Re Imports of Waste: E.C. Commission v. Belgium

(Case C-2/90)

Before the Court of Justice of the European Communities

ECJ

(Presiding, Due C.J.; Joliet, Schockweiler, Grévisse,

Kapteyn, PP.C.; Mancini, Kakouris, Moitinho de Almeida, RodrÍguez Iglesias, DÍez

de Velasco and Zuleeg JJ.) Mr. Francis Jacobs, Advocate General.

9 July 1992 [FN1]

Action for a declaration under Article 169 EEC.

Provisions considered: EEC 30, 130r Dir. 75/442 Dir. 84/631 Imports. Waste. Environment. Directive 75/442 does not prohibit national laws which impose a ban on the import of waste. [14] FN1 The facts and the judgment in this case have been translated by us. The Opinion of the Advocate General was in English in the original.--Ed. Imports. Waste. Environment. The system for transfrontier shipments of hazardous waste set up by Directive 84/631, which obliges holders of the waste to give prior notification and gives national authorities the option of raising objections and therefore prohibiting a particular transfer of dangerous waste in order to overcome problems relating to human health and the environment on the one hand and safety and public policy

on the other, does not imply that member-States have the power to prohibit such transfers generally. National laws which preclude the application of this procedure and introduce an absolute ban on the importation of dangerous waste, even though they provide that certain exceptions may be allowed by the authorities concerned, are incompatible with the directive. [20]-[21] Imports. Waste. Environment. *366 Waste, whether recyclable or not, constitutes a product falling within the provisions on free movement of goods. Objects which are transported over a frontier in order to give rise to commercial transactions are subject to Article 30 EEC irrespective of the nature of those transactions and a distinction between recyclable and non-recyclable waste which is based on factors which may change in the course of time, depending on technical progress, raises serious difficulties with regard to frontier controls. Moreover, whether any particular waste is recyclable or not depends on the cost of recycling and therefore the profitability of the proposed further use, which makes any distinction necessarily subjective and dependent on variable factors. [26]-[28] Imports. Waste. Environment. Article 30 EEC does not prohibit national laws imposing a ban on the import of waste where there has been such an influx of waste that it constitutes a threat to the environment in view of the limited capacity, locally, for dealing with it. The principle that environmental damage should as a priority be rectified at source, under Article 130r(2) EEC, means that it is for each region within the member-States to take appropriate measures to receive, process and dispose of its own waste. Consequently waste should be disposed of as close as possible to the place where it is produced in order to keep the transport of waste to the minimum practicable and such a ban cannot therefore be considered to be discriminatory. This accords with the principles of self-sufficiency and proximity set out in the Basle Convention on the control of transborder movements of hazardous waste to which the Community is a party. [30]-[36] The Court interpreted Article 30 EEC and Directives 75/442 and 84/631 in the context of Belgian legislation imposing an absolute prohibition on imports of waste into the Wallonia region to the effect that the legislation did not violate Directive 75/442 which was of a general nature and did not deal with trade in waste products, but that it was in breach of Directive 84/631 which precluded such an absolute ban in respect of hazardous waste, that waste, whether recyclable or not, was a product subject to the Treaty provisions on the free movement of goods, that the ban was justified by the mandatory requirement of protection of the environment since there was a genuine threat given the region's limited capacity for dealing with waste, and that it was not discriminatory since waste should be disposed of as close as possible to the place where it is produced to keep the transport of waste to a minimum.

Representation Maria Condou-Durande and Xavier Lewis, of the Commission's Legal Service, for the applicant E.C. Commission. Robert Hoebaer, of the Belgian Ministry of Commerce, Development and Foreign Affairs, and P. Cartuyvels, of the *367 Ministry of Agriculture and the Environment in Wallonia for the defendant State. The following case was referred to in the judgment: 1. Aragonesa de Publicidad Exterior SA v. Departamento de Sanidad Y Seguridad Social (C-1/90), 25 July 1991: not yet reported. Gaz:1/90 The following further cases were referred to by the Advocate General in his First Opinion: 2. Re Export Tax on Art Treasures (No. 1): E.C. Commission v. Italy (7/68), 10 December 1968: [1968] E.C.R. 423, [1969] C.M.L.R. 1. Gaz:7/68 3. Syndicat National des Fabricants Raffineurs D'Huile de Graissage v. Inter-Huiles GIE (172/82), 10 March 1983: [1983] E.C.R. 555, [1983] 3 C.M.L.R. 485. Gaz:172/82 4. Openbaar Ministerie v. Van Tiggele (82/77), 24 January 1978: [1978] E.C.R. 25, [1978] 2 C.M.L.R. 528. Gaz:82/77 5. Tedeschi v. Denkavit Commerciale Srl (5/77), 5 October 1977: [1977] E.C.R. 1555, [1978] 1 C.M.L.R. 1. Gaz:5/77 6. Pubblico Ministero v. Ratti (148/78), 5 April 1979: [1979] E.C.R. 1629, [1980] 1 C.M.L.R. 96. Gaz:148/78 7. Bauhuis v. Netherlands (46/76), 25 January 1977: [1977] E.C.R. 5. Gaz:46/76 8. Re Disposable Beer Cans: E.C. Commission v. Denmark (302/86), 20 September 1988: [1988] E.C.R. 4607, [1989] 1 C.M.L.R. 619. Gaz:302/86 The following further cases were referred to by the Advocate General in his Second Opinion: 9. Cinetheque SA v. Federation Nationale des Cinemas Francais (60-61/84), [1985] E.C.R. 2605, [1986] 1 C.M.L.R. 365. Gaz:60/84 10. Boscher, Studer et Fromentin v. British Motors Wright SA (C-239/90), 30 April 1991: not yet reported. Gaz:239/90 11. Re Aid to French Newspapers: E.C. Commission v. France (18/84), 7 May 1985: [1985] E.C.R. 1340, [1986] 1 C.M.L.R. 605. Gaz:18/84 12. Schumacher v. Hauptzollamt Frankfurt AM Main-Ost (215/87), 7 March 1989: [1989] E.C.R. 617, [1990] 2 C.M.L.R. 465. Gaz:215/88 13. GM-INNO-BM v. Confederation du Commerce Luxembourgeois Asbl (C-362/88), 7 March 1990: [1990] I E.C.R. 667, [1991] 2 C.M.L.R. 801. Gaz:362/88 14. Regina v. Henn and Darby (34/79), 14 December 1979: [1979] E.C.R. 3795, [1980] 1 C.M.L.R. 246. Gaz:34/79 15. Procureur de la Republique v. Association de Defense des Bruleurs D'Huiles

Usagees (A.D.B.H.U.) (240/83), 7 February 1985: [1985] E.C.R. 531. Gaz:240/83 *368 16. Openbaar Ministerie v. Traen (372-374/85), 12 May 1987: [1987] E.C.R. 2141, [1988] 3 C.M.L.R. 511. Gaz:372/85 17. Vessoso (C 206-207/88), 28 March 1990: [1990] I E.C.R. 1461. Gaz:206/88 18. Stichting Collectieve Antennevoorziening Gouda v. Commissariaat voor de Media (C-288/89), 25 July 1991: not yet reported. Gaz:288/89 The following additional cases were referred to in argument: 19. Procureur du Roi v. Dassonville (8/74), 11 July 1974: [1974] E.C.R. 837, [1974] 2 C.M.L.R. 436. Gaz:8/74 20. Zanetti (C-359/88), 28 March 1990: [1990] I E.C.R. 1509. Gaz:359/88 21. Du Pont de Nemours Italiana SpA v. Unità Sanitaria Locale No. 2 di Carrara (21/88), 20 March 1990: [1990] I E.C.R. 889, [1991] 3 C.M.L.R. 25. Gaz:21/88 TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE Facts The contested national provisions The former decree of the Walloon Regional Executive of 17 May 1983 concerning the disposal of certain waste products in the Region of Wallonia [FN2] was worded as follows: Section 1 It shall be prohibited to tip or dump and to procure the tipping or dumping of waste from a foreign State in the depots covered by the General Regulations for the Protection of Workers ... and by the Royal Decree of 9 February 1976 containing general regulations on toxic waste ... with the exception of depots annexed to an installation for the destruction, neutralisation and disposal of toxic waste. FN2 [1983] Moniteur Belge 7717. The operators of the establishments referred to by paragraph 1 shall be prohibited from authorising or tolerating the tipping or dumping in the establishment operated by them of waste from a foreign State. Section 2 Exceptions to section 1 may be granted ... on application by a foreign public authority.

