62009CC0165_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
I – Introduction
1. As regards the protection of air quality, the European Union has set itself ambitious targets which leave Member States facing major challenges. That has already become apparent in cases on the quality of ambient air (2) and is confirmed in the present proceedings on national emission ceilings.
2. Directive 2001/81/EC of the European Parliament and of the Council of 23 October 2001 on national emission ceilings for certain atmospheric pollutants (3) (‘the NEC Directive’) establishes for each Member State maximum total amounts of certain atmospheric pollutants that can be emitted each year. The Netherlands informed the Commission initially that it would probably be unable to meet its commitments with regard to sulphur dioxide and nitrogen oxides. (4) Now, the Court is asked to rule whether that Member State may nevertheless authorise projects which will emit further quantities of those polluting substances.
3. The main proceedings concern the grant of permits for several power station projects. The legal framework applicable thereto results from the directive concerning integrated pollution prevention and control (5) (‘the IPPC Directive’), which governs the grant of permits for industrial installations.
II – Legal framework
A – The IPPC Directive
4. The provisions of the IPPC Directive are reproduced below in the consolidated version of Directive 2008/1, as this replaced Directive 96/61 with effect from 18 February 2008 but without the introduction of substantive amendments.
5. Of the definitions established in Article 2 of the IPPC Directive, those set out in paragraphs 2, 7 and 15 are of particular interest here:
‘For the purposes of this Directive the following definitions shall apply:
…
2. “pollution” means the direct or indirect introduction, as a result of human activity, of substances, vibrations, heat or noise into the air, water or land which may be harmful to human health or the quality of the environment, result in damage to material property, or impair or interfere with amenities and other legitimate uses of the environment;
…
7. “environmental quality standard” means the set of requirements which must be fulfilled at a given time by a given environment or particular part thereof, as set out in Community legislation;
…
15. “the public concerned” means the public affected or likely to be affected by, or having an interest in, the taking of a decision on the issuing or the updating of a permit or of permit conditions; for the purposes of this definition, non-governmental organisations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest.’
6. Article 3 of the IPPC Directive defines the essential requirements imposed on an installation:
‘Member States shall take the necessary measures to provide that the competent authorities ensure that installations are operated in such a way that:
(a) all the appropriate preventive measures are taken against pollution, in particular through application of the best available techniques;
(b) no significant pollution is caused;
…’
7. According to Article 4 of the IPPC Directive, all installations within the meaning of the directive require a permit.
8. The first paragraph of Article 8 of the IPPC Directive governs the grant of a permit for installations:
‘Without prejudice to other requirements laid down in national or Community legislation, the competent authority shall grant a permit containing conditions guaranteeing that the installation complies with the requirements of this Directive or, if it does not, shall refuse to grant the permit.’
9. Article 9 of the IPPC Directive governs conditions which must be included in a permit:
‘1. Member States shall ensure that the permit includes all measures necessary for compliance with the requirements of Articles 3 and 10 for the granting of permits in order to achieve a high level of protection for the environment as a whole by means of protection of the air, water and land.
…
3. The permit shall include emission limit values for polluting substances, in particular those listed in Annex III, likely to be emitted from the installation concerned in significant quantities, having regard to their nature and their potential to transfer pollution from one medium to another (water, air and land). If necessary, the permit shall include appropriate requirements ensuring protection of the soil and ground water and measures concerning the management of waste generated by the installation. Where appropriate, limit values may be supplemented or replaced by equivalent parameters or technical measures.
...
4. Without prejudice to Article 10, the emission limit values and the equivalent parameters and technical measures referred to in paragraph 3 shall be based on the best available techniques, without prescribing the use of any technique or specific technology, but taking into account the technical characteristics of the installation concerned, its geographical location and the local environmental conditions. In all circumstances, the conditions of the permit shall contain provisions on the minimisation of long-distance or transboundary pollution and ensure a high level of protection for the environment as a whole.
…
7. The permit may contain such other specific conditions for the purposes of this Directive as the Member State or competent authority may think fit.
...’
10. Article 10 of the IPPC Directive governs the relationship between the best available techniques and environmental quality standards which applies when granting permits for installations:
‘Where an environmental quality standard requires stricter conditions than those achievable by the use of the best available techniques, additional measures shall in particular be required in the permit, without prejudice to other measures which might be taken to comply with environmental quality standards.’
11. Article 16 of the IPPC Directive concerns legal protection. Of particular interest are paragraphs 1 and 3:
‘1. Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive when:
(a) they have a sufficient interest; or
(b) they maintain the impairment of a right, where administrative procedural law of a Member State requires this as a precondition.
…
3. What constitutes a sufficient interest and impairment of a right shall be determined by the Member States, consistently with the objective of giving the public concerned wide access to justice. To this end, the interest of any non-governmental organisation promoting environmental protection and meeting any requirements under national law shall be deemed sufficient for the purpose of paragraph 1(a).
Such organisations shall also be deemed to have rights capable of being impaired for the purpose of paragraph 1(b).’
12. That provision was inserted into the IPPC Directive (6) for the purposes of implementing Article 9(2) of the Aarhus Convention. (7)
B – The NEC Directive
13. According to Article 4 of the NEC Directive, emission quantities must by 2010 have fallen below national emission ceilings and compliance therewith must be ensured thereafter:
‘1. By the year 2010 at the latest, Member States shall limit their annual national emissions of the pollutants sulphur dioxide (SO 2 ), nitrogen oxides (NO x ), volatile organic compounds (VOC) and ammonia (NH 3 ) to amounts not greater than the emission ceilings laid down in Annex I, taking into account any modifications made by Community measures adopted following the reports referred to in Article 9.
2. Member States shall ensure that the emission ceilings laid down in Annex I are not exceeded in any year after 2010.’
14. Annex I to the NEC Directive establishes for the Netherlands, inter alia, ceilings of 50 kilotonnes, that is to say, 50 000 tonnes, of sulphur dioxide and 260 kilotonnes, that is to say, 260 000 tonnes, of nitrogen oxides.
15. According to Article 6 of the NEC Directive, Member States must, by 1 October 2002 at the latest, draw up programmes for the progressive reduction of national emissions in order to comply with the national ceilings laid down in Annex I by 2010 at the latest. Article 7 requires them to prepare and annually update emission inventories and emission projections for 2010. They must communicate that information to the Commission which, acting jointly with the European Environment Agency, is responsible for its publication.
16. As regards the substance of the programmes, recitals 11 and 12 in the preamble to the NEC Directive state:
‘(11)	A set of national ceilings for each Member State for emissions of sulphur dioxide, nitrogen oxides, volatile organic compounds and ammonia is a cost-effective way of meeting interim environmental objectives. Such emission ceilings will allow the Community and the Member States flexibility in determining how to comply with them.
(12) Member States should be responsible for implementing measures to comply with national emission ceilings. It will be necessary to evaluate progress towards compliance with the emission ceilings. National programmes for the reduction of emissions should therefore be drawn up and reported on to the Commission and should include information on the measures adopted or envisaged to comply with the emission ceilings.’
17. The relationship between the IPPC Directive and the NEC Directive is addressed in recital 19:
‘The provisions of this Directive should apply without prejudice to the Community legislation regulating emissions of those pollutants from specific sources and to the provisions of Council Directive 96/61/EC in relation to emission limit values and use of best available techniques.’
18. Pursuant to Article 15(1) of the NEC Directive, the latter had to be transposed into national law before 27 November 2002.
19. In a similar manner to the NEC Directive, the Gothenburg Protocol to the 1979 Convention on long-range transboundary air pollution to abate acidification, eutrophication and ground-level ozone (8) also establishes emission ceilings for 2010, but in many cases the requirements of the directive are somewhat more strict.
C – Directive 2001/80
20. In addition, reference must be made to Directive 2001/80/EC of the European Parliament and of the Council of 23 October 2001 on the limitation of emissions of certain pollutants into the air from large combustion plants. (9) This establishes emission limit values for certain plants and can also be traced back to the Gothenburg Protocol.
D – Netherlands law
1. Transposition of the IPPC Directive
21. The IPPC Directive was transposed into Netherlands law by amending the Wet Milieubeheer (Law on Environmental Management).
22. Article 8.1(1)(b) of the Wet Milieubeheer establishes that a permit is required for modifications and changes of use concerning an installation covered by the directive. According to Article 8.10(1) of the Wet Milieubeheer, a permit may be refused only in the interests of environmental protection. Under Article 8.10(2)(a) of the Wet Milieubeheer, it must be refused in any event if it cannot be ensured by its grant that the best available techniques will be applied in the installation.
23. According to Article 8.11(2) of the Wet Milieubeheer, in the interests of environmental protection a permit may be issued subject to conditions. Under Article 8.12b(e) of the Wet Milieubeheer, the permit must in all circumstances include the relevant conditions governing the prevention or minimisation of long-range and transboundary pollution produced by the installation.
2. Transposition of the NEC Directive
24. According to the Netherlands Government, the Netherlands adopted various measures to ensure compliance with the emission ceilings. For nitrogen oxides, it introduced an emissions trading scheme. (10) The permissible quantity of sulphur dioxide emissions was distributed across various industrial sectors. No sector may exceed the allocated quantity of sulphur dioxide emissions.
