OPINION OF ADVOCATE GENERAL
SHARPSTON
delivered on 21 June 2007(1)
Case C‑221/06
Stadtgemeinde Frohnleiten
Gemeindebetriebe Frohnleiten GmbH
v
Bundesminister für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft
(Tax on deposit of waste – Exemption – Exclusion from exemption where waste originates in another Member State – Article 90 EC)
1.A national measure taxes the deposit of waste in waste disposal sites but provides for exemption where the waste derives from the safeguarding or rehabilitation of contaminated sites entered in official registers which cannot, however, include sites in other Member States. In the present case the Court is asked to rule on the compatibility with Community law of such a measure.
Community legislation
2.The first paragraph of Article 90 EC(2) provides:
‘No Member State shall impose, directly or indirectly, on the products of other Member States any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products.’(3)
3.Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community(4) regulates inter alia shipments of waste for disposal between Member States.
4.Article 3(1) requires a person intending to ship waste for disposal from one Member State to another Member State to notify the competent authority of destination which, in accordance with Article 4(2)(a), must take a decision authorising the shipment, with or without conditions, or refusing it. It may also request additional information. Article 4(2)(c) requires the objections and conditions referred to in (a) to be based on Article 4(3), which lists possible grounds. Those grounds include that the planned shipment ‘is not in accordance with national laws and regulations relating to environmental protection, public order, public safety or health protection’. Article 5(1) provides that the shipment may be effected only after the notifier has received such authorisation.
National legislation
5.The purpose of the Austrian Altlastensanierungsgesetz(5) (Law on the rehabilitation of disused hazardous sites; ‘the ALSAG’) is stated to be to finance the safeguarding and rehabilitation of disused hazardous sites (Paragraph 1).
6.Paragraph 2 defines disused hazardous sites. It reads:
‘Definition of terms
(1)Disused hazardous sites are disused disposal premises and disused industrial sites as well as land and ground water systems contaminated by these which, according to the results of a risk assessment, pose significant risk to the health of humans or the environment. …
(2)Disused disposal premises are premises within which waste was disposed either with or without authorisation.
(3)Disused industrial sites are premises in which environmentally hazardous substances were handled.’
7.Part II of the ALSAG provides for a disused hazardous site levy (‘the levy’) to finance the safeguarding and rehabilitation of such sites.
8.Paragraph 3 of Part II provides:
‘1.The following shall be subject to the disused hazardous site levy:
(1)the long-term depositing of waste, including the transfer of waste to a waste disposal site, even if technical site construction or other purposes are involved;
(2)the filling in or levelling of uneven ground with waste including its incorporation in geological structures, with the exception of filling in or levelling which has a specific construction function in connection with a superior construction operation (for example, road dikes and roadbeds, railway tracks and foundations, filling in excavations or drainage ditches);
…
2.The following shall be exempt from liability to pay the levy:
(1)the depositing, storage and transport of waste which is proven to arise in the course of safeguarding or rehabilitating
(a)suspected contaminated sites entered in the Verdachtsflächenkataster [register of suspected contaminated sites] or
(b)disused hazardous sites entered in the Altlastenatlas [register of disused hazardous sites],
…’
9.Paragraph 4 lists those liable to pay the levy, starting (in paragraph 4(1)) with the operator of a waste disposal site.(6)
10.Paragraph 5 provides that the levy is calculated on the basis of the weight of the waste.
11.Paragraph 6 lays down the rates of the levy. Paragraph 6(4) provides for reduced rates where waste is deposited at a site which meets technical standards laid down by national legislation.
12.The Verdachtsflächenkataster and the Altlastenatlas referred to in Paragraph 3(2)(1) of the ALSAG are regulated in Paragraph 13 thereof. That provision essentially requires the Federal Minister for Environment, Youth and Family to coordinate the national assessment, appraisal and evaluation of suspected contaminated sites in collaboration with the Federal Minister for Economic Affairs and the Federal Minister for Agriculture and Forestry. The data and information gained from the assessment are to be sent to the Federal Environment Office, analysed by that Office and entered in a Verdachtsflächenkataster. The Federal Minister for Environment, Youth and Family is in addition to coordinate all measures for the assessment of the risk potential of the suspected contaminated sites covered. Suspected contaminated sites found to require safeguarding or rehabilitation on the basis of the risk assessment are to be identified as disused hazardous sites in an Altlastenatlas.
