Opinion of Mr Advocate General Lenz
Mr President,
Members of the Court,
A. The case on which I shall now express my views once again centres on the directive on the disposal of waste oils (Official Journal 1975 L 194, p. 23 et seq.), which is familiar from other proceedings.
B. In the light of the submissions made to this Court, the following comments on those questions are called for:
1. Validity of the directive
It has been rightly stressed that, in view of the arguments adduced in proceedings before the national court, the question at issue is not whether the directive as a whole is invalid, but rather whether certain parts of it should be regarded as invalid.
The first point concerns Article 5, under which Member States may divide their territory into zones and authorize one or more undertakings in each zone to collect and/or dispose of waste oil, in such a way that other undertakings are prevented from carrying out those operations.
The second point concerns Article 6, under which the disposal of waste oil may be carried out only by undertakings which, after inspection of their installations and imposition of the conditions dictated by the current state of technical development, have received a permit (which means that undertakings whose installations fail to comply with certain requirements are excluded from such operations).
The last point concerns Articles 13 and 14, which provide that undertakings engaged in the collection and disposal of waste oils, upon which certain obligations are imposed by Article 5, may be granted indemnities financed by a charge imposed on products which after use are transformed into waste oils, or on waste oils themselves (which is reminiscent of a subsidy paid from public funds).
As is clear from the submissions made in the main proceedings, those legal provisions must be examined in the light of the principles contained in the Treaty on the freedom of trade, the free movement of goods and freedom of competition.
2. Interpretation of the directive in relation to the question whether it provides a legal basis for the prohibition of the burning of waste oil.
It should be noted at the outset that, in view of the legal position in France under consideration here, the question should be construed more narrowly. The situation is that French law — by virtue of Article 7 of the decree of 21 November 1979 — merely gives priority to the recycling of waste oil in preference to burning. The burning of waste oil is thus not completely excluded, but is, by virtue of the order of May 1980 mentioned at the beginning, limited to specific industrial installations.
There is thus no need to analyse in detail the merits of the French Government's view that Article 3 of the directive leaves the choice open between the recycling and the burning of waste oil and that it is therefore permissible — if a Member State has opted for recycling — to rule out burning altogether. None the less, it should be stated that that view does not reflect a correct understanding of the directive; rather, it must be assumed that the two possibilities specified in Article 3 are supposed to rank equally, and it therefore seems hardly justifiable to maintain that, since the directive is silent as to how to give effect to the two possibilities, Member States may draw the line between recycling and combustion exactly as they please.
In the first place, it is clear from the directive — and I now address myself to the problem raised by the second question — that the disposal of waste oil (which, under Article 3, includes combustion) may be undertaken only by a person holding a permit in accordance with Article 6.
Where no permit has been granted, the prohibition of burning rightly prevails. The directive also makes the following unequivocal provisions: waste oils are to be disposed of safely (Article 2); any processing of waste oils causing air pollution which exceeds the level prescribed by existing provisions is to be prohibited (Article 4 (3) — and the provisions referred to doubtless include national provisions as well); disposal is to be carried out in installations which are in keeping with the current state of technical development (second paragraph of Article 6); and disposal is to be carried out in such a way as to preclude any avoidable risk of water, air or soil pollution (Article 9). The question is therefore limited to whether those provisions cover legislation of the kind in force not only in France but also in the Federal Republic of Germany (whereby combustion is not permitted except in industrial installations), or whether the meaning and purpose of the directive demand that the only rules which may be laid down must be rules designed to ensure compliance with the aforementioned requirements, with the result that any undertaking which observes them must obtain a permit.
In my view there can be little doubt — in the light of all the submissions made in the proceedings — that the first proposition is to be preferred. It is important to note — and the information, supported by tables, given by the Commission and the German Government leaves no room for the slightest doubt — that if waste oil is simply burnt in normal, conventional installations (even those fitted with special burners) a large volume of dangerous substances escapes into the air. That problem cannot be dealt with by laying down rules and standards, on account of the very varied composition of waste oils. Furthermore, because of the costs involved, small installations cannot be equipped with purification devices which eliminate harmful fumes, as required by the directive. In addition, there is still the problem of supervision, which is essential for the effective enforcement of the directive. It would be wholly unrealistic to imagine that small-scale combustion plants (of which there are apparently several hundred thousand throughout the Community) could be reliably supervised.
The only possible reply to the second question, therefore — even though it may be doubted whether the directive at issue allows total prohibition of oil-burning — is that the directive does allow restrictions on that method of disposal of waste oil whereby the burning of waste oil is confined to large-scale installations capable of being reliably supervised, where the fitting of the requisite protective devices is not precluded on economic grounds.
C. Accordingly, the answers to be given to the questions submitted by the Tribunal de Grande Instance de Créteil are that no grounds have been disclosed which might warrant doubts as to the validity of the directive and that the directive does indeed provide a legal basis for restrictions on burning as a means of disposing of waste oil.
1 Translated from the German.
2 Judgment of 14 May 1974, Case 4/73, J. Nold, Kohlen- und Baustoflgroßhandlung v Commission of the European Communities, [1974] ECR 491.
3 Judgment of 14 May 1974, Case 4/73, J. Nold, Kohlen- und Baustoflgroßhandlung v Commission of the European Communities, [1974] ECR 491.
4 Judgment of 10 March 1983, Case 172/82, Syndical national des fabricants raļļhietirs d'huile de graissage and Others v Groupement d'intérêt économique Inter-Huiîes and Others, [1983] ECR 555.
5 Opinion of the Advocate General in Case 173/83, Commission of the European Communities v French Republic [1985] ECR 491.
6 Judgment of 10 March 1983, Case 172/82, Syndicat national des fabricants raffineurs d'huile de graissage and Others v Groupement d'intérét économique Inter-Huiles and Others, [1983] ECR 555.