61994C0133
OPINION OF ADVOCATE GENERAL
LÉGER
delivered on 11 January 1996 (
*1
)
1.
By this action, the Commission asks the Court to declare that, by not completely and correcdy transposing into Belgian law Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (
1
) (‘the directive’), the Kingdom of Belgium has failed to fulfil its obligations under that directive and Articles 5 and 189 of the EC Treaty.
The Community legislation
2.
The directive was adopted pursuant to Articles 100 and 235 of the EEC Treaty. The aim pursued by the Community legislator — according, in particular, to the first and eleventh recitals in the preamble to the directive — is to promote a policy of preventing environmental nuisances and pollution. From that perspective, the directive sets up a system for assessing the effects of certain public and private projects on the environment.
3.
Article 2 requires the Member States to adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to an environmental impact assessment.
4.
Article 4 defines such projects and divides them into two categories: in the case of projects of the classes listed in Annex I to the directive, assessment of effects on the environment is compulsory, whereas in the case of projects of the classes listed in Annex II, assessment is to be carried out only where Member States consider that it is necessary in view of their characteristics.
5.
Article 2(2) leaves the Member States free to determine the manner in which the assessment is to be carried out from the procedural point of view. The directive nevertheless sets certain limits to Member States' freedom in this regard; accordingly, Article 3 provides that the environmental impact assessment has to identify, describe and assess in an appropriate manner the direct and indirect effects of a project on a number of factors. The information which the developer has to supply with a view to the environmental impact assessment are set out in Article 5.
6.
A requirement to inform the public and any other Member States concerned by such projects is also laid down. Article 6 provides that the information supplied by the developer, as specified in Article 5, together with the request for development consent, is to be made available to the authorities having responsibility with regard to the environment and to the public concerned by the project. In addition, where a project is likely to have transfrontier effects, the information gathered pursuant to Article 5 must also be forwarded to the Member State concerned pursuant to Article 7.
7.
Article 8 is concerned with the action to be taken in the light of the abovementioned consultations and provides that they must be taken into consideration in the development consent procedure. Furthermore, Article 9 provides that the content of the final decision must be notified to the public concerned and to any Member State affected.
8.
Under Article 12(1), the Member States have to implement the directive in their domestic law by 3 July 1988. Article 12(2) places them under an obligation to communicate to the Commission the texts of the provisions of national law which they adopt.
The Belgian domestic legislation
9.
Responsibility for transposing the directive into national law falls to the three regions: the Walloon Region, the Region of the City of Brussels and the Flemish Region. The environmental impact assessment procedure put into effect by the directive was incorporated into existing consent procedures.
10.
On 11 September 1985, the Walloon Regional Council adopted a decree organizing the environmental impact assessment in the Walloon Region. (
2
) On 31 October 1991, the Walloon Regional Executive adopted an order implementing that decree. (
3
)
11.
On 24 May 1988, the Cour d'Arbitrage (Court of Arbitration) partially annulled the decree of 11 September 1985 (
4
) in so far as it required an assessment to be made of installations used solely for the permanent storage or final disposal of radioactive waste and the regions have no jurisdiction to adopt provisions relating to such projects.
12.
On 23 July 1992, the Council of the City of Brussels Region adopted an order relating to the prior assessment of the impact of certain projects in the City of Brussels Region. (
5
)
13.
That legislation does not embody any provision relating to the consultation of other Member States in the case of projects with transfrontier environmental effects.
14.
As far as the Flemish Region is concerned, the directive was transposed as regards establishments constituting a nuisance by the Decree relating to Anti-Pollution Consent of 28 June 1985 (‘the Decree of 28 June 1985’) (
6
) and as regards establishments not constituting a nuisance by the Organic Law on Land-Use Planning and Town Planning of 29 March 1962 (‘the Organic Law of 29 March 1962’). (
7
)
15.
As far as establishments constituting a nuisance are concerned, the Decree of 28 June 1985 sets up a system of prior consent for certain establishments constituting a nuisance for man and the environment. It has to be implemented by the Flemish Government. Articles 2 and 3 provide that the Flemish Government is to draw up a list of establishments subject to consent. In addition, Article 7 imposes regulatory duties on the Flemish Government as regards the procedure, content, conditions and form with which the environmental impact study has to comply. Furthermore, Article 11 provides that any decision on a request for consent must be preceded by a public inquiry. It is left to the Flemish Government to determine the procedures for such inquiries.