Such exception may be granted for a limited period only and ... must be justified by serious and exceptional circumstances. ... *369 Section 3 It shall be prohibited to tip or dump and to procure the tipping or dumping of waste from a region other than the Region of Wallonia in the establishments referred to by section 1, paragraph 1. ... Section 5 Waste which is not produced in the Region of Wallonia shall be deemed to be from a foreign State or a region other than Wallonia. If the waste is the result of a process involving two or more States or regions, it originates from the State or region where the last substantial, economically justified conversion took place in an enterprise equipped for that purpose. ... On 19 March 1987 the Walloon Regional Executive adopted a new decree concerning the disposal of certain waste products in the Region of Wallonia. [FN3] This decree repealed the earlier one described above, but contained virtually identical provisions. In the version of the Decree of 19 March 1987 section 1 began as follows: "It shall be prohibited to store, tip or dump and to procure the storage, tipping or dumping ..." FN3 [1987] Moniteur Belge 4671. Community measures Council Directive 75/442 on waste [FN4] has a dual legal basis, viz. Articles 100 and 235 EEC. FN4 [1975] O.J. L194/39. The first recital of the directive states that the laws of the member-States concerning waste disposal should be harmonised because "... any disparity between the measures which already apply or in the course of preparation ... may create unequal conditions of competition and thereby directly affect the operation of the Common Market ..." According to the second recital, Article 235 EEC should be used as a basis because "... it appears necessary to combine the harmonisation of laws with action by the Community aiming to attain, by wider regulation, one of the objectives of the Community with regard to the protection of the environment and improvement in the quality of life ...", and the powers of action required for this purpose have not been provided by the Treaty. According to the third recital, "... the essential objective of any measures

concerning waste disposal must be to protect human health and the environment against the harmful effects of the collection, transport, processing, storage and dumping of waste." The fifth recital states that "... effective, coherent provisions for waste disposal which do not impede trade in the Community and do not affect competition conditions should apply to movable property disposed of by the holder ..." *370 Article 2(1) of the directive in question provides that "without prejudice to this directive, the member-States may adopt specific measures for particular types of waste", and paragraph 2 provides that certain types of waste are excluded from the ambit of the directive. Under Article 3, "the member-States shall take appropriate steps to encourage the prevention, recycling and processing of waste ..." and "they shall inform the Commission in good time of any proposed legislation concerning such measures ..." Pursuant to Article 5, "the member-States shall establish or designate the competent authorities to be responsible ... for the planning, organisation, authorisation and supervision of waste disposal operations." Such authorities are also required to draw up appropriate plans (Article 6). Any installations or undertakings treating, storing or tipping waste on behalf of third parties must obtain a permit from the competent authority (Article 8) and are subject to periodic inspections by it (Article 9), while "undertakings transporting, collecting, storing, tipping or treating their own waste, and those which collect or transport waste on behalf of third parties, are also to be subject to supervision by the competent authority " (Article 10). Council Directive 84/631 [FN5] on the supervision and control within the European Community of the transfrontier shipment of hazardous waste, as amended by Council Directive 86/279 [FN6] and adapted to technical progress by Commission Directive 87/112 [FN7] is also based on Articles 100 and 235 EEC. FN5 [1984] O.J. L326/31. FN6 [1986] O.J. L181/13. FN7 [1986] O.J. L48/31. According to the third recital of this directive, "... transfers of waste between the member-States ... may be necessary to dispose of waste under the best possible conditions." The fourth recital states that any disparity between the provisions applicable in the member-States concerning the disposal of hazardous waste "... is likely to distort conditions of competition and thus directly affect the functioning of the Common Market ...", and the sixth recital, that "... an effective, coherent system of supervision and inspection of transfrontier shipments of hazardous waste should not create obstacles to trade in the Community or affect competition." Finally, the seventeenth recital provides that "... the member-States may specify

frontier-crossing points after obtaining the Commission's opinion." Article 1 of the directive in question requires the member-States to take "... the necessary measures for supervising and inspecting, for the purpose of protecting human health and the environment, transfrontier shipments of hazardous waste ..." in the Community. For these purposes Article 3 stipulates that "where a holder of waste intends to ship it ... from one member-State to another, or to have it *371 routed through one or more member-States ... he shall notify the competent authorities of the member-States concerned." Such notification is to be given by means of a uniform consignment note. The shipment may not be carried out before those authorities have acknowledged receipt of the notification. The member-States concerned may object to the proposed shipment. Any such objections must be substantiated on the basis of laws and regulations relating to the protection of the environment and human health which are in accordance with the directive and other Community instruments (Article 4). Facts and procedure On 11 November 1986 the Commission received a complaint concerning the national provisions described above. After examining the provisions in question, the Commission reached the conclusion that they were contrary to the Community rules. Accordingly on 29 February 1988 it sent, pursuant to Article 169(1) EEC, a formal notice to the Belgian Minister for Foreign Relations, pointing out that the measures taken by the Walloon Regional Executive were contrary to the abovementioned Directives 75/442 and 84/671, as well as Articles 30 and 36 EEC. As no reply was received, on 17 October 1988 the Commission sent Belgium a reasoned opinion asking it to take the necessary measures to comply with the opinion within two months. As there was no response to the reasoned opinion, on 3 January 1990 the Commission brought the present action, asking the Court: -- to declare that by prohibiting the storage, tipping or dumping and the procuring of the storage, tipping or dumping in Wallonia of waste from another member-State or a region other than the Region of Wallonia, Belgium has failed to fulfil its obligations under Directives 75/442 and 84/631 and Articles 30 and 36 EEC. WRITTEN REPLIES The Commission was asked by the Court to give written replies to the following questions: 1. The Commission asks the Court to declare that Belgium has failed to fulfil its obligations because the prohibition on disposing of waste in the Region of Wallonia concerns waste from other member-States as well as other regions of

Belgium. The Commission is asked to clarify its position on this point. 2. Belgium states that after the Decree of 19 March 1987 was amended by the Decree of 23 July 1987, [FN8] section 1, paragraph 1, began as follows: "it shall be prohibited to store, tip or dump waste from a foreign State in depots, stores and tips subject to authorisation pursuant to the Decree of 5 July 1985 concerning waste ..." The Commission is asked to state its observations with regard to the potential importance of this amendment for delimiting the subject-matter of the dispute. FN8 Moniteur Belge, 28 September 1987. *372 The Commission replied as follows: Question 1 The Commission considers that a reply should be given by reference to each of the Community law provisions in question. (a) Council Directive 75/442The Commission considers that the fact alone that "it shall be prohibited to store etc. ... waste from a foreign State in depots, etc. ..." (section 1 of the Decree of the Walloon Regional Executive of 19 March 1987) in the Region of Wallonia is a breach of the obligations of Belgium under this directive. The object of the directive is to encourage the prevention, recycling and processing of waste (Article 3(1)) without impeding trade in the Community or affecting competition conditions (fifth recital). Such a prohibition clearly impedes trade in the Community and affects competition conditions. The Commission considers that the mere fact that this prohibition has been laid down at regional level and not at the national level does not affect the Commission's assessment with regard to the breach of obligations. The prohibition contained in section 1 of the decree cited above combined with the prohibition, in section 3 of the same decree, on storing etc. waste from other regions of Belgium is also a breach of Directive 75/442 for the reasons briefly indicated above. The prohibition in section 3 must be construed in the light of section 5 of the decree, which provides that "if the waste is the result of a process involving two or more States or regions, it shall be deemed to originate from the State or region where the last substantial, economically justified conversion took place in an enterprise equipped for that purpose" (paragraph 2). This has the effect of prohibiting the disposal in Wallonia of waste of foreign origin which has undergone substantial, economically justified processing (within the meaning of section 5, paragraph 2, of the decree) in another region of Belgium. On the other hand, if the prohibition in section 3 existed without the prohibition on storing, etc. in Wallonia waste from other member-States, the Commission would take the view that this purely inter-regional prohibition would not be contrary to Directive 75/442. In that case waste from other member-States could be disposed of in Wallonia without hindrance. The directive aims only to maintain

trade between member-States while at the same time ensuring the rational disposal of waste. (b) Directive 84/631With regard solely to the prohibition contained in section 1 of the abovementioned decree, the Commission considers that it is a breach of the obligations of Belgium under Directive 84/631. This directive *373 aims to set up a Community system of supervision and control of transfrontier shipments of hazardous waste while avoiding disparities between national laws which distort competition and have an indirect effect on the functioning of the Common Market (fourth recital). The directive itself postulates that "transfers of waste between the member-States ... may be necessary in order to dispose of waste under the best possible conditions " (third recital). As stated above, the mere fact that this is a prohibition at regional level, not at national level, does not affect the Commission's assessment. Regarding the prohibition in section 1 of the decree combined with that in section 3, the same reasoning as set out above applies to Directive 84/631 mutatis mutandis. So far as concerns the prohibition in section 3 of the decree on its own, as if that contained in section 1 did not exist, the Commission considers that Directive 84/631 does not apply to a purely inter-regional prohibition in so far as waste from another member-State can be dumped without hindrance in Wallonia. (c) Article 30 EECThe Commission considers that a prohibition in the Region of Wallonia on disposing of waste from other member-States, as provided for by section 1 of the decree, is a measure having equivalent effect to a quantitative restriction prohibited by Article 30 EEC. The fact that the prohibition is laid down at regional level and not the national level does not affect this conclusion, which is supported by Case C-21/88, Du Pont de Nemours Italia SpA v. Unità Sanitoria Locale No. 2 di Carrara. [FN9] In this case the Court held that Article 30 EEC precludes measures which produce effects only for the benefit of enterprises situated in a particular area. The Commission considers that there are no grounds for distinguishing between national measures which produce purely regional effects and regional measures having the same effects. FN9 [1990] I E.C.R. 889, [1991] 3 C.M.L.R. 25. The prohibition contained in section 3 of the decree strengthens that in section 1 in the sense indicated above. The fact that the two prohibitions taken together do not seem a priori to distinguish between waste from other regions of Belgium and waste from other member-States is not such as to remove the measure in question from the ambit of the prohibition laid down by Article 30: para. [13] of the judgment cited above. In reality section 3(3) of the decree in question confers power only on the Belgian regions to conclude agreements with the Region of Wallonia for organising the dumping and tipping of waste from those regions in Wallonia. On the other hand, the Commission takes the view that if the prohibition in section 3 of the decree alone were at issue, it would not be contrary to Article 30 EEC because it is purely inter-regional. This *374 would apply only to the extent

