Opinion of Mr Advocate General Mischo delivered on 12 March 1998. - Commission of the European Communities v Federal Republic of Germany. - Failure of a Member State to fulfil its obligations - Incorrect transposition of Directive 85/337/EEC. - Case C-301/95.



European Court reports 1998 Page I-06135



Opinion of the Advocate-General

1 The Commission of the European Communities has brought an action under the second paragraph of Article 169 of the EC Treaty seeking a declaration that the Federal Republic of Germany has failed to fulfil its obligations under Articles 5 and 189 of that Treaty, read in conjunction with Council Directive 85/377/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (1) (hereinafter `the Directive'), and in particular Articles 2, 3, 5(2), 6(2), 8, 9 and 12(1) and (2) thereof.

2 The Court has already had cause to examine those provisions on a number of occasions. (2)

3 The Directive was transposed in Germany by the Gesetz über die Umweltverträglichkeitsprüfung (Environmental Impact Assessment Law, hereinafter `the UVPG') of 12 February 1990, which came into force on 1 August 1990. (3)

4 The Commission considers that, in connection with that transposition, there are five points on which the defendant has failed to fulfil its obligations under the Treaty and the Directive. In its application, the Commission had raised a sixth head of claim concerning implementation of two specific projects. However, since the Federal Republic of Germany has provided the Commission with sufficient evidence that the consent applications for those two projects were commenced before the time-limit for transposition of the Directive expired, the Commission withdrew that head of claim in its reply.

5 I would like to start by pointing out that the Court has consistently held (4) that if a Member State has failed to fulfil its specific obligations under a Directive, no purpose is served by considering whether in so doing it has also failed to fulfil its obligations under Article 5 of the Treaty.

First and third heads of claim: delay in transposition of the Directive and failure to apply it to all projects for which consent was given after 3 July 1988

6 I propose to deal with the first and third heads of claim together as they both concern the question whether it is justified for the Court to rule again on failures to fulfil obligations which it has already found in the grounds, but not in the operative part, of previous judgments.

7 In its first head of claim, the Commission alleges that the German Government failed to adopt, within the prescribed period, the measures necessary to comply with the Directive. The UVPG did not enter into force until 1 August 1990, whereas the time-limit for transposition laid down in Article 12(1) of the Directive expired on 3 July 1988.

8 The German Government points out that the Court, in its Bund Naturschutz in Bayern judgment, cited above, had already found that the Directive had been belatedly transposed in Germany, and submits that `there is no point in the German Government restating its position on the matter'.

9 In the Commission's opinion, a formal declaration that the Federal Republic of Germany has failed to fulfil its obligations is needed, as the aforementioned judgment was given in response to a reference for a preliminary ruling.

10 The Commission's third head of claim relates to the transitional provision contained in Paragraph 22 of the UVPG. Under that paragraph, procedures already initiated are to be subject to environmental impact assessment only if they have not been published by the date of entry into force of the UVPG. Thus, consent procedures initiated in Germany before 1 August 1990 but after 3 July 1988, the deadline for transposition of the Directive, would not have been subject to environmental impact assessment in accordance with the Directive.

11 The German Government points out that it is clear from the abovementioned judgments in Bund Naturschutz in Bayern and Commission v Germany, which was an action for failure to fulfil obligations, that the Federal Republic of Germany was not permitted to introduce the derogating provision of Paragraph 22 of the UVPG for projects in respect of which the consent procedure had been initiated after 3 July 1988. There is therefore no justification for the Court to rule again on the same point of law.

12 The Commission contends that the Court did not expressly declare that there had been an infringement of the Treaty by the Federal Republic of Germany in the operative part of the two judgments in question.

13 I propose that the Court deal with the matter as requested by the Commission. As the Commission rightly points out, the judgment in Bund Naturschutz in Bayern was given in the context of a reference for a preliminary ruling. The purpose of the reference for a preliminary ruling was to provide the referring court with an interpretation of Article 12(1) of the Directive and not to establish a possible failure to fulfil obligations on the part of the Federal Republic of Germany.

