JUDGMENT OF THE COURT (Sixth Chamber)

12 November 2009 ([\*](#Footnote*))

(Failure of a Member State to fulfil obligations – Directive 85/337/EEC – Assessment of the effects of projects on the environment – Obligation to give reasons for a decision not to make a project subject to an assessment)

In Case C‐495/08,

ACTION under Article 226 EC for failure to fulfil obligations, brought on 14 November 2008,

**Commission of the European Communities,** represented by P. Oliver and J.-B. Laignelot, acting as Agents, with an address for service in Luxembourg,

applicant,

v

**United Kingdom of Great Britain and Northern Ireland,** represented by L. Seeboruth and H. Walker, acting as Agents, and by J. Maurici, Barrister, with an address for service in
Luxembourg,

defendant,

THE COURT (Sixth Chamber),

composed of J.-C. Bonichot (Rapporteur), President of the Fourth Chamber, acting as President of the Sixth Chamber, P. Kūris
and L. Bay Larsen, Judges,

Advocate General: J. Kokott,

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 application, the Commission of the European Communities requests the Court to declare that, first, by failing to provide
that individual decisions not to carry out an environmental impact assessment pursuant to Article 4(2) 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’), must
be supported by sufficient reasoning and, second, by failing to make applications for Review of Mineral Planning (‘ROMP applications’)
lodged in Wales prior to 15 November 2000 subject to the requirements of that directive, the United Kingdom of Great Britain
and Northern Ireland has failed to fulfil its obligations under that directive.

2        By document lodged at the Registry of the Court on 1 July 2009, the Commission stated that it was pursuing its application
only in relation to the second complaint, and that it was withdrawing its first complaint.

3        The pre-litigation procedure relating to that second complaint has its origins in infringement procedure 2003/4793. By letter
of 10 April 2006, the Commission, pursuant to Article 226 EC, gave formal notice to the United Kingdom to submit its observations
on that issue within a period of two months. The United Kingdom replied to that formal notice by letter of 21 June 2006. That
reply prompted the Commission to send, on 15 December 2006, a reasoned opinion to the United Kingdom, in which the Commission
called on it to bring an end to the alleged infringement within a period of two months from receipt of the reasoned opinion.
The United Kingdom replied to that reasoned opinion by letter of 8 February 2007.

4        Taking the view that that reply was not satisfactory, the Commission decided to bring the present action.

5        The Commission claims that failing to make ROMP applications lodged in Wales prior to 15 November 2000 subject to the requirements
of Directive 85/337 is contrary to the provisions of Articles 2(1) and 4(2) of that directive. It relies, in that regard,
on Case C‐201/02 *Wells* [2004] ECR I‐723.

6        The United Kingdom does not dispute the infringement complained of and limits itself to contending that Wales is currently
preparing the legislation necessary for the transposition, in relation to that issue, of Directive 85/337. The United Kingdom
contends, in addition, that there are a number of complex legal and operational issues which explain the delay in carrying
out that transposition.

7        A Member State cannot however plead provisions, practices or situations prevailing in its domestic legal order to justify
failure to observe obligations laid down by a directive (see, inter alia, Case C‐235/04 *Commission* v *Spain* [2007] ECR I‐5415, paragraph 55).

8        The question whether a Member State has failed to fulfil its obligations must, moreover, be determined by reference to the
situation prevailing in the Member State at the end of the period laid down in the reasoned opinion (see, inter alia, Case
C‐173/01 *Commission* v *Greece* [2002] ECR I‐6129, paragraph 7).

9        It is not in dispute that, at the end of the period laid down in the reasoned opinion, the measures necessary to transpose
Directive 85/337 into national law had not been adopted.

10      Accordingly, it must be held that, by failing to make ROMP applications lodged in Wales prior to 15 November 2000 subject
to the requirements of Articles 2(1) and 4(2) of Directive 85/337, the United Kingdom has failed to fulfil its obligations
under that directive.

**Costs**

11      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. Furthermore, under the first subparagraph of Article 69(5), a party who discontinues
or withdraws from proceedings is to be ordered to pay the costs if they have been applied for in the other party’s observations
on the discontinuance.

12      In its application, the Commission sought an order that the United Kingdom pay the costs. The United Kingdom has been unsuccessful
in its pleas on the second complaint and did not submit observations on the Commission’s partial discontinuance. The United
Kingdom will therefore be ordered to pay the costs.

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

1.      **Declares that, by failing to make applications for Review of Mineral Planning lodged in Wales prior to 15 November 2000 subject
to the requirements of Articles 2(1) and 4(2) 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, as amended by Council Directive 97/11/EC of 3 March 1997, the United
Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under that directive;**

2.      **Orders the United Kingdom of Great Britain and Northern Ireland to pay the costs.**

[Signatures]

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