16.
On 23 March 1989, the Flemish Government adopted a number of orders for the purpose of implementing the provisions of the directive. Those orders relate both to the Decree of 28 June 1985 and to the Organic Law of 29 March 1962.
17.
Order 89-928 (
8
) organizes the assessment of the effects on the environment of establishments falling with the scope of the Decree of 28 June 1985.
18.
Order 89-928 does not contain any provisions relating to the consultation of other Member States in which the environment might be affected by a project carried out in Flanders. In contrast, consultation of the public is secured by the Decree of 28 June 1985 and by its implementing decree VLA-REM I. (
9
)
19.
Decree No 89-929 (
10
) governs the assessment of effects on the environment of works and acts falling within the scope of the Organic Law of 29 March 1962. Its provisions correspond, mutatis mutandis, to those of Decree No 89-828. Article 2 of that decree lists the projects having to be subjected to an environmental impact assessment.
20.
As in the case of Decree No 89-928, Decree No 89-929 embodies no provision governing consultation of other Member States. In contrast, consultation of the public in the Flemish Region is secured by the Royal Decree of 22 October 1971 implementing Article 62 of the Organic Law of 29 March 1962.
Procedure
21.
By letter before action dated 29 December 1989, the Commission informed the Kingdom of Belgium that it considered that the directive had not been fully or correctly implemented in Belgian law. In accordance with Article 169 of the EEC Treaty, it also requested Belgium to submit its observations on this point within six months. After obtaining an extension of the time-limit, the Belgian Government replied by letter dated 25 May 1990, sending further information on 26 July 1991. Since the Belgian Government's response to the letter giving it formal notice did not cause the Commission to change its view, the Commission delivered a reasoned opinion by letter dated 3 December 1991, in which it gave the Member State two months in which to take the necessary measures. Once again, the response given by the Kingdom of Belgium did not cause the Commission to change its opinion. Accordingly, it brought an action before the Court on 2 May 1994.
22.
The Commission claims that the Court should:
‘—
declare that, by not completely and correctly transposing into Belgian law Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, the Kingdom of Belgium has failed to fulfil its obligations under that directive and Articles 5 and 189 of the Treaty;
—
order the Kingdom of Belgium to pay the costs’.
23.
More specifically, the Commission makes three complaints alleging (a) failure correctly to transpose Article 2(1) and Article 4(1) of the directive; (b) failure correctly to transpose Article 2(1) and Article 4(2) of the directive, and (c) failure to transpose Articles 7 and 9 of the directive at all. In the light of the Belgian Government's defence, the Commission has withdrawn its complaint alleging failure to transpose Article 6(2) and Article 9. (
11
)
24.
It is worth pointing out that, should the Court decide that the Kingdom of Belgium has failed to fulfil its specific obligations under the directive, there will be no point in considering whether as a result it has also failed to fulfil its obligations under Article 5 of the Treaty. (
12
)
Legal assessment
A — The complaint alleging failure correctly to transpose Article 2(1) (
13
) and Article 4(1) (
14
) of the directive
25.
In the Commission's view, Article 4(1) means that all the projects listed in Annex I must be subjected to an environmental impact assessment. Member States are not empowered to introduce any limitation in this respect. However, in Belgium no compulsory assessment of effects on the environment is guaranteed in respect of all the projects listed in Annex I.
26.
The relevant plea has two limbs. The Commission accuses:
—
first, the Belgian State of having failed to implement at national level within the prescribed period point 2 of Annex I concerning Article 4(1) of the directive as regards nuclear power stations, other nuclear reactors and installations used exclusively for the permanent storage or final disposal of radioactive waste; and
—
secondly, the Flemish Government of having failed correctly to implement point 6 of Annex I concerning Article 4(1) of the directive. (
15
)
(a) Incorrect implementation of point 2 of Annex I concerning Article 4(1) of the directive
27.