13.Only areas located in Austria can be entered in the Verdachtsflächenkataster and Altlastenatlas. For that reason only waste which originated from the safeguarding or rehabilitation of suspected contaminated sites or disused hazardous sites in Austria qualifies for the exemption from the levy.
14.At the hearing in the present case the Austrian Government provided further details about the ALSAG. On its entry into force on 1July 1989(7) there were an estimated 3000 disused hazardous sites in Austria, some of which needed to be safeguarded and rehabilitated. A system of recognition and decontamination of contaminated sites was therefore set up. In principle the polluter pays for decontamination. However, if it is not possible to determine the identity of the polluter or to collect payment from him, the State assumes responsibility. Financing is provided from the levy. The rate of the levy is set so as to ensure that, in the long-term, the sites concerned can be rehabilitated. Waste from such sites which is destined for recovery is not subject to the levy. The ALSAG ensures that the revenue from the levy is used exclusively for the decontamination of contaminated sites. In order not to burden the safeguarding or rehabilitation of contaminated sites with the levy, related disposal measures are exempt from the levy by virtue of Paragraph 3(2) of the ALSAG.
The main proceedings and the question referred
15.The Gemeindebetriebe Frohnleiten GmbH (Frohnleiten Municipal Undertaking GmbH), the sole proprietor of which is the Stadtgemeinde Frohnleiten (Municipality of Frohnleiten), operates the waste disposal site at Frohnleiten. In 2001 and 2002 a quantity of shredded waste originating in Italy was deposited at that site. The waste had arisen in the course of the rehabilitation of an area located in the municipality of Rovigo in Italy and identified as requiring rehabilitation in the Italian regional plan for the rehabilitation of disused hazardous sites.(8) That area is not identified as a disused hazardous site in the Altlastenatlas. The shipment of the waste to Austria had been approved by decision of the competent minister (‘the defendant authority’) under Articles 3 to 5 of Regulation No 259/93 and Paragraph 36 of the Austrian Abfallwirtschaftsgesetz (Law on Waste Management).(9)
16.On application by the Stadtgemeinde Frohnleiten and Gemeindebetriebe Frohnleiten GmbH (‘the claimants’), the Bezirkshauptmannschaft Graz-Umgebung (administrative authorities for the Graz area) determined that the waste was not subject to the levy since its exclusion from the exemption would constitute discrimination under Article 90 EC. The appeal of the local tax office against that decision was dismissed by the Landeshauptmann von Steiermark (Governor of Styria; ‘the LH’). The LH also took the view that there was no liability to pay the levy because the waste arose in the course of lawful measures for the safeguarding and rehabilitation of dangerously contaminated land in Italy and a distinction between such waste from Austria and that from Italy would be contrary to Article 90 EC.
17.On appeal, the defendant authority annulled the decision of the LH on the basis that the levy was not a tax on products but an operations-based tax so that Article 90 EC was inapplicable. The claimants appealed against that decision to the Verwaltungsgerichtshof (Administrative Court).
18.That court considers that, even if the levy is ‘taxation on products’ and hence falls within Article 90 EC, the fact that only waste which originates in Austria can qualify for the exemption from the levy does not infringe Article 90 EC or (as had been argued in the alternative by the claimants) Articles 10, 12, 23, 25 or 49 EC.
