61998CC0287_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1 The State of Luxembourg commenced proceedings against the Linsters, the owners in undivided shares of arable land in Luxembourg, in order to expropriate land from them in the public interest for the construction of a section of motorway linking the south of the country to the German road network.
2 The Linsters object to the expropriation and submit that the Grand-Ducal regulation under which the route of the road link concerned was adopted is unlawful.
They contend that adoption of that regulation was not preceded by an assessment of the environmental impact of the project in accordance with the provisions of Council Directive 85/337/EEC of 27 June 1985, (1) and furthermore that the Directive was not fully transposed within the time-limit. (2)
3 This is accordingly another case in which the question is raised as to whether domestic legislation is in compliance with a Community directive that has not been transposed. The Tribunal d'Arrondissement de Luxembourg (District Court, Luxembourg), which has been called upon to decide whether the Directive applies in the case before it and to determine the conditions under which it may apply, seeks in particular a ruling from the Court of Justice on whether it is necessary, in order to apply the Directive, for it first to be shown that it has direct effect or whether this is not necessary in order to review whether the project complies with the Directive.
I - Relevant provisions
A - Directive 85/337
4 Article 1 of the Directive, which defines its subject-matter and scope, provides:
`1. This Directive shall apply to the assessment of the environmental effects of those public and private projects which are likely to have significant effects on the environment.
...
5. This Directive shall not apply to projects the details of which are adopted by a specific act of national legislation, since the objectives of this Directive, including that of supplying information, are achieved through the legislative process.'
5 Article 4 sets out the projects subject to the Directive. Article 4(1) provides that, subject to Article 2(3), (3) projects of the classes listed in Annex I are to be made subject to an assessment in accordance with Articles 5 to 10.
6 Annex I reads as follows:
`Projects subject to Article 4(1)
...
7. Construction of motorways, express roads (1) ...
(1) For the purposes of the Directive, "express road" means a road which complies with the definition in the European Agreement on main international traffic arteries of 15 November 1975.'
7 Articles 5 and 6 of the Directive lay down the rules applicable to projects which come within its scope with regard to informing and consulting the public concerned. They deal in particular with the role of Member States in the communication of information on the project which the developer is required to supply to the public, the detailed arrangements for such communication, the nature of the information to be communicated and the obligation on Member States to consult.
8 Article 5 provides:
`1. In the case of projects which, pursuant to Article 4, must be subjected to an environmental impact assessment in accordance with Articles 5 to 10, Member States shall adopt the necessary measures to ensure that the developer supplies in an appropriate form the information specified in Annex III inasmuch as:
(a) the Member States consider that the information is relevant to a given stage of the consent procedure and to the specific characteristics of a particular project or type of project and of the environmental features likely to be affected;
(b) the Member States consider that a developer may reasonably be required to compile this information having regard inter alia to current knowledge and methods of assessment.
2. The information to be provided by the developer in accordance with paragraph 1 shall include at least:
- a description of the project comprising information on the site, design and size of the project,
- a description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects,
- the data required to identify and assess the main effects which the project is likely to have on the environment,
- a non-technical summary of the information mentioned in indents 1 to 3.
3. Where they consider it necessary, Member States shall ensure that any authorities with relevant information in their possession make this information available to the developer.'
9 Article 6(2) and (3) provides:
`2. Member States shall ensure that:
- any request for development consent and any information gathered pursuant to Article 5 are made available to the public,
- the public concerned is given the opportunity to express an opinion before the project is initiated.
3. The detailed arrangements for such information and consultation shall be determined by the Member States, which may in particular, depending on the particular characteristics of the projects or sites concerned:
- determine the public concerned,
- specify the places where the information can be consulted,
- specify the way in which the public may be informed, for example by bill-posting within a certain radius, publication in local newspapers, organisation of exhibitions with plans, drawings, tables, graphs, models,
- determine the manner in which the public is to be consulted, for example, by written submissions, by public enquiry,
- fix appropriate time-limits for the various stages of the procedure in order to ensure that a decision is taken within a reasonable period.'
B - National law
10 Article 1 of the Law of 16 August 1967 for the establishment of a comprehensive communications network and a road fund (4) provides:
`The Government is authorised to establish a comprehensive road network in accordance with the general programme provided for in Article 6 and plans to be adopted by the Grand Duke under Article 9.
The construction works for the road network are declared to be in the public interest.'
11 Article 6 of that Law contains the list of roads to be built.
As amended by the Law of 31 July 1995, (5) it states:
`The general programme for establishing a comprehensive road network is as follows.
The names of the towns referred to do not necessarily indicate the towns themselves, but their general area:
...
- a South Distributor Road, connecting up the main towns in the mining basin from Rodange to Bettembourg, its connection to the existing motorway network, its connections with the main industrial sites in that region and its linkage with the German and Belgian road networks at their respective borders;
...'
12 The route of the Saarland motorway was established by the Grand-Ducal Regulation of 21 November 1996 approving plans of parcels of land subject to compulsory acquisition and lists of the owners of those parcels with a view to the construction of Section II - Hellange to Mondorf-les-Bains - of the Saarland Link. (6)
II - Facts and the main proceedings
13 Expropriation proceeded under the Law of 16 August 1967, as amended by the Law of 31 July 1995, which included the communications network project in the general programme for a comprehensive communications network, and under the Grand-Ducal Regulation of 21 November 1996, which approved the plans showing the parcels of land.
14 The Tribunal d'Arrondissement de Luxembourg has pointed out that, under the 1995 Law, Article 14a was added to the Law of 16 August 1967, the first paragraph of which provides: `The inclusion of any construction project in the body of this Law shall be subject to prior preparation of a study assessing its impact on the natural and human environment'.
According to the Tribunal d'Arrondissement, the Public Works Committee of the Chamber of Deputies had considered that Article 14a should not apply to the proposed project, taking the view `that the spirit of Article 14a [had been] respected regarding the construction of that road link and that it [was] unnecessary to apply the procedure provided for in Article 14a'. (7)
The legislature thus decided that the requirement to carry out an impact assessment, laid down in Article 14a, did not apply to the proposed link with the German road network.
The national court has also pointed out that Article 14a and the Grand-Ducal Regulation of 31 October 1995 adopted in implementation of that article are designed to transpose Directive 85/337 for the purpose of future projects to be added to the 1967 Law and prescribe the impact assessments to be carried out and the public consultation procedure. (8)
15 The Tribunal d'Arrondissement has clearly stated that it considers that the legality of the expropriation procedure depends on whether the Law of 31 July 1995 and the Grand-Ducal Regulation of 21 November 1996 are compatible with Directive 85/337, so that it has the task of considering whether an impact assessment and public consultation have been carried out in accordance with the requirements of the Directive. (9)
III - The questions referred for a preliminary ruling
16 In order to review whether the contested measures are compatible with the Directive, the national court considers it necessary to refer a number of questions to the Court of Justice.
The first two concern the applicability of the Directive in relation to the direct effect which it may have, whilst the other four concern the interpretation of its provisions.
`1. Must Articles 177 and 189 of the EEC Treaty be interpreted as meaning that a court against whose decision there is no judicial remedy under national law and which is called on to verify the legality of a procedure for the expropriation in the public interest of immovable property belonging to a private individual may find that the assessment of the impact of the construction of a motorway required by Article 5(1) of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, being a project of the kind referred to in Article 4(1) thereof, has not been carried out, that the information gathered in accordance with Article 5 has not been made available to the public and that the members of the public concerned have not had an opportunity to express an opinion before the project is initiated, contrary to the requirements of Article 6(2) - the directive not having been fully transposed into national law despite the expiry of the period laid down for that purpose - or does such a finding involve an appraisal of the direct effect of the directive, so that the court is required to refer a question on the matter to the Court of Justice of the European Communities?
