By Eric Engle

Law is nothing other than the study of rules and their exceptions. Methods of constitutional interpretation are fundamentally the same as methods of ordinary statutory interpretation. What one provision gives, another takes away. Thus it is hardly surprising that in Article 30 of the treaty we see a very broad general rule - free movement of goods and services – which lists the general rule. Then in Article 36 we see a special exception to that rule, namely for reasons of public safety health and well being. In other words we see a clash between two different general norms, presented as the general rule and its specific exceptions.

Perhaps the only real interesting question then in the relation of these two articles would then be the interpretation of the exception or exceptions. As always we can find a latin maxim to support either a restrictive interpretation, that the exception should be interpreted narrowly (Exceptio est strictissimae interpretationis), or a non-restrictive interpretation – that the exception should be interpreted liberally (Generalia specialibus non derogant) (1)

While this fact can bring us to some very interesting historical questions of interpretation and reveal some of the beauty and structure of classical law it can also help us to see law for what it is: ex post declarations of what is to be posing as a priori previsible generalities. In other words, interpretative flexibility is the polite term for results oriented judicial legislating.

Suffice it to say, that despite the authors reverence for some of the beautiful intricacies of law latin - and more importantly the norms revealed thereby – the author’s position is critical and realist. The malleability, not only of the terms of law, but also the tools of legal interpretation, shows us why we have to take legalism with a grain of salt. Despite my realist critique of legal interpretation, judges and lawyers can by rigorous analytical terminilogy, coupled with wholistic teleology, (and perhaps only in this way) discover (jus natural), elaborate (positivism) or interpret (some mixture of positive law and natural justice) – and already we see the breakdown of interpretative tools into schools of thought which can be didactic, pedantic, or outright hostile.

The actual mechanics of Article 30 are rather straightforward: quantitative limits and measures with similar effects, wither direct or indirect are forbidden on trade between member states of the EU.(2)

The general rule is: free trade. And like any general rule, it must be riddled with exceptions. The statutory exception (which as we shall see will generate many interpretative children) is Article 36. Article 36 simply holds that measures necessary for health reasons - the protection not only of people but also of animals and plants – are allowed as an exception to the general rule.

The first interpretative child we will analyze is the famous Cassis de Dijon doctrine. (4) Cassis essentially holds that Article 36 is in fact to be strictly interpreted.(5) Subsequent cases of course limit the restriction; (6) in other words, any measure which looks protectionist masquerading as a health concern will be stricken, but genuine health concerns will be allowed. Which shows that while formalists or legalists might not like flexible interpretation, it can be justified teleologically.  This simplification of the relation between Articles 28 (ex-30) and Article 30 (ex-36) is, while vague and general reasonable.

How then do we get from the question of of health exemptions to the free movement of goods and services to the question of environmental protection? Quite simply because most environmental protection is in fact health protection. Proper disposal of poisonous or dangerous waste is a health concern: even the "soft" aspects of environmentalism – reducing noise levels and other types of beautification, are health measures – if mental well being is in fact a part of overall health - a position which seems obvious to this author – since physical and mental health are mutually reinforcing.

So if we look at environmental questions as in fact health questions we may, as a practical matter, be better able to determine whether an "ecological" law is in fact just veiled protectionism, or in fact a real and necessary measure for public health and well being.

Reasonable restrictions on waste processing which do not actually or potentially block free movement of goods are permissible; Environmental intervention must employ the least restrictive means.(7)

Facts and Outcome

As with any law, we start with a statute which is then interpreted and reinterpreted by the courts. There are in fact several lines of interpretation which grow out of Articles 30 and 36. The first line of cases we will deal with is the most obvious ecological case, Danish Bottles.

The facts of Danish bottles are reasonably clear. To encourage recycling, Denmark instituted a system of deposit and returns for soft-drink and beer (but not wine) bottles. Denmark also introduced a law stating that only drinks sold within certain sizes would be permitted, but did include a small quantitative exception to permit marketers to either try new brands on the Danish market or to allow existing brands to adjust to the new system. In essence, the commission struck the quantitative restriction; distinguishing between types of bottles however was legitimate, as was establishing a system of returns. The court probably did not see the Danish law as intended to discriminate, but as having a discriminatory effect. The solution then for the legislature that wishes to draft a system of returns is to simply allow the introduction of foreign bottles, since the discriminatory effect – even when applied to domestic bottlers – was found. The returns system as such was fine; the problem was with the restriction on introducing bottles from other states.