19.The Verwaltungsgerichtshof notes that the ALSAG serves the purpose of safeguarding and rehabilitating disused hazardous sites. These are environmental policy objectives. In some cases administrative measures (such as administrative orders to clear a disused hazardous site) and in some cases fiscal measures (such as the tax exemption in the present proceedings) are put in place in order to realise those objectives. Use of those measures presupposes that it is known which areas require safeguarding or rehabilitation. In order to identify disused hazardous sites, the ALSAG provides for inspections to assess sites and for their registration in the Verdachtsflächenkataster and the Altlastenatlas, which, in turn, are the basis for further measures. It is therefore unavoidable that only domestic sites can be entered in those registers. It does not follow, however, that Austria is required either to refrain from preferential tax law treatment for the depositing of waste originating from such sites or to waive the link with registration in the Altlastenatlas or the Verdachtsflächenkataster for the grant of the tax exemption.
20.The Verwaltungsgerichtshof considers that the case-law of the Court of Justice invoked by the claimants does not support their case. However, since that case-law does not unequivocally resolve the issue before it, the Verwaltungsgerichtshof has referred the following question to the Court of Justice for a preliminary ruling:
‘Do Articles 10 EC, 12 EC, 23 EC, 25 EC, 49 EC or 90 EC preclude a national tax provision which makes the deposit of waste at a waste disposal site subject to a tax (Altlastenbeitrag; disused hazardous site levy), but provides for exemption from that tax for the deposit of waste which demonstrably derives from the safeguarding or rehabilitation of contaminated sites (suspected contaminated sites or disused hazardous sites) if the sites (suspected contaminated sites or disused hazardous sites) are entered in official registers provided for by law (Verdachtsflächenkataster; register of suspected contaminated sites, or Altlastenatlas; register of disused hazardous sites), and only sites in Austria may be entered in those registers, with the result that the tax exemption is also possible only in respect of the deposit of waste which originates from suspected contaminated sites or disused hazardous sites located in Austria?’
21.Written observations have been submitted by the claimants, the Austrian Government and the Commission, who were also present at the hearing.
Articles 23 and 25 EC
22.These articles prohibit customs duties on imports and exports between Member States and charges having equivalent effect. The national court asks whether the exemption from the levy is a charge having equivalent effect to an import duty and hence contrary to that prohibition.
23.All parties submitting observations concur that the levy is not a charge having equivalent effect.
24.I agree. It is settled case-law that any pecuniary charge, whatever its designation or mode of application, which is imposed unilaterally on goods by reason of the fact that they cross a frontier, and which is not a customs duty in the strict sense, constitutes a charge having an effect equivalent to a customs duty within the meaning of Article 25 EC.(10) In the present case, however, the levy is not imposed by reason of the fact that the waste crosses a frontier.
Article 90 EC
25.The claimants and the Commission consider that the conditions for exemption from the levy fall within the scope of Article 90 EC and are incompatible with that provision. The Austrian Government submits, first, that Article 90 is not applicable and, in the alternative, that it is not infringed.
26.Article 90 prohibits Member States from imposing, directly or indirectly, on the products of other Member States any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products. Its purpose is to remove disguised restrictions on the free movement of goods which may result from the tax provisions of a Member State.(11) Thus Article 90 must guarantee the complete neutrality of internal taxation as regards competition between domestic products and imported products.(12)
Is the levy imposed on ‘products’?
27.Article 90 EC applies only to taxation imposed on products. The claimants and the Commission submit that the levy is imposed on products; the Austrian Government disagrees.
28.There appears to be consensus that, as the Commission submits, waste, whether recyclable or not, is to be regarded as ‘goods’ the movement of which, in accordance with Article 28 EC, must in principle not be hindered.(13) Hence, the waste itself is a ‘product’ within the meaning of Article 90 EC.
29.What divides the parties is, first, the question whether the levy is correctly regarded as imposed on the waste as a product, as the claimants and the Commission submit, or on the provision of the waste depositing facilities, as the Austrian Government submits.
