CJEC, February 7, 1985, No 173-83

The court

1 By an application lodged at the court registry on 10 august 1983, the commission of the european communities brought an action under article 169 of the eec treaty for a declaration that the french republic has failed to fulfil its obligations under article 34 of that treaty by establishing under decree n°79-981 of 21 november 1979 and its two implementing orders of the same date a system for the collection and disposal of waste oils which excludes the export of such oils, even if they are to be delivered to undertakings in other member states having authority to collect, dispose of and regenerate waste oils.

2 The decree and implementing orders were adopted by the french government in order to implement council directive n°75-439-eec of 16 june 1975 on the disposal of waste oils (official journal 1975, l 194, p. 23), enacted in particular on the basis of articles 100 and 235 of the treaty with the aim of protecting the environment against the detrimental effects of the discharging, depositing or processing of such oils.

3 Articles 2 to 4 of the directive provide that member states are to take the necessary measures to ensure the safe collection and disposal - preferably by recycling - of waste oils. Article 5 of the directive provides as follows: ' 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. ' The first paragraph of article 6 also provides that '... Any undertaking which disposes of waste oils must obtain a permit. '

4 To implement the directive the french government adopted on 21 november 1979 decree n°79-981, on the recovery of waste oils, and on the same day two implementing orders (journal officiel de la republique francaise of 23 november 1979, p. 2900). Those provisions divided french territory into zones and introduced a licensing system for both waste oil collectors and undertakings responsible for disposing of such oils. Under article 3 of the decree, holders of waste oils are required to hand them over to the collectors approved in accordance with article 4 of the decree or to place them at the disposal of a disposal undertaking holding the permit for which article 8 of the decree provides, or to dispose of the oils themselves if they hold the appropriate permit. Article 6 of the decree requires collectors to deliver the collected oil to the authorized disposal undertakings. Finally, articles 2 and 9 of the implementing order dealing with the disposal of waste oils require the authorized disposal undertakings to process the waste oils in their own plant under penalty of losing their permit.

5 In the commission ' s view, the above-mentioned legislation contains an implicit but clear prohibition against exporting waste oils to other member states because it makes no provision for any exemption regarding the delivery and resale of waste oils to undertakings in other member states which have obtained the permits or licences referred to in articles 5 and 6 of directive n°75-439 and which carry on the business of collecting or disposing of waste oils; such prohibition is contrary to article 34 of the eec treaty. The commission believes that its view is confirmed by the information it has received to the effect, that the french customs authorities carry out strict checks at the frontiers on the transport of waste oils to other member states.

6 The french government contends that an express exemption for exports is unnecessary because no provision in the french legislation explicitly prohibits exports and because it is a general principle of french law that anything which is not prohibited is permitted.

7 Such an argument cannot be accepted. In view of the above provisions, the french legislation contains an implicit prohibition against exporting waste oils to other countries, including the other member states of the community, by not providing for any exemption for the resale of waste oils to collectors or disposal undertakings which have obtained in those states the permit provided for in article 6 of directive n°75-439. The principle pleaded by the french government cannot apply in this case, which involves legal provisions containing an implicit yet clear prohibition. Furthermore, even if such a principle were applicable in this case, it would still leave some doubts about the legal position. The french legislation would therefore in any case have an inhibitory effect on export trade.

8 According to consistent case-law, such a situation may constitute an obstacle to trade between member states, forbidden by article 34 of the eec treaty.

9 The french government also contends that the national legislation must be considered as a whole. Besides the decree and the two implementing orders of 21 november 1979 it also comprises a circular dated 26 october 1982 which expressly provides for the possibility of exporting waste oils to disposal undertakings in other member states on the sole condition that a certificate showing that such undertakings are authorized under national law is produced.

10 It must be noted in this regard that the circular in question, which moreover provides only for the possibility of exporting waste oils to authorized disposal undertakings in other member states and not to collectors, is stated to be no more than an internal ' memorandum ' addressed to the competent authorities. As is clear from the documents before the court, traders and manufacturers are not likely to know of its existence, nor can it confer rights upon them. It cannot therefore replace the legislative texts such as the decree and the orders in question.

11 Consequently, this argument must be rejected.

12 The french government further argues that france is the largest exporter of waste oils to other member states.

13 Although the truth of that assertion is not disputed, it must none the less be pointed out that in its judgment of 9 february 1984 in case 295-82, rhone-alpes huiles v fabricants raffineurs d ' huiles de graissage, (1984) ecr 575 the court held that the mere fact that the great majority of exports within the community come from a single member state did not justify the inference that the legislation of that member state permitted exports to other member states by collectors and holders.

14 Finally, the french government contends that if exports are impeded it is only in order to ensure that the aims of directive n°75-439 are observed.

15 That argument must be rejected since the aim of directive n°75-439, as indeed is clear from the seventh recital of its preamble, is the application of a system of treatment for waste oils ' which will neither create barriers to intra-community trade nor affect competition '.

16 It follows from the foregoing that by precluding the exportation of waste oils to other member states under the system for the collection and disposal of such oils set up under decree n°79-981 of 21 november 1979 and its two implementing orders of the same date, the french republic has failed to fulfil its obligations under article 34 of the eec treaty.

Costs

17 Under articles 69 (2) of the rules of procedure the unsuccessful party is to be ordered to pay the costs. Since the defendant has failed in its submissions it should be ordered to pay the costs.

On those grounds,

The court

Hereby:

(1) Declares that by precluding the exportation of waste oils to other member states under the system for the collection and disposal of such oils set up under decree n°79-981 of 21 november 1979 and its two implementing orders of the same date, the french republic has failed to fulfil its obligations under article 34 of the eec treaty.

(2) Orders the french republic to pay the costs.