JUDGMENT OF THE COURT (Sixth Chamber)

22 October 1998 (1)

(Failure of a Member State to fulfil its obligations — Incorrect transposition ofDirective 85/337/EEC)

In Case C-301/95,

Commission of the European Communities, represented by Götz zur Hausen,Legal Adviser, acting as Agent, with an address for service in Luxembourg at theoffice of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

applicant,

v

Federal Republic of Germany, represented by Ernst Röder, Ministerialrat at theFederal Ministry of Economic Affairs, acting as Agent, and Dieter Sellner,Rechtsanwalt, Bonn, D-53107 Bonn,

defendant,

APPLICATION for a declaration that the Federal Republic of Germany has failedto comply with its obligations under Articles 5 and 189 of the EC Treaty and underCouncil Directive 85/337/EEC of 27 June 1985 on the assessment of the effects ofcertain public and private projects on the environment (OJ 1985 L 175, p. 40), inparticular Articles 2, 3, 5(2), 6(2), 8, 9 and 12(1) and (2) thereof,

THE COURT (Sixth Chamber),

composed of: P.J.G. Kapteyn, President of the Chamber, G.F. Mancini,J.L. Murray, H. Ragnemalm and K.M. Ioannou (Rapporteur), Judges,

Advocate General: J. Mischo,

Registrar: H.A. Rühl, Principal Administrator,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 22 January 1998,

after hearing the Opinion of the Advocate General at the sitting on 12 March 1998,

gives the following

Judgment

1.

    By application lodged at the Court Registry on 20 September 1995, the Commissionof the European Communities brought an action under Article 169 of the ECTreaty for a declaration that the Federal Republic of Germany had failed tocomply with its obligations under Articles 5 and 189 of the EC Treaty and underCouncil Directive 85/337/EEC of 27 June 1985 on the assessment of the effects ofcertain public and private projects on the environment (OJ 1985 L 175, p. 40, 'theDirective‘), in particular Articles 2, 3, 5(2), 6(2), 8, 9 and 12(1) and (2) thereof.

2.

    The Directive was adopted on the basis of Articles 100 and 235 of the EEC Treaty. According to the 11th recital in the preamble, 'the effects of a project on theenvironment must be assessed in order to take account of concerns to protecthuman health, to contribute by means of a better environment to the quality of life,to ensure maintenance of the diversity of species and to maintain the reproductivecapacity of the ecosystem as a basic resource for life‘.

3.

    Article 1 of the Directive provides:

'1.    This Directive shall apply to the assessment of the environmental effects ofthose public and private projects which are likely to have significant effects on theenvironment.

2.    For the purposes of this Directive:

”project” means:

—    the execution of construction works or of other installations or schemes,

...

”development consent” means:

the decision of the competent authority or authorities which entitles the developerto proceed with the project.

...‘

4.

    Article 3 provides:

'The environmental impact assessment will identify, describe and assess in anappropriate manner, in the light of each individual case and in accordance withArticles 4 to 11, the direct and indirect effects of a project on the following factors:

—    human beings, fauna and flora,

—    soil, water, air, climate and the landscape,

—    the interaction between the factors mentioned in the first and secondindents,

—    material assets and the cultural heritage.‘

5.

    Pursuant to Article 12(1), the Member States were required to take the measuresnecessary to comply with the Directive within three years of its notification. Sincethe Directive was notified on 3 July 1985, that period expired on 3 July 1988.

6.

    In Germany the Directive was transposed by the Gesetz über dieUmweltverträglichkeitsprüfung (Law on environmental impact assessment, 'theUVPG‘) of 12 February 1990, which came into force on 1 August 1990 (BGBl. I,p. 205).

7.

    On examining the provisions of the UVPG, the Commission reached the conclusionthat the legislation in force in Germany, as notified to it, did not comply with theprovisions of the Directive. It therefore sent a letter of formal notice on 4February 1992 informing the German Government of the various points with whichit took issue.

8.

    The German Government replied by letter of 16 June 1992, and the Commissionreconsidered its position with regard to certain of the points raised in its letter offormal notice, finally limiting them, in its reasoned opinion sent to the GermanGovernment on 4 July 1994, to those falling under six headings each constituting

a distinct instance of failure to transpose the Directive correctly. The Commissioncalled on the German Government to take the measures necessary to comply withthe reasoned opinion within two months from its notification.

9.