III – Main proceedings and questions referred
25. The main proceedings result from actions challenging three power station projects. The Eemshaven power station (Case C‑165/09) for which a permit was issued on 11 December 2007 is expected to emit annually 1 454 tonnes of sulphur dioxide, the power station to be constructed on Missouriweg in Rotterdam for which a permit was issued on 11 March 2008 (Case C‑166/09) is expected to emit 580 tonnes of sulphur dioxide and 730 tonnes of nitrogen oxides, and the power station on Coloradoweg in Rotterdam (Case C‑167/09) to be upgraded on the basis of a permit of 26 October 2007 is projected to emit 923 tonnes of sulphur dioxide and 1 535 tonnes of nitrogen oxides. Thus, together, these power stations will produce around 6% of the total emissions of sulphur dioxide permissible in the Netherlands and almost 1% of the ceiling quantity of nitrogen oxides.
26. The references for a preliminary ruling cite information published by public bodies and the Commission according to which in 2010 and subsequent years the Netherlands will to fail to comply with the ceilings for sulphur dioxide and nitrogen oxides. However, the Netherlands argues that, according to the latest projections, compliance with the ceilings will be achieved.
27. Consequently, the Raad van State (Council of State, the Netherlands) has referred the following questions to the Court of Justice for a preliminary ruling:
‘(1) Does the obligation of interpretation in conformity with directives imply that the obligations under the IPPC Directive, as transposed in the Wet Milieubeheer, can and must be interpreted as meaning that, in deciding on an application for an environmental permit, the national emission ceilings for sulphur dioxide and nitrogen oxides in the NEC Directive must be fully taken into account, in particular as regards the obligations under Article 9(4) of the IPPC Directive?
(2)(a)	Does the duty of a Member State to refrain from taking measures liable seriously to compromise the attainment of the result prescribed by a directive also apply during the period of 27 November 2002 to 31 December 2010 envisaged in Article 4(1) of the NEC Directive?
(b) Do positive obligations rest with the Member State concerned during the relevant period of 27 November 2002 to 31 December 2010, either in parallel with the aforementioned duty to refrain or in place thereof, if the national emission ceiling for sulphur dioxide and/or nitrogen oxides in the NEC Directive is exceeded, or if there is a risk that it may be exceeded, at the end of that period?
(c) In answering Questions 2(a) and 2(b), is it significant that an application for an environmental permit for an installation which contributes to the national emission ceiling for sulphur dioxide and/or nitrogen oxides in the NEC Directive being exceeded or the risk of its being exceeded indicates that the installation will become operational in the year 2011 at the earliest?
(3)(a)	Do the obligations referred to in Question 2 mean that, in the absence of guarantees that the installation for which an environmental permit has been sought will not contribute to the national emission ceiling for sulphur dioxide and/or nitrogen oxides in the NEC Directive being exceeded or the risk of its being exceeded, the Member State must refuse the application for the environmental permit or attach further conditions or restrictions to it? In answering that question, is the extent to which the installation contributes to the emission ceiling being exceeded or the risk of its being exceeded of significance?
(b) Or does it follow from the NEC Directive that, even where the national emission ceiling for sulphur dioxide and/or nitrogen oxides is exceeded or risks being exceeded, a Member State has the discretion to bring about the result prescribed by the directive not by refusing the permit or by making it subject to further conditions or restrictions, but rather by adopting other measures such as other forms of compensation?
(4) Where obligations as referred to in Questions 2 and 3 rest with a Member State, can an individual bring the issue of compliance with those obligations before a national court?
(5)(a)	Can an individual rely directly on Article 4 of the NEC Directive?
(b) If so, is it possible to do so from 27 November 2002 or only from 31 December 2010? Is it significant, when answering that question, that the application for an environmental permit indicates that the installation will become operational in the year 2011 at the earliest?
(6) More particularly, if the grant of an environmental permit and/or other measures contribute to the national emission ceiling for sulphur dioxide and/or nitrogen oxides in the NEC Directive being exceeded or the risk of its being exceeded, is an individual entitled, on the basis of Article 4 of that directive:
(a) to make a general claim that the Member State concerned should adopt a package of measures which, by 2010 at the latest, would limit the annual national emissions of sulphur dioxide and nitrogen oxides to amounts not greater than the national emission ceilings in the NEC Directive, or, if that does not succeed, a package of measures which would limit the emissions to those amounts as soon as possible thereafter?
(b) to make concrete claims that the Member State concerned should adopt specific measures in respect of an individual installation – for example, by refusing a permit or attaching further conditions or restrictions to the permit – which, by the year 2010 at the latest, would contribute to the annual national emissions of sulphur dioxide and nitrogen oxides being limited to amounts not greater than the national emission ceilings in the NEC Directive, or, if that does not succeed, specific measures which would contribute to the emissions being limited to those amounts as soon as possible thereafter?
(c) In answering Questions 6(a) and 6(b), is the extent to which the installation contributes to the emission ceiling being exceeded or the risk of its being exceeded of significance?’
28. The questions referred in all the cases are essentially the same. However, Case C‑165/09 refers only to sulphur dioxide. Also Case C‑166/07 mentions only the consolidated version of the IPPC Directive, that is to say, Directive 2008/1, whereas both the other cases refer in addition to the old directive, that is to say, Directive 96/61.
29. By order of the President of the Court of 24 June 2009, the three cases were joined for the purposes of the written and oral procedure and the judgment.
30. Written observations were submitted by Stichting Greenpeace Nederland (‘Greenpeace’), the Gedeputeerde Staten von Groningen (‘Groningen’), RWE Power AG now RWE Eemshaven Holding BV, (‘RWE’), Electrabel Nederland NV (‘Electrabel’), the Gedeputeerde Staten von Zuid-Holland (‘Zuid-Holland’), E.ON Benelux NV (‘E.ON’), the Republic of Austria, the Kingdom of Denmark, the Republic of Italy, the Kingdom of the Netherlands and the European Commission. With the exception of Groningen, Zuid-Holland and Austria, those parties appeared at the hearing on 14 October 2010. In addition, Stichting Natuur en Milieu and the French Republic participated in the hearing.
IV – Legal appraisal
31. The NEC Directive establishes national emission ceilings for four pollutants, including nitrogen oxides and sulphur dioxide, which from 2011 the Member States may not exceed. However, the NEC Directive does not establish how Member States are to achieve that objective.
32. In the present proceedings, the permits granted for three individual power station projects are contested. Those projects would contribute significantly to the emission of nitrogen oxides and sulphur dioxide but, in principle, would not preclude compliance with the emission ceilings if the Netherlands reduced emissions elsewhere.
33. However, according to the referring court and also according to reports by the European Environment Agency, (11) it is doubtful whether on the basis of measures provided for hitherto the Netherlands complies with those ceilings in relation to nitrogen oxides and sulphur dioxide. For that reason, the references for a preliminary ruling seek to clarify whether in that situation the NEC Directive – notwithstanding the liberty to choose the means of achieving its objectives – precludes the grant of permits for the projects in question.
34. To that end, I intend to examine whether the IPPC Directive requires account to be taken of the risk of exceeding the ceilings established by the NEC Directive (section B below), whether a risk of exceeding the ceilings precludes such projects (section C below) and whether, in that regard, individuals may rely on the NEC Directive (section D below). However, first, I intend to discuss the objections raised by certain parties concerning the admissibility of the references for a preliminary ruling (section A below).
A – Admissibility
35. RWE, Electrabel and E.ON contend that the questions referred to the Court are inadmissible. In their view, the questions referred are not relevant to the dispute in the main proceedings.
36. According to those parties, in presuming – in the face of current data indicating the opposite – that the national emission ceilings for sulphur dioxide and nitrogen oxides established in the NEC Directive are likely to be exceeded in 2010 and in the subsequent period until 2015, the referring court has adopted an incorrect factual basis for its decision. In addition, the applicants in the main proceedings have failed to put forward arguments indicating to what extent the NEC Directive may justify a refusal of a permit under the IPPC Directive.
37. However, there is a presumption that questions on European Union law are to be regarded as relevant. (12) Thus, having regard to the function of the preliminary ruling procedure, the referring court’s observations on the relevance of the questions referred may not be subject to excessively strict requirements.
38. Consequently, only in exceptional circumstances is it for the Court to examine the conditions in which the case was referred to it by the national court, in order to assess whether it has jurisdiction. (13) It is settled case-law that a reference from a national court may be refused only where it is quite obvious that the interpretation of European Union law sought bears no relation to the actual facts of the main action or its purpose, or where the problem is hypothetical or the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. (14) Save for such cases, the Court is, in principle, bound to give a preliminary ruling on questions concerning the interpretation of European Union law. (15)
39. The Raad van State set out in detail its assessment that the emission ceilings established by the NEC Directive risk being exceeded and by its questions seeks to establish whether such an overshoot must be taken into account in the framework of the authorisation procedure under the IPPC Directive at issue in this case. The fact that a different assessment may be reached on whether the ceilings will be exceeded and even that the Netherlands Government now expects compliance with the ceilings to be achieved is insufficient to deprive the questions referred of their relevance. Instead, in principle, it is for the national court to assess the factual and legal circumstances of the dispute. (16) For that reason, an obvious absence of relation, within the meaning of the case-law, cannot be presumed.
