CELEX: 62007CJ0427
Language: en
Date: 2009-07-16 00:00:00
Title: Judgment of the Court (Second Chamber) of 16 July 2009. # Commission of the European Communities v Ireland. # Failure of a Member State to fulfil obligations - Assessment of the effects of projects on the environment - Directive 85/337/EEC - Access to justice - Directive 2003/35/EC. # Case C-427/07.

Case C-427/07
      Commission of the European Communities
      v
      Ireland
      (Failure of a Member State to fulfil obligations – Assessment of the effects of projects on the environment – Directive 85/337/EEC – Access to justice – Directive 2003/35/EC)
      Summary of the Judgment
      1.        Environment – Assessment of the effects of certain projects on the environment –Directive 85/337
      (Council Directive 85/337, as amended by Directive 97/11, Arts 2(1) and 4(2) and Annex II, para. 10(e))
      2.        Acts of the institutions – Directives – Implementation by Member States
      (Council Directives 85/337, as amended by Directive 2003/35, Arts 10a, and 96/61, as amended by Directive 2003/35, Art. 15a)
      3.        Actions for failure to fulfil obligations – Proof of failure – Burden of proof on Commission – Presumptions – Not permissible
            – Failure to comply with the obligation to inform imposed on Member States by a Directive – Consequences
      (Arts 10 EC and 226 EC)
      1.        Pursuant to Article 4(2) of Directive 85/337 on the assessment of the effects of certain public and private projects on the
         environment, as amended by Directive 97/11, the Member States are to determine, for projects in the classes listed in Annex
         II to that amended directive, through a case-by-case examination, or thresholds or criteria, whether those projects are to
         be made subject to an environmental impact assessment. According to that same provision, the Member States may also decide
         to apply both procedures.
      
      Although the Member States have thus been allowed a measure of discretion in specifying certain types of projects which will
         be subject to an assessment or to establish the criteria and/or thresholds applicable, the limits of that discretion are to
         be found in the obligation set out in Article 2(1) of Directive 85/337 as amended 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.
         A Member State which establishes criteria or thresholds at a level such that, in practice, an entire class of projects would
         be exempted in advance from the requirement of an impact assessment would exceed the limits of its discretion unless all projects
         excluded could, when viewed as a whole, be regarded as not being likely to have significant effects on the environment.
      
      In that regard, by subjecting private road construction development to an environmental impact assessment only if that development
         formed part of other developments coming within the scope of that directive and themselves subject to the assessment obligation,
         the national provision means that any private road construction development carried out in isolation could avoid an environmental
         impact assessment, even if the development is likely to have significant effects on the environment.
      
      (see paras 40-42, 44)
      2.        The provisions of a directive must be implemented with unquestionable binding force and with the specificity, precision and
         clarity required in order to satisfy the need for legal certainty, which requires that, in the case of a directive intended
         to confer rights on individuals, the persons concerned must be enabled to ascertain the full extent of their rights.
      
      In that regard, it is clear from Article 10a of Directive 85/337 on the assessment of the effects of certain public and private
         projects on the environment, as amended by Directive 2003/35, and Article 15a of Directive 96/61 concerning integrated pollution
         prevention and control, as amended by Directive 2003/35, that the procedures established in the context of those provisions
         must not be prohibitively expensive. That covers only the costs arising from participation in such procedures. Such a condition
         does not prevent the courts from making an order for costs provided that the amount of those costs complies with that requirement.
         A national practice under which the courts may decline to order an unsuccessful party to pay the costs and can, in addition,
         order expenditure incurred by the unsuccessful party to be borne by the other party is merely a discretionary practice on
         the part of the courts. Such a practice on the part of the court which cannot, by definition, be certain, cannot be regarded
         as valid implementation of the obligations arising from those articles. 
      
      In addition, the sixth paragraph of Article 10a of Directive 85/337 and the sixth paragraph of Article 15a of Directive 96/61
         lay down an obligation to obtain a precise result which the Member States must ensure is achieved, which consists in making
         available to the public practical information on access to administrative and judicial review procedures. In the absence of
         any specific statutory or regulatory provision concerning information on the rights thus offered to the public, the mere availability,
         through publications or on the internet, of rules concerning access to administrative and judicial review procedures and the
         possibility of access to court decisions cannot be regarded as ensuring, in a sufficiently clear and precise manner, that
         the public concerned is in a position to be aware of its rights on access to justice in environmental matters.
      