30.The Austrian Government argues that the levy is a tax on the provision of a service, namely the long-term depositing of waste and the filling or levelling of ground with waste. Although it accepts that a tax does not have to be imposed directly on products in order to fall within the scope of Article 90, it considers that that is the case only where the tax has an immediate effect on the cost of the product. The levy does not have such an effect. On the contrary, the deliverer of waste pays the site operator a charge so that the operator can check the waste, accept what is compatible with the site permit and definitively dispose of it. The levy is not imposed on a marketable product which becomes more expensive as a result of discriminatory taxation and which could be disadvantaged when sold nationally. Rather, it is an instrument of policy, taxing any measure which definitively ends the life cycle of the product.
31.According to the ALSAG, ‘the long-term depositing of waste’ and ‘the filling in or levelling of uneven ground with waste’ are in principle subject to the levy.(14) The operator of a waste disposal site is primarily liable for the levy.(15) It is calculated on the basis of the weight of the waste.(16) The agent for the Austrian Government stated at the hearing that the rate of the levy may influence the amount that the operator of a waste disposal site charges for the deposit of waste. Since the rate is reduced where the waste disposal site in question meets prescribed technical standards,(17) the owner of a site which meets such standards will be able to charge less for accepting deposits of waste. A fortiori, the fact of the levy, and the availability of the exemption, will affect the price charged by the site operator.
32.As the claimants submit, the concept of tax on a product must be interpreted in a wide sense in view of its objective, namely to remove disguised restrictions on the free movement of goods which may result from the tax provisions of a Member State.(18) Article 90 applies to taxation imposed ‘directly or indirectly’ on products. Those terms also must be widely interpreted.(19) The Court has thus interpreted the provision as going beyond classic levies directly imposed on goods and as encompassing fees for veterinary and public health inspections of meat,(20) registration fees for pharmaceutical products(21) and fees for roadworthiness tests on cars.(22)
33.The Court has moreover extended the concept of taxation on products to include taxes on the use or transport of products or on the use of facilities. In Bergandi,(23) for example, the Court stated that Article 90 applied to internal taxation imposed on the use of imported products essentially intended for such use and imported solely for that purpose. In Schöttle(24) the Court ruled that a charge imposed on international transport of goods by road according to the distance covered on the national territory and the weight of the goods in question constituted taxation imposed indirectly on products within the meaning of Article 90. In Haahr Petroleum(25) the Court found that a duty levied on the transport of the goods or the use of commercial ports and initially paid by the vessel or its local agent was a charge imposed on products and borne by the recipient or sender of goods.
34.Thus the mere fact that a tax is imposed on a service associated with goods does not suffice to take it outside the scope of Article 90, nor does the fact that the tax is payable in the first instance by someone other than the person handling the goods. What is relevant is whether the tax has an immediate effect on the cost of national and imported products.(26)
35.In the present case, as explained above, it appears that the levy affects the price that the site operator charges a given client to the disadvantage of imported products. I do not accept that that effect (which does not appear to be contested) concerns a non-marketable product. The Court has treated non-recyclable and non-reusable waste as ‘goods’ within the meaning of Articles 23 (and hence 25) and 28 EC: see Commission v Germany(27) and Commission v Belgium(28) respectively.(29) The same principle must apply by analogy to Article 90, which supplements those articles.(30) As the claimants point out, the only trade in waste which cannot be recycled or reused is disposal. National measures concerning the end of the waste’s life cycle must accordingly comply with the Treaty provisions concerning the free movement of goods. Moreover the Court in Commission v Belgium equated the disposal of waste to a commercial transaction.(31)
36.The principle that a tax on activities involving products falls within Article 90 only where it has an immediate effect on their cost comes from Schöttle and Haahr Petroleum. Both those cases concerned commercial products. It was accordingly an appropriate criterion for determining whether a tax on the activities at issue in those cases (respectively, transport of goods by road and the use of port facilities for the loading or unloading of goods) fell within the scope of the provision. The fact that that principle does not naturally encompass transactions involving waste for disposal, and thus by definition products at the end of their commercial life with no further economic value – and indeed usually (and in the present case) a negative value, in that payment must be made for their disposal – does not, however, in my view suffice to remove from the ambit of Article 90 a tax on that disposal.
