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
• Court: Court of Justice (European Union)
• Writing for the Court: Tizzano
• ECLI: ECLI:EU:C:2010:775
• Docket Number: C-167/09,C-165/09
• Date: 16 December 2010
• Procedure Type: Reference for a preliminary ruling

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 16 December 2010 (1)

Joined Cases C‑165/09, C‑166/09 and C‑167/09

Stichting Natuur en Milieu,

Stichting Greenpeace Nederland,

B. Meijer,

E. Zwaag and

F. Pals

v

College van Gedeputeerde Staten van Groningen,

Stichting Natuur en Milieu,

Stichting Zuid-Hollandse Milieufederatie,

Stichting Greenpeace Nederland and

Vereniging van Verontruste Burgers van Voorne

v

Gedeputeerde Staten van Zuid-Holland

and

Stichting Natuur en Milieu,

Stichting Zuid-Hollandse Milieufederatie,

Stichting Greenpeace Nederland and

Vereniging van Verontruste Burgers van Voorne

v

Gedeputeerde Staten van Zuid-Holland

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

(Directive 2001/81/EC – Atmospheric pollution – National emission ceilings for certain atmospheric pollutants – Member State measures – Directive 2008/1/EC – Integrated pollution prevention and control – Environmental permit – Power station)

I – Introduction

1. As regards the protection of air quality, the European Union has set itself ambitious targets which leave Member States facing major challenges. That has already become apparent in cases on the quality of ambient air (2) and is confirmed in the present proceedings on national emission ceilings.

2. Directive 2001/81/EC of the European Parliament and of the Council of 23 October 2001 on national emission ceilings for certain atmospheric pollutants (3) (‘the NEC Directive’) establishes for each Member State maximum total amounts of certain atmospheric pollutants that can be emitted each year. The Netherlands informed the Commission initially that it would probably be unable to meet its commitments with regard to sulphur dioxide and nitrogen oxides. (4) Now, the Court is asked to rule whether that Member State may nevertheless authorise projects which will emit further quantities of those polluting substances.

3. The main proceedings concern the grant of permits for several power station projects. The legal framework applicable thereto results from the directive concerning integrated pollution prevention and control (5) (‘the IPPC Directive’), which governs the grant of permits for industrial installations.

II – Legal framework

A – The IPPC Directive

4. The provisions of the IPPC Directive are reproduced below in the consolidated version of Directive 2008/1, as this replaced Directive 96/61 with effect from 18 February 2008 but without the introduction of substantive amendments.

5. Of the definitions established in Article 2 of the IPPC Directive, those set out in paragraphs 2, 7 and 15 are of particular interest here:

‘For the purposes of this Directive the following definitions shall apply:

…

2. “pollution” means the direct or indirect introduction, as a result of human activity, of substances, vibrations, heat or noise into the air, water or land which may be harmful to human health or the quality of the environment, result in damage to material property, or impair or interfere with amenities and other legitimate uses of the environment;

…

7. “environmental quality standard” means the set of requirements which must be fulfilled at a given time by a given environment or particular part thereof, as set out in Community legislation;

…

15. “the public concerned” means the public affected or likely to be affected by, or having an interest in, the taking of a decision on the issuing or the updating of a permit or of permit conditions; for the purposes of this definition, non-governmental organisations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest.’

6. Article 3 of the IPPC Directive defines the essential requirements imposed on an installation:

‘Member States shall take the necessary measures to provide that the competent authorities ensure that installations are operated in such a way that:

(a) all the appropriate preventive measures are taken against pollution, in particular through application of the best available techniques;

(b) no significant pollution is caused;

…’

7. According to Article 4 of the IPPC Directive, all installations within the meaning of the directive require a permit.

8. The first paragraph of Article 8 of the IPPC Directive governs the grant of a permit for installations:

‘Without prejudice to other requirements laid down in national or Community legislation, the competent authority shall grant a permit containing conditions guaranteeing that the installation complies with the requirements of this Directive or, if it does not, shall refuse to grant the permit.’