This suggests the alternative of differential deposit rates: say, 10 pennies on imported bottles and 5 pennies on domestic bottles. Since the deposit is at least theoretically refunded there would be little actual effect. This approach would however be in all likelihood quashed as tending to reintroduce national markets. There are however other alternatives: tax bottle sales, and use the revenue from that tax to fund the return program, since an internal sales tax would probably be seen as non-discriminatory. Another alternative – which poses more problems than it solves – would be to levy a landfill tax or user-fee.

The doctrinal or jurisprudential content of the case will be considered infra since this raises questions of interpretation

Interpretation:

Danish bottles presents the principle that Article 30 can be derogated from for essential objectives of the community – including health. Thus the holding in Danish bottles can be analogised to the relationship between Art. 30 and 36. We see a rule of law which is formally valid – that a state may only derogate from Article 30 when such derogation is a proportional means to a legitimate end. In fact however proportionality and means-end testing offer enough margin of interpretation that the judges can strike or uphold any states act and remain formally true to the texts of the treaty and their own prior interpretation. Again this realist perspective is however mitigated by the fact that the court offers interpretations which are both contextualised and driven by the teleology of the union – an ever closer union of the European people through peaceful trade. You may or may not agree with that teleology -its non-democratic bureaucratism geared toward building a superstate (and not necessarily a federal state)- but the court does seem faithful to it. So the legal realist thesis is, like most descriptions of reality (including this one), only partial. We can complete that interpretation however by noting the similarity to US constitutional jurisprudence, which also employs means end testing – that state action must be a rational means to a permissible end; such invocation can either be directed to supporting the naturalist idea of universal law, or the realist thesis that interpretation is arbitrary. Law, it appears, is a two edged sword.

Brief resume:

States may not prevent the import or export of wastes

An interesting oversight in the decision in Danish Bottles was the fact that the court did not first ask itself whether the traffic in deposit and returns was "goods".(8) While the court has defined "goods",(9) the court has never even defined how waste is a type of "goods"(10) though the court does state that whether or not waste is returnable is irrelevant to wastes status as a "good"(11)

This is of course good realist jurisprudence: courts will, in a desire to protect their own legitimacy and limit their workload, only answer what it must, and will avoid answering questions if possible, preferring to remand decisions to the trial court. Yet while the court has avoided determining what goods are and why waste should be considered a good, it has declared, in an excellent example of conclusory reasoning, that wastes are in fact goods.(12)

However revealing the non analysis of the court may be as to the actual deliberative acts of effective judges, the court’s decisions are at least functional, though they do lack some logic. In fact waste products - unless recycled and resold – are not "goods": (13) however the traffic in waste products – which are sent to landfills, incinerators and recycling centers – would of course be subject to the free movement of services(14) or the free establishment clauses. So the courts logical error is probably of no real effect.

What then about wastes? The definition of "waste" is somewhat ambiguous(15) leaving aside legal realism, waste is defined not in the treaty but in the secondary legislation; so discussing the same topic, waste, raises questions of primary, secondary, national, and community law. In other words, this field of law is a mess. "Waste" and "Wares" are in fact mirrors: each is part of the economic cycle, and one implies the other – and by recycling waste can become wares again.

In factual terms, wastes are in fact "bads" the very opposite of goods. In Walloon Wastes the main statutory analysis focused on secondary law sources. However while the main statutory interpretation dealt with secondary law sources, at least one commentator argues that Walloon Waste stands for the general principles that environmental protection and free trade are incompatible and that waste is a good enjoying free movement.(16) Thus the packaging used to furnish a good is also itself a good and subject to the free movement provisions – subject of course to the Art. 30 (ex-Art 36) exceptions.(17)

If wastes are goods enjoying the freedom of movement, what about recycled wastes? Recycling wastes are in fact treated as goods. Thus a state cannot organize a system for the collection and disposal of waste oils within its territory in such a way as to prohibit exports to an authorized disposal or regenerating undertaking in another Member State. Inter Huiles (Case 172/82).

The holding of this case must however be reconciled with another oil recycling case, Brûleurs d’Huiles Usagées (C-25/70).

According to Huiles Usagées, national measures must be reasonable means to permissible ends.(18) Further, environmental protection was recognized by the community as an essential goal of the community.(19) Huiles Usagés recognized the principle that National measures must be reasonable means to permissible ends.(20) However these must be the the least restrictive means possible.(21)

What limits may a member state place on toxic dumping? Waste, remember, is a good, at least under the current definition of goods. Consequently, whenever a member state tries to regulate waste it is potentially restraining the free movement of goods.