      (see paras 55, 92-94, 97-98)
      3.        While, in proceedings under Article 226 EC for failure to fulfil obligations, it is incumbent upon the Commission to prove
         the allegation and to place before the Court the information needed to enable the Court to establish that an obligation has
         not been fulfilled, in doing which the Commission may not rely on any presumption, it is also for the Member States, under
         Article 10 EC, to facilitate the achievement of the Commission’s tasks, which consist in particular, pursuant to Article 211
         EC, in ensuring that the provisions of the EC Treaty and the measures taken by the institutions pursuant thereto are applied.
         It is indeed for those purposes that a certain number of directives impose upon the Member States an obligation to provide
         information.
      
      The information which the Member States are thus obliged to supply to the Commission must be clear and precise. It must indicate
         unequivocally the laws, regulations and administrative provisions by means of which the Member State considers that it has
         satisfied the various requirements imposed on it by the directive. In the absence of such information, the Commission is not
         in a position to ascertain whether the Member State has genuinely implemented the directive completely. The failure of a Member
         State to fulfil that obligation, whether by providing no information at all or by providing insufficiently clear and precise
         information, may of itself justify recourse to the procedure under Article 226 EC in order to establish the failure to fulfil
         the obligation. Moreover, although the transposition of a directive may be carried out by means of domestic legal rules already
         in force, the Member States are not, in that event, absolved from the formal obligation to inform the Commission of the existence
         of those rules so that it can be in a position to assess whether the rules comply with the directive.
      
      (see paras 105-108)
JUDGMENT OF THE COURT (Second Chamber)
      16 July 2009 (*)
      
      (Failure of a Member State to fulfil obligations – Assessment of the effects of projects on the environment – Directive 85/337/EEC – Access to justice – Directive 2003/35/EC)
      In Case C‑427/07,
      ACTION under Article 226 EC for failure to fulfil obligations, brought on 14 September 2007,
      Commission of the European Communities, represented by D. Recchia, P. Oliver and J.-B. Laignelot, acting as Agents, with an address for service in Luxembourg,
      
      applicant,
      v
      Ireland, represented by D. O’Hagan, acting as Agent, and M. Collins SC, and D. McGrath BL, with an address for service in Luxembourg,
      
      defendant,
      THE COURT (Second Chamber),
      composed of C.W.A. Timmermans, President of the Chamber, J.‑C. Bonichot, K. Schiemann, J. Makarczyk (Rapporteur) and C. Toader,
         Judges,
      
      Advocate General: J. Kokott,
      Registrar: K. Sztranc-Sławiczek, Administrator,
      having regard to the written procedure and further to the hearing on 27 November 2008,
      after hearing the Opinion of the Advocate General at the sitting on 15 January 2009,
      gives the following
      Judgment
      1        By its application, the Commission of the European Communities requests the Court to declare that: 
      
      –        by failing to adopt, in conformity with Article 2(1) and Article 4(2) to (4) 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 (OJ 1985 L 175, p. 40) as amended
         by Council Directive 97/11/EC of 3 March 1997 (OJ 1997 L 73, p. 5) (‘Directive 85/337 as amended by Directive 97/11’), all
         measures to ensure that, before consent is given, projects likely to have significant effects on the environment in the road
         construction category covered by point 10(e) of Annex II to Directive 85/337 as amended by Directive 97/11 are made subject
         to a requirement for development consent and to an assessment with regard to their effects in accordance with Articles 5 to
         10 of that amended directive, and
      
      –        by failing to adopt the laws, regulations and administrative provisions necessary to comply with Articles 3(1) and (3) to
         (7) and 4(1) to (6) 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) or, in any
         event, by failing to adequately notify such provisions to the Commission, 
      
      Ireland has failed to fulfil its obligations under Directive 85/337, as amended by Directive 97/11, and Article 6 of Directive
         2003/35.
      
