CJEC, 3rd chamber, March 10, 1983, No 172-82

The court (third chamber)

1 By judgment of 9 june 1982, which was received at the court on 25 june 1982, the tribunal de grande instance (regional court), versailles, referred to the court for a preliminary ruling under article 177 of the eec treaty a question on the interpretation of articles 30 and 34 of the treaty in order to enable it to assess the compatibility with the treaty of french decree n°79-981 of 21 november 1979, laying down rules for the recovery of waste oils (journal officiel de la republique francaise of 23 november 1979, p. 2900), and the orders implementing it.

2 The main action is between the syndicat national des fabricants raffineurs d ' huiles de graissage, together with 13 other plaintiffs, and the groupement d ' interet economique ' ' inter-huiles ' '. The purpose of the action is to have the latter restrained from collecting waste oils in a number of geographical zones, on the ground that the group does not have the approval required by french legislation and that it exports the oils collected in breach of that legislation.

3 The disposal of waste oils is the subject of council directive 75-439-eec of 16 june 1975 (official journal 1979, l 194, p. 23). Articles 2 to 4 of the directive provide that member states must take the necessary measures to ensure the safe collection and disposal of waste oils, preferably by recycling. Article 5 of the directive provides that, ' ' where the aims defined in articles 2, 3 and 4 cannot otherwise be achieved, member states shall take the necessary measures to ensure that one or more undertakings carry out the collection and/or disposal of the products offered to them by holders, where appropriate in the zone assigned to them by the competent authorities ' '.

4 In accordance with that directive, the french government adopted on 21 november 1979 decree n°79-981 laying down rules for the recovery of waste oils and two implementing orders of the same date. Those provisions introduced a system of approval both for collectors of waste oil and for undertakings responsible for the disposal of those oils. Decree n°79-981 provides expressly that the collectors must deliver the waste oils collected to approved disposal undertakings. Articles 2 and 9 of the order on the conditions for the disposal of waste oils stipulate, moreover, that the approved disposal undertakings must treat the waste oils in their own facilities or have that approval withdrawn.

5 To that extent, it is established that the french legislation prohibits, by implication, the export of waste oils to foreign countries, including other member states of the community. Thus no provision is made for a derogation permitting re-sale to disposal undertakings of other member states who have obtained the authorization envisaged by article 6 of directive 75-439-eec.

6 The groupement d ' interet economique ' ' inter-huiles ' ' submitted before the national court that the french legislation was incompatible with the community rules on the free movement of goods. Accordingly, the tribunal de grande instance, versailles, stayed the proceedings and referred the following question to the court of justice for a preliminary ruling:

' ' Is the fact that collectors of waste oils may not lawfully deliver them to a disposal or regenerating undertaking of a member state of the eec because of the restrictions imposed on them by decree n°79-981 of 21 november 1979 compatible with the provisions of articles 30 and 34 of the treaty establishing the european communities, which prohibit quantitative restrictions on exports and all measures having an equivalent effect?

' '

The jurisdiction of the court of justice

7 The syndicat national des fabricants raffineurs d ' huiles de graissage maintains in the first place that the court has no jurisdiction to reply to the question submitted for a preliminary ruling inasmuch as that question has the same purpose as an action against the commission for failure to act in refusing to initiate, in this particular case, proceedings against a member state for failure to fulfil its obligations.

8 The suggestion cannot be upheld. The fact that articles 169 and 170 of the treaty enable the commission and the member states to bring before the court a state which has failed to fulfil one of its obligations under the treaty does not mean that individuals cannot plead those obligations, should the occasion arise, before a national court, which may refer the matter to this court under article 177 of the treaty. Although in the context of proceedings under article 177 of the treaty the court may not rule on the compatibility of the provisions of a national law with the treaty, it has jurisdiction to provide the national court with all the criteria of interpretation relating to community law which may enable it to assess such compatibility.

