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

JUDGMENT OF THE COURT (Sixth Chamber)

19 November 2002(1)

(Failure by a Member State to fulfil its obligations - Assessment of the effects of certain projects on the environment - Directive 97/11/EC)

In Case C-319/01,

Commission of the European Communities, represented by G. zur Hausen and J. Adda, acting as Agents, with an address for service in Luxembourg,

applicant,

v

Kingdom of Belgium, represented initially by F. van de Craen, and, subsequently, A. Snoecx, acting as Agents,

defendant,

APPLICATION for a declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 97/11/EC of 3 March 1997 amending Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment (OJ 1997 L 73, p. 5) or, alternatively, by failing to communicate them to the Commission, the Kingdom of Belgium has failed to fulfil its obligations under that directive,

THE COURT (Sixth Chamber),

composed of: J.-P. Puissochet (Rapporteur), President of the Chamber, R. Schintgen, V. Skouris, F. Macken and J.N. Cunha Rodrigues, Judges,

Advocate General: C. Stix-Hackl,

Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 9 July 2002,

gives the following

Judgment

1. By application lodged at the Court Registry on 14 August 2001, the Commission of the European Communities brought an action under Article 226 EC for a declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 97/11/EC of 3 March 1997 amending Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment (OJ 1997 L 73, p. 5) or, alternatively, by failing to communicate them to the Commission, the Kingdom of Belgium has failed to fulfil its obligations under that directive.

   The relevant provisions and the pre-litigation procedure

2. Directive 97/11 amends and adds to 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 order to ensure that that latter directive is applied in an increasingly harmonised and efficient manner. In particular, it introduces provisions intended to ensure that projects for which an assessment is required should be subject to an application for development consent. It also supplements the list of projects in Annex I to Directive 85/337 which must be subjected to assessment and specifies the conditions in which the Member States may decide whether the projects referred to in Annex II to that directive must be subjected to that requirement.

3. The first paragraph of Article 3(1) of Directive 97/11 provides that the Member States are to bring into force the laws, regulations and administrative provisions necessary to comply with that directive by 14 March 1999 at the latest and forthwith to inform the Commission thereof.

4. In accordance with that provision, by letter of 8 July 1999 the Belgian authorities communicated to the Commission the decree of the Région wallonne (Walloon Region) of 11 March 1999 on environmental consent (Moniteur belge of 8 June 1999, p. 21114, 'the decree of 11 March 1999'), amending the decree of 11 September 1985 on the evaluation of effects on the environment in the Région wallonne (Moniteur belge of 24 January 1986).

5. Since it had received no communication other than of that decree, on 5 August 1999 the Commission sent the Kingdom of Belgium a letter of formal notice, in accordance with Article 226 EC, giving it two months in which to submit its observations.

6. By letter of 27 October 1999, the Belgian Government sent the Commission the regulation of the Région de Bruxelles-Capitale of 22 April 1999 fixing the list of Class IA installations referred to in Article 4 of the regulation of 5 June 1997 on environmental consent (Moniteur belge of 5 August 1999, p. 29209, 'the regulation of 22 April 1999'), and the decree of the Government of the Région de Bruxelles-Capitale of 4 March 1999 fixing the list of Class IB, II and III installations in implementation of Article 4 of the regulation of 5 June 1997 on environmental consent (Moniteur belge of 7 August 1999, p. 29713, 'the decree of 4 March 1999').

7. By letter of 20 December 1999 the Belgian authorities sent the Commission a draft royal decree laying down general rules for the protection of the population, workers and the environment from the danger of ionising radiation. By letter of the same day they also sent the Commission the Law of 20 January 1999 on the protection of the marine environment in marine areas under Belgium's jurisdiction (Moniteur belge of 12 March 1999, p. 8033, 'the Law of 20 January 1999'), several of the provisions of which govern the assessment of the effects of certain projects, in particular on the continental shelf.

8. Since the Commission had received no other communication from the Belgian authorities concerning the implementation of Directive 97/11, by letter of 19 May 2000 it sent the Kingdom of Belgium a reasoned opinion inviting that Member State to take the necessary measures within two months of notification of that opinion.

9. In response to that opinion, the Belgian Government by letter of 10 July 2000 again communicated the regulation of 22 April 1999 and the decree of 4 March 1999, together with a table showing how far the directive had been implemented in that region.

10. On 9 August 2000 it sent the Commission a draft measure for the implementation of Directive 97/11 in the Région wallonne, which it envisaged adopting in mid-2001.

11. On 8 December 2000 the Belgian Government communicated to the Commission a draft royal decree laying down the procedure for the granting of the consent and authorisation required in respect of certain activities carried on in marine areas under Belgium's jurisdiction. That decree, adopted on 20 December 2000 (Moniteur belge of 25 January 2001, p. 2104), and also the royal decree of 20 December 2000 fixing the rules governing the assessment of the effects on the environment pursuant to the Law of 20 January 1999 (Moniteur belge of 25 January 2001, p. 2113, together 'the royal decrees'), were communicated to the Commission by the Belgian authorities by letter of 2 February 2001.

12. By letter of 23 May 2001, the Belgian Government communicated to the Commission the draft ministerial decrees adopted on second reading by the Walloon Government for the purpose of implementing the decree of 11 March 1999.

13. Since it considered that the provisions communicated to it did not transpose in full Directive 97/11 in the whole of Belgium, the Commission brought this action.

