Stichting Natuur en Milieu and Others v College van Gedeputeerde Staten van Groningen (C-165/09) and College van Gedeputeerde Staten van Zuid-Holland (C-166/09 and C-167/09).

• Jurisdiction: European Union
• Celex Number: 62009CJ0165
• ECLI: ECLI:EU:C:2011:348
• Docket Number: C-165/09,C-167/09
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 26 May 2011

Joined Cases C-165/09 to C-167/09

Stichting Natuur en Milieu and Others

v

College van Gedeputeerde Staten van Groningen

and

College van Gedeputeerde Staten van Zuid-Holland

(References for a preliminary ruling from the Raad van State)

(Environment – Directive 2008/1/EC – Permit for the construction and operation of a power station – Directive 2001/81/EC – National emission ceilings for certain atmospheric pollutants – Power of the Member States during the transitional period – Direct effect)

Summary of the Judgment

1. Preliminary rulings – Jurisdiction of the Court – Limits – Jurisdiction of the national court

(Art. 267 TFEU)

2. Environment – Integrated pollution prevention and control – Directive 2008/1 – Conditions of a permit for the construction and operation of an industrial installation – Obligation on the Member States to include among the conditions for grant of that permit the national emission ceilings for SO₂ and NO_x laid down by Directive 2001/81 – No such obligation)

(Council Directive 96/61, as codified by European Parliament and Council Directive 2008/1, Art. 9(1), (3) and (4))

3. Environment – Atmospheric pollution – Directive 2001/81 – National emission ceilings for certain atmospheric pollutants – Obligations on the Member States to refrain from taking measures during the transitional period

(Art. 4(3) TEU; Art. 288, third para., TFEU; European Parliament and Council Directive 2001/81, Art. 4)

4. Environment – Atmospheric pollution – Directive 2001/81 – National emission ceilings for certain atmospheric pollutants – Obligations on the Member States to refrain from taking measures during the transitional period

(Art. 4(3) TEU; Art. 288, third para., TFEU; European Parliament and Council Directive 2001/81, Art. 4)

5. Environment – Atmospheric pollution – Directive 2001/81 – National emission ceilings for certain atmospheric pollutants – Obligations on the Member States to act during the transitional period

(Art. 288, third para., TFEU; European Parliament and Council Directive 2001/81, Arts 4, 6, 7(1) and (2) and 8(1) and (2))

6. Environment – Atmospheric pollution – Directive 2001/81 – National emission ceilings for certain atmospheric pollutants – Obligations of the Member States during the transitional period

(Art. 288, third para., TFEU; European Parliament and Council Directive 2001/81, Art. 4)

7. Environment – Atmospheric pollution – Directive 2001/81 – Direct effect during the transitional period

(European Parliament and Council Directive 2001/81, Arts 4 and 6)

1. In proceedings under Article 267 TFEU, which are based on a clear separation of functions between the national courts and the Court of Justice, the national court alone has jurisdiction to find and assess the facts in the case before it and to interpret and apply national law. Similarly, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the forthcoming judicial decision, to determine, in the light of the particular circumstances of the case, both the need for and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of European Union law, the Court is in principle bound to give a ruling.

(see para. 47)

2. Article 9(1), (3) and (4) of Directive 96/61 concerning integrated pollution prevention and control, in its original version and as codified by Directive 2008/1, must be interpreted as meaning that, when granting an environmental permit for the construction and operation of an industrial installation, the Member States are not obliged to include among the conditions for grant of that permit the national emission ceilings for SO₂ and NO_x laid down by Directive 2001/81 on national emission ceilings for certain atmospheric pollutants, whilst they must comply with the obligation arising from Directive 2001/81 to adopt or envisage, within the framework of national programmes, appropriate and coherent policies and measures capable of reducing, as a whole, emissions of inter alia those pollutants to amounts not exceeding the ceilings laid down in Annex I to that directive by the end of 2010 at the latest.

(see para. 76, operative part 1)

3. During the transitional period from 27 November 2002 to 31 December 2010, provided for in Article 4 of Directive 2001/81 on national emission ceilings for certain atmospheric pollutants, Article 4(3) TEU, the third paragraph of Article 288 TFEU and Directive 2001/81 require the Member States to refrain from adopting any measures liable seriously to compromise the attainment of the result prescribed by that directive.

