Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2006:287
• Court: Court of Justice (European Union)
• Docket Number: C-508/03
• Date: 04 May 2006
• Procedure Type: Recurso por incumplimiento - inadmisible
• Celex Number: 62003CJ0508

Case C-508/03

Commission of the European Communities

v

United Kingdom of Great Britain and Northern Ireland

(Failure of a Member State to fulfil obligations – Admissibility – Subject-matter of the case – Jurisdiction of national courts – Action devoid of purpose – Legal certainty and legitimate expectations of developers – Directive 85/337/EEC – Assessment of the effects of certain projects on the environment – White City development project – Crystal Palace development project – Projects falling within Annex II to Directive 85/337 – Obligation to assess projects likely to have significant effects on the environment – Burden of proof – Transposition of Directive 85/337 into national law – Grant of consent comprising more than one stage)

Summary of the Judgment

1. Environment – Assessment of the effects of certain projects on the environment – Directive 85/337

(Arts 10 EC, 211 EC and 226 EC; Council Directive 85/337)

2. Environment – Assessment of the effects of certain projects on the environment – Directive 85/337

(Council Directive 85/337, Arts 2(1) and 4(2))

1. In proceedings under Article 226 EC for failure to fulfil obligations it is incumbent upon the Commission to prove the allegation that the obligation has not been fulfilled, by placing before the Court the information needed to enable the Court to establish that the obligation has not been fulfilled, and in so doing the Commission may not rely on any presumptions.

With regard more specifically to Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, as amended, the Commission must furnish at least some evidence of the effects that the project in question is likely to have on the environment.

In a case where the competent authority has investigated whether an assessment is necessary, the Commission must back up its own assertions and contest those of the defendant Member State through detailed examination of the analytical material and documents supplied by the latter or by obtaining, producing, examining or providing an analytical presentation of tangible and specific evidence which enables the Court to assess whether the competent authority did in fact exceed the limits of its discretion.

(see paras 77-78, 85, 93)

2. It is clear from Article 2(1) of Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, as amended, that projects likely to have significant effects on the environment, as referred to in Article 4 of the directive read in conjunction with Annexes I and II thereto, must be made subject to an assessment with regard to their effects before development consent is given.

Where national law provides for a consent procedure comprising more than one stage, one involving a principal decision and the other involving an implementing decision which cannot extend beyond the parameters set by the principal decision, the effects which a project may have on the environment must, as a rule, be identified and assessed at the time of the procedure relating to the principal decision. If those effects are not, however, identifiable until the time of the procedure relating to the implementing decision, the assessment is to be carried out in the course of that procedure.

National rules providing that an environmental impact assessment in respect of a project may be carried out only at the initial outline planning permission stage, and not at the later reserved matters stage, are therefore contrary to Articles 2(1) and 4(2) of Directive 85/337, as amended.

(see paras 103-106, operative part 1)

JUDGMENT OF THE COURT (First Chamber)

4 May 2006 (*)

(Failure of a Member State to fulfil obligations – Admissibility – Subject-matter of the case – Jurisdiction of national courts – Action devoid of purpose – Legal certainty and legitimate expectations of developers – Directive 85/337/EEC – Assessment of the effects of certain projects on the environment – White City development project – Crystal Palace development project – Projects falling within Annex II to Directive 85/337 – Obligation to assess projects likely to have significant effects on the environment – Burden of proof – Transposition of Directive 85/337 into national law – Grant of consent comprising more than one stage)

In Case C-508/03,

ACTION under Article 226 EC for failure to fulfil obligations, brought on 1 December 2003,

Commission of the European Communities, represented by F. Simonetti and X. Lewis, acting as Agents,

applicant,

v

United Kingdom of Great Britain and Northern Ireland, represented by K. Manji, acting as Agent, D. Elvin QC and J. Maurici, Barrister,

defendant,

THE COURT (First Chamber),

composed of P. Jann (Rapporteur), President of the Chamber, K. Schiemann, N. Colneric, E. Juhász and E. Levits, Judges,

Advocate General: P. Léger,

Registrar: L. Hewlett, Principal Administrator,

having regard to the written procedure and further to the hearing on 22 June 2005,

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

gives the following

Judgment

1 By its application, the Commission of the European Communities seeks a declaration from the Court that:

– by failing to apply correctly Articles 2(1) and 4(2) 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) in relation to the proposed urban development projects at White City and at Crystal Palace as projects falling within point 10(b) of Annex II to the directive, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under that directive;

– by failing to ensure the correct application of Articles 2(1), 4(2), 5(2) and 8 of Directive 85/337, as amended by Council Directive 97/11/EC of 3 March 1997 (OJ 1997 L 73, p. 5) (‘Directive 85/337, as amended’), when development consent is granted in a multi-stage procedure, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under that directive.

Legal context

Community legislation

2 According to the fifth recital in the preamble thereto, Directive 85/337 is intended to establish general principles for the assessment of environmental effects with a view to supplementing and coordinating development consent procedures governing public and private projects which are likely to have an effect on the environment.

3 For this purpose, Article 1(2) of Directive 85/337 defines ‘development consent’ as ‘the decision of the competent authority or authorities which entitles the developer to proceed with the project’.

4 Article 2(1) of the directive states:

‘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.’

5 Article 4 of the directive provides:

‘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.’

6 Article 5(2) of the directive provides that ‘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’.

7 Under Article 8 of the directive, ‘information gathered pursuant to Articles 5, 6 and 7 must be taken into consideration in the development consent procedure’.

8 Point 10(b) of Annex II to the directive refers to ‘urban development projects’.

9 Directive 85/337, in particular the rules relating to projects falling within Annex II, was substantially amended by Directive 97/11, which had to be transposed in the United Kingdom by 14 March 1999 at the latest. Since the applications seeking consent for the two projects at issue in the first complaint were submitted to the competent authorities before that date, those amendments are not relevant to the projects, as is clear from Article 3(2) of Directive 97/11.

10 The second complaint, however, must be considered in the light of Directive 85/337, as amended.

11 In that regard, while Article 1(2) of Directive 85/337, as amended, remains unchanged, Article 2(1) of the directive now provides that ‘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 a requirement for development consent and an assessment with regard to their effects. These projects are defined in Article 4.’

12 Directive 97/11 also made a minor amendment to the wording of Article 5(2) of Directive 85/337 by inserting an indent requiring the developer also to provide:

– ‘an outline of the main alternatives studied by the developer and an indication of the main reasons for his choice, taking into...