40. As regards whether it is possible to refuse a permit under the IPPC Directive on the basis of the NEC Directive, a finding of inadmissibility would, moreover, anticipate the answer to the question referred. The assessment which is decisive is that reached by the national court, not the parties to the main proceedings. For that reason, contrary to the submissions advanced by Electrabel, fuller argument from the applicants on the interplay between the two directives is not required.
41. The reference made by E.ON to the ‘acte clair’ doctrine is also mistaken. According to that case-law, a national court ruling at final instance is relieved from the outset simply of the obligation
to seek a preliminary ruling if the Court has already delivered a ruling on that point or the correct application of European Union law is so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved. (17)
42. In such a case, the entitlement to seek a preliminary ruling does not lapse. (18) In the event of persisting doubts, national courts are not to be denied the opportunity to seek clarification from the Court. That continues to facilitate the uniform application of law throughout the European Union. All that is dispensed with is simply the provision of an answer – which is obvious also to the national court – to a conceivable question.
43. In addition, the assumption that the answer to the questions referred by the Raad van State is obvious is, in my view, quite misplaced.
44. Finally, the admissibility of the questions referred is not precluded by the Commission’s power of control under the NEC Directive, (19) which is expressed in particular in Article 10(5)(c) of the directive but is based fundamentally on Article 17(1) TEU (formerly Article 211 EC). That power of control does not exonerate the Member States from their own responsibility to transpose the NEC Directive properly or to ensure the interpretation of national law in conformity with the directive or the direct effect of its provisions. In that context, a reference for a preliminary ruling has to remain admissible.
45. Consequently, the references for a preliminary ruling are admissible.
B – The first question – scope of the obligation to interpret national legislation in conformity with directives having regard to the relationship between the IPPC and NEC Directives
46. By its first question, the referring court seeks to ascertain whether the obligation to interpret national law in conformity with directives means that in the context of granting a permit under the Wet Milieubeheer – which transposes the IPPC Directive – account must taken of the national emission ceilings established by the NEC Directive.
1. Interpretation in conformity with directives
47. The obligation on Member States arising from a directive to achieve the result envisaged by the directive and their duty under Article 4(3) TEU (formerly Article 10 EC) to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation are binding on all the authorities of Member States. (20)
48. This includes the obligation to interpret national law in conformity with a directive. In applying national law, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 288 TFEU (formerly the third paragraph of Article 249 EC). (21) Moreover, as all the authorities of a Member State are bound, the obligation to interpret national legislation in conformity with a directive extends also to a national authority which has to decide on the grant of permits under the IPPC Directive. (22)
49. The present case concerns two directives in the field of European Union environmental law which must both be given full effect. The Wet Milieubeheer which governs the permit procedure at issue transposes the IPPC Directive but not the NEC Directive. The latter directive was transposed by other national legal measures. However, that does not preclude an interpretation of the Wet Milieubeheer in conformity also with the NEC Directive, as in reaching an interpretation in conformity with a directive national law as a whole must be considered in order to assess to what extent it may be applied so as not to produce a result contrary to that sought by the directive at issue. (23)
50. Thus, the relationship between the two directives must be clarified, in particular the extent to which a permit procedure under the IPPC Directive is influenced by the requirements of the NEC Directive.
2. The cross-references established by the IPPC Directive
51. First, it must be verified whether both directives include provisions which explicitly address their interrelationship. In that regard, it is of particular interest whether the national emission ceilings established by the NEC Directive constitute environmental quality standards for the purposes of Article 10 of the IPPC Directive.
52. The polluting substances relevant to the main proceedings, namely sulphur dioxide and nitrogen oxides, are covered by both directives. Annex I to the NEC Directive prescribes national emission ceilings for sulphur dioxide and nitrogen oxides. Annex III to the IPPC Directive mentions those substances as polluting substances for which, in accordance with Article 9(3), a permit must include emission limit values.
53. In that regard, Article 19(2) of the IPPC Directive provides that as a minimum the specific limit values for particular types of installation – in this case, the limit values established by Directive 2001/80 on the limitation of emissions of certain pollutants into the air from large combustion plants – must be observed.
54. More stringent requirements may result in particular from the requirement established by Article 3(1)(a) of the IPPC Directive to use the best available techniques. Although, in that regard, Stichting Natuur contends that further emission reductions are now possible, that is not the issue in the present references for a preliminary ruling. Instead, the questions concern the possibility that the national emission ceilings will be exceeded.
55. According to the first sentence of Article 9(4) of the IPPC Directive, the requirement to use the best available techniques applies without prejudice to Article 10. That provides that additional measures must be included in a permit where use of the best available techniques is inadequate to attain an environmental quality standard. Therefore, in the framework of the permit procedure, consideration of the national emission ceilings established by the NEC Directive would be mandatory if these constituted such environmental quality standards.
56. In that regard, the definition of environmental quality standards established in Article 2(7) of the IPPC Directive is not entirely clear. That provision defines an environmental quality standard, according to the German and Italian versions, for example, as the set of requirements which must be fulfilled at a given time ‘in’ a given environment or particular part thereof, as set out in European Union legislation. Language versions adopting that formulation could be understood to mean that emission ceilings are covered as requirements which must be fulfilled in
a given environment.
57. However, that result is not supported by other language versions, such as the French and English versions, which refer to requirements which must be fulfilled ‘by’ (or in French ‘par’) a given environment. Accordingly, they describe a certain state of the environment or of certain protected features which is desired. (24) That is to say, according to those language versions, the quantity of a polluting substance present in the environment would, for example, be of relevance for the purposes of an environmental standard, whereas the quantity of polluting substances emitted in that environment does not provide any immediate indication of the quality of that environment.
58. Nor does the scheme established by the first sentence of Article 9(4) and Article 10 of the IPPC Directive lead to a clear outcome. Those provisions ensure that the cross-media approach of the IPPC Directive does not restrict any environmental quality standards. Emission limit values for installations and environmental quality standards are indeed interdependent: emission limit values must reflect environmental quality standards and, where necessary, be amended accordingly. (25) This indicates the lack of identity between the terms.
59. However, that does not mean necessarily that national emission ceilings do not constitute environmental quality standards. Although the ceilings relate also to emissions, they can be understood, at most, as a very special form of limit value, that is to say, as limit values for the whole economy. Nor does it appear to be precluded to use emission limit values for installations as a means of complying with national emission ceilings, as is provided for in Article 10 in relation to environmental quality standards.
60. However, if one frees oneself from the unclear definition of the IPPC Directive, the term ‘environmental quality standard’ in ordinary language suggests that quality requirements in relation to the environment itself are involved. In contrast, the emission ceilings constitute requirements in relation to a totality of emission sources which is not specified more precisely. As a result of aggregation effects and interactions, their importance for the quality of the environment itself cannot be determined precisely.
61. On that interpretation, environmental quality standards correspond specifically not to emission values but to the quantities of the relevant polluting substances present in elements of the environment. (26) Accordingly, environmental quality standards relate to protected features and the environmental state of affairs and are unrelated to sources whereas emission values are behaviour-related and are linked to pollution sources. (27)
62. Examples of environmental quality standards may be seen in the requirements for ambient air quality established by Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe, (28) namely limit values for the polluting substances contained in ambient air. Admittedly, emission limit values and emission ceilings influence the quantity of polluting substances in the ambient air and hence Article 10 of the IPPC Directive is also necessary. However, further factors may affect ambient air quality.
63. From that perspective, I agree with the assessment made by RWE, E.ON and the Netherlands, namely that national emission ceilings under the NEC Directive do not constitute environmental quality standards for the purposes of Article 10 of the IPPC Directive.
3. The systemic link between the IPPC Directive and the NEC Directive
64. However, the systemic link between the NEC Directive and the IPPC Directive could require national emission ceilings to be considered when granting permits for installations.
65. Notwithstanding the general environmental law objectives that both directives share, RWE, Electrabel, E.ON, Groningen and the Member States submitting observations in the present case proceed on the basis that the directives are wholly independent of each other.
66. They base that view on the different modes of action provided for in both directives. The NEC Directive adopts a programmatic approach, in prescribing – without reference to any particular emission sources – national emission ceilings. (29) According to recitals 11 and 12 in the preamble to the directive, the responsibility for developing compliance strategies lies with the Member States. In contrast, the IPPC Directive targets certain industrial installations as emission sources. (30) To prevent or minimise emissions, it prescribes primarily the use of the best available techniques. (31)
67. However, the mere fact that these approaches differ does not justify the presumption that both directives must be viewed wholly detached from each other. Instead, the same objective of reducing emissions suggests a harmonised interpretation of the directives in order to ensure a coherent system of emission reductions.
68. Under the second sentence of Article 9(4) of the IPPC Directive, in all circumstances
the conditions of the permit must contain provisions on the minimisation of long-distance or transboundary pollution and ensure a high level of protection for the environment as a whole. According to the wording and scheme, that requirement applies in addition to the condition laid down in the first sentence of Article 9(4), namely that emission limit levels must be based on the best available techniques.
