ORDER of the COURT (First Chamber) 23 March 2007 * in Case
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STADTGEMEINDE FROHNLEITEN AND GEMEINDEBETRIEBE FROHNLEITEN ORDER OF THE COURT (First Chamber) 23 March 2007 * In Case C-221/06, REFERENCE for a preliminary ruling under Article 234 EC, from the Verwaltungs gerichtshof (Austria), made by decision of 27 April 2006, received at the Court on 15 May 2006, in the proceedings Stadtgemeinde Frohnleiten, Gemeindebetriebe Frohnleiten GmbH v Bundesminister für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft, * Language of the case: German. I - 2615 ORDER OF 23. 3. 2007 — CASE C-221/06 interested party: Republik Österreich, THE COURT (First Chamber), composed of P. Jann, President of the Chamber, R. Schintgen, A. Tizzano, A. Borg Barthet and M. Ilešič (Rapporteur), Judges, Advocate General: E. Sharpston, after hearing the Advocate General, makes the following Order 1 This reference for a preliminary ruling concerns the interpretation of Articles 10 EC, 12 EC, 23 EC, 25 EC, 49 EC and 90 EC 2 The reference has been made in the context of proceedings between the Stadtgemeinde Frohnleiten (municipality of Frohnleiten) and the Gemeindebetriebe (municipal enterprise) Frohnleiten GmbH, on the one hand, and the Bundesminister I - 2616 STADTGEMEINDE FROHNLEITEN AND GEMEINDEBETRIEBE FROHNLEITEN für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft (Federal Minister for Agriculture, Forestry, the Environment and Water Management, 'the Minister'), on the other, concerning the taxation of the deposit of waste coming from Italy at the municipal waste disposal site at Frohnleiten. 3 Pursuant to Paragraph 3(1)(1) of the Law on the rehabilitation of disused hazardous sites (Altlastensanierungsgesetz) of 7 June 1989 (BGBL 299/1989; 'the ALSAG'),'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', is subject to the 'Altlastenbeitrag' (disused hazardous site levy). 4 However, Paragraph 3(2) (1) of the ALS AG provides an exemption from the Altlastenbeitrag for the depositing, storage and transport of waste which is proven to arise in the course of safeguarding or rehabilitating suspected contaminated sites entered in the register of suspected contaminated sites or disused hazardous sites entered in the register of disused hazardous sites. 5 According to the Verwaltungsgerichtshof (Administrative Court), naturally only areas located in Austria can be entered in the register of suspected contaminated sites and the register of disused hazardous sites, so that only waste which comes from the safeguarding or rehabilitation of disused hazardous sites or suspected contaminated sites in Austria qualifies for the exemption provided for in Paragraph 3(2)(1) of the ALSAG. 6 Pursuant to Paragraph 4(1) of the ALSAG, it is 'the operator of a waste disposal site', in particular, who is liable to the Altlastenbeitrag. I - 2617 ORDER OF 23. 3. 2007 — CASE C-221/06 7 The Gemeindebetriebe Frohnleiten GmbH, which is wholly owned by the Stadtgemeinde Frohnleiten, operates the municipal waste disposal site at Frohnleiten. 8 In the fourth quarter of 2001 and the first quarter of 2002, a number of tonnes of shredded waste from Italy were deposited at that waste disposal site. Their shipment to Austria had been authorised by the Austrian authorities. 9 The waste came from an area located in the municipality of Rovigo (Italy), the rehabilitation of which had been declared necessary in the Italian plan for the rehabilitation of contaminated sites, drawn up pursuant to Article 22 of Decree-Law No 22 of 5 February 1997 (ordinary supplement to the Gazzetta Ufficiale della Repubblica Italiana (the Official Gazette of the Italian Republic, 'GURI') No 38 of 15 February 1997), and the Decree of the Italian Environment Minister of 16 May 1989 (GURI No 121 of 26 May 1989, p. 12). 10 Taking the view that the waste was covered by the exemption provided for by Paragraph 3(2)(1) of the ALS AG on the ground that it came from a contaminated site, the claimants in the main proceedings applied to the Bezirkshauptmannschaft Graz-Umgebung (administrative authorities of the District of Graz and surrounding area; 'the BH') for confirmation of the exemption. 11 By decision of 11 May 2004, the BH held that the waste in question was exempt from the Altlastenbeitrag, in accordance with Paragraph 3(2)(1) of the ALSAG. On an appeal by the Austrian federal authority, the Landeshauptmann von Steiermark (head of the government of Styria, 'the LH') confirmed the BH's decision by decision of 30 November 2004. Both the BH and the LH found that treating waste arising in the course of lawful measures for the rehabilitation or safeguarding of contaminated I - 2618 STADTGEMEINDE FROHNLEITEN AND GEMEINDEBETRIEBE FROHNLEITEN sites differently according to whether it came from Austria or from another Member State would be contrary to Article 90 EC. 12 By decision of 10 January 2005, the Minister annulled the LH's decision and ruled that the waste in question was subject to the Altlastenbeitrag, as it did not come from a site entered in the register of suspected contaminated sites or the register of disused hazardous sites. The Minister considered that the Altlastenbeitrag fell outside the scope of Article 90 EC, because it is not a levy on waste as such, but a levy on an operation. 