OPINION OF ADVOCATE GENERAL
PITRUZZELLA
delivered on 13 June 2019 (1)
Case C‑261/18
European Commission
v
Ireland
(Failure to fulfil obligations — Failure to comply with the judgment of 3 July 2008, Commission v Ireland (C‑215/16) — Application for an order to pay a penalty payment and a lump sum)
1. With the action that is the subject of this Opinion, brought under Article 260(2) TFEU, the European Commission asks the Court, first, to find that, by failing to adopt the measures necessary to ensure compliance with the second ground of the operative part of the judgment of 3 July 2008 in Commission v Ireland (Case C‑215/06, EU:C:2008:380, ‘the judgment in Commission v Ireland’), Ireland has failed to fulfil its obligations under Article 260 TFEU and, second, to order Ireland to pay a lump sum and a periodic penalty payment in respect of that breach until the abovementioned judgment has been complied with in full.
I. Background to the dispute and the judgment in Commission v Ireland
2. In 2003, work began on the construction of a wind farm in Derrybrien, County Galway, Ireland (‘the Derrybrien wind farm’). This is the largest terrestrial wind-energy development in Ireland and one of the largest in Europe. The various phases of development consent for the Derrybrien wind farm are described as follows in paragraph 83 of the judgment in Commission v Ireland: ‘applications for consent relating to the first two phases of the development, each involving 23 wind turbines, were submitted on 4 and 18 December 1997. Fresh applications were lodged on 23 January 1998, since the earlier applications for consent were held to be invalid. Permission was issued on 12 March 1998. On 5 October 2000, an application was made for consent for a third phase of works relating, inter alia, to 25 turbines and service roadways, which was approved on 15 November 2001. On 20 June 2002, the developer applied for consent to alter the first two phases of the development, and those changes were authorised on 30 July 2002. In October 2003, when the consent granted for the first two phases of the works had expired, the developer applied for renewal of that consent, which was granted in November 2003.’
3. On 16 October 2003, a massive landslide occurred in Derrybrien, dislodging around half a million cubic metres of peat into the Owendalulleegh river, resulting in pollution and causing the death of about 50 000 fish. As can be seen from the case file in Case C‑215/06, two investigation reports, published in February 2004, concluded that the environmental disaster had to be linked to the construction of the Derrybrien wind farm.
4. On 21 December 2001, following a letter of formal notice dated 5 April 2001, the Commission sent Ireland a reasoned opinion stating that a number of peat extraction projects had been carried out without an environmental impact assessment having first been carried out, contrary to Directive 85/337/EEC. (2) On 7 July 2004, the Commission sent an additional letter of formal notice to Ireland which listed a series of breaches of Directive 85/337, including the construction of the Derrybrien wind farm on the basis of an incomplete environmental impact assessment. This letter was followed by an additional reasoned opinion on 5 January 2005.
5. On 11 May 2006, the Commission brought an action against Ireland under Article 226 EC. First, the Commission alleged that Ireland had failed to take the necessary measures to ensure that development projects with significant effects on the environment were, before consent was granted, subject to an environmental impact assessment procedure in accordance with Directive 85/337, and that it had allowed an application for retention permission to be made after the development had been executed in whole or in part, undermining the prevention objectives of that directive. Second, the Commission disputed the conditions under which the construction of the Derrybrien wind farm had been authorised.
6. In the judgment in Commission v Ireland, the Court upheld both complaints. In the second ground of the operative part of the judgment, the Court declared that, by failing to take all measures necessary to ensure that the ‘development consents given for, and the execution of, wind farm developments and associated works at Derrybrien, County Galway, were preceded by an assessment with regard to their environmental effects, in accordance with Articles 5 to 10 of Directive 85/337 either before or after amendment by Directive 97/11’, (3) Ireland had failed to fulfil its obligations under Articles 2, 4 and 5 to 10 of that directive.
II. Pre-litigation procedure and proceedings before the Court
7. By letter dated 15 July 2008, the Commission asked Ireland to provide, within 2 months of the date of the judgment in Commission v Ireland, information on the measures taken in order to comply with the terms of that judgment. In its reply of 3 September 2008, Ireland stated that it fully accepted the judgment in Commission v Ireland and intended to respond rapidly to it. With regard to the Derrybrien wind farm, the Irish authorities informed the Commission that the wind farm operator had agreed to provide an updated environmental impact assessment, containing the information specified in Article 5 of and Annex IV to Directive 85/337, to ‘identify, consider and assess the direct and indirect effects of the Derrybrien facility on the environment, and the interaction of those effects, and seek to identify any practicable remedial measures that remain to be undertaken in response to those effects’. That assessment was due to be completed by the end of 2008.
8. On 18 September 2008, a meeting took place between the Commission and the Irish authorities, during which the Irish authorities reiterated their commitment to ensure that a remedial environmental impact assessment would be carried out in respect of the Derrybrien wind farm. At that meeting, the possibility of conducting that assessment without calling into question the existing consent was discussed and a decision was made to await the adoption of the Irish legislative amendment planned for the regularisation procedure in order to comply with the first ground of the operative part of the judgment in Commission v Ireland.
