Posts Tagged Article 267 TFEU
There’s only that much delay the ECJ will tolerate – Rotterdam court has to start from scratch in EBS, no clarification on waste shipments
The Court’s order in EBS, Case C-240/12 (available in French and Dutch only), has only now come to my attention (thanks to Raluca Rada) – and for the wrong reasons. This is a preliminary review by the Court at Rotterdam, concerning the application of the waste shipments Regulation.
The case at hand refers to a transport of unsorted used clothes from France to the United Arab Emirates via the Port of Rotterdam, seized by the Dutch authorities due to alleged failure to comply with the notification requirements under the waste shipment Regulation for waste transit. The defendant in the criminal proceedings essentially argued that the Dutch authorities interpret the concept of ‘transit’ in too wide a manner. Since these are criminal proceedings, there is additional tension on the notion of transit in old v new waste shipments Regulation – under criminal law, the provision with the most advantageous consequences for the defendant needs to be applied, even if it was not applicable at the time of the alleged infringement (retroactive application of the milder criminal law; thank you to Gaelle Marlier for confirming that).
The ECJ forewarned the national court that not enough information on the facts had been given for it to review. Time was given for the national court to provide additional data – the oral hearing was postponed to accommodate the national court’s delay in answering. Subsequently, the national court wanted to hear the parties on the additional facts to be given to the court: such hearing could not be scheduled for some time in view of the workload of the national court. The ECJ was then requested to try and answer the question anyway, on the basis of the facts that had been given in the request, supplemented with the few extra nuggets that had been provided informally. Not surprisingly therefore, the Court in the end declined full stop.
I am not sure what this means for the procedure: presumably, the question may be asked again, this time with the right amount of data? To my knowledge these kinds of orders do not occur all that frequently, pity it should do in this case, for I was rather looking forward to hearing the outcome.
Where waste is shipped by vessel from an EU Member State (in this case France) to a State in which the OECD-Decision does not apply (in this case the United Arab Emirates), is there ‘transit’ within the meaning of the former 2 and the new Waste Shipment Regulation (WSR) if under way the vessel puts in at a port of another EU Member State (in this case the Port of Rotterdam)?
Does it make any difference to the answer to question 1 if:
there is storage and/or transhipment of that waste at that port and/or
that waste is taken ashore and/or
that waste is declared for import at customs?
Under Article 267 TFEU, courts of the Member States can seek the assistance of the Court of Justice in Luxembourg to help them interpret Union law. When they consider an act of the EU’s Institutions to be illegal, they have no choice but to refer to the ECJ: only the ECJ may conclude to such invalidity. In Case C-368/12 Adiamix, the Court reminds national judges of their duty under such referrals. They must provide the Court with the core factual and legal elements (in national law) relevant for the ECJ to appreciate the context of the referral. They must also furnish the Court with at least their core considerations as to why the EU act at issue might be illegal. In the case at issue, a Commission order to France to recover illegally paid State Aid, led to Adiamix being pursued for repayment in the French courts. Failure of the courts in Nantes to flag the suspicions of illegality, led to inadmissibility of the preliminary review.
Simply passing the buck therefore does not suffice: the national court has to add some core whistles and bells of EU law analysis.