14 Likewise, in Commission v Germany, the Court did not formally find, in the operative part of the judgment, that there had been a failure to fulfil obligations arising from the adoption of Paragraph 22 of the UVPG, since it dismissed the Commission's application which related to one specific project only.

15 I would simply point out, in this regard, that the Court has always recognised that the Commission has discretion to decide whether to bring an action against a Member State for failure to fulfil its obligations.

16 Generally, a formal declaration of a failure to fulfil obligations is also a precondition for initiation, where appropriate, of the procedure under Article 171 of the EC Treaty. It is also of vital importance in respect of any claim for damages that a private individual might bring against a Member State.

17 I therefore suggest that the Court formally declare that,

- by failing to take the necessary measures to comply with the Directive within the prescribed period, and

- by failing to provide for an environmental impact assessment to be carried out for all projects in respect of which such an assessment is required under the Directive and for which the development consent procedure was commenced after 3 July 1988,

the Federal Republic of Germany has failed to fulfil its obligations under the third paragraph of Article 189 of the Treaty and Article 12(1) of the Directive.

Second head of claim: failure to communicate all the provisions adopted in the field covered by the Directive

18 Article 12(2) of the Directive provides:

`Member States shall communicate to the Commission the texts of the provisions of national law which they adopt in the field covered by this Directive.'

19 The Commission interprets this provision to mean that the government is obliged to notify not only the texts adopted at federal level, but also the provisions applicable in the Länder in the field covered by the Directive.

20 The German Government counters, first, that neither Article 12(2) of the Directive nor any other provision of Community law obliges it to communicate to the Commission all the measures it has taken to comply with the Directive.

21 Second, the Federal Republic of Germany refers to Paragraph 4 of the UVPG which, it contends, ensures that the Directive is correctly applied throughout the national territory.

22 Paragraph 4 states that the UVPG is to be applicable only if provisions of the Bund or Länder do not define the obligation concerning environmental impact assessment in greater detail or if their requirements do not match those of the UVPG. Provisions containing more stringent requirements are unaffected by the law.

23 The wording of Paragraph 4 appears to be attributable to a legislative technique designed to avoid the federal legislature having to amend the substance of numerous specific laws.

24 The German Government's argument is that transmission of the UVPG allowed the Commission to verify application of the Directive in Germany. Paragraph 4 of the UVPG merely gives formal primacy to the specific provisions and itself retains precedence as regards substance. Wherever specific provisions at federal or Länder level provide for environmental impact assessments to be carried out, they should be applied in so far as they lay down, by way of re-enactment or declaration, rules concerning environmental impact assessment in a manner consistent with the UVPG. If the provisions fall short of the substantive rules enacted by the UVPG, then the latter are directly applicable. Therefore the UVPG, whose provisions have a higher legal status, ensures that the requirements of the Directive have been fully met.

25 The Commission points out that the defendant therefore does not contest that the provisions of the Länder are legal provisions that have been adopted in the field covered by the Directive. In any event, they are provisions adopted by a Member State that the German Government is responsible for communicating to the Commission. The question of the rank of federal legislation in relation to that of the Länder could be important when assessing whether the Directive had been correctly transposed in Germany. And the Commission was unable to carry out that substantive check until it had received communication of all the relevant legal provisions.

26 The Commission's argument is convincing. Under Article 155 of the EC Treaty, the Commission's function is to ensure that Community law is applied. Under Article 5, the Member States are required to facilitate the achievement of the Community's tasks.

27 The purpose of the communication obligation under Article 12(2) of the Directive is precisely to allow the Commission to fulfil its role as guardian of Community law. In that respect, it is for the Commission to assess whether the Directive has been correctly implemented in all the Member States.

28 To that end, it is vital for the Commission to have knowledge of the provisions applicable in a Member State in the field covered by a Directive.

29 There may, in fact, be situations where the authorities of the Bund or Länder have not detected any inconsistency with Community law whereas, if the Commission is able to examine all relevant texts, it can draw the Member State's attention to the problem.

