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

62000J0389 European Court reports 2003 Page 00000 5
sense constitutes a charge having an equivalent effect to a customs duty within the meaning of Articles 23
EC and 25 EC, even if it is not imposed on behalf of the State (see, inter alia, Case 158/82 Commission
v Denmark [1983] ECR 3573, paragraph 18; and Case 18/87 Commission v Germany [1988] ECR 5427,
paragraph 5).
23 However, the Court has also held that such a charge escapes that classification if it relates to a general
system of internal dues applied systematically and in accordance with the same criteria to domestic
products and imported products alike, if it constitutes payment for a service in fact rendered to the
economic operator of a sum in proportion to the service, or again, subject to certain conditions, if it
attaches to inspections carried out to fulfil obligations imposed by Community law (see Commission v
Germany, cited above, paragraph 6, and case-law cited).
24 It is common ground that, in the present case, the mandatory contribution to the solidarity fund
constitutes a pecuniary charge, the amount of which is determined according to the nature and quantity of
waste to be shipped, in accordance with the sixth sentence of Paragraph 8(1) of the AbfVerbrG. Under
that provision, read together with section 17 of the solidarity fund regulation, any person required to notify
of a shipment of waste within the meaning of Regulation No 259/93 must contribute to the fund and that
obligation arises at the same time as the duty to notify of a shipment of waste outside the territory of the
Federal Republic of Germany.
25 The German Government acknowledges that the disputed contribution appears to be a `charge having
equivalent effect' within the meaning of the Court's case-law. It denies, however, that the contribution is a
charge prohibited by Articles 23 EC and 25 EC.
26 According to the German Government, the contribution to the solidarity fund is, first, adequate payment
for the services actually provided to specific economic operators. Second, it is a lawful charge because it
is compensation for a measure required of Member States by Community law with a view to promoting
the free movement of goods. In this light and in two ways, the disputed charge thus comes within the
exceptions allowed in the case-law of the Court which allow for certain pecuniary charges not to be
charges having equivalent effect to a customs duty.
The contribution to the solidarity fund as payment for a service provided to economic operators
27 The German Government essentially submits that the State provides a financial service to the economic
operators by agreeing, in accordance with the relevant provisions of the Basle Convention and Regulation
No 259/93, to guarantee the financing of the return of waste into its territory in the event of illegal or
incomplete exports, when the party responsible is not in a position to bear the costs thereof or cannot be
identified. This service confers a real benefit on operators which export waste from the territory of the
Federal Republic of Germany, since the subsidiary guarantee taken on by the State allows them to
penetrate the markets of the other Member States of the Community and also the other States-Parties to
the Basle Convention.
28 According to the German Government, although the money from the solidarity fund is used for the
return of illegally exported waste, only those operators who export waste legally and contribute to the fund
derive a benefit from the State's guarantee for the return. This service provided by the State confers a
specific benefit on each exporter of waste, which can avail itself of the export possibilities created by the
guarantee for each legal operation notified in accordance with Regulation No 259/93. In addition, the
amount of the contribution collected for each given export, determined according to the nature and
quantity of waste to be shipped, is itself proportional, within the meaning of that term as held by the
Court in its case-law, to the actual service provided to the operator. Each notifier's contribution is thus
collected by way of payment for its making use of the export opportunity created by the guarantee for the
return of the waste.
29 The German Government stresses that the contribution provided for in Paragraph 8 of the AbfVerbrG
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