       Legal context
       Community legislation
       Directive 2003/35 
      2        Article 1 of Directive 2003/35 provides:
      
      ‘The objective of this Directive is to contribute to the implementation of the obligations arising under the Århus Convention
         [on access to information, public participation in decision-making and access to justice in environmental matters], in particular
         by: 
      
      (a)      providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment;
      (b)      improving the public participation and providing for provisions on access to justice within Council Directive 85/337… and
         96/61/EC.’
      
      3        Article 6 of Directive 2003/35 states: 
      
      ‘Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive
         by 25 June 2005 at the latest. They shall forthwith inform the Commission thereof.
      
      When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such
         a reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member
         States.’
      
       Directive 85/337 
      4        In accordance with Article 1(2) of Directive 85/337, as amended by Article 3(1) of Directive 2003/35, for the purposes of
         that directive:
      
      ‘…
      “the public” means: one or more natural or legal persons and, in accordance with national legislation or practice, their associations,
         organisations or groups;
      
      “the public concerned” means: the public affected or likely to be affected by, or having an interest in, the environmental
         decision-making procedures referred to in Article 2(2); 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.’
      
      5        Article 2(1) and (3) of Directive 85/337, as amended by Article 3(3) of Directive 2003/35, states:
      
      ‘1.      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 a requirement for
         development consent and an assessment with regard to their effects. These projects are defined in Article 4.
      
      …
      3.      Without prejudice to Article 7, Member States may, in exceptional cases, exempt a specific project in whole or in part from
         the provisions laid down in this Directive. 
      
      In this event, the Member States shall: 
      (a)       consider whether another form of assessment would be appropriate; 
      (b)      make available to the public concerned the information obtained under other forms of assessment referred to in point (a),
         the information relating to the exemption decision and the reasons for granting it;
      
      …’
      6        Article 4 of Directive 85/337 as amended by Directive 97/11 provides:
      
      ‘1.      Subject to Article 2(3), projects 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 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). 
      3.      When a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant
         selection criteria set out in Annex III shall be taken into account.
      
      4.      Member States shall ensure that the determination made by the competent authorities under paragraph 2 is made available to
         the public.’
      
      7        Article 5 of Directive 85/337 as amended by Directive 97/11 provides:
      
      ‘1.      In the case of projects which, pursuant to Article 4, must be subjected to an environmental impact assessment in accordance
         with Articles 5 to 10, Member States shall adopt the necessary measures to ensure that the developer supplies in an appropriate
         form the information specified in Annex IV inasmuch as: 
      
      (a)      the Member States consider that the information is relevant to a given stage of the consent procedure and to the specific
         characteristics of a particular project or type of project and of the environmental features likely to be affected;
      
      (b)      the Member States consider that a developer may reasonably be required to compile this information having regard inter alia
         to current knowledge and methods of assessment.
      
      …
      3.      The information to be provided by the developer in accordance with paragraph 1 shall include at least: 
      –        a description of the project comprising information on the site, design and size of the project,
      –        a description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects,
      –        the data required to identify and assess the main effects which the project is likely to have on the environment,
      –        an outline of the main alternatives studied by the developer and an indication of the main reasons for his choice, taking
         into account the environmental effects,
      
      –        a non-technical summary of the information mentioned in the previous indents.
      …’
      8        Article 6(2) to (6) of Directive 85/337, as amended by Article 3(4) of Directive 2003/35, states as follows: 
      
      ‘2.      The public shall be informed, whether by public notices or other appropriate means such as electronic media where available,
         of the following matters early in the environmental decision-making procedures referred to in Article 2(2) and, at the latest,
         as soon as information can reasonably be provided:
      
      (a)       the request for development consent;
      (b)       the fact that the project is subject to an environmental impact assessment procedure and, where relevant, the fact that Article
         7 applies;
      
      (c)       details of the competent authorities responsible for taking the decision, those from which relevant information can be obtained,
         those to which comments or questions can be submitted, and details of the time schedule for transmitting comments or questions;
         
      
      (d)      the nature of possible decisions or, where there is one, the draft decision;
      (e)      an indication of the availability of the information gathered pursuant to Article 5;
      (f)      an indication of the times and places where and means by which the relevant information will be made available;
      (g)      details of the arrangements for public participation made pursuant to paragraph 5 of this Article.
      3.      Member States shall ensure that, within reasonable time-frames, the following is made available to the public concerned:
      (a)      any information gathered pursuant to Article 5;
      (b)      in accordance with national legislation, the main reports and advice issued to the competent authority or authorities at the
         time when the public concerned is informed in accordance with paragraph 2 of this Article;
      
      (c)      in accordance with the provisions of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003
         on public access to environmental information …, information other than that referred to in paragraph 2 of this Article which
         is relevant for the decision in accordance with Article 8 and which only becomes available after the time the public concerned
         was informed in accordance with paragraph 2 of this Article.
      
