Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE COURT (Sixth Chamber)

22 October 1998 (1)

(Failure of a Member State to fulfil its obligations - Incorrect transposition of Directive 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 the office 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 the Federal 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 failed to comply with its obligations under Articles 5 and 189 of the EC Treaty and under Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40), in particular 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 Commission of the European Communities brought an action under Article 169 of the EC Treaty for a declaration that the Federal Republic of Germany had failed to comply with its obligations under Articles 5 and 189 of the EC Treaty and under Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40, 'the Directive'), 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 the environment must be assessed in order to take account of concerns to protect human 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 reproductive capacity 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 of those public and private projects which are likely to have significant effects on the environment.

   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 developer to proceed with the project.

   ...'

4. Article 3 provides:

   'The environmental impact assessment will identify, describe and assess in an appropriate manner, in the light of each individual case and in accordance with Articles 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 second indents,

   - material assets and the cultural heritage.'

5. Pursuant to Article 12(1), the Member States were required to take the measures necessary to comply with the Directive within three years of its notification. Since the 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 die Umweltverträglichkeitsprüfung (Law on environmental impact assessment, 'the UVPG') 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 conclusion that the legislation in force in Germany, as notified to it, did not comply with the provisions of the Directive. It therefore sent a letter of formal notice on 4 February 1992 informing the German Government of the various points with which it took issue.

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

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

9. Having received no reply to its reasoned opinion, the Commission brought the matter before the Court. Its action related to instances of failure to fulfil obligations falling under six different headings: delay in transposing the Directive; failure to communicate all the provisions adopted in the field covered by the Directive; failure to apply the Directive to all projects for which consent was given after 3 July 1988; incomplete transposition of Article 2 of the Directive with regard to 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 two specific projects.

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

    Delay in transposing the Directive

11. The Commission submits that the German Government failed to take the measures necessary to comply with the Directive within the prescribed period, which expired on 3 July 1988 whereas the UVPG came into force on 1 August 1990. Germany has thus failed to fulfil its obligations under Article 5 and the third paragraph of Article 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 a formal declaration of the alleged failure to fulfil obligations, since the Court has already held, in Case C-396/92 Bund Naturschutz in Bayern and Others v Freistaat Bayern [1994] ECR I-3717, that there had been a delay in transposing the Directive in Germany.

13. Here, though, it must be noted that the Bund Naturschutz in Bayern judgment was given in response to a request for a preliminary ruling on the interpretation of Article 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 State has 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 as guardian of the Treaty, is alone competent to decide whether it is appropriate to bring proceedings against a Member State for failure to fulfil its obligations (Case C-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 comply with the Directive within the prescribed period, the Federal Republic of Germany has failed to fulfil its obligations under Article 12(1) thereof.

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

18. Article 12(2) of the Directive provides: 'Member States shall communicate to the Commission the texts of the provisions of national law which they adopt in the field covered by this Directive.'

19. The Commission states that the German Government did not communicate all the national provisions intended to transpose the Directive, in particular those adopted by the Länder. Such provisions, having been adopted in the field covered by the Directive, should in the Commission's view have been communicated in accordance with Article 12(2). Germany has thus failed to fulfil its obligations under Article 5 and the third paragraph of Article 189 of the Treaty, read in conjunction with Article 12(2) of the Directive.

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

21. It further argues that under Paragraph 4 of the UVPG, that Law takes precedence over specific Laws and over the legislation of the Länder. In any instance where the 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 the requirements of the Directive are fully satisfied, making it unnecessary to communicate other provisions to the Commission.

22. Here it must be noted that the wording of Article 12(2) of the Directive leaves no doubt as to the scope of the obligation placed on Member States to communicate to the Commission all the provisions which they adopt in the field covered by the Directive. Nor does it give any reason to suppose that distinctions may be drawn as to the nature of that obligation according to whether a Member State has a federal or centralised structure or according to the legislative technique which it employs.

23. Since the obligation to communicate national provisions concerns all such provisions adopted in the field covered by the Directive, the finding that the Member State has failed to fulfil its obligations as alleged cannot be affected by the consideration that the provisions of the UVPG, which have been communicated to the 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 the measures which it has taken to comply with the Directive, the Federal Republic of Germany 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 3 July 1988

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

26. In the Commission's submission, that transitional provision limits the scope ratione temporis of the UVPG, in that consent procedures commenced before 1 August 1990 but after 3 July 1988, when the period within which the Directive was to be transposed expired, are not subject to an environmental impact assessment in accordance with the requirements of the Directive. Germany has thus failed to fulfil its obligations under Article 5 and the third paragraph of Article 189 of the Treaty, read in conjunction with Article 12(1) of the Directive.

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

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

29. Consequently, having regard to the considerations set out in paragraphs 13 to 15 above, 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 compliance with the Directive, where the consent procedure was commenced after 3 July 1988, the Federal Republic of Germany has failed to fulfil its obligations under Article 12(1) of the Directive.

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

30. Article 2 of the Directive provides:

    '1. Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to an assessment with 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 be made 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 an assessment, in accordance with Articles 5 to 10, where Member States consider that their characteristics so require.