    The failure to fulfil obligations

14. The Court has consistently held, first, that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion (see, in particular, Case C-147/00 Commission v France [2001] ECR I-2387, paragraph 26) and, second, that a Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with the obligations and time-limits laid down in a directive (see, inter alia, Case C-374/98 Commission v France [2000] ECR I-10799, paragraph 13).

    Transposition of Directive 97/11 by the Région de Bruxelles-Capitale

15. For the purpose of implementing Directive 97/11, the Région de Bruxelles-Capitale adopted the regulation of 22 April 1999 and the decree of 4 March 1999, as stated in paragraph 6 above.

16. Those provisions were formally forwarded to the Commission on 27 October 1999, before even the reasoned opinion was sent. In addition, the Commission received a letter of 10 July 2000 enclosing a table which set out, for each article of Directive 85/337, all the measures which had been adopted by the regional authorities in order to comply therewith and which were in force at the end of the period prescribed by the reasoned opinion.

17. The Commission has not identified, either during the pre-litigation procedure or before the Court, what shortcomings in the transposition of Directive 97/11 it considered that the measures thus adopted allowed to continue in existence at the end of the period prescribed by the reasoned opinion. The Commission has thus confined itself to mentioning in its reply the measures communicated to it before it decided to bring the matter before the Court, without drawing the appropriate conclusions or in any way specifying which provisions of Directive 97/11 were not implemented by the Région de Bruxelles-Capitale.

18. Nevertheless, measures which fall within the competence of a regional authority cannot of themselves ensure full implementation of Directive 97/11 in that part of Belgian territory. Measures within the competence of the federal authorities must also be taken into account in assessing whether implementation of Directive 97/11 is complete in the territory of that region.

    Implementation of Directive 97/11 by the federal Belgian authorities

19. The documents before the Court make it clear that, at the end of the period prescribed by the reasoned opinion, the Commission had, with regard to the implementation of Directive 97/11 by the federal Belgian authorities, received only the Law of 20 January 1999 and a draft royal decree laying down general rules for the protection of the population, workers and the environment from the danger of ionising radiation.

20. As the Belgian Government stated in its defence, it did not prove possible to bring the Law of 20 January 2000 into force until the publication on 25 January 2001 of the royal decrees of 20 December 2000.

21. Similarly, the royal decree laying down general rules for the protection of the population, workers and the environment from the danger of ionising radiation was not adopted until 20 July 2001 or published in the Moniteur belge until 30 August 2001 (p. 28909), that is to say, after the period prescribed in the reasoned opinion had expired.

22. Full implementation of Directive 97/11 was therefore achieved, in the sphere of the federal power's competence, only when the last-mentioned decree entered into force, after the end of the period prescribed in the reasoned opinion.

23. The action must therefore be upheld in so far as it concerns the implementation of Directive 97/11 by the federal Belgian authorities.

    Implementation of Directive 97/11 by the Région flamande and Région wallonne

24. In its defence the Belgian Government states that the Région flamande is preparing a major decree implementing Directive 97/11, and also Council Directive 96/82/EC of9 December 1996 on the control of major-accident hazards involving dangerous substances (OJ 1997 L 10, p. 13) and Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (OJ 2001 L 197, p. 30). That drafting work, which was referred to in letters to the Commission of 21 March and 4 September 2001, has been held back, in particular, by the late publication of the Dutch version of Directive 2001/42. According to that government, the text of that decree was to have been published in the Moniteur belge in March 2002 and the implementing decrees were to have been adopted in June 2002.

25. With regard to the Région wallonne, the Belgian Government explains that the complex nature of the matter had made it difficult to draft the three decrees implementing the Walloon decree of 11 March 1999 which were necessary for that legislation to enter into force. It claimed that those decrees were to be adopted at the end of 2001.

26. By those arguments the Belgian Government does not therefore challenge the substance of the Commission's allegation that Directive 97/11 was not fully implemented within the period prescribed for the Région flamande and Région wallonne.

27. Furthermore, as stated in the case-law cited in paragraph 14 above, the Belgian Government's explanations relating to the complex nature of the matter and the practical difficulties encountered during the stage of drafting the provisions necessary for the implementation of Directive 97/11 cannot be accepted.

28. In those circumstances, the action must be held to be well founded in so far as it relates to the implementation of Directive 97/11 by the Région flamande and Région wallonne.

29. Having regard to the foregoing, it must be declared that, by failing to bring into force within the period prescribed all the laws, regulations and administrative provisions necessary to comply with Directive 97/11, the Kingdom of Belgium has failed to fulfil its obligations under that directive.

    Costs

30. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission has applied for costs and the Kingdom of Belgium has been unsuccessful, the latter must be ordered to pay the costs.

On those grounds,

THE COURT (Sixth Chamber)

hereby:

1. Declares that, by failing to bring into force within the period prescribed all the laws, regulations and administrative provisions necessary to comply with Council Directive 97/11/EC of 3 March 1997 amending Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment, the Kingdom of Belgium has failed to fulfil its obligations under that directive.

2. Orders the Kingdom of Belgium to pay the costs.

PuissochetSchintgen Skouris MackenCunha Rodrigues

Delivered in open court in Luxembourg on 19 November 2002.

R. Grass J.-P. Puissochet

Registrar President of the Sixth Chamber

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1: Language of the case: French.