Matteo Peralta, the Italian Captain of an Italian flagged vessel cleaned highly toxic caustic soda out of his ships bulkheads in the mediterranean sea outside of Italian territorial waters. Italy had a law which criminalizing dumping of toxic wastes on the high seas by Italian flagged vessels. The court upheld this restriction, because it did not refer to the source of the wastes, and did not have as an object the regulation of trade between the states. The court also stated that any effect on trade between member states was to indirect and uncertain as to hinder trade between member states. In short, community law does not prohibit a state from prohibiting a vessel from dumping toxins in its or international waters.(22)

What then of the case of recycling? Can waste (subject to Union directives and regulations) become wares (subject to the treaty)? In Tombesi the court answered this question in the affirmative. Waste does include objects to be recycled which then are definitely goods. The facts of this case were close to the Article 28 (ex-30) and Article 30 (ex-36) combination. A company recycling waste into goods is found criminally liable. However since the goods do not appear to have crossed the Italian frontier the cases were not considered under Art. 28 and 30 but rather under directives dealing with waste reprocessing.

However had the goods been exported from Italy to other member states the court would have had to decide a very thorny issue. The court would simply use the Art 30 (ex art-36) health exemption to uphold the criminalization of waste recycling when such recycling poses an actual health risk - which seems rather clear when we consider that recycling either produces or treats dioxide and other cancer causing substances. While the criminalization of toxic delicts may seem harsh, so are birth defects, cancer, and other fallout of toxic dumping – which is necessarily impossible to prove since the causes of cancer are yet unknown to medical science.

The Union’s legal decisions manifest a willingness to accept environmental protections as necessary for the safeguard of health. How is the national legislator to best protect the citizen while remaining in conformity with the treaty obligations? There are in fact several possible schemes of environmental protection which, if cognizant of Article ex-30 limits will be admitted.

The community has two approaches:

1) Establish exceptions to the non-discrimination rule

2) Harmonisation of environmental standards

But subsidiarity and competition of regulatory systems limit harmonization.(23)

One solution to pollution is to establish funds, paid for by polluting activities. However such funding mechanisms can fall awry of the provisions of ex-Article 30. However

"an environmental fund for the support of domestic producers only, but financed by a levy on both domestic and imported goods would thus fall under the prohibition in Article 12. Further, such refunds may raise problems under the specific treaty provisions on subsidies."(24) Thus member states must be careful when drafting remedies for environmental delicts not to run afoul of community law.

The remedy to the conflict in the case where a member state subsidizes industry indirectly

is problem is simply to fund both domestic and foreign producers. Unfortunately this is not as easy as it may seem. Imagine a member state which wishes to fund its landfills. In order to due so it imposes a tax on pollution. While a tax on batteries, which contain lead, and thus are difficult to dispose of, can be justified as reasonable means, the end, favoring national waste disposers is impermissible, unless exempted under Article 30 (ex Art. 36). In this hypothetical, the author believes the better case would be to allow the imposition of a tax on the polluting good to pay for the necessary environmental clean up that that product entails. The court could rule either way however, since clearly such a measure would favor national waste producers over foreign waste producers . The only possible remedy would then be a remittance scheme. If a tax credit were allowed for reexporting the polluting item this scheme becomes theoretically justifiable - but practically less workable. One of the points of Danish Bottles is that while practicality and market transparency are usually mutually supportive, they can be in opposition.

This example raises the question of tax treatment of waste and goods which shall be analayzed below.

The first point to mention in the question of the role of taxes in environmental clean up is that taxes is that the Article 30 (ex art-36) exemptions could be applied to tax schemes for environmental purposes. Thus taxes on pollution even where touching free movement of goods and services is not unthinkable.(25)

However while ecological customs duties are not necessarily impossible they are difficult to implement. This is partly because the distinction between internal taxation and customs duties is a fine one.(26)

Simply imposing tax on a good not produced by a member state will not be considered a restriction of free movement of goods.(27) However where that tax distinguishes between the domestic market and the foreign market through a tax reduction for resale - even though this avoids double taxation - the tax will be seen as opposed to the free movement of goods provisions of Article 30 (ex-Art 36).(28)

Another alternative means of regulating waste is through labelling. Simply stating that a problem is made with environmentally friendly or unfriendly processes will encourage consumption of one over the other. The problem with labelling is that it is uncertain whether ecological labels are a matter of exclusive Union competence or whether labelling is a shared competence.(29)

Having analyzed the mechanics of the Article 28 rule and the Article 30 exception we can now move to an analysis of the legal theories used to elaborate the jurisprudence of these two articles.

