Case C‑137/14

European Commission

v

Federal Republic of Germany

‛Failure of a Member State to fulfil obligations — Directive 2011/92/EU — Assessment of the effects of certain public and private projects on the environment — Article 11 — Directive 2010/75/EU — Industrial emissions (integrated pollution prevention and control) — Article 25 — Access to justice — Non-compliant national procedural rules’

Summary — Judgment of the Court (Second Chamber), 15 October 2015

Environment — Assessment of the effects of certain projects on the environment — Directive 2011/92 — Atmospheric pollution — Directive 2010/75 — Right of action of non-governmental environmental protection organisations — Temporal application — Immediate application to permits issued after the expiry date for transposition of Directive 2003/35 — National rules restricting the interest in bringing proceedings and the scope of the judicial review in proceedings brought after that date — Failure to fulfil obligations

Environment — Assessment of the effects of certain projects on the environment — Directive 2011/92 — Atmospheric pollution — Directive 2010/75 — Right of action of non-governmental environmental protection organisations — Scope — National rules refusing that right to those organisations with regard to the infringement of rules protecting only the interests of the general public — Unlawful — Direct effect of the provisions of the directive providing for that right

Environment — Assessment of the effects of certain projects on the environment — Directive 2011/92 — Atmospheric pollution — Directive 2010/75 — Right of action of the members of the public concerned — National rules restricting the interest in bringing proceedings and the scope of the judicial review to objections already filed within the time limit set in the administrative procedure — Failure to fulfil obligations

Environment — Assessment of the effects of certain projects on the environment — Directive 2011/92 — Right of action of the members of the public concerned — Admissibility criteria — Infringement of a right — National rules requiring a causal link between the procedural defect alleged and the tenor of the disputed final decision — Restriction of the judicial review as to the substance — Failure to fulfil obligations

Environment — Assessment of the effects of certain projects on the environment — Directive 2011/92 — Right of action of the members of the public concerned — National rules restricting that right to objections based on a failure to carry out an environmental impact assessment and excluding it where the assessment was carried out but was irregular — Failure to fulfil obligations

Environment — Assessment of the effects of certain projects on the environment — Directive 2011/92 — Atmospheric pollution — Directive 2010/75 — Right of action of the members of the public concerned — National rules making the annulment of unlawful administrative acts subject to the infringement of a subjective right of the applicant — Compatibility

See the text of the decision. (see paras 21-23)

In so far as, in accordance with Article 11 of Directive 2011/92 on the assessment of the effects of certain public and private projects on the environment and Article 25 of Directive 2010/75 on industrial emissions (integrated pollution prevention and control), the members of the public concerned must be able to bring court proceedings to challenge the substantive or procedural legality of decisions, acts or omissions under those directives, a national provision of a Member State under which the annulment of an unlawful administrative act requires that the unlawfulness found by the court must involve an infringement of an individual public-law right of the applicant cannot be regarded as incompatible with those provisions of the directives. If the Member States can, pursuant to the abovementioned provisions of Directives 2011/92 and 2010/75, make the admissibility of actions brought by individuals against the decisions, acts or omissions which fall within the scope thereof subject to conditions such as the requirement of impairment of an individual public-law right, those States are also authorised to provide that the annulment of an administrative decision by the court having jurisdiction requires the infringement of an individual public-law right of the applicant. In that regard, the national legislature is entitled, inter alia, to confine to individual public-law rights the rights whose infringement may be relied on by an individual in legal proceedings contesting one of the decisions, acts or omissions referred to in Article 11 of Directive 2011/92. Such a limitation cannot, however, be applied as such to environmental protection organisations. (see paras 28, 29, 32-34, 63-65)