that there were no obstacles to trade in waste between the other member-States and Wallonia. However, it should be observed that the prohibition in section 3 of the decree in isolation is not at issue in this case. The dispute concerns the prohibitions in section 1 of the decree in isolation or the prohibition in section 1 combined with that in section 3. Second question The Court asks the Commission for its observations on the importance which the amendment of section 1(1) of the Decree of 19 March 1987 by the Decree of 23 July 1987 could have for delimiting the subject-matter of the dispute. Before it was amended, section 1 of the Decree of 19 March 1987 was worded as follows: It shall be prohibited to store, tip or dump and to procure the storage, tipping or dumping of waste from a foreign State in the depots covered by the General Regulations for the Protection of Workers, Part 1, Chapter II, List A, no. 140ter, 1, and list B, no. 7, and by the Royal Decree of 9 February 1976 containing general regulations on toxic waste, sections 4, with the exception of depots annexed to an installation for the destruction, neutralisation and disposal of toxic waste. Section 130 of the Decree of 23 July 1987 amended the above wording of section 1 as follows: It shall be prohibited to store, tip or dump and to procure the storage, tipping or dumping of waste from a foreign State in depots, stores and tips subject to authorisation, pursuant to the Decree of 5 July 1985 on waste or the Act of 22 July 1974 on toxic waste, with the exception of depots annexed to an installation for the destruction, neutralisation and disposal of toxic waste. The Commission is of the opinion that this change in wording does not materially affect the delimitation of the subject-matter of the dispute. The prohibition on storing, tipping, etc. is still worded in the same way. The only change is in the designation of the depots and dumps referred to by the section and in which it is prohibited to tip etc. foreign waste. Section 18 of the Decree of the Walloon Regional Council of 5 July 1985 on waste provides that "it shall be prohibited to establish and operate a dump other than a supervised tip ..." Section 19 provides that the establishment and operation of a supervised tip, a depot or a waste-processing installation are subject to authorisation. The effect of these provisions remains the same: it is prohibited to dispose in the Region of Wallonia of waste from another member-State, whatever the legal arrangements and however the depots in question are classified. The Belgian Government was asked by the Court to give a written reply to the following question: Belgium states that after the Decree of 19 March 1987 was amended *375 by the Decree of 23 July 1987, [FN10] section 1(1) began as follows: "it shall be prohibited to store, tip or dump waste from a foreign State in depots, stores and tips subject to authorisation pursuant to the Decree of 5 July 1985 concerning waste ..." The Belgian Government is asked to state its observations with regard

to the potential importance of this amendment for delimiting the subject-matter of the dispute. FN10 Moniteur Belge, 29 September 1977. The Belgian Government replied as follows: The correct wording of the amendment to the Decree of 19 March 1987 made by section 130 of the Decree of 23 July 1987 is as follows: "It shall be prohibited to store, tip or dump and to procure the storage, tipping or dumping of waste from a foreign State in depots, stores, and tips subject to authorisation, pursuant to the Decree of 5 July 1985 on waste or the Act of 22 July 1974 on toxic waste, neutralisation and disposal of toxic waste." (The quotation in the statement in defence is incorrect.) So far as the main issue is concerned, this amendment makes no difference. The reason why an amendment was made is that the reference to the legal basis was wrong. In the original version the General Regulations for the Protection of Workers and the Royal Decree of 9 February 1976 containing general regulations on toxic waste were the reference, while the new text refers to the Decree of 5 July 1985 on waste or the Act of 22 July 1974 on toxic waste.

First Opinion of the Advocate General (Mr. Francis Jacobs) In these proceedings the Commission seeks a declaration that, by prohibiting the storage, tipping or dumping in Wallonia of waste from other member-States or from Belgian regions other than Wallonia, Belgium has failed to fulfil its obligations under 1. Council Directive 75/442 on waste. [FN11] FN11 [1975] O.J. L194/39. 2. Council Directive 84/631 on the supervision and control within the European Community of the transfrontier shipment of hazardous waste. [FN12] FN12 [1984] O.J. L326/31. 3. Articles 30 and 36 EEC. The prohibitions complained of by the Commission are to be found in a decree of the Walloon Regional Executive of 19 March 1987 concerning the disposal of certain waste products in the Region of Wallonia. [FN13] Section 1(1), as amended by section 130 of the decree of 23 July 1987, [FN14] prohibits the storage, tipping or dumping of waste from a foreign country in authorised depots, stores and tips in Wallonia, except in depots annexed to an installation for the destruction, neutralisation and disposal of toxic waste. Section 1(2) forbids waste *376 disposal undertakings to permit the storage etc. of foreign waste on their premises. Under section 2, derogations from section 1 may be granted by the Walloon Regional Executive for a limited period not exceeding two years and must be justified by reference to serious and exceptional circumstances. Under

section 3, the storage, tipping or dumping of waste from the other Belgian regions, namely Flanders and Brussels, is also prohibited, but exceptions may be made in accordance with agreements to be made with those other regions. In addition, under section 4, public or private persons who produce, collect or remove waste may request derogations from section 3. Under section 5(1) waste from a foreign country or another region means waste which is not produced in Wallonia. FN13 [1987] Moniteur Belge 4671. FN14 [1987] Moniteur Belge 4078. The decree of 19 March 1987 repealed and replaced a decree of 17 March 1983 [FN15] which contained substantially similar provisions. It is not disputed that the effect of the decree of 19 March 1987 is to impose a global ban on the importation of all waste products into Wallonia, subject only to the exceptions contained in the decree and to the possibility of further derogations. FN15 [1983] Moniteur Belge 7717. The Commission alleges breach of two Community directives. The first of these, Directive 75/442 on waste, sets out a number of general provisions and general principles regarding waste disposal. Member-States are required to take appropriate steps to encourage the prevention, recycling and processing of waste (Article 3) and to take the necessary measures to ensure that waste is disposed of without endangering human health or harming the environment (Article 4). Member-States are to establish or designate the competent authority or authorities to be responsible, in a given zone, for the planning, organisation, authorisation and supervision of waste disposal operations (Article 5). Any installation or undertaking treating, storing or tipping waste on behalf of third parties must obtain a permit from the competent authority (Article 8) and shall also be subject to periodic inspections by the latter (Article 9). Undertakings transporting, collecting, storing, tipping or treating their own waste, and those which collect or transport waste on behalf of third parties, are also to be subject to supervision by the competent authority (Article 10). "Waste" is broadly defined in Article 1(a) as any substance or object which the holder disposes of or is required to dispose of pursuant to the provisions of national law in force. Directive 84/631, as amended by Council Directive 86/279 [FN16] and Council Directive 87/112, [FN17] establishes a system of supervision and control of the transfrontier shipment of hazardous waste. Where a holder of waste intends to ship it from one member-State to another, or to have it routed through one or more member-States, he is required to notify the competent authorities of the member-States concerned by *377 means of a uniform consignment note (Article 3). The shipment may not be carried out before the competent authorities have acknowledged receipt of the notification. The competent authorities of the member-State of destination or transit may, within one month of notification,

object to the shipment. Any such objections must be substantiated on the basis of laws and regulations relating to environmental protection, safety and public policy or health protection which are in accordance with the directive and other Community instruments (Article 4). The directive covers (with certain minor exceptions) toxic and dangerous waste as defined in Council Directive 78/319 [FN18] on toxic and dangerous waste and PCB as defined in Council Directive 76/403 [FN19] on the disposal of polychlorinated biphenyls and polychlorinated terphenyls. FN16 [1986] O.J. L181/13. FN17 [1983] O.J. L48/31. FN18 [1978] O.J. L84/43. FN19 [1976] O.J. L108/41.

