Judgment of the Court (Fourth Chamber), 29 March 2012

European Union law

3 Recital 7 in the preamble to Regulation No 1013/2006 notes the importance of organising and regulating the supervision and control of shipments of waste in a way which takes account of the need to preserve, protect and improve the quality of the environment and human health and which promotes a more uniform application of that regulation throughout the European Union.

4 Recital 15 in the preamble to Regulation No 1013/2006 states that it is appropriate to ensure a minimum level of supervision and control in the case of shipments of waste listed in Annex III, IIIA or IIIB to that regulation destined for recovery operations by requiring such shipments to be accompanied by certain information.

5 Article 1(1) of Regulation No 1013/2006 provides that the latter establishes procedures and control regimes for the shipment of waste, depending on the origin, destination and route of the shipment, the type of waste shipped and the type of treatment to be applied to the waste at its destination.

6 Article 3(2)(a) of Regulation No 1013/2006 provides that shipments of waste listed in Annex III or IIIB to that regulation destined for recovery are subject to the general information requirements laid down in Article 18 of that regulation, if the amount of waste shipped exceeds 20 kilograms.

7 Annex III to Regulation No 1013/2006 includes, under the sub-heading ‘“Green” listed waste’, inter alia the waste listed in Annex IX to the Convention on the control of transboundary movements of hazardous wastes and their disposal, signed at Basel on 22 March 1989, which was approved on behalf of the Community by Council Decision 93/98/EEC of 1 February 1993 (OJ 1993 L 39, p. 1), (‘the Basel Convention’).

8 Annex IX to the Basel Convention states that wastes contained in that annex are not in principle covered by Article 1(1)(a) of that convention and are therefore not considered in principle to be ‘hazardous wastes’ for the purposes of that convention.

9 Code B 1010 in Annex IX to the Basel Convention covers ‘Metal and metal-alloy wastes in metallic, non-dispersible form’, inter alia, iron and steel scrap, chromium scrap, copper scrap, nickel scrap, aluminium scrap, zinc scrap and tin scrap.

10 Article 18 of Regulation No 1013/2006, entitled ‘Waste to be accompanied by certain information’, provides:

‘1.

Waste as referred to in Article 3(2) and (4) that is intended to be shipped shall be subject to the following procedural requirements:

1. In order to assist the tracking of shipments of such waste, the person under the jurisdiction of the country of dispatch who arranges the shipment shall ensure that the waste is accompanied by the document contained in Annex VII.

2. The document contained in Annex VII shall be signed by the person who arranges the shipment before the shipment takes place and shall be signed by the recovery facility or the laboratory and the consignee when the waste in question is received.

2.

The contract referred to in Annex VII between the person who arranges the shipment and the consignee for recovery of the waste shall be effective when the shipment starts and shall include an obligation, where the shipment of waste or its recovery cannot be completed as intended or where it has been effected as an illegal shipment, on the person who arranges the shipment or, where that person is not in a position to complete the shipment of waste or its recovery (for example, is insolvent), on the consignee, to:

1. take the waste back or ensure its recovery in an alternative way; and

2. provide, if necessary, for its storage in the meantime.

The person who arranges the shipment or the consignee shall provide a copy of the contract upon request by the competent authority concerned.

3.

For inspection, enforcement, planning and statistical purposes, Member States may in accordance with national legislation require information as referred to in paragraph 1 on shipments covered by this Article.

4.

The information referred to in paragraph 1 shall be treated as confidential where this is required by Community and national legislation.’

11 Article 20(2) of Regulation No 1013/2006 provides inter alia that the person who arranges for the shipment and the consignee receiving the waste must keep information given pursuant to Article 18(1) of that regulation for at least three years from the date when the shipment starts.

12 The shipment document contained in Annex VII to Regulation No 1013/2006 is shown below:

National law

13 According to the information provided to the Court by the Verwaltungsgericht Mainz, the Basic Law of the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland; ‘the Basic Law’) provides for the protection of business secrets in Paragraph 12, concerning freedom to conduct a business, in conjunction with Paragraph 14, concerning the right to property. According to the case-law of the Bundesverfassungsgericht (Constitutional Court), an undertaking’s sources of supply are moreover business secrets which fall to be protected as a fundamental right.

The first, third and fourth questions

29 By its first, third and fourth questions, which should be considered together, the referring court asks in essence whether Article 18(4) of Regulation No 1013/2006 must be interpreted as allowing an intermediary dealer arranging a shipment of waste not to disclose the name of the waste producer to the consignee of the shipment where such non-disclosure is necessary in order to protect the intermediary’s business secrets.

30 Article 18(4) of Regulation No 1013/2006 provides that the information referred to in Article 18(1), namely, the information contained in the shipment document, is to be treated as confidential where this is required by Community and national legislation.

31 As for the identity of the persons who might be bound by the confidentiality requirements to which Article 18(4) of Regulation No 1013/2006 refers, it is clear from a literal and systematic interpretation of that provision that the confidentiality requirements to which it refers are such that they apply to any person in possession of the information concerned, which includes both the authorities of dispatch and destination and all the natural or legal persons involved in the shipment of waste.

32 The wording of Article 18(4) of Regulation No 1013/2006 does not make any distinction among persons who may be in possession of the information concerned and, in particular, does not make any reference to Article 18(3) of Regulation No 1013/2006, which specifically concerns the public authorities.

33 However, it is also to be inferred from Article 18 of Regulation No 1013/2006 that the confidentiality requirements to which Article 18(4) refers are not such that they could preclude the transmission, between the undertakings involved in the shipping operation, of information covered by Annex VII to that regulation.