69. That obligation going beyond the use of the best available technology is reinforced by the general basic obligations of operators under Article 3(1)(a) and (b) of the IPPC Directive. According to that provision, an operator must take all the appropriate preventive measures against pollution and must not cause any significant pollution. Moreover, Article 2(2) of the IPPC Directive specifically does not restrict the concept of pollution in the abovementioned provisions to emissions produced by the installation itself but calls for a global view incorporating also other existing contamination of the protected features concerned, namely of the air, water and land.
70. With a view to determining what is to be regarded as the minimisation of long-distance or transboundary pollution and a high level of protection for the environment as a whole for the purposes of the second sentence of Article 9(4) of the IPPC Directive, recourse may be had to other provisions of European Union environmental law. Such an approach is established already in Article 19(2) of the IPPC Directive which provides expressly for the application of emission limit values contained in the directives listed in Annex II and in ‘other Community legislation’. (32)
71. Admittedly, as E.ON correctly observes, the NEC Directive is not specifically listed in Annex II to the IPPC Directive. However, Annex II includes a directive which suggests that the NEC Directive may constitute other legislation for the purposes of Article 19(2) of the IPPC Directive. The NEC Directive, just like Directive 2001/80 on the limitation of emissions of certain pollutants into the air from large combustion plants, which is referred to in Annex II, can be traced back to the Gothenburg Protocol to abate acidification, eutrophication and ground-level ozone. That underlines the fact that the limit values for installations to be determined under the IPPC Directive pursue also the objectives of the NEC Directive.
72. Nor, contrary to the view taken by RWE, Electrabel and the Member States submitting observations, does a limitation result from recital 19 in the preamble to the NEC Directive. That recital states that the provisions of the NEC Directive should apply without prejudice to the IPPC Directive in relation to emission limit values and use of best available techniques. It can be inferred from the wording of the recital only that the NEC Directive is without prejudice to the obligations of the Member States resulting from the IPPC Directive and in particular does not weaken them. Consequently, a Member State may not refrain from using the best available technology even if it can comply with the emission ceilings under the NEC Directive without employing such technology.
73. On the other hand, an evaluation of the requirements of the NEC Directive when authorising installations is not precluded. The essentially programmatic character of the obligations under the NEC Directive cannot influence the question of whether, but simply the question of how, they are to be taken into account in the framework of a decision on a permit under the IPPC Directive.
74. In that regard, it is for the Member States to develop strategies to ensure compliance with national emission ceilings, which, in principle, includes also the choice of the emission sources included. For that reason, it is, in principle, not possible to derive from the NEC Directive specific arithmetical requirements for the permissible emissions of individual installations. However, it is hardly conceivable that the measures adopted by Member States to ensure compliance with emission ceilings do not affect the grant of permits for installations under the IPPC Directive as those installations contribute significantly to the emissions produced. With a view to implementing such a strategy, the competent bodies may in particular impose additional conditions within the meaning of Article 9(7) of the IPPC Directive.
75. Accordingly, the Commission has described the approach of the NEC Directive as complementary to the approach of the IPPC Directive. (33) According to the Commission, in addition, strict emission standards set in the context of implementing the IPPC Directive will help in achieving the national emission ceilings. (34) It therefore follows that the Commission, too, regards the prevention or the minimisation of emissions from installations covered by the IPPC Directive as an important instrument with a view to complying with the national emission ceilings established by the NEC Directive.
76. In the context of grant of a permit in accordance with the IPPC Directive, account must be taken of national emission ceilings inasmuch as the grant of such a permit may be such as to frustrate or seriously jeopardise compliance with the relevant requirements. To ignore completely the national emission ceilings established by the NEC Directive and the reasoning inherent therein would contradict the abovementioned principle of European Union law that national law must be interpreted, as far as possible, in the light of the wording and purpose of a directive in order to achieve the result pursued by the latter.
77. Thus, the answer to the first question must be that, in the light of the obligation of interpretation in conformity with directives, the national provisions for transposing the IPPC Directive must be interpreted where possible to mean that in deciding on an application for an environmental permit account is to be taken of the national emission ceilings established by the NEC Directive.
C – The second and third questions – Member State obligations in the period between the deadline for transposition and the date for compliance with the national emission ceilings
78. The second and third questions – each with further subdivisions – concern various individual aspects of the general question concerning the obligations on a Member State in the period between the deadline for transposition of the NEC Directive (27 November 2002) and the date for compliance with the national emission ceilings (31 December 2010).
79. I shall take as my starting point the case-law of the Court on the duties of the Member States to refrain from taking certain actions prior to the expiry of the time-limit for transposition of directives. Having regard to the individual questions, I shall first consider those duties to refrain from taking action with reference to their temporal aspect before I address any positive duties to take action. In a subsequent step, the extent of those duties in the context of a procedure for granting a permit is to be verified. Finally, following those observations, the question as to the significance of the date on which an installation requiring a permit commences operations can be answered.
1. Question 2(a) – duties to refrain from taking action
80. By Question 2(a), the referring court wishes to ascertain whether the duty of a Member State to refrain from taking measures liable seriously to compromise the attainment of the result prescribed by a directive applies also during the period from 27 November 2002 to 31 December 2010.
81. The duties of the Member States during such a transitional period can be inferred from the case-law on the time-limit for the transposition of directives. Admittedly, Member States cannot be faulted for not having transposed a directive into national law before the expiry of the period prescribed in the directive, as the purpose of such a period is to give Member States the necessary time to adopt transposition measures. (35) Nevertheless, it is during the transposition period that the Member States must take the measures necessary to ensure that the result prescribed by the directive is achieved at the end of that period. (36)
82. It follows that, in particular during the period prescribed for transposition of a directive, the Member States must refrain from taking any measures liable seriously to compromise the attainment of the result prescribed by the directive. (37)
83. According to the German version of that case-law, that prohibition on frustrating the objective of a directive (38) relates only to ‘Vorschriften’, that is to say, legislative measures. The Italian version is worded similarly (‘adottare disposizioni’). That appears to be supported by the overwhelming majority of judgments on the matter, because they concern legislative rules. (39)
84. However, it would be surprising and ineffective to limit the protection against serious jeopardy during transposition or transitional periods that is afforded to European Union objectives simply to threats posed by legislation. Rather, the crucial issue is whether the result prescribed by the directive concerned is seriously compromised. Accordingly, in particular in the French but also in the English version of that case-law, the Court has not specified legislation but measures (French: ‘prendre des dispositions’, English: ‘taking any measures’). In addition, it has repeatedly stressed that this duty is binding on all the authorities of the Member States. (40) Finally, it expressly held that the prohibition on frustrating the objective of a directive applies just as much to national courts. (41)
85. 3If, therefore, directives may already impose obligations on Member States prior to the expiry of the period prescribed for their transposition, that applies a fortiori
to transitional periods which follow the expiry of the period prescribed for transposition. (42) This is illustrated by the case-law concerning the continued application of national legislation on plant protection and on provisional site protection under the Habitats Directive. (43)
86. Although in the area of plant protection national legislation continues to apply on a transitional basis, Member States may not amend it at will during the transitional period. Instead, in accordance with the objectives of the Plant Protection Directive, (44) they must ensure that, in authorising a plant protection product which comes within the scope of the transitional rules, they take due account of the effects which that product may have on human and animal health and on the environment. Likewise, any decision on authorisation must be taken solely on the basis of a dossier comprising the information necessary to enable a genuine assessment of those effects to be made. (45)
87. Also, although the Habitats Directive governs site protection expressly only in relation to the period after sites have been included in the European Union list, in the case of sites identified with a view to their inclusion on the Community list Member States must take appropriate protective measures to preserve their characteristics. (46)
88. Against that background, it is relatively easy to answer Question 2(a). The duty of a Member State to refrain from taking measures liable seriously to compromise the attainment of the result prescribed by the NEC Directive of course applies also during the period from 27 November 2002 to 31 December 2010.
2. Question 2(b) – positive duties to take action
89. By Question 2(b), the referring court seeks to ascertain whether during the transitional period a Member State is also under a duty to take certain measures if there is a risk that at the end of that period the national emission ceilings established by the NEC Directive will be exceeded.
90. In principle, the answer to that question follows quite simply from the programme laid down by the NEC Directive.
91. Pursuant to the first subparagraph of Article 15(1) of the NEC Directive, Member States had until 27 November 2002 to bring into force the laws, regulations and administrative provisions necessary to comply with the directive. Following that date, there was no longer a transposition period to preclude the conclusion that the Member States also had positive duties to take action. Rather, by that date the necessary transposition measures had to have been taken.
92. However, pursuant to Article 4(1) of the NEC Directive, the emission ceilings laid down in Annex I apply only from 31 December 2010. These circumstances differ from those which applied in the cases on transitional periods decided hitherto. They concerned European Union rules which allowed Member States to continue to apply their existing system or practice during a certain period, (47) or which presupposed the adoption of further measures in order to trigger the application of European Union law. Such rules postpone merely the date on which the requirements of European Union law will apply in full.