9. On 10 March 2009, the Irish authorities informed the Commission that the planned legislative amendment would involve the introduction of a ‘substitute consent’ procedure (‘the substitute consent procedure’), which in exceptional cases would allow for the regularisation of consents granted in breach of Directive 85/337. On 17 April 2009, in accordance with the undertaking given at a meeting held on 18 March 2009, the Irish authorities forwarded to the Commission a framework document entitled ‘ECJ judgement in case C‑215/06: Draft framework response by Ireland 17 April 2009’, which set out the means by which Ireland intended to comply with the judgment in Commission v Ireland. Section D of that document gave a description of the substitute consent procedure which was to be included in the planned legislative amendment, due to be adopted by the end of 2009. Section E of the framework document, entitled ‘Specific proposals for the Derrybrien wind farm’, stated that the wind farm operator would use this procedure to apply for substitute consent.
10. On 26 June 2009, the Commission sent Ireland a letter of formal notice under Article 228(2) EC, stating that it had received no further information on how the assessment of the environmental impact of the Derrybrien wind farm was proceeding. On 9 September 2009, Ireland replied to the letter of formal notice, stating, inter alia, that the legislative amendment introducing the substitute consent procedure would shortly be enacted and confirming that the operator of the Derrybrien wind farm had agreed to apply for substitute consent and conduct an environmental impact assessment as soon as the new legislation had been enacted.
11. In the absence of any further information on the adoption of the proposed measures, the Commission sent a further letter of formal notice to Ireland on 22 March 2010, to which Ireland replied by letters of 18 May, 22 July and 13 September 2010. In their letter of 22 July 2010, the Irish authorities indicated that the new legislation, approved by Parliament, would enter into force at the end of July. Regarding the Derrybrien wind farm, the Irish authorities repeated that, as soon as the substitute consent procedure was operational, the wind farm operator would submit an application for substitute consent along with a remedial environmental impact assessment, ‘including information on specific measures which may be needed in order to remedy any adverse environmental impacts that occurred as a result of carrying out the project’. In their letter of 13 September 2010, the Irish authorities informed the Commission of the adoption of the Planning and Development (Amendment) Act 2010 (No 30 of 2010) (‘PDAA’). Part XA of that act sets out the substitute consent procedure.
12. On 19 September 2012, the Commission wrote to the Irish authorities asking them to provide further details of the legislative measures notified so as to enable it to assess whether they complied with the judgment in Commission v Ireland. In addition, having become aware of doubts concerning the willingness of the Derrybrien wind farm operator to apply for substitute consent, the Commission asked the Irish authorities for an update on that question. By letter dated 13 October 2012, the Irish authorities confirmed that the current operator of the Derrybrien wind farm was refusing to undergo the substitute consent procedure, on account of the costs involved and fears that the consents might be withdrawn. The letter explained that, following a more detailed analysis of EU law, the Irish authorities were of the view that that law did not mean that the consents granted for the construction of the Derrybrien wind farm, which had since become final, should be called into question and that the principles of legal certainty and of the non-retroactive effect of laws, as well as the case-law of the Court on the procedural autonomy of the Member States, precluded a solution involving the withdrawal of those consents. In those circumstances, the Irish authorities were of the opinion that any attempt by Ireland to force the operator of the Derrybrien wind farm to submit to the substitute consent process would almost certainly be blocked by the courts, which would give precedence to the rights of that operator enshrined in the Irish Constitution. For those reasons, the Irish authorities concluded that a remedial environmental impact assessment of the Derrybrien wind farm could be obtained only on the basis of voluntary cooperation by the wind farm operator. This position was reiterated in the letter from the Irish authorities to the Commission dated 21 December 2012.
13. On 10 May 2013, the Irish authorities informed the Commission that they had contacted the operator of the Derrybrien wind farm to explore the option of a ‘non-statutory, independently assessed review’, to be conducted on the basis of a ‘clear and concise memo of understanding’. By letter dated 16 December 2013, the Irish authorities informed the Commission that the operator of the Derrybrien wind farm, although ‘strongly of the view that they … are not obligated to participate in such a process’, had agreed to carry out the assessment. Following that letter, on 8 May and 1 August 2014 the Irish authorities sent a document entitled ‘Derrybrien Environmental Review — Concept’ (‘the concept paper’), which stated that an environmental impact assessment, covering the points set out in an annex to that document and defined on the basis of a ‘side agreement’, would be carried out by an independent expert, engaged directly by the Irish Government, whose work would be overseen by a steering committee. The assessment would be carried out without prejudice to existing consents and would not be subject to judicial review. On 6 August 2014, the Commission’s services informed the Irish authorities that the arrangements set out in the abovementioned document did not meet the requirements of Directive 85/337.
14. On 15 September 2014, the Irish authorities informed the Commission that they were working on a memorandum of understanding (MoU) with the operator of the Derrybrien wind farm. A draft MoU was sent to the Commission on 11 March 2015. At a package meeting on 17 November 2015, the Commission and the Irish authorities agreed that a final version of the MoU would be sent to the Commission without delay.
15. In the absence of any further observations, on 18 January 2016 the Commission asked the Irish authorities to send a final version of the MoU. On 7 March 2016, a new version of the MoU was sent to the Commission, with an indication that a number of issues remained under discussion with the operator of the Derrybrien wind farm. By email dated 6 June 2016, the Commission’s services informed the Irish authorities of various points in the new version of the MoU that needed to be amended. Following a meeting held on 29 November 2016, the Commission’s services informed the Irish authorities by email on 15 December 2016 that the final text of the signed MoU should reach the Commission by the end of 2016, failing which the Commission would refer the matter back to the Court in early 2017. On 22 December 2016, Ireland sent the Commission a new version of the concept paper, which, according to the Irish authorities, fulfilled the criteria set out in Directive 85/337, as well as a new framework document dated 2 December 2015. The accompanying letter stated that the two documents were due to be signed at the end of January 2017.