The substance

9 Under those circumstances, the question which has been referred to the court for a preliminary ruling must be interpreted as seeking, in essence, to ascertain whether the community rules on the free movement of goods and council directive 75-439-eec of 16 june 1975 on the disposal of waste oils authorize a member state to organize on its territory a system for the collection and disposal of waste oils in such a way as to prohibit export to a disposal or regenerating undertaking authorized by another member state.

10 In that respect, article 5 of the above-mentioned directive provides that member states may grant to an undertaking an exclusive right to collect or dispose of waste oils in the zone which is assigned to them. That provision must be interpreted in the light of the purpose of the directive, expressed in the seventh recital in the preamble thereto, which refers to ' ' an efficient and coherent system of treatment for waste oils, which will (not) create barriers to intra-community trade... ' '.

11 Although article 5 of directive 75-439-eec may therefore be interpreted as authorizing member states, if they so wish, to grant an exclusive right to one or more undertakings to collect or dispose of oils in the zone which is allotted to them, such a right does not automatically authorize the governments of the member states to establish barriers to exports. Indeed, such a partitioning of the markets is neither contemplated in the council directive nor compatible with the objectives set out therein.

12 That conclusion is reinforced by article 34 of the eec treaty, which prohibits all measures having an effect equivalent to quantitative restrictions on exports. As the court has repeatedly held, the prohibition concerns all national measures which have as their specific object or effect the restriction of patterns of exports and thereby the establishment of a difference in treatment between the domestic trade of a member state and its export trade, in such a way as to provide a special advantage for national products or for the domestic market of the state in question. Consequently, provisions which contravene those rules are also contrary to article 34 of the treaty.

13 It has also been suggested that the disputed legislation satisfies an economic requirement, since only the collection of all waste oils is sufficient to ensure the profitability of undertakings approved for the disposal of waste oils and, therefore, the achievement of the aims of the directive. That argument cannot be accepted. Articles 13 and 14 of the directive provide that, by way of compensation for the obligations imposed on the undertakings for the implementation of article 5, member states may, without placing restrictions on exports, grant to such undertakings ' ' indemnities ' ' financed in accordance with the principle of ' ' polluter pays ' '.

14 The plaintiffs in the main action and the french government maintain that the french legislation is justified by the need to protect the environment, an objective which is expressly referred to in the third recital of the preamble to the directive. That argument cannot be accepted. Clearly, the environment is protected just as effectively when the oils are sold to an authorized disposal or regenerating undertaking of another member state as when they are disposed of in the member state of origin.

15 Finally, even if the approval granted by a member state must be regarded as the grant of an exclusive right within the meaning of article 90 (1) of the eec treaty, that would not exempt the member state from the obligation to respect other provisions of community law, particularly those relating to the free circulation of goods and those which result from directive 75-439. As regards article 90 (2), the court has already held that it cannot at this stage create individual rights which the national courts must protect (judgment of 14 july 1971, case 10-71, hein (1971) ecr 723).

16 In reply to the tribunal de grande instance, versailles, it should be stated therefore that the community rules on free movement of goods and council directive 75-439 of 16 june 1975 on the disposal of waste oils do not allow a member state to organize a system for the collection and disposal of waste oils within its territory in such a way as to prohibit exports to an authorized disposal or regenerating undertaking in another member state.

Costs

17 The costs incurred by the french and italian governments and by the commission of the european communities, which have submitted observations to the court, are not recoverable.

18 As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the proceedings pending before the national court, costs are a matter for that court.

On those grounds,

The court (third chamber),

In answer to the question referred to it by the tribunal de grande instance, versailles, by judgment of 9 june 1982, hereby rules:

The community rules on the free movement of goods and council directive 75-439 of 16 june 1975 on the disposal of waste oils do not allow a member state to organize a system for the collection and disposal of waste oils within its territory in such a way as to prohibit exports to an authorized disposal or regenerating undertaking in another member state.