62018CJ0261_RES
Case C‑261/18
European Commission
v
Ireland
Judgment of the Court (Grand Chamber), 12 November 2019
(Failure of a Member State to fulfil obligations — Judgment of the Court establishing a failure to fulfil obligations — Non-compliance — Directive 85/337/EEC — Consent for, and construction of, a wind farm — Project likely to have significant effects on the environment — Absence of a prior environmental impact assessment — Obligation to regularise — Article 260(2) TFEU — Application for an order to pay a penalty payment and a lump sum)
Environment — Assessment of the effects of certain projects on the environment — Directive 85/337 — Obligation of the competent authorities to carry out an assessment prior to granting consent — Failure to carry out an assessment — Obligation of the authorities to remedy that failure — Scope — Assessment carried out for regularisation purposes after the plant concerned has been constructed and has entered into operation — Whether permissible — Conditions
(Art. 4(3) TEU; Council Directive 85/337, as amended by Directive 97/11, Arts 2(1) and 4(1) and (2))
(see paragraphs 72-78)
Environment — Assessment of the effects of certain projects on the environment — Directive 85/337 — Obligation of the competent authorities to carry out an assessment prior to granting consent — Failure to carry out an assessment — Obligation of the authorities to remedy that failure — Scope — Lack of a subsequent assessment — Infringement
(Council Directive 85/337, as amended by Directive 97/11, Arts 2(1) and 4)
(see paragraphs 79-84)
Member States — Obligations — Implementation of directives — Failure to fulfil obligations — National system pleaded as justification — Not permissible
(Art. 258 TFEU)
(see paragraphs 89-91)
Member States — Obligations — Failure to fulfil obligations — Justification — Principle of the protection of legitimate expectations — Reliance on the principle by a Member State to preclude a finding of failure to fulfil obligations — Not permissible
(Art. 258 TFEU)
(see paragraphs 92, 93)
Actions for failure to fulfil obligations — Judgment of the Court establishing a failure to fulfil obligations — Breach of the obligation to comply with the judgment — Pecuniary penalties — Lump sum — Calculation of the amount — Criteria — Gravity and duration of the infringement — Failure to comply with a judgment concerning an environmental impact assessment
(Art. 260(2) TFEU; Council Directive 85/337, as amended by Directive 97/11)
(see paragraphs 115-123)
Actions for failure to fulfil obligations — Judgment of the Court establishing a failure to fulfil obligations — Breach of the obligation to comply with the judgment — Pecuniary penalties — Lump sum — Calculation of the amount — Criteria — Ability to pay — Date of assessment
(Art. 260(2) TFEU)
(see paragraph 124)
Actions for failure to fulfil obligations — Judgment of the Court establishing a failure to fulfil obligations — Breach of the obligation to comply with the judgment — Pecuniary penalties — Periodic penalty payment — Determination of the form to be taken and of the amount — Discretion of the Court — Criteria
(Art. 260(2) TFEU)
(see paragraphs 131-135)
Résumé
Ireland is ordered to pay pecuniary penalties for failing to comply with an earlier judgment of the Court which required, in particular, that an environmental assessment be carried out in respect of a wind farm
In the judgment European Commission v Ireland (C‑261/18), delivered on 12 November 2019, the Grand Chamber of the Court imposed pecuniary penalties on Ireland for failing to give concrete effect to the judgment of 3 July 2008, Commission v Ireland, (
1
) in so far as the Court had held in that judgment that Ireland had infringed Directive 85/337 (
2
) as a result of the construction of a wind farm at Derrybrien (Ireland) without a prior environmental impact assessment having been carried out.
Following the delivery of the 2008 judgment, Ireland had introduced a regularisation procedure by which it sought to enable the operator of the Derrybrien wind farm (‘the wind farm’) to comply with the requirements of Directive 85/337. However, since the wind farm operator had not undergone that procedure and nor had that procedure been initiated by the Irish authorities of their own initiative, the Commission brought a second action for failure to fulfil obligations before the Court.
First of all, the Court examined the Member States’ obligations when a project has been authorised in breach of the obligation to carry out a prior environmental impact assessment under Directive 85/337. The Court pointed out that Member States are required, in accordance with the principle of sincere cooperation, to take all measures necessary to remedy the failure to carry out an environmental impact assessment. They are, in particular, under an obligation to carry out an assessment for regularisation purposes, and this also after a plant has entered into operation. Such an assessment must take into account not only the future impact of the plant at issue, but also the environmental impact from the time of its completion. The assessment may result in the consents which were granted in breach of the obligation to carry out a prior assessment being amended or withdrawn.
Notwithstanding the legislative reform introducing a regularisation procedure, Ireland had failed to carry out a new environmental impact assessment of the wind farm, thereby failing to have regard to the authority attaching to the 2008 judgment.
Next, the Court rejected the different arguments put forward by Ireland to justify itself. First, Ireland cannot rely on national provisions limiting the possibilities of commencing the regularisation procedure introduced in order to ensure that that 2008 judgment was complied with. In that context, the Court pointed out that the national authorities were required to remedy the failure to carry out an impact assessment and that the obligations stemming from Directive 85/337 also applied to the wind farm’s operator, since it was controlled by Ireland. Secondly, although the consents for the construction of the wind farm at Derrybrien have become final, Ireland cannot rely on legal certainty and legitimate expectations derived by the wind farm’s operator from acquired rights, in order to avoid the consequences stemming from the objective finding that there was a failure to fulfil obligations under Directive 85/337. In that regard, the Court stated that projects in respect of which the consent can no longer be subject to challenge before the courts cannot be purely and simply deemed to be lawfully authorised as regards the obligation to assess their effects on the environment.
In the light of the seriousness and duration of the failure to fulfil obligations, with more than 11 years having elapsed since the 2008 judgment without the measures necessary to comply with that judgment having been adopted, and having regard to Ireland’s ability to pay, the Court ordered Ireland to pay the European Commission a lump sum of EUR 5000000, and also a periodic penalty payment of EUR 15000 per day from the date of delivery of the judgment in the present case until the date of compliance with the 2008 judgment.
(
1
)	Judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380).
(
2
)	Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40).