Opinion of Mrs Advocate General Rozès
Mr President,
Members of the Court,
The Court has received a reference from the Tribunal de Grande Instance [Regional Court], Versailles, for a preliminary ruling on the interpretation of Articles 34 and 36 of the EEC Treaty so as to enable that court to assess the compatibility with Community law of the French legislation on the recovery of waste oils.
The legislation consists of a decree of 21 November 1979 and orders of the same day, adopted in accordance with the French Law of 15 July 1975 on the disposal of waste and the recovery of materials and with the Council Directive of 16 June 1975 on the disposal of waste oils.
The decree provided in particular for the granting of an approval which would give to collectors, whether legal or natural persons, the exclusive right to operate within a specified geographical zone.
The Syndicat National des Fabricants Raffineurs d'Huiles de Graissage and other undertakings, who had been granted such an approval, brought an action before the Tribunal de Grande Instance, Versailles, against the Groupement d'Intérêt Économique Inter-Huiles and 12 of its members, who had not received approval. The plaintiffs claim that the defendants are in reality unauthorized collectors. The latter contest that allegation. They consider themselves to be in the category of holders of oils, who transport their waste oils themselves, in order to deliver them directly to a disposal undertaking which has been approved in accordance with Article 3 of the decree; they have formed a Groupement d'Intérêt Économique [a form of joint venture in France equivalent to but not identical with a consortium], an association which is recognized by the French courts.
However, the Syndicat National maintains that Inter-Huiles sets aside a considerable part of the oils which it collects for export both to Belgium and to the Federal Republic of Germany, and thereby makes very substantial profits to the direct detriment of the domestic industry. In its defence, Inter-Huiles questioned the compatibility of the French legislation with the provisions of the Treaty concerning the free movement of goods, on the ground that it restricted intra-Community trade in waste oils and was not covered by Article 36 of the Treaty.
In the circumstances the Tribunal de Grande Instance, Versailles, (First Chamber) stayed the proceedings by judgment of 9 June 1982 and referred the following question to the Court for a preliminary ruling under Article 177 of the Treaty:
I shall first consider the admissibility of that question, and then its exact wording, before examining the substance.
II — 1. Admissibility
In its written observations the Syndicat National, while it expresses due deference to the Court's discretion and does not in fact request the Court to declare the question inadmissible, asks whether it might be inadmissible on the ground that it concerns the conformity of national legislation with Community law and that, as a result, it has the same purpose (as the defendants desire) as an action against the Commission for failure to act in refusing to initiate a procedure against a Member State under Article 169.
In reply to that, it is sufficient to recall the consistent line of decisions of this Court to the effect that although, in the context of proceedings under Article 177 of the Treaty, it is not for the Court to rule on the compatibility of the provisions of a national law with the Treaty, it does... have jurisdiction to provide the national court with all the criteria of interpretation relating to Community law which may enable it to judge such compatibility. In view of the nature of the plaintiff's observations, it may be useful to repeat the following extracts from the judgment in Van Gend & Loos of 5 February 1963: A restriction of the guarantees against an infringement of Article 12 by Member States to the procedures under Articles 169 and 170 would remove all direct legal protection of the individual rights of their nationals and the vigilance of individuals concerned to protect their rights amounts to an effective supervision in addition to the supervision entrusted by Articles 169 and 170 to the diligence of the Commission and of the Member States.
It would therefore seem reasonable for the validity of provisions vis-à-vis Community law to be questioned by those subject to them and for a national court to refer to the Court of Justice for a preliminary ruling so as to enable it to decide the matter.
2. On the other hand, the wording of the question calls for several observations.
3. However, the most important problem raised by the wording of the question is whether, in view of the existence of a directive on the disposal of waste oils, the prohibition on exports in question should be considered solely in the context of the provisions of that directive to the exclusion of those of the Treaty. That is the view favoured by the French Government and the Syndicat National, who maintain that Articles 34 and 36 are somehow excluded from consideration by the adoption of the directive.
As the French legislation referred to in the question is intended to implement in French law the directive on the disposal of waste oils, I shall examine the Community text before considering the national provisions.
1. As I have said, Directive 75/439 was adopted on the basis of Articles 100 and 235 of the Treaty.
2. In France the directive was implemented by Decree No 79-981 of 21 November 1979 laying down rules for the recovery of waste oils. Two orders of the same day supplemented the decree, one relating to the conditions for the collection of oils and the other relating to the conditions for the disposal of them.