      4.      The public concerned shall be given early and effective opportunities to participate in the environmental decision-making
         procedures referred to in Article 2(2) and shall, for that purpose, be entitled to express comments and opinions when all
         options are open to the competent authority or authorities before the decision on the request for development consent is taken.
      
      5.      The detailed arrangements for informing the public (for example by bill posting within a certain radius or publication in
         local newspapers) and for consulting the public concerned (for example by written submissions or by way of a public inquiry)
         shall be determined by the Member States.
      
      6.      Reasonable time-frames for the different phases shall be provided, allowing sufficient time for informing the public and for
         the public concerned to prepare and participate effectively in environmental decision-making subject to the provisions of
         this Article.’
      
      9        Article 7 of Directive 85/337, as amended by Article 3(5) of Directive 2003/35, provides: 
      
      ‘1.      Where a Member State is aware that a project is likely to have significant effects on the environment in another Member State
         or where a Member State likely to be significantly affected so requests, the Member State in whose territory the project is
         intended to be carried out shall send to the affected Member State as soon as possible and no later than when informing its
         own public, inter alia:
      
      (a)      a description of the project, together with any available information on its possible transboundary impact;
      (b)      information on the nature of the decision which may be taken,
      and shall give the other Member State a reasonable time in which to indicate whether it wishes to participate in the environmental
         decision-making procedures referred to in Article 2(2), and may include the information referred to in paragraph 2 of this
         Article.
      
      2.      If a Member State which receives information pursuant to paragraph 1 indicates that it intends to participate in the environmental
         decision‑making procedures referred to in Article 2(2), the Member State in whose territory the project is intended to be
         carried out shall, if it has not already done so, send to the affected Member State the information required to be given pursuant
         to Article 6(2) and made available pursuant to Article 6(3)(a) and (b).
      
      …
      5.      The detailed arrangements for implementing this Article may be determined by the Member States concerned and shall be such
         as to enable the public concerned in the territory of the affected Member State to participate effectively in the environmental
         decision-making procedures referred to in Article 2(2) for the project.’
      
      10      Article 9 of Directive 85/337, as amended by Article 3(6) of Directive 2003/35, provides:
      
      ‘1.      When a decision to grant or refuse development consent has been taken, the competent authority or authorities shall inform
         the public thereof in accordance with the appropriate procedures and shall make available to the public the following information:
      
      –        the content of the decision and any conditions attached thereto,
      –        having examined the concerns and opinions expressed by the public concerned, the main reasons and considerations on which
         the decision is based, including information about the public participation process,
      
      –        a description, where necessary, of the main measures to avoid, reduce and, if possible, offset the major adverse effects.
      2.      The competent authority or authorities shall inform any Member State which has been consulted pursuant to Article 7, forwarding
         to it the information referred to in paragraph 1 of this Article.
      
      The consulted Member States shall ensure that that information is made available in an appropriate manner to the public concerned
         in their own territory.’
      
      11      Article 10a of Directive 85/337, inserted by Article 3(7) of Directive 2003/35, states as follows:
      
      ‘Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned:
      (a)      having a sufficient interest, or alternatively
      (b)      maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a precondition,
      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.
      
      Member States shall determine at what stage the decisions, acts or omissions may be challenged.
      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
         meeting the requirements referred to in Article 1(2), shall be deemed sufficient for the purpose of subparagraph (a) of this
         Article. Such organisations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph
         (b) of this Article.
      
      The provisions of this Article shall not exclude the possibility of a preliminary review procedure before an administrative
         authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial
         review procedures, where such a requirement exists under national law.
      