Our analysis has been formalistic, in that we have looked at what the court says on face value, and not looked beyond the letter of the law to determine why the court acts. Formalistic approaches to the law can be accused, and rightly, of blind legalism. However they can also be defended as being necessary to assure certitude, and also as being capable of being applied by lower courts. So rather than dismiss formalism outright, as most realists do, we have tried to analyze formalism from within formalism. In other words we have looked at the mechanics of article 28 (ex-30) and article 30 (ex-36), and studied the "black letter law" as it is before criticizing it through exposing other interprative tools. Formalism if nothing else offers us a structure and baseline with which to begin our analysis and critique. Further, formal logic, when not applied blindly, is in fact the essence even of critical or positivist jurisprudence. Thus we shall try first to expose the formalist interpretative tools, then to show how some of these tools could also be turned against formalism by realists, and finally expose tools of interpretations which are clearly realist and thus a rejection of formalism. We shall also try to illustrate interpretative tools which allow legal theory to advance beyond blind formalism or indeterminate realism.

One of the strengths of formalism is at drawing lines: they may be simplistic, but at least they are clear. Thus we could class imports and exports in the following manner:

Favor Disfavor

Imports

Exports

The problem with such representations of reality is that their simplicity permits them to be abused. This is the classic complaint against formalism - that it substitutes mechanical tests for intelligent human thought.

When looking at a confused jurisprudential landscape the instinctive reaction, at least for one trained in the common law, is to look at each case on its own terms. Thus rather than see the "forest" of the law "out there" or "on high" we look at the law "down to earth" and "here and now" in specific concrete cases. Both perspectives of course have their place which explains why common law scholars must look at both systems, if only to enrich their own intellectual storehouse.

When a jurist looks at each case on its own merits, he or she may lack a global perspective and will be unable to predict future cases with different fact patterns. But at least his or her analysis of similar cases will be well founded on that case. S/he may lack skill in interpretation, analysis and synthesis, but s/he will at least be grounded and practical. This methodology then allows us to at least know the facts and the judges rulings on those facts – and for some that is all that can be known! While this author is not that much of a truth sceptic, case by case analysis can be justified as it allows us to begin looking at cases not as expressions of universal principles, but as answers to particular questions. By comparing different cases, we can distinguish them based on their facts. This sort of fact intensive analysis can be very useful when the courts have not yet determined their interpretation of contestable legal texts. This however does not seem to be the case in the question of the treatment of goods and wastes under community law. The legal texts are reasonably clear, and their interpretation, while formally logical (and thus formalist) is not particularly rigid, stilted, or unreasonable. Since the court seems to be describing some set of self consistent and coherent ideas - and since the court is after all a continental civil law court - we can begin to move up from the facts and factual comparisons to interpretations and interpretative comparisons. In other words, we can move from looking at the trees to looking for forests.

The idea of ratio as a measure of Justice goes back at least as far as Aristotle.(30) Certainly many formalists apply ratio and analogy as tools for analyzing cases. Thus under Article 30 (ex-36) the ECJ applies a proportionality test.(31)

The advantage of any ratio is that one can always switch terms. Intellectually dishonest, but effective. So we could see this method as allowing the jurist to argue that the greater the danger presented, the greater the range of permissible member state actions to prevent that danger. Which still leaves us in the dark as to how to measure actual or potential health dangers, or the threat to the single market posed by derogations from the general rule. In other words, proportionality looks sufficiently logical to be employed by formalists, but can in fact be turned to realist ends because of terminological ambiguities.

Another judicial tool used to avoid legal certainty is avoiding answering the questions posed. High court judges prefer, when possible, to limit their answers to question presented as narrowly as possible. Judges also prefer to remand when possible. This is not only a desire to reduce their workload, or to insulate the court from potential errors; this preference, to answer questions if at all as narrowly as possible arises also out of a desire to maintain specialized functions of trial courts (legal fact finding and application) and appellate courts (legal interpretation). Again this method can be used coherently by realists and formalists alike which allows us to understand how realism was able to swallow formalism whole in the post war era. This is of course also due to the post war prosperity – which starkly contrasted with the prewar depression which incited realisms radical challenge of fundamental institutions.

