European Union (see also: Access to environmental information, Environmental impact assessment) - Chemische Afvalstoffen Dusseldorp BV and others v Minister van Volkshuisvesting, Ruimtelijke Ordening en Millieubeheer (25 June 1998) ECJ

Chemische Afvalstoffen Dusseldorp BV and Others v Minister van Volkshuisvesting, Ruimtelijke Ordening en Millieubeheer
(25 June 1998) European Court of Justice

In 1994 Chemische Afvalstoffen Dusseldorp BV, a Dutch company, applied for the relevant authorisation to export 2,000 tonnes of oil filters and 60 tonnes of related waste for processing by Factron in Germany. The relevant Minister rejected the application. He applied the principles established in the Dutch government's Long-term Plan for waste disposal and recovery. This required the processing of oil filters to be performed in The Netherlands unless there was a superior process available abroad and the incineration of related waste to be carried out in The Netherlands as emission controls are stricter. The requirements of domestic processing under the Long-term Plan were developed in accordance with the principles of self-sufficiency and proximity as outlined in Directive 75/442/EEC (as amended) on waste. Whilst Regulation 259/93 on the supervision and control of shipments of waste within, into and out of the European Community applies the principles of self-sufficiency and proximity to shipments of waste for disposal, there is no such express mention of these principles in relation to shipments of waste for recovery. Chemische Afvalstoffen Dusseldorp BV argued that these principles were thus not relevant to shipment of waste for recovery and that the Dutch government's Long-term Plan was contrary to Community environmental policy. The Dutch domestic Court submitted four questions to the European Court of Justice.

1)(a)Do the principles as stated in Directive 75/442/EEC (as amended) of self-sufficiency and proximity apply to the shipment of waste for disposal under the scheme of Regulation 259/93 on the supervision and control of shipments of waste within, into and out of the European Community?
(b)If the principles do not apply can the Dutch government justify the requirements of the Long-term Plan under Article 130t of the EC Treaty?
2)Does the pursuit of best quality disposal constitute the implementation of self-sufficiency and proximity?
3)(a)If the requirements of the Long-term Plan are acceptable, do the measures fall within Article 34 of the EC Treaty, as having an equivalent effect to a quantitative restriction on exports?
(b)In that context does it matter whether the principles are applied at State or Community level?
4)The Dutch authorities have given one company the right to incinerate such waste. Is this compatible with Articles 90(1), (2) and 86 of the EC Treaty?

The European Court of Justice found that the principles of self-sufficiency and proximity were not applicable to the shipment of waste for recovery (thus questions 2 and 3 became irrelevant). It held that there was a deliberate absence of express reference to these principles in Regulation 259/93 on the supervision and control of shipments of waste within, into and out of the European Community. The Court found that this is consistent with the general European Community environmental policy of encouraging recovery. Only waste recovery can contribute to the principle of priority for recovery and to encourage Community wide recovery waste must be able to move freely (provided there is no threat to the environment or to human health). Thus the Court found that the requirements of the Long-term Plan were not justified under Article 130s of the EC Treaty. The Court then had to consider (Question 1 (b)) whether Article 130t of the EC Treaty provided a basis for the provisions. Article 130t of the EC Treaty states: "[T]he protective measures adopted pursuant to Article 130s shall not prevent any Member State from maintaining or introducing more stringent protective measures. Such measures must be compatible with this Treaty. They shall be notified to the Commission." The European Court of Justice found that these more stringent provisions were not compatible with the Treaty as the Long-term Plan provided a particular advantage for the domestic market. As the transport of the waste did not constitute a threat to human health, the requirements of domestic processing could not be justified. The Long-term Plan was equivalent to a quantitative restriction of trade and the Dutch government had failed to establish grounds for a derogation. Further, the European Court of Justice found that a requirement to deliver waste for recovery to a national undertaking, which has an exclusive right as long as its processes are superior, will be contrary to Articles 90 and 86 of the EC Treaty (a national undertaking will be favoured and its dominant position increased) unless the national Court can be satisfied that there are objective general economic reasons for such a requirement.