      Any such procedure shall be fair, equitable, timely and not prohibitively expensive.
      In order to further the effectiveness of the provisions of this article, Member States shall ensure that practical information
         is made available to the public on access to administrative and judicial review procedures.’
      
      12      Annex II to Directive 85/337 as amended by Directive 97/11 lists the projects subject to Article 4(2) of that amended directive.
         Under the heading ‘Infrastructure projects’, point 10(e) of that annex covers the construction of roads, harbours and port
         installations, including fishing harbours (projects not included in Annex I).
      
       Directive 96/61/EC 
      13      In accordance with Article 2(13) and (14) of Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution
         prevention and control (OJ 1996 L 257, p. 26), as amended by Article 4(1) of Directive 2003/35:
      
      ‘13. “the public” shall mean one or more natural or legal persons and, in accordance with national legislation or practice,
         their associations, organisations or groups;
      
      14.    “the public concerned” shall mean 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.’
      
      14      Article 15(1) and (5) of Directive 96/61, as amended by Article 4(3) of Directive 2003/35, states as follows: 
      
      ‘1.      Member States shall ensure that the public concerned are given early and effective opportunities to participate in the procedure
         for:
      
      –        issuing a permit for new installations,
      –        issuing a permit for any substantial change in the operation of an installation,
      –        updating of a permit or permit conditions for an installation in accordance with Article 13, paragraph 2, first indent.
      The procedure set out in Annex V shall apply for the purposes of such participation.
      …
      5.      When a decision has been taken, the competent authority shall inform the public in accordance with the appropriate procedures
         and shall make available to the public the following information:
      
      (a)      the content of the decision, including a copy of the permit and of any conditions and any subsequent updates; and 
      (b)      having examined the concerns and opinions expressed by the public concerned, the reasons and considerations on which the decision
         is based, including information on the public participation process.’
      
      15      Article 15a of Directive 96/61, inserted by Article 4(4) of Directive 2003/35, provides:  
      
      ‘Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned:
      (a)      having a sufficient interest, or alternatively,
      (b)      maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a precondition;
      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.
      
      Member States shall determine at what stage the decisions, acts or omissions may be challenged.
      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
         meeting the requirements referred to in Article 2(14) shall be deemed sufficient for the purpose of subparagraph (a) of this
         Article. Such organisations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph
         (b) of this Article.
      
      The provisions of this Article shall not exclude the possibility of a preliminary review procedure before an administrative
         authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial
         review procedures, where such a requirement exists under national law.
      
      Any such procedure shall be fair, equitable, timely and not prohibitively expensive.
      In order to further the effectiveness of the provisions of this Article, Member States shall ensure that practical information
         is made available to the public on access to administrative and judicial review procedures.’
      
       National legislation 
      16      According to the combined provisions of section 176 of the Planning and Development Act 2000 (No 30/2000), as amended by the
         Planning and Development (Strategic Infrastructure) Act 2006 (No 27/2006, S.I. No 525/2006) (‘the PDA’), and Schedule 5 to
         the Planning and Development Regulations 2001 (S.I. No 600/2001), an environmental impact statement and an environmental impact
         assessment are mandatory in respect of certain projects where the thresholds specified are exceeded, but private roads development
         is not identified as a discrete category of project.
      
      17      Judicial review is governed by Order 84 of the Rules of the Superior Courts. Those courts have jurisdiction to review, subject
         to certain conditions, the decisions of lower courts and administrative bodies.
      
      18      Both public-law and private-law remedies are available in judicial review proceedings. The traditional public law remedies
         relate to review of whether those lower courts or bodies have acted in excess or abuse of jurisdiction and to supervision
         of the exercise of their jurisdiction.
      
      19      Judicial review is a two-stage process. An application for leave to bring judicial review proceedings must be made to the
         court, accompanied by a statement of grounds identifying the relief sought and an affidavit setting out the facts relied on.
         If leave is granted, the applicant can bring judicial review proceedings.
      
      20      A specific statutory procedure applies to applications for judicial review of decisions of the competent planning authorities,
         which is governed by sections 50 and 50A of the PDA. 
      