2. If the Court of Justice, in reply to the first question, holds that the court against whose decision there is no judicial remedy under national law is under an obligation to seek a preliminary ruling from the Court of Justice, then the question referred is as follows:
May the abovementioned directive be applied to a dispute concerning the expropriation in the public interest of immovable property belonging to a private individual and may the court, called on to verify the legality of the expropriation procedure, find that, contrary to Article 5(1) and Article 6(2), no environmental impact assessment has been carried out, that the information gathered in accordance with Article 5 has not been made available to the public and that the members of the public concerned have not had an opportunity to express an opinion before the construction of a motorway, a project of the kind referred to in Article 4(1), is initiated?
3. Does the act of national legislation mentioned in Article 1(5) of the abovementioned directive have an independent meaning in Community law or must it be defined in accordance with domestic law?
4. If the term "specific act of national legislation" has an independent meaning in Community law, is a measure adopted by the parliament after public parliamentary debate to be regarded as an act of national legislation within the meaning of Article 1(5) of the directive?
5. Does the term "project" as used in Article 1(5) of the abovementioned directive, the details of which are adopted by a specific act of national legislation, have an independent meaning in Community law or must it be defined in accordance with domestic law?
6. If the term "project" as used in Article 1(5) of the directive, the details of which are adopted by a specific act of national legislation, has an independent meaning in Community law, is the project adopted by parliament decision, after public parliamentary debate, to construct a motorway to join two other roads, without laying down the route of the motorway to be built, to be regarded as a project to which the directive does not apply?'
IV - Questions 1 and 2
17 The first two questions referred for a preliminary ruling both relate to the requirements which Directive 85/337 must meet in order to apply in this particular case, so it is appropriate to consider them together.
18 The direct effect of the Directive lies at the core of those questions.
They also concern the obligation, or power, of a court to refer a question to the Court of Justice for a preliminary ruling on whether or not a directive which has not been transposed has direct effect, should it first be necessary to show direct effect in order for the directive to apply.
19 More precisely, it is apparent from reading the questions submitted that the Tribunal d'Arrondissement de Luxembourg is seeking clarification on the following points, which are included in the questions to the Court.
20 First, the national court asks the Court of Justice if, when called upon to consider whether a rule of national law complies with a directive which has not been transposed within the period laid down, it can apply the provisions of that directive without verifying that they have direct effect, or if application of those provisions is dependent on first establishing that they have such effect in national law.
21 Second, the Luxembourg court seeks to ascertain whether, in the latter case, it is required to make a reference to the Court of Justice for a preliminary ruling in order to establish whether the relevant provisions of the directive do have direct effect.
22 Finally, if so, the Court is requested to rule whether Articles 5(1) and 6(2) of Directive 85/337 have direct effect, so that they may be applied in the case before the national court.
23 The first point, on which the answers to the following questions turn, is without doubt the most important since it raises a fundamental question linked to the conditions for the effective application of Community law. (10)
Those conditions are determined by the particularly complex relationship between untransposed directives and the direct effect which they may be accorded in certain circumstances. We shall see that that relationship may appear in a particular light where a national court is called upon to assess the legality of a rule of domestic law.
The direct effect of untransposed directives
24 We know that Community law is an integral part of the legal order applying within each of the Member States (11) and that the effects in domestic law of a rule of Community law are not, as a rule, conditional on the existence of State rules. (12)
25 Although this basic principle applies, in particular, to a large number of the rules of the Treaty, (13) to regulations (14) and to decisions, (15) the special nature of directives has given rise to more discussion.
Since a directive is binding, as to the result to be achieved, upon each Member State to which it is addressed, but leaves to the national authorities the choice of form and methods, (16) recognition of the direct effect of directives in the law of the Member States was not self-evident and, in any event, the overriding need to ensure the effectiveness of Community law was immediately limited by the very nature of the measures intended to implement it.
26 Being required to apply a rule whose effects must take precedence but are curbed by the failure of the competent authority with regard to its transposition into domestic law, a national court hearing a case that comes within the scope of an untransposed directive is faced with an uncertain situation likely to prejudice the effectiveness of Community law.
27 By definition, legal rules arising from the treaties are intended from their adoption to alter the legal orders of the Member States, a fact which justifies the removal of obstacles to such integration.
However, as regards directives, the difficulty stems from the fact that the obstacle is constituted by a failure on the part of Member States, when the very nature of that category of measures means that their effectiveness is dependent upon the adoption of a measure of domestic law.
28 Hence, any initiative to accord to the provisions of an untransposed directive the ability to produce legal effects directly meets with opposition on several counts.
29 There is firstly the risk of failing to take account of a directive's specific nature which is justified by the concern to lay down specific and binding objectives for the Member States but at the same time to allow them some discretion in the implementation of Community law.
Even if the boundaries separating the different types of Community measure are not always very distinct, particularly where directives attain a level of precision comparable to that of regulations, or where regulations require for their implementation a number of implementing measures in the Member States' domestic law, the wishes of the authors of the treaties and the classification of the various measures as laid down in Article 189 of the Treaty necessitate at least some respect for the initial distinction. (17)
30 That distinction is all the more vital since it reflects to a great extent the division of powers between the Member States and the Community; this is a reason for not regarding directives, which are acts of legislative cooperation, as being in principle the same as regulations, which are rules that are preferred in connection with actions coming within exclusive Community competence.
31 Moreover, to allow a national court to apply an untransposed directive would in some respects be to endow it with a legislative function, since its decision would occupy the space originally allocated to the competent authorities of the Member States entrusted with transposition of the directive. (18)
32 Lastly, as we have seen, the Court of Justice has ruled that `... a directive may not of itself impose obligations on an individual and ... may not be relied upon as such against such a person', strictly precluding what is commonly called the `horizontal' direct effect of directives. (19)
33 When confronted with the same dilemma as that faced by national courts, which requires them to make a choice between formal legality dictated by the nomenclature of Community measures and a pragmatic concern to ensure the effectiveness of a rule of Community law, the Court of Justice has sought to balance the two alternatives.
It has accepted that in certain precisely identifiable circumstances it is possible to accord certain provisions of a directive direct effect in domestic law.
34 Recognition of the direct effect of directives was initially based exclusively on the binding effect attributed to a directive by Article 189 of the Treaty, which means that it is not possible `... to exclude, in principle, the possibility that the obligation which it imposes may be invoked by those concerned', (20) and on its practical effect, which `... would be weakened if individuals were prevented from relying on it before their national courts and if the latter were prevented from taking it into consideration as an element of Community law'. (21)
35 The conduct of the defaulting Member State subsequently proved to be the main basis for this exceptional effect of directives.
The Court thus held that `... a Member State which has not adopted the implementing measures required by the directive in the prescribed periods may not rely, as against individuals, on its own failure to perform the obligations which the directive entails'. (22)
36 Thus confined to `vertical' cases, that is to say cases between an individual and a public authority, the ability of directives to produce direct effect no longer merely has as its fundamental justification the fact that they are enforceable rules which have been laid down, designed to alter the legal order; it is also explained by the fact that, since Member States are entrusted with the task of transposing directives in order to make them full legal rules, Member States are not permitted to plead in support of their case their own failure to complete transposition.
37 In order for the provisions of a directive to have effect in the absence of domestic implementing legislation, certain conditions must also be met demonstrating that those provisions can be automatically integrated into national legislation and therefore applied without any intervening measure.