    Having received no reply to its reasoned opinion, the Commission brought thematter before the Court. Its action related to instances of failure to fulfilobligations falling under six different headings: delay in transposing the Directive;failure to communicate all the provisions adopted in the field covered by theDirective; failure to apply the Directive to all projects for which consent was givenafter 3 July 1988; incomplete transposition of Article 2 of the Directive with regardto the projects listed in Annex II thereto; incomplete transposition of Article 5(2)of the Directive; and failure to apply the Directive to the implementation of twospecific projects.

10.

    In the light of details furnished by the German Government in its defence, theCommission has withdrawn its claim concerning the aspects referred to under thesixth heading in its application.

Delay in transposing the Directive

11.

    The Commission submits that the German Government failed to take the measuresnecessary to comply with the Directive within the prescribed period, which expiredon 3 July 1988 whereas the UVPG came into force on 1 August 1990. Germanyhas thus failed to fulfil its obligations under Article 5 and the third paragraph ofArticle 189 of the Treaty, read in conjunction with Article 12(1) of the Directive.

12.

    The German Government considers that it would be inappropriate to make aformal declaration of the alleged failure to fulfil obligations, since the Court hasalready held, in Case C-396/92 Bund Naturschutz in Bayern and Others v FreistaatBayern [1994] ECR I-3717, that there had been a delay in transposing the Directivein Germany.

13.

    Here, though, it must be noted that the Bund Naturschutz in Bayern judgment wasgiven in response to a request for a preliminary ruling on the interpretation ofArticle 12(1) of the Directive. An action for failure to fulfil obligations differs,however, in both its purpose and its consequences.

14.

    The purpose of such an action is to obtain a formal finding that a Member Statehas failed to fulfil its obligations under Community law.

15.

    As regards its consequences, that formal finding is a prerequisite for the initiation,where appropriate, of the procedure provided for in Article 171 of the EC Treaty,as amended by the Treaty on European Union.

16.

    Finally, as the Court has consistently held, the Commission, given its role asguardian of the Treaty, is alone competent to decide whether it is appropriate tobring proceedings against a Member State for failure to fulfil its obligations (CaseC-431/92 Commission v Germany [1995] ECR I-2189, paragraph 22).

17.

    It must therefore be held that, by failing to take the necessary measures to complywith the Directive within the prescribed period, the Federal Republic of Germanyhas failed to fulfil its obligations under Article 12(1) thereof.

Failure to communicate all the provisions adopted in the field covered by theDirective

18.

    Article 12(2) of the Directive provides: 'Member States shall communicate to theCommission the texts of the provisions of national law which they adopt in the fieldcovered by this Directive.‘

19.

    The Commission states that the German Government did not communicate all thenational provisions intended to transpose the Directive, in particular those adoptedby the Länder. Such provisions, having been adopted in the field covered by theDirective, should in the Commission's view have been communicated in accordancewith Article 12(2). Germany has thus failed to fulfil its obligations under Article5 and the third paragraph of Article 189 of the Treaty, read in conjunction withArticle 12(2) of the Directive.

20.

    The German Government counters that neither Article 12(2) nor any otherprovision of Community law obliges it to communicate to the Commission all themeasures it has taken to comply with the Directive.

21.

    It further argues that under Paragraph 4 of the UVPG, that Law takes precedenceover specific Laws and over the legislation of the Länder. In any instance wherethe requirements laid down by the latter fall short of those contained in the UVPG,the rules in the UVPG are directly applicable. The UVPG thus ensures that therequirements of the Directive are fully satisfied, making it unnecessary tocommunicate other provisions to the Commission.

22.

    Here it must be noted that the wording of Article 12(2) of the Directive leaves nodoubt as to the scope of the obligation placed on Member States to communicateto the Commission all the provisions which they adopt in the field covered by theDirective. Nor does it give any reason to suppose that distinctions may be drawnas to the nature of that obligation according to whether a Member State has afederal or centralised structure or according to the legislative technique which itemploys.

23.

    Since the obligation to communicate national provisions concerns all suchprovisions adopted in the field covered by the Directive, the finding that theMember State has failed to fulfil its obligations as alleged cannot be affected by theconsideration that the provisions of the UVPG, which have been communicated tothe Commission, take precedence over those which have not been communicated.

24.

