Judgment — ECLI:EU:C:2014:5
Date: 2014-01-16
Language of the case: Spanish
Court formation: Tenth Chamber
Subject matter: Energy;Environment
Procedure: Action for failure to fulfil obligations - successful
Origin: Spain

summary of the pleas in law on which the application is based, and that that statement must be sufficiently clear and precise to enable the defendant to prepare his defence and the Court to rule on the application. It follows that the essential points of law and of fact on which an action is based must be indicated coherently and intelligibly in the application itself and that the heads of claim must be set out unambiguously so that the Court does not rule ultra petita or indeed fail to rule on a complaint (see, inter alia, judgment of 12 February 2009 in Case C‑475/07 Commission v Poland, paragraph 43, and Case C‑165/08 Commission v Poland [2009] ECR I‑6843, paragraph 42). 42 The Court has also held that, where an action is brought under Article 258 TFEU, the application must set out the complaints coherently and precisely, so that the Member State and the Court can know exactly the full extent of the alleged infringement of European Union law, a condition which must be satisfied if the Member State is to be able to present an effective defence and the Court to determine whether there has been a breach of obligations, as alleged (see, inter alia, Case C‑165/08 Commission v Poland, paragraph 43). 43 In the present case, in both the additional letter of formal notice of 29 January 2010 and the reasoned opinion, the Commission stated clearly that Article 8 of Directive 2002/91 leaves it to the Member States to decide between the two options provided for in that provision. The Commission subsequently stated that, while Royal Decree 1027/2007, notified by the Kingdom of Spain, sets out the frequency of boiler inspections in respect of boilers brought into service after the date on which that decree entered into force and transposes the option provided for in Article 8(a), it leaves it to the Autonomous Communities to establish the timetable for inspections of existing boilers. 44 In that context, the fact that the Commission concluded, in the reasoned opinion, that there had been a breach only of Article 8(a) of Directive 2002/91, rather than of Article 8 as a whole, does not constitute either an inconsistency or an error of reasoning. In view of the fact that the Kingdom of Spain had already communicated transposition measures in respect of Article 8(a) of Directive 2002/91, which the Commission, however, considered to be insufficient, the Commission concluded that the option provided for in that provision had not been transposed in full. 45 Moreover, it is apparent from the documents before the Court that the Kingdom of Spain was in a position to understand the full extent of the alleged failure to fulfil obligations and was able fully to exercise its rights of defence as from the pre-litigation procedure. 46 Thus, in its reply of 22 July 2010 to the additional letter of formal notice, the Kingdom of Spain merely replied that three Autonomous Communities had already published the decrees setting the rules governing the application of Royal Decree 1027/2007 on the basis of their respective powers and that the other decrees were undergoing administrative processing. The Kingdom of Spain therefore did not challenge the Commission’s assessment of its intention to limit the transposition of Article 8 of Directive 2002/91 to Article 8(a) thereof. 47 In the light of the foregoing, the Commission did not breach Article 38 of the Rules of Procedure, in the version in force at the date of commencement of the present action, by alleging that the Kingdom of Spain had failed to transpose in full the option provided for in Article 8(a) of Directive 2002/91, without mentioning that that Member State had omitted to communicate any measures relating to the option provided for in Article 8(b) thereof. 48 The main plea of inadmissibility must therefore be rejected. 49 The alternative plea of inadmissibility, submitting that the complaint is inadmissible in so far as Article 8(b) of Directive 2002/91 is concerned, must also be rejected. 50 On the one hand, the Commission claims, in the reasoned opinion, that the Kingdom of Spain failed to adopt the measures necessary to ensure compliance with Article 8 of Directive 2002/91, by focusing on point (a) of that provision, on the ground that that Member State had already notified it of transposition measures relating to the option provided for in that provision. 51 On the other hand, as the Kingdom of Spain subsequently claimed, in reply to the reasoned opinion, that it had chosen to transpose the obligations under Article 8 of Directive 2002/91 by having recourse to the two options set out in Article 8(a) and (b), the Commission was required to examine, in its application, whether the measures taken by the Kingdom of Spain constituted full transposition of Article 8 in the light of both Article 8(a) and (b). 52 It is settled case-law that the letter of formal notice from the Commission to the Member State concerned and then the reasoned opinion issued by it delimit the subject-matter of the dispute, with the result that that subject-matter cannot subsequently be extended. Consequently, the reasoned opinion and the application must be based on the same complaints (see, inter alia, Case C‑191/95 Commission v Germany [1998] ECR I‑5449, paragraph 55, and Case C‑139/00 Commission v Spain [2002] ECR I‑6407, paragraph 18). 