CJEU - C 1/11 / Judgment Interseroh Scrap and Metals Trading GmbH v Sonderabfall-Management-Gesellschaft Rheinland-Pfalz mbH (SAM)

Key facts of the case:
  1. This reference for a preliminary ruling concerns the interpretation of Article 18 of Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste (OJ 2006 L 190, p. 1), as amended by Commission Regulation (EC) No 308/2009 of 15 April 2009 (OJ 2001 L 97, p. 8) (‘Regulation No 1013/2006’). 
  2. The reference has been made in proceedings between Interseroh Scrap and Metals Trading GmbH (‘Interseroh’), a dealer specialising in steel and metal scrap, and Sonderabfall-Management-Gesellschaft Rheinland-Pfalz mbH (SAM) (‘SAM’), to which Land Rheinland-Pfalz has entrusted inter alia the supervision of specific waste streams in Land Rheinland-Pfalz, concerning the details to be given in the document contained in Annex VII to Regulation No 1013/2006 (‘the shipment document’).
Results (sanctions) and key consequences of the case:
  1. Article 18(4) of Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste, as amended by Commission Regulation (EC) No 308/2009 of 15 April 2009, 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.
  2. Article 18(1) of Regulation No 1013/2006, as amended by Regulation No 308/2009, 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 document contained in Annex VII to Regulation No 1013/2006, as amended by Regulation No 308/2009, 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.
Paragraphs referring to EU Charter: 
 
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.