An incomplete legal rule, as a directive is by definition, is initially frozen in the absence of an instrument transposing it, unless the nature of its provisions is such that they can simply be applied directly.
38 That is the case where the obligation it entails is sufficiently precise and unconditional. (23)
These requirements are purely technical in the sense that they are dictated by the very function of giving judgment; a rule of law is all the easier to apply where there is no doubt regarding its content and is thus able to create legal effects by itself. (24)
They also define the limits of the court's jurisdiction by designating the rules which it may apply without exceeding its powers. (25)
39 The requirement of unconditionality, which is the less easy of the two conditions to define, is based on the idea that, in order to have direct effect, the provision of an untransposed directive which is relied on must not be subject in particular `... to the taking of any measure either by the institutions of the Community or by the Member States'. (26)
More specifically, the transposing measures or, at Community level, the implementing measures which may be necessary do not prevent recognition of the direct effect of a directive where the authority responsible for transposing or implementing it has no discretion or even just reduced discretion. (27)
40 On the other hand, the fact that a directive is conditional or imprecise prevents a court from applying it until it has been transposed into domestic law. Thus it has been written that, `where a State has not implemented a "conditional" directive it is certainly at fault, but there can be no direct effect because no one knows what rule of law should be applied'. (28)
It is not for the court to take the place of the defaulting Member State by creating the missing rule of law in its stead.
41 However, although the Court of Justice generally refers to those criteria before ruling on the direct effect of a directive, that is not always so.
42 It has been the case that, when asked specifically about the direct effect of a directive the Court, after referring to the binding effect of directives and the need to protect their effectiveness, has abandoned the dual requirement of precision and unconditionality and merely concerned itself with the level of discretion available to Member States under the directive. (29)
Instead of analysing the content of the provisions in question in order to establish or deny their applicability, the Court of Justice has called on the national court to determine `... whether the national legislature, in exercising its choice as to the form and methods for implementing the directive, had kept within the limits of its discretion set out in the directive'. (30)
43 This qualification of the Court's traditional case-law originates from the judgment in Verbond van Nederlandse Ondernemingen. (31)
That judgment was given in a case arising from a challenge to a decision of the tax authorities.
One of the questions submitted concerned the interpretation of Article 11 of the Second VAT Directive, (32) which deals with the right to deduct VAT invoiced to a taxable person in respect of goods supplied to him.
The Court first considered direct effect, from the point of view both of the principle of direct effect with regard to directives (33) and of the conditions for finding it, (34) but opted for review by the national court of the legality of the national measure in question in light of the margin of discretion which the directive leaves to the Member States.
44 The judgment in Verbond van Nederlandse Ondernemingen contains a special feature, however, in that it combines the two approaches to this matter.
On the one hand, the Court noted the explicit and precise nature of the principle of deduction at issue, as laid down in Article 11(1) of the Second Directive 67/228.
On the other hand, pointing out that that principle was subject to certain derogations and exceptions which the Member States had the power to determine and that exercise of those powers was a matter for the discretion of the national authorities, it held that it was the duty of the national court before which the case had been brought to determine whether the disputed national measure fell outside the margin of the discretion of the Member States.
45 Thus, the case-law on reviewing whether Member States have kept within their discretion is still, in that judgment, subsidiary to the case-law concerning assessment of the direct effect of the directive being relied on and applies only where the power devolved to Member States to implement a directive provides them with a genuine choice in how they do so.
46 Such an approach is not fundamentally different from that adopted in most of the judgments which followed the judgment in Verbond van Nederlandse Ondernemingen. (35)
In successive cases, the question whether it must first be established whether a directive has direct effect is to be answered in the affirmative.
47 Under such a system, the answer to the question referred by the Tribunal d'Arrondissement de Luxembourg should be founded on first showing that the Directive has direct effect.
In Linster and Others, the national court is similarly faced with a plea challenging the legality of a decision which, it is claimed, is not in compliance with the provisions of a directive.
Following the logic of the judgment in Verbond van Nederlandse Ondernemingen, the national court would be required to verify whether the relevant provisions of the Directive are unconditional and sufficiently precise to be applied in this particular case, failing which it should review how Member States have exercised their discretion.
48 The same conclusion may be drawn from the judgment in Kraaijeveld and Others, cited above, where the legislation at issue, namely Directive 85/337, was the same as that being relied on by the Linsters.
The Court, asked whether certain provisions of the Directive have direct effect, stated first that those provisions are conditional, pointing out that Member States have a certain discretion in that they `... may inter alia specify certain types of projects as being subject to an assessment or may establish the criteria or thresholds necessary to determine which projects are to be subject to an assessment'. (36)
It went on to say that `... the limits of that discretion are to be found in the obligation ... that projects likely ... to have significant effects on the environment are to be subject to an impact assessment'. (37) Lastly, the Court pointed out that national courts have the power to review the discretion accorded to the national legislature. (38)
49 As I have stated, the undoubtedly predominating tendency in the Court of Justice's case-law to link the applicability of directives, or the possibility of relying on them, to finding that they have direct effect is, however, not exclusive.
50 In some judgments, whether older (39) or more recent, (40) the Court has not made prior examination of the direct effect of a directive, within the meaning of the case-law contained in the judgments in Ratti or Becker, cited above (hereinafter `the Becker case-law'), a necessary precondition for its application. (41)
The Court's traditional analysis of the content of the provisions being invoked in order to decide whether they are sufficiently precise and unconditional is not therefore systematic.
In those few cases, review of the way in which the Member State has exercised its discretion remains alone at the heart of the judgment, as if analysis of the provisions at issue were less relevant to their direct application in domestic law than with regard to a formal examination of the powers allocated by the directive between the Community and the Member States.
In other words, those judgments seem to owe more to the principle of primacy than to the principle of direct effect.
51 Regardless of their respective histories, it does not appear that the prior determination of direct effect was required in each case in order to dispose of them.
It may be asked, more generally, whether examining the direct effect of a directive is relevant in deciding all cases involving a directive which has not been transposed and a conflicting rule of domestic law.
Direct effect of directives which have not been transposed and assessment of the legality of a rule of national law
52 In the present case, in which the legality of the 1996 Grand-Ducal Regulation is at issue, the Tribunal d'Arrondissement de Luxembourg may adopt one of two approaches.
Under the first, it would verify whether Articles 5(1) and 6(2) of Directive 85/337, which concern making information on the project available to the public concerned and taking into account the opinion expressed by those to whom the information has been given, have direct effect because their content is precise and unconditional.
53 In that case, the Tribunal d'Arrondissement would be entitled to apply the Directive for the purpose being pursued.
In the other case, the national court could verify directly (and solely) whether, by adopting the contested decision, the Grand Duchy of Luxembourg kept within the limits of its discretion.
It would then be applying the Directive without ascertaining that it has direct effect within the meaning of the Becker case-law.
54 The choice between those alternatives must be made on the basis of considerations relating to whether both the requirements of the effectiveness of Community law and the rules and competencies established by Community law are complied with.
55 At all events, a directive which has not been transposed cannot produce legal effects, in the same way as a Community regulation, where, due to its content, it cannot be applied without the adoption of another measure.
This does not mean that, in order to be effectively applied by a national court for the purpose of deciding a case, the provisions relied on must have the same characteristics, whatever the use made of them.
56 It seems to me, therefore, that it is the nature of the national proceedings brought by an individual which may determine, according to their objective, the use which will be made of the provisions of the directive in question.
57 The claims set out by the parties indeed have a bearing on the way in which the court will call in aid a Community rule in order to give it practical effect.
