JUDGMENT OF THE COURT (Seventh Chamber)

11 April 2013 ( )

(Failure of a Member State to fulfil obligations – Environment – Directive 2008/1/EC – Article 5 – Integrated pollution prevention and control – Conditions governing the granting of permits for existing installations – Obligation to ensure that such installations operate in accordance with the requirements of that directive)

In Case C‑158/12,

ACTION under Article 258 TFEU for failure to fulfil obligations, brought on 30 March 2012,

European Commission, represented by S. Petrova and K. Mifsud-Bonnici, acting as Agents, with an address for service in Luxembourg (Luxembourg),

applicant,

v

Ireland, represented by E. Creedon, acting as Agent,

defendant,

THE COURT (Seventh Chamber),

composed of G. Arestis, President of the Chamber, J.‑C. Bonichot and J.L. da Cruz Vilaça (Rapporteur), Judges,

Advocate General: P. Cruz Villalón,

Registrar: A. Calot Escobar,

having regard to the written procedure,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 By its application, the European Commission asks the Court to declare that, by not issuing permits in accordance with Articles 6 and 8 of Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control (OJ 2008 L 24, p. 8; ‘the IPPC Directive’) or, as appropriate, by not reconsidering and, where necessary, by not updating permit conditions, in respect of 13 existing pig-rearing and poultry-rearing installations, and by thereby failing to ensure that all existing installations operate in accordance with Articles 3, 7, 9, 10, 13, 14(a) and (b) and 15(2) of that directive by not later than 30 October 2007, Ireland has failed to fulfil its obligations under Article 5(1) of that directive.

Legal context

2 As is apparent from recital 1 in the preamble to the IPPC Directive, Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control (OJ 1996 L 257, p. 26) was codified by the IPPC Directive, after being amended several times.

3 The purpose of Directive 96/61 was to achieve integrated prevention and control of pollution arising from the industrial activities listed in Annex I thereto.

4 In accordance with Article 5(1) of Directive 96/61, Member States were required to take the necessary measures to ensure that the competent authorities would see to it, by means of permits issued in accordance with Articles 6 and 8 of that directive or, as appropriate, by reconsidering and, where necessary, by updating the conditions, that existing installations operate in accordance with the requirements of Articles 3, 7, 9, 10, 13, the first and second indents of Article 14, and Article 15(2) thereof not later than eight years after the date on which that directive was brought into effect, that is to say, by 30 October 2007.

5 According to recital 13 in the preamble to the IPPC Directive, some of the provisions adopted pursuant to that directive had to be applied to existing installations after 30 October 2007 and others had to be applied as from 30 October 1999.

6 Article 1 of the IPPC Directive provides:

‘The purpose of this Directive is to achieve integrated prevention and control of pollution arising from the activities listed in Annex I. It lays down measures designed to prevent or, where that is not practicable, to reduce emissions in the air, water and land from the abovementioned activities, including measures concerning waste, in order to achieve a high level of protection of the environment taken as a whole, without prejudice to Directive 85/337/EEC and other relevant Community provisions.’

7 Article 2 of the IPPC Directive, entitled ‘Definitions’, is worded as follows:

‘For the purposes of this Directive the following definitions shall apply: …

4. “existing installation” means an installation which on 30 October 1999, in accordance with legislation existing before that date, was in operation or was authorised or, in the view of the competent authority, was the subject of a full request for authorisation, provided that that installation was put into operation no later than 30 October 2000;

...’.

8 Article 5(1) of the IPPC Directive is worded as follows:

‘Member States shall take the necessary measures to ensure that the competent authorities see to it, by means of permits in accordance with Articles 6 and 8 or, as appropriate, by reconsidering and, where necessary, by updating the conditions, that existing installations operate in accordance with the requirements of Articles 3, 7, 9, 10 and 13, Article 14(a) and (b) and Article 15(2) not later than 30 October 2007, without prejudice to specific Community legislation.’

9 Articles 3, 6, 7, 9, 10 and 13 to 15 of the IPPC Directive establish the general principles applicable to the basic obligations of the operator and govern applications for permits, an integrated approach to issuing permits, conditions of the permit, best available techniques and environmental quality standards, the reconsideration and updating of permit conditions by the competent authority, compliance with those permit conditions, and access to information and public participation in the permit procedure.

Background to the dispute and the pre-litigation procedure

10 Prior to the deadline of 30 October 2007, the Commission, at several meetings of the group of experts on integrated pollution prevention and control, drew the attention of all Member States to the need to comply with that deadline set in Article 5(1) of the IPPC Directive with respect to the authorisation and operation of existing installations.

