Case C-427/07

Commission of the European Communities

v

Ireland

(Failure of a Member State to fulfil obligations – Assessment of the effects of projects on the environment – Directive 85/337/EEC – Access to justice – Directive 2003/35/EC)

Summary of the Judgment

1.        Environment – Assessment of the effects of certain projects on the environment –Directive 85/337

(Council Directive 85/337, as amended by Directive 97/11, Arts 2(1) and 4(2) and Annex II, para. 10(e))

2.        Acts of the institutions – Directives – Implementation by Member States

(Council Directives 85/337, as amended by Directive 2003/35, Arts 10a, and 96/61, as amended by Directive 2003/35, Art. 15a)

3.        Actions for failure to fulfil obligations – Proof of failure – Burden of proof on Commission – Presumptions – Not permissible – Failure to comply with the obligation to inform imposed on Member States by a Directive – Consequences

(Arts 10 EC and 226 EC)

1.        Pursuant to Article 4(2) of Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 97/11, the Member States are to determine, for projects in the classes listed in Annex II to that amended directive, through a case-by-case examination, or thresholds or criteria, whether those projects are to be made subject to an environmental impact assessment. According to that same provision, the Member States may also decide to apply both procedures.

Although the Member States have thus been allowed a measure of discretion in specifying certain types of projects which will be subject to an assessment or to establish the criteria and/or thresholds applicable, the limits of that discretion are to be found in the obligation set out in Article 2(1) of Directive 85/337 as amended that projects likely, by virtue inter alia of their nature, size or location, to have significant effects on the environment are to be subject to an impact assessment. A Member State which establishes criteria or thresholds at a level such that, in practice, an entire class of projects would be exempted in advance from the requirement of an impact assessment would exceed the limits of its discretion unless all projects excluded could, when viewed as a whole, be regarded as not being likely to have significant effects on the environment.

In that regard, by subjecting private road construction development to an environmental impact assessment only if that development formed part of other developments coming within the scope of that directive and themselves subject to the assessment obligation, the national provision means that any private road construction development carried out in isolation could avoid an environmental impact assessment, even if the development is likely to have significant effects on the environment.

(see paras 40-42, 44)

2.        The provisions of a directive must be implemented with unquestionable binding force and with the specificity, precision and clarity required in order to satisfy the need for legal certainty, which requires that, in the case of a directive intended to confer rights on individuals, the persons concerned must be enabled to ascertain the full extent of their rights.

In that regard, it is clear from Article 10a of Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2003/35, and Article 15a of Directive 96/61 concerning integrated pollution prevention and control, as amended by Directive 2003/35, that the procedures established in the context of those provisions must not be prohibitively expensive. That covers only the costs arising from participation in such procedures. Such a condition does not prevent the courts from making an order for costs provided that the amount of those costs complies with that requirement. A national practice under which the courts may decline to order an unsuccessful party to pay the costs and can, in addition, order expenditure incurred by the unsuccessful party to be borne by the other party is merely a discretionary practice on the part of the courts. Such a practice on the part of the court which cannot, by definition, be certain, cannot be regarded as valid implementation of the obligations arising from those articles.

In addition, the sixth paragraph of Article 10a of Directive 85/337 and the sixth paragraph of Article 15a of Directive 96/61 lay down an obligation to obtain a precise result which the Member States must ensure is achieved, which consists in making available to the public practical information on access to administrative and judicial review procedures. In the absence of any specific statutory or regulatory provision concerning information on the rights thus offered to the public, the mere availability, through publications or on the internet, of rules concerning access to administrative and judicial review procedures and the possibility of access to court decisions cannot be regarded as ensuring, in a sufficiently clear and precise manner, that the public concerned is in a position to be aware of its rights on access to justice in environmental matters.

(see paras 55, 92-94, 97-98)

3.        While, in proceedings under Article 226 EC for failure to fulfil obligations, it is incumbent upon the Commission to prove the allegation and to place before the Court the information needed to enable the Court to establish that an obligation has not been fulfilled, in doing which the Commission may not rely on any presumption, it is also for the Member States, under Article 10 EC, to facilitate the achievement of the Commission’s tasks, which consist in particular, pursuant to Article 211 EC, in ensuring that the provisions of the EC Treaty and the measures taken by the institutions pursuant thereto are applied. It is indeed for those purposes that a certain number of directives impose upon the Member States an obligation to provide information.

The information which the Member States are thus obliged to supply to the Commission must be clear and precise. It must indicate unequivocally the laws, regulations and administrative provisions by means of which the Member State considers that it has satisfied the various requirements imposed on it by the directive. In the absence of such information, the Commission is not in a position to ascertain whether the Member State has genuinely implemented the directive completely. The failure of a Member State to fulfil that obligation, whether by providing no information at all or by providing insufficiently clear and precise information, may of itself justify recourse to the procedure under Article 226 EC in order to establish the failure to fulfil the obligation. Moreover, although the transposition of a directive may be carried out by means of domestic legal rules already in force, the Member States are not, in that event, absolved from the formal obligation to inform the Commission of the existence of those rules so that it can be in a position to assess whether the rules comply with the directive.

(see paras 105-108)