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

62000J0389 European Court reports 2003 Page 00000 6
is aimed precisely at covering the costs incurred in providing the financing guarantee which makes each
shipment of waste out of Germany possible. Consequently, it is proper that the actual cost of this service
be passed on in an equitable and proportional manner to the economic operators which benefit from it.
30 The Court notes that the argument of the German Government is based on the hypothesis that the
opportunities economic operators established in Germany have to export waste may be largely attributed to
the State's agreeing to provide a subsidiary guarantee for the financing of waste return operations, when
they become necessary.
31 The Court finds, however, that the opportunities those economic operators have are no different from
those enjoyed by their competitors established in other Member States.
32 Waste shipments out of Germany must comply with the same rules and are subject to the same
conditions as those applicable to shipments out of other Member States, since those rules and conditions
are provided for inter alia in Regulation No 259/93. Even for exports to other States which are party to
the Basle Convention (although the contributions for those exports are not directly concerned by these
proceedings), the opportunities for operators established in Germany are identical to those enjoyed by other
Community exporters, since the Community and all the Member States are party to that convention and
the obligations flowing therefrom are implemented in the Community legal order through Regulation No
259/93.
33 It is, moreover, not disputed that, in agreeing to bear the costs associated with the return of waste,
including shipment and disposal or recovery when those costs cannot be charged to a given operator, the
Federal Republic of Germany is merely complying with an obligation imposed uniformly on all Member
States by Article 33(2) of Regulation No 259/93.
34 As pointed out by the Advocate General in paragraph 37 of his Opinion, compliance with that
obligation helps to ensure that no transboundary movement of waste is undertaken without adequate
guarantees in place for protection of the environment and health. The same objective is pursued by many
other obligations imposed on the States of export by various provisions of international law and
Community law governing the circulation of waste. It is, moreover, evident that the proper functioning of
the specific system for the circulation of waste thereby established presupposes that each State complies
with the obligations imposed on it.
35 In those circumstances, compliance by the Federal Republic of Germany with an obligation which
Community law imposes on all the Member States in pursuit of a general interest, namely protection of
health and the environment, does not confer on exporters of waste established in its territory any specific
or definite benefit (see, to this effect, Commission v Germany, cited above, paragraph 7).
36 That finding is supported by the fact that the obligation to contribute to the solidarity fund arises at the
same time as the obligation to notify a shipment of waste for outside Germany and that, in reality, the
pecuniary charge borne by exporters is determined solely according to the type and quantity of the waste
to be shipped. There is thus nothing given in return for any service actually provided to them, either as a
category of operators or in an individual capacity.
37 It follows that the disputed contribution cannot be considered as payment for a service actually
provided specifically to the economic operators in question.
The contribution paid by way of compensation for a measure imposed by Community law with a view to
promoting the free movement of goods
38 In the light of the foregoing, it is appropriate to examine whether the contribution to the solidarity fund
can be viewed as a lawful charge in the form of compensation for a measure imposed
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