1. SYNOPSIS:
Under a regional (Wallonian) law in Belgium, the disposal in any way of waste generated in other regions and in other Member-States, was prohibited. The Commission took the view that these provisions were contrary to the Community rules, and therefore initiated against Belgium, according to the procedure provided for by the Article 169 EEC. The Commission contended that the Belgian provisions were contrary, firstly to the Directives 75/442 and 84/631, and secondly to the Article 30 EEC. The Court concluded that the Belgian provisions, practically introducing an absolute ban on the importation of dangerous waste into Wallonia, were incompatible with the Directive 84/631 (concerning transfrontier shipment of hazardous waste). As for the Directive 75/442 and the Article 30 EEC, the Court concluded that no violatoin had been established.
2. THE "ACTS" MENTIONED:
2.1 Directive 75/442. - "On waste".
It requires in a general way the Member-States to take appropriate measures to encourage the prevention, recycling and processing of waste, but contains no specific reference to trade in waste between Member-States. Therefor the Belgian decree had not violated the directive in question
2.2 Directive 84/631 - "On...transfrontier shipment of hazardous waste" According to the third article first sentence, an intern trade in waste in the EEC is implicated: "Where the holder of the waste intends to ship it or to have it shipped from one Member-State to another...". The EEC-nations was in the directive given the opportunity of prohibiting a particlar transfer of dangerous waste. But the Court stated that the system did not imply that Belgium had the authority to prohibit such transfers in general, and therefor the Belgian decree was incompatible with the Directive 84/631.
2.3 Article 30 - the principle of free movement. Relating to waste which is outside the ambit of the Directive 84/631, the Court examined whether waste was to be regarded as "goods" related to Article 30 et seq EEC. They concluded that waste, whether recyclable or not, should be regarded as a product within the scope of Article 30, and therefore the movement of which must not in principle be impeded. However the Court stated that whether the Belgian decree was violating the principle of free movement or not, environmental concerns, regarding the type of waste, had to be taken into account. The principle that environmental damage should as a priority be rectified at source, according to Article 130 R (2) EEC, implied that the waste should be disposed of as close as possible to the place where it is produced in order to keep the transport of waste to the minimum practicable. This was also in accordance with the Basle Convention of 22 March 1989. As for waste which is not covered by Directive 84/631, the Court therefore concluded that the Belgian provisions were compatible whith the Article 30 et seq.
3. SOME REMARKS:
3.1 The judgement is problematic concerning "the source- principle" The principle is taken into account when the Court is discussing Art 30 et seq, but it is not an issue as for the Dir 84/631. What are the reasons for this? One reason could be the using of the lex specialis-principle.
In our opinion, the practicle result in this case, seems to be a paradox. Belgium has the opportunity to prohibite disposal of waste, but only so far as it is not hazardous waste. Perhaps is this also the reason for the decree 259/93, which gives the Member States further posibilities in order to decrease the disposal of hazardous waste.
3.2 After these critical remarks, we find it important to stress that the Court accepted environmental concerns , reducing the omnipotence of the free movement principle.
We would very much like to have other opinions on this case!
With regards from Kjell S.Berg, Kari-Ann Kristiansen, Kari-Anne Bjor