30 I therefore propose that the Court find that, by not communicating to the Commission the texts of all domestic legal provisions adopted in the field covered by the Directive, the Federal Republic of Germany has failed to fulfil its obligations under Article 12(2) of the Directive.

Fourth head of claim: incomplete transposition of Article 2 of the Directive in relation to the projects listed in Annex II thereto

31 Article 2(1) of the Directive reads as follows:

`Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue inter alia of their nature, size or location are made subject to an assessment with regard to their effects.

These projects are defined in Article 4.'

32 Article 4 reads as follows:

`1. Subject to Article 2(3), projects of the classes listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

2. Projects of the classes listed in Annex II shall be made subject to an assessment, in accordance with Articles 5 to 10, where Member States consider that their characteristics so require.

To this end Member States may inter alia specify certain types of projects as being subject to an assessment or may establish the criteria and/or thresholds necessary to determine which of the projects of the classes listed in Annex II are to be subject to an assessment in accordance with Articles 5 to 10.'

33 The Federal Republic of Germany availed itself of its right under Article 4(2) of the Directive, in conjunction with Annex II thereto, to define certain projects in Paragraph 3 of the UVPG and in the Annex thereto and to subject them to the obligation to carry out an environmental impact assessment.

34 The Commission argues that the Annexes to the UVPG do not include all the classes of projects listed in Annex II to the Directive. In the opinion of the Commission, all the projects listed in Annex II to the Directive under the various letters of the alphabet that subdivide points 1 to 11 must be considered as `classes' within the meaning of Article 4.

35 The Commission points out that, under Article 2(1) of the Directive, Member States are responsible for ensuring that a competent authority will decide, for all the projects in Annex II, whether, by virtue of their nature, size or location, they are likely to have significant effects on the environment. That decision may be taken in the abstract by defining groups of projects based on certain criteria. However, if that is not the case, it is necessary to ensure that the decision on the likely effects of the projects is made for each of them, on a case-by-case basis, before consent is given.

36 The German Government interprets the concepts of classes and projects differently from the Commission. In its opinion, Annex II to the Directive lists a total of `12 classes of projects' within which there are `specific' projects. Under Article 4(2) of the Directive, each Member State may decide, at its own discretion, which of the specific projects listed under the classes in question has to be subject to the assessment obligation. The UVPG takes account of all the classes of projects in Annex II to the Directive and, within these classes, requires an assessment to be carried out on those projects whose characteristics warrant it in the opinion of the federal legislature.

37 Hence, according to that argument, in no way can it be claimed that, through Paragraph 3 of the UVPG, the Federal Republic of Germany has excluded whole classes of projects, within the meaning of Annex II to the Directive, from the assessment obligation. Rather, it had, within different classes of projects, evaluated specific projects in the light of their characteristics and then determined, under the power of decision conferred on it by Article 4(2) of the Directive, what projects within the 12 classes listed in Annex II were or were not to be subject to the assessment obligation. To that end, the German Government states, it used its discretionary power to set criteria and/or thresholds for certain types of projects in respect of the assessment obligation.

38 So where the Commission and the Federal Republic of Germany differ is in respect of what should be understood by `classes of projects'.

39 To really grasp the problem, I believe it is essential to look at the structure of the two annexes.

40 Annex I is set out as follows:

Title: Projects subject to Article 4(1)

1. Crude-oil refineries...

2. Thermal power stations...

3. Installations solely designed for...

4. Integrated works...

etc.

A total of nine points are listed.

41 Annex II, on the other hand, is structured as follows:

Title: Projects subject to Article 4(2)

1. Agriculture

(a) Projects for the restructuring of rural land holdings

(b) Projects for the use of uncultivated land...

(c) Water-management projects for agriculture...

(d) Initial afforestation where this may lead to adverse ecological changes...

etc., up to letter (h)

2. Extractive industry

(a) Extraction of peat...

(b) Deep drillings...

(c) Extraction of minerals...

etc., up to letter (m)

3. Energy industry

(a) Industrial installation for the production of electricity...

(b) Industrial installations for carrying gas...