To cite a distinction which is sometimes used, I think that a directive is subject to different requirements depending on whether it is pleaded for purposes of `exclusion' or `substitution' of a legal rule. (42)
58 Before returning to the `ability to plead exclusion', I should like to consider for a few moments the meaning of the `ability to plead substitution' and its significance within the case-law of the Court.
It refers to the ability of a party to rely on a directive before a national court, instead of a national instrument which is non-existent or which does not comply with the directive, in order to enjoy a right established by that directive. (43)
The provisions concerned must therefore `... define rights which individuals are able to assert against the State'. (44) This ability to plead a directive is, as is well known, closely linked to conditions requiring the applicable rule to be precise and unconditional.
The provisions of an untransposed directive which seek to create rights for individuals do not therefore rank as enforceable rules laid down within the domestic legal system, in the same way as the legal rules of the State concerned, where they do not strictly speaking have direct effect.
59 The Court has moreover drawn a number of conclusions from this, in judgments which are among the most innovative of its case-law, when, since those conditions were not met, the question remained as to how it would be possible to ensure the precedence of a rule of Community law laid down in a directive.
In the absence of direct effect, and of the `ability to plead substitution' which might result therefrom, the Court has allowed national courts to draw certain legal consequences from directives that have not been transposed, triggering a process of dissociating the principle of direct effect from other means of pleading a directive.
60 Thus, in Von Colson and Kamann, (45) the Court laid down the principle of `consistent interpretation'.
In that case, which concerned the nature of penalties for sex discrimination, the Court held that Directive 76/207/EEC (46) did not lay down an unconditional and sufficiently precise obligation, leaving `the Member States free to choose between the different solutions suitable for achieving its objective ...'. (47)
The Court, after setting out what it regarded as the main feature of the requirements of the relevant Community law - namely that if a Member State chooses to penalise employers at fault by the award of compensation, the amount of such compensation must be adequate in relation to the damage sustained - added, however, that it was for `the national court to interpret and apply the legislation adopted for the implementation of the directive in conformity with [those] requirements ... in so far as it is given discretion to do so under national law'. (48)
61 The effectiveness of Community law required at the very least that, taking account of the limits imposed by the nature of directives and by the content of the relevant provisions of the directive in question, parties who considered they had suffered injury as a result of failure to transpose a directive that conferred rights on them whilst leaving Member States a certain margin of discretion should be granted `the ability to plead consistent interpretation'. (49)
62 Following the same logic, the Court established in its judgment in Francovich and Others (50) what has been called the `ability to plead reparation'.
The Court recognised the right of a party who has suffered harm as the result of failure by a Member State to transpose a directive to have that State held liable before the national courts where the directive does not meet the necessary conditions for it to have direct effect in domestic law.
This completed the arrangements intended to offset the adverse consequences, in terms of the effectiveness of Community law, stemming from a Member State's failure to comply with its obligation to transpose a directive.
63 Where the direct effect of a directive is not clear cut, the Court's case-law attempts to preserve the full effectiveness of the Community rules by other means, which seek both to attain that objective and not to call into question the nomenclature of Community measures given in Article 189 of the Treaty.
64 In short, where one of the parties to proceedings before a national court seeks recognition of a right under a directive which has not been transposed and cannot have direct effect in domestic law, it appears that it is not possible for the `ability to plead substitution' to result in application of the directive. (51)
In that situation, the party concerned can only opt for a solution which enables him to derive the appropriate consequences from the directive's precedence over domestic law, without guaranteeing him full application of Community law.
The two ways in which the directive can be pleaded seek to give the individual the means of invoking, by differing means and to differing extents, the relevant provisions of the directive, either by influencing the interpretation of domestic law or by using it as a basis for an action for reparation.
65 It is therefore possible now to talk of `minimum enforceability' where the `greater enforceability' provided by recognition of direct effect cannot operate. (52)
66 Those judgments, however, fall into the same category, since they derive from actions brought by parties relying directly on rights introduced for their benefit by a directive.
The solutions adopted by the Court of Justice in that regard result from the finding, after close analysis of the content of the provisions in question, that they cannot have direct effect.
67 It seems to me that a case such as that before the court making the present reference is of a different nature and therefore calls for a different solution.
In the proceedings before that court, the intention of the parties is to challenge the rule which it is sought to apply to them, relying on Directive 85/337 in support of their claim, rather than to seek the Directive's direct application.
The main proceedings correspond to the logic of the `ability to plead exclusion'.
68 In other words, it is for the Linsters less a question of relying on a `subjective' (individual) right which they seek to enforce than of applying to the national court for review of whether domestic law is in accordance with the relevant Community law, a process which may result in invalidation of the national rule.
I would point out in this connection that in the judgment in Verbond van Nederlandse Ondernemingen, cited above, as in the judgments which refer to it, the Court has indicated that `... the individual invokes a provision of a directive before a national court in order that the latter shall rule whether the competent national authorities ... have kept within the limits as to their discretion set out in the directive'. (53)
69 In that context it may be asked whether it is still justified to review the direct effect of the directive being invoked as in the case where a party seeks to substitute the Community rule for the national rule.
70 Admittedly, the Court's case-law does not clearly reveal a comparable distinction from which one might infer the existence of two separate systems applying to a court's obligation to examine the content of the directive.
On the contrary, the paragraph which in most of the Court's judgments sets out the dual condition to which the Court makes recognition of direct effect subject, imposes compliance with those requirements as a precondition for relying on the provisions, not only in so far as they define rights for individuals, but also where they are used to challenge `... any national provision which is incompatible with the directive ...'. (54)
71 `Uncoupling' direct effect and the possibility of relying on a directive, in the same way as when consistent interpretation or reparation remain the only options open in the absence of such effect, would, however, have advantages.
72 As we have seen, the reasons justifying prior assessment of direct effect relate mainly to the particular nature of a directive, whose primary purpose is not to be directly integrated into the laws of the Member States.
In supplementing a directive by a creative interpretation in order to settle a case brought before it, the court takes the place of the legislature. (55)
73 These constraints inherent in the court's work are not the same when it is called upon to assess the validity of a rule of domestic law in the light of the relevant Community rule.
In such proceedings which are simultaneously `vertical' and `objective' (non-personal), in which the pleas put forward by a party against a public body do not seek directly to obtain recognition of an individual right, the question of direct effect tends to be eclipsed by that of primacy.
The problem of integrating the rule of Community law into national law is restricted to confrontation between the different rules and does not extend to their application to individuals.
74 When reviewing the compatibility of a subordinate rule, the need to ensure that the directive is precise is less important, and the court is moreover entitled to interpret it, where appropriate after referring a question to the Court of Justice for a preliminary ruling. (56) In particular, where the national court is faced with a provision which leaves Member States genuine discretion, it has the task, taking account of the objective being sought by the injured party, of verifying that the public body whose decision is being challenged has kept within the limits of the powers which it was left under the directive.
75 The question of a Member State's discretion, which constitutes one of the conditions for direct effect, is, in this particular case, in some way the very subject-matter of the proceedings in which the court must give its ruling.
76 The judgments in Verbond van Nederlandse Ondernemingen, Kraaijeveld and Others, Delkvist and WWF and Others, cited above, provide examples of proceedings in which directives were relied on to that end although in those particular cases prior review of the direct effect of the directive in question was not always avoided.
77 Even though it is not always easy to draw a line between court proceedings with the objective of exclusion, and those with the objective of substitution, of a legal rule, that line is far from being theoretical.
It separates two fields which are generally quite distinct.
78 The present case is not without interest in this connection.
The Linsters applied to the court hearing the case for collateral review of the legality of a Grand-Ducal regulation.
Whether it was opted for freely or was imposed by circumstances or by the features of the relevant national law, the approach chosen was thus that of `exclusion' of the national rule.
