CELEX: 62020CJ0683
Failure of a Member State to fulfil obligations
Environment
Directive 2002/49/EC
Assessment and management of environmental noise
Major roads and major railways
Article 8(2)
Action plans
Article 10(2)
Annex VI
Summaries of action plans
Failure to communicate to the Commission within the prescribed period

By its application, the European Commission asks the Court to declare that, by failing to draw up action plans and by not communicating to the Commission summaries of action plans for the major roads and major railways referred to in the annex to this judgment, the Slovak Republic has failed to fulfil its obligations under Article 8(2) and under Article 10(2) of Directive 2002/49/EC of the European Parliament and of the Council of 25 June 2002 relating to the assessment and management of environmental noise (
OJ 2002 L 189, p. 12
), read in conjunction with Annex VI thereto.
Legal context
Article 3 of Directive 2002/49, titled ‘Definitions’, states as follows:
‘For the purposes of this Directive:
…
(n)
“major road” shall mean a regional, national or international road, designated by the Member State, which has more than three million vehicle passages a year;
(o)
“major railway” shall mean a railway, designated by the Member State, which has more than 30000 train passages per year;
…
(t)
“action plans” shall mean plans designed to manage noise issues and effects, including noise reduction if necessary;
…’
Article 8 of that directive, entitled ‘Action plans’, provides as follows:
‘…
2.   Member States shall ensure that, no later than 18 July 2013, the competent authorities have drawn up action plans notably to address priorities which may be identified by the exceeding of any relevant limit value or by other criteria chosen by the Member States for the agglomerations and for the major roads as well as the major railways within their territories.
…
5.   The action plans shall be reviewed, and revised if necessary, when a major development occurs affecting the existing noise situation, and at least every five years after the date of their approval.
…
7.   Member States shall ensure that the public is consulted about proposals for action plans, given early and effective opportunities to participate in the preparation and review of the action plans, that the results of that participation are taken into account and that the public is informed on the decisions taken. Reasonable time-frames shall be provided allowing sufficient time for each stage of public participation.
If the obligation to carry out a public participation procedure arises simultaneously from this Directive and any other [EU] legislation, Member States may provide for joint procedures in order to avoid duplication.’
Article 10 of that directive, entitled ‘Collection and publication of data by Member States and the Commission’, provides as follows, in paragraph 2 thereof:
‘The Member States shall ensure that the information from strategic noise maps and summaries of the action plans as referred to in Annex VI are sent to the Commission within six months of the dates laid down in Articles 7 and 8 respectively.’
Annex V to that directive lays down the minimum requirements for action plans.
Annex VI to that directive sets out the data to be sent to the Commission, including, inter alia, for major roads, major railways and major airports ‘a summary of the action plan covering all the important aspects referred to in Annex V, not exceeding ten pages in length’.
Pre-litigation procedure
On 25 June 2010, the Slovak authorities communicated to the Commission, by means of the Reportnet electronic portal of the European Environmental Information and Observation Network (Eionet), a list of agglomerations, major roads, major railways and major airports falling within the scope of Directive 2002/49. On 16 January 2014, it updated that list as far as the major railways were concerned.
On 27 March 2015, following an initial exchange of letters, the Commission’s services sent the Slovak authorities, in the context of EU Pilot procedure 7453/15/ENVI, a request concerning the implementation of Directive 2002/49.
On 26 May 2015, the Slovak authorities replied to that request and, on 24 July 2015, updated the data relating to agglomerations and major roads.
On 29 April 2016, the Commission sent the Slovak Republic a letter of formal notice in which it found several failures by that Member State to fulfil its obligations under Directive 2002/49, in particular the obligation laid down in Article 8(2) to draw up action plans, as well as that, provided for in Article 10(2), read in conjunction with Annexes V and VI to that directive, to send it summaries of those action plans.
By letter of 17 June 2016 the Slovak Republic replied to that letter of formal notice.
On 15 June 2017, after examining that reply and the information communicated subsequently to that reply, the Commission sent the Slovak Republic a reasoned opinion. In that opinion, it found, inter alia, that that Member State had not drawn up action plans for 462 major roads and 16 major railways, in breach of Article 8(2) and (4) of Directive 2002/49, read in conjunction with Annex V thereto, and had not sent, in respect of those major roads and major railways, the summaries of the action plans, in breach of Article 10(2) of that directive, read in conjunction with Annexes V and VI thereto. The Commission set the Slovak Republic a deadline of two months from receipt of that opinion within which to adopt the measures necessary to put an end to those infringements.
By letter of 24 July 2017, the Slovak Republic stated that it had not been able to comply fully and in due time with the obligations arising under Directive 2002/49 because the road infrastructure managers and railway operators had failed to comply with their legal obligations within the prescribed periods. That Member State also informed the Commission that 17 action plans concerning major roads were in the process of being prepared.
