European Commission v Republic of Bulgaria.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2023:210
• Docket Number: C-174/21
• Celex Number: 62021CJ0174
• Date: 16 March 2023

Provisional text

JUDGMENT OF THE COURT (Third Chamber)

16 March 2023 (*)

(Failure of a Member State to fulfil obligations – Directive 2008/50/EC – Ambient air quality – Judgment of the Court establishing a failure to fulfil obligations – Article 260(2) TFEU – Obligation to take the necessary measures to comply with such a judgment – Failure to fulfil that obligation alleged by the European Commission – Lack of clarity of the letter of formal notice as to whether the judgment still had to be complied with on the reference date – Principle of legal certainty – Inadmissibility)

In Case C‑174/21,

ACTION for failure to fulfil obligations under Article 260(2), TFEU, brought on 21 March 2021,

European Commission, represented by M. Noll-Ehlers and I. Zaloguin, acting as Agents,

applicant,

v

Republic of Bulgaria, represented initially by L. Zaharieva, T. Mitova and M. Georgieva, and finally by L. Zaharieva and T. Mitova , acting as Agents,

defendant,

supported by:

Republic of Poland, represented by B. Majczyna, acting as Agent,

intervener,

THE COURT (Third Chamber),

composed of K. Jürimäe, President of the Chamber, M. Safjan (Rapporteur), D. Gratsias, N. Piçarra and N. Jääskinen, Judges,

Advocate General: J. Kokott,

Registrar: R. Stefanova-Kamisheva, Administrator,

having regard to the written procedure and further to the hearing on 21 September 2022,

after hearing the Opinion of the Advocate General at the sitting on 17 November 2022,

gives the following

Judgment

1 By its application, the European Commission claims that the Court should:

– declare that, by failing to adopt all the measures necessary to comply with the judgment of 5 April 2017, Commission v Bulgaria (C‑488/15, EU:C:2017:267), the Republic of Bulgaria has failed to fulfil its obligations under Article 260(1) TFEU as regards the zones and agglomerations BG0001 Sofia, BG0002 Plovdiv, BG0004 North Bulgaria, BG0005 South-West Bulgaria and BG0006 South-East Bulgaria;

– order the Republic of Bulgaria to pay the Commission a daily lump sum of EUR 3 156 per day, from the date of delivery of the judgment of 5 April 2017, Commission v Bulgaria (C‑488/15, EU:C:2017:267), until the date of delivery of the judgment in the present case or, should non-compliance end earlier, until 31 December of the last year of the non-compliance, and the amount may not in any event be less than the minimum lump sum of EUR 653 000;

– order the Republic of Bulgaria to pay the Commission a daily periodic penalty payment in the amount of EUR 5 677.20 for each air quality zone, from the date of delivery of the judgment of the Court in the present case until the year of full compliance with the judgment of 5 April 2017, Commission v Bulgaria (C‑488/15, EU:C:2017:267); and

– order the Republic of Bulgaria to pay the costs.

Legal context

2 Article 13 of Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe (OJ 2008 L 152, p. 1), entitled ‘Limit values and alert thresholds for the protection of human health’, provides in paragraph 1:

‘Member States shall ensure that, throughout their zones and agglomerations, levels of sulphur dioxide, PM10, lead, and carbon monoxide in ambient air do not exceed the limit values laid down in Annex XI.

…’

3 Article 23 of that directive, entitled ‘Air quality plans’, states, in paragraph 1:

‘Where, in given zones or agglomerations, the levels of pollutants in ambient air exceed any limit value or target value, plus any relevant margin of tolerance in each case, Member States shall ensure that air quality plans are established for those zones and agglomerations in order to achieve the related limit value or target value specified in Annexes XI and XIV.

In the event of exceedances of those limit values for which the attainment deadline is already expired, the air quality plans shall set out appropriate measures, so that the exceedance period can be kept as short as possible. The air quality plans may additionally include specific measures aiming at the protection of sensitive population groups, including children.

Those air quality plans shall incorporate at least the information listed in Section A of Annex XV and may include measures pursuant to Article 24. Those plans shall be communicated to the Commission without delay, but no later than two years after the end of the year the first exceedance was observed.

…’

4 Article 27 of that directive, entitled ‘Transmission of information and reporting’, provides:

‘1. Member States shall ensure that information on ambient air quality is made available to the Commission within the required timescale as determined by the implementing measures referred to in Article 28(2).

2. In any event, for the specific purpose of assessing compliance with the limit values and critical levels and the attainment of target values, such information shall be made available to the Commission no later than nine months after the end of each year …’

5 Annex XI to the directive is entitled ‘Limit values for the protection of human health’. According to that annex, the daily limit value for PM10 not to be exceeded more than 35 times per calendar year is 50 micrograms per cubic metre (μg/m³), and the annual limit value is 40 μg/m³ per calendar year. Annex XI states that the date on which those limit values had to be...