If some methods are common to both realism and formalism, others are still unique to one school or the other. One of the interpretative tools used by the court - and certainly one following in the wake of legal realisms exposure of legal formalism - is what can be termed "legal process interest balancing". This type of method involves comparing the interests of parties to a dispute, and weighing them. The economic branch of this school of thought (which is hardly critical, let alone radical - which shows that legal realism has largely been swallowed whole by the system it purported to critique) poses the questions in terms of "costs" (including opportunity costs) and benefits. By so doing the court is, supposedly, able to create legal definitions and interpretations which do not suffer from the flaws of rigid thinking associated with legal formalism. However what the court gains in "flexibility" it loses in "previsibility". That is, the decisions, while no longer being able to be criticized as "rigid" become indeterminate! Who determines the weight to be assigned to each parties interest? How does it do so? Even in supposedly objective economic cases, the valuation of a good - particularly in the absence of an active market - is at best problematic and at worst impossible. In other words, the economic formula, no matter how artful or complex do not necessarily reflect objective reality. The choice and application of economic formulae to balance is in fact arbitrary. So while legal realism's critique of legal formalism is swallowed by law and economic's, economic theories of law are in turn encircled by critical legal studies - for critical legal studies does not accept that economic values are necessarily objective, fair, or otherwise "just". Property is, for law and economics the vector of justice. For critical legal studies, property is the vector of inequality and tyranny. So legal balancing is at best only one step removed from the problem of legal formalism. At worst it is merely viciously circular, trying to escape arbitrary formalism with arbitrary economic balancing.

Means end testing is simply the idea that laws enacted must be permissible means to legitimate ends. It is sufficiently structured to be considered a type of formalism, but can be interpreted broadly through ambiguous terms that it can also be considered as consistent with realist jurisprudence. Thus a restrictive interpretation of environmental law would focus on the means, which must after all be the the least restrictive means possible (32) which on its face seems quite strict indeed. On the other hand the judge could also downplay the means, and focus on the end, where we see that environmental goals are not only a permissible they are in fact an essential end.(33) Of course these means must be "reasonable" (34) The result of course is a judicial decision according to the will of the judges. Such a decision can be principled, but only if properly contextualized (considering all facts in the case) and directed according to the law‘s finality (ist objective) through teleological interpretation.

Relativisation is the first realist tool we will consider that must be rejected by a self consistent formalist analysis. A relativistic interpretation will focus on the fact that the law being interpreted does not propose an absolute right - generally prior to quashing that right, but also to litigants that in future the right may be quashed. Thus in Brûleurs d'Huiles the court reminds us that the free movement of goods is not an absolute right. (35)

The problem with relativistic analysis is that it suffers from the formal flaw of tautology. No right is in fact absolute, for the simple reason that we are all limited in our material capacities. Affirming that a right(36) is not absolute is quite meaningless for no right can be in fact absolute. No human is absolutely free; we have to eat, sleep, and cannot fly. No human is truly equal - we are all different. No human is truly unique - we all have points in common. In short the discourse of absolute rights is flawed, a bad propaganda piece of political legitimation. We only take rights seriously when we recognize their relative and contextual character. And once that character is recognized, any legal argument founded un the presupposition of absolute or non absolute rights must lose its force of persuasion.

Terminological indeterminism is another form of interpretative argument, often used by realists - or post moderns. Unfortunately both tend to use this argument badly.

It is essentially true that every logical term is indeterminate. No definition is complete, and every term admits of several definitions. Further each definitions sends us to another. Thus all words are circularly defined tautologies. This critique however ignores that many words are ultimately representations of material reality which has some definite existence. Thus the argument of linguistic indeterminism as justification for conclusive reasoning is ill founded.

Possibly the first truth relativist was Nietzsche. Nietzsche did not say truth does not exist. However he did quite correctly point out how truth is manufactured out of opinion through repetition. He also questioned whether the truth existed. However he believed that truth, if it did exist, should be the sole criterion for knowledge. In other words, Nietzsche was a militant truth sceptic. Militant because hoping, fighting, and knowing that only through fighting could truth emerge. Sceptic because he did not believe his own "truth" - or mine, or yours - was necessarily "The Truth".

Unfortunately most truth relativists are neither as rigorous nor intelligent as Nietzsche. It has become practically banal to declare all truth subjective. Howeever material reality does demonstrate that just as objects exist, so also do statements which are either erroneous or true about those objects. So while it is perfectly legitimate to question the existence of truths, it is not particularly serious to propose that no truth exists. Questioning a things existence and demonstrating that a thing does not exist are too different things. Many people however take Nietzsche - or other truth sceptics - as either arguing for, or even having demonstrated, that truth does not exist. - which is simply incorrect.

How is truth relativism relevant to legal interpretation? Well if truth did not exist then overturning old laws becomes much easier (though erecting new ones becomes much harder; some might not like lawlessness, though others might). So truth scepticism plays a role in legal interpretation. At its most benign, truth scepticism encourages judges to be critical of the veracity of statements by government representatives, though at its most malign scepticism of truth reinforces scepticism of morality leading to social collapse.

Moral relativism is similar to truth relativism in that moral relativism denies the objective existence of right and wrong. Without writing an elaborate essay on moral theory, empirical experience shows us that there are right and wrong acts.

