# C_2011211EN.01000401.xml

| 16.7.2011 | EN | Official Journal of the European Union | C 211/4 |
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16.7.2011

EN

Official Journal of the European Union

C 211/4

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Judgment of the Court (First Chamber) of 26 May 2011 (references for a preliminary ruling from the Raad van State (Netherlands)) — Stichting Natuur en Milieu and Others (C-165/09) v College van Gedeputeerde Staten van Groningen, Stichting Natuur en Milieu and Others (C-166/09) v College van Gedeputeerde Staten van Zuid-Holland, Stichting Natuur en Milieu and Others (C-167/09) v College van Gedeputeerde Staten van Zuid-Holland

(Joined Cases C-165/09 to C-167/09) (1)

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(Environment - Directive 2008/1/EC - Permit for the construction and operation of a power station - Directive 2001/81/EC - National emission ceilings for certain atmospheric pollutants - Power of the Member States during the transitional period - Direct effect)

2011/C 211/06

Language of the case: Dutch

Referring court

Referring court

Raad van State

Parties to the main proceedings

Parties to the main proceedings

Applicants: Stichting Natuur en Milieu, Stichting Greenpeace Nederland, Mr and Mrs B. Meijer, E. Zwaag, F. Pals (C-165/09), Stichting Natuur en Milieu, Stichting Zuid-Hollandse Milieufederatie, Stichting Greenpeace Nederland, Vereniging van Verontruste Burgers van Voorne (C-166/09), Stichting Natuur en Milieu, Stichting Zuid-Hollandse Milieufederatie, Stichting Greenpeace Nederland, Vereniging van Verontruste Burgers van Voorne (C-167/09)

Applicants:

Defendants: College van Gedeputeerde Staten van Groningen (C-165/09), College van Gedeputeerde Staten van Zuid-Holland (C-166/09 and C-167/09)

Defendants:

Third parties: RWE Eemshaven Holding BV, formerly RWE Power AG (C-165/09), Electrabel Nederland NV (C-166/09), College van Burgemeester en Wethouders Rotterdam (C-166/09 and C-167/09), E.On Benelux NV (C-167/09)

Third parties:

Re:

Re:

References for a preliminary ruling — Raad van State — Interpretation of Article 9 of Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control (OJ 1996 L 257, p. 26), now Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control (Codified version) (OJ 2008 L 24, p. 8), and of Article 4(1) of Directive 2001/81/EC of the European Parliament and of the Council of 23 October 2001 on national emission ceilings for certain atmospheric pollutants (OJ 2001 L 309, p. 22) — Application for an environmental permit — Decision of the competent authority — Obligations of Member States during the period between the deadline for transposition of Directive 2001/81 and the date laid down in Article 4(1) of Directive 2001/81, which is subsequent to the deadline for transposition of that directive — Power station

Operative part of the judgment

Operative part of the judgment

| 1. | Article 9(1), (3) and (4) of Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control, in its original version and as codified by Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control, must be interpreted as meaning that, when granting an environmental permit for the construction and operation of an industrial installation, such as those at issue in the main actions, the Member States are not obliged to include among the conditions for grant of that permit the national emission ceilings for SO2 and NOx laid down by Directive 2001/81/EC of the European Parliament and of the Council of 23 October 2001 on national emission ceilings for certain atmospheric pollutants, whilst they must comply with the obligation arising from Directive 2001/81 to adopt or envisage, within the framework of national programmes, appropriate and coherent policies and measures capable of reducing, as a whole, emissions of inter alia those pollutants to amounts not exceeding the ceilings laid down in Annex I to that directive by the end of 2010 at the latest. |
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1.

Article 9(1), (3) and (4) of Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control, in its original version and as codified by Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control, must be interpreted as meaning that, when granting an environmental permit for the construction and operation of an industrial installation, such as those at issue in the main actions, the Member States are not obliged to include among the conditions for grant of that permit the national emission ceilings for SO2 and NOx laid down by Directive 2001/81/EC of the European Parliament and of the Council of 23 October 2001 on national emission ceilings for certain atmospheric pollutants, whilst they must comply with the obligation arising from Directive 2001/81 to adopt or envisage, within the framework of national programmes, appropriate and coherent policies and measures capable of reducing, as a whole, emissions of inter alia those pollutants to amounts not exceeding the ceilings laid down in Annex I to that directive by the end of 2010 at the latest.

