Master's Program 2004/2005 Technical and Fiscal Barriers ... - Lexnet

62000J0389 European Court reports 2003 Page 00000 2
THE COURT
(Fifth Chamber)
hereby:
1. Declares that, by subjecting shipments of waste to other Member States to a mandatory contribution to
the solidarity fund for the return of waste established by the Gesetz über die Überwachung und Kontrolle
der grenzüberschreitenden Verbringung von Abfällen (Abfallverbringungsgesetz) of 30 September 1994, the
Federal Republic of Germany has failed to fulfil its obligations under Articles 23 EC and 25 EC;
2. Orders the Federal Republic of Germany to pay the costs.
1 By an application lodged at the Court Registry on 20 October 2000, the Commission brought an action
under Article 226 EC for a declaration that, by enacting the Gesetz über die Überwachung und Kontrolle
der grenzüberschreitenden Verbringung von Abfällen (Abfallverbringungsgesetz) (Act on the supervision
and control of transboundary shipments of waste; `the waste shipment act') of 30 September 1994, BGBl.
1994 I, p. 2771, (`the AbfVerbrG') establishing a solidarity fund for the return of waste and requiring
exporters of waste, including those exporting to other Member States, to contribute to that fund, the
Federal Republic of Germany has failed to fulfil its obligations under Articles 23 and 25 EC.
Legal framework
The Basle Convention and Community law
2 Under Articles 23 EC and 25 EC, the Community is based upon a customs union which is to cover all
trade in goods and which is to involve the prohibition between Member States of customs duties on
imports and exports and of all charges having equivalent effect.
3 Shipments of waste within, into and out of the Community are subject to Council Regulation (EEC) No
259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of
the European Community (OJ 1993 L 30, p. 1). Shipments of waste which are excluded from the scope of
application of that regulation are laid down in Article 1(2) and (3).
4 Regulation No 259/93 implements inter alia the obligations undertaken by the Community and the
Member States in their capacity as parties to the Basle Convention of 22 March 1989 on the control of
transboundary movements of hazardous wastes and their disposal (`the Basle Convention'). That convention
was approved on behalf of the Community by Council Decision 93/98/EEC of 1 February 1993 (OJ 1993
L 39, p. 1). In addition to the Community, all of the Member States are parties to the Basle Convention.
5 Under Article 4(5) of the Basle Convention, the parties thereto are not to permit hazardous wastes or
other wastes to be exported to a non-party State or to be imported from a non-party State. Exceptions to
this rule are nevertheless provided for in Article 11 of the convention, subject to certain conditions.
6 Article 8 of the Basle Convention lays down an obligation for the State of export to ensure that, when a
transboundary movement of hazardous wastes or other wastes to which the consent of the States concerned
has been given cannot be completed in accordance with the terms of the contract, the wastes in question
are taken back into the State of export by the exporter if alternative arrangements cannot be made for their
disposal in an environmentally sound manner within 90 days.
7 Article 9(2)(a) of the Basle Convention provides that, in case of a transboundary movement of hazardous
wastes or other wastes deemed to be illegal traffic as the result of conduct on the part
© An extract from a JUSTIS database
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