93. The scheme adopted in the NEC Directive takes a different approach. Pursuant to the first subparagraph of Article 15(1) of the NEC Directive, the transposition measures were required to take legal effect by 27 November 2002. It is merely the actual consequences thereof, namely the reduction of national emissions to a specific total quantity, that, pursuant to Article 4(1) of the NEC Directive, are required with effect only from 31 December 2010.
94. The NEC Directive specifically provides that in that period the Member States cannot continue as before. Instead, pursuant to Article 6(1) of the NEC Directive, Member States had – by 1 October 2002 at the latest – to draw up programmes for the progressive reduction of national emissions with the aim of complying with national emission ceilings by 2010.
95. As the Commission correctly states, (48) that scheme of deadlines results from the particular nature of the subject of the NEC Directive. The reduction in emissions does not take effect concurrently with the legal norms intended to attain that objective. Instead, it follows them at a later date. Against that background, no transitional period is required as regards the legal position, but a time period is needed during which the legal rules can take full effect. This fits neatly with the words ‘at the latest’ in Article 4(1) of the NEC Directive, to which Austria also draws attention, and with the annual
character of the emission ceilings. The latter do not relate to a particular day but result from ongoing processes.
96. The programmes required must be understood primarily as binding the Member States by their own acts. They are responsible for determining the measures to ensure compliance with the emission ceilings. Where Member States have set out such measures in a programme, they are required also to implement the measures.
97. However, Member States cannot restrict themselves simply to the implementation of the programmes initially drawn up, in accordance with Article 6(1) of the NEC Directive, by 1 October 2002 at the latest. Instead, they are required, in accordance with Article 7, annually to monitor emission developments and to project emission levels for 2010. In the light of those results, they were required, in accordance with Article 6(3), to revise and update their programmes by 1 October 2006.
98. If the annual projections indicate that existing programmes are insufficient to comply with the emission ceilings, the binding nature of those threshold values means that the Member States concerned must further develop their programmes in order nevertheless to reduce their emissions sufficiently so as to comply with the ceilings.
99. Consequently, there are positive duties to take action, at any rate as regards the drawing up and implementation of suitable programmes aimed at complying with the emission ceilings.
100. Whether, in addition, certain more extensive duties exist, by way of an exception, is the subject of Question 3.
101. Therefore, the answer to Question 2(b) must be that, under the NEC Directive, the Member State concerned must, during the period from 27 November 2002 to 31 December 2010, draw up and implement suitable programmes for complying with the emission ceilings. If, none the less, there is a risk that the ceilings will be exceeded, the Member State must develop further its programme for reducing the relevant emissions, in order to reduce those emissions sufficiently.
3. Question 3(a) and (b) – whether or not more extensive duties apply if there is a risk that the ceilings will be exceeded
102. By Question 3(a) and (b), the referring court seeks to ascertain whether, where the national emission ceilings are exceeded or there is a risk of their being exceeded, the abovementioned duties of the Member States are so extensive as to require the refusal of an environmental permit or its grant subject to conditions. This question presupposes that, contrary to its obligations under the NEC Directive, the Member State concerned has not drawn up and implemented programmes which are adequate to prevent the ceilings being exceeded.
103. At the outset, I wish to observe that the proposition advanced by RWE and E.ON that any Member State duties are precluded by the fact that the Commission has not proposed to the Netherlands any further measures is wholly lacking in foundation. The Commission is not required on a general basis to propose to the Member States measures to ensure their compliance with European Union law, nor does the NEC Directive include such obligations. It provides in Articles 9 and 10 simply that the Commission must present to the legislative organs of the European Union reports and proposals for the further development of the directive. This is without prejudice to the duties on Member States under European Union law. (49)
104. However, acceptance of a specific duty on Member States in the context of a procedure for the grant of permits might be precluded by the discretion accorded to the Member States by the NEC Directive in the implementation thereof, to which RWE, Electrabel, E.ON, Groningen and the Member States refer.
105. Recital 11 in the preamble to the NEC Directive emphasises that emission ceilings allow the European Union and the Member States flexibility in determining how to comply with them. Recital 12 states that Member States should be responsible for implementing measures to comply with national emission ceilings. Article 4 of the NEC Directive does not specify the instruments to achieve compliance with national emission ceilings. In Article 6, the NEC Directive provides specifically only for the drawing up of national programmes for the progressive reduction of national emissions.
106. However, that discretion of the Member States is not unlimited. Rather, in choosing the implementing measures to be taken they must be guided by the requirement in Article 4 of the NEC Directive to limit by 2010 at the latest their national annual emissions of the polluting substances mentioned to amounts not exceeding the emission ceilings laid down in Annex I. That requirement is repeated in Article 6(1) of the NEC Directive. According to Article 1 of the NEC Directive, limiting emissions aims to protect the environment and human health. (50) The Member States may not seriously compromise that objective by accepting that the emission ceilings may be exceeded. (51)
107. Moreover, the Court has already held that, if the discretion granted by a directive has been exceeded, the authorities of the Member State, in particular the courts, must take, in accordance with their respective powers, all the general or particular measures necessary to satisfy the requirements of that directive. (52)
108. Therefore, if the authority in a Member State primarily responsible for the transposition of the NEC Directive exceeds the discretion granted to the Member State so that the requirement to comply with national emission ceilings by 2010 is seriously compromised, an authority responsible for the grant of permits may also in principle be required in the exercise of its powers to take action or to refrain from taking action.
109. Contrary to the view taken by Electrabel, that does not conflict with the principle of the separation of powers. Rather, the primary allocation of responsibilities in the context of implementing a directive is determined by a Member State’s constitutional provisions. If, however, it fails to satisfy its obligations under European Union law, it cannot rely in its defence on the principle of separation of powers. This is required, in any event, to ensure the equal treatment of all Member States regardless of their internal structure. (53)
110. The possible practical difficulties mentioned by the Netherlands in determining whether there is a risk of the national emission ceilings being exceeded cannot entail the disapplication of Member State obligations. In the main actions the referring court reached its own assessment on that point, which is not open to review by the Court.
111. Thus, the discretion available to a Member State where emission ceilings are exceeded or there is a risk of their being exceeded does not preclude, per se, specific duties of Member States. However, in determining the substance of those duties, account must be taken of the scheme of the NEC Directive. For that reason, for example, an unrestricted duty, as a matter of European Union law, to reduce emissions by eliminating specific
existing emission sources is precluded. The decision as to which emissions must be eliminated or reduced is a matter solely for the competent bodies of the Member States.
112. On the other hand, granting a permit for a new installation results in additional new
emissions on the basis of a Member State decision. Thus, unlike the case where emission ceilings are exceeded or there is a risk of their being exceeded simply as a result of existing sources, in taking certain action the Member State contributes actively to frustration of the directive’s objectives. Consequently, a permit which allows additional emissions possesses a different quality to the mere upholding of the current state of affairs by not intervening against existing emission sources. The prohibition inherent in the NEC Directive of the establishment of any additional emission sources whatsoever where the emission ceilings are exceeded or there is a risk of their being exceeded stands in the way of grant of such a permit. Nevertheless, the discretion of the Member State to determine how it seeks to reduce its emissions is not restricted. Where the emission quantities are exceeded, the discretion of the Member State is however reduced to zero and the question, falling within the national discretion, of ‘how’ to bring about reductions becomes redundant.
113. That does not preclude authorisation of new power stations which replace old power stations and, on the basis of a comparable output, produce a smaller quantity of polluting substances. Such an upgrade is beneficial for emission levels and, consequently, cannot impair the achievement of the NEC Directive’s objectives. However, when granting a permit for new emissions it is insufficient to link them to a mere aspiration of decommissioning old installations. Instead, it must be established
that the emissions for which a permit is granted on a replacement basis are reflected by a corresponding reduction in emissions from old installations.
114. In the absence of such a link between new emissions and the reduction of existing emissions, a permit for additional emissions is permissible only if there is no risk of the emission ceilings being exceeded. Therefore, Member States must adopt measures, where necessary, prior to granting a permit, in order to ensure a sufficient reduction in current emissions by the date on which the installation becomes operational (and also thereafter).
115. Only in rare exceptional cases are absolutely overriding reasons in the public interest possible which, notwithstanding the risk that the emission ceilings will be exceeded, justify the grant of a permit allowing additional emissions. (54) However, in the present instance reasons of that kind have not been relied upon, nor are there indications that such reasons exist.
116. I am unconvinced by the reference made by RWE and the Netherlands to the principle of subsidiarity and the principle of proportionality, both of which are set out in Article 5 TEU (formerly Article 5 EC). The principle of subsidiarity cannot result in Member States being accorded unlimited discretion to prejudice the objectives of European Union law. Where Member States fail to make use of the courses of action initially open to them in the transposition of a directive, it is reasonable that subsequently the scope of their discretion is reduced.
117. Thus, the existence of an initial discretion available to the Member States is not inconsistent with a prohibition on the granting of permits for additional emissions.
118. According to Electrabel, however, a prohibition on the grant of permits would disadvantage installations requiring permits vis-à-vis emission sources which do not require a permit and hence can be brought into operation regardless of whether national emission ceilings are exceeded. It can remain open here whether that argument has merit in connection with the grant of permits for small installations which are comparable with installations not requiring permits.
