European Commission v Ireland.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Berger
• ECLI: ECLI:EU:C:2011:109
• Docket Number: C-50/09
• Date: 03 March 2011
• Procedure Type: Recours en constatation de manquement - fondé

Case C-50/09

European Commission

v

Ireland

(Failure of a Member State to fulfil obligations – Directive 85/337/EEC – Obligation of the competent environmental authority to carry out an assessment of the effects of certain projects on the environment – More than one competent authority – Need to ensure an assessment of the interaction between factors likely to be directly or indirectly affected – Application of the directive to demolition works)

Summary of the Judgment

1. Environment – Assessment of the effects of certain projects on the environment – Directive 85/337 – Obligation of the competent environmental authority to carry out an assessment of the effects of certain projects on the environment – Extent

(Council Directive 85/337, as amended by Directives 97/11 and 2003/35, Art. 3)

2. Environment – Assessment of the effects of certain projects on the environment – Directive 85/337 – More than one competent authority – Condition – Powers and rules governing their implementation ensuring that an environmental impact assessment is carried out fully and before the giving of consent

(Council Directive 85/337, as amended by Directives 97/11 and 2003/35, Arts 2, 3 and 4)

3. Environment – Assessment of the effects of certain projects on the environment – Directive 85/337 – Scope – Demolition works – Inclusion

(Council Directive 85/337, as amended by Directives 97/11 and 2003/35, Art. 1(2))

1. Article 3 of Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 97/11 and by Directive 2003/35, makes the competent environmental authority responsible for carrying out an environmental impact assessment which must include a description of a project’s direct and indirect effects on the factors set out in the first three indents of that article and the interaction between those factors. That assessment obligation is distinct from the obligations laid down in Articles 4 to 7, 10 and 11 of Directive 85/337, which are, essentially, obligations to collect and exchange information, consult, publicise and guarantee the possibility of challenge before the courts. They are procedural provisions which concern only the implementation of the substantial obligation laid down in Article 3 of that directive.

However, even if, under Article 8 of Directive 85/337, the results of the consultations and the information gathered pursuant to Articles 5 to 7 must be taken into consideration in the development consent procedure, that obligation to take into consideration, at the conclusion of the decision‑making process, information gathered by the competent environmental authority must not be confused with the assessment obligation laid down in Article 3 of Directive 85/337. Indeed, that assessment, which must be carried out before the decision-making process, involves an examination of the substance of the information gathered as well as a consideration of the expediency of supplementing it, if appropriate, with additional data. That competent environmental authority must thus undertake both an investigation and an analysis to reach as complete an assessment as possible of the direct and indirect effects of the project concerned on the factors set out in the first three indents of Article 3 and the interaction between those factors.

It follows therefore both from the wording of the provisions at issue of Directive 85/337 and from its general scheme that Article 3 is a fundamental provision. The transposition of Articles 4 to 11 alone cannot be regarded as automatically transposing Article 3. Consequently, by failing to transpose Article 3, a Member State fails to fulfil its obligations under Directive 85/337, as amended.

In that respect, whilst it is true that the transposition of a directive into domestic law does not necessarily require the provisions of the directive to be enacted in precisely the same words in a specific, express provision of national law and a general legal context may be sufficient if it actually ensures the full application of the directive in a sufficiently clear and precise manner, the fact remains that the provisions of a directive must be implemented with unquestionable binding force and with the specificity, precision and clarity required in order to satisfy the need for legal certainty, which requires that, in the case of a directive intended to confer rights on individuals, the persons concerned must be enabled to ascertain the full extent of their rights.

(see paras 36, 38-41, 46, 107, operative part)

2. Article 2(1) of Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 97/11 and by Directive 2003/35, states that the environmental impact assessment must take place before the giving of consent. That entails examination of a project’s direct and indirect effects on the factors referred to in Article 3 of that directive and on the interaction between those factors being fully carried out before consent is given.

In those circumstances, while nothing precludes the Member State’s choice to entrust the attainment of that directive’s aims to two different authorities, that is subject to those authorities’ respective powers and the rules governing their implementation ensuring that an environmental impact assessment is carried out fully and in good time, that is to say before the giving of consent, within the meaning of that directive.

Thus, a Member State which fails to ensure that, when planning authorities and the Agency both have decision-making powers concerning a project, there will be complete fulfilment of the requirements of Articles 2 to 4 of that directive fails to fulfil its obligations under that directive.

(see paras 76-77, 107, operative part)

3. Demolition works come within the scope of Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 97/11 and by Directive 2003/35, and, in that respect, may constitute a ‘project’ within the meaning of Article 1(2) thereof.

The definition of the word ‘project’ in Article 1(2) of that directive cannot lead to the conclusion that demolition works could not satisfy the criteria of that definition. Such works can, indeed, be described as ‘other interventions in the natural surroundings and landscape’. That interpretation is supported by the fact that, if demolition works were excluded from the scope of that directive, the references to ‘the cultural heritage’ in Article 3 thereof, to ‘landscapes of historical, cultural or archaeological significance’ in point 2(h) of Annex III to that directive and to ‘the architectural and archaeological heritage’ in point 3 of Annex IV thereto would have no purpose.

(see paras 97-98, 101)

JUDGMENT OF THE COURT (First Chamber)

3 March 2011 (*)

(Failure of a Member State to fulfil obligations – Directive 85/337/EEC – Obligation of the competent environmental authority to carry out an assessment of the effects of certain projects on the environment – More than one competent authority – Need to ensure an assessment of the interaction between factors likely to be directly or indirectly affected – Application of the directive to demolition works)

In Case C‑50/09,

ACTION under Article 226 EC for failure to fulfil obligations, brought on 4 February 2009,

European Commission, represented by P. Oliver, C. Clyne and J.-B. Laignelot, acting as Agents, with an address for service in Luxembourg,

applicant,

v

Ireland, represented by D. O’Hagan, acting as Agent, assisted by G. Simons SC and D. McGrath BL, with an address for service in Luxembourg,

defendant,

THE COURT (First Chamber),

composed of A. Tizzano, President of the Chamber, J.‑J. Kasel, A. Borg Barthet, M. Ilešič and M. Berger (Rapporteur), Judges,

Advocate General: J. Mazák,

Registrar: N. Nanchev, Administrator,

having regard to the written procedure and further to the hearing on 24 June 2010,

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

gives the following

Judgment

1 By its action, the Commission of the European Communities requested the Court to declare that:

– by failing to transpose Article 3 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) and by Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 (OJ 2003 L 156, p. 17; ‘Directive 85/337’);

– by failing to ensure that, where Irish planning authorities and the Environmental Protection Agency (‘the Agency’) both have decision-making powers on a project, there will be complete fulfilment of the requirements of Articles 2 to 4 of that directive; and

– by excluding demolition works from the scope of its legislation transposing that directive,

Ireland has failed to fulfil its obligations under that directive.

Legal context

European Union legislation

2 Article 1(2) and (3) of Directive 85/337 provide:

‘(2) For the purposes of this Directive:

“project” means:

– the execution of construction works or of other installations or schemes,

– other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources;

...

“development consent” means:

the decision of the competent authority or authorities which entitles the developer to proceed with the project.

(3) The competent authority or authorities shall be that or those which the Member States designate as responsible for performing the duties arising from this Directive.’

3 Under Article 2(1) to (2a) of Directive 85/337:

‘(1) Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely...