Opinion of Advocate General Kokott delivered on 14 December 2023.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:990
• Date: 14 December 2023
• Celex Number: 62022CC0626
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 14 December 2023 (1)

Case C‑626/22

C.Z. and Others

v

Ilva S.p.A. in Amministrazione Straordinaria and Others

(Request for a preliminary ruling from the Tribunale di Milano (District Court, Milan, Italy))

(Request for a preliminary ruling – Directive 2010/75 – Industrial emissions – Integrated pollution prevention and control – Reconsideration and updating of permit conditions – Measures to protect the environment and human health)

I. Introduction

1. The Ilva steelworks in Taranto, Italy, is one of the largest installations of its kind in Europe and an important economic factor. The European Court of Human Rights (‘ECtHR’) has found, however, that it has significant adverse effects on the environment and harms the health of local residents. (2)

2. In European Union law, the requirements governing such installations are laid down mainly in the Industrial Emissions Directive (3) and in acts establishing the best available techniques, so-called BAT conclusions, which the European Commission has drawn up together with stakeholders and representatives of Member States.

3. In a dispute over whether the Ilva steelworks is operated in accordance with those requirements, the Court is being asked about the importance of certain information concerning the effects of the steelworks on human health and about which emissions are to be taken into account. It is also being asked whether it is permitted to extend repeatedly the period for the implementation of certain permit conditions.

4. The Court did recently have an opportunity to explore certain questions relating to the setting of limit values in connection with the grant of permits to installations. (4) However, this request for a preliminary ruling gives it an opportunity to examine more closely the general permit conditions under the Industrial Emissions Directive.

II. Legal framework

A. EU law

5. The Industrial Emissions Directive recast Directive 2008/1/EC concerning integrated pollution prevention and control, (5) which had codified Directive 96/61/EC (6) concerning integrated pollution prevention and control without making substantive amendments. Many provisions of the three directives are nevertheless identical or at least very similar.

6. Although the referring court mentions numerous recitals and provisions of the Industrial Emissions Directive in its questions, only the following provisions are relevant.

7. 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;

(3) “installation” means a stationary technical unit within which one or more activities listed in Annex I or in Part 1 of Annex VII [(7)] are carried out, and any other directly associated activities on the same site which have a technical connection with the activities listed in those Annexes and which could have an effect on emissions and pollution;

…

(5) “emission limit value” means the mass, expressed in terms of certain specific parameters, concentration and/or level of an emission, which may not be exceeded during one or more periods of time;

…

(10) “best available techniques” means the most effective and advanced stage in the development of activities and their methods of operation which indicates the practical suitability of particular techniques for providing the basis for emission limit values and other permit conditions designed to prevent and, where that is not practicable, to reduce emissions and the impact on the environment as a whole:

(a) “techniques” includes both the technology used and the way in which the installation is designed, built, maintained, operated and decommissioned;

(b) “available techniques” means those developed on a scale which allows implementation in the relevant industrial sector, under economically and technically viable conditions, taking into consideration the costs and advantages, whether or not the techniques are used or produced inside the Member State in question, as long as they are reasonably accessible to the operator;

(c) “best” means most effective in achieving a high general level of protection of the environment as a whole’.

8. Article 4(1) of the Industrial Emissions Directive lays down a permit requirement:

‘Member States shall take the necessary measures to ensure that no installation or combustion plant, waste incineration plant or waste co-incineration plant is operated without a permit.

…’

9. Article 5 of the Industrial Emissions Directive refers to the directive in respect of the conditions for a permit:

‘Without prejudice to other requirements laid down in national or Union law, the competent authority shall grant a permit if the installation complies with the requirements of this Directive.’

10. The enforcement of permit conditions is regulated in Article 8 of the Industrial Emissions Directive:

‘1. Member States shall take the necessary measures to ensure that the permit conditions are complied with.

2. In the event of a breach of the permit conditions, Member States shall ensure that:

(a) the operator immediately informs the competent authority;

(b) the operator immediately takes the measures necessary to ensure that compliance is restored within the shortest possible time;

(c) the competent authority requires the operator to take any appropriate complementary measures that the competent authority considers necessary to restore compliance.

Where the breach of the permit conditions poses an immediate danger to human health or threatens to cause an immediate significant adverse effect upon the environment, and until compliance is restored in accordance with points (b) and (c) of the first subparagraph, the operation of the installation, combustion plant, waste incineration plant, waste co-incineration plant or relevant part thereof shall be suspended.’

11. Article 10 of the Industrial Emissions Directive governs the scope of Chapter II:

‘This Chapter shall apply to the activities set out in Annex I and, where applicable, reaching the capacity thresholds set out in that Annex.’

12. Article 11 of the Industrial Emissions Directive sets out the general principles governing the basic obligations of the operator. Points (a) to (c) should be highlighted:

‘(a) all the appropriate preventive measures are taken against pollution;

(b) the best available techniques are applied;

(c) no significant pollution is caused’.

13. Article 12 of the Industrial Emissions Directive concerns the content of applications for permits. Under paragraph 1(f) and (g), a description of emissions and technologies is to be included:

‘Member States shall take the necessary measures to ensure that an application for a permit includes a description of the following:

…

(f) the nature and quantities of foreseeable emissions from the installation into each medium as well as identification of significant effects of the emissions on the environment;

(g) the proposed technology and other techniques for preventing or, where this is not possible, reducing emissions from the installation’.

14. Article 13 of the Industrial Emissions Directive contains rules on the manner in which the Commission, together with Member States, the industries concerned and non-governmental organisations promoting environmental protection, identifies the best available techniques.

15. The permit conditions for compliance with the basic obligations under Article 11 of the Industrial Emissions Directive and wider environmental quality standards under Article 18 are regulated in Article 14:

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

Those measures shall include at least the following:

(a) emission limit values for polluting substances listed in Annex II, and for other polluting substances, which are likely to be emitted from the installation concerned in significant quantities, having regard to their nature and their potential to transfer pollution from one medium to another;

…

2. For the purpose of paragraph 1(a), emission limit values may be supplemented or replaced by equivalent parameters or technical measures ensuring an equivalent level of environmental protection.

3. BAT conclusions shall be the reference for setting the permit conditions.

4. Without prejudice to Article 18, the competent authority may set stricter permit conditions than those achievable by the use of the best available techniques as described in the BAT conclusions. Member States may establish rules under which the competent authority may set such stricter conditions.

5. …

6. Where an activity or a type of production process carried out within an installation is not covered by any of the BAT conclusions or where those conclusions do not address all the potential environmental effects of the activity or process, the competent authority shall, after prior consultations with the operator, set the permit conditions on the basis of the best available techniques that it has determined for the activities or processes concerned, by giving special consideration to the criteria listed in Annex III.

7. …’

16. Article 15(2) and (3) of the Industrial Emissions Directive contains the rules on the setting of emission limit values which are relevant in the present case:

‘2. Without prejudice to Article 18, the emission limit values and the equivalent parameters and technical measures referred to in Article 14(1) and (2) shall be based on the best available techniques, without prescribing the use of any technique or...