In the light of those considerations, I may now examine the question referred to the Court by the Tribunal de Versailles on the compatibility of the French legislation with Community law, and above all with the directive on the disposal of waste oils.
1. A few preliminary observations are necessary in order to define the scope of the action clearly.
2. The theory shared by the French and Italian Governments and the Syndicat National appears to go further. They maintain that application of Article 5 necessarily entails a prohibition on exports. Thus if a Member State concludes that recourse to Article 5 is indispensable in order to achieve the aims of Articles 2 to 4, it must organize a system of exclusive concessions which restricts, or even eliminates, the free movement of waste oils.
3. It remains to be considered whether the provisional conclusion which I have reached is compatible with Article 90 of the Treaty.
Those considerations lead me to propose that, in reply to the question put by the Tribunal de Grande Instance, Versailles, the Court declare that:
Council Directive 75/439/EEC of 16 June 1975 on the disposal of waste oils may not be interpreted as sanctioning a national provision implementing it which has the effect of prohibiting exports of waste oils to other Member States.
1 Translated from the French.
2 For example, judgment of 17 February 1976 in Case 45/75 REWE v Hauptzollamt Landau (REWE-Zentrale V), [1976] ECR 181, at p. 194, para. 11 of the decision.
3 Case 26/62 Van Gend & Loos v Nederlandse Administratie der Belastingen [1963] ECR 1, at p. 13.
4 Case 26/62 Van Gend & Loos v Nederlandse Administratie der Belastingen [1963] ECR 1, at p. 13.
5 Judgment of 29 November 1978, Case 83/78 Pigs Marketing Board v Redmond [1978] ECR 2347 at p. 2366, para. 25 of the decision.
6 Case 295/82, Groupement d'Intérêt Économique īnter-Huiles and Others v Syndicat National des Fabricants Raffineurs d'Huile de Graissage and Others.
7 Judgment of 5 October 1977 in Case 5/77 Tedeschi v Denkami [1977] ECR 1555, at p. 1576, para. 35 of the decision; judgment of 5 April 1979 in Case 148/78, Ratti [1979] ECR 1629, at p. 1644, para. 36 of the decision.
8 Opinion in Case 120/78 REWE v Bundesmonopolverwaltung für Branntwein, [1979] ECR 649, at p. 671.
9 Opinion in Case 34/78 Yoshida v Kramer van Koophandel en Fabrieken voor Friesland, [1979] ECR 115, at pp. 147 and 148.
10 The second paragraph of Article í of the decree.
11 Third paragraph of Article 1 of the decree.
12 First paragraph of Article 2 of the decree.
13 Article 3 of the decree.
14 Article 4 of the decree.
15 Article 2 of the order on the conditions for collection.
16 Article 3 of the same order.
17 Article 6 of the decree, supplemented by the order on the conditions for collection.
18 Article 8 of the decree.
19 Article 5 of the order on the conditions for disposal.
20 Article 9 of the decree.
21 In particular, judgment of 20 February 1979 in Case 120/78, REWE v Bundesmonopolverwaltung für Branntwein, known as the Cassis de Dijon case, [1979] ECR 649, at p. 664, para. 14 of the decision.
22 Judgment of 11 July 1974 in Case 8/74, Procureur du Roi v Dassonville [1974] ECR 837.
23 In particular, judgment of 17 June 1981 in Case 113/80, Commission v Ireland [1981] ECR 1625, at p. 1639, paras 10 and 11 of the decision.
24 Even disregarding the case of the Federal Republic of Germany, which is not accepted by the Syndicat National because of the subsidies awarded to approved disposal undertakings which, in its opinion, distort competition. That is a question which the Court does not have to consider in the context of the present procedure.
25 Wet houdende regels inzake chemische afvalstoffen en afgewerkte olie.
26 Judgment of 27 March 1974 in case 127/73, BRT and Others v SABAM and Others, [1974] ECR 313 at p. 318, paras. 19 to 21 of the decision and Judgment of 14 July 1981 in Case 172/80, Züchner v Bayerische Vereinshank, [1981] ECR 2021 at p. 2030, para. 7 of the decision.