13 The claimants in the main proceedings challenged the Minister's decision before the Verwaltungsgerichtshof. They claim, in essence, that the Altlastenbeitrag falls within the scope of Article 90 EC and that there would be a breach of that provision if the levy were calculated differently depending on whether it is imposed on imported products or on similar domestic products, with the result that the imported products were more expensive. 14 In those circumstances, the Verwaltungsgerichtshof decided to stay the proceedings and to refer the following question to the Court 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), 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 I - 2619 ORDER OF 23. 3. 2007 — CASE C-221/06 sites, or Altlastenatlas; register of disused contaminated 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?' 15 The claimants in the main proceedings lodged observations at the Court Registry on 28 July 2006. They claim in particular that they initially filed a declaration of tax- exemption for the waste from the contaminated site in Rovigo with the Zollamt Graz (customs office in Graz), the relevant tax collecting office. They submit further that the Bundesministerium für Finanzen (Federal Ministry of Finance), which customs offices are attached to, subsequently asked the Bundeskanzleramt- Verfassungsdienst (constitutional affairs service of the Federal Chancellery) for a legal opinion, in order to determine whether the ALSAG is consistent with Community law, and in particular Article 90 EC. The opinion was issued on 20 September 2002. The Zollamt Graz finally demanded payment of the Altlastenbeitrag, forcing the claimants in the main proceedings to make the application to the BH referred to in paragraph 10 of the present order. 16 The claimants in the main proceedings produced an extract from the legal opinion as Annex B to their written observations. 17 By letter received at the Court Registry on 20 February 2007, the Austrian Government raised an objection pursuant to Article 91(1) of the Rules of Procedure, requesting that the legal opinion issued by the Bundeskanzleramt-Verfassungsdienst on 20 September 2002 not be used in the present case. In support of its request, the Government submits that such advice is meant to assist the federal ministries that seek it in drafting legislative acts and in other tasks. Such opinions constitute merely internal documents, which are not to be made public. Their use in a different context would significantly disrupt the good cooperation between the Bundeskanz leramt-Verfassungsdienst and the federal ministries, as the latter would be I - 2620 STADTGEMEINDE FROHNLEITEN AND GEMEINDEBETRIEBE FROHNLEITEN discouraged from seeking such advice, thus denying themselves a tool to help ensure their actions are lawful 18 Although requested by the Court Registry to do so, the claimants in the main proceedings have submitted no observations on this preliminary issue. 19 It is important to note in this respect that it would be contrary to the public interest, which requires that national administrative authorities can receive the advice of their legal services, given in full independence, to allow such internal documents, if national legislation does not consider them public, to be produced in proceedings before the Court, unless production has been authorised by a competent authority of the Member State concerned or, where appropriate, ordered by the Court pursuant to Article 45 (2) (b) of its Rules of Procedure (see, by analogy, concerning opinions given by the legal services of the Community institutions, order in Case C-445/00 Austria v Council [2000] ECR I-9151, paragraph 12). 20 In this case the Court finds, first, that the Austrian Government has stated, without being contradicted, that legal opinions which the Bundeskanzleramt-Verfassungs dienst issues to the federal ministries constitute internal documents of the Austrian administrative authorities, which they are not required by law to disclose. 21 Second, the claimants in the main proceedings have not claimed that the Austrian authorities disclosed to them the legal opinion issued by the Bundeskanzleramt- Verfassungsdienst on 20 September 2002.