The Kingdom of Belgium challenges this complaint, arguing that the Decree of 28 February 1963 laying down General Rules for the Protection of the Public and Workers against the Danger of Ionizing Radiation was amended on 23 December 1993 by a royal decree requiring an environmental impact assessment to be carried out which is consistent with that required by the directive (
16
) for projects listed in point 2 of Annex I to the directive. (
17
)
28.
The Commission nevertheless adheres to its complaint. It stated at the hearing that, although the Royal Decree of 23 December 1993 did in fact implement the provisions of the directive, it did not do so within the period laid down in the reasoned opinion.
29.
The Court has consistently held (
18
) that, in such circumstances, the Commission may seek a declaration that the Member State in question has failed to fulfil its obligation to implement a directive in due time. Consequently, the Commission's complaint must be upheld.
(b) Incorrect implementation of point 6 of Annex I concerning Article 4(1) of the directive
30.
The relevant national provision is Article 3 of Decree 89-928, to which I have already referred. That article lists establishments which have to be subjected to an environmental impact assessment. Article 3(6) defines ‘integrated chemical installations’ as installations ‘for the chemical processing of:
(a)
unsaturated hydrocarbons with less than 5 carbon atoms per molecule;
(b)
cyclic unsaturated hydrocarbons including aromatics with less than 9 carbon atoms per molecule;
with a capacity of 100000 tonnes per annum or more’.
31.
The Commission considers that it emerges from an analysis of this provision that only installations for the processing of the substances referred to in (a) (
19
) and (b) (
20
) and, of them, only those whose minimum processing capacity is at least 100000 tonnes are subject to the environmental impact assessment procedure. However, point 6 of Annex I relating to Article 4(1) of the directive does not embody any such restrictions.
32.
The Kingdom of Belgium contests this complaint. It maintains that the concept ‘integrated chemical installations’ is too vague. The Commission has acknowledged this, since it has proposed amending the directive in this respect. (
21
) Accordingly, the Kingdom of Belgium cannot be reproached for interpreting this concept — moreover in accordance with the actual nature of the directive. In contrast, the Kingdom of Belgium admits that the Flemish legislation does not mention installations for the chemical processing of saturated hydrocarbons among the private and public industrial projects having to be subjected to environmental impact assessment. It justifies this by stating that saturated hydrocarbons are almost never used as basic chemical components. Yet it also admits that that type of hydrocarbon is used in the petrochemical industry, which the Community legislation requires to be subject to compulsory environmental impact assessment. (
22
)
33.
In conclusion, the Kingdom of Belgium argues that the Flemish definition of ‘integrated chemical installations’ covers the most important chemical installations in the Flemish Region.
34.
I consider that, in this respect also, the Kingdom of Belgium is in breach of its obligations under the directive.
35.
First, the wording of the directive seems to me to be completely unambiguous. As far as integrated chemical installations are concerned, the directive lays down no limitation of the obligation to carry out environmental impact assessments. Where the Community legislature considered it appropriate to limit that obligation, it did so expressly. (
23
)
In addition, if the interpretation put forward by the Kingdom of Belgium were to be accepted, it would be liable to upset the balance introduced by the directive between projects covered by Annex I and projects covered by Annex II, since some of the limitations intended by the Community legislature also determine the relationship between Article 4(1) (compulsory assessment) and Article 4(2) (conditional assessment) of the directive. (
24
)
36.
As regards the argument that the concept is vague, it should be observed that
—
the concept ‘integrated chemical installations’ in Annex I must be compared with what is stated in point 6 of Annex II. Chemical installations come under Annex II and integrated chemical installations under Annex I;
—
in addition, whilst it is true to say that the Commission proposed to specify point 6 of Annex I relating to Article 4(1) of the directive, its proposal was not intended to cover what is meant by ‘chemical installation’ but what is meant by ‘integrated’, which is the determinative factor of the relevant concept. Under the terms of the Commission's proposal, integrated chemical installations constitute ‘installations located in a geographical area in which several units for the industrial production of chemical products, not necessarily belonging to the same company, are juxtaposed and are functionally linked to one another’. (
25
)
37.
It has to be observed, however, that whereas the Kingdom of Belgium relies on the vagueness of the term ‘integrated’ contained in the concept at issue, the Flemish legislation does not set out to specify or define it.