16. On 2 October 2017, the Commission wrote to the Irish authorities informing them that, in the absence of progress in the implementation of the second ground of the operative part of the judgment in Commission v Ireland, it intended to refer the matter back to the Court. On 16 October 2017, Ireland replied, submitting a new concept paper signed on 11 October 2017, and stated that it would await the Commission’s response to that document. The new version of the concept paper was not produced before the Court. However, in its action, the Commission stated that that document referred to a bilateral MoU between the operator of the Derrybrien wind farm and the Irish authorities, which had not been sent to it.
17. By letter dated 13 December 2017, the Commission confirmed that the progress hitherto made was insufficient for the purpose of complying with the second ground of the operative part of the judgment in Commission v Ireland, and reaffirmed that a final version of the MoU had been expected by the end of 2016. On 9 January 2018, the Irish authorities replied that the MoU had been incorporated into the concept paper at the Commission’s request, that it had been signed and that they were awaiting the go-ahead from the Commission to proceed with the non-statutory environmental impact assessment. By letter of 26 January 2018, the Commission replied that, irrespective of formal matters pertaining to the documents sent by the Irish authorities, in 9 years no substantive progress had been made in establishing a process that might lead to a robust environmental impact assessment of the Derrybrien wind farm, and for that reason, the Commission considered that it had entered a new phase in which it was no longer prepared to broker a ‘settlement out of court’. The Commission also suggested that Ireland reconsider the option of requiring the operator of the Derrybrien wind farm to undergo the substitute consent procedure. On 1 February 2018, the Irish authorities replied, regretting the deterioration in cooperation with the Commission and claiming that the Commission had failed to take a position on the documents sent by Ireland on 22 December 2016, which were to be considered final, thus further delaying the start of the environmental impact assessment.
18. Taking the view that Ireland had failed to adopt all the measures necessary to ensure full compliance with the second ground of the operative part of the judgment in Commission v Ireland, on 13 April 2018 the Commission brought the action covered by this Opinion.
19. The parties exchanged two sets of written pleadings and presented oral submissions at the hearing on 1 April 2019. Under Article 62(2) of the Rules of Procedure, at the hearing the parties were asked to answer certain written questions put by the Judge-Rapporteur. By letter lodged with the Court Registry on 1 April 2019, before the start of the hearing, the Commission informed the Court that on 29 March 2019 it had received a communication from the Irish authorities stating that the operator of the Derrybrien wind farm had agreed to cooperate in the initiation of the substitute consent procedure provided for in the PDAA. The letter sent by the Irish authorities to the Commission on 29 March 2019 was forwarded by the Commission to the Court Registry on 1 April 2019. The letter stated that the substitute consent procedure would commence as soon as possible in order to ensure that an ex post environmental impact assessment would be carried out in accordance with the relevant legislation.
III. The action
A. Failure to fulfil obligations
1. Arguments of the parties
20. The Commission is of the opinion that Ireland has failed to take the measures necessary to comply with the second ground of the operative part of the judgment in Commission v Ireland. Despite claiming that it was willing to respond rapidly to the judgment, during the 10-year period between the Court’s ruling and the action that is the subject of this Opinion, Ireland has confined itself to submitting various proposals in order to remedy the failure to fulfil its obligations in relation to the Derrybrien wind farm, without implementing any of them.
21. First, Ireland observes that it is apparent from the grounds and the operative part of the judgment in Commission v Ireland that, broadly speaking, the failure to fulfil obligations identified by the Court concerns the deficient transposition of Directive 85/337, whereas, with regard to the Derrybrien wind farm, ‘no relief was sought, nor granted’.
22. Second, Ireland notes that the obligation to address the failure to carry out an environmental impact assessment for a specific project is subject to limits resulting from the procedural autonomy of the Member States. Moreover, in its judgment of 17 November 2016 in Stadt Wiener Neustadt (C‑348/15, EU:C:2016:882, paragraphs 41 and 42), the Court held that EU law does not preclude the Member State concerned from setting reasonable time limits for bringing proceedings against consents issued in breach of the obligation to carry out a prior environmental impact assessment laid down in Directive 85/337. In that context, Ireland points out that the consents issued for the construction of the Derrybrien wind farm and related activities could have been set aside only by the High Court after a judicial review of the decision to grant the consent, following a claim brought within the statutory time limit — in other words, within 8 weeks of the date of the decision. (4) However, since the statutory time limit for contesting the validity of those consents has now expired and did so several years before the Commission brought the action for failure to fulfil obligations which led to the adoption of the judgment in Commission v Ireland, the Irish authorities were under no obligation to withdraw them.
23. Third, Ireland observes that to accept that a judgment in which the Court upholds an action for failure to fulfil obligations under Article 258 TFEU, at the end of an infringement procedure involving only the Commission and the Member State concerned, could invalidate an administrative provision that has become final under national law would infringe the legitimate expectations of the addressees of that measure, particularly in the circumstances of the present case, where almost 10 years elapsed between the grant of the initial development consent and the Court’s ruling in the judgment in Commission v Ireland.