119. Installations which require a permit in accordance with the IPPC Directive are, in any event, not comparable with installations not requiring a permit. According to the European Union legislature itself, they have a major impact on the environment in general (55) and produce substantial quantities of emissions (56) so as to justify the imposition of special requirements.
120. That legislative distinction is relevant for the answer to the sub-question in Question 3(a). In principle, the extent to which an installation contributes to the emission ceiling being exceeded or the risk of its being exceeded is not significant. As the IPPC Directive makes the installation subject to a permit requirement, it is to be supposed that the emissions it will produce are sufficiently significant to preclude the grant of a permit (57) where, even in the absence of the installation in question, emission quantities are already exceeded.
121. In an individual case, it may be possible to rebut such an assumption. Emission ceilings cannot preclude the grant of a permit if an installation, by its very nature, does not emit the relevant polluting substances at all. It would also be conceivable to authorise installations if their emissions of those substances are of no practical relevance for the environment. However, in the present cases, that possibility is precluded. The power stations in question produce significant quantities of nitrogen oxides and sulphur dioxide and, in that regard, contribute appreciably to national emissions. (58)
122. Thus, where emission ceilings are exceeded or there is a risk of their being exceeded, the prohibition on granting a permit for an installation pursuant to the IPPC Directive applies unless in an individual case it is proven that the emissions of the polluting substances in question are not material for the environmental impact of the installation.
123. Finally, it must be observed that the possibility mentioned in the question of granting only a restricted permit, that is to say, subject to conditions and restrictions, certainly constitutes, in comparison to an outright refusal, less drastic means which the competent authorities are obliged to consider. It is possible that by virtue of further technical measures emissions of the relevant polluting substances can be reduced to such an extent that the assumption that they are relevant may be rebutted. However, the NEC Directive does not provide any indication of the form that such conditions or restrictions might take. It follows from the directive simply that, where there is a risk of the emission ceilings being exceeded, Member States may not authorise additional emissions.
124. Therefore, the answer to Question 3(a) and (b) must be that a Member State must refuse an application for an environmental permit for the purposes of Article 4 of the IPPC Directive if the installation contributes to a national emission ceiling for polluting substances laid down in the NEC Directive being exceeded or the risk of its being exceeded and the Member State has not drawn up and implemented adequate programmes for the reduction of emissions. That prohibition does not apply if, in an individual case, it is proven that the emissions of the polluting substances in question are not material for the environmental impact of the installation.
4. The significance of the time at which the installation becomes operational (Question 2(c))
125. Finally, under Question 2(c) the referring court seeks to establish the significance of the time at which an installation requiring a permit becomes operational. Although the order of the questions in the references for a preliminary ruling would appear to suggest otherwise, this question can logically relate only to Question 3(a) and (b) which specifically concerns the Member States’ duties during a procedure for the grant of a permit.
126. An installation may be taken into account in the context of national emission ceilings only from the time at which it becomes operational and, as a result, produces emissions. Therefore, in the context of a procedure for the grant of a permit, the national emission ceilings to be considered are those which apply when the installation becomes operational and during its ongoing period of operation.
127. Pursuant to Article 4(2) of the NEC Directive, Member States must ensure that the emission ceilings laid down in Annex I are also not exceeded at any time after the deadline of 31 December 2010. Therefore, those ceilings (at the very least) continue to apply, as Italy and the Commission rightly indicate. Accordingly, it is appropriate to refuse a permit so long as the national emission ceilings are exceeded or there is a risk that they will be exceeded.
128. Therefore, the answer to Question 2(c) must be that a point in time for commencement of operation of an installation after 2010 is of significance only if, as at that time, the national emission ceilings are not exceeded and there is no longer any risk that this will occur.
D – The fourth, fifth and sixth questions – direct effect of directives
129. The fourth, fifth and sixth questions seek to ascertain whether and, if so, to what extent an individual may rely on the NEC Directive before national courts.
130. As the Court of Justice has noted on numerous occasions, it would be incompatible with the binding effect which the third paragraph of Article 288 TFEU ascribes to a directive to exclude, in principle, the possibility of the obligation imposed by a directive being relied on by persons concerned. (59) That consideration applies particularly in respect of a directive whose objective is to control and reduce atmospheric pollution and which is designed, therefore, to protect public health. (60)
131. Accordingly, whenever the provisions of a directive appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise, they may be relied on before the national courts by individuals against the State where the latter has failed to implement the directive in domestic law by the end of the period prescribed or where it has failed to implement the directive correctly. (61)
132. Article 4 of and Annex I to the NEC Directive contain an unambiguous obligation on Member States, namely that at the latest by 31 December 2010 they must comply with the national emission ceilings laid down therein. The obligation in Article 6 to draw up programmes for the progressive reduction of national emissions is also sufficiently precise. (62)
133. On the other hand, an obligation to take specific individual measures to achieve compliance with emission ceilings cannot be derived from the NEC Directive. Member States have a wide discretion in their choice of means. Thus, in relation to such individual measures, direct applicability is, in principle, ruled out.
134. However, a different situation applies in relation to the restriction, which has been established above, on the discretion of the Member States where there is a risk that the emission ceilings will be exceeded. The obligation to refuse an environmental permit for the purposes of Article 4 of the IPPC Directive where an installation contributes to a national emission ceiling for polluting substances established in the NEC Directive being exceeded or the risk of its being exceeded is quite evidently sufficiently precise as regards the legal consequences.
135. It might be doubted whether the requirement that a national emission ceiling is exceeded or there is a risk of its being exceeded is also sufficiently precisely defined. Whether or not those thresholds are exceeded can be determined only on the basis of a prediction that is generally complex. In that regard, most of the parties argue that at the time when a permit is granted it is not yet possible to know whether the emission ceilings will be exceeded when operations commence.
136. However, the NEC Directive includes instruments to facilitate that prediction. In accordance with Article 7 and Annex III, Member States must prepare national emission inventories and projections and update them annually. Those projections – at the very least – may be easily used by the competent bodies and the courts for the purposes of determining whether there is a risk of emission ceilings being exceeded. Nor does correction of such projections appear precluded if obvious defects are apparent.
137. Difficulties may admittedly arise if at the time when a permit is granted a Member State has not already decided on the means it intends to use for the purposes of ensuring compliance with the ceilings by the time when operations commence. However, those difficulties should be accepted, as they result from a breach of Article 6 of the NEC Directive. According to that provision, Member States should have drawn up by 1 October 2002 the necessary programmes with a view to complying with the ceilings.
138. Thus, the need for a projection of future emissions of polluting substances does not preclude the direct effect of the prohibition on granting permits authorising additional emission sources where national emission ceilings are exceeded or there is a risk of their being exceeded.
139. It is nevertheless questionable whether the NEC Directive is sufficiently precise in specifying the category of persons to benefit from the obligation. According to case-law, ‘persons concerned’ may rely on the duty of a Member State arising from a directive. In Janecek, the Court even refers specifically to persons ‘directly’ concerned. (63) Without any need for a detailed examination of the meaning of those terms, they suggest that the category of persons benefiting from the obligation has to be limited.
140. The NEC Directive, in particular Articles 4 and 6, does not fit such a scheme, as Austria is correct to observe. The rules provide simply for national
emission ceilings and require national programmes. However, in the absence of any geographical or substantive link, these do not protect a definable category of person s. Not even the population of the Member State concerned can be defined as the group benefiting, since national emissions as a whole often also have cross-border impact. For that reason, these duties serve, generally, the protection of the environment and of health. A more specific formulation is lacking.
141. Accordingly, it may be doubted whether individuals can rely directly on Article 4 of the NEC Directive or can, for the purposes of Article 6, require the adoption of programmes or of measures or packages of measures included therein for the purposes of complying with the emission ceilings. Ultimately, however, those questions, that is to say, Questions 5(a) and 6(a), are not relevant to the present case, as the main proceedings concern neither compliance with national emission ceilings as such nor necessary packages of measures.
142. In the present case, the crucial issue is simply whether individuals may rely on the prohibition on granting permits pursuant to Article 4 of the IPPC Directive for certain additional installations where the national emission ceilings are exceeded or there is a risk of their being exceeded.
143. As those installations are tied to specific locations, they display a sufficient geographic-substantive link so that persons concerned, even persons directly concerned, may be identified. Article 2(15) of the IPPC Directive defines for those purposes the public concerned. It includes non-governmental organisations promoting environmental protection and meeting any requirements under national law.
144. According to Article 16 of the IPPC Directive, which was inserted for the purposes of implementing the Aarhus Convention, the public concerned by the grant of a permit has a right to legal protection. That right to bring proceedings is conditional on having a sufficient interest or the impairment of a right in accordance with the provisions of national law. (64) As in the present case no questions have been raised concerning those requirements, it must be presumed that they are satisfied.
145. Admittedly, even in that framework, the public concerned within the meaning of the IPPC Directive is not directly concerned by the requirements of the NEC Directive. However, Article 16 of the IPPC Directive grants it the right to challenge the substantive and procedural legality of permits. That judicial review is not limited to provisions which specifically protect certain persons. Rather, a substantive review of the permit would be incomplete if the persons concerned by an installation and bringing a legal challenge had to accept a permit which is objectively unlawful.