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| 2. | During the transitional period from 27 November 2002 to 31 December 2010, provided for in Article 4 of Directive 2001/81:






  — | Article 4(3) TEU, the third paragraph of Article 288 TFEU and Directive 2001/81 require the Member States to refrain from adopting any measures liable seriously to compromise the attainment of the result prescribed by that directive; |
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2.

During the transitional period from 27 November 2002 to 31 December 2010, provided for in Article 4 of Directive 2001/81:

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Article 4(3) TEU, the third paragraph of Article 288 TFEU and Directive 2001/81 require the Member States to refrain from adopting any measures liable seriously to compromise the attainment of the result prescribed by that directive;

| — | adoption by the Member States of a specific measure relating to a single source of SO2 and NOx does not appear liable, in itself, seriously to compromise the attainment of the result prescribed by Directive 2001/81. It is for the national court to review whether that is true of each of the decisions granting an environmental permit for the construction and operation of an industrial installation such as the permits at issue in the main actions; |
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adoption by the Member States of a specific measure relating to a single source of SO2 and NOx does not appear liable, in itself, seriously to compromise the attainment of the result prescribed by Directive 2001/81. It is for the national court to review whether that is true of each of the decisions granting an environmental permit for the construction and operation of an industrial installation such as the permits at issue in the main actions;

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| — | the third paragraph of Article 288 TFEU and Articles 6, 7(1) and (2) and 8(1) and (2) of Directive 2001/81 require the Member States, first, to draw up, to update and to revise as necessary programmes for the progressive reduction of national SO2 and NOx emissions, which they are obliged to make available to the public and appropriate organisations by means of clear, comprehensible and easily accessible information, and to notify to the European Commission within the time-limit prescribed, and second, to prepare and annually update national inventories of those emissions and national emission projections for 2010, which they must report to the European Commission and the European Environment Agency within the time-limit prescribed; |
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the third paragraph of Article 288 TFEU and Articles 6, 7(1) and (2) and 8(1) and (2) of Directive 2001/81 require the Member States, first, to draw up, to update and to revise as necessary programmes for the progressive reduction of national SO2 and NOx emissions, which they are obliged to make available to the public and appropriate organisations by means of clear, comprehensible and easily accessible information, and to notify to the European Commission within the time-limit prescribed, and second, to prepare and annually update national inventories of those emissions and national emission projections for 2010, which they must report to the European Commission and the European Environment Agency within the time-limit prescribed;

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| — | the third paragraph of Article 288 TFEU and Directive 2001/81 itself do not require the Member States to refuse or to attach restrictions to the grant of an environmental permit for the construction and operation of an industrial installation such as the permits at issue in the main actions, or to adopt specific compensatory measures for each permit granted of that kind, even where the national emission ceilings for SO2 and NOx are exceeded or risk being exceeded. |
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the third paragraph of Article 288 TFEU and Directive 2001/81 itself do not require the Member States to refuse or to attach restrictions to the grant of an environmental permit for the construction and operation of an industrial installation such as the permits at issue in the main actions, or to adopt specific compensatory measures for each permit granted of that kind, even where the national emission ceilings for SO2 and NOx are exceeded or risk being exceeded.

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| 3. | Article 4 of Directive 2001/81 is not unconditional and sufficiently precise for individuals to be able to rely upon it before the national courts before 31 December 2010.
  Article 6 of Directive 2001/81 grants rights to individuals directly concerned which can be relied upon before the national courts in order to claim that, during the transitional period from 27 November 2002 to 31 December 2010, the Member States should adopt or envisage, within the framework of national programmes, appropriate and coherent policies and measures capable of reducing, as a whole, emissions of the pollutants covered so as to comply with the national ceilings laid down in Annex I to that directive by the end of 2010 at the latest, and should make the programmes drawn up for those purposes available to the public and appropriate organisations by means of clear, comprehensible and easily accessible information. |
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3.

Article 4 of Directive 2001/81 is not unconditional and sufficiently precise for individuals to be able to rely upon it before the national courts before 31 December 2010.

Article 6 of Directive 2001/81 grants rights to individuals directly concerned which can be relied upon before the national courts in order to claim that, during the transitional period from 27 November 2002 to 31 December 2010, the Member States should adopt or envisage, within the framework of national programmes, appropriate and coherent policies and measures capable of reducing, as a whole, emissions of the pollutants covered so as to comply with the national ceilings laid down in Annex I to that directive by the end of 2010 at the latest, and should make the programmes drawn up for those purposes available to the public and appropriate organisations by means of clear, comprehensible and easily accessible information.

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(1)  OJ C 193, 15.8.2009.

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