      21      Section 50A(3) of the PDA states:
      
      ‘The Court shall not grant section 50 leave unless it is satisfied that – 
      (a)       there are substantial grounds for contending that the decision or act concerned is invalid or ought to be quashed, and 
      (b)       (i) the applicant has a substantial interest in the matter which is the subject of the application, or 
      (ii) where the decision or act concerned relates to a development identified in or under regulations made under section 176,
         for the time being in force, as being development which may have significant effects on the environment, the applicant — 
      
      (I)      is a body or organisation (other than a State authority, a public authority or governmental body or agency) the aims or objectives
         of which relate to the promotion of environmental protection,
      
      (II)      has, during the period of 12 months preceding the date of the application, pursued those aims or objectives, and 
      (III) satisfies such requirements (if any) as a body or organisation, if it were to make an appeal under section 37(4)(c), would
         have to satisfy by virtue of section 37(4)(d)(iii) (and, for this purpose, any requirement prescribed under section 37(4)(e)(iv)
         shall apply as if the reference in it to the class of matter into which the decision, the subject of the appeal, falls were
         a reference to the class of matter into which the decision or act, the subject of the application for section 50 leave, falls).’
      
      22      Section 50A(4) of the PDA specifies that the substantial interest required is not limited to an interest in land or other
         financial interest.
      
      23      Section 50A(10) and (11)(b) of the PDA require the court, in determining applications, to act as expeditiously as possible
         consistent with the administration of justice. Section 50A(12) of the PDA allows for additional rules to be adopted to expedite
         the procedure.
      
       The pre-litigation procedure 
      24      The Commission has combined, in the present action, complaints raised in two pre-litigation procedures. 
      
      25      First, in 2001 the Commission registered a complaint against Ireland concerning damage to a coastal wetland at Commogue Marsh,
         Kinsale, County Cork caused by a private road project. On 18 October 2002, the Commission sent a letter of formal notice to
         Ireland, indicating that it appeared that no consent for the project in question had been granted and that no prior environmental
         impact assessment had been carried out despite the sensitivity of the site, contrary to the requirements of Directive 85/337
         as amended by Directive 97/11.
      
      26      Ireland replied to that letter of formal notice on 5 March 2003, pointing out that the project at issue was a part of a development
         for which consent had been given.
      
      27      As the Commission was not satisfied with that reply, it issued a reasoned opinion on 11 July 2003, calling on Ireland to take
         the necessary measures to comply with Directive 85/337 as amended by Directive 97/11 within two months of receipt of that
         opinion.
      
      28      By letter of 9 September 2003, Ireland requested an extension of the two-month time‑limit for reply to the reasoned opinion.
         Ireland replied to the reasoned opinion by letter of 10 November 2003. 
      
      29      Secondly, the Commission sent a letter of formal notice to Ireland on 28 July 2005 concerning the transposition of Directive
         2003/35, inviting Ireland to submit its observations within two months of receipt of that letter.
      
      30      Ireland replied by letter of 7 September 2005, in which it admitted that it had only partially transposed Directive 2003/35.
         
      
      31      The Commission issued a reasoned opinion on 19 December 2005, calling on Ireland to take the necessary measures to comply
         with that directive within two months of receipt of that opinion.
      
      32      By letter of 14 February 2006, Ireland indicated that transposition measures were in preparation. 
      
      33      On 18 October 2006, the Commission issued an additional reasoned opinion calling on Ireland to adopt the necessary measures
         to comply with that opinion within two months of receipt. Ireland replied on 27 February 2007, outside the time-limit prescribed
         by the Commission.
      
      34      As it was not satisfied with Ireland’s replies in the course of those two pre‑litigation procedures, the Commission brought
         the present action pursuant to the second paragraph of Article 226 EC. 
      
       The action 
      35      The Commission’s action is based on two complaints. 
      
       The first complaint
       Arguments of the parties 
      36      The Commission considers that the construction of a private road constitutes an infrastructure project that falls within point
         10(e) of Annex II to Directive 85/337 as amended by Directive 97/11 and that, as a consequence, the Irish authorities are
         bound, in accordance with Article 2 of that amended directive, to ensure that, before consent is given, such projects are
         made subject to an assessment with regard to their effects on the environment if it is considered that they are likely to
         have significant effects on the environment.
      