Breach of the directives The Commission argues that no provision of the two directives permits a member-State to adopt prohibitions of the kind contained in the decree of 19 March 1987. It adds that such prohibitions are contrary to the scheme and objectives of the directives which are essentially designed to ensure the free movement of waste products while protecting health and the environment. Belgium replies that if no specific provision permits the ban, none excludes it either, and argues that the ban is compatible with the essential objective of both directives, namely, the protection of human health and of the environment. In my view, breach of Directive 75/442 has not been established. It is true that the objective of the directive, as its first recital indicates, is not only the protection of health and the environment, but also the prevention of disparities in national laws which may create unequal conditions of competition and affect the operation of the Common Market: it can thus be said to take as its point of departure the free movement of goods. However, beyond that the directive merely establishes a general framework of rules for the supervision of waste disposal operations: it contains no substantive provision which is specifically concerned with inter-State trade in waste products or which expressly or by necessary implication excludes the type of measure adopted by the Walloon Regional Executive. The position is different as regards Directive 84/631. That directive also, as the fourth recital indicates, seeks to ensure that differences between the provisions on disposal of hazardous waste do not distort conditions of competition and thus directly affect the functioning of the Common Market. But, in contrast to Directive 75/442 Directive 84/631 is also specifically concerned with the transfrontier movement of dangerous waste, setting up a detailed, uniform system of supervision and control, including in particular the obligatory prior *378 notification of intended shipments. In my view, the fact that the directive has adopted for a system of prior notification, under which the onus is on the member-State of destination to raise objections, of itself excludes the possibility

of adopting an alternative system of control such as a general prohibition on imports, subject to the possibility of derogations. The fact that Directive 84/631 provides for objections by the member-State of destination suggests that the directive does envisage the possibility of restrictions on the importation of dangerous waste. However, the wording and scheme of the provisions relating to notification and to objections make it plain that any such restrictions must be limited in scope. The text of Article 3, and in particular the reference to the information which must be contained in the consignment note, indicates that the prior notification procedure relates to the intended shipment of a specific consignment of waste. Under Article 4(1), objections must be raised not later than one month after receipt of the notification, that is to say the notification of the intended shipment by means of the consignment note. In my view, it follows that any objections raised by the member-State of destination must relate to the specific consignment which is the object of the notification, and must relate to the information concerning the consignment which is contained in the consignment note. Thus a member-State might, for instance, delay a shipment if it is not satisfied as to the measures taken to ensure safe transport, or that the consignee of the waste has adequate technical capacity for the disposal of the waste in question, matters on which the holder of the waste is required to provide satisfactory information (Article 3(3), third and fourth indents). However, these provisions exclude a global, a priori ban on the influx of waste. This interpretation of the relevant provisions is supported by the objective of the directive, which inter alia is to ensure that the system of supervision and control of the transfrontier shipment of hazardous waste should neither create barriers to intra-Community trade nor affect competition (sixth recital). It is also, as I shall suggest, supported by Article 30 EEC. I am therefore of the opinion that the Commission has succeeded in establishing a breach of Directive 84/63.

Breach of Article 30 EEC In its application the Commission seeks a declaration that Belgium has infringed Article 30 and Article 36 EEC. Since it is Article 30 which contains the substantive prohibition, to which Article 36 merely sets out a number of exceptions, I consider that it is inappropriate to plead an infringement of Article 36 as such. I will therefore proceed on the basis that the issue is one of a breach of Article 30 only. The Commission argues that the ban on the storage, tipping and dumping of waste from other countries plainly amounts to a measure *379 of equivalent effect to a quantitative restriction on imports within the meaning of Article 30 EEC. It also argues that reliance on Article 36 is excluded because the directives institute a uniform, harmonised system of supervision of waste disposal and of inter-State movement of waste which excludes any residual power on the part of the member-States. It adds that in any event the ban on imports of waste from other member-States constitutes a means of arbitrary discrimination within the meaning of the second sentence of Article 36, since there is no reason to believe that waste from other member-States is more dangerous than that produced in

Wallonia. Belgium contends that waste--at any rate when it cannot be recycled or re-used--has no commercial value and therefore cannot be considered to fall within the scope of the provisions relating to the free movement of goods. It relies in this respect on Case 7/68, E.C. Commission v. Italy, [FN20] where it is stated that by goods within the meaning of Article 9 EEC "there must be understood products which can be valued in money and which are capable, as such, of forming the subject of commercial transactions." Belgium also points out that the prohibitions in the degree affect not only waste produced in other member-States, but also that from other Belgian regions. Finally, Belgium argues that the ban is justified under Article 36 and that it must be seen as an urgent and temporary safeguard measure which was taken to prevent Wallonia becoming "the dustbin of Europe" as a consequence of influxes of waste from countries where disposal is more tightly regulated and more highly taxed. FN20 [1968] E.C.R. 423, [1969] C.M.L.R. 1, at p.428 (E.C.R.) p.8, para. [5] (C.M.L.R.). In my view, the Treaty provisions on free movement of goods must be taken to apply to all types of waste product, even those which cannot be recycled or re-used. While it is clear that such products have no intrinsic commercial value-- indeed, they rather have a negative value--they clearly form the subject of commercial transactions in that waste disposal undertakings are paid to dispose of them. Indeed, as the Commission agent pointed out at the hearing, a substantial industry is devoted to the disposal of waste products. Account must also be taken of the purpose of the Community provisions on the free movement of goods, namely the removal of all internal frontiers: the acceptance that certain classes of product do not benefit from these provisions would in practice entail the re-erection of internal frontiers. I would add that this view appears to be supported by Case 172/82, Fabricants Raffineurs D'Huile de Graissage v. Inter-Huiles [FN21] in which the Court ruled that the Community rules on the free movement of goods and Council Directive 75/439 on the disposal of waste oils do not allow a member-State to organise a system for the collection and disposal of waste oils within its territory in such a way as to prohibit exports to an *380 authorised disposal or regenerating undertaking in another member-State. FN21 [1983] E.C.R. 555, [1983] C.M.L.R. 485. Once it is accepted that all waste is covered by the Treaty provisions on free movement of goods, then it is in my view plain that a measure which, by prohibiting the storage, tipping and dumping of waste, has the effect of restricting imports of waste from other member-States, must be viewed as a measure of equivalent effect. In that regard, it is irrelevant that the ban also extends to waste from other Belgian regions. The fact that a measure restricting intra-Community trade also restricts trade as between the regions of the member-State concerned cannot have the effect of removing the measure from the scope of Article 30.

Moreover, as already mentioned, exceptions to the ban are possible by virtue of agreements made with the other Belgian regions, a possibility which does not exist in respect of imports from other member-States. In any event, as the Commission points out in answer to a written question from the Court, the ban on imports from other Belgian regions is capable of reinforcing the ban on imports from other member-States, in that it will prevent the treatment of waste from other member-States in the Flanders or Brussels regions, followed by final disposal in Wallonia. It is in my view also irrelevant that by virtue of section 2 of the decree derogations may be granted to the prohibition on the influx of waste from other countries. According to well-established case law, the mere requirement that importers and traders must comply with certain administrative formalities may itself constitute a measure having an effect equivalent to a quantitative restriction: see, for example, Case 82/77, Van Tiggele. [FN22] FN22 [1978] E.C.R. 25, [1978] 2 C.M.L.R. 528. The question then arises whether reliance on Article 36 is possible. Directive 75/442, which contains only a general framework for the supervision of waste disposal, does not in my view displace Article 36. However, I consider that Directive 84/631 does exclude reliance on Article 36, at any rate as regards the categories of dangerous waste covered by that directive. As already stated, Directive 84/631 establishes a detailed, uniform system for the supervision and control of the transfrontier shipment of dangerous waste. As the Court has indicated, where in application of Article 100 EEC, Community directives provide for the harmonisation of measures necessary to ensure the protection of animal and human health and establish Community procedures to check that they are observed, recourse to Article 36 is no longer justified and the appropriate checks must be carried out and the measures of protection adopted within the framework outlined by the harmonising directive: see Case 5/77, Tedeschi [FN23] and Case 148/78, Ratti. [FN24] FN23 [1977] E.C.R. 1555, [1978] 1 C.M.L.R. 1, at para. [35]. FN24 [1979] E.C.R. 1629, [1980] 1 C.M.L.R. 96, at para. [36]. In my view it is not in any event open to Belgium to rely on Article 36 *381 in order to restrict imports of non-dangerous waste. According to well- established case law, Article 36 must be interpreted restrictively: see, for example, Case 46/76, Bauhuis, [FN25] and I therefore do not think it possible to adopt a wide interpretation of the "human health" exception so as to permit restrictions on substances which do not threaten health or life but at the most "the quality of life". Nor is it possible to rely on the "mandatory requirements" exceptions to Article 30, which include the protection of the environment: see Case 302/86, E.C. Commission v. Denmark. [FN26] Those exceptions can be invoked only for measures which are not discriminatory. But the measure in question, which