(c) Surface storage of natural gas...

etc., up to letter (j)

The headings continue as follows:

4. Processing of metals

5. Manufacture of glass

6. Chemical industry

7. Food industry

8. Textile, leather, wood and paper industries

9. Rubber industry

10. Infrastructure projects

11. Other projects

12. Modifications to development projects included in Annex I and projects in Annex I undertaken exclusively or mainly for the development and testing of new methods or products and not used for more than one year.

42 With the exception of points 5, 9 and 12, these headings are also subdivided into subheadings, prefixed by letters of the alphabet, in the same way as headings 1, 2 and 3.

43 In order to resolve the dispute between the Federal Republic of Germany and the Commission, we need, in my view, to take as our starting point Article 4(1) which states that: `projects of the classes listed in Annex I shall be made subject to an assessment' and, in Article 4(2), that `projects of the classes listed in Annex II shall be made subject to an assessment ... where...'. (5)

44 It is inconceivable that the concept of `classes' can have a different meaning depending on which of the annexes it appears in.

45 Since in Annex I this concept refers to categories of projects defined according to their nature, such as oil refineries, thermal power stations or integrated works, in Annex II it can only refer to categories of the same type, such as poultry-rearing installations, iron and steel works, etc.

46 The concept of `classes of projects' would no longer be unambiguous in Article 4 of the Directive if, in the context of Annex II, by `classes of projects' was meant the large economic sectors such as agriculture, the extractive industry or the energy industry.

47 This point can be illustrated by an example. Annex I lists the following classes of projects:

`7. Construction of motorways, express roads and lines for long-distance railway traffic and of airports with a basic runway length of 2 100 m or more.

8. Trading ports and also inland waterways and ports for inland-waterway traffic which permit the passage of vessels of over 1 350 tonnes.'

48 In Annex II, the following heading appears under point 10, `Infrastructure projects':

`(d) Construction of roads, harbours, including fishing harbours, and airfields (projects not listed in Annex I).' (6)

49 This juxtaposition shows that points 7 and 8 of Annex I have a counterpart in point 10(d) of Annex II, which lists projects of the same type but on a smaller scale.

50 I do not believe that it can be claimed that the counterpart of points 7 and 8 of Annex I is the whole huge field of infrastructure projects.

51 The German Government's interpretation, if followed, would negate a large part of the Directive's effectiveness.

52 As the Commission rightly submits, the effect of that interpretation would be that a Member State would be entitled to select just one `project' (according to the German interpretation of that concept) from each of the 12 main headings in Annex II, which would reduce it to nothing more than an `à la carte' annex.

53 Thus, a Member State would simply have to define the threshold at which `poultry-rearing installations' (point 1(e) of Annex II) had to be subject to an environmental impact assessment to avoid ever having to subject projects for the `reclamation of land from the sea' (point 1(h) of Annex II) to a similar study.

54 In Commission v Belgium (7) the Court held that, whilst it follows from Article 4(2) of the Directive `that Member States may always specify certain "types" of projects as being subject to assessment or may establish criteria and/or thresholds for determining which projects are to be subject to assessment, it must be emphasised that that power of the Member States is conferred within each of the classes listed in Annex II. This means that the Community legislature itself considered that all the classes of projects listed in Annex II may possibly have significant effects on the environment depending on the characteristics exhibited by those projects at the time when they were drawn up.'

55 In Kraaijeveld, (8) the Court stated that `although the second paragraph of Article 4(2) of the directive confers on Member States a measure of discretion to specify certain types of projects which will be subject to an assessment or to establish the criteria or thresholds applicable, the limits of that discretion are to be found in the obligation set out in Article 2(1) that projects likely, by virtue inter alia of their nature, size or location, to have significant effects on the environment are to be subject to an impact assessment. Thus, ruling on the legislation of a Member State in terms of which certain entire classes of projects included in Annex II were excluded from the obligation of an impact assessment, the Court held in its judgment of 2 May 1996, in Case C-133/94 Commission v Belgium (9) that the criteria and/or the thresholds mentioned in Article 4(2) are designed to facilitate examination of the actual characteristics of any given project (10) in order to determine whether it is subject to the requirement of assessment, not to exempt in advance from that obligation certain whole classes of projects listed in Annex II which may be envisaged as taking place on the territory of a Member State.'

