Opinion of Advocate General Kokott delivered on 22 September 2022.

JurisdictionEuropean Union
ECLIECLI:EU:C:2022:713
Date22 September 2022
Celex Number62021CC0375
CourtCourt of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 22 September 2022 (1)

Case C375/21

Sdruzhenie ‘Za Zemyata – dostap do pravosadie’ and Others

(Request for a preliminary ruling from the Varhoven administrativen sad (Supreme Administrative Court, Bulgaria))

(Reference for a preliminary ruling – Directive 2010/75/EU – Industrial emissions – Integrated prevention and reduction of pollution – Setting of less strict emission limit values – Compliance with environmental quality standards – Obligations of the competent authority – Directive 2008/50/EC – Ambient air quality – Air quality limit values for the protection of human health – Exceedance – Air quality plan)






I. Introduction

1. The present reference for a preliminary ruling concerns the relationship between two different types of limit values and between the directives from which they derive. Under the Industrial Emissions Directive, (2)emission limit values are set for industrial installations. In addition, the Ambient Air Quality Directive (3) contains air quality limit values. Both sets of rules are intended to ensure a high level of protection for the environment when it comes to air quality; however, they operate at different levels. The emission limit values of the Industrial Emissions Directive apply directly to a source of air pollutants – to the chimney, so to speak. By contrast, the air quality limit values of the Ambient Air Quality Directive address the overall result of all sources of air pollutants in the ambient air, that is to say the air that people breathe. Nevertheless, it is obvious that the application of both sets of rules must be coordinated.

2. The original case arose from the fact that the existing permit for a lignite-fired power plant was updated on the basis of the Industrial Emissions Directive. Since compliance with the limit values for the release of sulphur dioxide to be applied under that directive would cause disproportionately higher costs, less strict emission limit values were set, which was in principle allowed under a derogation clause within the directive.

3. However, the air quality limit values for sulphur dioxide laid down by the Ambient Air Quality Directive are exceeded in the area affected by the power plant, and an air quality plan adopted for that reason with the aim of complying with those limit values lays down stricter requirements for emissions from the power plant, which were not taken into account when the permit was updated.

4. It is therefore necessary to clarify, in particular, whether a derogation from the emission limit values normally applicable under the Industrial Emissions Directive may be granted even though the air quality limit values for the pollutant concerned provided for in the Ambient Air Quality Directive are being exceeded and air quality plans contain more stringent requirements. In addition, the questions referred ask whether, in such a situation, it may be necessary to set even more stringent requirements on emission limit values than would normally be applicable under the Industrial Emissions Directive. On both points, it will be shown that the air quality plan under the Ambient Air Quality Directive is the relevant instrument to coordinate the application of the two directives.

II. Legal context

A. Industrial Emissions Directive

5. Recital 16 of the Industrial Emissions Directive sets out the possibility of setting less stringent emission limit values:

‘In order to take into account certain specific circumstances where the application of emission levels associated with the best available techniques would lead to disproportionately high costs compared to the environmental benefits, competent authorities should be able to set emission limit values deviating from those levels. Such deviations should be based on an assessment taking into account well-defined criteria. The emission limit values set out in this Directive should not be exceeded. In any event, no significant pollution should be caused and a high level of protection of the environment taken as a whole should be achieved.’

6. Article 3 of the Industrial Emissions Directive defines various terms:

‘For the purposes of this Directive the following definitions shall apply:

2. “pollution” means the direct or indirect introduction, as a result of human activity, of substances, vibrations, heat or noise into air, water or land which may be harmful to human health or the quality of the environment, result in damage to material property, or impair or interfere with amenities and other legitimate uses of the environment;

6. “environmental quality standard” means the set of requirements which must be fulfilled at a given time by a given environment or particular part thereof, as set out in Union law;

…’

7. Article 13 of the Industrial Emissions Directive provides that the European Commission, together with representatives of the Member States, the industries concerned and non-governmental organisations promoting environmental protection, shall present the best available techniques (BAT) in BAT reference documents and BAT conclusions and update these documents regularly. The plant at issue, a lignite-fired power plant, is covered by Implementing Decision (EU) 2017/1442 on conclusions on best available techniques for large combustion plants. (4)

8. The basic requirements for a permit are set out in Article 14(1) of the Industrial Emissions Directive:

‘Member States shall ensure that the permit includes all measures necessary for compliance with the requirements of Articles 11 and 18.

