CELEX: 62004CJ0199
Failure of a Member State to fulfil obligations
Directives 85/337/EEC and 97/11/EC
Assessment of the effects of certain projects on the environment
Material change in the use of any buildings or other land
Action inadmissible

1       By its application, the Commission of the European Communities requests the Court to declare that, by failing to take all
the measures necessary to ensure the complete and correct implementation of Articles 2 to 6, 8 and 9 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) (‘Directive 85/337’), the
United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under that directive.

Legal context

Community rules
2       Article 2(1) of Directive 85/337 is worded as follows:
‘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.’
3       Article 3 of Directive 85/337 provides:
‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual
case and in accordance with Articles 4 to 11, the direct and indirect effects of a project on the following factors:
–       human beings, fauna and flora;
–       soil, water, air, climate and the landscape;
–       material assets and the cultural heritage;
–       the interaction between the factors mentioned in the first, second and third indents.’
4       Article 4(2) of Directive 85/337 states:
‘Subject to Article 2(3), for projects listed in Annex II, the Member States shall determine through:
(a)      a case-by-case examination,
or
(b)      thresholds or criteria set by the Member State,
whether the project shall be made subject to an assessment in accordance with Articles 5 to 10.
Member States may decide to apply both procedures referred to in (a) and (b).’
5       Annex II to Directive 85/337, headed ‘Projects subject to Article 4(2)’, refers in point 5(b) to installations for the manufacture
of cement.

National rules
6       In the United Kingdom, environmental protection responsibilities in connection with the procedure for obtaining authorisation
to burn waste fuel are divided between the planning authorities and the environmental authorities.
7       The former, in particular local planning authorities, have the function of determining applications for planning permission.
Where a local planning authority refuses planning permission, or fails to determine an application, the applicant may appeal
against the refusal or non-determination to the Secretary of State. The Secretary of State may also decide to ‘call in’ for
his own determination an application for planning permission made to a local planning authority. In Wales, the planning powers
conferred on the Secretary of State are exercised by the National Assembly for Wales.
8       Under section 57 of the Town and Country Planning Act 1990 (‘the TCPA 1990’), planning permission is required for the carrying
out of any ‘development’, a term which is defined in section 55 of the TCPA 1990 as ‘the carrying out of building, engineering,
mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or
other land’.
9       When planning permission is applied for, the planning authorities also decide whether it is necessary to carry out an environmental
impact assessment as provided for by Directive 85/337.
10     The Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 transposed the initial version of Directive
85/337 into national law, in particular by integrating the new procedural requirements into the pre-existing land-use planning
system.
11     Directive 97/11 was transposed into national law by the Town and Country Planning (Environmental Impact Assessment) (England
and Wales) Regulations 1999.
12     Under the integrated pollution control regime set up by Part I of the Environmental Protection Act 1990, Her Majesty’s Inspectorate
of Pollution, until the Environment Agency was created, and, from then on, the Environment Agency are to consider the adverse
effects that a process is likely to have on the environment. Pursuant to section 6 of that Act, a ‘prescribed process’, that
is to say, an activity which is capable of causing pollution and has been prescribed by the Secretary of State, cannot be
carried on inter alia in England and Wales without an authorisation from the Environment Agency.
13     In February 1997 the Department of the Environment published Planning Policy Guidance Note 23 on Planning and Pollution Control
which describes, inter alia, the relationship between the task of planning authorities and the legally separate task of pollution
control bodies.