56 Those passages from the Court's case-law would be meaningless if `classes of projects' had to be taken as meaning the 12 main fields of activity identified by arabic numerals and not the more specific categories prefixed by letters of the alphabet.

57 In my view, the Court meant that Member States have the power to decide that within a precise category of projects (or `classes' according to the term used by the Directive) - for instance `pig-rearing installations' - only individual projects exceeding a certain threshold - for instance `pig-rearing installations with 1 400 or more pigs' - or which comply with certain characteristics - for instance `pig-rearing installations, regardless of number of pigs, located within 300 m of a built-up area' - must be subject to an assessment, while installations of the same type that do not comply with one of these criteria are exempt. (11) However, for all the other categories (or classes) of projects in the field of agriculture, for which such criteria have not been laid down, each individual project has to be examined to determine whether or not, on the basis of its specific characteristics, an assessment is required.

58 That interpretation does not conflict with the statement by the Council and the Commission, recorded in the Council minutes, quoted by the German Government, to the effect that under Article 4(2) Member States may also decide that projects falling within classes listed in Annex II are to be subject to a simplified examination or do not need to be subject to an examination. That statement is totally in line with the Commission's argument since, as I see it, `projects' should be understood to mean individual projects presented by a given developer.

59 The Commission's view (with which I agree) has, moreover, unquestionably been confirmed by the new version of Article 4 inserted into Directive 85/337 by Council Directive 97/11/EC of 3 March 1997. (12) Article 4 now reads as follows:

`1. Subject to Article 2(3), projects (13) listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

2. Subject to Article 2(3), for projects (14) listed in Annex II, the Member States shall determine through:

(a) a case-by-case examination,

or

(b) thresholds or criteria set by the Member State

whether the project shall be made subject to an assessment in accordance with Articles 5 to 10.

Member States may decide to apply both procedures referred to in (a) and (b).'

60 The words `projects of the classes listed' in Annex I, and Annex II respectively, are therefore replaced by the words `projects listed' in Annex I, and Annex II respectively.

61 There is thus now no longer any doubt that the reference in respect of Annex II is to the categories of projects listed by letters of the alphabet and not to the major headings such as agriculture, the extractive industry, etc.

62 Furthermore, the new wording also confirms the Commission's contention that all projects must be subject to a case-by-case examination, provided that they do not fall within a category in respect of which a Member State has set thresholds or other criteria.

63 The Federal Republic of Germany argues that since, by common assent among the Member States, it was necessary to amend Article 4 of the Directive, `the transposition by the UVPG does not, given the lack of precision and clarity of the Directive, constitute a failure to fulfil obligations under the Treaty'.

64 The Commission itself recognises that the terminology previously used by the Directive could give rise to difficulties in interpretation. The fact remains, however, that several Member States interpreted the Directive in the same way as the Commission. Moreover, the action for failure to fulfil obligations is an objective procedure designed to clarify the obligations of Member States arising from Community law. As is apparent from the Court's case-law, the procedure for a declaration of a failure on the part of a State to fulfil an obligation itself affords a means of determining the exact nature of the obligations of the Member States in case of differences of interpretation. (15)

65 The Court therefore cannot but declare that the Federal Republic of Germany has failed to fulfil its obligations under Article 2 of the Directive, since it excluded in advance certain entire classes of projects listed in Annex II from an assessment of the effects on the environment.

Fifth head of claim: incomplete transposition of Article 5(2) of the Directive

66 Article 5(2) defines the minimum information that the developer is required to provide the competent authority to assess the impact of the project on the environment.

67 The Commission concedes that the defendant has defined the information required in Paragraph 6(3) and (4) of the UVPG, in accordance with the requirements of the Directive. However, the second sentence of Paragraph 6(2) of the UVPG states that the provisions in question are only applicable `if the information listed in those subparagraphs is not defined in detail by a legal provision'.

