JUDGMENT OF THE COURT (Sixth Chamber)

1 October 2009 ([\*](#Footnote*))

(Failure of a Member State to fulfil obligations – Pollution and nuisance – Combustion plants – Limitation of emissions of certain pollutants into the air)

In Case C‐252/08,

ACTION under Article 226 EC for failure to fulfil obligations, brought on 12 June 2008,

**Commission of the European Communities,** represented by L. Flynn and A. Alcover San Pedro, acting as Agents, with an address for service in Luxembourg,

applicant,

v

**Republic of Malta,** represented by S. Camilleri, acting as Agent,

defendant,

THE COURT (Sixth Chamber),

composed of J.-C. Bonichot, President of the Chamber, J. Makarczyk (Rapporteur) and C. Toader, Judges,

Advocate General: E. Sharpston,

Registrar: R. Grass,

having regard to the written procedure,

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

gives the following

**Judgment**

1        By its action the Commission of the European Communities seeks a declaration that by failing correctly to apply Directive
2001/80/EC of the European Parliament and of the Council of 23 October 2001 on the limitation of emissions of certain pollutants
into the air from large combustion plants (OJ 2001 L 309, p. 1) (‘the Directive’) in relation to the operation of the Phase
One steam plant of the Delimara and Marsa power stations, the Republic of Malta has failed to fulfil its obligations under
Articles 4(1) and 12 of that directive in conjunction with Part A of Annex IV, Part A of Annex VI, Part A of Annex VII and
Part A.2 of Annex VIII thereto.

2        Article 4(1) of the Directive and Annexes III to VIII thereto fix specific emission limit values in respect of sulphur dioxide,
nitrogen oxides and dust for combustion plants.

3        Pursuant to Article 12 of the Directive and Part A.2 of Annex VIII thereto, continuous measurements of concentrations of sulphur
dioxide, nitrogen oxides and dust are required to ensure the monitoring of emissions from the combustion plants with rated
thermal inputs of 100 MW or more.

4        Annex XI to the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of
Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of
Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is
founded (OJ 2003 L 236, p. 33) provides that, by way of derogation from Article 4(1) of the Directive and Part A of Annex
VII thereto, the emission limit value for dust is not to apply until 31 December 2005 to Phase One of the Delimara power plant.

5        Considering that the Republic of Malta, by failing correctly to apply the Directive in relation to the operation of the Phase
One steam plant of the Delimara and Marsa power stations, has failed to fulfil its obligations under that directive, the Commission
initiated the infringement procedure laid down in the first paragraph of Article 226 EC. After giving the Republic of Malta
formal notice to submit its observations, the Commission issued a reasoned opinion, on 29 June 2007, calling on that Member
State to take the measures necessary to comply with the reasoned opinion within two months of receiving it. Considering that
the situation remained unsatisfactory, the Commission decided to bring the present proceedings.

6        By letter of 3 December 2007, the Republic of Malta accepted the points made in the reasoned opinion and stated that it intended
to propose new legislation to remedy the defects identified.

**Findings of the Court**

7        It is settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined by
reference to the situation obtaining in the Member State at the end of the period laid down in the reasoned opinion (see,
inter alia, Case C‐348/99 *Commission* v *Luxembourg* [2000] ECR I‐2917, paragraph 8, and Case C‐272/01 *Commission* v *Portugal* [2004] ECR I‐6767, paragraph 29).

8        Since the Republic of Malta failed to adopt, before the expiry of the period prescribed in the reasoned opinion, the measures
necessary to bring its legislation into line with Community law, the action brought by the Commission must be considered to
be well founded.

9        Consequently, it must be declared that, by failing correctly to apply the Directive in relation to the operation of the Phase
One steam plant of the Delimara and Marsa power stations, the Republic of Malta has failed to fulfil its obligations under
Articles 4(1) and 12 of that directive in conjunction with Part A of Annex IV, Part A of Annex VI, Part A of Annex VII and
Part A.2 of Annex VIII thereto.

**Costs**

10      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 Commission has applied for costs against the Republic of Malta
and the latter has been unsuccessful, it must be ordered to pay the costs.

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

1.      **Declares that, by failing correctly to apply Directive 2001/80/EC of the European Parliament and of the Council of 23 October
2001 on the limitation of emissions of certain pollutants into the air from large combustion plants in relation to the operation
of the Phase One steam plant of the Delimara and Marsa power stations, the Republic of Malta has failed to fulfil its obligations
under Articles 4(1) and 12 of that directive in conjunction with Part A of Annex IV, Part A of Annex VI, Part A of Annex VII
and Part A.2 of Annex VIII thereto;**

2.      **Orders the Republic of Malta to pay the costs.**

[Signatures]

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[\*](#Footref*) Language of the case: English.