    It must therefore be held that, by failing to communicate to the Commission all themeasures which it has taken to comply with the Directive, the Federal Republic ofGermany has failed to fulfil its obligations under Article 12(2) thereof.

Failure to apply the Directive to all projects for which consent was given after 3July 1988

25.

    Paragraph 22(1) of the UVPG contains a transitional provision under whichconsent procedures already commenced are to be completed in accordance withthe provisions of that Law where the project had not yet been made public by 1August 1990, when the UVPG came into force.

26.

    In the Commission's submission, that transitional provision limits the scope rationetemporis of the UVPG, in that consent procedures commenced before 1 August1990 but after 3 July 1988, when the period within which the Directive was to betransposed expired, are not subject to an environmental impact assessment inaccordance with the requirements of the Directive. Germany has thus failed tofulfil its obligations under Article 5 and the third paragraph of Article 189 of theTreaty, read in conjunction with Article 12(1) of the Directive.

27.

    The Federal Government argues that it was already made clear in the BundNaturschutz in Bayern and Commission v Germany judgments, cited above, that theFederal Republic of Germany was not entitled to adopt a derogating provision suchas that contained in Paragraph 22(1) of the UVPG concerning projects for whichthe consent application had been lodged before 3 July 1988 and thus to exemptsuch projects from the environmental impact assessment requirement. Thatquestion having been settled by those two judgments, there is no reason for theCourt to rule afresh on the same point of law.

28.

    Here it must be observed that the subject-matter of the Commission v Germanycase, cited above, was different, since it concerned a finding that Germany hadfailed to fulfil its obligations by failing to comply with the environmental impactassessment requirement laid down by the Directive in a specific case relating to aspecific project. The application in that case did not seek a finding that theMember State had failed to fulfil its obligations by adopting Paragraph 22 of theUVPG.

29.

    Consequently, having regard to the considerations set out in paragraphs 13 to 15above, it must be held that, by not requiring an environmental impact assessment

for all projects on which such an assessment had to be carried out in compliancewith the Directive, where the consent procedure was commenced after 3 July 1988,the Federal Republic of Germany has failed to fulfil its obligations under Article12(1) of the Directive.

Incomplete transposition of Article 2 of the Directive with regard to the projectslisted in Annex II thereto

30.

    Article 2 of the Directive provides:

'1.    Member States shall adopt all measures necessary to ensure that, beforeconsent is given, projects likely to have significant effects on the environment byvirtue, inter alia, of their nature, size or location are made subject to an assessmentwith regard to their effects.

These projects are defined in Article 4.

...‘

31.

    Article 4 provides:

'1.    Subject to Article 2(3), projects of the classes listed in Annex I shall bemade subject to an assessment in accordance with Articles 5 to 10.

2.    Projects of the classes listed in Annex II shall be made subject to anassessment, in accordance with Articles 5 to 10, where Member States consider thattheir characteristics so require.

To this end Member States may inter alia specify certain types of projects as beingsubject to an assessment or may establish the criteria and/or thresholds necessaryto determine which of the projects of the classes listed in Annex II are to besubject to an assessment in accordance with Articles 5 to 10.‘

32.

    Annex I to the Directive lists nine categories of projects defined according to theirnature, such as oil refineries, integrated chemical installations, construction ofmotorways and trading ports. Annex II, entitled 'Projects subject to Article 4(2)‘,lists 12 categories of projects. Unlike those in Annex I, the categories in Annex IIare divided into sub-categories, each preceded by a letter of the alphabet, with theexception of those listed under points 5, 9 and 12.

33.

    The Federal Republic of Germany, availing itself of its right under Article 4(2) ofthe Directive in conjunction with Annex II thereto, defined certain projects inParagraph 3 of the UVPG and in the Annex thereto which it decided to subject tothe obligation to carry out an environmental impact assessment.

34.

    The Commission argues that the German legislation does not include all the classesof projects listed in Annex II to the Directive. In its opinion, all the projects listedin Annex II under the various letters of the alphabet preceding the subdivisions ofthe categories listed in that annex must be considered as 'classes‘ within themeaning of Article 4(2) of the Directive. The Commission does not dispute thatthe Member States may, under Article 4(2), distinguish on the basis of theircharacteristics between the projects falling within a particular class in Annex II tothe Directive, but it considers that it is unacceptable not to impose theenvironmental assessment requirement on whole classes in general.

35.