Pre-litigation procedure
14     In 1997 and 1998 the Commission received two complaints regarding the authorisation granted to a cement manufacturing plant
operated by Castle Cement in Clitheroe, Lancashire, to burn, in partial substitution for its conventional fuel, a mixture
of industrial liquid waste, known as Cemfuel. According to the complainants, the competent national authorities did not address
the issue whether the project in question had to be subject to an environmental impact assessment prior to granting such authorisation.
15     In 1999 the Commission also received a complaint concerning the cement manufacturing plant operated by the same company in
Padeswood, Flintshire. In this instance, although the construction of an additional kiln and the substitution of conventional
fuel by Cemfuel, whole tyres and a mixture of waste paper and plastic, known as Profuel, were the subject of an environmental
impact assessment, the National Assembly for Wales granted permission for them, before the Environment Agency had determined
the application for the authorisation which it issues.
16     The complaints regarding the Clitheroe plant gave rise to two exchanges of letters between the Commission and the United Kingdom
Government between 11 July 1997 and 30 March 1999. The complaint concerning the Padeswood plant also gave rise to an exchange
of letters: the Commission requested clarification from the United Kingdom Government on 19 April 1999 and the latter replied
on 18 June 1999.
17     In the light of that information, the Commission took the view, first, that the use by the competent national authorities
of the test of ‘material change in the use of any buildings or other land’ contained in the TCPA 1990 meant that certain projects,
including in particular a change in the fuel burnt in a cement manufacturing plant, were not subject to the procedures provided
for by Directive 85/337. Second, the United Kingdom had not coordinated its planning and pollution-control rules adequately
so as to ensure compliance with the obligations and objectives laid down by that directive. For that reason, the Commission
sent the United Kingdom a letter of formal notice on 7 May 2001.
18     Since the response of the United Kingdom authorities to that letter convinced the Commission that the implementation and practical
application of Directive 85/337 were not satisfactory, on 18 July 2002 a reasoned opinion was sent to the United Kingdom,
inviting it to take the measures necessary to comply with the obligations resulting from that directive within two months
of receipt of the reasoned opinion.
19     Taking the view that the United Kingdom Government’s reply to the reasoned opinion was unsatisfactory, the Commission decided
to bring the present action.

Admissibility of the action
20     At the outset, it should be noted that the Court may examine of its own motion whether the conditions imposed by Article 226
EC for the bringing of an action for failure to fulfil obligations are satisfied (see, in particular, Case C-362/90
Commission
v
Italy
[1992] ECR I-2353, paragraph 8, and Case C-525/03
Commission
v
Italy
[2005] ECR I-9405, paragraph 8).
21     In that procedure, the reasoned opinion and the action must set out the Commission’s complaints coherently and precisely in
order that the Member State and the Court may appreciate exactly the scope of the infringement of Community law complained
of, a condition which is necessary in order to enable the Member State to avail itself of its right to defend itself and the
Court to determine whether there is a breach of obligations as alleged (see, to this effect, Case C-98/04
Commission
v
United Kingdom
[2006] ECR I-4003, paragraph 18).
22     Here, the Commission requests the Court to declare that the United Kingdom has failed to take all the measures necessary to
ensure the complete and correct implementation of Articles 2 to 6, 8 and 9 of Directive 85/337.
23     In support of its action, the Commission puts forward two complaints: the first puts in issue sections 55 and 57 of the TCPA
1990 pursuant to which planning authorities use the nationally applicable test of ‘material change in the use of any buildings
or other land’ when application is made for planning permission, having the effect, according to the Commission, of excluding
certain projects from the field of application of Directive 85/337, while the second complaint alleges that, when Directive
85/337 was transposed into national law, the United Kingdom Government did not coordinate planning and pollution-control rules
adequately so as to ensure compliance with all the obligations laid down in Articles 3 and 8 of that directive.
24     However, in its application the Commission expressly acknowledged that, by the Town and Country Planning (Assessment of Environmental
Effects) Regulations 1988 and the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations
1999, the United Kingdom has adopted the necessary legislation to implement Directive 85/337 into domestic law.
25     Consequently, since the present action for failure to fulfil obligations is founded on contradictory arguments, it does not
satisfy the requirements of coherence and precision referred to in paragraph 21 of this judgment.
26     It follows from the foregoing that the action must be dismissed as inadmissible.

Costs
27     Under Article 69(2) 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 United Kingdom has applied for costs and the action brought by
the Commission is inadmissible, the Commission must be ordered to pay the costs.
On those grounds, the Court (Second Chamber) hereby:
1.
Dismisses the action as inadmissible;
2.
Orders the Commission of the European Communities to pay the costs.
[Signatures]
*
Language of the case: English.