Judgment — ECLI:EU:C:2004:266
Date: 2004-04-29
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment;Approximation of laws
Concepts: General
Procedure: Action for failure to fulfil obligations - unfounded
Origin: Portugal

summary but sufficient manner. The alternative nature of the complaint in no way prevented the Portuguese Republic from submitting observations on it. 56 The alleged failure by the Commission to provide explanations regarding the infringement by the Portuguese authorities of Directive 85/337 when consent was given to a plan for a tourism complex in the area of Ponta do Abano must be considered with the substance of the action. Substance Arguments of the parties 57 In its application, the Commission disputes the argument of the Portuguese Republic, expressed during the pre-litigation procedure, that review of the use of the discretion left to Member States is relevant only as regards the correct transposition of a directive. It recalls the case-law of the Court in that regard (Case C-72/95 Kraaijeveld and Others [1996] ECR I-5403, paragraphs 49 and 50; Case C-435/97 WWF and Others [1999] ECR I-5613, paragraph 44; Commission v Ireland, cited above, paragraph 64). It concludes that correct transposition of Article 2(1) and Article 4(2) of Directive 85/337 cannot properly be relied on by the Portuguese Republic in order to exclude from the assessment obligation laid down in Article 2(1) a particular project which, like the project relating to the works carried out in the area of Ponta do Abano, can, although it comes under Annex II to that directive, have significant effects on the environment by virtue of its nature, size or location. 58 The Commission denies that assessment of the effects of a project on the environment may give rise to ‘legal uncertainty for public authorities and citizens, exposed to the uncertainty of a legal framework permanently threatened by subsequent case-by-case review on the part of Community bodies’. First, it recalls that the infringement procedure makes it possible to determine the exact scope of the obligations imposed on Member States where interpretations diverge. 59 Secondly, it points out that, faced with a project which falls within Annex II to Directive 85/337 but which does not satisfy the criteria or does not reach the thresholds set by national legislation, the national authorities must, having regard to the nature, size or location of the project, examine in the particular case a possible significant effect on the environment which would warrant an impact assessment in accordance with Directive 85/337. 60 Finally, the Commission recalls that so long as no administrative decision has been taken giving consent to the projects submitted, the developers have acquired no vested interest (Opinion of Advocate General Mischo, Case C-150/97 Commission v Portugal [1999] ECR I-259, point 22). 61 In the light of that case-law, the Commission takes the view that it is not sufficient to assert, as the Portuguese authorities have done, that, on account of its size, the project in question did not satisfy the legal conditions for an assessment of the effects on the environment. It points out that, on the contrary, Regulatory Decrees No 8/94 and 9/94 describe the Sintra-Cascais natural park, which includes the Ponta do Abano area, as a territory: – where these are natural values of unquestionable interest, which represent a national and even universal heritage; – which constitutes a highly sensitive area. 62 It concludes that, in the light of those circumstances, even though the project did not reach the size provided for under national legislation, the Portuguese authorities should have carried out an assessment of its effects before adopting a decision to consent to its location. 63 In its defence, the Portuguese Republic takes the view that the decision approving the location of the project did not infringe the terms of Directive 85/337. 64 The Portuguese authorities in fact undertook an analysis of possible significant effects on the environment, in accordance with Article 2(1) of Directive 85/337. That analysis took place at two levels, through the examination of: – the nature and location of the project, by means of the legislation transposing Directive 85/337, and – the nature, size and location of the project, by ascertaining its compatibility with the development plan for the Sintra-Cascais natural park, namely Regulatory Decree No 9/94. 65 The Portuguese Republic points out that the national legislation which transposes Directive 85/337 set out two criteria for making planned tourism complexes subject to an assessment of their effects on the environment, namely that they are not provided for in land-use planning measures and that they present certain characteristics (size or occupancy rate). Since the project is in an area defined in the development plan for Sintra-Cascais natural park as favouring tourism, the Portuguese authorities were in possession of the information which allowed them to conclude that, although located in an area of high environmental value, the project was not likely to have significant effects on the environment by virtue of its nature and location. 66 The Portuguese Republic explains that the development plan for Sintra-Cascais natural park was preceded by a plan, in force from 1981 to 1994, which broadly divided the territory into areas, and that those two plans were preceded by numerous natural heritage studies and by very extensive public discussions, which involved not merely civil society and non-governmental organisations but also various university institutes and public bodies. 67 The development plan for Sintra-Cascais natural park includes priority nature protection areas, rural environment areas, urban environment areas and areas favouring tourism and leisure activities. The Portuguese Republic points out that important natural values, including those subsequently identified by the Portuguese authorities as including species and habitats referred to in the annexes to Directive 92/43, have been duly protected by the classification of areas containing those species and habitats as priority nature protection areas, defined in the development plan. That plan is an adequate instrument for managing the values targeted by the creation of the Sintra-Cascais natural park. Approval of the project by the Portuguese authorities should be assessed in the light of those values. 