Opinion of the Advocate General — ECLI:EU:C:2002:145
Date: 2002-03-07
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment;Approximation of laws
Procedure: Action for failure to fulfil obligations - successful
Origin: Spain

Summary of the Judgment 
1. Environment — Assessment of the effects of certain projects on the environment — 
Directive 85/337 — Assessment requirement in respect of projects in the classes listed 
in Annex II — Discretion of Member States — Limits — Failure to take into 
account the criteria and/or thresholds relating to the size and nature of projects — 
Failure to fulfil obligations 
(Council Directive 85/337, Arts 2(1) and 4(2» 
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SUMMARY — CASE C-474/99 
2. Actions for failure to fulfil obligations — Proof of infringement —· Burden of proof 
on the Commission — Answer to the charge by the Member State — Presentation of 
a table at the hearing — Court not obliged to enquire into implementing provisions 
(Art. 10 EC) 
1. Article 4(2) of Directive 85/337 on the 
assessment of effects of certain public 
and private projects on the environ­
ment does not empower the Member 
States to exclude generally and defini­
tively from the obligation of assessment 
one or more classes of projects men­
tioned in Annex II, since the concept of 
'classes' of projects must be understood 
to mean not the 12 main categories in 
Annex II, but the subdivisions of those 
categories, each preceded by a letter of 
the alphabet. By contrast, Member 
States may establish the criteria and/or 
thresholds necessary to determine 
which of the projects covered by Anne-
x II are to be subject to an assessment. 
When establishing those thresholds 
and/or criteria, Member States must 
take account not only of the size of 
projects, but also of their nature and 
location. More generally, national 
provisions of a general or sectoral 
nature which require the assessment 
of the environmental impact of certain 
types of projects must satisfy the 
requirements set out in Article 3 of 
the Directive, as well as the procedural 
rules in Articles 5 to 9 of the Directive 
which concern, inter alia, public infor­
mation. 
The choice of such a criterion, under a 
national provision, based on the 
location of the projects within limited 
and, moreover, essentially rural areas 
of the national territory, has the effect 
of relieving of the obligation of assess­
ment a considerable number of projects 
situated outside those areas which are 
likely to have significant effects on the 
environment. Such a choice, which 
precludes generally the taking into 
account of criteria and/or thresholds 
relating to the size and nature of 
projects, exceeds the limits of the 
Member States' discretion under 
Articles 2(1) and 4(2) of the Directive. 
(see paras 30-32, 36) 
2. In order to facilitate consideration of 
the state of transposition of Directive 
85/337 on the assessment of the effects 
of certain public and private projects 
on the environment, at the hearing the 
Government of the Member State in 
question communicated to the Com­
mission and the Court a table which 
indicates, in respect of each auton­
omous community and each class of 
projects listed in Annex II, whether the 
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COMMISSION v SPAIN 
transposition of the Directive has 
already been carried out or remains to 
be achieved. However, that table does 
not refer to any of the provisions 
which, in respect of each autonomous 
community and each class of projects, 
transpose the Directive. An inquiry into 
those provisions, which the Commis­
sion was unable to undertake in due 
time, given the late communication of 
the relevant document in disregard of 
the provisions of Article 10 EC, cannot 
be carried out by the Court within the 
framework of an action for failure to 
fulfil obligations. 
(see paras 42-44) 
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