11 By letter of 13 November 2007 the Commission requested all the Member States to provide it with information on the total number of existing installations and on the number of new, reconsidered and, where appropriate, updated permits for existing installations.

12 In their reply of 30 January 2008 the Irish authorities indicated that, in relation to the pig-rearing sector, 71 of the 89 installations had permits that had not been brought into line with the requirements of the IPPC Directive. In the poultry sector 122 installations had yet to submit an application for a permit.

13 By letter of formal notice of 27 November 2008 the Commission called on Ireland to identify the name, sector and location of each of the existing installations for which a permit had been granted, and of those still operating without a permit.

14 The Irish authorities replied by letter of 29 January 2009, stating, inter alia, that the Irish Environmental Protection Agency (‘EPA’) had drawn up a list of 41 installations – 27 poultry-rearing installations and 14 pig-rearing installations – that it considered might be operating above the threshold at which a permit was required and which therefore required such a permit.

15 After having received further information from Ireland, and taking the view that 41 existing Irish installations were still operating without a permit, in breach of Article 5(1) of the IPPC Directive, the Commission sent a reasoned opinion to Ireland on 24 November 2010.

16 Ireland replied to the reasoned opinion by letter of 24 January 2011. It explained that, in respect of the 41 installations recorded by the EPA, some permits had already been issued and several applications for rearing permits had been submitted, and that it appeared, on examination, that other installations did not require permits.

17 Subsequently, the Irish authorities regularly sent the Commission new information on developments; the latest, updated on 12 January 2012, was sent to the Commission by letter of 7 February 2012.

18 In the light of that information, the Commission found that 13 pig- and poultry-rearing installations were continuing to operate in Ireland without valid permits, and consequently brought the present action.

The action

19 The Commission claims that Ireland has infringed Article 5(1) of the IPPC Directive in so far as 13 existing installations still do not have permits. Furthermore, Ireland has not taken any measures to prevent those 13 installations from operating without a valid permit within the terms of that provision.

20 In its defence, Ireland essentially confines itself to pointing out the efforts undertaken by the EPA to ensure that operators of all the intensive pig- and poultry-rearing installations concerned are informed of their legal obligation to obtain a permit as provided by the IPPC Directive.

21 Ireland states that, as a result of those efforts, only 3 installations out of the 13 referred to in the Commission’s application are still being assessed with a view to the issuing of permits under the IPPC Directive.

22 As is apparent from Article 1 of the IPPC Directive, the European Union legislature has imposed on the Member States obligations which include those laid down in Article 5(1) of that directive, in order that a high level of protection of the environment, taken as a whole, might be achieved. It follows from this that it is only if the Member States carry out the obligations imposed on them by that directive fully and in accordance with that directive that the objective of protection may be achieved (see, inter alia, judgment of 24 May 2012 in Case C‑352/11 Commission v Austria, paragraph 11).

23 Furthermore, according to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in that Member State at the end of the period laid down in the reasoned opinion, and the Court cannot take account of any subsequent changes (see, inter alia, Case C‑286/12 Commission v Hungary [2012] ECR I‑0000, paragraph 41).

24 In the present case, Ireland does not dispute that, at the end of the period prescribed in the reasoned opinion, the measures required in order to ensure that the installations concerned would be brought into line with the provisions referred to in Article 5 of the IPPC Directive, as well as the measures to ensure compliance with Article 5, had not been taken.

25 That being the case, the Commission’s application must be granted.

26 Consequently, it must be held that, by not issuing permits in accordance with Articles 6 and 8 of the IPPC Directive or, as appropriate, by not reconsidering and, where necessary, by not updating permit conditions, in respect of 13 existing pig-rearing and poultry-rearing installations, and by thereby failing to ensure that all existing installations operate in accordance with Articles 3, 7, 9, 10, 13, 14(a) and (b) and 15(2) of that directive by not later than 30 October 2007, Ireland has failed to fulfil its obligations under Article 5(1) of that directive.

Costs

27 Under Article 138 of the Rules of Procedure of the Court of Justice, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for Ireland to be ordered to pay the costs, and since the latter has been unsuccessful, Ireland must be ordered to pay the costs.

On those grounds, the Court (Seventh Chamber) hereby:

1. Declares that, by not issuing permits in accordance with Articles 6 and 8 of Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control or, as appropriate, by not reconsidering and, where necessary, by not updating permit conditions, in respect of 13 existing pig-rearing and poultry-rearing installations, and by thereby failing to ensure that all existing installations operate in accordance with Articles 3, 7, 9, 10, 13, 14(a) and (b) and 15(2) of that directive by not later than 30 October 2007, Ireland has failed to fulfil its obligations under Article 5(1) of that directive;

2. Orders Ireland to pay the costs.

[Signatures]