24. Fourth, Ireland submits that the pre-litigation procedure shows that the delay in adopting measures implementing the judgment in Commission v Ireland is due to the complexity of the underlying legal issues, particularly as regards respect for legal certainty and the protection of the legitimate expectations and property rights of the operator of the Derrybrien wind farm, rather than to a lack of cooperation on the part of Ireland. That Member State notes that, following the proposal made by the Irish authorities in 2013 to carry out a non-statutory environmental impact assessment, those authorities sent the Commission a concept paper by letter dated 22 December 2016 in order to obtain the formal approval of the Commission, which was not forthcoming. The period that elapsed between the sending of that document and the sending of the signed version of the same document in October 2017 was attributable to a misunderstanding between the Irish authorities and Commission officials, if not to an actual lack of cooperation on the part of the Commission. Ireland also submits that the implementation of the judgment in Commission v Ireland required a process to be instigated which was outside the scope of the provisions transposing Directive 85/337. In addition, it argues that the Commission was not in a position, even in the course of the proceedings, to identify the specific measures that Ireland was required to take to nullify the effects of the failure to fulfil obligations found in the second ground of the operative part of that judgment. In such circumstances, Ireland should not be penalised for having taken the time required to implement the appropriate measures or for not having correctly and promptly identified such measures.
25. Lastly, Ireland claims that it has now fully implemented the second ground of the operative part of the judgment in Commission v Ireland, given the progress made with the non-statutory environmental assessment process envisaged in the concept paper.
2. Legal assessment
(a) The extent of the failure to fulfil obligations found in the second ground of the operative part of the judgment in Commission v Ireland
26. Under Article 260(1) TFEU, if the Court finds that a Member State has failed to fulfil an obligation under the Treaties, that Member State is required to take the necessary measures to comply with the judgment of the Court.
27. In the grounds of the judgment in Commission v Ireland, the Court analysed separately the complaints raised by the Commission concerning, first, the failure property to transpose Directive 85/337 into Irish law (paragraphs 34 to 81) and, second, the circumstances in which the consents for the construction of the Derrybrien wind farm and the carrying out of the associated works were granted (paragraphs 82 to 112). Having upheld both complaints, the Court found in the operative part of the judgment that Ireland had failed to fulfil its obligations under the directive on two separate counts.
28. Admittedly, the failure to fulfil obligations resulting from failure to carry out an environmental impact assessment for the Derrybrien wind farm project in accordance with Directive 85/337 is the consequence of the application to a specific case of provisions of Irish law which the Court found to be inconsistent with the provisions of the directive. However, contrary to what Ireland seems to claim, this does not mean that that failure — which is the subject of a separate finding by the Court in the second ground of the operative part of the judgment in Commission v Ireland — should be regarded as included in the finding made in the first ground. (5)
29. It follows that it was not sufficient for Ireland to amend its legislation to bring it into line with Directive 85/337 in order to give effect to the second ground of the operative part of that judgment, since otherwise that would deprive the independent finding of failure to fulfil obligations contained in that ground of any practical effect. Rather, that Member State was required to adopt separate measures, specifically intended to remedy the infringement of the directive resulting from the project for the construction of the Derrybrien wind farm. The fact — pointed out by Ireland — that the judgment in Commission v Ireland did not specify the nature of those measures does not, as the Commission rightly contends, call into question the Court’s finding of failure to fulfil obligations and the resulting obligations for that Member State.
(b) The measures necessary to implement the second ground of the operative part of the judgment in Commission v Ireland
(1) The purpose of the environmental impact assessment provided for in Directive 85/337
30. Directive 85/337 requires the Member States to adopt the necessary measures to ensure that an environmental impact assessment is carried out in accordance with principles harmonised at EU level for projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location. (6) The main purpose of this assessment is to gather the information necessary to enable the competent authorities of the Member States to identify, during the development consent procedure for such projects, the environmental aspects liable to be adversely affected and thus make an informed decision on whether to grant or refuse the relevant planning consents. (7)
31. The logic underlying Directive 85/337 is undoubtedly the prevention of environmental damage, (8) and, as part of that logic, the obligation to carry out a prior assessment of the environmental effects of a project is justified by the fact that, at a decision-making level, it is necessary for the competent authorities to take effects on the environment into account at the earliest possible stage in all the technical planning and decision-making processes, with a view to preventing ‘the creation of pollution or nuisances at source, rather than subsequently trying to counteract their effects’. (9) However, it is also apparent from the text of the directive that the environmental impact assessment is also intended to enable the competent authorities of the Member States, in the event of development consent being granted, to make the consent subject to compliance with conditions that reduce the adverse effects of the project on the environment and, more generally, to take measures to ensure that the resulting structure is used in accordance with criteria of sound environmental management. (10)
32. The Court has on a number of occasions held that Directive 85/337 ‘has a wide scope and a broad purpose’, (11) recognising that it would be ‘simplistic’ and contrary to the approach taken by the EU legislator if the ‘overall assessment’ of the environmental impact referred to in that directive took account ‘only of the direct effects of the works envisaged themselves, and not of the environmental impact liable to result from the use and exploitation of the end product of those works’. (12)
33. It follows that, contrary to what Ireland seems to suggest, the environmental impact assessment required by Directive 85/337 applies not only at the time of the decision to authorise the project in question, but also subsequently, during construction and use of the resulting structure, providing the basis for optimal management of the environmental risks associated with its use and mitigating any adverse effects that such use might have on the various aspects taken into account in the assessment.
34. Therefore, the logic of prevention underlying Directive 85/337 cannot provide a Member State that fails to comply with the obligation to ensure that consent for a project likely to have significant effects on the environment is preceded by an environmental impact assessment with arguments to avoid adopting the measures necessary to remedy such non-compliance at a later date.