68 The area favourable to tourism and leisure activities, where any holiday villages must be constructed, has been duly distinguished from the perspective of natural heritage. It is an area primarily colonised by secondary plant communities, which are degraded and structurally simplified, made up of Mediterranean bushes resulting from the natural regeneration of other, more evolved communities previously destroyed by successive fires over time, as well as small residual patches of eucalyptus, pinaster, umbrella pine and Aleppo pine. 69 The Portuguese authorities therefore ascertained that the project was compatible with the specifications laid down in the development plan, inter alia as regards compliance with environmental, landscape and architectural quality standards, and compatible with the parameters established for its size and occupancy rate, in accordance with Article 21 of Regulatory Decree No 9/94 approving the development plan. The project was authorised only after a favourable opinion from the natural park management committee, which determined that it satisfied environmental, landscape and architectural quality standards, in the terms laid down by Articles 20 and 4 of Regulatory Decree No 9/94. 70 The Portuguese Republic therefore disputes the Commission’s argument that the project would inevitably give rise to significant effects on the environment simply because it is located in Sintra-Cascais natural park. It points out that the sensitivity of the area where it is located, as well as the nature and size of the project, were duly taken into account. Consequently, the Portuguese authorities have not failed to fulfil their obligations under Directive 85/337, since they carried out a specific examination of the project as regards possible significant effects on the environment, in accordance with Article 2(1) of that directive. 71 In its reply, the Commission takes the view that the details provided by the Portuguese Government in the defence confirm that the authorities did not in actual fact carry out an assessment but merely determined that the project satisfied the conditions laid down in national legislation. The infringement is proved, for the reasons put forward in the application and in the light of the Court’s case-law. 72 The information provided by the Portuguese Government bears out the Commission’s position. Thus the fact that a project is located in an area defined by national legislation as ‘favouring tourism’ does not ensure that it will not have a significant effect on the environment in a specific case. Moreover, the information provided shows that the project in question is located in an extremely sensitive area where the flora has already deteriorated, at the very least, which bears out the Commission’s conviction that an impact assessment should have been carried out. 73 Finally, the Commission observes that the argument that the development plan for Sintra-Cascais natural park is an adequate instrument for the management of the conservation values related to the creation of that park cannot be reconciled with the information provided by the Portuguese authorities in their letter of 30 March 2000 that a decision had been taken to review and suspend with immediate effect that development plan and to prohibit new construction projects in areas favouring tourism and leisure activities. 74 In its rejoinder, the Portuguese Republic observes that the Commission appears to be confusing the area of Ponta do Abano, where the projects were approved, and Sintra-Cascais natural park. The latter has always been densely inhabited and includes urban, rural and leisure areas in addition to areas of substantial environmental value. 75 The recognition by the Portuguese authorities of the environmental values in Sintra-Cascais natural park is not at issue in the present proceedings. Nevertheless, that is the sole argument relied on by the Commission as grounds for its action. 76 In the light of the arguments put forward in the reply, the Portuguese Republic contends that the Commission is not correctly interpreting Directive 85/337. It is confusing the assessment procedure laid down in Articles 5 to 10 of that directive and the assessment of whether or not there are significant effects on the environment, which is a simple ‘screening’ operation preceding any formal assessment procedure. That preliminary verification was carried out in the present case by examining the nature, size and location of the project at the time its compatibility under the development plan was analysed, an analysis confirmed by the favourable opinion of the management committee of Sintra-Cascais natural park, which was essential for approval of its location under the system laid down by Regulatory Decree No 9/94. It is therefore not correct to state that ‘the fact that a project is located in an area defined by national legislation as favouring tourism in no way ensures that it will not have a significant effect on the environment in a specific case’. 77 The nature of each parcel of land in Sintra-Cascais natural park was defined at the end of multiple studies which made it possible to trace the contours set out in the development plan and to draw up the regulation establishing authorised standards, typologies and occupation indices for areas likely to be urbanised, as in the case of areas favouring tourism and leisure activities, where the project at issue was authorised. 78 The Portuguese Republic denies that the choice to locate the project in an area where the vegetation is degraded and simplified bears out the argument that an impact assessment was necessary. It is not possible to maintain that the protection objectives upheld by Community and national provisions might seek to restore natural conditions which disappeared prior to the classification of conservation areas or before those areas were populated. Moreover, the Commission does not have the capacity to call in question the management criteria for the environmental values of a national protection area, which were established well before the date when Member States were required to have transposed Directive 92/43. 