53 However, that requirement cannot be stretched so far as to mean that in every case the statement of the complaints set out in the letter of formal notice, the wording of the reasoned opinion and the form of order sought in the application must be exactly the same, provided that the subject-matter of the proceedings, as defined in the reasoned opinion, has not been extended or altered (see, inter alia, Commission v Germany, paragraph 56, and Commission v Spain, paragraph 19). 54 In the present case, it must be held, in the light of the entire pre‑litigation procedure, that the failure to fulfil obligations alleged by the Commission concerned Article 8 of Directive 2002/91 as a whole. Consequently, while the Commission replied expressly only to the arguments concerning the transposition of Article 8(a) of that directive, it is clear that the reasoned opinion is based also on an implicit finding that Article 8(b) of that directive was not transposed. 55 The Commission’s complaints relating to Article 8(b) of Directive 2002/91 did not therefore extend the subject-matter of the dispute. 56 It follows that the complaint relating to the non-transposition of Article 8 of Directive 2002/91 is admissible. Substance – Arguments of the parties 57 The Commission takes the view, first, that Royal Decree 1027/2007 constitutes merely an incomplete transposition of Article 8(a) of Directive 2002/91 because it directly sets out the measures for regular inspections of boilers only in respect of boilers brought into service after that decree had entered into force and leaves it to the Autonomous Communities to establish the timetable for inspections of boilers in already existing installations. 58 As regards, second, the Kingdom of Spain’s argument that it chose to transpose Article 8 of Directive 2002/91 by having recourse to both options set out in that provision, the Commission claims, first of all, that those two options are alternative solutions. 59 The Commission states, next, that the Kingdom of Spain had not previously claimed to have chosen that combined method for transposing Article 8 of Directive 2002/91 into national law and that it is apparent, moreover, from recital 8 in the preamble to Royal Decree 1027/2007 that the objective of the latter was to transpose the option provided for in Article 8(a) of that directive. The Commission points out that, in its reply of 22 July 2010 to the additional letter of formal notice, the Kingdom of Spain referred solely to decrees of the Autonomous Communities – some of which were being processed – concerning the inspection of boilers, despite the fact that the provisions intended to transpose Article 8(b) of the directive into Spanish law were already in force on that date. 60 Lastly, with regard to the alleged transposition measures in respect of Article 8(b) of Directive 2002/91, the Commission observes that the Kingdom of Spain no longer invokes the ‘action plan’ referred to in its reply to the reasoned opinion and that that plan was not notified. The Commission also states that the duty to provide energy advice set out in Technical Instruction 3.4.4 of Royal Decree 1027/2007 is a very general obligation which cannot be regarded as constituting transposition of Article 8(b) of Directive 2002/91. 61 The Kingdom of Spain submits, first, that Article 8 of Directive 2002/91 was transposed by means of Royal Decree 1027/2007. 62 The Kingdom of Spain claims, in this regard, that Directive 2002/91 imposes solely the obligation to take ‘the necessary measures to establish a regular inspection of boilers’, but not the obligation to communicate the timetables established for that purpose. However, Royal Decree 1027/2007 not only imposes the specific obligation to undertake regular inspections but also determines the frequency on the basis of the output of the boiler and the type of fuel used, with the only power delegated to the Autonomous Communities being to determine, specifically, the first inspection of existing installations. 63 The Kingdom of Spain claims, second, that it has carried out its duty under Article 8 of Directive 2002/91, in so far as Royal Decree 1027/2007 lays down the obligation to undertake regular inspections and sets out a series of measures designed to reduce energy consumption and to limit carbon dioxide emissions. It refers, in that regard, to Technical Instruction 3, which imposes an obligation to carry out an annual inspection and to provide advice to owners on any improvements or modifications to be made to the installations in question. 64 In its rejoinder, the Kingdom of Spain refers to the forthcoming adoption of a draft Royal Decree amending certain articles and technical instructions in the rules relating to heating installations in buildings approved by Royal Decree 1027/2007, according to which the frequency of inspections of heating and hot-water installations is no longer established by the Autonomous Communities but for the whole of the national territory. – Findings of the Court 65 It should be borne in mind at the outset that it is common ground that Article 8 of Directive 2002/91 concerns both new buildings and existing buildings and that the Commission alleges only that the Kingdom of Spain failed to take, or in any event failed to communicate, the measures necessary in respect of existing buildings. 