(2) Measures necessary to remedy the failure to carry out an environmental impact assessment in accordance with Directive 85/337
35. The Court has previously stated that, although Directive 85/337 (like Directive 2011/92, currently in force) does not contain provisions on the consequences flowing from infringement of the obligation to carry out a prior assessment of the effects on the environment, it is nevertheless incumbent upon Member States, in accordance with the principle of sincere cooperation enshrined in Article 4 TEU, to nullify the unlawful consequences of the infringement and it is therefore for the competent authorities of each Member State ‘to take, within the sphere of their competence, all the general or particular measures necessary to ensure that projects are examined in order to determine whether they are likely to have significant effects on the environment and, if so, to ensure that they are subject to an impact assessment’. (13) Moreover, this obligation has also been affirmed by the Court in relation to cases where the project in respect of which an environmental impact assessment had not been carried out, in breach of Directive 85/337, had been completed and the resulting structure was being used. (14) The Court further clarified that measures to nullify the unlawful consequences of a breach of the obligation to carry out a prior environmental impact assessment included, in particular, ‘the revocation or suspension of a consent already granted, in order to carry out an assessment of the environmental effects of the project in question as provided for by Directive 85/337’. (15) Where the adoption of such measures is provided for by national law, the competent authorities of such a Member State are — in accordance with the principle of sincere cooperation and with due regard for the principles of equivalence and effectiveness — required to adopt them. (16)
36. It follows that, in line with the objectives of Directive 85/337 referred to in points 31 to 33 of this Opinion, in the event of breach of the obligation to carry out a prior environmental impact assessment of a project likely to have significant effects on the environment, Member States are required to adopt all necessary measures to ensure that such an assessment, or a remedial assessment, is carried out after consent has been granted, even if the project is under way or has already been completed. Where national law allows, the competent national authorities are required to suspend or set aside the consent already granted, so as to enable it to be regularised or a new consent to be granted that meets the requirements of the directive.
37. The requirement for the Member State concerned to ensure that an a posteriori environmental impact assessment is carried out is even more important in a situation such as that analysed in this Opinion, where the project in question, in particular because of its size, is likely to have particularly significant and permanent effects on the environment, its execution has already caused significant environmental damage, and the Court has found there to be a breach of the directive in infringement proceedings.
38. Ireland’s argument that, in order to implement the second ground of the operative part of the judgment in Commission v Ireland, Ireland was under no obligation either to revoke the consents held by the operator of the Derrybrien wind farm or to require that operator to carry out (or consent to there being carried out) an a posteriori environmental impact assessment must therefore be rejected.
(c) The grounds of justification put forward by Ireland
(1) Limitation of procedural autonomy and the legitimate expectations of the operator of the Derrybrien wind farm
39. To contest the Commission’s claim that it has failed to fulfil its obligations, Ireland relies, first, on the principle of procedural autonomy of the Member States, and, referring to the judgment of 17 November 2016, Stadt Wiener Neustadt (C‑348/15, EU:C:2016:882), argues that Ireland was not required to call into question the validity of the consents granted for the construction of the Derrybrien wind farm, which became final under Irish law several years before the Court’s ruling in the judgment in Commission v Ireland.
40. I would point out in that connection that, in the judgment of 7 January 2004, Wells (C‑201/02, EU:C:2004:12, paragraph 65), in the context of a reference for a preliminary ruling concerning proceedings brought by an individual against the refusal of the national authorities to revoke or amend a consent for mining operations granted without a prior environmental impact assessment, (17) the Court held that the obligation of the competent national authorities to revoke or suspend a consent granted in breach of Directive 85/337 was limited by the principle of procedural autonomy of the Member States. (18) On the basis of that principle, in the absence of EU legislation, it is for the national legal system of each Member State to lay down the procedural rules governing actions for protection of the rights of individuals under EU law, which must not be less favourable than those governing similar domestic situations (the principle of equivalence) and must not be framed in such a way as to make it in practice impossible or excessively difficult to exercise those rights (the principle of effectiveness). (19)
41. In its judgment of 17 November 2016, Stadt Wiener Neustadt (C‑348/15, EU:C:2016:882, paragraphs 41 and 42), cited by Ireland, the Court stated that EU law, which does not lay down any rules on the time limits for bringing proceedings in respect of consents issued in breach of the obligation to carry out a prior environmental impact assessment, set out in Article 2(1) of Directive 85/377, does not preclude, in principle and subject to compliance with the principle of equivalence, the Member State concerned from setting ‘reasonable time limits for bringing proceedings in the interests of legal certainty, which protects both the individual and the administrative authority concerned’. (20)
42. Contrary to the argument put forward by Ireland, neither the principle of procedural autonomy of the Member States nor the fact that the development consents for the Derrybrien wind farm had become final following the expiry of the time limit for bringing proceedings for individuals in respect of such measures may be relied upon by Ireland to escape its obligation to comply fully with the second ground of the operative part of the judgment in Commission v Ireland.
43. In order to comply, that Member State was required to adopt all general or particular measures necessary to remedy the failure to carry out an environmental impact assessment in accordance with Directive 85/337, including, in particular, measures to ensure that an ex post environmental impact assessment was carried out.
44. In principle, the expiry of procedural time limits for bringing an action to protect individuals from measures adopted by the administrative authorities does not affect the latter’s power to protect its own position by withdrawing an unlawful measure or suspending its implementation, nor does it preclude the adoption of measures requiring the holder of a planning consent to regularise it, if necessary by fulfilling obligations not previously met, or to adapt the works completed on the basis of that consent so that they comply with certain conditions or criteria imposed on grounds of public interest. In accordance with the principle of sincere cooperation, all Member State authorities are obliged, each within the framework of their respective powers, to adopt such measures and to exercise the powers vested in them if, in so doing, they are able to remedy a breach of EU law.
