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URL: http://www.bailii.org/eu/cases/EUECJ/2004/C42102.html
Cite as: [2004] EUECJ C-421/02, [2004] EUECJ C-421/2

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JUDGMENT OF THE COURT (Third Chamber)
24 June 2004 (1)

(Failure of a Member State to fulfil obligations -� Directive 85/337/EEC -� Incomplete transposition)

In Case C-421/02,

Commission of the European Communities, represented by X. Lewis, acting as Agent, with an address for service in Luxembourg,

applicant,

v

United Kingdom of Great Britain and Northern Ireland, represented by P. Ormond, acting as Agent, with an address for service in Luxembourg,

defendant,

APPLICATION for a declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Article 4(2) of 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), as amended by Council Directive 97/11/EC of 3 March 1997 (OJ 1997 L 73, p. 5), in relation to projects listed in Annex II, paragraph 1(b) and 1(c), to that directive, or, in any event, by failing to notify such provisions to the Commission, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under that directive,

THE COURT (Third Chamber),

composed of: A. Rosas, President of the Chamber, R. Schintgen and N. Colneric (Rapporteur), Judges,

Advocate General: D. Ruiz-Jarabo Colomer,
Registrar: R. Grass,

having regard to the Report of the Judge-Rapporteur,

having decided, after hearing the views of the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

By application lodged at the Court Registry on 21 November 2002, the Commission of the European Communities brought an action under Article 226 EC in which it sought a declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Article 4(2) of 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), as amended by Council Directive 97/11/EC of 3 March 1997 (OJ 1997 L 73, p. 5) in relation to projects listed in Annex II, paragraph 1(b) and (c), to that Directive or, in any event, by failing to notify such provisions to the Commission, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under that directive.

Legal framework and pre-litigation procedure

Article 3(1) of Directive 97/11 provides:

Article 4(2) of Directive 85/337, as amended by Directive 97/11, (hereinafter -�the Directive-�) provides:

Annex II lists the projects subject to Article 4(2) of the Directive. Point 1 of Annex II covers:

In accordance with the procedure laid down in the first paragraph of Article 226 EC, the Commission, after giving the United Kingdom an opportunity to submit its observations, issued a reasoned opinion by letter of 26 July 2001 in which it requested the United Kingdom to take the measures necessary to comply with Article 4(2) of the Directive within two months of notification of the reasoned opinion, as regards transposition of paragraphs 1(b) and (c) of Annex II to the Directive.

As it took the view that the responses of the United Kingdom authorities to that reasoned opinion did not enable it to conclude that the United Kingdom had adopted all the measures necessary to end the alleged infringement, the Commission decided to bring the present action.

Procedure before the Court

The Commission initially claimed that the Court should:

In the course of the written procedure the Commission withdrew its heads of complaint concerning the implementation in Wales of paragraph 1(b) of Annex II to the Directive and the implementation in England and Wales of paragraph 1(c) of Annex II to the Directive.

The action

Arguments of the parties

The Commission observes that the United Kingdom has still to adopt, in Scotland and Northern Ireland, regulations to implement fully paragraph 1(c) of Annex II to the Directive (water management projects for agriculture, including irrigation and land drainage projects) in respect of water abstraction and irrigation projects that fall outside town and country planning controls.

The United Kingdom Government acknowledges that the provisions necessary for the full implementation of paragraph 1(c) of Annex II to the Directive have not been adopted in Scotland and Northern Ireland.

After explaining the specific situation in Scotland, which has a relatively abundant and diverse water supply, the United Kingdom Government states that the finalised implementing regulations, that is to say, the Environmental Impact Assessment Water Abstraction (Scotland) Regulations 2003, will enter into force in August 2003. The idea is ultimately to replace those measures with the water abstraction scheme to be provided through the Water Environment and Water Services (Scotland) Act. That legislation recently passed through the Scottish Parliament and ought to be implemented by 2005.

With regard to Northern Ireland, the competent administrative authority there intends to introduce a water abstraction licensing procedure which will incorporate the environmental impact assessment provisions necessary to cover agricultural abstractions, to come into effect as early as possible and in any event before the end of 2003.

As regards England and Wales, the Commission states in its reply that, although the United Kingdom adopted the measures necessary to implement there paragraph 1(c) of Annex II to the Directive in respect of water abstraction and irrigation projects that fall outside town and country planning controls, those measures have not been notified to it, contrary to the obligation to do so laid down in the Directive.

The United Kingdom acknowledges in its rejoinder that it failed to inform the Commission of the latter measures, which were adopted on 30 January 2003 and entered into force on 1 April 2003, and which it annexes to its rejoinder.

Findings of the Court

It is settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation in that Member State as it stood at the end of the period laid down in the reasoned opinion (see, inter alia, Case C-�71/99 Commission v Germany [2001] ECR I-�5811, paragraph 29, and Case C-�110/00 Commission v Austria [2001] ECR I-�7545, paragraph 13).

It is common ground in the present case that the Directive was not transposed within the period laid down in the reasoned opinion.

The action brought by the Commission, within the terms set out in paragraph 8 of this judgment, must therefore be regarded as being well founded.

It must accordingly be held that, by failing to adopt in Scotland and Northern Ireland the laws, regulations and administrative provisions necessary to comply with Article 4(2) of the Directive in relation to projects listed in Annex II, paragraph 1(c), to the Directive and by failing to notify the measures taken to implement that provision in England and Wales, the United Kingdom has failed to fulfil its obligations under that directive.

Costs

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. As the Commission has asked for costs to be awarded against the United Kingdom and as the latter has been unsuccessful in its submissions, the United Kingdom must be ordered to pay the costs.

On those grounds,

THE COURT (Third Chamber)

1. Declares that, by failing to adopt in Scotland and Northern Ireland the laws, regulations and administrative provisions necessary to comply with Article 4(2) of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directive 97/11/EC of 3 March 1997, in relation to projects listed in Annex II, paragraph 1(c), to the Directive and by failing to notify the measures taken to implement that provision in England and Wales, the United Kingdom has failed to fulfil its obligations under that directive;

2. Orders the United Kingdom to pay the costs.

Rosas	Schintgen	Colneric

R. Grass

A. Rosas

Registrar

President of the Third Chamber

1 -� Language of the case: English.

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