    The Commission therefore asks the Court to find that, by excluding in advancewhole classes of projects listed in Annex II to the Directive from the environmentalimpact assessment requirement, Germany has failed to fulfil its obligations underArticle 5 and the third paragraph of Article 189 of the Treaty, read in conjunctionwith Articles 2(1) and 12(1) of the Directive.

36.

    The German Government considers that a distinction is to be drawn between theconcepts of 'classes‘ and 'projects‘. In its opinion, Annex II to the Directive listsa total of '12 classes of projects‘ within which there are 'specific‘ projects. Eachof the 12 categories in the annex thus constitutes a class of projects and each of thesubdivisions of those categories, preceded by a letter of the alphabet, constitutesa specific project.

37.

    It submits that, under Article 4(2) of the Directive, each Member State may decide,at its own discretion, which of the specific projects listed under the 12 classes hasto be subject to the assessment requirement. The UVPG takes account of all theclasses of projects in Annex II to the Directive and, within those classes, requiresan environmental impact assessment to be carried out on those projects whosecharacteristics warrant it in the opinion of the federal legislature. To that end, theGerman Government used its discretionary power to set criteria and/or thresholdsfor certain types of projects in respect of the assessment obligation. It is thuswrong to claim that the Federal Republic of Germany has excluded whole classesof projects from the assessment requirement.

38.

    The Court has held that Article 4(2) of the Directive does not empower theMember States to exclude generally and definitively from possible assessment oneor more classes mentioned in Annex II (see Case C-133/94 Commission v Belgium[1996] ECR I-2323, paragraph 43). In order to settle the dispute on this point,therefore, the question of the interpretation of the concept of classes of projects,within the meaning of Article 4 of the Directive, must first be dealt with.

39.

    Here, it must be noted that Article 4 of the Directive uses the same wording inboth paragraphs 1 and 2 in relation to the concept in question, namely 'projectsof the classes listed in Annex I shall be made subject to an assessment ...‘ and'projects of the classes listed in Annex II shall be made subject to an assessment... where ...‘.

40.

    The tenor and scope of that concept thus clearly cannot differ depending whetherit is used in Annex I or Annex II of the Directive.

41.

    Referring as it does in Annex I to categories of projects defined according to theirnature, it can only refer to the same kind of categories of projects with regard toAnnex II.

42.

    However, the nine categories of projects in Annex I cannot, by their nature,correspond to the 12 categories in Annex II, each of which constitutes a vast fieldof economic activity; they must rather correspond to the subdivisions of thosecategories, each preceded by a letter of the alphabet. That consideration is borneout by the fact that categories 5, 9 and 12 in Annex II, which are not subdivided,each constitute an activity confined within clear limits.

43.

    For example, the category of projects entitled 'Construction of motorways, expressroads and lines for long-distance railway traffic and of airports ...‘ under point 7in Annex I cannot correspond, as a class of projects, to the category under point10 of Annex II, entitled 'Infrastructure projects‘; it must rather correspond tosubdivision (d) within that point, which refers to 'Construction of roads, harbours,including fishing harbours, and airfields (projects not listed in Annex I)‘.

44.

    Any other interpretation of the concept in question would negate the effectivenessof the rule laid down in Article 2(1) of the Directive, that projects likely to havesignificant effects on the environment by virtue inter alia of their nature, size orlocation are to be made subject to an environmental impact assessment, and wouldleave Member States free to apply Annex II as they saw fit.

45.

    It is specifically on the basis of that rule that the Court has held that the limits ofthe discretion conferred on the Member States by Article 4(2) of the Directive areto be found in the obligation set out in Article 2(1) (Case C-72/95 Kraaijeveld andOthers v Gedeputeerde Staten van Zuid-Holland [1996] ECR I-5403, paragraph 50),and that the criteria and/or thresholds mentioned in Article 4(2) are designed tofacilitate the examination of the actual characteristics exhibited by a given projectin order to determine whether it is subject to the requirement to carry out anassessment and not to exempt in advance from that obligation certain whole classesof projects listed in Annex II which may be envisaged on the territory of a MemberState (Case C-133/94 Commission v Belgium, cited above, paragraph 42).

46.

    It must therefore be held that, by excluding in advance from the environmentalimpact assessment requirement whole classes of projects listed in Annex II to theDirective, the Federal Republic of Germany has failed to fulfil its obligations underArticles 2(1) and 4(1) of the Directive.

Incomplete transposition of Article 5(2) of the Directive

47.