146. Thus, within the framework of an action for the purposes of Article 16 of the IPPC Directive, individuals may rely on the prohibition, contained in the NEC Directive, on the grant of permits pursuant to Article 4 of the IPPC Directive for certain additional installations where emission ceilings are exceeded or there is a risk of their being exceeded.
147. Finally, consideration must be given to the objection that to rely on the prohibition on granting a permit would result in the application of the NEC Directive to the detriment of individuals, that is to say, the energy undertakings concerned. It must be conceded that a directive cannot of itself impose obligations on an individual and cannot therefore be relied on as such against an individual. (65) However, in principle, it is possible to apply national law – as the referring court proposes – in conformity with a directive to the detriment of individuals. (66) Moreover, even if direct application of the prohibition on granting a permit were necessary, the directive would not be relied on against an individual. Rather, the prohibition would be relied on against the authority granting the permit. Also, mere adverse, to a certain extent ‘reflexive’, repercussions on the rights of third parties, even if the repercussions are certain, do not justify preventing an individual from invoking the provisions of a directive against the Member State concerned. (67)
148. Therefore, the answer to Questions 4 and 6(b) must be that, within the framework of an action for the purposes of Article 16 of the IPPC Directive, individuals may rely on the prohibition contained in the NEC Directive on the grant of permits pursuant to Article 4 of the IPPC Directive for certain additional installations where emission ceilings are exceeded or there is a risk of their being exceeded.
149. The answer to Question 5(b) follows from the answer to Question 2(b): As the duty of a Member State to refrain from taking measures liable seriously to compromise the attainment of the result prescribed by the NEC Directive applies also during the period from 27 November 2002 to 31 December 2010, individuals must already be entitled during that period to rely on the abovementioned prohibition concerning the grant of permits. (68)
150. Question 6(c) has also been answered already, that is to say, by the answer to Question 3(a): The prohibition concerning the grant of permits does not apply if, in an individual case, it is proven that the emissions of the polluting substances in question are not material for the environmental impact of the installation. (69)
151. Therefore, the answer to Questions 4 to 6 is as follows. Within the framework of an action for the purposes of Article 16 of the IPPC Directive, individuals may rely on the prohibition contained in the NEC Directive on the grant of permits pursuant to Article 4 of the IPPC Directive for certain additional emission sources, namely installations, where emission ceilings are exceeded or there is a risk of their being exceeded. That applies also during the period from 27 November 2002 to 31 December 2010. The prohibition does not apply if, in an individual case, it is proven that the emissions of the polluting substances in question are not material for the environmental impact of the installation.
V – Conclusion
152. I propose, therefore, that the Court should answer the references for a preliminary ruling as follows:
1. In the light of the obligation of interpretation in conformity with directives, the national provisions transposing Directive 2008/1/EC concerning integrated pollution prevention and control (formerly Directive 96/61/EC) must be interpreted where possible to mean that in deciding on an application for an environmental permit account is to be taken of the national emission ceilings established by Directive 2001/81 on national emission ceilings for certain atmospheric pollutants.
2. The duty of a Member State to refrain from taking measures liable seriously to compromise the attainment of the result prescribed by Directive 2001/81 applies also during the period from 27 November 2002 to 31 December 2010.
3. Under Directive 2001/81, the Member State concerned must, during the period from 27 November 2002 to 31 December 2010, draw up and implement suitable programmes for complying with the emission ceilings. If, none the less, there is a risk that the ceilings will be exceeded, the Member State must develop further its programme for reducing the relevant emissions, in order to reduce those emissions sufficiently.
4. Where the Member State has not drawn up and implemented adequate programmes for the reduction of emissions, it must refuse an application for an environmental permit for the purposes of Article 4 of Directive 2008/1 if the installation contributes to the national emission ceiling for polluting substances laid down in Directive 2001/81 being exceeded or the risk of its being exceeded. That prohibition does not apply if, in an individual case, it is proven that the emissions of the polluting substances in question are not material for the environmental impact of the installation.
5. A point in time for commencement of operation of an installation after 2010 is of significance only if, as at that time, the national emission ceilings are not exceeded and there is no longer any risk that this will occur.
6. Within the framework of an action for the purposes of Article 16 of Directive 2008/1, individuals may rely on the prohibition contained in Directive 2001/81 on the grant of permits pursuant to Article 4 of Directive 2008/1 for certain additional emission sources, namely installations, where emission ceilings are exceeded or there is a risk of their being exceeded. That applies also during the period from 27 November 2002 to 31 December 2010. The prohibition does not apply if, in an individual case, it is proven that the emissions of the polluting substances in question are not material for the environmental impact of the installation.
(1) .
(2)  –	See Case C-320/03 Commission
v Austria
[2005] ECR I-9871; Case C-237/07 Janecek
[2008] ECR I-6221; and Case C-405/07 P Netherlands
v Commission
[2008] ECR I-8301.
(3)  –	OJ 2001 L 309, p. 22.
(4)  –	See European Environment Agency, NEC Directive status report 2007, Luxembourg 2008, p. 16 (Table 5) and, from the same author, NEC Directive status report 2008, Luxembourg 2009, p. 18 (Table 3.1). According to those reports, an additional 11 Member States will exceed the emission ceiling for nitrogen oxides, 4 others the emission ceiling for volatile organic compounds and 2 others the emission ceiling for ammonia, but no other Member State will exceed the emission ceiling for sulphur dioxide.
(5)  –	Originally, Council Directive 96/61/EC of 24 September 1996 (OJ 1996 L 257, p. 26), as amended by Regulation (EC) No 166/2006 of the European Parliament and of the Council of 18 January 2006 concerning the establishment of a European Pollutant Release and Transfer Register and amending Council Directives 91/689/EEC and 96/61/EC (OJ 2006 L 33, p. 1). The directive was consolidated in Directive 2008/1/EC (OJ 2008 L 24, p. 8). That directive together with some other directives will be replaced by Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control), see Council Document PE-CONS 31/5/10 REV 5 of 24 November 2010. However, the NEC Directive is not included in that package.
(6)  –	Article 4(4) of Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC (OJ 2003 L 156, p. 17).
(7)  –	Convention on access to information, public participation in decision-making and access to justice in environmental matters (OJ 2005, L 124, p. 4), signed by the Community on 25 June 1998 in Aarhus, Denmark, and approved by Council Decision 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p. 1).
(8)  –	Approved by Council Decision 2003/507/EC of 13 June 2003 (OJ 2003 L 179, p. 1).
(9)  –	OJ 2001 L 309, p. 1, as amended by Council Directive 2006/105/EC of 20 November 2006 adapting Directives 73/239/EEC, 74/557/EEC and 2002/83/EC in the field of environment, by reason of the accession of Bulgaria and Romania (OJ 2006 L 363, p. 368).
(10)  –	Details are set out in Case T‑233/04 Netherlands
v Commission
[2008] ECR II‑591, paragraph 10 et seq.
(11)  –	See footnote 4.
(12)  –	Case C-140/09 Fallimento Traghetti del Mediterraneo
[2010] ECR I‑0000, paragraph 29; Joined Cases C‑395/08 and C-396/08 Bruno and Pettini
[2010] ECR I‑0000, paragraph 19; and Case C-393/08 Sbarigia
[2010] ECR I‑0000, paragraph 20.
(13)  –	Joined Cases C-295/04 to C-298/04 Manfredi and Others
[2006] ECR I-6619, paragraph 27.
(14)  –	See, inter alia, Case C-415/93 Bosman
[1995] ECR I-4921, paragraph 61, and Case C-344/04 IATA and ELFAA
[2006] ECR I-403, paragraph 24.
(15)  –	See Bosman
(cited in footnote 14), paragraph 59, and IATA and ELFAA
(cited in footnote 14), paragraph 24.
(16)  –	Case C-153/02 Neri
[2003] ECR I-13555, paragraphs 34 and 35; Joined Cases C‑482/01 and C‑493/01 Orfanopoulos and Oliveri
[2004] ECR I-5257, paragraph 42; and Case C-246/04 Turn- und Sportunion Waldburg
[2006] ECR I-589, paragraph 21.
(17)  –	Case 283/81 Cilfit and Others
[1982] ECR 3415, paragraphs 13 to 16 and 21.
(18)  –	Cilfit and Others
(cited in footnote 17), paragraph 15.
(19)  –	In its observations of 18 August 2009, RWE notes that the European Commission has hitherto failed to object that the emission ceilings established for the Netherlands are being exceeded or are at risk of such (paragraph 35).
(20)  –	Case 14/83 Von Colson and Kamann
[1984] ECR 1891, paragraph 26, and Case C‑106/89 Marleasing
[1990] ECR I-4135, paragraph 8.
(21)  –	Von Colson and Kamann
and Marleasing
(both cited in footnote 20).
