Opinion of the Advocate General — ECLI:EU:C:1998:100
Date: 1998-03-12
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment;Approximation of laws
Procedure: Action for failure to fulfil obligations - successful
Origin: Germany

Summary of the Judgment
1. Actions for failure to fulfil obligations — Purpose and consequences different from those of
requests for preliminary rulings
(EC Treaty, Arts 169, 171 and 177)
2. Environment — Environmental impact assessment for certain projects — Directive 85/337 —
Obligation on Member States to communicate relevant provisions of national law — Scope
(Council Directive 85/337, Art. 12(2))
3. Environment — Environmental impact assessment for certain projects — Directive 85/337 —
National implementing measures granting exemption from the assessment requirement in the
case of consent procedures commenced after the expiry of period prescribed for transposition
— Not permissible — Failure by a Member State to fulfil its obligations — Failure already
found in an earlier judgment — New finding of failure — Whether appropriate — Criteria
(EC Treaty, Art. 169; Council Directive 85/337, Art. 12(1))
I-6135
SUMMARY — CASE C-301/95
4. Environment — Environmental impact assessment for certain projects — Directive 85/337 —
Assessment requirement in respect of projects of the classes listed in Annex II — Discretion of
Member States — Limits — Meaning of 'classes of projects' — Failure by a Member State to
fulfil its obligations
(Council Directive 85/337, Arts 2(1) and 4(2))
1. An action for failure to fulfil obligations
under Article 169 of the Treaty differs in
both its purpose and its consequences from
a request for a preliminary ruling. The
purpose of such an action is to obtain a
formal finding that a Member State has
failed to fulfil its obligations under Com­
munity law, which is a prerequisite for the
initiation, where appropriate, of the pro­
cedure provided for in Article 171 of the
Treaty. Moreover, the Commission, given
its role as guardian of the Treaty, is alone
competent to decide whether it is appro­
priate to bring proceedings against a
Member State for failure to fulfil its obli­
gations.
2. Under Article 12(2) of Directive 85/337
on the assessment of the effects of certain
public and private projects on the envi­
ronment, Member States are to communi­
cate to the Commission the texts of the
provisions of national law which they
adopt in the field covered by the Direc­
tive. The obligation thus placed on Member
States covers all the relevant provisions,
and no distinctions may be drawn
according to whether a Member State has
a federal or centralised structure or
according to the legislative technique which
it employs. More particularly, in the case
of a federal State, the finding that it has
failed to fulfil its obligation to communi­
cate provisions cannot be affected by the
consideration that the provisions of a fed­
eral Law, communicated to the Commis­
sion, take precedence over provisions
adopted at a more local level but not com­
municated.
3. A Member State fails to fulfil its obliga­
tions under Article 12(1) of Directive
85/337 on the assessment of the effects of
certain public and private projects on the
environment if it does not require an envi­
ronmental impact assessment for all
projects on which such an assessment had
to be carried out in compliance with the
Directive, where the consent procedure
was commenced after expiry of the period
within which the Directive was to be trans­
posed.
The question whether it is appropriate to
make such a finding on the basis of the
adoption by the Member State concerned
of an ad hoc statutory provision cannot be
affected by the fact that in another judg­
ment the same Member State has already
been found to have failed to fulfil its obli­
gations in the same field, if the subject-
matter of the previous judgment was dif­
ferent because the finding concerned a
failure to comply with the environmental
impact assessment requirement in a spe­
cific case relating to a specific project.
I-6136
COMMISSION v GERMANY
4. Article 4(2) of Directive 85/337 on the
assessment of the effects of certain public
and private projects on the environment
provides that projects of the classes listed
in Annex II to the Directive are to be made
subject to an assessment where Member
States consider that their characteristics so
require and that to that end Member States
may specify certain types of project as
being subject to an assessment or may
establish the criteria and/or thresholds nec­
essary to determine which of the projects
of the classes concerned are to be subject
to an assessment. That provision must be
interpreted as not empowering the Member
States to exclude generally and definitively
from possible assessment one or more of
the classes in question.
The term 'classes', in that context, does
not refer to the 12 categories of project
listed in that annex but to all the projects
listed, under different letters of the
alphabet, as subdivisions of those catego­
ries. Any other interpretation would negate
the effectiveness of the rule laid down in
Article 2(1) of the Directive, that projects
likely to have significant effects on the
environment by virtue inter alia of their
nature, size or location are to be made
subject to an environmental impact assess­
ment, and would leave Member States free
to apply Annex II as they saw fit.
Consequently, if it does not include in the
scope of its implementing Law all the sub­
divisions listed in Annex II to the Direc­
tive and thereby excludes in advance from
the environmental impact assessment
requirement whole classes of projects, a
Member State fails to fulfil its obligations
under Articles 2(1) and 4(2) of the Direc­
tive.
I-6137