45. It is fine that, in response to a question put by the Court at the hearing, Ireland’s representative explained that Irish law does not allow for the possibility that planning consents, such as those issued for the construction of the Derrybrien wind farm, which have become final, may be revoked by the administrative authorities, under a system that allows them to withdraw, suspend or modify its own measures on grounds of public interest, and confirmed that such consents may be invalidated only by a ruling of the High Court, which was no longer able to intervene since the time limit for bringing proceedings had expired. However, even this fact does not, in my view, justify Ireland’s position that it was not required in the present case to adopt any specific measure to remedy the failure to fulfil obligations found by the Court.
46. I would observe that under Irish law as it currently stands, a procedure is available for the regularisation of consents granted in breach of the obligations laid down in Directive 85/337, which is applicable in the circumstances of the present case.
47. According to section 177B(1) and (2)(b) of Part XA of the PDAA, introduced by the 2010 legislative amendment, where development consent for a project requiring an environmental impact assessment has been found, by ‘final judgment of … the Court of Justice of the European Union’, to be unlawfully granted, the competent planning authority must give notice in writing directing the project manager to apply for substitute consent. Paragraph 2(c) of that section states that the notice is to require the project manager to furnish a remedial environmental impact statement with the application.
48. Ireland interprets this provision as not applying in circumstances such as those in the present case, where the planning consent granted has become final. However, this limitation is not apparent from the wording of section 177B of the PDAA and cannot be inferred from a literal reading of that provision. On the contrary, the interpretation advocated by Ireland is undermined by the fact that paragraph 1 of that provision does not distinguish between a Court judgment given in the context of a reference for a preliminary ruling, which is part of a national procedure designed to call into question the validity of the consent in question, and a judgment given in the context of infringement proceedings, which may take place, as is the case with the judgment in Commission v Ireland, after the time limit for bringing proceedings in respect of the administrative measure has expired or after a domestic appeal against the measure has been definitively rejected.
49. I would also point out that in its recent ruling in a case concerning, inter alia, the application of section 177B of the PDAA to the owner of a quarry the operation of which commenced in the 1960s, at a time when there was no need to obtain planning consent, the Supreme Court (Ireland) held that section 177B applied to a special category of projects for which a consent previously granted and otherwise valid was found by the Court of Justice to have been granted unlawfully owing to an incomplete environmental impact assessment, (21) without mentioning any limitation resulting from the finality or otherwise of the consent. Contrary to the view held by Ireland, it was by no means certain therefore that any attempt to subject the operator of the Derrybrien wind farm to the procedure laid down in section 177B of the PDAA would be blocked by the Irish courts. (22)
50. Lastly, I would point out that the restrictive interpretation currently maintained by Ireland was put forward only during the pre-litigation procedure in October 2012. Previously, the Irish authorities had consistently informed the Commission, both before and after the entry into force of the PDAA, of their intention to initiate the substitute consent procedure in order to comply with the ground of the operative part of the judgment in Commission v Ireland concerning the Derrybrien wind farm. As Ireland confirmed at the hearing, Galway County itself served a notice under section 177B of the PDAA on the operator of Derrybrien wind farm on 12 October 2011, before withdrawing it a few days later, thus showing that it had interpreted that provision, at least initially, differently to that Member State.
51. In those circumstances, Ireland cannot reasonably claim that Irish law does not provide the means for reviewing consents such as those relating to the Derrybrien wind farm. Indeed, the procedure provided for in section 177B of the PDAA represents one such means. The Irish authorities were therefore under an obligation to initiate that procedure in order to comply fully with the second ground of the operative part of the judgment in Commission v Ireland.
52. In my opinion, the points raised by Ireland concerning the protection of the legitimate expectations of the operator of the Derrybrien wind farm cannot preclude such a compliance measure.
53. First, the main purpose of the substitute consent procedure provided for by the PDAA is to allow, in certain well-defined circumstances, the review of consents granted in breach of Directive 85/337 and the projects for which they were granted, and to ensure that they comply with the criteria imposed by the directive, in particular regarding the need to carry out an environmental impact assessment. Therefore, this procedure does not necessarily entail the withdrawal of consents subject to review, resulting in the cessation of the authorised activities, but may simply require their regularisation, together with the obligation to take any corrective measures deemed necessary. (23)
54. Second, in its judgment of 17 November 2016, Stadt Wiener Neustadt (C‑348/15, EU:C:2016:882), the Court stated that ‘projects in respect of which the consent can no longer be subject to challenge before the courts, because of the expiry of the time limit for bringing proceedings laid down in national legislation’ cannot be ‘purely and simply deemed to be lawfully authorised as regards the obligation to assess their effects on the environment’, (24) with the consequence that, where a measure exists in national law to ensure that such an assessment is carried out, the competent authorities of the Member State concerned are required to use it. (25) It follows that the operator of such a project cannot rely on the existence of a legitimate expectation as regards the validity of consents granted in breach of the obligation to carry out a prior environmental impact assessment and no longer subject to domestic judicial review as a bar to the obligation to carry out such an assessment a posteriori, imposed on the operator by a measure adopted by the national authorities to comply with a judgment of the Court establishing a failure to fulfil obligations. This applies in particular to the operator of the Derrybrien wind farm, which, as the case file shows and was confirmed at the hearing by Ireland, is a wholly owned independent subsidiary of the Electricity Supply Board (ESB), which in turn is 95% owned by the Irish State. (26)
55. The period that elapsed between the grant of the consents in question and the judgment in Commission v Ireland does not alter that conclusion. Moreover, I would observe that although the judgment was delivered in 2008 and the last consent for the Derrybrien wind farm became final in 2003, at the time that consent was granted, infringement proceedings had already been initiated against Ireland under Article 226 EC, which, although not yet directly calling into question the wind farm project, alleged a systematic breach by that Member State of its obligations under Directive 85/337. I wonder to what extent a public operator can claim a legitimate expectation as regards the validity of a consent that does not comply with the directive and was granted in such circumstances.