On 21 August and 10 September 2020, the Slovak authorities sent new information to the Eionet network concerning the major roads and major railways, respectively.
Taking the view that the Slovak Republic had failed to fulfil its obligations under Article 8(2) and under Article 10(2) of Directive 2002/49, read in conjunction with Annex VI thereto, the Commission decided to bring the present action.
The action
Arguments of the parties
While acknowledging that the Slovak Republic has made some progress in the implementation of Directive 2002/49 since the initiation of the proceedings, the Commission claims that that Member State has failed to fulfil its obligation to send it summaries of the action plans in respect of 445 major roads outside agglomerations and 16 major railways outside agglomerations, as provided for in Article 10(2) of Directive 2002/49, read in conjunction with Annex VI thereto. Given the absence of any information to the contrary, the Commission thus infers that the Slovak Republic has not drawn up action plans for those roads and railways and has therefore failed to fulfil its obligation under Article 8(2) of that directive.
The Slovak Republic concedes that it fulfilled late its obligations under Article 8(2) and Article 10(2) of Directive 2002/49. It nevertheless considers that the present action has become devoid of purpose.
It claims that, having sent to the Commission, on 10 September 2020, a document entitled ‘Action plan for protection against noise from certain major railways managed by the Slovak national railway company (ŽSR) in operation in 2011 – Summary’, dating from July 2013, and, on 31 December 2020, a document entitled ‘Action plan for protection against noise from certain major roads managed by the Slovak Road Administration (SSC) on the basis of the situation in 2011 – Summary’, dating from November 2020, none of the alleged failures to fulfil obligations remain applicable.
In its reply, the Commission disputes the relevance of those documents. It submits that those documents refer to public consultations carried out in 2020. Since public consultations must, in accordance with Article 8(7) of Directive 2002/49, precede the adoption of action plans, those documents cannot therefore relate to action plans covering the period from 2013 to 2018. They are probably recent documents relating to a past situation. It follows from a systematic interpretation of the provisions of Directive 2002/49 that an action plan must be adopted in good time to cover a future period. In particular, it follows from the system of obligations established by that directive, in particular Article 8(5) thereof, that, after five years at the latest, action plans are to be reviewed and, if necessary, revised. Consequently, the adoption in 2020 of the action plan which should have been drawn up in 2013 cannot lead to compliance with Directive 2002/49. Were it possible to adopt action plans after the expiry of the period to which they relate, Directive 2002/49 would be rendered redundant.
The Commission adds that, in any event, the issue of whether the Slovak Republic fulfilled its obligations under Article 8(2) and Article 10(2) of Directive 2002/49 must be assessed by reference to the situation prevailing at the end of the period laid down in the reasoned opinion, in the present case, on 15 August 2017. It is common ground that, on that date, the Slovak Republic had yet to draw up action plans for 445 major roads and 16 major railways.
The Slovak Republic rejects the Commission’s line of argument, which it submits is illogical and confused. It maintains that it follows from Directive 2002/49 that the action plans which that Member State was required to draw up for 16 major railways and 445 major roads before 18 July 2013 had to rely on data from 2011 and to include the measures for the years 2013 to 2018. The Slovak Republic claims that it fulfilled that obligation a posteriori. The requirements set out by the Commission at the reply stage amount, in practice, to the Slovak Republic being obliged to refrain from endeavouring, if only a posteriori, to fulfil the obligation laid down in Article 8(2) of Directive 2002/49 and referred to in the present action, while requiring it to seek to fulfil another obligation, namely that laid down in Article 8(5) of Directive 2002/49 – an obligation in respect of which no infringement proceedings have been brought against it. In other words, the Commission’s arguments mean that if a Member State has not fulfilled its obligations within the period laid down by that directive, then it will never be able to do so.
In the event that the Commission alleges, in the reply, that the Slovak Republic failed to fulfil the obligation to carry out in good time a public consultation on the action plans, laid down in Article 8(7) of Directive 2002/49, and the obligation to review or revise action plans at the latest five years after their date of approval, laid down in Article 8(5) of Directive 2002/49, the Slovak Republic submits that those complaints are inadmissible.
Furthermore, the Slovak Republic points out, first, that, even though the action plans which are the subject of the action were not finalised until 2020, that does not mean that no measure to combat environmental noise was adopted with regard to the major roads and major railways concerned after 2013. In that regard, it mentions several measures for the modernisation of railway lines or aimed directly at reducing noise sources.
Next, the Slovak Republic contends that it is fully aware of its obligations under Article 8(5) of Directive 2002/49. It states that, in accordance with that provision, it drew up and communicated to the Commission several summaries of action plans taking into account the situation in respect of 2016.