37.It must be recalled that the purpose of that provision, which was the explicit basis for the Court’s requirement in Schöttle of an immediate effect on the cost of the product, is to remove disguised restrictions on the free movement of goods that may result from taxation. If a disguised restriction on the free movement of goods results from taxation even in the absence of an immediate effect on the cost of a product which is not subject to conventional patterns of trade, it seems to me that such taxation should none the less fall in principle within the scope of Article 90. It must also be borne in mind that at this point in the analysis the issue is solely whether, in the context of the levy, the waste is a ‘product’ within the meaning of that provision. Even if that is the case, there will be no infringement of Article 90 unless it is shown that the effect of the levy is discriminatory.
38.Moreover, it seems to me that the levy does have an immediate effect on the financial consequences of transactions in waste for disposal, even if that effect is not an increase in its price on sale. The holder of waste has to pay the site operator a charge for accepting the waste for disposal. That charge is set by reference, at least in part, to the burden on the site operator of the levy. If the exemption is extended, clearly the amount of the levy payable by the site operator will be reduced and his charge for accepting waste for disposal may be expected to be reduced proportionately. Thus the fact that waste from other Member States does not qualify for the exemption has the indirect result that holders of such waste must pay more to dispose of it.
39.Finally, as the Commission points out, there is another basis for considering that the levy is imposed on ‘products’. The present case concerns industrial waste resulting from the manufacture of certain finished products which may be sold on the market. The cost of those products and hence their price includes the cost of disposing of manufacturing waste. It is, at least in principle, therefore not inconceivable that the exemption benefits at least in certain cases products giving rise to waste in Austria in comparison to those originating in another Member State which generally give rise to waste in that Member State.
40.For the above reasons I am of the view that the levy is taxation imposed indirectly on products within the meaning of Article 90 EC.
Is the levy discriminatory?
41.Article 90 EC prohibits a Member State from imposing taxation on the products of other Member States in excess of that imposed on similar domestic products.
42.It is common ground that the levy applies, in principle, to waste originating in Austria and to waste originating in other Member States, and that both categories of waste are ‘similar’ products for the purpose of that provision.
43.The Austrian Government submits in the alternative that the levy is not contrary to Article 90 EC because it is not discriminatory. The levy is imposed to finance the safeguarding and rehabilitation of contaminated sites, whether waste from Austria or other Member States is deposited, transported or used for filling in. The objective of the ALSAG is to improve the environment in Austria by better identifying contaminated sites and safeguarding or rehabilitating them. It is consistent with that objective that there is an exemption for the treatment of waste produced in the course of safeguarding or rehabilitating contaminated or potentially contaminated sites. For that purpose, the sites needing safeguarding or rehabilitation must first be identified. That requires that information must be collected and evaluated or investigations carried out in order to register the sites concerned in the Altlastenatlas. For that reason, only Austrian sites may be entered in the register. There is an objective difference between the situation where waste is brought from another Member State and that where the decontamination and disposal are carried out in the same Member State. It is therefore not a case of inequality of treatment between essentially similar situations. There is accordingly no discrimination.
44.It is indeed the case that Community law does not restrict the freedom of each Member State to establish a tax system which differentiates between certain products, even products which are similar within the meaning of Article 90, on the basis of objective criteria, such as the nature of the raw materials used or the production processes employed. Such differentiation is compatible with Community law, however, only if it pursues objectives which are themselves compatible with the requirements of the Treaty and its secondary legislation, and if the detailed rules are such as to avoid any form of discrimination, direct or indirect, against imports from other Member States.(32)
45.In the present case, the differential tax treatment of the products concerned (that is, the availability of the exemption from the levy) is certainly based on an objective criterion, namely whether the waste arises in the course of the safeguarding or rehabilitation of suspected contaminated sites entered in the Verdachtsflächenkataster or disused hazardous sites entered in the Altlastenatlas. The objective of that differential treatment – to encourage the safeguarding and/or rehabilitation of such sites with a view to enhanced protection of the environment and public health – is prima facie compatible with the environmental and health objectives mentioned in the EC Treaty.(33) That may, however, be an over-simplification. The objectives spelt out in the Treaty are manifestly set at Community level. The objectives of the ALSAG are, equally manifestly, set at national level. The effect of the structure of the levy and the exemption is to discourage the safeguarding and/or rehabilitation of sites in other Member States as compared with sites in Austria. For that reason alone I am not convinced that the differential tax treatment inherent in the ALSAG is compatible with Article 90 EC. Be that as it may, the third condition for compatibility is in any event not satisfied: the detailed rules are manifestly not such as to avoid any form of discrimination, direct or indirect, against imports from other Member States.