38.
In so far as the integrated nature of the relevant installations is the decisive factor, the question whether or not a chemical installation is integrated does not depend on its processing capacity or on the type of chemicals processed; it depends on the existence of interlinked production units constituting in functional terms a single production unit.
The aim specifically pursued in this connection by the Community legislature is to prevent environmental nuisances caused by the establishment of factories — albeit often of modest dimensions — which may be the source of major nuisances owing the integrated nature of the relevant production units.
39.
Secondly, the rationale of the directive precludes such an interpretation. As I have mentioned, the directive introduces a system for the assessment of effects on the environment in order to promote a policy for the prevention of environmental nuisances and pollution: (
26
)
‘(...) the best environmental policy consists in preventing the creation of pollution or nuisances at source, rather than subsequently trying to counteract their effects; [therefore regard should be had to] the need to take effects on the environment into account at the earliest possible stage in all the technical planning and decision-making processes; (...) to that end, (...) procedures to evaluate such effects [should be implemented]’. (
27
)
40.
The aim pursued by the Community legislature is therefore to oblige Member States to adopt legal instruments which will enable them to cope with future situations rapidly before any damage to the environment has occurred. Yet the Flemish legislation manifestly fails to satisfy that aim in that it does not anticipate future situations.
41.
Among the means used by the directive in order to achieve this result — implementation of a policy for the prevention of environmental nuisances and pollution —, the Community legislature has set up a procedure for informed consent for projects which may be a source of such nuisances and pollution. What I have described as ‘informed consent’ may be defined as consent given by the competent public authorities following a procedure which enables them to gather all useful information about the risks run: ‘(...) 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; (...) 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’. (
28
)
42.
The restrictive interpretation proposed by the Kingdom of Belgium consequently deprives the authorities competent to grant consent of the opinion of the public concerned in respect of major projects on which the Community legislature requires an impact assessment to be carried out.
B — The complaint alleging failure correctly to transpose Article 2(1) and Article 4(2) (
29
) of the directive
43.
According to the Commission, it follows from Article 4(2) of the directive that the Member States must examine the characteristics (in particular, nature, size and site) of the projects listed in Annex II specifically on a case-by-case basis and then, in the light of the findings made in that examination, decide whether or not an environmental impact assessment is necessary. The second subparagraph of Article 4(2) enables them to facilitate that exercise by specifying the types of projects or by establishing criteria and/or thresholds. Consequently, Article 4(2) means that Member States must specifically investigate the characteristics of each project listed in Annex II. As a result, they are not entitled to decide in advance that certain projects listed in Annex II will not be investigated in this way.
44.
According to the Kingdom of Belgium, the Commission misinterprets the provisions of the directive. It suggests that Article 2(1) should be read in conjunction with Article 4(2) of the directive. This means that the Member States have a discretion in order to decide and determine themselves which among the projects listed in Annex II have to be subjected to the compulsory environmental impact assessment. The Member States are entitled to consider generally and a priori that the characteristics of certain projects listed in Annex II are such that assessment is unnecessary.
45.
It is for this reason that in its orders of 23 March 1989 the Flemish Government considered, in the light of the present state of the environment in the Flemish Region, that only some categories of projects mentioned in Annex II, which come within predetermined thresholds and criteria — in particular on account of their nature —, must be subjected to an environmental impact assessment. It considers implicitly that the characteristics of all the other projects mentioned in Annex II are such that it is unnecessary to subject them to an environmental impact assessment in the Flemish Region.
46.
In its statement in intervention, the German Government takes the view that the Belgian Government's interpretation of Article 4(2) of the directive is correct.
47.
To my mind, the argument of the Kingdom of Belgium and the Federal Republic of Germany cannot be reconciled with the broad definition given by the Community legislature to the environment, and runs counter to the aim pursued by the directive.
48.
As far as the ratio legis of the directive is concerned — which I have analysed (
30
) — it cannot be satisfied by such an interpretation in so far as the procedure set up by the Flemish Government does not enable future damage to be effectively anticipated and forestalled.
49.
