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

62000J0389 European Court reports 2003 Page 00000 4
`In so far as the means which the solidarity fund must provide... are insufficient to cover the costs
incurred for the return and non-harmful recovery or disposal in a manner in keeping with the general
interest, the Länder shall be required, following deduction of a federal portion to be determined by
regulation... to complete the cover according to an allocation formula established on the basis of
population and tax revenues (Königstein formula) or according to another formula agreed to by the
Länder.'
15 The obligation to contribute to the solidarity fund is in addition to the obligation imposed on the
notifier by Paragraph 7(1) of the AbfVerbrG to provide a financial guarantee or proof of equivalent
insurance covering costs for shipment, in accordance with Article 27 of Regulation No 259/93.
16 Paragraph 17 of the Verordnung über die Anstalt Solidarfonds Abfallrückführung (regulation on the
solidarity fund for the return of waste) of 20 May 1996, BGBl. 1996 I, p. 694, (`the solidarity fund
regulation') provides that the obligation to contribute arises at the same time as the duty to give notice of
waste to be shipped out of the Federal Republic of Germany. Article 18 of the same regulation lays down
the methods for calculating the contributions which amount to DEM 0.30, DEM 3.00, DEM 10.00 or
DEM 15.00 per tonne, depending on the type of waste involved.
Pre-litigation procedure
17 By letter of formal notice of 25 May 1998, the Commission informed the German authorities that it
was of the view that the contributions to the solidarity fund collected pursuant to the AbfVerbrG
constituted a charge having equivalent effect to an export customs duty prohibited by Articles 9 and 12 of
the EC Treaty (now, after amendment, Articles 23 EC and 25 EC). It added that such a contribution was
not provided for by Regulation No 259/93.
18 In their response dated 11 September 1998, the German authorities maintained that the contribution to
the solidarity fund was proportionate payment for a definite and/or specific benefit conferred on economic
operators and therefore not a charge having equivalent effect to a customs duty. The German Government
added that the specific characteristics of waste justified certain restrictions on the free movement of goods
of that type.
19 On 16 August 1999, the Commission sent a reasoned opinion to the Federal Republic of Germany in
which it dismissed the arguments of the German authorities, stating, however, that it did not object to the
contribution paid in respect of exports of waste from Germany to third countries. It invited Germany to
comply with the reasoned opinion within two months of its notification.
20 In a letter of 21 January 2000, the German Government continued to maintain that it had not infringed
the Treaty, whereupon the Commission decided to bring the present action.
Infringement
21 The Commission claims that the obligation imposed by the AbfVerbrG on all exporters of waste to
contribute to a solidarity fund is partially incompatible with Community law. It submits that, since the
contribution must be paid when waste is shipped to other Member States, it constitutes a charge having
effect equivalent to an export customs duty prohibited by Articles 23 EC and 25 EC.
22 As the Court has held on a number of occasions, the justification for the prohibition of customs duties
and any charges having an equivalent effect lies in the fact that any pecuniary charge, however small,
imposed on goods by reason of the fact that they cross a frontier, constitutes an obstacle to the movement
of goods which is aggravated by the resulting administrative formalities. It follows that any pecuniary
charge, whatever its designation and mode of application, which is imposed unilaterally on goods by
reason of the fact that they cross a frontier and is not a customs duty in the strict
© An extract from a JUSTIS database
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