68 According to the Commission, this means that other legal provisions, defining in detail the information that must be provided by the developer, take precedence over the provisions of the UVPG and thus replace them, irrespective of whether those other provisions do or do not comply with the requirements of Article 5(2) of the Directive.

69 The Commission therefore considers that, by failing to lay down a general requirement in respect of the information to be supplied under the Directive, the defendant has failed to fulfil its obligations under Article 5 and the third paragraph of Article 189 of the Treaty, in conjunction with Articles 5(2) and 12(1) of the Directive.

70 The German Government's reply is that the Commission's argument does not take account of Paragraph 4 of the UVPG, which sets out the general rules governing relationships between the UVPG and the other legal provisions enacted by the Federation or the Länder in the field covered by the Directive. That paragraph lays down the basic rule that, when the requirements contained in the statutory provisions enacted by the Federation or Länder fall short of the requirements of the UVPG, then the latter prevails.

71 Conversely, if the legal provisions of the Federation or Länder require the production of documents additional to those required under Paragraph 6(3) and (4) of the UVPG, then those provisions remain applicable.

72 I propose that the Court accept the arguments of the German Government on this point. It is common ground that Article 5(2) only requires a minimum of information to be provided by the developer. Furthermore, Article 13 of the Directive expressly allows Member States to lay down stricter rules to govern the environmental impact assessment procedure. In my view, that includes the information to be provided.

73 Thus, for instance, different fields in which the Directive could apply may pose special problems in relation to environmental impact assessment and hence warrant provision by the developer of certain information that he would not have had to provide in another field.

74 Paragraph 6(2) of the UVPG ensures, in conjunction with Paragraph 4 thereof, that the developer will always have to provide at least the information laid down in Paragraph 6(3) and (4). This corresponds to the information required under Article 5(2) of the Directive.

75 It is therefore my opinion that the Federal Republic of Germany has not transposed Article 5(2) of the Directive incompletely.

76 I therefore propose that the Court declare this head of claim unfounded.

Costs

77 I propose that costs be awarded against the Federal Republic of Germany as, in my view, the majority of its pleas should be rejected.

Conclusion

In the light of the above, I propose that the Court should:

(1) declare that,

- by failing to take the necessary measures to comply with the Directive within the prescribed period,

- by failing to communicate to the Commission the texts of all domestic legal provisions adopted in the field covered by the Directive,

- by failing to provide for an environmental impact assessment to be carried out for all projects in respect of which such an assessment is to be carried out under the Directive, and for which the development consent procedure was commenced after 3 July 1988 and

- by failing to provide that all the classes of projects listed in Annex II to the Directive must be examined in order to determine whether they are likely to have significant effects on the environment,

the Federal Republic of Germany has failed to fulfil its obligations under the third paragraph of Article 189 of the EC Treaty and Articles 2 and 12(1) and (2) of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment;

(2) dismiss the remainder of the application;

(3) order the Federal Republic of Germany to pay the costs.

(1) - OJ 1985 L 175, p. 40.

(2) - See, for example, Case C-396/92 Bund Naturschutz in Bayern v Freistaat Bayern [1994] ECR I-3717; Case C-431/92 Commission v Germany [1995] ECR I-2189; Case C-133/94 Commission v Belgium [1996] ECR I-2323; Case C-72/95 Kraaijeveld and Others v Gedeputeerde Staten van Zuid-Holland [1996] ECR I-5403.

(3) - BGBl. I, 1990, No 6, p. 205.

(4) - See, for example, Commission v Belgium, cited above, paragraph 56.

(5) - Emphasis added.

(6) - Emphasis added.

(7) - Cited above, paragraph 41.

(8) - Cited above, paragraphs 50 and 51.

(9) - Cited above, paragraph 42.

(10) - Emphasis added.

(11) - See judgment in the aforementioned Case C-72/95 Kraaijeveld and Others v Gedeputeerde Staten van Zuid-Holland [1996] ECR I-5403, paragraph 49.

(12) - OJ 1997 L 73, p. 5.

(13) - Emphasis added.

(14) - Emphasis added.

(15) - Case C-7/71 Commission v France [1971] ECR 1003, paragraph 49.