…’

9. According to Article 14 of and Annex II to the Industrial Emissions Directive, emission limit values, in particular for sulphur dioxide, must be laid down in the permit for an installation.

10. Article 15(3) and (4) of the Industrial Emissions Directive contain the rules on the setting of emission limit values which are relevant in the present case:

‘3. The competent authority shall set emission limit values that ensure that, under normal operating conditions, emissions do not exceed the emission levels associated with the best available techniques as laid down in the decisions on BAT conclusions referred to in Article 13(5) through either of the following:

(a) setting emission limit values that do not exceed the emission levels associated with the best available techniques. Those emission limit values shall be expressed for the same or shorter periods of time and under the same reference conditions as those emission levels associated with the best available techniques; or

(b) setting different emission limit values than those referred to under point (a) in terms of values, periods of time and reference conditions.

Where point (b) is applied, the competent authority shall, at least annually, assess the results of emission monitoring in order to ensure that emissions under normal operating conditions have not exceeded the emission levels associated with the best available techniques.

4. By way of derogation from paragraph 3, and without prejudice to Article 18, the competent authority may, in specific cases, set less strict emission limit values. Such a derogation may apply only where an assessment shows that the achievement of emission levels associated with the best available techniques as described in BAT conclusions would lead to disproportionately higher costs compared to the environmental benefits due to:

(a) the geographical location or the local environmental conditions of the installation concerned; or

(b) the technical characteristics of the installation concerned.

The competent authority shall document in an annex to the permit conditions the reasons for the application of the first subparagraph the result of the assessment and the justification for the conditions imposed.

The emission limit values set in accordance with the first subparagraph shall, however, not exceed the emission limit values set out in the Annexes to this Directive, where applicable.

The competent authority shall in any case ensure that no significant pollution is caused and that a high level of protection of the environment as a whole is achieved.

…’

11. Article 18 of the Industrial Emissions Directive provides for additional requirements to meet environmental quality standards:

‘Where an environmental quality standard requires stricter conditions than those achievable by the use of the best available techniques, additional measures shall be included in the permit, without prejudice to other measures which may be taken to comply with environmental quality standards.’

B. Ambient Air Quality Directive

12. The first two recitals of the Ambient Air Quality Directive describe its overarching objectives:

‘(1) The Sixth Community Environment Action Programme … establishes the need to reduce pollution to levels which minimise harmful effects on human health, paying particular attention to sensitive populations, and the environment as a whole, to improve the monitoring and assessment of air quality including the deposition of pollutants and to provide information to the public.

(2) In order to protect human health and the environment as a whole, it is particularly important to combat emissions of pollutants at source and to identify and implement the most effective emission reduction measures at local, national and Community level. Therefore, emissions of harmful air pollutants should be avoided, prevented or reduced and appropriate objectives set for ambient air quality taking into account relevant World Health Organisation standards, guidelines and programmes.’

13. Recital 18 of the Ambient Air Quality Directive addresses its relationship with other directives:

‘… Full account will also be taken of the ambient air quality objectives provided for in this Directive, where permits are granted for industrial activities pursuant to Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning...

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1 practice notes
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    • 14 Septiembre 2023
    ...europea (in prosieguo: la «Carta») e il principio di proporzionalità (v., in tal senso, sentenze del 13 gennaio 2022, MONO, C‑326/20, EU:C:2022:713, punto 34 e giurisprudenza citata, e del 24 febbraio 2022, Agenzia delle dogane e dei monopoli e Ministero dell’Economia e delle Finanze, C‑452......
1 cases
  • „Vinal“ AD v Direktor na Agentsia „Mitnitsi“.
    • European Union
    • Court of Justice (European Union)
    • 14 Septiembre 2023
    ...europea (in prosieguo: la «Carta») e il principio di proporzionalità (v., in tal senso, sentenze del 13 gennaio 2022, MONO, C‑326/20, EU:C:2022:713, punto 34 e giurisprudenza citata, e del 24 febbraio 2022, Agenzia delle dogane e dei monopoli e Ministero dell’Economia e delle Finanze, C‑452......

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