The regulation at issue is challenged on the ground that it does not comply with the provisions of Directive 85/337 with regard to informing and consulting the public concerned.
It is possible to imagine the challenge to the expropriation procedure having taken the form of an application for an injunction ordering such public information and consultation measures to be carried out.
It is evident that in the case of proceedings based on a claim for `substitution' by a right provided for in a directive the requirements laid down for application of the Community rule are not entirely identical.
79 The consequences of allowing such an application would be that the provisions of the directive would ipso facto be treated as a rule of domestic law, in the same way as other legal rules applying within the State concerned.
We have seen why such equiparation, giving rise to recognition of a `subjective' right, had to be made subject to certain fundamental requirements.
80 On the other hand the plea put forward by the Linsters, although based on the same rule of law, uses it in a different way, determined by the purely formal purpose, from the legal viewpoint, of their claims.
From that angle, the content of the rule is less important than if it were to be applied specifically for the benefit of an individual. (57)
81 In my view, therefore, there is no need for prior consideration of the direct effect of the provisions relied on, at least in the sense in which the term `direct effect' is understood. (58)
82 It must thus be possible to exercise rights contained in a directive that has not been transposed, irrespective of the terms in which they are couched, where they are invoked for the purposes of reviewing the legality of rules of domestic law.
83 This solution has several advantages.
84 While complying with Article 189 of the Treaty, it protects the rights of individuals and reduces the harm caused to the effectiveness of Community law by the behaviour of States.
85 Individuals have an interest in securing compliance by the authorities with Community rules which bind them in the same way as rules of national law. Infringement proceedings are traditionally brought against a Member State which is in breach of its obligations.
However, it is well known that several years may pass between the time when the Commission becomes aware of an infringement and the time when the Court delivers its judgment.
Furthermore, as the Court has consistently held, the Commission is not bound to commence infringement proceedings if it does not consider it necessary.
In fact, the Commission has a discretion which excludes the right for individuals to require it to adopt a specific position. (59)
It may therefore be justified to grant individuals the right to apply to the national courts to secure compliance with the hierarchy of norms where, due to failure to transpose a directive, that hierarchy is infringed. (60)
86 This promotes stricter compliance with Community law, whose primacy may thus benefit from the support of individuals.
The latter are directly interested, through their own interests, in compliance with the law.
87 The Court has for a long time spelt out the consequences of the direct applicability of a provision of Community law where it is incompatible with the law of a Member State. Every national court must, in a case within its jurisdiction, apply Community law in its entirety and protect rights which the latter confers on individuals, and must accordingly set aside any provision of national law which may conflict with it. (61)
In the case of directives, recognition of their status as enforceable rules, irrespective of their capacity to give rise directly to rights for individuals, would complete that tendency.
88 I would add that, if it is accepted that the preconditions for recognition of direct effect in fact correspond to functional considerations, it is natural that they may be dispensed with in proceedings that do not require the provisions concerned to have their full effect at that time.
Whether or not a rule may be relied on depends on the way in which the national court is called upon to apply it. (62) Ultimately, `Community law can be applied by national courts if it meets the conditions required for the specific judicial use sought'. (63)
89 I therefore propose that the Court should reply to the first two questions that Article 189 of the Treaty is to be interpreted as meaning that a national court hearing a case which necessitates consideration of whether a rule of domestic law is compatible with a directive that has not been transposed within the period laid down is not required, in order to rule on that point, to verify first whether the provisions of the directive which are relied on are sufficiently precise and unconditional.
90 In the light of the proposed reply, it is not necessary to rule on the question whether the national court is required to refer a question to the Court of Justice for a preliminary ruling in order to determine whether the relevant articles of Directive 85/337 are sufficiently precise and unconditional and, in that case, whether those provisions have those characteristics.
V - Questions 3 and 5
91 Called upon to apply Directive 85/337, the Tribunal d'Arrondissement de Luxembourg essentially asks whether the term `projects the details of which are adopted by a specific act of national legislation' in Article 1(5) of Directive 85/337 is to be interpreted in an autonomous manner or in accordance with national law.
92 None of the parties questions the need to give that term a meaning which ensures it is applied uniformly throughout the Community.
93 That also follows from the Court's settled case-law, according to which `the Community legal order does not in fact aim in principle to define its concepts on the basis of one or more national legal systems without express provision to that effect'. (64)
94 That principle applies not only to Treaty provisions or regulations but also to directives.
The interpretation of a term used in a provision of a directive `... which does not refer to the law of the Member States for the determining of its meaning and its scope ... cannot be left to the discretion of each Member State'. (65) The Directive does not make any reference to the law of the Member States which would support different interpretations depending on the various national laws.
95 Uniform application of Community law and the principle of equality require that conclusion to be drawn. (66)
96 The objectives pursued by Directive 85/337 confirm that requirement.
The Directive seeks to eliminate the disparities between the laws in force in the various Member States with regard to the assessment of the environmental effects of public and private projects. (67)
It states also that `... the principles of the assessment of environmental effects should be harmonised, in particular with reference to the projects which should be subject to assessment, the main obligations of the developers and the content of the assessment'. (68)
Elimination of the disparities between national laws and the harmonisation of those laws inevitably require the Directive's provisions to be read in a uniform manner.
VI - Questions 4 and 6
97 As provided in Article 1(5), the Directive does not cover `projects the details of which are adopted by a specific act of national legislation, since the objectives of this Directive ... are achieved through the legislative process'. (69)
98 A motorway construction project provided for by a law which comes within that category would not be subject to the obligations of public information and consultation laid down in Articles 5 and 6.
99 In the main proceedings, the Linsters maintain that those obligations did apply, since the 1995 Law amending the 1967 Law does not come within the definition contained in Article 1(5).
They argue that, in the absence of an assessment and of a public inquiry in accordance with the Directive, the expropriation procedure is unlawful. (70)
100 Consequently, the national court seeks to ascertain whether Article 1(5) of Directive 85/337 is to be interpreted as covering a law adopted by parliament after public parliamentary debate which authorises the construction of a motorway without defining its route, so that the construction project does not fall within the scope of Directive 85/337.
101 The Luxembourg Government maintains that a motorway construction project adopted by Parliament may be regarded as being excluded from the scope of the Directive as regards consent for the route of the motorway where, first, adoption of the law is accompanied by the passing of a motion by which Parliament chooses between the various routes which have been proposed and calls on the Government to decide on a specific route when the regulation implementing the law is adopted and, second, that motion is followed by the adoption of an implementing regulation which is in accordance with the contents of the motion. (71)
102 At the hearing the Grand Duchy of Luxembourg added that public consultation had taken place before the adoption of the 1995 Law.
103 It should be noted that the questions referred by the national court relate to the status, with regard to Directive 85/337, of a national legislative measure which does not settle the route of the motorway that is to be constructed.
No reference is made to a motion supplementing the law in question by specifying the geographic location of the project.
104 Even if the parliamentary motion in question calling on the Government to choose one of the possible routes was sufficiently precise and complete for it to be concluded that a `project the details of which are adopted by a specific act of national legislation' within the meaning of the Directive was involved, I do not think that that matter can be taken into account since it is such as to affect the content of the questions referred.
The Court of Justice has consistently held that to alter the substance of questions referred for a preliminary ruling would be incompatible with the Court's function under Article 177 of the Treaty (now Article 234 EC) and with its duty to ensure that the Governments of the Member States and the parties concerned are given the opportunity to submit observations under Article 20 of the EC Statute of the Court, bearing in mind that, under that provision, the order of the referring court is notified to the interested parties. (72)
105 As regards public consultation, this point and the point concerning the carrying out of an impact assessment were clearly mentioned by the national court, but it did not consider it appropriate to include them in the text of the questions submitted. (73)
I do not consider it necessary for the Court to take this factual situation into account in order to reply to the questions submitted.
