Opinion of the Advocate General — ECLI:EU:C:2015:169
Date: 2015-03-12
Language of the case: Dutch
Subject matter: Environment;Pollution
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary — Judgment of the Court (Fifth Chamber), 10 September 2015 1. Environment — Atmospheric pollution — Limitation of emissions of volatile organic compounds due to the use of organic solvents — Directive 1999/13 — Applicable requirements for existing plants — Implementation of the reduction scheme — Possibility of giving a time extension for the development of the substitutes — Scope (Council Directive 1999/13, Annex IIB(2) para. 1(i)) 2. Environment — Atmospheric pollution — Limitation of emissions of volatile organic compounds due to the use of organic solvents — Directive 1999/13 — Applicable requirements for existing plants — Implementation of the reduction scheme — Possibility of giving a time extension for the development of the substitutes — Need for an application by the operator and authorisation given by the competent authorities — At the discretion of the competent authorities — Elements to be taken into consideration (Council Directive 1999/13, Annex IIB(2) para. 1(i)) 1. Annex IIB to Directive 1999/13 on the limitation of emissions of volatile organic compounds due to the use of organic solvents in certain activities and installations must be interpreted as meaning that the time extension provided for in point (i) of the first paragraph of Annex IIB(2) to that directive may be given to the operator of an ‘installation’ within the meaning of Article 2(1) of that directive, for the implementation of his plan to reduce emissions of volatile organic compounds, where substitutes containing little or no solvent are still under development, even though, for that installation, a constant solid content of product can be assumed and used to define the reference point for emission reductions. The possibility of giving a time extension to an operator necessarily implies that all the periods referred to in that directive, including that expiring on 31 October 2007 in respect of existing installations, can be extended. A different interpretation would mean that point (i) of the first paragraph of Annex IIB(2) to that directive would no longer be prescriptive and would reduce that provision to a mere explanation of how the period in question was to be calculated. Moreover, while it is true that, in accordance with the second paragraph of Annex IIB(2) to Directive 1999/13, the standard scheme is to operate for installations for which a constant solid content of product can be assumed and used to define the reference point for emission reductions, that scheme does not, however, constitute a special rule precluding a time extension from being given to the operators of such installations. The possibility of giving a time extension in respect of all types of installations regardless of the reduction scheme adopted is borne out moreover by the ratio legis underpinning the provisions of Directive 1999/13 which relate to the time extension and to the installations which have a constant solid content of product. First, that time extension is an expression of the principle of proportionality. Second, as is apparent from recital 8 in the preamble to Directive 1999/13, the extension is based on the consideration that emissions of organic compounds can be avoided or reduced by less harmful substitutes which are or which will become available in the coming years. In that regard, the objective pursued by introducing the criterion relating to the presence of a constant solid content of product is unconnected to the ratio legis which underpins the provisions of Directive 1999/13 relating to the possibility of granting a time extension where substitutes containing little or no solvent are still under development. Finally, since a different interpretation of Annex IIB to Directive 1999/13 cannot be clearly inferred from the wording of that annex, such an interpretation would run counter to the principle of legal certainty, which requires that EU rules enable those concerned to know precisely the extent of the obligations which are imposed on them and that those persons must be able to ascertain unequivocally what their obligations are and take steps accordingly. (see paras 50, 53, 55-58, 61, 62, 64, operative part 1) 2. Point (i) of the first paragraph of Annex IIB(2) to Directive 1999/13 on the limitation of emissions of volatile organic compounds due to the use of organic solvents in certain activities and installations must be interpreted as meaning that a time extension for the implementation of a scheme to reduce emissions of volatile organic compounds requires an authorisation from the competent authorities, which presupposes a prior application from the operator concerned. In that regard, since it is an exception to the general provisions of Directive 1999/13, the time extension provided for in point (i) of the first paragraph of Annex IIB(2) to that directive must be interpreted strictly, while taking account of the objectives pursued by the provisions of that annex, namely, on the one hand, encouraging the development of substitutes and, on the other hand, taking into account the principle of proportionality. In addition, it follows from the very wording of that annex — which provides for a time ‘extension’ only — that the application of a reduction scheme based on that annex must be limited in time. When determining whether a time extension must be given to an operator for the implementation of a reduction scheme of emissions of volatile organic compounds and fixing the duration of the time extension which may be given, it is for those competent authorities, within the discretion available to them, to verify in particular that substitutes which may be used in the installations concerned and which may reduce the emissions of volatile organic compounds are actually under development, that the work in progress, in the light of the evidence provided, is capable of perfecting such substitutes and that there is no alternative measure which may result in similar or even greater emission reductions, at a lower cost, and, in particular, that other substitutes are not already available. Furthermore, account should be taken of the relationship between, on the one hand, the emission reductions which the substitutes under development will allow and the cost of those substitutes and, on the other hand, the additional emissions engendered by the time extension and the cost of any alternative measures. The duration of the time extension must not go beyond what is necessary for substitutes to be developed. That must be assessed in the light of all the relevant factors and, in particular, the magnitude of the additional emissions engendered by the time extension and the cost of any alternative measures as compared with the magnitude of the emission reductions that will be achieved by the substitutes under development and the cost of those substitutes. (see paras 73-77, 83, operative part 2)