(see paras 78-79, 91, operative part 2)

4. During the transitional period from 27 November 2002 to 31 December 2010, provided for in Article 4 of Directive 2001/81 on national emission ceilings for certain atmospheric pollutants, adoption by the Member States of a specific measure relating to a single source of SO₂ and NO_x does not appear liable, in itself, seriously to compromise the attainment of the result prescribed by that directive. It is for the national court to review whether that is true of each of the decisions granting an environmental permit for the construction and operation of an industrial installation.

(see paras 80-83, 91, operative part 2)

5. During the transitional period from 27 November 2002 to 31 December 2010, provided for in Article 4 of Directive 2001/81 on national emission ceilings for certain atmospheric pollutants, the third paragraph of Article 288 TFEU and Articles 6, 7(1) and (2) and 8(1) and (2) of Directive 2001/81 require the Member States, first, to draw up, to update and to revise as necessary programmes for the progressive reduction of national SO₂ and NO_x emissions, which they are obliged to make available to the public and appropriate organisations by means of clear, comprehensible and easily accessible information, and to notify to the European Commission within the time-limit prescribed, and second, to prepare and annually update national inventories of those emissions and national emission projections for 2010, which they must report to the European Commission and the European Environment Agency within the time-limit prescribed.

(see paras 87, 91, operative part 2)

6. During the transitional period from 27 November 2002 to 31 December 2010, provided for in Article 4 of Directive 2001/81 on national emission ceilings for certain atmospheric pollutants, the third paragraph of Article 288 TFEU and Directive 2001/81 itself do not require the Member States to refuse or to attach restrictions to the grant of an environmental permit for the construction and operation of an industrial installation, or to adopt specific compensatory measures for each permit granted of that kind, even where the national emission ceilings for SO₂ and NO_x are exceeded or risk being exceeded.

(see paras 90-91, operative part 2)

7. Article 4 of Directive 2001/81 on national emission ceilings for certain atmospheric pollutants is not unconditional and sufficiently precise for individuals to be able to rely upon it before the national courts before 31 December 2010.

On the other hand, Article 6 of Directive 2001/81 grants rights to individuals directly concerned which can be relied upon before the national courts in order to claim that, during the transitional period from 27 November 2002 to 31 December 2010, the Member States should adopt or envisage, within the framework of national programmes, appropriate and coherent policies and measures capable of reducing, as a whole, emissions of the pollutants covered so as to comply with the national ceilings laid down in Annex I to that directive by the end of 2010 at the latest, and should make the programmes drawn up for those purposes available to the public and appropriate organisations by means of clear, comprehensible and easily accessible information.

(see paras 98-104, operative part 3)

JUDGMENT OF THE COURT (First Chamber)

26 May 2011 (*)

(Environment – Directive 2008/1/EC – Permit for the construction and operation of a power station – Directive 2001/81/EC – National emission ceilings for certain atmospheric pollutants – Power of the Member States during the transitional period – Direct effect)

In Joined Cases C‑165/09 to C‑167/09,

REFERENCES for a preliminary ruling under Article 234 EC from the Raad van State (Netherlands), made by decisions of 29 April 2009, received at the Court on 30 April 2009, in the proceedings

Stichting Natuur en Milieu (C‑165/09),

Stichting Greenpeace Nederland,

Mr and Mrs B. Meijer,

E. Zwaag,

F. Pals

v

College van Gedeputeerde Staten van Groningen,

and

Stichting Natuur en Milieu (C‑166/09),

Stichting Zuid-Hollandse Milieufederatie,

Stichting Greenpeace Nederland,

Vereniging van Verontruste Burgers van Voorne

v

College van Gedeputeerde Staten van Zuid-Holland,

and

Stichting Natuur en Milieu (C‑167/09),

Stichting Zuid-Hollandse Milieufederatie,

Stichting Greenpeace Nederland,

Vereniging van Verontruste Burgers van Voorne

v

College van Gedeputeerde Staten van Zuid-Holland,

third parties:

RWE Eemshaven Holding BV, formerly RWE Power AG (C-165/09),

Electrabel Nederland NV (C-166/09),

College van Burgemeester en Wethouders Rotterdam (C-166/09 and C‑167/09),

E.On Benelux NV (C-167/09),

THE COURT (First Chamber),

composed of A. Tizzano (Rapporteur), President of the Chamber, J.‑J. Kasel, E. Levits, M. Safjan, and M. Berger, Judges,

Advocate General: J. Kokott,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 14 October 2010,

after considering the observations submitted on behalf of:

– Stichting Natuur en Milieu, by J.G. Vollenbroek, acting as Agent,

– Stichting Greenpeace Nederland, by J.G. Vollenbroek, acting as Agent, and B.N. Kloostra, advocaat,

– Stichting...