56. Lastly, even if Ireland’s view were accepted, to the effect that the enforcement procedure provided for in section 177B of the PDAA is not applicable in the present case, given the finality of the consents in question, section 177C of that act allows the operator of a project authorised without a prior environmental impact assessment to apply for the substitute consent procedure. The PDAA therefore offered the Irish authorities an alternative to a measure imposed by the authorities to remedy the failure to carry out an environmental impact assessment of the Derrybrien wind farm project, (27) which, in view of the control exercised by the State over the wind farm operator, the Irish authorities could have used without major difficulties.
(2) The complexity of the legal issues raised and the lack of cooperation from the Commission
57. I disagree with Ireland that the implementation of the second ground of the operative part of the judgment in Commission v Ireland entailed any particular difficulty as regards the identification of the measures to be adopted to nullify the effects of non-compliance, or that it raised legal questions of such complexity as to justify a virtual stalemate for more than 10 years.
58. As the case file shows, from the initial exchange of correspondence between the Commission and the Irish authorities, and throughout the pre-litigation procedure, the need for an a posteriori environmental impact assessment was identified by both parties as the only measure capable of remedying the failure to carry out such an assessment beforehand. The Commission and Ireland discussed, in the final stage of the pre-litigation procedure, how that assessment was to be carried out, although it is not apparent from the case file that they considered alternative implementation measures.
59. It was only towards the end of 2012 (in other words, some 4 years after the delivery of the Court’s judgment in Commission v Ireland) that the Irish authorities — which had hitherto given constant assurances regarding the application of the substitute consent procedure to the operator of the Derrybrien wind farm — raised concerns over the protection of legal certainty and the legitimate expectations of the operator, at the same time proposing an alternative solution to the Commission, namely a ‘non-statutory’ environmental impact assessment. However, even the implementation of that solution failed to make substantial progress. Despite the claims made by Ireland, this was not due to a lack of cooperation on the part of the Commission.
60. Contrary to what that Member State maintains, I do not consider that the length of time that elapsed between 22 December 2016 and 2 October 2017 — the dates on which the concept paper referred to in point 15 of this Opinion was submitted — can be blamed on the Commission. First, as Ireland itself admits, the letter accompanying the first submission of that document does not state that the Irish authorities would await formal approval from the Commission before proceeding to the next stage. Second, the version of that document sent in December 2016 was not signed by the operator of the Derrybrien wind farm, which justified doubts as to the seriousness of the undertaking given by the operator. Lastly, without being contradicted by Ireland, the Commission argues that the content of the document sent in December 2016 was substantially the same as that of a previous document on which it had made various observations which would appear not to have been taken into account by the Irish authorities.
61. More generally, in my view, the Commission demonstrated, throughout the entire pre-litigation procedure, that it was ready and willing to cooperate, almost to the point of excess, particularly given the dramatic change of direction by the Irish authorities as regards the applicability of the substitute consent procedure to the operator of the Derrybrien wind farm more than 4 years after the judgment in Commission v Ireland.
62. In the light of the foregoing, it is my view that the prolongation and the failure of the pre-litigation procedure cannot be blamed, even in part, on the complexity of the legal issues raised, or on any uncertainty on the part of the Commission as to the identification of the measures necessary to comply with the judgment in Commission v Ireland, or on a lack of cooperation on the part of that institution.
(d) Conclusion as to whether there has been a failure to fulfil obligations
63. More than 10 years after the judgment in Commission v Ireland, not only has no environmental impact assessment been carried out regarding the construction works of the Derrybrien wind farm and the related activities in accordance with the requirements laid down in Directive 85/337 — although Ireland has never claimed that it is not possible to carry out such an assessment — but also no concrete measures have been taken with a view to obtaining such an assessment. Indeed, having stated in the defence that it was on the verge of obtaining a non-statutory a posteriori assessment from the operator of the wind farm, Ireland announced, prior to the hearing in this case, that as in a game of snakes and ladders, it was going ‘back to square one’, informing the Commission that it had once again changed its mind about the possibility of using the substitute consent procedure. In those circumstances, and on the basis of all the foregoing considerations, it can only be concluded, in my view, that there was a genuine failure to fulfil obligations by Ireland and that the justifications put forward by it must be rejected.
B. The financial penalties
64. In its action, the Commission proposes that the Court should impose, pursuant to Article 260(2) TFEU and on the basis of its Communication of 13 December 2005 on the application of Article 228 EC (‘the 2005 Communication’), (28) a penalty payment and a lump sum for the failure to comply with the judgment in Commission v Ireland.
65. In its reply, Ireland submits that no penalty should be imposed on it, in so far as the judgments of 26 July 2017, Comune di Corridonia and Others (C‑196/16 and C‑197/16, EU:C:2017:589), and of 28 February 2018, Comune di Castelbellino (C‑117/17, EU:C:2018:129), upon which the Commission relies, represented a departure from previous case-law. In my view, that argument should be rejected in the light of the considerations set out in points 26 to 38 of this Opinion.
