Opinion of advocate general Lenz delivered on 2 March 1993
1 Original language: German.
2 Directive 75/439 of 16 June 1975 on the disposal of waste oils, OJ 1975 L 194, p. 31.
3 See p. 2 of the order for reference.
4 Article 24(5) of the Law of 15 July 1975; Decree of 21 November 1979; Order of 29 March 1985; Prefectoral Order of 30 August 1985.
5 Annexes 1 to 4 of the French Government's reply to the Court's questions.
6 See Article 1 of the Order of 29 March 1985 concerning the collection of waste oil.
7 Article 5 of the Annex to the abovementioned Order of 29 March 1985.
8 Article 5(2) of Decree No 79-981, as amended by Decree No 85-387.
9 The combined effect of Articles 4(1) and 5(2) of Decree No 79-981, as amended by Decree No 89648, in conjunction with Article 3 of the Order of 21 November 1979 and Article 5 of Annex 2 of the Circular of 5 December 1989, is that the monopoly principle has in the meantime been replaced by the principle that the number of approved undertakings in each area is not limited, although this is admittedly weakened by exceptions.
10 Syndicat National des Fabricants Raffmeiirs d'Huile dc Graissage v Inter-huiles [1983] UCR 555.
11 Rhône-Alpes Iludes GIE. v Syndical National des Fabricants Raffmeun d'Huile et de Graissage [1984] ECR 575.
12 Procureur de la République v ADBHU [1985] LCR 531.
13 Commission v France [1985] ECR 491.
14 Section 3, above.
15 The order making the reference states as follows (p. 3): Having regard to the judgment of the Tribunal Correctionnel, this court finds that there arc sufficient grounds in the facts submitted to it for seeking a preliminary ruling from the Court of Justice of the European Communities on the question set out below in the operative part hereof, before ruling on the substance of the case.
16 Judgment, p. 3, last paragraph.
17 The court refers in error lo a circular.
18 Judgment, p. 4, last two paragraphs.
19 Judgment of the Cour de Cassation, p. 4.
20 Section 19, above.
21 The preference to be given to undertakings which guarantee the greatest possible protection of the environment; the obligation to carry out collection; the obligation to take two samples when collecting waste oil; the requirement that applications must be supported by particulars of the applicant's experience.
22 Sec Joined Cases C-320/90, C-321/90 and C-322/90 Telemarsicabruzzo v Circostel and Others [1993] ECR I-393.
23 Paragraph 6.
24 For the purposes of the present case, sec in particular Case C-260/89 Ellimki Radtophonia Tileorassi AE v Dimotikt Elama Phroforissis [1991] ECR I-2925, paragraph 7); sec also Case C-187/91 Belgian Siale v Belovo [1992] ECR I-4937. paragraph 12, and Case C-114/91 Claeys [1992] ECR I-6559, paragraphs 10 and 11.
25 Case C-202/88 France v Commission [1991] ECR I 1223, paragraph 22.
26 See her Opinion in Case 172/82 Inter-Huiles [1983] ECR 568, at 581, right-hand column.
27 Sec the Opinion of Advocate General Tesauro in Case C-320/91 Corbeau [1993] ECR I-2533, paragraph 14.
28 The judgments cited in footnotes 9 to 12 proceeded from this assumption. This was later expressly confirmed by the judgment in Case C-2/90 Commission v Belgium [1992] ECR I-4431, paragraph 26.
29 On this point, see the Court's reasoning, with reference to Article 30, concerning provisions aimed directly at imports of waste, in the judgment in Case C-2/90 Commission v Belgium, cited in the previous footnote, at paragraph 26.
30 Article 3 of Decree No 79-981.
31 Section 3, above.
32 See footnote 11.
33 See Section 60, below.
34 See my Opinion in Case 173/83 Commission v France [1985] ECR 491, at 497.
35 See, for example, Case C-47/90 Delhaize v Promalvin [1992] ECR I-3669, paragraph 12.
36 The judgment in ADBHU (footnote 11), paragraph 14 et seq. is to the same effect.
37 Case C-41/90 Hofner and Elser v Macrotron [1991] ECR I-2017.
38 Joined Cases 159/91 and 160/91 Poucet v AGF [1993] ECR I-637.
39 Case C-263/86 Belgian Stale v Humbel [1988] ECR 5365, paragraphs 15 to 18.
40 See also Case C-159/90 Society for the Protection of Unborn Children Ireland v Grogan and Others [1991] ECR I 4685, paragraph 18.
41 Case 352/85 Bond van Advneerders [1988] ECU 2085, paragraph 16.
42 Case 205/84 Commission v Germany [1986] ECR 3755.
43 Case C-76/90 Säger v Dennemeyer [1991] ECR I-4221, paragraph 12.
44 Casc C-353/90 Commission v Netherlands [1991] ECR I-4069.
45 Unlike most exclusive rights created by law, the present measure does not exclude competition completely, but restricts it to the time of the grant of the (monopoly) approval. However, this has no bearing on the application of the abovementioned principles.
46 Case C-353/90 Commission v Netherlands, paragraphs 22, 23 and 24 and the first sentence of paragraph 25. Here also the Court repeated that Article 90(1) as such docs not provide a criterion for assessing the compatibility of exclusive rights with the Treaty (paragraph 33 et seq.).
47 Case 302/86 Commission v Denmark [1988] ECR I-4607, paragraph 8 et scq.
48 [1985] ECR 531.
49 Paragraph 9, at 548.
50 Paragraph 13, at 549, and Opinion, at 534, right-hand column.
51 Sager, paragraph 15; Commission v Netherlands, paragraph 31; and ADBHU, paragraphs 13 and 15, see footnote 46.
52 At the time 1 used the phrase the fundamental freedom to engage in commerce or pursue a professional or trade activity: [1985] ECR 532, at 534.
53 See Inter-Huiles, paragraph 13, my emphasis.
54 Case 118/86 Openbaar Ministerie v Nertsvoederfabrtek Nederland [1987] ECR I-3883, paragraph 16.
55 Advocate General Da Cruz Vilaça was more explicit ([1987] ECR 3894, at 3901, section 62 where reference is made to the Ínter-Iludes judgment).
56 Case 72/83 Campus Oil v Minister for Industry and Energy [1984] ECR I-2727, at paragraph 44 et seq. is into like effect. That judgment is basca on the special feature of the petroleum market in that it is very dependent on oilproducing nonmember countries (see paragraphs 28 to 31 and 38 to 41). A special situation of that kind docs not arise here. See also Case C-347/88 Commission v Greece [1990] ECR I-4747, paragraphs 47, 48 and 49.
57 It is necessary to distinguish cases where non-economic grounds may justify the establishment of a monopoly, c. g. grounds of public security and cultural or social grounds. The Court has taken up this point in the past when considering the competition provisions of the Treaty; sec the detailed analysis by Advocate General Tesauro in the Corbeau case, loc. cit.
58 See Campus Oil, paragraph 46.