      37      In limiting the need to carry out an environmental impact assessment to public road projects proposed by public authorities,
         the Irish legislation thus fails to take account of Community requirements.
      
      38      Ireland contends that private road construction development which, it does not dispute, falls within point 10(e) of Annex
         II to Directive 85/337 as amended by Directive 97/11, almost invariably forms an integral part of other developments which,
         for their part, are subject to the requirement of an environmental impact assessment under the combined provisions of Article
         176 of the PDA and Schedule 5 to the Planning and Development Regulations 2001 if they are likely to have significant effects
         on the environment. 
      
      39      Ireland accepts, moreover, that Directive 85/337 as amended by Directive 97/11 makes no distinction between public and private
         road projects, and it indicates its intention to amend its legislation so as to include road development as a stand‑alone
         category subject to an environmental impact assessment if the road development is likely to have significant effects on the
         environment.
      
       Findings of the Court
      40      Pursuant to Article 4(2) of Directive 85/337 as amended by Directive 97/11, the Member States are to determine, for projects
         in the classes listed in Annex II to that amended directive, through a case-by-case examination, or thresholds or criteria,
         whether those projects are to be made subject to an environmental impact assessment in accordance with Articles 5 to 10 of
         that directive. According to that same provision, the Member States may also decide to apply both procedures.
      
      41      Although the Member States have thus been allowed a measure of discretion in specifying certain types of projects which will
         be subject to an assessment or to establish the criteria and/or thresholds applicable, the limits of that discretion are to
         be found in the obligation set out in Article 2(1) of Directive 85/337 as amended by Directive 97/11 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 (see Case C‑72/95 Kraaijeveld and Others [1996] ECR I‑5403, paragraph 50; Case C‑2/07 Abraham and Others [2008] ECR I‑1197, paragraph 37; and Case C‑75/08 Mellor [2009] ECR I‑0000, paragraph 50). 
      
      42      In that regard, the Court has already held that a Member State which established criteria or thresholds at a level such that,
         in practice, an entire class of projects would be exempted in advance from the requirement of an impact assessment would exceed
         the limits of its discretion under Articles 2(1) and 4(2) of that amended directive unless all projects excluded could, when
         viewed as a whole, be regarded as not being likely to have significant effects on the environment (see Kraaijeveld and Others, paragraph 53, and Case C‑435/97 WWF and Others [1999] ECR I‑5613, paragraph 38). 
      
      43      Among the projects subject to Article 4(2) of Directive 85/337 as amended by Directive 97/11, point 10(e) of Annex II to that
         amended directive refers to ‘construction of roads’. 
      
      44      In that regard, by subjecting private road construction development to an environmental impact assessment only if that development
         formed part of other developments coming within the scope of Directive 85/337 as amended by Directive 97/11 and themselves
         subject to the assessment obligation, the Irish legislation, as applicable when the time-limit set in the reasoned opinion
         expired, meant that any private road construction development carried out in isolation could avoid an environmental impact
         assessment, even if the development was likely to have significant effects on the environment.
      
      45      It should also be pointed out that a criterion relating to the private or public nature of the road is irrelevant as regards
         the applicability of point 10(e) of Annex II to Directive 85/337 as amended by Directive 97/11.
      
      46      Therefore, the first complaint is well founded. 
      
       The second complaint 
      47      It is apparent from the most recent of the Commission’s written pleadings that, in its view, and having regard to the withdrawal
         of the complaints concerning Article 4(1), (5) and (6) of Directive 2003/35, Ireland’s transposition of Article 3(1) and (3)
         to (7) and Article 4(2) to (4) of that directive remains incomplete, as a result of which there is a failure to fulfil obligations
         under Article 6 of that directive. 
      
      48      In addition, the Commission takes the view that, in any event, Ireland did not communicate within the prescribed time‑limit
         the provisions which were deemed to implement the aforementioned articles, contrary to the requirements of Article 6.
      
      49      The second complaint, considered in its various parts, as pleaded in essence by the Commission, thus relates exclusively –
         as the Commission, moreover, confirmed at the hearing – to the failure to transpose certain provisions of Directive 2003/35,
         without any criticism of the quality of transposition, and, consequently, no such criticism may properly be raised by the
         Commission in the context of this case. 
      