Lastly, the Slovak Republic points out that it was far from being the only Member State to have delayed in fulfilling the obligations under Article 8(2) and Article 10(2) of Directive 2002/49.
Findings of the Court
In accordance with the Court’s settled case-law, the issue whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion and the Court cannot take account of any subsequent changes (see judgment of 27 January 2021, Commission v Austria(VAT – Travel agencies),
C‑787/19
, not published,
EU:C:2021:72
, paragraph
and the case-law cited).
In the present case, the Slovak Republic does not dispute that, on the expiry of the period laid down in the reasoned opinion, namely 15 August 2017, it had not drawn up action plans for the major roads and major railways referred to in the annex to the present judgment, nor forwarded to the Commission summaries of those action plans.
As regards the documents entitled ‘Action plan for protection against noise from certain major railways managed by the Slovak national railway company (ŽSR) in operation in 2011 – Summary’ and ‘Action plan for protection against noise from certain major roads managed by the Slovak Road Administration (SSC) on the basis of the situation in 2011 – Summary’, the Slovak Republic does not dispute that it communicated them to the Commission on 10 September and 31 December 2020, that is to say, after the expiry of the period laid down in the reasoned opinion. As regards the first of those two documents, it also states that the reference to 2013 (see paragraph 18 above) was retained on that document, as it was initially to have been drawn up in 2013. However, it confirms that even that document was not finalised until 2020, after the public consultation.
It follows that, in accordance with the case-law cited in paragraph 26 above, those documents are irrelevant for the purposes of assessing the existence, at that date, of the alleged infringements.
Furthermore, it must be noted that the Slovak Republic’s claim concerning the inadmissibility of some of the Commission’s arguments is based on a misreading of the Commission’s pleadings.
As the Slovak Republic itself points out, the Commission does not ask the Court to find that there has been a failure to fulfil obligations other than those laid down in Article 8(2) and Article 10(2) of Directive 2002/49.
In fact, the Commission referred to the obligations to revise the action plans and consult the public about proposals for action plans, laid down in Article 8(5) and (7) of that directive, solely in the context of the documents referred to in paragraph 28 above, in order to demonstrate, in particular, that those documents were adopted recently and, in any event, after the expiry of the period laid down in the reasoned opinion, a fact which is not disputed in the present proceedings by the Slovak Republic.
In so far as the Slovak Republic points out that it was far from being the only Member State to have delayed in fulfilling the obligations arising under Article 8(2) and Article 10(2) of Directive 2002/49, suffice it to note that the Court has repeatedly held that a Member State cannot justify its failure to fulfil its obligations under the FEU Treaty by pointing to the fact that other Member States have also failed, and continue to fail, to fulfil their obligations (judgment of 18 November 2010, Commission v Spain,
C‑48/10
, not published,
EU:C:2010:704
, paragraph
and the case-law cited).
Accordingly, the action must be upheld.
In the light of all the foregoing considerations, it must be held that, by failing, first, to draw up action plans for the major roads and major railways referred to in the annex to this judgment and, secondly, by not communicating to the Commission summaries of those action plans, the Slovak Republic has failed to fulfil its obligations under Article 8(2) and under Article 10(2) of Directive 2002/49, read in conjunction with Annex VI thereto, respectively.
Costs
Under Article 138(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs and the Slovak Republic has been unsuccessful, the latter must be ordered to pay the costs.

On those grounds, the Court (Eighth Chamber) hereby:

1.
Declares that, by failing, first, to draw up action plans for the major roads and major railways referred to in the annex to this judgment, and, secondly, by not communicating to the European Commission summaries of those action plans, the Slovak Republic has failed to fulfil its obligations under Article 8(2) and under Article 10(2) of Directive 2002/49/EC of the European Parliament and of the Council of 25 June 2002 relating to the assessment and management of environmental noise, read in conjunction with Annex VI thereto, respectively;

2.
Orders the Slovak Republic to pay the costs.