    Article 5(1) of the Directive requires Member States to adopt the necessarymeasures to ensure that the developer supplies certain information concerning anyproject subject to an environmental impact assessment. That information isspecified in Article 5(2) and in Annex III to the Directive.

48.

    The Commission notes that the provisions of Paragraph 6(3) and (4) of the UVPG,in transposing Article 5(1) of the Directive, define the information which thedeveloper must supply. However, the second sentence of Paragraph 6(2) of theUVPG states that those provisions are applicable only 'if the information listed insubparagraphs 3 and 4 is not defined in detail by a statutory provision‘.

49.

    According to the Commission, this means that other statutory provisions, definingin detail the information that must be provided by the developer, take precedenceover the provisions of the UVPG and thus replace them in such cases. TheCommission therefore considers that, by failing to lay down a general requirementin respect of the information to be supplied under the Directive, Germany hasfailed to fulfil its obligations under Article 5 and the third paragraph of Article 189of the Treaty, in conjunction with Articles 5(2) and 12(1) of the Directive.

50.

    The German Government claims that the Commission's approach is based on amisinterpretation of Paragraph 6(2) of the UVPG. That provision does notderogate from the general rule in Paragraph 4 of the UVPG, governing therelationship between that Law and other statutory provisions laid down by theFederation or the Länder within the field covered by the Directive. In accordancewith that rule, if the requirements laid down by such statutory provisions fall shortof those of the UVPG, then the latter take precedence.

51.

    Here, it must be noted that Article 5(2) of the Directive specifies the minimumscope of the information to be supplied by the developer. The Commission doesnot claim that the provisions of Paragraph 6(3) and (4) of the UVPG do notprovide a correct transposition of their counterpart in the Directive.

52.

    If, for reasons which may be linked to the federal structure of the State, otherspecific provisions of the Federation or the Länder lay down particularrequirements corresponding, possibly, to the individual needs of the various fieldsof activity covered by the Directive, it must be noted that Article 13 of theDirective allows the Member States to lay down stricter rules than those containedin the Directive. Furthermore, the general rule in Paragraph 4 of the UVPGensures, as has been explained by the German Government, that the provisions ofParagraph 6(3) and (4) are to apply when the requirements contained in specificprovisions fall short of those laid down in the corresponding provision of theUVPG.

53.

    In the light of those considerations, this part of the application must therefore bedismissed.

54.

    In view of all the foregoing, it must accordingly be held that

—    by failing to take the necessary measures to comply with the Directivewithin the prescribed period,

—    by failing to communicate to the Commission all the measures which it hastaken to comply with the Directive,

—    by not requiring an environmental impact assessment for all projects onwhich such an assessment had to be carried out in compliance with theDirective, where the consent procedure was commenced after 3 July 1988,and

—    by excluding in advance from the environmental impact assessmentrequirement whole classes of projects listed in Annex II to the Directive,

the Federal Republic of Germany has failed to fulfil its obligations under Articles2(1), 4(2) and 12(1) and (2) of the Directive.

55.

    The remainder of the application must be dismissed.

Costs

56.

    Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to beordered to pay the costs. Since the Federal Republic of Germany has beenunsuccessful in all essential respects, it must be ordered to pay the costs.

On those grounds,

THE COURT (Sixth Chamber)

hereby:

1.

    Declares that,

    —    by failing to take the necessary measures to comply with CouncilDirective 85/337/EEC of 27 June 1985 on the assessment of the effectsof certain public and private projects on the environment within theprescribed period,

    —    by failing to communicate to the Commission all the measures whichit has taken to comply with that directive,

    —    by not requiring an environmental impact assessment for all projectson which such an assessment had to be carried out in compliancewith that directive, where the consent procedure was commenced after3 July 1988, and

    —    by excluding in advance from the environmental impact assessmentrequirement whole classes of projects listed in Annex II to thatdirective,

    the Federal Republic of Germany has failed to fulfil its obligations underArticles 2(1), 4(2) and 12(1) and (2) of that directive;

2.

    Dismisses the remainder of the application;

3.

    Orders the Federal Republic of Germany to bear the costs.

KapteynMancini Murray Ragnemalm Ioannou

Delivered in open court in Luxembourg on 22 October 1998.

R. Grass

P.J.G. Kapteyn

Registrar

President of the Sixth Chamber

1: Language of the case: German.