Legal realism arose as a critique of overly rigid formalism. It criticized the formalists for merely rationalizing and not explaining or justifying legal reality. However in so doing they opened the door to legal indeterminism. Thus just at the moment where critical theory began to elaborate real critiques of subtle tyranny, it also undermined its own position. The legal indeterminism which it deployed in critique of formalism also deprived realism of critical impetus.

This critical impotence was not necessary or unavoidable. It did however allow realist scholars to insert themselves into the mainstream legal community and even to influence mainstream legal thought. Truly critical theory however cannot merely end, as legal realism did, as an apology for systemic injustice. The indeterminacy which realism erroneously deployed to critique the judicial system - indeterminacy which was not necessarily there - in turn undermined realist scholars normative positions. What possibilities exist then for radical theory, if legal realism is tainted beyond hope by this epistemological and tactical flaw?

The picture we have painted of legal interpretation is perhaps grim. That is not accidental since the contemporary legal theory is either insipid - in its American variant, battling contractarian theories; in Europe, kelsenien "purity". At its worst, contemporary legal discourse is simply vitriolic (caricatured by any contemporary populist leader conveyed by the war between CLS and law and economics). In either case it is Hobbesian - mechanistic theories which turn out to be reruns of vile fictions and thus ungrounded in reality, or the war of all against all.

We could of course paint this picture nicely; in that case we would describe interpretative manipulability as interpretative flexibility. And indeed not all decisions are either arbitrary, manipulative, or even tyrannical. However to presume that interpretative flexibility cannot or is not abused is irrealistic.

Happily however if we push our analysis further we can escape the morass of incertitude.

The first point that truly radical scholarship must make is that many of the judicial tools employed be the classical (if you like them) formalists (if you don't) were in fact valid. Radical theory does not question the existence of values, but affirms that the wrong values were defended by the ancien regimes. Wholesale and unthinking rejection of an entire legal order while viscerally satisfying is also simplistic and incomplete.

Well we have tried to show how formalism can be principled, if limited, as a tool of interpretation. We have also tried to show why legal process interest balancing is not the answer that one might think. Are their ways that the court can decide cases in a principled, honest and just manner? To answer this question quickly "yes". However to understand legal reasoning we must see that the contextualisation of courts responses to the claims of litigants could itself be open to attack as arbitrary. However since the finality (telos) of the law, must guide the interpretation, this claim is in fact much weaker than it appears. While judges can choose whatever facts they wish in order to contextualize (and in realist terms "rationalise") the finality of the law cannot be chosen by the judge. At best judges could choose among competing telos. However judgement is to describe these different finalities and define their relationships; whether such choices can or should be made by the judge rather than the parliament is another question. However judges generally, if not universally, follow the legislative lead in applying the telos of the law - which is in fact generally given by the legislator.

A nice metaphor might illustrate what I mean: if formalism and indeterminism are the scylla and charybdis of judicial interpretation - the definitive problem of post war legal thought - the factual context is the ocean upon which the judicial vessel sails. In that case the telos of the law would be the guiding star. This metaphor, while poetic, might be reasonably accurate, and certainly memorable.

1) http://www.msh-paris.fr/red&s/communic/adages2.htm

2) "mängenmassige beschränkungen und maßnahmen gleicher wirkungen unmittelbar oder mitelbar, direkt oder indirekt sind verboten." Art. 30 EGV

Frenz, 225.

3) Art 36 - bewehrt den leben von Menschen, Tieren und Pflanzen.

Frenz, 226.

4) Zwingende erfordernisse des Allgemeinwohls. Cassis de Dijon,

-Frenz, S. 226

5) ex-Art. 30 (Now Art. 28) and ex-Art 34 (now Art. 29) have an exception - ex-Art 36 (now Art.30). Ex Art. 36 (now 30) is to be interpreted narrowly. Ziegler, Common Market and Environment S. 76

6) Rs Peijper (Adriaan de Peijper, 20 Mai 1976) SLG 1976, S. 613.

Art. 30 Health Exception.

7)Danish Bottles, Ziegler Seite 117.

8) Andreas Ziegler, Trade and environmental law in the European Community Oxford: Clarendon (1996), "Is waste a good?" Seite 33.

9) Goods are products with monetary value and thus can be the quid pro quo of commerce;

Waren sind Erzeugnnisse ,,die einen Geldwert hat, und deshalb Gegenstand von Handelgeschäften sein Können''

Frenz, Seite 222; Auch, Christian Zacker, Abfall im Gemeinschaftlichen Umweltrecht

Berlin: Duncker u. Humboldt, Zitieren EuGH 1968 RS 7/68 Kunstschätze, S. 633, 642. Seite 170.