favours waste produced in one region of a member-State, is plainly not indistinctly applicable to domestic and imported products. FN25 [1977] E.C.R. 5. FN26 [1988] E.C.R. 4607, [1989] 1 C.M.L.R. 619. The result is that Belgium might in principle rely on Article 36 only in relation to the categories of dangerous waste excluded from the scope of Directive 84/631, such as the radioactive waste excluded by Article 3 of Directive 78/319, or the chlorinated and organic solvents excluded by Article 2(1)(a) of Directive 84/631. Without it being necessary to consider the possible justification for restrictions on the imports of such products into Wallonia, it is sufficient to say that a global, a priori ban on imports of waste from other member-States is clearly neither necessary nor proportionate to avert any danger to public health which might be posed by those products. Before concluding, I will deal briefly with certain arguments of a general nature which were developed by Belgium at the hearing in this case. Belgium argues that the measure adopted by the Walloon Regional Executive is compatible with certain principles concerning waste disposal which are established in international law and which are about to be adopted into Community law. These are, first, the principle of self-sufficiency in waste disposal and, secondly, the principle of proximity, i.e. that waste should be disposed of as near as possible to the place of production so as to reduce to a minimum the transportation of waste. Belgium contends that these principles are laid down in the Basle Convention of 22 March 1989 on the control of transboundary movements of hazardous wastes and their disposal, which has been signed by the Community, and that they are recognised in the Council Resolution of 7 May 1990 on waste policy [FN27] and in the Commission's proposal for a Council regulation on the supervision and control of shipments of waste within, into and out of the European Community, submitted by the Commission on 10 October 1990. [FN28] FN27 [1990] O.J. C122/2. FN28 [1990] O.J. C289/9. The preamble to the Council Resolution of 7 May 1990 states that it is important for the Community as a whole to become self-sufficient in waste disposal and that it is desirable for member-States individually to *382 aim at such self-sufficiency (fifth recital). Paragraph 7 of the resolution accordingly calls for the development of an adequate and integrated network of disposal facilities in the Community on a regional or zonal (but not a national) level so as to facilitate the disposal of waste in one of the nearest suitable facilities. In addition the preamble to the resolution (seventh recital) and paragraph 11 call for the reduction to a minimum of movements of waste. However, even if the resolution were a binding

instrument, there is in my view nothing in these statements to justify a measure as far-reaching as that adopted by the Walloon Regional Council. The proposal for a regulation is designed inter alia to implement the Basle Convention. It is based on Articles 100a and 113 EEC and is intended to replace Directive 84/631. The eighth recital to the proposal states that Community strategy for waste disposal is based on the reduction of shipments of waste to strict essentials. Title II of the draft regulation, which is concerned with the movement of waste within the Community, reinforces the system of prior notification laid down in Directive 84/631. Under Article 4(1) to (3) of the draft it will be open to either the member-State of dispatch or that of destination to object to a transfer of waste, and if necessary to refuse authorisation, if there is an authorised and suitable waste disposal centre significantly nearer than the one chosen by the notifier. While this system is certainly more restrictive than that currently provided for in Directive 84/631, even if the draft regulation were currently in force, it could not be relied on as a basis for the general prohibition instituted by the Walloon Regional Executive. I would add that, in my view, there is no incompatibility in principle between the Treaty provisions on the free movement of goods and the principles of self-sufficiency and proximity, provided that those principles are applied in a Community as opposed to a purely national framework: that indeed appears to be the intention both of the Council Resolution and of the draft regulation referred to. Accordingly, these final arguments do not affect the conclusion I have reached. Although, as I have indicated, the Commission has in my view not established a breach of Directive 75/442, I consider that it has succeeded on the substance of its case and that it is therefore entitled to the costs of the action.

Conclusion Accordingly, I am of the opinion that the Court should: 1. Declare that by prohibiting the storage, tipping or dumping in Wallonia of waste from other member-States and, in so far as waste originating in other member-States is concerned, from Belgian regions other than Wallonia, Belgium has failed to fulfil its obligations under Council Directive 84/631 and Article 30 EEC. *383 2. For the rest, dismiss the application. 3. Order Belgium to pay the costs.

Second Opinion of the Advocate General (Mr. Francis Jacobs) The Court is already familiar with these proceedings, in which the Commission seeks a declaration that, by prohibiting the storage, tipping or dumping in Wallonia of waste from other member-States or from Belgian regions other than Wallonia, the Belgian Government has failed to fulfil its obligations under 1. Council Directive 75/442 on waste. [FN29] FN29 [1975] O.J. L194/39.

2. Council Directive 84/631 on the supervision and control within the European Community of the transfrontier shipment of hazardous waste. [FN30] FN30 [1984] O.J. L126/31. 3. Articles 30 and 36 EEC. Oral argument was presented at a hearing on 27 November 1990, and I delivered my Opinion on 10 January 1991. [FN31] However, by an Order dated 2 May 1991 made pursuant to Article 61 of the Rules of Procedure, the Court reopened the oral procedure in order to give the parties, the other member-States and the other institutions an opportunity to express their view on the following question: Is the movement of unusable and non-recyclable waste which is devoid of commercial value covered by the Treaty provisions concerning the free movement of goods, or are the commercial transactions relating to the disposal, tipping or destruction of such waste covered by the Treaty provisions concerning the free movement of services? FN31 See p.375. In addition, the Commission was invited to inform the Court of any Community legislative measures currently in preparation on the cross-border transfer or the storage, dumping or tipping of non-dangerous, non-recyclable waste, and was asked whether it intended to make any proposals for measures aimed at limiting cross-border movements of such waste. For its part, the Belgian Government was asked whether the provisions at issue in these proceedings (namely the decree of the Walloon Regional Executive of 19 March 1987, as amended by the decree of 23 July 1987) covered recyclable or non-recyclable waste. Both the Commission and the Belgian Government replied to the questions specifically addressed to them as well as to the general question, but no other member-State or institution submitted any comments. As regards the question addressed to the Belgian Government, the latter stated that the provisions in question applied only to waste which either could not be, or was not in fact, used or recycled. It appears therefore that the decree of the Walloon Regional Executive applies to recyclable waste which is not destined for recycling, as well as to non-recyclable waste. In response to the *384 question addressed to it, the Commission provided copies of a communication from the Commission to the Council and the Parliament of 14 September 1989, on a Community strategy for the management of waste, as well as of a proposal for a Council directive concerning the disposal of waste by landfill dated 22 May 1991. The Commission also drew the Court's attention to the proposal for a Council regulation on the supervision and control of shipments of waste within, into and out of the European Community, [FN32] and to the recently adopted Council Directive 91/156 amending Directive 75/442 on waste. [FN33] FN32 [1990] O.J. C289/9.

FN33 [1991] O.J. L78/32.

Waste and the free movement of goods In my previous Opinion I suggested that the Treaty provisions on the free movement of goods must be taken to apply to all types of waste product, even those which cannot be recycled or re-used. It may be helpful to expand on the reasons I gave for that view, in the light of the response of the parties to the question put by the Court. The Treaty provisions concerning the free movement of goods are the cornerstone of the Community. According to Article 9 EEC, the Community "shall be based upon a customs union which shall cover all trade in goods ... ". The Treaty does not, however, contain any definition of the term "goods " (unlike, for instance, the ECSC Treaty, which contains a definition of the terms "coal" and "steel"). This lack of a definition is perhaps already an indication that the term is to be given a wide meaning. In contrast, the term "services" does receive at least a partial definition in Article 60 EEC, which provides that: Services shall be considered to be "services" within the meaning of this Treaty where they are normally provided for remuneration, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons. ... As Article 60 makes clear, the concept of services covers a residual category of transactions not covered by the free movement of goods, capital or persons: see Joined Cases 60-61/84, Cinetheque v. Federation Nationale des Cinemas Français. [FN34] The residual character of the services provisions of the Treaty has recently been demonstrated by Case C-239/90, Boscher, Studer et Fromentin v. British Motors Wright. [FN35] There, a national provision which restricted the sale of goods by public auction, by imposing a local registration requirement on the owners of the goods, was held to be incompatible with Article 30 EEC. Article 59 did not apply, even though the restriction was also no doubt a barrier to the provision of services by the auctioneers to clients established in another member-State. FN34 [1985] E.C.R. 2605 *385 , [1986] 1 C.M.L.R. 365, at paras. [10] and [11]. FN35 Not yet reported. Thus, the provisions of the Treaty concerning the free movement of goods can apply, whether or not the transactions in question also provide the occasion for the provision of services. Even if it is accepted that the waste disposal contractor provides a "service", within the meaning of the Treaty, to the producer of the waste, that would not be enough in itself to bring the transaction within the services provisions of the Treaty. Indeed, the latter provisions will only apply if the transaction in question is not covered by those concerning the free movement of goods. That is not to say that there are no circumstances in which a