(22)  –	See Case 103/88 Costanzo
[1989] ECR 1839, paragraphs 30 and 31; Case C-224/97 Ciola
[1999] ECR I‑2517, paragraph 30; Case C-6/05 Medipac-Kazantzidis
[2007] ECR I-4557, paragraph 43; Case C-341/08 Petersen
[2010] ECR I-0000, paragraph 80; and Case C-243/09 Fuß
[2010] ECR I-0000, paragraph 61.
(23)  –	Joined Cases C-397/01 to C-403/01 Pfeiffer and Others
[2004] ECR I-8835, paragraphs 115, 118 and 119, and Case C-12/08 Mono Car Styling
[2009] ECR I‑6653, paragraph 62.
(24)  –	See Kracht, H., and Wasielewski, A., in Rengeling, H.-W., (ed.), Handbuch zum europäischen und deutschen Umweltrecht, Volume I, Cologne, 2nd edition 2003, § 35, paragraph 34, and Albrecht, J., Umweltqualitätsziele im Gewässerschutzrecht, Berlin 2007, p. 43.
(25)  –	See Kracht and Wasielewski (cited in footnote 24) and Albrecht (cited in footnote 24), p. 292 et seq.
(26)  –	See Kracht and Wasielewski (cited in footnote 24), and Albrecht (cited in footnote 24), pp. 44, 52 and 53.
(27)  –	See Albrecht (cited in footnote 24), p. 52 et seq.
(28)  –	OJ 2008 L 152, p. 1. In that regard, see the judgments cited in footnote 2.
(29)  –	See Article 4 of the NEC Directive in conjunction with Annex I thereto.
(30)  –	See the first sentence of Article 1 of the IPPC Directive in conjunction with Annex I thereto.
(31)  –	See the second sentence of Article 1, Article 3(1)(a), and the first sentence of Article 9(4) of the IPPC Directive.
(32)  –	As emission limit values have not been set by the European Union institutions pursuant to Article 19(1) of the IPPC Directive, Article 19(2) of the IPPC Directive applies.
(33)  –	‘On the Road to Sustainable Production – Progress in implementing Council Directive 96/61/EC concerning integrated pollution prevention and control’, Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions (COM(2003) 354 final of 19 June 2003).
(34)  –	Commission Communication (cited in footnote 33), heading 10.1.7. ‘National Emission Ceilings Directive’, p. 27.
(35)  –	Case C-129/96 Inter-Environnement Wallonie
[1997] ECR I-7411, paragraph 43.
(36)  –	Inter-Environnement Wallonie
(cited in footnote 35), paragraph 44.
(37)  –	Inter-Environnement Wallonie
(cited in footnote 35), paragraph 45; Case C-14/02 ATRAL
[2003] ECR I-4431, paragraph 58; Case C-316/04 Stichting Zuid-Hollandse Milieufederatie
[2005] ECR I-9759, paragraphs 42 and 44; Case C-144/04 Mangold
[2005] ECR I-9981, paragraph 67; Case C‑138/05 Stichting Zuid-Hollandse Milieufederatie
[2006] ECR I-8339, paragraphs 42 and 48; Case C-422/05 Commission
v Belgium
[2007] ECR I-4749, paragraph 62; Joined Cases C‑378/07 to C-380/07 Angelidaki and Others
[2009] ECR I-3071, paragraph 206; and Joined Cases C‑261/07 and C-299/07 VTB-VAB
[2009] ECR I‑2949, paragraph 38.
(38)  –	See my Opinions in Case C-313/02 Wippel
[2004] ECR I-9483, point 60; in Case C‑117/03 Dragaggi and Others
[2005] ECR I-167, point 26; in Case C-212/04 Adeneler and Others
[2006] ECR I-6057, point 48; in Case C-268/06 Impact
[2008] ECR I-2483, point 127; and in Angelidaki and Others
(cited in footnote 37), point 73.
(39)  –	See the case-law cited in footnote 37.
(40)  –	See, in particular, Adeneler and Others
(cited in footnote 38), paragraphs 121 and 122; Angelidaki and Others
(cited in footnote 37), paragraphs 206 and 207; and VTB-VAB
(cited in footnote 37), paragraphs 38 and 39.
(41)  –	Adeneler and Others
(cited in footnote 38), paragraphs 122 and 123, and VTB-VAB, cited in footnote 37, paragraph 38.
(42)  –	See both Stichting Zuid-Hollandse Milieufederatie
judgments, cited in footnote 37, paragraph 42 of the respective judgments.
(43)  –	Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7).
(44)  –	Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (OJ 1991 L 230, p. 1).
(45)  –	See Case C‑138/05 Stichting Zuid-Hollandse Milieufederatie
(cited in footnote 37), paragraph 44 et seq.
(46)  –	Dragaggi and Others
(cited in footnote 38), paragraph 29; Case C‑244/05 Bund Naturschutz in Bayern and Others
[2006] ECR I-8445, paragraph 44; Case C-226/08 Stadt Papenburg
[2010] ECR I-0000, paragraph 49; and Case C-308/08 Commission
v Spain
[2010] ECR I-0000, paragraph 21.
(47)  –	On Article 16(1) of Directive 98/8 see Case C-316/04 Stichting Zuid-Hollandse Milieufederatie
(cited in footnote 37), paragraph 15, and Case C-138/05 Stichting Zuid-Hollandse Milieufederatie
(cited in footnote 37), paragraph 12, and on Article 18(2) of Directive 2000/78 see Mangold
(cited in footnote 37), paragraphs 71 and 72.
(48)  –	In that regard, it relies on Commission
v Austria
(cited in footnote 2), paragraph 80.
(49)  –	See Case 26/62 Van Gend & Loos
[1963] ECR 1, 13.
(50)  –	See also recitals 1 and 5 in the preamble to the NEC Directive and Article 5(b).
(51)  –	See Case C-138/05 Stichting Zuid-Hollandse Milieufederatie, cited in footnote 37, paragraphs 43 and 44.
(52)  –	Case C-72/95 Kraaijeveld and Others
[1996] ECR I-5403, paragraph 61; Case C‑365/98 Brinkmann
[2000] ECR I-4619, paragraph 32; and Janecek
(cited in footnote 2), paragraph 46.
(53)  –	See Case 30/72 Commission
v Italy
[1973] ECR 161, paragraph 11; Case C-217/88 Commission
v Germany
[1990] ECR I-2879, paragraph 26; and Case C-87/02 Commission
v Italy
[2004] ECR I-5975, paragraph 38.
(54)  –	By way of example, see, on interference with protection areas for birds, Case C‑57/89 Commission
v Germany
(Leybucht) [1991] ECR I-883, paragraph 21 et seq., and, on species protection, my Opinion in Case C‑342/05 Commission
v Finland
(hunting of wolves) [2007] ECR I-4713, point 52 et seq.
(55)  –	See in particular recitals 2 and 9 in the preamble to the IPPC Directive and Articles 1, 2(2), 3(1)(a) and (b) and 9(4).
(56)  –	See in particular recitals 9 and 30 in the preamble to the IPPC Directive and Articles 1, Article 2(5) and (6), 9(3) and (4) and 19.
(57)  –	See recital 29 in the preamble to the IPPC Directive and Article 2(3).
(58)  –	See above, point 25.
(59)  –	Janecek
(cited in footnote 2), paragraph 37; Case C-435/97 WWF and Others
[1999] ECR I‑5613, paragraph 69; Kraaijeveld and Others
(cited in footnote 52), paragraph 56; and Case 51/76 Verbond van Nederlandse Ondernemingen
[1977] ECR 113, paragraphs 20 to 29.
(60)  –	Janecek
(cited in footnote 2), paragraph 37.
(61)  –	Case 8/81 Becker
[1982] ECR 53, paragraph 25; Case C-62/00 Marks & Spencer
[2002] ECR I‑6325, paragraph 25; Pfeiffer and Others
(cited in footnote 23), paragraph 103; Case C-138/07 Cobelfret
[2009] ECR I-731, paragraph 58; and Janecek
(cited in footnote 2), paragraph 36.
(62)  –	See, to this effect, Janecek
(cited in footnote 2), paragraph 39.
(63)  –	Janecek
(cited in footnote 2), paragraph 39.
(64)  –	It is to be assumed that cases which are pending, namely Case C-115/09 Trianel
(notified in OJ 2009 C 141, p. 26; see also the Opinion delivered today by Advocate General Sharpston) and Joined Cases C-128/09 to C-131/09, C-134/09 and C-135/09 Boxus and Others
(notified in OJ 2009 C 153, p. 18 et seq.), will contribute to the interpretation of those requirements.
(65)  –	Case 152/84 Marshall
[1986] ECR 723, paragraph 48; Case C-91/92 Faccini Dori
[1994] ECR I-3325, paragraph 20; and Case C-555/07 Kücükdeveci
[2010] ECR I‑0000, paragraph 46.
(66)  –	Pfeiffer and Others
(cited in footnote 23), paragraph 110 et seq., and Kücükdeveci, cited in footnote 65, paragraph 45 et seq.
(67)  –	Case C-201/02 Wells
[2004] ECR I-723, paragraph 57, and Joined Cases C-152/07 to C-154/07 Arcor
[2008] ECR I-5959, paragraph 36.
(68)  –	See above, point 80 et seq.
(69)  –	See above, point 120 et seq.