1. The penalty payment
66. As noted in point 63 of this Opinion, at least at the time of the hearing before the Court, Ireland had not yet complied with the second ground of the operative part of the judgment in Commission v Ireland. Therefore, if the infringement persists at the date of the decision in these proceedings, (29) the imposition of a penalty payment under Article 260(2) TFEU must be considered justified. (30)
67. With regard to the amount of the penalty, it is for the Court to set the penalty payment in such a way that it is both appropriate to the circumstances and proportionate to the infringement established and the ability of the Member State concerned to pay. (31) In the Court’s assessment, the essential criteria to be taken into account are the duration of the infringement, its degree of seriousness and the ability of the Member State concerned to pay. In applying those criteria, the Court is required to have regard, in particular, to the effects on public and private interests of failure to comply and to the urgency with which the Member State concerned must be induced to fulfil its obligations. (32)
68. The Commission proposes the application of a daily penalty payment corresponding to a basic flat-rate amount of EUR 700, multiplied by coefficients for seriousness, duration and deterrence, which gives a total of EUR 12 264 per day from the date of delivery of the judgment in this case until full compliance with the judgment in Commission v Ireland.
69. As regards seriousness, the Commission considered, first, the importance of the EU rules infringed and the context in which that infringement occurred; second, the consequences of that infringement and the repeated nature of the infringements of Directive 85/337 by Ireland; (33) and third, Ireland’s lack of cooperation over a particularly long period of time. In the light of those factors, and bearing in mind that the failure to comply with the judgment in Commission v Ireland concerns only part of that judgment, the Commission proposes a coefficient for seriousness of 2, on the scale of 1 to 20 set out in the 2005 Communication.
70. All the factors taken into account by the Commission in assessing the seriousness of the failure to fulfil the obligations in question are, in my view, relevant. On the other hand, the arguments put forward by Ireland to the effect that consideration should be given to the efforts made by Ireland to comply with the Commission’s requests and the Commission’s lack of cooperation must be rejected. In this regard, I refer to points 58 to 62 of this Opinion.
71. Ireland further argues that the breach established by the Court in the second ground of the operative part of the judgment in Commission v Ireland is not the cause of the environmental damage resulting from the landslides in 2003, and that this factor should not therefore be taken into account when assessing the seriousness of the infringement. On this point, I note that it is clear from the judgment in Commission v Ireland that that Member State has never disputed the fact that the landslides were caused by the construction works for the Derrybrien wind farm (see paragraph 93). Accordingly, it cannot be ruled out that a prior assessment of the environmental effects, highlighting the risks associated with those works or recommending the adoption of particular preventive measures, might have prevented the damage that occurred. Therefore, the consequences of the landslides in 2003 must be taken into account when assessing the seriousness of the infringement committed by Ireland, although their importance in that assessment should not be overestimated.
72. As regards duration, the Commission applied the maximum coefficient of 3 set out in the 2005 Communication, taking into account the period of 114 months that elapsed between the date of the judgment in Commission v Ireland and 25 January 2018, the date on which it brought the present action. According to settled case-law, although Article 260(1) TFEU does not specify the time limit for compliance with a judgment, it follows from settled case-law that the importance of immediate and uniform application of EU law means that the process of compliance must be initiated immediately and completed as soon as possible. (34) In the present case, Ireland’s alleged failure to fulfil obligations has been ongoing for more than 10 years, with no substantial progress being made in obtaining an assessment of the environmental effects of the construction of the Derrybrien wind farm and the associated works. This period is, without doubt, certainly excessive. Even if it is accepted that compliance with the second ground of the operative part of the judgment in Commission v Ireland requires the substitute consent procedure to be initiated, as the Member State contends, the failure to fulfil obligations has so far lasted more than 7 years — that is to say, in any event, a considerable period of time.
73. Lastly, the Commission has applied the deterrent factor of 2.92 set for Ireland in the 2005 Communication, which has not been contested by Ireland.
74. In the light of the foregoing, I propose that the Court impose a daily penalty payment of EUR 10 000.
2. The lump sum payment
75. In accordance with the 2005 Communication, the Commission proposes that the Court apply, as a lump sum payment, an amount corresponding to a basic flat-rate amount of EUR 230, multiplied by the seriousness factor and the deterrent factor ‘n’ — in other words, EUR 1 343.20 for each day between 3 July 2008 and the date of compliance with the judgment in Commission v Ireland or, in the absence of compliance, the date of the judgment in this case, with a minimum fixed lump sum of EUR 1 685 000. (35) In view of the considerations set out in point 68 of this Opinion, I propose that the Court reduce that amount to EUR 1 000.
IV. Conclusion
76. In the light of all the foregoing considerations, I propose that the Court should:
– declare that, by failing to take all the measures necessary to comply with the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:3807), Ireland has failed to fulfil its obligations under Article 260(1) TFEU;
– if the failure to fulfil obligations persists until the date of delivery of the Court’s judgment in the present case, order Ireland to pay to the European Commission, into the ‘European Union own resources’ account, a penalty payment of EUR 10 000 for each day of delay in implementing the measures necessary to comply with the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:3807), from the date of delivery of judgment in the present case until the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:3807), has been complied with in full;
– order Ireland to pay to the European Commission, into the ‘European Union own resources’ account, a lump sum of EUR 1 000 for each day between the date of delivery of the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:3807), and the date on which that judgment is complied with or, if that judgment is not complied with, the date on which judgment is delivered in the present case;
– order Ireland to pay the costs.