The questions do not relate either to whether or not an assessment was carried out in this particular case or to consultation of the public in general and the Linsters in particular, these being questions of fact which may be assessed only by the national court: the questions relate to the characteristics which a law must display in order for the construction project it deals with not to be subject to the obligations relating to information and consultation laid down in the Directive.
106 According to the Luxembourg Government, it cannot be accepted that all the details relating to the implementation of a project, even the most insignificant ones, must be the subject of a legislative measure. Furthermore, a project may be the subject of consents at several different stages of its implementation.
There is nothing, therefore, to prevent only certain aspects of a project being the subject of a specific act of national legislation and thus being exempt from the compulsory environmental assessment. (74)
107 It is necessary in this connection to determine the conditions which a legislative act must meet, as regards its content, in order to be regarded as a `specific act of national legislation' within the meaning of Directive 85/337.
108 Recently, in WWF and Others, cited above, the Court gave a very precise and full interpretation of Article 1(5) of the Directive.
I think it appropriate to refer to it in order to answer the questions submitted.
109 It is stated in that judgment that Article 1(5) exempts projects envisaged by the directive from the assessment procedure subject to two conditions: `The first requires the details of the project to be adopted by a specific legislative act; under the second, the objectives of the Directive, including that of supplying information, must be achieved through the legislative process'. (75)
110 In order to describe the characteristics which such a legislative act must display, the Court referred to the definition in Article 1(2) of `development consent' as `the decision of the competent authority or authorities which entitles the developer to proceed with the project'. (76) The Court clearly laid down the principle that `... if it is a legislative act, instead of a decision of the competent authorities, which grants the developer the right to carry out the project, that act must be specific and display the same characteristics as the development consent ...'. (77)
111 The Court accordingly stated that, `... in order for a legislative act to display the same characteristics as development consent ... the act must lay down the project in detail, that is to say in a sufficiently precise and definitive manner so as to include, like development consent, following their consideration by the legislature, all the elements of the project relevant to the environmental impact assessment'. (78)
112 It is only by complying with such requirements that the objectives referred to in the second condition laid down by Article 1(5) of the Directive can be achieved through the legislative process. (79)
Indeed, as the Court quite rightly held, if the legislative act does not include the elements of the project which may be relevant to the assessment of its impact on the environment, `... the objectives of the Directive would be undermined, because a project could be granted consent without prior assessment of its environmental effects even though they might be significant'. (80)
113 The Court drew the following conclusion from all those factors: `... the details of a project cannot be considered to be adopted by a law, for the purposes of Article 1(5) of the Directive, if the law does not include the elements necessary to assess the environmental impact of that project but, on the contrary, requires a study to be carried out for that purpose, which must be drawn up subsequently, and if the adoption of other measures are needed in order for the developer to be entitled to proceed with the project'. (81)
114 The position of the Court is clear.
By making an exception for cases where a project is adopted by a legislative act, the Community legislature did not intend to lay down a formal criterion enabling Member States to exclude such projects from an assessment of their environmental impact and from the requirement to inform and consult the public concerned merely on the basis of the nature of the act in question and the status of the authority which adopted it.
Only legislative acts which provide the same safeguards as those which would have been required under the Directive fall outside the scope of the Directive.
115 In other words, it is because the project approved by the legislature achieves, from the point of view of impact assessment and public information and consultation, the environmental protection objectives pursued by the Directive that it is exempt from complying with the letter of the Directive.
116 The Court, moreover, recalled one of the principal purposes of the Directive in quoting the sixth recital in its preamble, which states: `development consent for public and private projects which are likely to have significant effects on the environment should be granted only after prior assessment of the likely significant environmental effects of these projects has been carried out' and `... this assessment must be conducted on the basis of the appropriate information supplied by the developer, which may be supplemented by the authorities and by the people who may be concerned by the project in question'.
117 The entire reasoning contained in the judgment in WWF and Others must be approved and consequently transposed to the present case.
118 Can it reasonably be asserted that, under the Directive, Member States are exempted from assessing the environmental impact of a project and from implementing information and consultation procedures before the project is carried out, whatever its nature, solely because they choose to adopt the project through the legislative process?
119 That proposition is admittedly not contradicted by the wording of Article 1(5) which is in fact ambiguous and seems to imply an automatic link between recourse to the legislative process and compliance with the objectives of the Directive.
However, the proposition results in the grant to the Member States of a discretion enabling them to derogate as much as they wish from the provisions of the Directive, to the detriment of the environment and of the public concerned by projects which could have an adverse environmental impact. Such a reading of Article 1(5) is thus simply tantamount to repudiating the objectives pursued by the Council.
120 On the basis of this most recent case-law, I consider that merely including a motorway construction project in a general programme for the creation of a comprehensive communications network does not mean that the details of the project can be regarded as having been adopted if the route of the motorway is not definitively and precisely laid down in the legislative act in question.
121 It is important that the natural environment liable to be affected by the project should be identifiable, which is not possible unless the route has already been defined. The same applies as regards the public concerned by the project, who are to receive information in advance and to be consulted in advance. (82)
No information can be supplied and no consultation can take place unless the geographical location of the project, and hence of the public affected, has been precisely determined.
122 Consequently, I propose that the Court should rule that the inclusion in a general programme laid down by legislative provision of a motorway construction project adopted by parliament after public parliamentary debate, but which does not comprise the route of the motorway to be constructed, does not fall within Article 1(5) of Directive 85/337 and must therefore be subject to the rules laid down by the Directive.
Conclusion
123 In the light of the foregoing I propose that the Court give the following answer to the questions submitted by the Tribunal d'Arrondissement de Luxembourg:
(1) Article 189 of the EC Treaty (now Article 249 EC) is to be interpreted as meaning that a national court hearing a case which necessitates consideration of whether a rule of domestic law is compatible with a directive that has not been transposed within the period laid down is not required, in order to rule on that point, to verify first that the provisions of the directive which are relied on are unconditional and sufficiently precise.
(2) Article 1(5) of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment must be interpreted as not covering a motorway construction project, such as the one at issue in the main proceedings, which, having been included in a general programme for a comprehensive road network laid down by legislative provision, following a legislative procedure giving rise to public debate, does not comprise the route of the motorway to be constructed.
(1) - Directive on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40, hereinafter `the Directive' or `Directive 85/337').
(2) - This point is expressly made in the first question referred for a preliminary ruling by the national court. I would point out that in Case C-313/93 Commission v Luxembourg [1994] ECR I-1279 the Court of Justice held in proceedings under Article 169 of the EC Treaty (now Article 226 EC) that the Grand Duchy of Luxembourg had failed to transpose Directive 85/337 within the prescribed time-limit.
(3) - Article 2(3) authorises Member States, in exceptional cases, to exempt a specific project from the provisions of the Directive and lays down the procedure for such exemption and the alternative measures of assessment and public information which may replace the generally applicable rules.
(4) - Mémorial A - 57, 1967, p. 868; Doc. Parl. 1209.
(5) - Law amending and supplementing the amended Law of 16 August 1967 (Mémorial A - 73, 1995, p. 1810; Doc. Parl. 3929; corrigendum - 88 of 25 October 1995, p. 2058).
(6) - Mémorial A 1996, p. 2468.
