Opinion of the Advocate General — ECLI:EU:C:2010:775
Date: 2010-12-16
Language of the case: Dutch
Subject matter: Environment;Pollution
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the Judgment 1. Preliminary rulings – Jurisdiction of the Court – Limits – Jurisdiction of the national court (Art. 267 TFEU) 2. Environment – Integrated pollution prevention and control – Directive 2008/1 – Conditions of a permit for the construction and operation of an industrial installation – Obligation on the Member States to include among the conditions for grant of that permit the national emission ceilings for SO2 and NOx laid down by Directive 2001/81 – No such obligation) (Council Directive 96/61, as codified by European Parliament and Council Directive 2008/1, Art. 9(1), (3) and (4)) 3. Environment – Atmospheric pollution – Directive 2001/81 – National emission ceilings for certain atmospheric pollutants – Obligations on the Member States to refrain from taking measures during the transitional period (Art. 4(3) TEU; Art. 288, third para., TFEU; European Parliament and Council Directive 2001/81, Art. 4) 4. Environment – Atmospheric pollution – Directive 2001/81 – National emission ceilings for certain atmospheric pollutants – Obligations on the Member States to refrain from taking measures during the transitional period (Art. 4(3) TEU; Art. 288, third para., TFEU; European Parliament and Council Directive 2001/81, Art. 4) 5. Environment – Atmospheric pollution – Directive 2001/81 – National emission ceilings for certain atmospheric pollutants – Obligations on the Member States to act during the transitional period (Art. 288, third para., TFEU; European Parliament and Council Directive 2001/81, Arts 4, 6, 7(1) and (2) and 8(1) and (2)) 6. Environment – Atmospheric pollution – Directive 2001/81 – National emission ceilings for certain atmospheric pollutants – Obligations of the Member States during the transitional period (Art. 288, third para., TFEU; European Parliament and Council Directive 2001/81, Art. 4) 7. Environment – Atmospheric pollution – Directive 2001/81 – Direct effect during the transitional period (European Parliament and Council Directive 2001/81, Arts 4 and 6) 1. In proceedings under Article 267 TFEU, which are based on a clear separation of functions between the national courts and the Court of Justice, the national court alone has jurisdiction to find and assess the facts in the case before it and to interpret and apply national law. Similarly, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the forthcoming judicial decision, to determine, in the light of the particular circumstances of the case, both the need for and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of European Union law, the Court is in principle bound to give a ruling. (see para. 47) 2. Article 9(1), (3) and (4) of Directive 96/61 concerning integrated pollution prevention and control, in its original version and as codified by Directive 2008/1, must be interpreted as meaning that, when granting an environmental permit for the construction and operation of an industrial installation, 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 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. (see para. 76, operative part 1) 3. During the transitional period from 27 November 2002 to 31 December 2010, provided for in Article 4 of Directive 2001/81 on national emission ceilings for certain atmospheric pollutants, 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. (see paras 78-79, 91, operative part 2) 4. During the transitional period from 27 November 2002 to 31 December 2010, provided for in Article 4 of Directive 2001/81 on national emission ceilings for certain atmospheric pollutants, 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 that directive. 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. (see paras 80-83, 91, operative part 2) 5. During the transitional period from 27 November 2002 to 31 December 2010, provided for in Article 4 of Directive 2001/81 on national emission ceilings for certain atmospheric pollutants, 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. (see paras 87, 91, operative part 2) 6. During the transitional period from 27 November 2002 to 31 December 2010, provided for in Article 4 of Directive 2001/81 on national emission ceilings for certain atmospheric pollutants, 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, 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. (see paras 90-91, operative part 2) 7. Article 4 of Directive 2001/81 on national emission ceilings for certain atmospheric pollutants is not unconditional and sufficiently precise for individuals to be able to rely upon it before the national courts before 31 December 2010. On the other hand, 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. (see paras 98-104, operative part 3)