[Signatures]
Annex
Major roads
National identification number Unique identification number
90269 SK_b_rd001
90260 SK_b_rd002
90290 SK_b_rd003
90290 SK_b_rd004
90308 SK_b_rd005
90308 SK_b_rd006
90309 SK_b_rd007
90309 SK_b_rd008
90309 SK_b_rd009
90100 SK_b_rd010
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90118 SK_b_rd013
90118 SK_b_rd014
90118 SK_b_rd015
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90119 SK_b_rd017
90120 SK_b_rd018
90120 SK_b_rd019
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90149 SK_b_rd027
90149 SK_b_rd028
90149 SK_b_rd029
90149 SK_b_rd030
90149 SK_b_rd031
90158 SK_b_rd032
90158 SK_b_rd033
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90158 SK_b_rd035
90158 SK_b_rd036
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90169 SK_b_rd038
90170 SK_b_rd039
90180 SK_b_rd040
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90210 SK_b_rd045
90210 SK_b_rd046
90220 SK_b_rd047
37 SK_b_rd048
30 SK_b_rd049
30 SK_b_rd050
47 SK_b_rd051
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40 SK_b_rd054
69 SK_b_rd055
69 SK_b_rd056
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127 SK_b_rd068
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380 SK_b_rd072
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540 SK_b_rd182
540 SK_b_rd183
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618 SK_b_rd187
618 SK_b_rd188
618 SK_b_rd189
239 SK_b_rd190
239 SK_b_rd191
240 SK_b_rd192
240 SK_b_rd193
240 SK_b_rd194
258 SK_b_rd195
269 SK_b_rd196
270 SK_b_rd197
270 SK_b_rd198
280 SK_b_rd199
290 SK_b_rd200
290 SK_b_rd201
299 SK_b_rd202
300 SK_b_rd203
300 SK_b_rd204
310 SK_b_rd205
310 SK_b_rd206
80750 SK_b_rd207
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90750 SK_b_rd245
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90750 SK_b_rd247
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90790 SK_b_rd251
80140 SK_b_rd252
80146 SK_b_rd253
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80190 SK_b_rd255
80190 SK_b_rd256
80200 SK_b_rd257
80200 SK_b_rd258
80200 SK_b_rd259
80200 SK_b_rd260
80260 SK_b_rd261
80030 SK_b_rd262
80030 SK_b_rd263
80040 SK_b_rd264
80050 SK_b_rd265
90019 SK_b_rd266
90019 SK_b_rd267
90019 SK_b_rd268
90019 SK_b_rd269
90019 SK_b_rd270
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90010 SK_b_rd272
90010 SK_b_rd273
90040 SK_b_rd274
90040 SK_b_rd275
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80286 SK_b_rd278
80286 SK_b_rd279
80286 SK_b_rd280
80288 SK_b_rd281
80288 SK_b_rd282
80288 SK_b_rd283
80288 SK_b_rd284
80288 SK_b_rd285
80289 SK_b_rd286
80289 SK_b_rd287
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81496 SK_b_rd306
81500 SK_b_rd307
81510 SK_b_rd308
81510 SK_b_rd309
81510 SK_b_rd310
81510 SK_b_rd311
81570 SK_b_rd312
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80420 SK_b_rd315
80458 SK_b_rd316
80459 SK_b_rd317
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80570 SK_b_rd320
80590 SK_b_rd321
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80620 SK_b_rd323
80628 SK_b_rd324
80628 SK_b_rd325
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80628 SK_b_rd327
91460 SK_b_rd328
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91370 SK_b_rd339
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91360 SK_b_rd341
80350 SK_b_rd342
80350 SK_b_rd343
80357 SK_b_rd344
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80370 SK_b_rd349
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80390 SK_b_rd353
80390 SK_b_rd354
80390 SK_b_rd355
90390 SK_b_rd356
90390 SK_b_rd357
91300 SK_b_rd358
91300 SK_b_rd359
91296 SK_b_rd360
91290 SK_b_rd361
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91260 SK_b_rd363
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91530 SK_b_rd368
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1300 SK_b_rd395
1300 SK_b_rd396
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1320 SK_b_rd404
910 SK_b_rd405
910 SK_b_rd406
910 SK_b_rd407
910 SK_b_rd408
920 SK_b_rd409
930 SK_b_rd410
936 SK_b_rd411
930 SK_b_rd412
930 SK_b_rd413
940 SK_b_rd414
950 SK_b_rd415
2069 SK_b_rd416
95610 SK_b_rd417
91230 SK_b_rd418
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91230 SK_b_rd420
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1330 SK_b_rd426
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5580 SK_b_rd431
1789 SK_b_rd432
81330 SK_b_rd433
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81340 SK_b_rd438
81340 SK_b_rd439
81350 SK_b_rd440
81350 SK_b_rd441
81350 SK_b_rd442
81360 SK_b_rd443
81360 SK_b_rd444
81360 SK_b_rd445
Major railways
National identification number Unique identification number
ŽSR-110 SK_a_rl1
ŽSR-110 SK_a_rl2
ŽSR-120 SK_a_rl3
ŽSR-120 SK_a_rl4
ŽSR-130 SK_a_rl5
ŽSR-130 SK_a_rl6
ŽSR-120 SK_a_rl7
ŽSR-127 SK_a_rl8
ŽSR-180 SK_a_rl9
ŽSR-180 SK_a_rl10
ŽSR-180 SK_a_rl11
ŽSR-180 SK_a_rl12
ŽSR-180 SK_a_rl13
ŽSR-180 SK_a_rl14
ŽSR-180 SK_a_rl15
ŽSR-190 SK_a_rl16
(
*1
)	Language of the case: Slovak.