(7) - According to the State of the Grand Duchy of Luxembourg, `the Government made great efforts to make information available to the public and arrange public meetings ...' (paragraph 16 of its written observations). In addition, a motion of the Luxembourg Chamber of Deputies dated 13 July 1995 states: `the Government has arranged for studies to be carried out comparing the northern route option and southern route option in respect of the geographical position of the towns of Aspelt, Frisange and Hellange, and the studies deal with both the natural and the human environment as well as the effectiveness of the two options as regards the removal of traffic' (second recital in the preamble to the motion, the motion forming Annex C to the written observations of the State of the Grand Duchy of Luxembourg).
(8) - Reference for a preliminary ruling, p. 11.
(9) - Ibid.
(10) - For a general study of the means of ensuring the effectiveness of Community environmental law, see M. Pâques, `Trois remèdes à l'inexécution du droit communautaire: efficacité pour l'environnement?', Revue de droit international et de droit comparé, 1996, p. 135.
(11) - Case 106/77 Simmenthal [1978] ECR 629.
(12) - The fundamental ground of the judgment in Case 26/62 Van Gend & Loos [1963] ECR 1 may be recalled: `the Community constitutes a new legal order of international law for the benefit of which the States have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals. Independently of the legislation of Member States, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage.'
(13) - For example, Van Gend & Loos, cited above, and Case 6/64 Costa [1964] ECR 585.
(14) - The second paragraph of Article 189 of the EC Treaty (now the second paragraph of Article 249 EC) provides that a regulation is directly applicable in all Member States.
(15) - Case 9/70 Grad [1970] ECR 825.
(16) - Third paragraph of Article 189 of the Treaty.
(17) - The Court considers, for example, that the case-law according to which individuals are entitled to rely on certain provisions of directives against State authorities cannot be extended `... to the sphere of relations between individuals [themselves, since that would amount to recognising] a power in the Community to enact obligations for individuals with immediate effect, whereas it has competence to do so only where it is empowered to adopt regulations' (Case C-91/92 Faccini Dori [1994] ECR I-3325, paragraph 24, emphasis added).
(18) - On this fundamental aspect of the relationship between untransposed directives and the principle of the separation of powers, see D. Edward, `Direct effect, the separation of powers and the judicial enforcement of obligations' in Scritti in onore di G.F. Mancini, p. 423 et seq.
(19) - Case 152/84 Marshall [1986] ECR 723, paragraph 48. See footnote 17 of this Opinion.
(20) - Case 41/74 Van Duyn [1974] ECR 1337, paragraph 12. That judgment moreover takes up the reasoning already set out, in connection with a Community decision, in Grad, cited above, that `although it is true that by virtue of Article 189 regulations are directly applicable and therefore by virtue of their nature capable of producing direct effects, it does not follow from this that other categories of legal measures mentioned in that article can never produce similar effects' (paragraph 5).
The implications of that reasoning are clear: the principle of direct effect does not apply solely to a specific category of Community measures.
(21) - Van Duyn, cited above, paragraph 12.
(22) - Case 148/78 Ratti [1979] ECR 1629, paragraph 22. Conversely, the right of individuals to rely on a directive against a defaulting Member State before the courts is, in the view of the Court of Justice, a `minimum guarantee' resulting from the binding nature of directives (Case 102/79 Commission v Belgium [1980] ECR 1473, paragraph 12).
(23) - See, for example, Ratti, cited above, and Case 8/81 Becker [1982] ECR 53.
(24) - Y. Galmot and J.-C. Bonichot, `La Cour de justice des Communautés européennes et la transposition des directives en droit national', Revue française de droit administratif, 4(1), January-February 1988, p. 16.
(25) - S. Van Raepenbusch, `Droit institutionnel de l'Union et des Communautés européennes', 2nd ed., De Boeck University, p. 355.
(26) - Case 28/67 Molkerei-Zentrale [1968] ECR 143.
Other conditions apart from the adoption of specific implementing measures may be laid down in the directive, such as the condition concerning the expiry of the period of transposition.
(27) - See, as an example of provisions `... which exclude the possibility of discretionary assessments', Case 271/82 Auer [1983] ECR 2727, paragraph 16, and, as an example of provisions which are not unconditional in that `... Member States enjoy a broad discretion ...', Case C-131/97 Carbonari and Others [1999] ECR I-1103, paragraph 46.
(28) - Y. Galmot and J.-C. Bonichot, cited above, p. 16.
(29) - Case C-435/97 WWF and Others [1999] ECR I-5613, paragraph 69.
(30) - Ibid., paragraph 69, and Case C-72/95 Kraaijeveld and Others [1996] ECR I-5403, paragraph 56.
(31) - Case 51/76 [1977] ECR 113.
(32) - Second Council Directive (67/228/EEC) of 11 April 1967 on the harmonisation of legislation of Member States concerning turnover taxes - Structure and procedures for application of the common system of value added tax (OJ English Special Edition 1967, p. 16).
(33) - Verbond van Nederlandse Ondernemingen, cited above, paragraph 21.
(34) - Ibid., paragraphs 25 to 28, relating to the requirement for the directive in question to be precise and unconditional.
(35) - See footnote 23 of this Opinion.
(36) - Paragraph 48.
(37) - Paragraph 50.
(38) - Paragraph 56.
(39) - In the judgment in Case 21/78 Delkvist [1978] ECR 2327, at paragraphs 12 to 22, the Court itself reviewed Member State observance of the margin of discretion accorded to them under the directive, and then affirmed that the directive had direct effect solely on the basis of the binding effect of directives and the need to maintain their effectiveness, without analysing the precise and unconditional nature of the provisions relied upon.
(40) - In WWF and Others, cited above, there is no reference at all to the dual requirement of precision and unconditionality.
However, the sixth question referred by the national court sought a ruling on whether Article 4(2) of Directive 85/337, in conjunction with Article 2(1) thereof, has direct effect.
That question was interpreted by the Court as asking whether, `... where the discretion conferred by those provisions has been exceeded by the legislative or administrative authorities of a Member State, individuals may rely on those provisions before a court of that Member State against the national authorities and thus obtain from the latter the setting aside of the national rules or measures incompatible with those provisions' (paragraph 68, emphasis added).
The Court replied in the affirmative to that question, as rephrased, without however ruling on whether the Member State concerned had kept within the limits of its own powers, leaving it to the national court to decide on this (paragraph 71).
(41) - I should, moreover, point out that it is a judgment of this very type, in Case C-69/89 Nakajima v Council [1991] ECR I-2069, which prompted the national court to ask whether the compatibility of a domestic measure with a directive might be reviewed irrespective of the latter's direct effect (reference for a preliminary ruling, p. 12). The point at issue in that case was the validity of a Community regulation which, it was claimed, could not apply because it was in breach of an international agreement implementing provisions of the General Agreement on Tariffs and Trade.
The applicant was allowed to challenge the legality of the regulation without its being necessary to consider the direct effect of the rule relied on.
It is true that that judgment does not take into account the general thrust of the Court's case-law in the field of international agreements concluded by the Community. In accordance with the criteria set out in Case C-280/93 Germany v Council [1994] ECR I-4973, the Court has in fact pointed out that direct effect must be established first, stating that the special features of GATT mean that the rules it contains are not unconditional and preclude their recognition as rules that are directly applicable in the domestic legal systems of the Contracting Parties. However, limits have been set on this principle. In the absence of direct effect following from the Agreement itself, the Court has declared it has jurisdiction to review the lawfulness of the Community act in question `... if the Community intended to implement a particular obligation entered into within the framework of GATT, or if the Community act expressly refers to specific provisions of GATT ...' (paragraph 111).