46.The explicit condition for the exemption is that the waste being deposited originates from a site which, by definition, can only be in Austria. It is settled case-law that a criterion for charging higher taxation which by definition can never be fulfilled by similar domestic products cannot be considered to be compatible with Article 90 EC.(34)
47.Austria argues that there is an objective difference between the situation where waste is brought from another Member State, where there is no link between the rehabilitation and the waste disposal, and that where the decontamination and disposal are carried out in the same Member State. That of course is clearly true. It does not however cure the problem. On the contrary, it reinforces my view that the environmental and public health objectives of the ALSAG are limited to the national arena. It suggests, if anything, that the levy should not be imposed when waste is imported from another Member State.
48.I would add that the fact that a tax or levy is a special charge or is appropriated for a specific purpose cannot prevent its falling within the field of application of Article 90.(35)
49.Austria raises the problem of verifying whether the origin of waste from other Member States is comparable to the origin defined in Paragraph 3(2) of the ALSAG.
50.Such practical difficulties cannot, however, justify the application of internal taxation which discriminates against products from other Member States in breach of Article 90 EC.(36) That is not to say that the importing Member State cannot require verification on the basis of general principles concerning the sharing of the burden of proof, in accordance with which undertakings wishing to benefit from an exemption must prove that the conditions therefor are satisfied. The importing Member State may thus require that evidence be adduced in a form that removes the risk of tax evasion, for example by the production of appropriate certificates from the authorities of the exporting Member State.(37) It must, however, grant the undertakings concerned the opportunity to furnish such proof.(38)
51.The ALSAG already makes the exemption conditional on proof that the waste arose in the course of safeguarding or rehabilitating a contaminated site. In the present case, the Austrian Government must therefore grant the claimants the opportunity to provide such proof, under the same conditions mutatis mutandis and to the same standard as it imposes on holders of waste derived from Austrian sites. If it has done so, and if the claimants have been unable to prove to the same standard as would be required of holders of waste originating in Austria, the Austrian Government is not required to make the exemption available.
52.Finally, I mention the argument advanced by the defendant authority before the referring court that it was not for the national legislature to enable sites outside its territory to benefit from the fiscal advantage. I agree with the Commission that that objection is based on a misunderstanding of the function of Article 90 EC in the general scheme of the Treaty and a confusion between that article and those governing State aid (Article 87 et seq.). The State aid rules concern the promotion of economic activities on national territory and have a broad remit. In that context Austria states in its written observations that it has in fact notified two schemes of aid for the safeguarding and rehabilitation of disused hazardous sites where it is not possible to determine the identity of the original polluter, both of which have been approved by the Commission.(39) Article 90 in contrast has a more limited scope. It does not prohibit aid in itself, but precludes certain arrangements involving ‘taxation’ imposed on ‘products’. If differential treatment falls within the scope of Article 90, it cannot – in contrast to State aid – be justified by reference to the national interest in decontaminating sites.(40)
53.I am accordingly of the view that the levy is contrary to Article 90 EC.
Article 49 EC
54.Article 49 EC requires Member States to prohibit restrictions on freedom to provide services within the Community in respect of nationals of Member States who are established in a State of the Community other than that of the person for whom the services are intended.