9. Article 9 of the IPPC Directive governs conditions which must be included in a permit:

‘1. Member States shall ensure that the permit includes all measures necessary for compliance with the requirements of Articles 3 and 10 for the granting of permits in order to achieve a high level of protection for the environment as a whole by means of protection of the air, water and land.

…

3. The permit shall include emission limit values for polluting substances, in particular those listed in Annex III, likely to be emitted from the installation concerned in significant quantities, having regard to their nature and their potential to transfer pollution from one medium to another (water, air and land). If necessary, the permit shall include appropriate requirements ensuring protection of the soil and ground water and measures concerning the management of waste generated by the installation. Where appropriate, limit values may be supplemented or replaced by equivalent parameters or technical measures.

...

4. Without prejudice to Article 10, the emission limit values and the equivalent parameters and technical measures referred to in paragraph 3 shall be based on the best available techniques, without prescribing the use of any technique or specific technology, but taking into account the technical characteristics of the installation concerned, its geographical location and the local environmental conditions. In all circumstances, the conditions of the permit shall contain provisions on the minimisation of long-distance or transboundary pollution and ensure a high level of protection for the environment as a whole.

…

7. The permit may contain such other specific conditions for the purposes of this Directive as the Member State or competent authority may think fit.

...’

10. Article 10 of the IPPC Directive governs the relationship between the best available techniques and environmental quality standards which applies when granting permits for installations:

‘Where an environmental quality standard requires stricter conditions than those achievable by the use of the best available techniques, additional measures shall in particular be required in the permit, without prejudice to other measures which might be taken to comply with environmental quality standards.’

11. Article 16 of the IPPC Directive concerns legal protection. Of particular interest are paragraphs 1 and 3:

‘1. Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive when:

(a) they have a sufficient interest; or

(b) they maintain the impairment of a right, where administrative procedural law of a Member State requires this as a precondition.

…

3. What constitutes a sufficient interest and impairment of a right shall be determined by the Member States, consistently with the objective of giving the public concerned wide access to justice. To this end, the interest of any non-governmental organisation promoting environmental protection and meeting any requirements under national law shall be deemed sufficient for the purpose of paragraph 1(a).

Such organisations shall also be deemed to have rights capable of being impaired for the purpose of paragraph 1(b).’

12. That provision was inserted into the IPPC Directive (6) for the purposes of implementing Article 9(2) of the Aarhus Convention. (7)

B – The NEC Directive

13. According to Article 4 of the NEC Directive, emission quantities must by 2010 have fallen below national emission ceilings and compliance therewith must be ensured thereafter:

‘1. By the year 2010 at the latest, Member States shall limit their annual national emissions of the pollutants sulphur dioxide (SO₂), nitrogen oxides (NO_x), volatile organic compounds (VOC) and ammonia (NH₃) to amounts not greater than the emission ceilings laid down in Annex I, taking into account any modifications made by Community measures adopted following the reports referred to in Article 9.

2. Member States shall ensure that the emission ceilings laid down in Annex I are not exceeded in any year after 2010.’

14. Annex I to the NEC Directive establishes for the Netherlands, inter alia, ceilings of 50 kilotonnes, that is to say, 50 000 tonnes, of sulphur dioxide and 260 kilotonnes, that is to say, 260 000 tonnes, of nitrogen oxides.

15. According to Article 6 of the NEC Directive, Member States must, by 1 October 2002 at the latest, draw up programmes for the progressive reduction of national emissions in order to comply with the national ceilings laid down in Annex I by 2010 at the latest. Article 7 requires them to prepare and annually update emission inventories and emission projections for 2010. They must communicate that information to the Commission which, acting jointly with the European Environment Agency, is responsible for its publication.

16. As regards the substance of the programmes, recitals 11 and 12 in the preamble to the NEC Directive state:

‘(11) A set of national ceilings for each Member State for...