«(Failure of a Member State to fulfil obligations – Article 7(2) and (4) of Regulation (EEC) No 259/93 – Classification of the purpose of a shipment of waste (recovery or disposal) – Incinerated waste – Point R1 of Annex II B to Directive 75/442/EEC – Concept of use principally as a fuel or other means to generate energy)»

1.. Environment – Waste – Regulation No 259/93 on shipments of waste – Competence of the authorities to which notification of a proposed shipment of waste is addressed to check classification (recovery or disposal) and to object to a shipment which is wrongly classified – Competence of the Member States to lay down general rules for classification – Conditions (Council Regulation No 259/93, Art. 7(2))

2.. Environment – Waste – Directive 75/442 – Annex II B – Distinction between a disposal operation and a recovery operation – Use of waste in cement kilns – Classification as a recovery operation – Conditions (Council Directive 75/442, as amended by Commission Decision 96/350, Annex II B)

JUDGMENT OF THE COURT (Fifth Chamber) 13 February 2003 (1)

((Failure by a Member State to fulfil its obligations – Article 7(2) and (4) of Regulation (EEC) No 259/93 – Classification of the purpose of a shipment of waste (recovery or disposal) – Incinerated waste – Point R1 of Annex II B to Directive 75/442/EEC – Concept of use principally as a fuel or other means to generate energy))

In Case C-228/00,

applicant,

v

defendant,

APPLICATION for a declaration that by raising unjustified objections against certain shipments of waste to other Member States to be used principally as a fuel the Federal Republic of Germany has failed to fulfil its obligations under Article 7(2) and (4) of 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 (OJ 1993 L 30, p. 1),

THE COURT (Fifth Chamber),,

composed of: M. Wathelet, President of the Chamber, C.W.A. Timmermans (Rapporteur), D.A.O. Edward, P. Jann and S. von Bahr, Judges,

Advocate General: F.G. Jacobs,

having regard to the Report for the Hearing, after hearing oral argument from the parties at the hearing on 25 April 2002, at which the Commission was represented by G. zur Hausen and the Federal Republic of Germany by W.-D. Plessing, acting as Agent, assisted by D. Sellner,

after hearing the Opinion of the Advocate General at the sitting on 26 September 2002,

gives the following

Community legislation

Directive 75/442/EEC

The Regulation

The German legislation

On those grounds,

THE COURT (Fifth Chamber)

hereby:

Wathelet

Timmermans

Edward

Jann

von Bahr

Delivered in open court in Luxembourg on 13 February 2003.

R. Grass

M. Wathelet

Registrar

President of the Fifth Chamber