In addition, in accordance with the aim pursued, Article 2(1) of the directive has to be construed as the provision setting out the basic obligation with regard to the assessment of effects on the environment; the Member States have to ensure that projects likely to have significant effects on the environment are subjected to assessment. Article 4 provides for the implementation of that principle; the projects listed in Annex I necessarily have effects on the environment within the meaning of Article 2(1), whereas those listed in Annex II possibly have such effects. Accordingly, it is necessary to examine them on a case-by-case basis. As far as projects covered by Annex II are concerned, the second subparagraph of Article 4(2) enables the Member States to facilitate such examination by laying down criteria or thresholds.
50.
The freedom of appraisal granted to Member States by Article 4(2) as to the procedure to follow in this area means that they may examine, in the light of the characteristics of a given project, in particular whether or not an environmental impact assessment is necessary. Freedom of appraisal means appraisal and not relinquishing any appraisal in advance. That would be the end-result if the interpretation of Article 4(2) put forward by the Kingdom of Belgium were to be endorsed.
51.
It is clear that the list of projects subject to the assessment procedure set out in the Flemish regional legislation does not cover all the projects listed in Annex II. Advance exclusion of a whole class of projects listed in Annex II means that the actual execution of a project of that class will never be subjected to an environmental impact assessment, whereas its actual characteristics could be such as to make such assessment necessary. Location and the classification of an area (industrial, residential) are factors or characteristics which can be appraised only in concreto, in so far as, in addition, each of those factors may change over time. The approach chosen by the Kingdom of Belgium is therefore not compatible with the preventive aim pursued by the Community legislature.
52.
The latter observation shows that the determination of the actual content of the concept of ‘the environment’ within the meaning of the directive assumes key importance.
53.
Whereas the Community legislation on protection of the environment as a whole contains no express definition of this term, the directive contains for the first time some elements of an answer to what it means.
54.
In the third recital in the preamble, the Community legislature states that ‘(...) it is necessary to achieve one of the Community's objectives in the sphere of the protection of the environment and the quality of life’; (
31
) in the 11th, it states that ‘(...) the effects of a project on the environment must be assessed in order to take account of concerns to protect human health, to contribute by means of a better environment to the quality of life, to ensure maintenance of the diversity of species and to maintain the reproductive capacity of the ecosystem as a basic resource for life’. (
32
)
55.
The aim pursued by the Community legislature is therefore not solely to avert risks to human health, but also to contribute towards improving people's well-being in every aspect of their lives. Consequently, by referring expressly to the concept of ‘quality of life’, the Community legislature showed a preference for a broad definition of the term ‘environment’.
56.
The option elected for by the Community legislature of taking a broad definition of the term ‘environment’ may also be inferred from an analysis of the provisions of the directive. The content of the concept of ‘the environment’ may be inferred from the list of sectors in respect of which the legislature intends the effects caused by projects to be investigated and assessed. Thus, the fact that account is taken of ‘factors’ such as human beings, flora and fauna, soil, water, air, climate and the landscape, interaction between those factors, material assets and the cultural heritage (
33
) and the site, design and size of the project (
34
) suggests that that list constitutes a useful description of the concept of the environment. (
35
)
57.
If the interpretation put forward by the Kingdom of Belgium were to be adopted, this would mean adopting a restrictive definition of the concept of the environment contrary to the directive itself.
C — The complaint alleging failure to implement Articles 7 (
36
) and 9 of the directive
58.
In the event that the effects on the environment extend beyond the national frontiers, Article 7 provides for procedures for involving a Member State likely to be affected thereby in the procedure. Article 9 gives it the right to be informed of the decision taken.
59.
The Commission argues that the legislation of the Flemish Region and the City of Brussels Region does not embody provisions implementing Articles 7 and 9 of the directive.
60.
In its defence, the Belgian Government concedes that no legislation implementing Articles 7 and 9 of the directive exists for the Flemish and City of Brussels Regions. It acknowledges that the complaint made by the Commission is well founded as regards the Flemish Region and gives notice of measures which will ensure that those articles are transposed into domestic law. (
37
)
61.
It should be declared that the Kingdom of Belgium has not transposed into the Flemish regional legislation the provisions of Articles 7 and 9 of the directive. As long as the measures announced by the Belgian Government have not been adopted and have not entered into force, the Kingdom of Belgium will continue to be in breach of its obligations.