66 As regards, first, the Kingdom of Spain’s assertion that Article 8 of Directive 2002/91 was transposed by means of Royal Decree 1027/2007, suffice it to note that that decree directly sets out measures for regular inspections of boilers only in respect of boilers brought into service after the date on which that decree entered into force and leaves it to the Autonomous Communities to establish the timetable for inspections of boilers in already existing installations. 67 In its reply to the additional letter of formal notice, the Kingdom of Spain claimed, in that regard, that three Autonomous Communities had already published decrees setting the rules governing the application of Royal Decree 1027/2007 in their respective territories and that the other decrees were in the process of being adopted. 68 Contrary to what the Kingdom of Spain claims in its defence, it is apparent from the wording of Technical Instruction 4.3.1 of Royal Decree 1027/2007 that it is for the Autonomous Communities to set not only the date of the first inspection but also the frequency of inspections on the basis of output, type of fuel and age of the boiler. 69 Likewise, the argument that the timetable and information relating to its enforcement need not be notified to the Commission cannot be accepted. 70 Directive 2002/91 provides for the regular inspection of all boilers and must be interpreted as meaning that, even with regard to boilers in respect of which that directive does not set the minimum frequency of inspections, the Member States are also required to set a specific frequency of inspections and to notify the Commission of the measures adopted in order that the Commission can verify that those measures make it possible to realise the objectives laid down in that directive. 71 So far as concerns, second, the Kingdom of Spain’s argument that Article 8 of Directive 2002/91 has been transposed in full by Royal Decree 1027/2007 in conjunction with a series of measures set out in Technical Instruction 3.4.4 of Royal Decree 1027/2007, designed to reduce energy consumption, it should be observed that the two options provided for in Article 8(a) and (b) respectively are alternative options, with the result that Member States must transpose, in full, one or the other, and cannot merely transpose both options in part. The adoption of certain measures relating to Article 8(a) and of certain measures relating to Article 8(b) cannot therefore constitute a full transposition of Directive 2002/91. 72 Moreover, the duty to provide energy advice set out in Technical Instruction 3.4.4 of Royal Decree 1027/2007 is a very general obligation which cannot be regarded as constituting transposition of Article 8(b) of Directive 2002/91, as it does not refer specifically to a duty to provide advice on either the replacement of the boiler or other alternative solutions. Likewise, although the option provided for in Article 8(b) is subject to the condition that the overall impact of that approach should be broadly equivalent to that arising from the provisions set out in Article 8(a), the duty to provide advice set out in Technical Instruction 3.4.4 of Royal Decree 1027/2007 is imposed on maintenance companies, whereas Article 8(a) of Directive 2002/91, in conjunction with Article 10 thereof, requires regular inspections by independent experts. 73 Lastly, it must be noted that, in its rejoinder, the Kingdom of Spain acknowledges, essentially, the inadequacy of the measures adopted to date and merely claims that the procedure for the adoption of a draft Royal Decree amending Royal Decree 1027/2007 and setting out directly, for the whole of the national territory, the frequency of inspections of existing installations is still ongoing. 74 The complaint alleging a failure to transpose Article 8 of Directive 2002/91 in respect of existing buildings is therefore well founded. 75 It follows from all of the foregoing that the action is well founded. 76 It must consequently be held that, by failing to adopt, within the prescribed period, all the laws, regulations and administrative provisions necessary to ensure compliance with Articles 3, 7 and 8 of Directive 2002/91, the Kingdom of Spain has failed to fulfil its obligations under those provisions. Costs 77 Under Article 138(1) of the Rules of Procedure of the Court of Justice, the unsuccessful party must be ordered to pay the costs if they have been applied for in the other party’s pleadings. Since the Commission has applied for costs and the Kingdom of Spain has been unsuccessful, the latter must be ordered to pay the costs. On those grounds, the Court (Tenth Chamber) hereby: 1. Declares that, by failing to adopt, within the prescribed period, all the laws, regulations and administrative provisions necessary to ensure compliance with Articles 3, 7 and 8 of Directive 2002/91/EC of the European Parliament and of the Council of 16 December 2002 on the energy performance of buildings, the Kingdom of Spain has failed to fulfil its obligations under those provisions; 2. Orders the Kingdom of Spain to pay the costs. [Signatures] * Language of the case: Spanish.