10) Andreas Ziegler, Trade and environmental law in the European Community

Oxford: Clarendon Press (1996), "Is waste a good?" Seite 33. The ECJ has never defined goods. Seite 35.

11) Whether an object is able to be returned or not, wastes are wares.

"Rückführbar oder nicht, alle abfälle sind waren." AaO, S 4478. Auch EuGH 17/Marz 1993, Rs C-155/91; RL 91/156 EWG EuZW 1993 s. 290, 291. Zacker, seite 172.

12) Andreas Ziegler, Trade and environmental law in the European Community

Andreas Ziegler, Oxford: Clarendon (1996) Seite 35.

13) Um genauer zu sein, Abfall sind nicht waren, sondern haben Dienstleistungsfreiheit. Thus wastes would not be ,,goods" but their treatment (Behandlung) is subject to Dienstleistungfreiheit. Zacker, S. 184.

14) ,,Einige Autoren sind der Meinung, daß Abfälle sowohl der Warenverkehrs als auch der Dienstleistungsfreiheit unterfallen können''. Zacker, S. 176.

15) The definition of waste is ambiguous; "Transboundary movements of waste under EC law"

Alke Schmidt, Journal of Environmental Law, Vol. 4, no. 1 seite 57, at 59.

16) Andreas Ziegler, The common Market and the Environment: Striking a Balance, Bamberg: Difo-Druck (1995) S. 43. C-2/290 Commn. v. Belgium (Wallon Waste Case) (1994)

17) Andreas Ziegler The common Market and the Environment: Striking a Balance, Bamberg: Difo-Druck (1995), S. 44-45.

18) C-25/70

19) Brûleurs d'Huiles Usagées (C-302/86): ,,Umweltschutzes, eines wesentlichen Zieles der Gemeinschaft''

Europarecht in Fallen seite 639; Environmental protection is an essential community objective (citing Huiles Usagées). Auch: Craig/Burc EC Law. Oxford: Clarendon Press (1995) Seite 642-643.

20) C-25/70

21) Danish Bottles, Ziegler, Seite 117.

22) Ziegler at 35.

23) Andreas Ziegler, The Common Market and the Environment: Striking a Balance. Bamberg: Difo-Druck (1995) p. 5-6.

24) Andreas Ziegler The common Market and the Environment: Striking a Balance

Bamberg: Difo-Druck (1995) S. 47.

25) Frenz, Walter, ,,Umweltschutz durch Zölle ist denkbar‘‘ Seite 222.

26) Farmer and Loyal, EC Tax Law. Oxford: Clarendon 1994. Seite 34 et seq.

27) C-47/88 Commn. v. Denmark (Danish Autos)

28) C-47/88 Commn. v. Denmark (Danish Autos)

29) Droit Communautaire de L'environnement

Ludwig Kramer, Pascale Kromak, "Revue Juridique de l'Environnement"

Vol. 2-3 1994. S. 221-223.

30) Aristotle, Politics, Book 5.

31) Andreas Ziegler The common Market and the Environment: Striking a Balance, Bamberg: Difo-Druck (1995)

p. 114.

32) Danish Bottles, Ziegler, Seite 117

33) Brûleurs d'Huiles Usagées ,,Umweltschutzes, eines wesentlichen Zieles der Gemeinschaft''

Europarecht in Fallen seite 639; Environmental protection is an essential community objective

citing Huiles Usagées (C-302/86) und Craig/Burc EC Law. Oxford: Clarendon Press (1995) Seite 642-643.

34) National measures must be reasonable means to permissible ends. C-25/70.

35) RS 240/83 Brûleurs d'Huiles 7/2/1985 Slg, 1985 S. 531.

36) Brûleurs d'Huiles Usagées ,,der Grundsatz der handelsfreiheit gilt nicht absolut''

Europarecht, Seite 639. This is a typical example of the relativisation of an apparently absolute rule. It is judicial hedging which while prudent is not courageous.

Ulrich Becker

Der Gestaltungsspeilraum der EG Mitgliedstaaten im Spannungsfeld zwischen Umweltschutz und Freien Warenverkehr.
Nomos: Baden-Baden (1991)

Behrens

Umweltschutz in EG
Nomos: Baden-Baden (1991) seite 157

Peter Behrens/Hans Joachim Koch

Umweltschutz in der Europäischen Gemeinschaft

Nomos: Baden-Baden (1991)

Damian Chalmers, Environmental Law, vol. 17, 1997. Oxford: Clarendon (1998)

Craig/Burc EC Law. Oxford: Clarendon Press (1995) Seite 642-643.

Christophe Demmke

Managing European Environmental Policy

Maastricht: European Institute of Public Administration (1997) Esp. S. 161.