transaction involving both the movement of goods and the provision of services can properly be regarded as falling under Article 59: an example might be where goods are temporarily moved to another member-State for the purposes of restoration or repair. In such cases the movement of the goods is only an incidental feature of the transaction in question. However where, as in the present case, the whole point of the transaction is permanently to remove the object from one member-State to another in order that it can be stored, tipped or destroyed, the movement of goods cannot be regarded as merely incidental to the provision of services, even if the operations of storage, tipping or destruction are regarded as "services" within the meaning of the Treaty: compare Case 18/84, E.C. Commission v. France. [FN36] FN36 [1985] E.C.R. 1340, [1986] 1 C.M.L.R. 605, at para. [12]. There are consequently two issues to be considered: the first is whether non-recyclable waste is indeed "goods" for the purposes of the Treaty, and the second is whether there is any other feature of the transactions in question which removes them from the ambit of the provisions concerning the free movement of goods. I shall discuss these two issues in turn. The scope of the concept of "goods" was directly at issue in Case 7/68, E.C. Commission v. Italy. [FN37] In that case, the Italian Government attempted to argue that articles having an artistic, historic, archaeological or ethnographic value were not "ordinary merchandise", and hence were not goods falling under Article 16 EEC (which prohibits customs duties on exports and charges having equivalent effect). Rejecting that argument, the Court stated: [FN38] Under Article 9 EEC the Community is based on a customs union "which shall cover all trade in goods." By goods, within the meaning of that provision, there must be understood products which can be valued in money and which are capable, as such, of forming the subject of commercial transactions. FN37 [1968] E.C.R. 423, [1969] C.M.L.R. 1. FN38 At pp.489-9 (E.C.R.), p.8, para. [5] (C.M.L.R.). The articles covered by the Italian Act, whatever may be the characteristics which distinguish them from other types of merchandise, nevertheless resemble the latter, inasmuch as they can be valued in money and so be the subject of commercial transactions. Referring to the passage quoted above, the Belgian Government *386 argues that it is not sufficient for the articles in question to be the subject of commercial transactions; they must also "have a value", by which the Belgian Government evidently means: have a positive, rather than a negative value. It seems to me, however, that the expression "valued in money" in the quoted passage is not to be given such a restrictive interpretation. Given the issue before the Court in Case 7/68, it is evident that "valued in money" was being contrasted, not with "valueless" or "having a negative value", but rather with "priceless", in the sense

of possessing a value (artistic, historic etc.) so great, or, perhaps, so indeterminate or ineffable, that it was incapable of expression in monetary terms. As the Court pointed out, not only could the articles be valued in monetary terms; the Italian tax in question was in fact calculated with reference to those monetary values. It is quesionable whether the Court intended, in Case 7/68, to give an exhaustive definition of the term "goods"; but it is clear, in any case, that objects with a "negative+" value (that is to say, objects which the owner is willing to pay to have taken away) can be the subject of commercial transactions. Furthermore, the commercial activities of waste disposal and recycling would not be possible unless a price could be determined at which it will be commercially profitable to assume responsibility for the waste. Given a free market in waste, such "negative" prices will be determined by market forces in a similar way to the more usual case of goods having a positive value. Waste is hence something which can be valued in money, thereby becoming the subject of commercial transactions. In my view, therefore, even if the definition of the term "goods" given in Case 7/68, E.C. Commission v. Italy were to be regarded as an exhaustive one, it would be consistent with that definition to classify objects with a negative value, such as non-recyclable waste, as goods for the purposes of the Treaty. It may also be noted that the concepts of negative price and negative value are familiar to economists: Negative quantities occur in economics, as in other sciences, when a variable, passing through zero, becomes less than nothing, so that the addition thereof causes not augmentation but diminution. Most economic quantities are susceptible of this change of sign. Thus wealth, affected with the minus sign, becomes debt ... Jevons proposes to employ discommodity to signify any substance or action which is the opposite of commodity, that is to say, anything which we desire to get rid of, like ashes or sewage (Theory, 2nd edn, p.63). Such an article may be said to have negative value ... [FN39] FN39 The New Palgrave: A Dictionary of Economics, Milgate and Newman, eds. (London. 1987); article "negative quantities", reprinted from Palgrave's Dictionary of Political Economy. The next question to consider is whether there is any feature of the transactions concerned--namely, those involving the transportation across national frontiers of non-recyclable waste for the purpose of *387 storage, tipping or disposal--which removes them from the ambit of Articles 30 to 36 EEC. It should first be observed that objects can benefit from the Treaty provisions concerning the free movement of goods, whether or not they are being transported across national frontiers for the purposes of sale or resale. The principle of the free movement of goods is not limited to those goods which are intended to be traded in the member-State of importation; the principle extends, for instance, to the importation of goods by a private individual for the purposes of personal consumption: see Case 215/87, Schumacher v. Hauptzollamt

Frankfurt AM Main-Ost, [FN40] and Case C-362/88, GB-INNO-BM v. Confederation du Commerce Luxembourgeois [FN41] and see also the remarks of Warner A.G. in Case 34/79, Regina v. Henn and Darby. [FN42] FN40 [1989] E.C.R. 617, [1990] 2 C.M.L.R. 465. FN41 [1990] I E.C.R. 667, [1991] 2 C.M.L.R. 801. FN42 [1979] E.C.R. 3795, [1980] 1 C.M.L.R. 246, at p.3827 (E.C.R.), p.261 (C.M.L.R.). It seems to me, moreover, that it would be wrong in principle to confine the free movement of goods to the movement of objects having a positive value. An object with a negative value, just as much as one with a positive value, is something to which property rights and obligations can attach. Among such rights and obligations must be numbered those relating to the safe disposal of the object. Under national law, the owner of an object will typically enjoy, not only the right to its lawful use, but also the right to decide, again within the limits of the law, upon the proper method of its disposal. It does not seem to me that any useful distinction can be drawn, for the present purposes, between the right to dispose of an object by consumption and the right to do so by storage, tipping or dumping. To an ecologist, for instance, the latter right may be more significant than the former. It follows, in my view, that the free movement of goods includes the freedom to move articles across a national frontier in order to dispose of them more cheaply or more safely in another member-State, just as much as it includes the freedom to move personal possessions across a frontier for the purpose of private consumption, as in Case 215/87 Schumacher, cited above. Thus, the free movement of goods applies not only to goods intended for further trading, but also those destined for consumption, storage, or disposal. At the hearing, the Belgian Government sought to distinguish between the movement of an object for the purposes of consumption in another member-State, and the movement of waste for the purposes of disposal. It argued, in particular, that the consumption of a product constitutes the "very purpose" of commercial transactions, and consequently forms an essential part of the economic circuit of production, exchange and consumption. It appears therefore that the Belgian Government would not regard the production and disposal of waste as forming an essential part of the circuit of economic activity. *388 This is a view I cannot accept. Both the manufacture and consumption of goods lead, not only to the production of objects having a positive utility, but also, with equal inevitability, to the generation of useless and sometimes harmful waste. Decisions concerning the disposal of such waste are as integral a part of the economic circuit as decisions relating to consumption, production or exchange. In my opinion, therefore, "goods" for the purposes of the Treaty must be taken to include any movable physical object to which property rights or obligations attach (and which can therefore be valued in monetary terms, whether positive or negative). If the exercise of such rights, or the fulfilment of such obligations,

involves the selection of a method of disposal, and if the method selected entails the movement of the object between member-States, national provisions restricting such movement fall to be examined under Articles 30 to 36 EEC. Not only, as I have argued above, would it be wrong in principle to confine the Treaty rules on the free movement of goods to items having a positive value; it would also be difficult to do so in practice. As the Commission points out, no workable distinction can be drawn for the present purposes between recyclable and non-recyclable waste. Both forms of waste may be products with a negative value, since in both cases the generator of the waste may wish to pay to have it taken away, i.e. charge a "negative" price. In the case of non-recyclable waste, the price will of course always be a negative one; but it may also be negative where the waste is recycled, since the proceeds from recycling may not fully cover transportation and reprocessing costs. In some cases waste may be recyclable, but not in fact destined for recycling; and it will be recalled that the decree of the Walloon Regional Executive covers such waste. Whether or not a given quantity of waste is recycled will depend on a number of variable factors, including the current state of technical knowledge, the cost of competing raw materials, the cost of the recycling process itself, and the intentions and capacity of the processor. In my view, therefore, it would be difficult in the extreme to differentiate beween these various categories of waste, classifying one as "goods", another merely as an opportunity for the provision of services; and the Court does not in fact appear to have been inclined to draw such a distinction in previous cases involving waste: see Case 172/82, Fabricants Raffineurs D'Huile de Graissage v. Inter-Huiles [FN43] and Case 240/83, Procureur de la Republique v. Adbhu. [FN44] In this connection, the Commission also refers to Joined Cases 372-374/85, Ministere Public v. Traen [FN45] and Joined Cases C 206 & 207/88, Vessoso and Zanetti; [FN46] it does not seem to me, *389 however, that the scope of the free movement of goods was even indirectly at issue in those cases. FN43 [1983] E.C.R. 555, [1983] 3 C.M.L.R. 485. FN44 [1985] E.C.R. 531. FN45 [1987] E.C.R. 2141, [1988] 3 C.M.L.R. 511. FN46 [1990] I E.C.R. 1461. Moreover, a single consignment of waste may include both recyclable and non-recyclable waste, or may include recyclable waste, only some of which is in fact intended to be recycled. It would in my opinion be unsatisfactory to conclude that one part of the consignment benefited from free movement under Article 30 EEC, and the remainder under Article 59. Not only would it be difficult to draw a distinction between recyclable and non-recyclable waste, it would also be difficult to draw a distinction between recyclable waste and other raw materials. It should be noted that "waste and