Article 11 of Directive 2011/92 on the assessment of the effects of certain public and private projects on the environment precludes the Member States from limiting the applicability of the provisions transposing that article to cases in which the legality of a decision is challenged on the ground that no environmental impact assessment was carried out, while not extending that applicability to cases in which such an assessment was carried out but was irregular. In consequence, a national transposing provision under which an administrative authorisation can be annulled only if it was not granted on the basis of a procedurally correct environmental impact assessment or pre-assessment must be regarded as incompatible with Article 11 thereof. In that regard, the fact that another national provision provides that, where an environmental impact assessment or pre-assessment has been carried out but is vitiated by a procedural defect, it is possible to bring legal proceedings, itself laying down restrictions on the bringing of actions covered by Article 11 of Directive 2011/92, cannot remove that incompatibility. The Member State issuing those provisions does not fulfil its obligation to implement provisions of the directive with unquestionable binding force and with the specificity, precision and clarity necessary to satisfy the requirements of legal certainty. (see paras 36, 49-52)

By restricting the annulment of decisions on the ground of procedural defect to where there has been no environmental impact assessment or pre-assessment and to cases where the applicant establishes that there is a causal link between the procedural defect and the outcome of the decision, a Member State fails to fulfil its obligations under Article 11 of Directive 2011/92 on the assessment of the effects of certain public and private projects on the environment. Such a restriction makes it excessively difficult to exercise the right to bring proceedings provided for in Article 11 of that directive and undermines the objective of that directive which seeks to provide ‘members of the public concerned’ with a broad access to justice. To refuse annulment of an administrative decision adopted in breach of a procedural rule on the sole ground that the applicant is unable to establish the effect that defect has on the merits of that decision renders that provision of EU law totally ineffective, having regard in particular to the complexity of the procedures in question or the technical nature of environmental impact assessments. Thus the impairment of a right, for the purposes of Article 11 of Directive 2011/92, cannot be excluded unless the court of law or body covered by that article is in a position to take the view, without in any way making the burden of proof of causality fall on the applicant, but by relying, where appropriate, on the evidence provided by the developer or the competent authorities and, more generally, on the case-file documents submitted to that court or body, that the contested decision would not have been different without the procedural defect invoked by that applicant. Finally, although it is true that those considerations relate to just one of the conditions for admissibility of legal proceedings, they remain relevant to any condition laid down by the national legislature which has the effect of restricting the review of the courts of the substance of the case. (see paras 56, 57, 59-61, 104, operative part 1)

Article 11 of Directive 2011/92 on the assessment of the effects of certain public and private projects on the environment and Article 25 of Directive 2010/75 on industrial emissions (integrated pollution prevention and control) preclude restriction of the standing to bring proceedings and the scope of the review by the courts to the objections which have already been raised within the time limit set during the administrative procedure which led to the adoption of the decision which is the subject matter of the action. In that regard, although neither Article 11 of Directive 2011/92 or Article 25 of Directive 2010/75 excludes an action before an administrative authority preceding the legal proceedings and does not prevent national law from requiring the applicant to exhaust all administrative review procedures before being authorised to bring legal proceedings, those provisions of EU law do not, however, allow restrictions on the pleas in law which may be raised in support of legal proceedings. Furthermore, such a restriction laid on the applicant as to the nature of the pleas in law which he is permitted to raise before the court reviewing the legality of the administrative decision which concerns him cannot be justified by considerations of compliance with the principle of legal certainty. Moreover, as regards the argument concerning the efficiency of administrative procedures, although it is true that the fact of raising a plea in law for the first time in legal proceedings may, in certain cases, hinder the smooth running of that procedure, it is sufficient to recall that the very objective pursued by Article 11 of Directive 2011/92 and Article 25 of Directive 2010/75 is not only to ensure that the litigant has the broadest possible access to review by the courts but also to ensure that that review covers both the substantive and procedural legality of the contested decision in its entirety. Nonetheless, the national legislature may lay down specific procedural rules, such as the inadmissibility of an argument submitted abusively or in bad faith, which constitute appropriate mechanisms for ensuring the efficiency of the legal proceedings. (see paras 76, 79-81, 104, operative part 1)

See the text of the decision. (see paras 90-92)