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

62000J0389 European Court reports 2003 Page 00000 7
by Community law with a view to promoting the free movement of goods.
39 It should be recalled in this connection that, since the pecuniary charge in question is intended solely
as financially and economically justified compensation for an obligation imposed in equal measure on all
the Member States by Community law, it cannot be regarded as equivalent to a customs duty; nor,
consequently, can it fall within the ambit of the prohibition laid down in Articles 23 EC and 25 EC (Case
46/76 Bauhuis [1977] ECR 5, paragraphs 34 to 36; and Commission v Germany, cited above, paragraph
14). This finding is not, in principle, precluded by the mere fact that other Member States themselves
agree to finance the return of waste, including shipment and disposal or recovery, through their own
budgets (see, to that effect, Case 89/76 Commission v Netherlands [1977] ECR 1355, paragraph 18; Case
1/83 IGF [1984] ECR 349, paragraphs 21 and 22; and Commission v Germany, cited above, paragraph
15).
40 It is, however, settled case-law of the Court that the pecuniary charge imposed on economic operators
must be economically justified in that there must be a direct link between the amount and the actual cost
of the operation it is intended to finance, in this case the possible return of the waste shipped, including
shipment and disposal or recovery thereof (see, to that effect, Case C-111/89 Bakker Hillegom [1990] ECR
I-1735, paragraphs 11 and 12).
41 The German Government argues in that respect that the contributions to the solidarity fund provided
for in Germany do not exceed the costs incurred by the State and that each fee, considered by itself, is
proportional to the actual benefit conferred on each specific operator. The German Government adds that
Article 33(2) of Regulation No 259/93 allows the Member States some discretion in determining the
methods of financing the costs they incur as guarantors of the return of waste, inter alia through collection
of fees.
42 The Court notes, however, that Article 33(2) of Regulation No 259/93 already provides that the costs
arising from the return of waste, including shipment, disposal or recovery of the waste in an alternative
and environmentally sound manner are to be charged to the notifier. The costs are borne by the Member
States concerned only if that is not possible.
43 It should also be recalled that, under Articles 25(1) and 26(2)(a) of Regulation No 259/93, notifiers
who have notified shipments of waste which cannot be completed or which turn out to be illegal are
required to proceed with the return of that waste themselves.
44 In addition, under Article 27(1) of Regulation No 259/93, all shipments of waste covered within the
scope of that regulation are to be subject to the provision of a financial guarantee or equivalent insurance
covering costs for the possible return of waste, including shipment and disposal or recovery.
45 It has therefore not been established that the contribution collected when each shipment of waste is
carried out, when it is notified pursuant to the provisions of Regulation No 259/93, is in any way related
to the actual costs that operation is likely to generate for the State in the event that it becomes necessary
to return the waste shipped and to dispose of or recover it. Given the provisions of that regulation,
discussed in paragraphs 42 to 44 of this judgment, it appears, moreover, that the scenarios in which the
State will most frequently have to bear the costs associated with returning waste, including shipment,
disposal or recovery, will be precisely where, in the absence of notification, the guarantee or equivalent
insurance has not been provided and nor, therefore, has the contribution been paid.
46 The lack of correlation between the amount of the contribution and the actual cost of the operation it is
intended to finance is clear, notwithstanding the fact that, pursuant to the seventh sentence of Paragraph
8(1) of the AbfVerbrG, contributions from the solidarity fund not used at the end of a three-year period
are repaid to the operators proportionally to the amounts they have paid in. Even on the supposition that
this periodic repayment system is intended to adjust the individual
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