79 As regards the suspension of the development plan for Sintra-Cascais natural park, the Portuguese Government explains that it wanted to revise the plan on the basis of an examination of its various underlying factors, inter alia the fact that the transposition into national law of Directive 92/43 imposed additional obligations on the Portuguese State as regards its contribution to creating the Natura 2000 network. However, analysis of compliance with obligations following from Community law must be carried out in the light of the conservation values protected by the legislation which applied at the time the natural park was created, and not in the light of the values of Directive 92/43. Findings of the Court 80 It is settled case-law that in proceedings for failure to fulfil obligations brought under Article 226 EC, it is incumbent upon the Commission to prove the allegation that the obligation has not been fulfilled. It is the Commission’s responsibility to provide the Court with all the evidence necessary to enable it to establish that the obligation has not been fulfilled and, in so doing, the Commission may not rely on any presumption (see, inter alia, Case 96/81 Commission v Netherlands [1982] ECR 1791, paragraph 6; Case C-404/00 Commission v Spain [2003] ECR I-6695, paragraph 26; and Case C-434/01 Commission v United Kingdom [2003] ECR I-0000, paragraph 21). 81 In this case, the Commission relies on Directive 85/337, as interpreted by the Court, to allege that the Portuguese Republic failed to carry out an impact assessment prior to authorising a project which, although it does not exceed the thresholds set by the Member State in accordance with Article 4(2) of the Directive, is nevertheless likely to have significant effects on the environment because of its nature and its location in the Ponta do Abano area of the Sintra-Cascais natural park. 82 Proof that Article 2(1) of Directive 85/337 has been infringed requires the Commission to demonstrate that a Member State has failed to adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to an assessment with regard to their effects. That proof may effectively be furnished by demonstrating that a Member State did not take all measures necessary to ascertain whether a project which does not reach the thresholds referred to in Article 4(2) of Directive 85/337 is nevertheless likely to have significant effects on the environment by virtue, inter alia, of its nature, size or location. The Commission might also determine that a project likely to have significant effects on the environment was not the subject of an impact assessment although it should have been. 83 In the present case, the Portuguese Republic has asserted that, because of the existence of the development plan for the Sintra-Cascais natural park and the consent procedures required under that plan, all measures necessary were adopted to ensure that, before consent is given for a project located in that park, the authorities check whether the project is likely to have significant effects on the environment by virtue, inter alia, of its nature, size or location, and whether it is therefore to be made the subject of an impact assessment. 84 The Commission has not however disputed that assertion. Nor has it demonstrated that in the present case the Portuguese authorities acted in breach of the discretion available to them by failing to require an impact assessment before consenting to that project although it was likely to have significant effects on the environment. 85 It is not sufficient to establish that a project is to be carried out in a national park in order to assume that the project will have significant effects on the environment. At the very least, the Commission must furnish a minimum of proof of the effects that the project is likely to have on the environment. 86 In the present case, the Commission has not dealt with the arguments of the Portuguese Republic that: – the Sintra-Cascais natural park includes not only areas of high environmental value but also urban, rural and leisure activity areas; – the areas favouring tourism and leisure activities where the projects were to be carried out were chosen precisely because of the degraded state of their vegetation. 87 It is not sufficient in that regard to make a general statement that the location of a project in an area defined by national legislation as ‘favouring tourism’ cannot ensure that the project will not have a significant effect on the environment in a specific case. Similarly, the Commission cannot merely point out that the information provided shows that the project in question is located in a highly sensitive area where the flora has already deteriorated, at the very least, without presenting specific evidence to demonstrate that the Portuguese authorities made a manifest error of assessment when they gave consent to the location of the project in an area specifically envisaged for projects of that type. 88 It must be held that the file presented by the Commission is based on the assumption that a project located in a national park is likely to have significant effects on the environment. Such an assumption is insufficient for the purpose of establishing the existence of an infringement of Article 2(1) of Directive 85/337. In any event, the Commission has not rebutted to the requisite legal standard the relevant explanations put forward by the Portuguese Republic. 89 Accordingly, the infringement is not proved and the action must be dismissed. Costs 90 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Portuguese Republic has applied for costs and the Commission has been unsuccessful, the latter must be ordered to pay the costs. On those grounds, THE COURT (Fifth Chamber) hereby 1. Dismisses the application; 2. Orders the Commission of the European Communities to pay the costs. Rosas La Pergola von Bahr Delivered in open court in Luxembourg on 29 April 2004. R. Grass V. Skouris Registrar President 1 – Language of the case: Portuguese.