its fourth question, the national court asks whether the exclusive rightsconferred on AVR Chemie within the framework of the policy implemented inaccordance with the Long-term Plan are compatible with the competition rulescontained in Articles 90 and 86 of the Treaty. As the Advocate General points outat paragraph 97 of his Opinion, the exclusive rights referred to by the nationalcourt should be taken to include both the general exclusivity granted forincineration and any exclusivity resulting from the contested rule. The latterconcerns the prohibition on exporting oil filters unless processing abroad is superiorto that performed in the Netherlands.

54.

    Essentially, therefore, the national court is asking whether Article 90 of the Treaty,in conjunction with Article 86, precludes rules such as the Long-term Plan wherebya Member State requires undertakings to deliver their waste for recovery, such asoil filters, to a national undertaking on which it has conferred the exclusive rightto incinerate dangerous waste, unless the processing of their waste in anotherMember State is superior to that performed by that undertaking.

55.

    The Netherlands Government considers that AVR Chemie has no exclusive rights,so that Article 90 cannot apply in the present case.

56.

    Dusseldorp considers that the exclusive rights conferred on AVR Chemie by theNetherlands authorities are incompatible with Article 90(1) in conjunction withArticle 86 of the Treaty. Furthermore, those rights cannot be justified underArticle 90(2) of the Treaty, since the Netherlands' disposal arrangements could bemaintained by measures having less effect on competition and on the freemovement of goods.

57.

    The Commission points out that the fact that a Member State grants authorisationto process certain waste to only one undertaking established on its territory is not,in itself, incompatible with Article 90 in conjunction with Article 86 of the Treaty.

58.

    It is apparent from the documents before the Court that AVR Chemie wasdesignated as the sole end-processor for the incineration of dangerous waste. Thatundertaking can therefore be regarded as having an exclusive right within themeaning of Article 90(1) of the Treaty.

59.

    That provision stipulates that Member States are neither to enact nor to maintainin force any measure contrary to the rules of the Treaty, in particular thecompetition rules.

60.

    The grant of exclusive rights for the incineration of dangerous waste on theterritory of a Member State as a whole must be regarded as conferring on theundertaking concerned a dominant position in a substantial part of the commonmarket (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 withArticle 86 of the Treaty, a Member State breaches the prohibitions laid down byArticle 90 in conjunction with Article 86 if it adopts any law, regulation oradministrative provision which enables an undertaking on which it has conferredexclusive rights to abuse its dominant position (see, to that effect, Case C-18/88GB-Inno-BM [1991] ECR I-5941, paragraph 20).

62.

    It is apparent from the documents before the Court that, on the basis of the Long-term Plan, the Netherlands Government prohibited the applicant in the mainproceedings from exporting and, by doing so, in practice imposed an obligation onit to deliver its oil filters — waste for recovery — to the national undertaking which

held the exclusive right to incinerate dangerous waste, even though the quality ofprocessing available in another Member State was comparable to that performedby the national undertaking.

63.

    Such an obligation has the effect of favouring the national undertaking by enablingit to process waste intended for processing by a third undertaking. It thereforeresults in the restriction of outlets in a manner contrary to Article 90(1) inconjunction with Article 86 of the Treaty.

64.

    However, it is necessary to consider whether that obligation could be justified bya task of general economic interest within the meaning of Article 90(2) of theTreaty.

65.

    It follows from the case-law of the Court that that provision may be relied upon tojustify a measure contrary to Article 86 of the Treaty adopted in favour of anundertaking to which the State has granted exclusive rights if that measure isnecessary to enable the undertaking to perform the particular task assigned to itand if it does not affect the development of trade in a manner contrary to theinterest of the Community (see, to that effect, Case C-320/91 Corbeau [1993] ECRI-2533, paragraph 14, and Case C-159/94 Commission v France [1997] ECR I-5815,paragraph 49).

66.

    The Netherlands Government submits that the rules in question are intended toreduce the costs of the undertaking responsible for the incineration of dangerouswaste and thus to enable it to be economically viable.

67.

    Even if the task conferred on that undertaking could constitute a task of generaleconomic interest, however, it is for the Netherlands Government, as the AdvocateGeneral points out at paragraph 108 of his Opinion, to show to the satisfaction ofthe national court that that objective cannot be achieved equally well by othermeans. Article 90(2) of the Treaty can thus apply only if it is shown that, withoutthe contested measure, the undertaking in question would be unable to carry outthe task assigned to it.

68.

    In those circumstances, the answer to the fourth question must be that Article 90of the Treaty, in conjunction with Article 86, precludes rules such as the Long-termPlan whereby a Member State requires undertakings to deliver their waste forrecovery, such as oil filters, to a national undertaking on which it has conferred theexclusive right to incinerate dangerous waste unless the processing of their wastein another Member State is of a higher quality than that performed by thatundertaking if, without any objective justification and without being necessary forthe performance of a task in the general interest, those rules have the effect offavouring the national undertaking and increasing its dominant position.

Costs

69.

    The costs incurred by the Governments of the Netherlands, Denmark and France,and by the Commission of the European Communities, which have submittedobservations to the Court, are not recoverable. Since these proceedings are, for theparties to the main proceedings, a step in the action pending before the nationalcourt, the decision on costs is a matter for that court.    

On those grounds,

THE COURT (Sixth Chamber),

in answer to the questions referred to it by the Raad van State by order of 23 April1996, hereby rules:

1.    Council Directive 75/442/EEC of 15 July 1975 on waste, as amended byCouncil Directive 91/156/EEC of 18 March 1991 and Council Regulation(EEC) No 259/93 of 1 February 1993 on the supervision and control ofshipments of waste within, into and out of the European Community cannotbe interpreted as meaning that the principles of self-sufficiency andproximity are applicable to shipments of waste for recovery. Article 130tof the EC Treaty does not permit Member States to extend the applicationof those principles to such waste when it is clear that they create a barrierto exports which is not justified either by an imperative measure relatingto protection of the environment or by one of derogations provided for byArticle 36 of that Treaty.

2.    Article 90 of the EC Treaty, in conjunction with Article 86, precludes rulessuch as the Long-term Plan whereby a Member State requires undertakingsto deliver their waste for recovery, such as oil filters, to a nationalundertaking on which it has conferred the exclusive right to incineratedangerous waste unless the processing of their waste in another MemberState is of a higher quality than that perfromed by that undertaking if,without any objective justification and without being necessary for theperformance of a task in the general interest, those rules have the effect offavouring the national undertaking and increasing its dominant position.

Ragnemalm                    Mancini Kapteyn Murray Hirsch

Delivered in open court in Luxembourg on 25 June 1998.

R. Grass

H. Ragnemalm

Registrar

President of the Sixth Chamber

1: Language of the case: Dutch.