European Commission v Ireland.

• Jurisdiction: European Union
• Celex Number: 62018CJ0261
• ECLI: ECLI:EU:C:2019:955
• Court: Court of Justice (European Union)
• Date: 12 November 2019
• Procedure Type: Recurso por incumplimiento
• Docket Number: C-261/18

JUDGMENT OF THE COURT (Grand Chamber)

12 November 2019 ( *1 )

(Failure of a Member State to fulfil obligations — Judgment of the Court establishing a failure to fulfil obligations — Non-compliance — Directive 85/337/EEC — Consent for, and construction of, a wind farm — Project likely to have significant effects on the environment — Absence of a prior environmental impact assessment — Obligation to regularise — Article 260(2) TFEU — Application for an order to pay a penalty payment and a lump sum)

In Case C‑261/18,

ACTION under Article 260(2) TFEU for failure to fulfil obligations, brought on 13 April 2018,

European Commission, represented by M. Noll-Ehlers and J. Tomkin, acting as Agents,

applicant,

v

Ireland, represented by M. Browne, G. Hodge and A. Joyce, acting as Agents, and by J. Connolly and G. Simons, Senior Counsel, and G. Gilmore, Barrister-at-Law,

defendant,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, J.-C. Bonichot (Rapporteur), A. Arabadjiev, A. Prechal, M. Safjan and S. Rodin, Presidents of Chambers, L. Bay Larsen, T. von Danwitz, C. Toader, F. Biltgen, K. Jürimäe and C. Lycourgos, Judges,

Advocate General: G. Pitruzzella,

Registrar: R. Şereş, administrator,

having regard to the written procedure and further to the hearing on 1 April 2019,

after hearing the Opinion of the Advocate General at the sitting on 13 June 2019,

gives the following

Judgment

1 By its application, the European Commission claims that the Court should: – declare that, by failing to take the necessary measures to comply with the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380) as regards the second indent of point 1 of the operative part thereto, Ireland has failed to fulfil its obligations under Article 260 TFEU; – order Ireland to pay the Commission a lump sum of EUR 1 343.20 multiplied by the number of days between the delivery of the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380) and, either the date of compliance by Ireland with that judgment, or the date of the judgment delivered in the present case if that date is sooner than the date of compliance with the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380), with a minimum lump sum of EUR 1685000; – order Ireland to pay the Commission a penalty payment of EUR 12264 per day from the date of the judgment delivered in the present case to the date of compliance by Ireland with the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380); and – order Ireland to pay the costs.

Legal context

Directive 85/337/EEC before amendment by Directive 97/11

2 Article 2(1),(2) and (3), first subparagraph, 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) provided: ‘1. Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue inter alia, of their nature, size or location are made subject to an assessment with regard to their effects. These projects are defined in Article 4. 2. The environmental impact assessment may be integrated into the existing procedures for consent to projects in the Member States, or, failing this, into other procedures or into procedures to be established to comply with the aims of this Directive. 3. Member States may, in exceptional cases, exempt a specific project in whole or in part from the provisions laid down in this Directive.’

3 Article 3 of that directive provided: ‘The environmental impact assessment will identify, describe and assess in an appropriate manner, in the light of each individual case and in accordance with the Articles 4 to 11, the direct and indirect effects of a project on the following factors: – human beings, fauna and flora, – soil, water, air, climate and the landscape, – the inter-action between the factors mentioned in the first and second indents, – material assets and the cultural heritage.’

4 Article 4 of that directive was worded as follows: ‘1. Subject to Article 2(3), projects of the classes listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10. 2. Projects of the classes listed in Annex II shall be made subject to an assessment, in accordance with Articles 5 to 10, where Member States consider that their characteristics so require. To this end Member States may inter alia specify certain types of projects as being subject to an assessment or may establish the criteria and/or thresholds necessary to determine which of the projects of the classes listed in Annex II are to be subject to an assessment in accordance with Articles 5 to 10.’

5 Article 5 of Directive 85/337 provided: ‘1. In the case of projects which, pursuant to Article 4, must be subjected to an environmental impact assessment in accordance with Articles 5 to 10, Member States shall adopt the necessary measures to ensure that the developer supplies in an appropriate form the information specified in Annex III inasmuch as: (a) the Member States consider that the information is relevant to a given stage of the consent procedure and to the specific characteristics of a particular project or type of project and of the environmental features likely to be affected; (b) the Member States consider that a developer may reasonably be required to compile this information having regard inter alia to current knowledge and methods of assessment. 2. The information to be provided by the developer in accordance with paragraph 1 shall include at least: – a description of the project comprising information on the site, design and size of the project, – a description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects, – the data required to identify and assess the main effects which the project is likely to have on the environment, – a non-technical summary of the information mentioned in indents 1 to 3. 3. Where they consider it necessary, Member States shall ensure that any authorities with relevant information in their possession make this information available to the developer.’

6 Article 6 of Directive 85/337 was worded as follows: ‘1. Member States shall take the measures necessary to ensure that the authorities likely to be concerned by the project by reason of their specific environmental responsibilities are given an opportunity to express their opinion on the request for development consent. Member States shall designate the authorities to be consulted for this purpose in general terms or in each case when the request for consent is made. The information gathered pursuant to Article 5 shall be forwarded to these authorities. Detailed arrangements for consultation shall be laid down by the Member States. 2. Member States shall ensure that: – any request for development consent and any information gathered pursuant to Article 5 are made available to the public, – the public concerned is given the opportunity to express an opinion before the project is initiated. …’

7 Article 7 of that directive provided: ‘Where a Member State is aware that a project is likely to have significant effects on the environment in another Member State or where a Member State likely to be significantly affected so requests, the Member State in whose territory the project is intended to be carried out shall forward the information gathered pursuant to Article 5 to the other Member State at the same time as it makes it available to its own nationals. Such information shall serve as a basis for any consultations necessary in the framework of the bilateral relations between two Member States on a reciprocal and equivalent basis.’

8 Under Article 8 of Directive 85/337: ‘Information gathered pursuant to Articles 5, 6 and 7 must be taken into consideration in the development consent procedure.’

9 Article 9 of that directive was worded as follows: ‘When a decision has been taken, the competent authority or authorities shall inform the public concerned of: – the content of the decision and any conditions attached thereto, – the reasons and considerations on which the decision is based where the Member States’ legislation so provides. The detailed arrangements for such information shall be determined by the Member States. If another Member State has been informed pursuant to Article 7, it will also be informed of the decision in question.’

10 Article 10 of Directive 85/337 provided: ‘The provisions of this Directive shall not affect the obligation on the competent authorities to respect the limitations imposed by national regulations and administrative provisions and accepted legal practices with regard to industrial and commercial secrecy and the safeguarding of the public interest. Where Article 7 applies, the transmission of information to another Member State and the reception of information by another Member State shall be subject to the limitations in force in the Member State in which the project is proposed.’

11 Annex II to Directive 85/337 listed the projects subject to Article 4(2) of that directive, namely those for which an environmental impact assessment was...