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

32. Annex I to the Directive lists nine categories of projects defined according to their nature, such as oil refineries, integrated chemical installations, construction of motorways 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 II are divided into sub-categories, each preceded by a letter of the alphabet, with the exception of those listed under points 5, 9 and 12.

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

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

35. The Commission therefore asks the Court to find that, by excluding in advance whole classes of projects listed in Annex II to the Directive from the environmental impact assessment requirement, Germany has failed to fulfil its obligations under Article 5 and the third paragraph of Article 189 of the Treaty, read in conjunction with Articles 2(1) and 12(1) of the Directive.

36. The German Government considers that a distinction is to be drawn between the concepts of 'classes' and 'projects'. In its opinion, Annex II to the Directive lists a total of '12 classes of projects' within which there are 'specific' projects. Each of the 12 categories in the annex thus constitutes a class of projects and each of the subdivisions of those categories, preceded by a letter of the alphabet, constitutes a 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 has to be subject to the assessment requirement. The UVPG takes account of all the classes of projects in Annex II to the Directive and, within those classes, requires an environmental impact assessment to be carried out on those projects whose characteristics warrant it in the opinion of the federal legislature. To that end, the German Government used its discretionary power to set criteria and/or thresholds for certain types of projects in respect of the assessment obligation. It is thus wrong to claim that the Federal Republic of Germany has excluded whole classes of projects from the assessment requirement.

38. The Court has held that Article 4(2) of the Directive does not empower the Member States to exclude generally and definitively from possible assessment one or 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 in both paragraphs 1 and 2 in relation to the concept in question, namely 'projects of 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 whether it 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 their nature, it can only refer to the same kind of categories of projects with regard to Annex 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 field of economic activity; they must rather correspond to the subdivisions of those categories, each preceded by a letter of the alphabet. That consideration is borne out 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, express roads and lines for long-distance railway traffic and of airports ...' under point 7 in Annex I cannot correspond, as a class of projects, to the category under point 10 of Annex II, entitled 'Infrastructure projects'; it must rather correspond to subdivision (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 effectiveness of the rule laid down in Article 2(1) of the Directive, that projects likely to have significant effects on the environment by virtue inter alia of their nature, size or location are to be made subject to an environmental impact assessment, and would leave 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 of the discretion conferred on the Member States by Article 4(2) of the Directive are to be found in the obligation set out in Article 2(1) (Case C-72/95 Kraaijeveld and Others 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 to facilitate the examination of the actual characteristics exhibited by a given project in order to determine whether it is subject to the requirement to carry out an assessment and not to exempt in advance from that obligation certain whole classes of projects listed in Annex II which may be envisaged on the territory of a Member State (Case C-133/94 Commission v Belgium, cited above, paragraph 42).

46. It must therefore be held that, by excluding in advance from the environmental impact assessment requirement whole classes of projects listed in Annex II to the Directive, the Federal Republic of Germany has failed to fulfil its obligations under Articles 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 necessary measures to ensure that the developer supplies certain information concerning any project subject to an environmental impact assessment. That information is specified 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 the developer must supply. However, the second sentence of Paragraph 6(2) of the UVPG states that those provisions are applicable only 'if the information listed in subparagraphs 3 and 4 is not defined in detail by a statutory provision'.

49. According to the Commission, this means that other statutory provisions, defining in detail the information that must be provided by the developer, take precedence over the provisions of the UVPG and thus replace them in such cases. The Commission therefore considers that, by failing to lay down a general requirement in respect of the information to be supplied under the Directive, Germany has failed to fulfil its obligations under Article 5 and the third paragraph of Article 189 of 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 a misinterpretation of Paragraph 6(2) of the UVPG. That provision does not derogate from the general rule in Paragraph 4 of the UVPG, governing the relationship between that Law and other statutory provisions laid down by the Federation or the Länder within the field covered by the Directive. In accordance with that rule, if the requirements laid down by such statutory provisions fall short of those of the UVPG, then the latter take precedence.

51. Here, it must be noted that Article 5(2) of the Directive specifies the minimum scope of the information to be supplied by the developer. The Commission does not claim that the provisions of Paragraph 6(3) and (4) of the UVPG do not provide a correct transposition of their counterpart in the Directive.

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

53. In the light of those considerations, this part of the application must therefore be dismissed.

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

    - by failing to take the necessary measures to comply with the Directive within the prescribed period,

    - by failing to communicate to the Commission all the measures which it has taken to comply with the Directive,

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

    - by excluding in advance from the environmental impact assessment requirement whole classes of projects listed in Annex II to the Directive,

    the Federal Republic of Germany has failed to fulfil its obligations under Articles 2(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 be ordered to pay the costs. Since the Federal Republic of Germany has been unsuccessful 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 Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment within the prescribed period,

- by failing to communicate to the Commission all the measures which it has taken to comply with that directive,

- by not requiring an environmental impact assessment for all projects on which such an assessment had to be carried out in compliance with that directive, where the consent procedure was commenced after 3 July 1988, and

- by excluding in advance from the environmental impact assessment requirement whole classes of projects listed in Annex II to that directive,

the Federal Republic of Germany has failed to fulfil its obligations under Articles 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

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1: Language of the case: German.