Opinion of Advocate General
Mr President,
Members of the Court,
1. This action raises once again the question of the relationship between two of the legal bases introduced by the Single European Act, Articles 100a and 130s: the former relating to measures concerning the establishment and functioning of the internal market, the objective of Article 8a of the Treaty; the latter specifically relating to measures designed to achieve objectives of environment policy (briefly, environmental protection, protection of health and prudent utilization of resources) set out in the preceding Article 13 Or of the Treaty.
2. The directive at issue in this case is Directive 91/156/EEC, which amends substantially the earlier Directive 75/442/EEC. The contested directive, which lays down the essential elements of the system of waste management within the Community, was adopted by the Council on the basis of Article 130s. In contrast, the Commission considers that the measure should have been adopted — in accordance with its proposal — on the basis of Article 100a; it therefore asks the Court to find that the directive is unlawful on that ground and annul it. It is perhaps worth adding that the Commission has also challenged the later Directive 91/689/EEC on hazardous waste on the same ground.
3. Before proceeding to appraise the contested directive, it seems appropriate to call to mind the general criteria which, according to the Court's case-law, govern the application of the rules in question.
4. Manifestly, the approach adopted in the titanium dioxide case inevitably results in a degree of broadening of the field of application of Article 100a by comparison with Article 130s. But for that very reason the criteria adumbrated by the Court should be applied strictly. This means that Article 100a should be regarded as relevant for the purposes of adopting a given measure only if that measure has as its object the establishment and functioning of the internal market, that is to say, only if it lays down rules specifically on the conditions of competition or trade within the Community.
5. That having been stated, and to return to the contested directive, the applicant's argument may be summarized as follows. In the Commission's view, the directive has as its object both the protection of the environment and the establishment and functioning of the internal market. Therefore, by reason of its subject-matter, it falls within the field of application of both Article 130s and Article 100a. It follows that, in accordance with the judgment in the titanium dioxide case, the directive should have been adopted on the basis of Article 100a only.
6. I shall state forthwith that I do not agree with the applicant's argument. I take the view that, in view of its aim and content, the contested directive has to be regarded as a measure which has as its object the protection of the environment and that it has only an ancillary effect on market conditions.
7. As regards the aims of the directive at issue, it must be observed, as is clear, inter alia, from the third, fourth, sixth, seventh and ninth recitals in its preamble, that all the objectives which it specifically pursues are environmental policy aims, in the sense that they fall within the ambit of the general objectives enshrined in Article 130r of the Treaty. In fact, the directive aims to improve the efficiency of waste management in the Community; to achieve a high level of environmental protection, which in turn necessitates restricting the production of waste; to encourage the recycling of waste; to achieve self-sufficiency in waste disposal at the level of both the Community and the Member States; and to reduce movements of waste in the Community.
8. If we now turn to its content, the directive (apart from defining the terms which determine its scope) establishes first the basic objectives which should guide Member States' action in the field of waste management. To that end, it puts them under a duty to encourage the reduction of waste production and its harmfulness (through the development of clean technologies, products which are less of a source of pollution and techniques for the final disposal of dangerous substances); to encourage the recycling of waste; to ensure that waste is disposed of without endangering human health or harming the environment; and, lastly, to prohibit the abandonment of waste.
9. Having said that, it must be emphasized that the directive contains no provision which has as its object the harmonization of the conditions of competition in particular industries or of the terms of trade in relation to particular products. As regards in particular the conditions of competition, the directive does not — as I have already mentioned — lay down common rules relating to the activity of waste management, but merely defines the principles by which action by the Member States is to be guided. It follows that each Member State may adopt in subiecta materia the provisions which, in its view, are most appropriate for the purpose of attaining the prescribed objectives. Consequently, the rules on waste disposal and recycling may differ — even to a significant degree — from one Member State to another and hence the cost burden on the undertakings affected may also turn out to differ considerably. It therefore seems to me that it can be considered that not only does the directive in question not equalize, but it does not even set out to equalize, the conditions of competition of undertakings specifically dealing with waste management or of the industries which produce waste and, in the final analysis, have to bear the costs of disposal.
10. Moreover, that conclusion seems consistent with Community practice. It can be seen that in the environmental field Article 100a is used above all for measures harmonizing the rules relating to specific products (see, for example, the directive on the sound power level of lawnmowers or, again, the directive on the disposal of batteries and accumulators containing certain dangerous substances, the latter directive being of particular interest because it shows that the Council normally adopts the specific rules governing particular categories of waste on the basis of Article 100a).
11. Moreover, I would observe that to decide otherwise would be liable to extend excessively the scope of Article 100a as compared with Article 130s.
12. In the light of those considerations, I take the view that the Council properly based the contested directive on Article 130s and that consequently the Commission's application should be dismissed.
The alternative claim put forward by the intervener
13. A final point still has to be considered. In the form of order sought by the European Parliament in its statement in intervention, Parliament seeks, not only the annulment of the directive on the ground that it is not based on the proper legal basis, but also the annulment of Article 18 of the directive on the ground that the procedure provided for therein (regulatory committee) is contrary to the Treaty.
Conclusion
On the grounds set out above, I propose that the Court should dismiss the application and order the Commission also to pay the Council's costs; the European Parliament and the Kingdom of Spain should bear their own costs.
1 Original language: Italian.
2 Council Directive 88/181/EEC of 22 March 1988 (OJ 1988 L 81, p. 71).
3 Council Directive 91/157/EEC of 18 March 1991 (OJ 1991 L 78, p. 38).
4 Council Directive 89/428/EEC of 21 June 1989 (OJ 1989 L 201, p. 56).