55.The claimants argue in the alternative that the discrimination inherent in Paragraph 3(2)(1) of the ALSAG prevents sites in Austria from providing their services of waste disposal under the same conditions to producers of national and foreign waste. The legislation is hence such as to dissuade operators of sites in Austria from offering their services to importers of waste from other Member States and is thus a restriction on the freedom to provide services within the meaning of Article 49 EC.
56.The Court has stated that the freedom to provide services may be relied on not only by a Community national established in a Member State other than that of the recipient of the services but also by an undertaking against the State in which it is established where the services are provided to recipients established in another Member State and more generally whenever a provider of services offers services in a Member State other than the one in which he is established.(41) Once the provision of services falls within Article 49 EC as so interpreted, that article precludes the application of any legislation which, without objective justification, either impedes a provider of services from actually exercising his freedom to do so or has the effect of making the provision of services between Member States more difficult than the provision of services purely within one Member State. Consequently, the provision of services between Member States cannot be subject to stricter conditions than those to which analogous provisions of services at domestic level are subject.(42)
57.It is clear that the interplay of the levy and the exemption has the effect, as discussed above,(43) that holders of waste arising from the safeguarding or rehabilitation of contaminated or potentially contaminated sites in Member States other than Austria must pay more to dispose of such waste in Austria than holders of equivalent waste of domestic origin. The provision of such waste disposal services between Member States is accordingly subject to stricter conditions than those to which analogous provisions of services at domestic level are subject.
58.On that basis, I agree that, if the Court were to rule that the levy is a tax on the provision of a service rather than on products, the fact that the exemption from the levy is not available for waste from contaminated sites in Member States other than Austria produces an effect that is contrary to Article 49 EC.
59.The Austrian Government argues that Paragraph 3(2)(1) of the ALSAG is justified by the objective of combating the harmful effects of contaminated sites on the environment and on human health. Those objectives are realised by the mandatory use of the proceeds of the levy to finance the decontamination of those sites.
60.The ALSAG does not explicitly discriminate on the basis of either the nationality of the provider or the recipient of the waste disposal service, on the one hand, or the origin of the service, on the other hand. Non-discriminatory national measures which restrict the freedom to provide services may be justified by imperative requirements in the general interest. Such measures must, however, be suitable for securing the attainment of the objective which they pursue and must not go beyond what is necessary in order to attain it.(44)
61.Leaving aside the question whether wholly domestic environmental objectives could properly be regarded as imperative requirements in the general interest for this purpose,(45) a general exclusion from the benefit of the exemption of waste arising from the safeguarding or rehabilitation of contaminated or potentially contaminated sites in Member States other than Austria manifestly goes beyond what is necessary to attain that objective.
62.I accordingly consider in the alternative that the levy is an unjustified restriction on the freedom to provide services.
Articles 10 and 12 EC
63.The claimants assert that Paragraph 3(2)(1) of the ALSAG infringes Articles 10 and 12 EC, but give no reasons.
64.I agree with the Commission that, with regard to Article 12, it is not clear that discrimination by reason of nationality covers discrimination between products with different origins falling under Article 90. Even if that were so, Article 90 (or indeed Article 49) would be a ‘special provision’ within the meaning of Article 12 which would mean that Article 90 (or Article 49) would be applicable instead. Article 10 EC is similarly not relevant in the present case given the application of Article 90 (or Article 49).
Conclusion
65.For the reasons given above, I am of the view that the question referred by the Verwaltungsgerichtshof should be answered as follows:
Article 90 EC precludes a national tax provision which makes the deposit of waste at a waste disposal site subject to a tax but provides for exemption from that tax for the deposit of waste which demonstrably derives from the safeguarding or rehabilitation of contaminated sites which are entered in official registers provided for by law, where only sites in the Member State concerned may be entered in those registers, with the result that the tax exemption is available only in respect of the deposit of waste which originates from contaminated sites located in that Member State.
1 – Original language: English.
2– The question referred in the present case, and the written (but not the oral) observations submitted to the Court, refer in addition to Articles 10, 12, 23, 25 and 49 EC. I will set out the substance of those articles below, in the context of assessing their application.
