Opinion of the Advocate General — ECLI:EU:C:2009:772
Date: 2009-12-10
Language of the case: English
Subject matter: Environment;Pollution
Procedure: Action for failure to fulfil obligations - successful
Origin: United Kingdom

Summary of the Judgment Environment – Atmospheric pollution – Directive 2001/80 – Scope – Large combustion plants – Exceptions (European Parliament and Council Directive 2001/80, Art. 2(7), second subpara., 1st sentence) Since Directive 2001/80 on the limitation of emissions of certain pollutants into the air from large combustion plants defines a combustion plant as technical apparatus in which fuels are oxidised in order to use the heat thus generated, electricity is not a product of combustion. The products of combustion are in fact the waste gases, ash and other residues and also the heat generated on combustion. The electric current is neither a physical product of combustion nor heat, but results from a series of processes in which combustion releases heat which is used to generate steam in a boiler, the steam in turn propels a turbine and the turbine, finally, generates electricity. To take the view that electricity constitutes a product of combustion would require that concept to be interpreted so broadly that it would also encompass other products which do not result directly from combustion and which do not correspond to the usual meaning of the term both in scientific language and in everyday language. The first sentence of the second subparagraph of Article 2(7) of Directive 2001/80 does not simply define the term ‘combustion plant’ more precisely but excludes certain plants from the directive’s scope. The fact that this provision has the character of a derogation is indeed clearly expressed by its wording, because it states that the directive is to apply to plants designed for production of energy with the exception of those which make direct use of the products of combustion in manufacturing processes. A restrictive interpretation of this provision is all the more necessary because the exclusion of certain combustion plants from the directive’s scope runs counter to the very objective of the directive. The directive is intended to combat acidification by reducing emissions of sulphur dioxide and nitrogen oxides, to which large combustion plants, including installations for the production of electricity, are significant contributors. To extend the exception set out in the first sentence of the second subparagraph of Article 2(7) of the directive to power plants which have direct use made of their electricity production in a manufacturing process would thus compromise the directive’s effectiveness. (see paras 36-37, 40-42)