scrap products" are referred to in Article 4(2)(i) of Council Regulation 802/68 on the common definition of the concept of the origin of goods. Furthermore, as the Commission observes, several types of waste are included in the Common Customs Tariff, no doubt because they are important sources of raw materials. It could be, of course, that the kinds of waste so included are those which normally have a positive rather than a negative market value; but I can see no reason for distinguishing between the two cases for the purposes of the principle of free movement, especially in view of the fact that a given type of waste product may at different times belong to either category, depending upon the cost and availability of other sources of raw materials. For all the above reasons, I reach the conclusion that the term "goods" for the purposes of the Treaty covers non-recyclable and unusable waste, and that restrictions on the movement of such waste between member-States are covered by the Treaty provisions concerning the free movement of goods, rather than those concerning the free movement of services. Thus, notwithstanding that the national legislation at issue in these proceedings applies exclusively to waste which cannot be, or is not in fact, re-used or recycled, I remain of the opinion that such legislation infringes Article 30 EEC. At the hearing, there was some discussion of what measures a member-State might be permitted to take in order to safeguard particular regions or localities from an unwanted influx of non-recyclable waste. It is clear that such measures would have to be capable of justification, in accordance with well established principles, either under Article 36 or under one or other of the mandatory requirements recognised by Community law, among which is included environmental protection: see Case 302/86, E.C. Commission v. Denmark. [FN47] If justification is sought in terms of a mandatory requirement not mentioned in Article 36 itself, the measures in question must be indistinctly applicable to domestic and imported waste. Even if the transactions were to be classified as the provision of services, the justification for any restriction would in my opinion fall to *390 be examined in accordance with similar principles. Thus, Article 56, which applies to services by virtue of Article 66, provides an exception to the free movement of services on grounds of public health; and in the case of indistinctly applicable measures, restrictions on services can be justified as measures taken in accordance with imperative requirements pertaining to the general interest: Case C-288/89, Stichting Collectieve Antennevoorziening Gouda. [FN48] FN47 [1988] E.C.R. 4607, [1989] 1 C.M.L.R. 619. FN48 Not yet reported, para. [13]. Applying those principles, it seems to me that at least some restrictions on the transfer of waste could be justified on environmental grounds. Since environmental protection is a mandatory requirement not mentioned in Article 36, any such measure would, however, have to be indistinctly applicable to domestic and foreign waste. As I suggested in my previous Opinion, that condition may not

be satisfied by a measure which simply restricts the use of the waste disposal facilities of a particular region or locality to waste produced in that locality or region. A provision of that type clearly favours domestically produced waste, especially where, as is the case with the decrees of the Walloon Regional Executive, exceptions may be made in the case of waste coming from other regions of the same member-State. Hence, in the circumstances of the present case, the measures in issue cannot be justified on grounds of environmental protection. In contrast, a provision applying throughout a region of a member-State, requiring waste to be disposed of within its locality of generation, might be said to be indistinctly applicable. Such a provision would prevent the exportation of locally produced waste to another locality or another member-State in exactly the same way that it prevented the disposal of waste coming from another State or locality. Such a measure might moreover be justified in terms of the need to reduce the amount of waste in transit and to limit the areas used for waste disposal. Whether or not the measure was in fact proportionate to those objectives could be of course only be decided in the light of all the relevant circumstances.

Recent and proposed Community legislation As mentioned above the Commission drew the Court's attention to various items of recent or proposed Community legislation on waste. In my previous Opinion, I have already considered the Council Resolution of 7 May 1990 on waste policy [FN49] and the proposal for a Council regulation on the supervision and control of shipments of waste within, into and out of the European Community. [FN50] I remain of the view that the general prohibition on the importation of waste instituted by the Walloon Regional Executive would not be justified by the Council Resolution or by the draft regulation, even if the former were a binding instrument or the latter were currently in force. FN49 [1990] O.J. C122/2. FN50 [1990] O.J. C289/9. *391 Council Directive 91/156 fulfils an undertaking to amend Directive 75/442 which was made by the Council in its resolution of 7 May 1990. Article 5 of the amended directive provides as follows: 1. Member-States shall take appropriate measures ... to establish an integrated and adequate network of disposal installations ... The network must enable the Community as a whole to become self-sufficient in waste disposal, and the member-States to move towards that aim individually, taking into account geographical circumstances or 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 nearest appropriate installations, by means of the most appropriate methods and technologies ... It seems to me that a unilaterial prohibition by one member-State on the

importation of waste could well be inconsistent with the establishment of such an integrated network. In particular, such a ban might have the consequence that waste from an adjacent member-State could not be disposed of in one of the nearest appropriate installations. It is true that Article 5 of the amended directive refers to the aim of member-States moving individually towards the goal of self-sufficiency in waste. It is clear, however, that this objective must not be achieved in a manner incompatible with Articles 30 to 36 EEC. Thus, although a reduction in the cross-border movement of waste may be a legitimate aim of the Community's environmental policy, it is not to be attained by means of quantitative restrictions at national frontiers. It is to be achieved, rather, by an improvement in waste disposal facilities, and, above all perhaps, by means of a limitation on the amount of waste produced (see the fourth recital to the amending directive). In other words, it is to be attained by reducing the need to export waste rather than by banning its importation from other member-States. Furthermore, the aim of national self-sufficiency mentioned in Article 5 is qualified by the need to take "geographical circumstances" into account, as well as by "the need for specialised installations for certain types of waste "; and the aim is to be achieved by means of the drawing up by the member-States of waste management plans under Article 7 of the amended directive. It is in relation to such plans that member-States are permitted to take the measures necessary to prevent movements of waste (see Article 7(3)). Accordingly, although I still take the view that the prohibition of the Walloon Regional Executive does not infringe the version of Directive 75/442 which is currently in force, that might no longer be the case after 1 April 1993, when the time limit for giving effect to the directive as amended expires. The proposal for a Council directive concerning the disposal of waste by landfill dated 22 May 1991 does not have any direct bearing upon the movement of waste between member-States, being concerned rather with the harmonisation of procedures and criteria for the use of that method of disposal within the member-States. It is clear, *392 nonetheless, that such a harmonisation of standards at a high level of environmental protection (see the second recital to the draft directive) is an appropriate complement to the free movement of waste, and might indeed go some way towards meeting the concerns of the Walloon Regional Executive.

Conclusion I accordingly remain of the opinion that the Court should: 1. Declare that by prohibiting the storage, tipping or dumping in Wallonia of waste from other member-States and, in so far as waste originating in other member-States is concerned, from Belgian regions other than Wallonia, Belgium has failed to fulfil its obligations under Council Directive 84/631 and Article 30 EEC. 2. For the rest, dismiss the application. 3. Order Belgium to pay the costs. JUDGMENT

[1] By application received by the Court Registry on 3 January 1990 the E.C. Commission brought an action pursuant to Article 169 EEC for a declaration that, by prohibiting the storage, tipping or dumping and the procuring of the storage, tipping or dumping in the Region of Wallonia of waste from another member-State or a region other than Wallonia, Belgium has failed to fulfil its obligations under Council Directive 75/442 on waste, [FN51] Council Directive 84/361 on the supervision and control within the European Community of the transfrontier shipment of hazardous waste [FN52] and Articles 30 and 36 EEC. FN51 [1975] O.J. L194/39. FN52 [1984] O.J. L326/31. [2] It appears from the file that the basic instrument concerning the management of waste in the Region of Wallonia is the Decree of the Walloon Regional Council of 5 July 1985 on waste, [FN53] which aims to prevent waste from accumulating, to encourage recycling and the recovery of energy and materials and to organise the disposal of waste (section 1). FN53 Moniteur Belge, 14 December 1985. [3] Pursuant to section 19(6) of the same decree, empowering the Walloon Regional Executive to lay down special rules governing the use of supervised tips, depots and installations for processing waste from foreign States and other regions of Belgium, the Executive in question adopted the Decree of 19 March 1987 concerning the disposal of certain waste products in the Region of Wallonia. [FN54] FN54 [1987] Moniteur Belge 4671. [4] Under section 1 of that decree, as amended by the Decrees of 9 and 23 July 1987, *393 It shall be prohibited to store, tip or dump and to procure the storage, tipping or dumping of waste from a foreign State in depots, stores and tips subject to authorisation, ... with the exception of depots annexed to an installation for the destruction, neutralisation and disposal of toxic waste. Operators of the establishments referred to by paragraph 1 shall be prohibited from authorising or tolerating the tipping or dumping of waste from a foreign State in the establishments operated by them. [5] Section 2 of the same decree provides that exceptions to section 1 may be allowed on application by a foreign public authority. However, an exception may be allowed for a limited period and must be justified by serious and exceptional circumstances. [6] Under section 3, the prohibition laid down by section 1 also applies to waste from a region of Belgium other than Wallonia. Exceptions may be allowed