Undoubtedly it must be inferred from this reservation that, where a Community measure is adopted pursuant to an international agreement or simply refers to such an agreement, the latter may be relied upon for the purposes of reviewing the legality of a Community rule even though it does not have direct effect.
(42) - See in particular Y. Galmot and J.-C. Bonichot, cited above; G. Isaac, Droit communautaire général, Masson, 1994; T. Dal Farra, `L'invocabilité des directives communautaires devant le juge national de la légalité', RTD eur., 28(4), October-December 1992, p. 631; P. Manin, `De l'utilisation des directives communautaires par les personnes physiques ou morales', AJDA, 20 April 1994, p. 259; D. Simon, La directive européenne, Dalloz, 1997; Le système juridique communautaire, 2nd ed., PUF, 1998.
(43) - Y. Galmot and J.-C. Bonichot, cited above, p. 10, and P. Manin, cited above, p. 260.
(44) - Becker, cited above, paragraph 25.
(45) - Case 14/83 [1984] ECR 1891.
See also Case 111/75 Mazzalai [1976] ECR 657.
(46) - Council Directive of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39, p. 40).
(47) - Von Colson and Kamann, paragraph 28.
(48) - Ibid.
(49) - See, in particular, D. Simon, Le système juridique communautaire, cited above, p. 308 et seq.
(50) - Joined Cases C-6/90 and C-9/90 [1991] ECR I-5357.
(51) - Even if the conditions for direct effect are met, the `ability to plead substitution' is not available in all circumstances, since directives which have not been transposed cannot produce `horizontal' direct effect: in Faccini Dori, cited above, the relevant articles of the directive were deemed to be unconditional and sufficiently precise but, as we have seen, an individual was not granted the right to rely on provisions of that type against another individual.
(52) - D. Simon, Le système juridique communautaire, cited above, p. 308 et seq.
(53) - Paragraph 24.
(54) - Becker, cited above, paragraph 25, emphasis added.
(55) - See, however, advocating simple abandonment of the theory of direct effect, P. Manin, `L'invocabilité des directives: quelques interrogations', Revue trimestrielle de droit européen, 26(4), October-December 1990, p. 669.
(56) - In this connection, the position of the French Conseil d'État (Council of State) may be mentioned, which, in exercising its power to review the legality of administrative measures, examines whether such measures, and also the laws under which they have been adopted, are compatible with a Community directive and, where appropriate, draws the necessary consequences as regards their legality (CE, 5 February 1997, Elahi, application No 161639, and CE, 6 February 1998, M.Tete, Association de sauvegarde de l'Ouest lyonnais, applications Nos 138777, 147424 and 147425). See also the judgments of 28 February 1992 in which the Conseil d'État, sitting in Assembly, disapplied a law that was incompatible with a directive without considering whether it had direct effect (CE, Rothmans International France SA and Philip Morris France SA, applications Nos 56776 and 56777, and Sté Arizona Tobacco Products and Philip Morris France SA, application No 87753, AJDA, 20 March 1992, p. 210 et seq.).
(57) - In an analysis of Kraaijeveld, a judgment which concerns the interpretation of Directive 85/337, the following comment was made on the paragraph that traditionally appears in judgments regarding the Member States' exercise of their discretion: `Individuals cannot be excluded, as a matter of principle, from invoking that obligation (as opposed to a subjective right of their own) before the courts, nor can the courts be prevented from taking it into account, in order to ensure that the national authorities keep within the limits of their discretion' (D. Edward, cited above, p. 441). The emphasis is therefore placed on the objective treatment of the dispute, which enables the individual concerned to rely on a directive for purposes other than his exclusive and immediate benefit. That particular case concerned a reference for a preliminary ruling from a national court hearing an action for the annulment of a decision approving a zoning plan brought by an economic operator, Kraaijeveld, whose business consisted of carrying out works on waterways.
Under the new plan the waterway to which Kraaijeveld had access could cease to be linked to navigable waterways.
No environmental impact assessment (EIA) had been carried out. Referring to Kraaijeveld's rights, the author adds: `... the individual has a procedural right, so the case remains an example of "individual rights" and therefore of "direct effect" in the classical sense.
On the other hand, the Court's judgment gave Kraaijeveld no immediate right to require an EIA to be carried out before construction of the dyke could begin. At the end of the day, having gone through all the proper procedures, all discretions having been correctly exercised, Kraaijeveld might still find themselves cut off from the navigable waterways. The right recognised was not to secure any positive remedy or to have a particular result achieved, but rather the right to call for judicial review ...' (ibid., pp. 441 and 442, emphasis added to last sentence).
(58) - It is difficult to claim that application of a directive for the purposes of `excluding' a measure of domestic law does not amount, in a certain way, to deriving some effect from that directive.
The point at issue in the present case is the capacity of an untransposed directive to create a full right for individuals, and not just `partial' direct effect (B. Jadot, `Le justiciable et l'inexécution, en droit belge, des directives européennes en matière d'environnement', Amén. 1987, p. 38, cited in M. Pâques, cited above) or `relative' direct effect.
See, in this connection, with regard to the current uncertain state of the terminology and to the distinction drawn in Germany between `objective' direct effect and `subjective' direct effect, D. Edward, cited above, pp. 442 and 443.
(59) - Case 247/87 Star Fruit [1989] ECR 291, paragraphs 10, 11 and 12. See also the order of the Court of First Instance of 5 May 1999 in Case T-190/98 Gluiber, not published in the ECR, paragraph 13.
(60) - In that case the `objective' nature of the proceedings removes the need to examine the conditions for direct effect, as was held, in relation to infringement proceedings, in Case C-431/92 Commission v Germany [1995] ECR I-2189, paragraph 26.
(61) - Simmenthal, cited above, paragraph 21.
(62) - G. Isaac, cited above, p. 169. The author explains that `where the court is called upon to apply Community law itself in the absence, or even in place of, national law, it is understandable that the legislation relied upon must in every respect be unconditional and sufficiently precise to lend itself to such application/substitution.
On the other hand, in the case of use to verify compatibility, a Community provision may be relied upon even if it allows the national authorities some discretion ...'.
(63) - Ibid.
See Case 158/80 Rewe [1981] ECR 1805, where it is stated that `the binding effect of a directive implies that a national authority may not apply to an individual a national legislative or administrative measure which is not in accordance with a provision of the directive which has all the characteristics necessary to render possible its application by the court' (paragraph 41); this does not require the conditions of precision and unconditionality to be met but does presuppose that the rule in question is suitable for application as it stands, if necessary following interpretation by the court within the limits of its jurisdiction.
(64) - Case 64/81 Corman [1982] ECR 13, paragraph 8.
(65) - Verbond van Nederlandse Ondernemingen, cited above, paragraphs 10 and 11.
(66) - Case 327/82 Ekro [1984] ECR 107, paragraph 11.
(67) - Second recital in the preamble.
(68) - Seventh recital in the preamble.
(69) - Emphasis added.
(70) - Reference for a preliminary ruling, pp. 2 and 3.
(71) - Paragraph 59 of the written observations.
(72) - See, for example, Case C-352/95 Phyteron International [1997] ECR I-1729, paragraph 14.
(73) - Reference for a preliminary ruling, p. 11.
(74) - Paragraph 56 of its written observations.
(75) - Paragraph 57.
(76) - Paragraph 58.
(77) - Ibid., emphasis added.
(78) - Paragraph 59, emphasis added.
(79) - Paragraph 60.
(80) - Paragraph 60.
(81) - Paragraph 62.
(82) - It is to be remembered that, under Article 1(5), in order for a project to be exempt from the arrangements introduced by the Directive, it must have been adopted by means of a legislative process ensuring compliance with the objective `of supplying information'.