Dirk Ehle

Die Einbeziehungen des Umweltschutzes in das Europäisches Kartellrecht

Köln, Carl Heymanns Verlag (1997)

Farmer and Loyal

EC Tax Law

Oxford, Clarendon 1994

Seite 34 et seq.

Walter Frenz
Europäisches Umweltrecht

Verlag C.H. Beck (1997)
Besonders S. 222 et seq.

Barbare Horstig

Die Europäische Gemeinschaft als Partie internationale Umweltabkommen

Heidelberg (1997)

Hummer/Simma/Vedder

Europarecht in Fallen

Nomos: Baden-Baden (1999)

Andreas Middeke

Nationaler Umweltschutz im Binnenmarkt

Köln: Carl Heymanns Verlag 1994 Besonders S. 113 et seq.

Jarass/Neumann

Umweltschutz und EG
Berlin: Springer Verlag (1992)

Besonders S. 105 et seq.

Piepper/Schollmeier/Krimphoven

Falle, Carl Hexmanns Verlag Köln 2000

Mark Röckinghausen

Integrierter Umweltschutz im EG Recht

Berlin: Erich Schmidt Verlag (1998)

Kersten Rook

Umweltschutz und Wettbewerb im EG Recht

Hannover (1997) (Art. 85)

Dieter Sellner

"Energie und Umweltschutz in Europaischer Perspektive"

Europarecht:Beiheft 1/1997

Achilles Skordas

Umweltschutzrecht und Freier Warenverkehr im EWG Vertrag und GATT
Taunus: Steinbacher Wissenschaftlicher Reihe, Band 6 (1986)

114.8 ea 882 – Genau auf topik.

Axel Vorwerk

Die Umweltpolitischen Kompetenzen der EG und ihrer Mitgliedstaaten nach inkrafttretten der EEA

Florentz: München (1990)

Gerd Winter

European Environmental Law

Dartmouth, Aldershot (1996)

besonders S. 341 et seq.

Christian Zacker,

Abfall im Gemeinschaftlichen Umweltrecht

Berlin: Duncker u. Humboldt, Zitieren EuGH 1968 RS 7/68 Kunstschätze, S. 633, 642. Seite 170.

Andreas Ziegler

The common Market and the Environment: Striking a Balance

Bamberg: Difo-Druck (1995)

Besonders p. 39 etc.

Andreas Ziegler

Trade and Environmental Law in the European Community

Oxford: Clarendon (1996)

Chalmers "Community Policy on Waste Management - Managing Environmental Decline Gently" 14 JEL 257 at 259-267 (1994) ;

Cheyne and Perduie "Fitting Definition to Purpose: The Search for a Satisfactory Definition of Waste"

7 JEL 149 (1995)

Xavier Lewis "Consumer Protection in the EC"

Yearbook of European Law

vol. XII 1992, p. 139 at 163.

The term "waste" in EU law, EEL Rev. 79 (1994);

Guidelines to reduce technological and natural hazards (89/C273/01) 16 Oct. 1989

Journal of Environmental Law, vol. 2, no. 1, 1990 seite 135

Art 12, 30, 36, 95 EGV

EEC Regulation (994) 2092/91 - organic eco labels (EEC) 880/92

Unclear with this label complements or suplpements existing labels; does this regulation preempt any national scheme?

Regulation 259/93e (EEF) transboundary movement of wastes.

Directives

67/548, 88/378, 79/117, 91/414, 94/43, 83/189, 98/182, 94/10

Regulations

880/92, 1734/88, 2455/92, 259/93

CJ 1365, CJ C-239, L 155, L 251, C 213, L 326, L 109, L 177

RS 261/81, RS 124/81, RS 16/83, RS 302/86

-cases

RS C-2/90

Huiles Usagées C-302/86

C-380/87 Enichem Base ECR 2491

Commission v. Belgium C-29

Commission v. Denmark, 302/86 ECR 1988, 4607

C-2/290 Commn. v. Belgium (Wallon Waste Case) (1994)

Rs Peijper (Adriaan de Peijper, 20 Mai 1976) SLG 1976, S. 613.

EuGH, RS 302/86 Pfandpflaschen (Kommission der Europäischen Geminschaft gegen Königreich Dänemark, Urteil vom 20 September 1988, Slg. 1988 S. 40607.

Cases on dumping toxic waste...

Toabesi C-304/94, C-330/94, C-324/94 C-224/95

Cases on dumping toxic waste...

Walloon Waste Case C-129/96

§30 and § 95

Iannelli and Volpi v. Meroni

C-74/76

Berganbi v. DGI 1988 ECR 13431 para. 33.