pursuant to agreements between Wallonia and other regions of Belgium. [7] Section 5 of the decree is worded as follows: Waste which is not produced in the Region of Wallonia shall be deemed to be from a foreign State or a region other than Wallonia. If the waste is the result of a process involving two or more States or regions, it originates from the State or region where the last substantial, economically justified conversion took place in an enterprise equipped for that purpose. ... [8] The Commission took the view that these Belgian provisions are contrary to the Community rules in so far as they prohibit the tipping in Wallonia of waste from other member-States and in so far as, by the combined effect of the abovementioned sections 3 and 5 of the Decree of 19 March 1987, they prohibit the disposal in Wallonia of waste from other member-States which has undergone substantial, economically justified coversion in another region of Belgium. The Commission therefore initiated against Belgium the procedure provided for by Article 169 EEC. [9] Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the pleas in law and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court. [10] The Commission contends that the Belgian provisions are contrary, firstly, to the abovementioned Directives 75/442 and 84/631 and, secondly, Articles 30 and 36 EEC. Directive 75/442 [11] The Commission contends that none of the provisions of Directive 75/442, which concerns waste, authorises a general prohibition of the kind contained in the Belgian measures. It adds that such a prohibition is contrary to the aims of the directive and the general structure of its provisions, which seek to ensure the free movement of waste under conditions which are not harmful to human health or the environment. [12] It should be observed that Directive 75/442 sets out certain *394 principles and contains general provisions concerning the disposal of waste. [13] Thus it requires the member-States to take appropriate measures to encourage the prevention, recycling and processing of waste, and likewise the measures necessary to ensure that it is disposed of without endangering human health or harming the environment. The member-States are also to establish or designate the competent authorities to be responsible for the planning, organisation, authorisation and supervision of waste disposal operations, while enterprises transporting, collecting, storing, tipping or treating their own waste or that of third parties must obtain an authorisation for that purpose or are to be subject to supervision by the competent authorities. [14] It follows from what has been said that there is no specific reference, either in the general framework laid down by the directive in question or in any of its provisions, to trade in waste between member-States, nor is there an express prohibition on adopting measures such as those laid down by the contested

provisions. Therefore, it must be concluded that the violation of Directive 75/442 alleged by the Commission has not been established. [15] Secondly, it should be observed that the contested provisions apply to waste in general, without distinguishing between hazardous and non-hazardous waste. However, as the category of hazardous waste is specifically regulated in Community law by the abovementioned Directive 84/631, it is necessary first to examine the arrangements set up by this directive. Directive 84/631 [16] Directive 84/631 as amended by Council Directive 86/279 [FN55] and adapted to technical progress by Commission Directive 87/112, [FN56] forms part, according to its first recital, of the programmes of Community action aiming to control the disposal of hazardous waste. The second recital points out that the member-States are required to take the necessary measures to dispose of toxic and hazardous waste without endangering human health or harming the environment. The third recital indicates that transfers of waste may be necessary between member-States in order to dispose of it under the best possible conditions, while the seventh recital points out the need for supervision and control of hazardous waste from the time it is formed until it is processed or disposed of under safe conditions. FN55 [1986] O.J. L181/13. FN56 [1986] O.J. L48/31. [17] In the framework of these aims, with regard to the disposal of the waste in question the directive lays down conditions for ensuring that disposal does not endanger human health or harm the environment and provides for a system of authorisation for the storage, processing or dumping of such waste, and for communication *395 to the Commission by the member-States of certain information concerning the installations, establishments or enterprises holding such authorisation. [18] With regard to the transfrontier shipment of hazardous waste for the purpose of disposal, the directive provides that a holder of waste who intends to ship it from one member-State to another or to have it routed through one or more member-States must notify the competent authorities of the member-States concerned by means of a uniform consignment note containing information on the origin and composition of the waste, the proposed arrangements regarding the itinerary and insurance, and measures to be taken to ensure safety in transport (Article 3). [19] A transfrontier shipment cannot be carried out before the competent authorities of the member-States concerned have acknowledged receipt of the notification. They may raise objections which must be substantiated on the basis of laws and regulations relating to environmental protection, safety and public policy or health protection which are in accordance with the directive and other

Community instruments or relevant international conventions concluded by the member-State concerned (Article 4). [20] It is clear from the foregoing that Directive 84/631 has set up a complete system relating to transfrontier shipments of hazardous waste for disposal in specified establishments and that it is based on the obligation of the holder of the waste to give prior detailed notification. The national authorities concerned have the option of raising objections and therefore prohibiting a particular transfer of dangerous waste (as opposed to transfers of such waste in general) in order to overcome problems relating to the protection of human health and the environment on the one hand and safety and public policy on the other. Consequently the system does not imply that the member-States have power to prohibit such transfers generally. [21] It must therefore be concluded that in so far as the contested Belgian provisions preclude the application of the procedure laid down by the directive and introduce an absolute ban on the importation of dangerous waste into Wallonia, even though they provide that certain exceptions may be allowed by the authorities concerned, those provisions are incompatible with the directive in question. Articles 30 and 36 EEC [22] It remains to examine the Belgian measures in question, in so far as they relate to waste which is outside the ambit of Directive 84/361, in the light of Articles 30 and 36 EEC. [23] It is common ground that waste which can be recycled and re-used, after processing if necessary, has an intrinsic commercial value and therefore amounts to goods for the purpose of applying the Treaty, and that such waste is therefore within the ambit of Article 30 et seq. *396 [24] The question whether waste which is non-recyclable and cannot be re-used is also covered by Article 30 et seq. was argued before the Court. [25] On this point the Belgian Government contended that such waste cannot be considered as goods within the meaning of Article 30 et seq. EEC because it has no intrinsic commercial value and could not therefore be sold. The Belgian Government adds that the operations for disposing of such waste are covered by the provisions of the Treaty relating to the freedom to supply services. [26] In reply to these arguments it is sufficient to point out that objects which are transported over a frontier in order to give rise to commercial transactions are subject to Article 30, irrespective of the nature of those transactions. [27] Secondly, it should be observed that the distinction between recyclable and non-recyclable waste raises a serious difficulty of practical application with regard to frontier controls, as was explained to the Court. Such a distinction is based on uncertain factors which may change in the course of time, depending on technical progress. Moreover, whether any particular waste is recyclable or not also depends on the cost of recycling and therefore the profitability of the proposed further use, so that a decision in this connection is necessarily subjective and depends on variable factors.

[28] Therefore it must be concluded that waste, whether recyclable or not, should be regarded as a product the movement of which must not in principle, pursuant to Article 30 EEC, be impeded. [29] The defendant State contends that the obstacles to the movement of waste are justified on the grounds, firstly, that the contested provisions conform to mandatory requirements relating to the protection of the environment and the safeguarding of human health, which overrides the objective of the free movement of goods and, secondly, that those provisions are an exceptional, temporary measure to safeguard Wallonia from an influx of waste from neighbouring countries. [30] So far as the environment is concerned, it should be observed that waste has a special characteristic. The accumulation of waste, even before it becomes a health hazard, constitutes a threat to the environment because of the limited capacity of each region or locality for receiving it. [31] In the present case the Belgian Government contended, and the Commission accepted, that an abnormal, massive influx of waste had taken place from other regions for the purpose of dumping in Wallonia, thus constituting a genuine threat to the environment in view of the Region's limited capacity. [32] It follows that the argument that the contested measures are justified by mandatory requirements relating to the protection of the environment must be regarded as well-founded. [33] However, the Commission contends that these mandatory *397 requirements cannot be invoked in the present case because the measures in question discriminate against waste from other member-States which is no more harmful than the waste produced in Wallonia. [34] It is true that the mandatory requirements are to be taken into account only with regard to measures which apply to national and imported products without distinction: see Case C-1/90, Aragonesa de Publicidad. [FN57] However, in order to determine whether the obstacle in question is discriminatory, the particular type of waste must be taken into account. The principle that environmental damage should as a priority be rectified at source--a principle laid down by Article 130r(2) EEC for action by the Community relating to the environment--means that it is for each region, commune or other local entity to take appropriate measures to receive, process and dispose of its own waste. Consequently waste should be disposed of as close as possible to the place where it is produced in order to keep the transport of waste to the minimum practicable. FN57 Not yet reported. [35] Furthermore this principle accords with the principles of self-sufficiency and proximity set out in the Basle Convention of 22 March 1989 on the control of transborder movements of hazardous waste and the disposal thereof, to which the Community is a party. [FN58] FN58 International Environmental Law (Kluwer, Deventer-Boston. 1991), p.546.

[36] It follows that, having regard to the differences between waste produced in one place and that in another and its connection with the place where it is produced, the contested measures cannot be considered to be discriminatory. [37] Therefore it must be concluded that the application should be dismissed in so far as it relates to waste which is not covered by Directive 84/631. Costs [38] Pursuant to Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. As Belgium is only partly unsuccessful, each party should be ordered to bear its own costs pursuant to Article 69(3). Order On those grounds, THE COURT hereby: 1. Declares that, by introducing an absolute prohibition on the storage, tipping or dumping in the Region of Wallonia of hazardous waste from another member-State, and by thus precluding the application of the procedure laid down by Council Directive 84/631 on the supervision and control within the Community of the transfrontier shipment of hazardous waste, Belgium has failed to fulfil its obligations under that directive. *398 2. Dismissed the application in all other respects. 3. Orders each party to pay its own costs.

(c) Sweet & Maxwell Limited [1993] 1 C.M.L.R. 365 END OF DOCUMENT