34 First, Article 18(1)(a) of Regulation No 1013/2006 provides that a shipment document must be prepared and must accompany any shipment of waste to which that provision applies. The person arranging such a shipment is therefore required to complete, inter alia, Field 6 of the shipment document provided for in Annex VII of that regulation, in which it must enter the name of the waste producer.

35 Secondly, Article 18(1)(b) of Regulation No 1013/2006 provides that the shipment document must be signed by the person who arranges the shipment and the consignee of the shipment of waste, whilst Article 20(2) of that regulation requires the person who arranges for the shipment and the consignee to keep the information covered by Article 18(1) of that regulation for at least three years from the date when the shipment starts.

36 The necessary consequence of those provisions is that the consignee of the shipment receives all of the information contained in the shipment document, and will therefore be made aware inter alia of the name of the waste producer, which, as required by Annex VII to that regulation, is given in Field 6 of that document.

37 Any potential confidentiality requirement under Article 18(4) of Regulation No 1013/2006 would have no effect in that regard since, as the Advocate General states in essence in point 50 of his Opinion, the issue of whether the information contained in the shipment document is to be treated as confidential arises only after that document has been prepared and communicated. Article 18(4) of Regulation No 1013/2006 can apply only if the information has already been given in the shipment document, as provided in Article 18(1) of Regulation No 1013/2006 in conjunction with Annex VII to that regulation.

38 Therefore, as the Advocate General states in point 64 of his Opinion, the scope of such confidentiality requirements is necessarily limited to the contacts which persons having access to the shipment document, namely the competent administrative authorities and persons involved in the shipment in question, have with third parties to that shipment.

39 That interpretation is supported by the wording of Article 18(4) of Regulation No 1013/2006, which expressly states that the information referred to in the shipment document is to be ‘treated as confidential’, and makes no mention of any hypothetical exception to the requirement to provide all the required information in the shipment document. It is also supported by footnote 3 to Annex VII to that regulation, which states that when the person who arranges the shipment is not the producer or collector, information about the producer or collector must be provided.

40 Consequently, the answer to the first, third and fourth questions is that Article 18(4) of Regulation No 1013/2006 must be interpreted as not permitting an intermediary dealer arranging a shipment of waste not to disclose the name of the waste producer to the consignee of the shipment, as provided for in Article 18(1) of Regulation No 1013/2006 in conjunction with Annex VII to that regulation, even though such non-disclosure might be necessary in order to protect the business secrets of that intermediary dealer.

Second question

41 The second question is referred only in the event that Article 18(4) of Regulation No 1013/2006 does not permit an intermediary dealer arranging a shipment of waste to avoid disclosing the name of the waste producer to the consignee of the shipment. The referring court notes that, as was stated in paragraph 13 above, the Basic Law provides for the protection of business secrets, which covers inter alia an undertaking’s sources of supply. There is no relevant national provision under which the fundamental rights at issue can be restricted. It raises the question, in those circumstances, whether business secrets are protected under European Union primary law restricting the scope of Article 18(1) of Regulation No 1013/2006.

42 It must therefore be understood that, by its question, the referring court seeks in essence to ascertain whether Article 18(1) of Regulation No 1013/2006 must be interpreted, in the context of a shipment of waste covered by that provision, as requiring an intermediary dealer to complete Field 6 of the shipment document and transmit it to the consignee, without the scope of that requirement being restricted by a right to protection of business secrets.

43 In that regard, Articles 15(1), 16 and 17 of the Charter of Fundamental Rights of the European Union, provide, respectively, for the right to engage in work and to pursue a freely chosen or accepted occupation, the freedom to conduct a business and the right to property. Moreover, according to settled case-law, both the right to property and the freedom to pursue a trade or business are general principles of European Union law (see Case C-280/93 Germany v Council [1994] ECR I-4973, paragraph 78; Joined Cases C-20/00 and C-64/00 Booker Aquaculture and Hydro Seafood [2003] ECR I-7411, paragraph 68; Joined Cases C-154/04 and C-155/04 Alliance for Natural Health and Others [2005] ECR I-6451, paragraph 126; and Joined Cases C-453/03, C-11/04, C-12/04 and C-194/04 ABNA and Others [2005] ECR I-10423, paragraph 87). Moreover, according to settled case-law, the protection of business secrets is a general principle of European Union law (see Case C-450/06 Varec [2008] ECR I-581, paragraph 49 and the case-law cited).

44 It should be noted, however, that, even if the obligation to disclose the name of the waste producer to the consignee of a shipment of waste were to constitute a breach of the protection of the business secrets of intermediary dealers, that could not have the consequence of restricting the scope of a provision of secondary law that is clear and unconditional.

45 As was held in paragraphs 33 to 40 above, the inevitable consequence of the administrative tracking procedure provided for in Article 18 of Regulation No 1013/2006 is that the consignee of the shipment will be made aware of the name of the waste producer and no derogation may be inferred from that regulation.

46 In those circumstances, any unjustified breach of the protection of business secrets, assuming it were established, would not be such as to limit the scope of Article 18 of Regulation No 1013/2006, but rather to call into question the validity of that provision. The national court has not, however, asked the Court of Justice to rule on the validity of Article 18 of Regulation No 1013/2006, or even expressed any doubt in that regard, and the Court does not have sufficient facts before it to enable it to assess the validity of that provision.

47 Consequently, the answer to the second question is that Article 18(1) of Regulation No 1013/2006 must be interpreted as requiring an intermediary dealer, in the context of a shipment of waste covered by that provision, to complete Field 6 of the shipment document and transmit it to the consignee, without any possibility of the scope of that requirement being restricted by a right to protection of business secrets.