62.
The Kingdom of Belgium contests that there has been any failure to fulfil obligations as regards the City of Brussels Region. The argument it puts forward is that the geographical location of the City of Brussels Region and the urban nature of that area preclude the establishment of industrial installations likely to have effects on the environment across its frontiers with other Member States. As a result, it is not necessary to effect any transposition.
63.
That argument must be dismissed. It is based on the assumption that only projects in border areas may cause possible nuisances in other — necessarily bordering — Member States and that no industry of any size is located in the area concerned. However, it has been shown — if only as matters stand at present — that the essentially urban character of the area in question does not rule out the establishment of industrial installations likely to have effects on the environment across national frontiers. The Commission's agent observed at the hearing that the City of Brussels Region is the location for chemical and petrochemical plants belonging to Solvay, Chevron, BP and Petrofina. Thus, the definition of the environment laid down by the Community legislature (
38
) and the aim pursued by the Community legislature (
39
) are hard to square with this interpretation. It must be held that the arguments set forth by the Kingdom of Belgium are marked by an outmoded conception of environmental nuisances which, in particular, does not take account of all forms of pollution, notably air and water pollution.
The Commission's complaint in this respect must also be upheld.
64.
Consequently, I propose that the Court should:
—
declare that, by not completely and correctly transposing into Belgian law Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, the Kingdom of Belgium has failed to fulfil its obligations under that directive, in particular Articles 2, 4, 7 and 12;
—
order the Kingdom of Belgium to pay the costs.
(
*1
)	Original language: French.
(
1
)	OJ 1985 L 175, p. 40.
(
2
)	Moniteur Belge, 24 January 1986.
(
3
)	Moniteur Belge, 22 November 1991, p. 26157.
(
4
)	Judgment No 54, Moniteur Belge, 11 June 1988.
(
5
)	Moniteur Belge, 1 August 1992, p. 17340.
(
6
)	Moniteur Belge, 17 September 1985, p. 13304.
(
7
)	Moniteur Belge, 12 April 1962.
(
8
)	Moniteur Belge, 17 May 1989, p. 8442.
(
9
)	Defence, p. 7 of the French translation.
(
10
)	Moniteur Belge, 17 May 1989, p. 8450.
(
11
)	Reply, p. 2 of the French translation.
(
12
)	See among recent judgments Case C-66/94 Commission v Belgium [1995] ECR I-149, paragraph 6.
(
13
)
(
14
)
(
15
)	Integrated chemical installations.
(
16
)	Moniteur Belge, 2 February 1994, p. 2133.
(
17
)	‘Thermal power stations and other combustion installations with a heat output of 300 megawatts or more and nuclear power stations and other nuclear reactors (except research installations for the production and conversion of fissionable and fertile materials, whose maximum power does not exceed 1 kilowatt continuous thermal load).’
(
18
)	See most recently Case C-216/94 Commission v Belgium [1995] ECR I-2155, paragraphs 10 and 11.
(
19
)	Butane, methane, propane and ethane.
(
20
)	Operations relating to benzene.
(
21
)	Proposal for a Council Directive amending Directive 85/337/EEC (document COM(93) 575 final of 16 March 1994).
(
22
)	Point 1 of Annex I.
(
23
)	See points 1, 2, 5, 7 and 8 of Annex I.
(
24
)	See, for example, point 10(d) of Annex II: classification of ports for inland-waterway traffic depending on their ability to accept vessek.
(
25
)	Proposal for a directive amending Directive 85/337.
(
26
)	Point 2, above.
(
27
)	First recital in the preamble to the directive.
(
28
)	Sixth recital in the preamble to the directive.
(
29
)
(
30
)	Points 38 to 42, above.
(
31
)	My emphasis.
(
32
)	My emphasis.
(
33
)	Article 3 of the directive.
(
34
)	Article 5 of the directive.
(
35
)	See to this effect L. Krämer, ‘Environnement’, in Jurisclasseurs, Vol. 1900, 1994, p. 13.
(
36
)
(
37
)	Defence, section 5.
(
38
)	See infra.
(
39
)	See points 38 to 42, above.