3–The second paragraph of Article 90 prohibits Member States from imposing on the products of other Member States any internal taxation of such a nature as to afford indirect protection to other products. Although the question referred in the present case mentions Article 90 generally, it is clear that it is the first paragraph which is in issue, and the observations submitted to the Court reflect that approach. I have accordingly limited my analysis to the first paragraph, and references in this Opinion to ‘Article 90’ may be taken to be so limited.
4– OJ 1993 L 30, p. 1.
5– BGBl. 299/1989. I set out below extracts from the version of the ALSAG in force at the time of the reference. A different version became applicable on 1 January 2006.
6– Also liable are: in the case of export of the waste, the proprietor of the export licence (Paragraph 4(2)); the person who fills or levels uneven ground with the waste or incorporates it in geological structures (Paragraph 4(3)); or in all other cases the person who arranges or condones the activity on which the levy is payable (Paragraph 4(4)).
7– The ALSAG applies only to contaminated sites existing at that date.
8– The referring court mentions Article 22 of Decree-Law 22/97 and a Decree of the Environment Minister of 16 May 1989. The Commission gives further details. It is in any event common ground that the Rovigo site is identified as described, although it is not clear whether it was a disused hazardous site on 1 July 1989.
9– Law of 6 June 1990, BGBl. 350/1990, as amended.
10– See for example Case C-517/04 Koornstra [2006] ECR I-5015, paragraph 15 and the cases there cited.
11– Case 20/76 Schöttle [1977] ECR 247, paragraph 12.
12– Case C-383/01 De Danske Bilimportører [2003] ECR I-6065, paragraph 37.
13– Case C-2/90 Commission v Belgium [1992] ECR I-4431.
14– Paragraph 3.
15– Paragraph 4(1).
16– Paragraph 5.
17– Paragraph 14.
18– Schöttle, cited in footnote 11, paragraph 12.
19– Case 28/67 Molkerei Zentrale Westfalen [1968] ECR 143, p. 155.
20– Case 35/76 Simmenthal [1976] ECR 1871.
21– Case 32/80 Kortmann [1981] ECR 251.
22– Case 50/85 Schloh [1986] ECR 1855.
23– Case 252/86 [1988] ECR 1343, paragraph 27.
24– Cited in footnote 18.
25– Case C-90/94 [1997] ECR I-4085, paragraph 38.
26– Haahr Petroleum, paragraph 40, citing Schöttle.
27– Case C-389/00 [2003] ECR I-2001.
28– Cited in footnote 13.
29– See also Case C-324/99 DaimlerChrysler [2001] ECR I-9897, where the Court accepted implicitly that waste for disposal was in principle subject to Articles 28 to 30 EC.
30– See, with regard to Article 25 EC, Bergandi, cited in footnote 23, paragraph 24.
31– See paragraph 26.
32– Case C-213/96 Outokumpu [1998] ECR I-1777, paragraph 30.
33– See Articles 2 and 3(p).
34– Case C-387/01 Weigel [2004] ECR I-4981, paragraph 86.
35– Case 74/76 Ianelli [1977] ECR 557, paragraph 19.
36– Case C-375/95 Commission v Greece [1997] ECR I-5981, paragraph 47, and the cases there cited.
37– Case 21/79 Commission v Italy [1980] ECR 1, paragraph 21.
38– Outukumpu, cited in footnote 32, paragraph 38 and 39.
39– The Austrian Government refers to its two sets of Guidelines for aid for the safeguarding or rehabilitation of disused hazardous sites, approved by the Commission on 21 January 1997 and 31 May 2002.
40– Commission v Italy, cited in footnote 37, paragraph 26.
41– Case C-381/93 Commission v France [1994] ECR I-5145, paragraph 14.
42– Ibid., paragraph 16 to 18.
43– See point 38.
44– See for example Case C-398/95 Ypourgas Ergasias [1997] ECR I-3091, paragraph 21 and the cases there cited.
45– See point 45 above.