      50      Moreover, it should be noted that the provisions of the PDA referred to in the present action are those which result from
         amendments introduced by the amending Act of 2006, mentioned in paragraph 16 of this judgment. Those provisions, as the Advocate
         General noted in point 53 of her Opinion, entered into force on 17 October 2006, that is to say, before the expiry of the
         time-limit laid down in the additional reasoned opinion. 
      
       The requirement to transpose the provisions of Article 3(1) of Directive 2003/35
      –       Arguments of the parties
      51      As regards Article 3(1) of Directive 2003/35, the Commission claims that the Irish authorities must adopt measures to ensure
         that domestic legislation does not treat the concepts of ‘the public’ and ‘the public concerned’ more narrowly than Directive
         2003/35. It points out, in particular, that the rights conferred on non‑governmental organisations are not sufficiently guaranteed,
         as is apparent from the case-law, although that directive confers on such non‑governmental organisations certain rights as
         being among the public concerned.
      
      52      Ireland counters that, in the light of the general obligation to interpret national law in accordance with the provisions
         of Community law which applies, in particular, to the courts, it is not necessary to introduce legislative definitions of
         ‘the public’ and ‘the public concerned’ in order to give full effect to those definitions. It adds that the newly-created
         rights are already guaranteed to all of the public and that it is not, therefore, necessary to give a specific definition
         of ‘the public concerned’. 
      
      53      Ireland also contends that, pursuant to section 50A(3)(b)(ii) of the PDA, non‑governmental organisations promoting the environment
         are exempted from the requirement to demonstrate that they have a substantial interest.­
      
      –       Findings of the Court
      54      It should be recalled that, according to settled case-law, the transposition of a directive into domestic law does not necessarily
         require the provisions of the directive to be enacted in precisely the same words in a specific, express provision of national
         law and a general legal context may be sufficient if it actually ensures the full application of the directive in a sufficiently
         clear and precise manner (see, inter alia, Case C‑214/98 Commission v Greece [2000] ECR I‑9601, paragraph 49; Case C‑38/99 Commission v France [2000] ECR I‑10941, paragraph 53; and Case C‑32/05 Commission v Luxembourg [2006] ECR I‑11323, paragraph 34). 
      
      55      It follows from an equally consistent line of case-law that the provisions of a directive must be implemented with unquestionable
         binding force and with the specificity, precision and clarity required in order to satisfy the need for legal certainty, which
         requires that, in the case of a directive intended to confer rights on individuals, the persons concerned must be enabled
         to ascertain the full extent of their rights (see, inter alia, Case C‑197/96 Commission v France [1997] ECR I‑1489, paragraph 15; Case C‑207/96 Commission v Italy [1997] ECR I‑6869, paragraph 26; and Commission v Luxembourg, paragraph 34).
      
      56      In the light of the purpose of Article 3(1) of Directive 2003/35, which is to add definitions to those appearing in Article
         1(2) of Directive 85/337, and in particular to indicate, for the purposes of the latter directive, what is to be meant by
         ‘the public concerned’ and, whereas, at the same time, Directive 2003/35 accords new rights to that public, it cannot be concluded
         from Ireland’s failure to reproduce those definitions in its legislation expressly that Ireland has not fulfilled its obligation
         to transpose the provisions in question. 
      
      57      The scope of the new definition of ‘the public concerned’ thus introduced by Directive 2003/35 can be assessed, as the Advocate
         General stated in points 36 and 37 of her Opinion, only with regard to all of the rights which that directive accords to ‘the
         public concerned’, since those two aspects are indissociable. 
      
      58      In that regard, the Commission does not establish to what extent ‘the public concerned’, understood as the public affected
         or likely to be affected by, or having an interest in, environmental decision‑making procedures, does not have the rights
         which it is deemed to enjoy under the amendments introduced by Directive 2003/35. 
      
      59      Lastly, it should be pointed out that the Commission’s arguments relating to the construal, in the case-law, of the role of
         non‑governmental organisations promoting the environment as belonging to ‘the public concerned’ deal, primarily, with possible
         defects in the effective implementation of the rights which those organisations may rely on, in particular in judicial review
         proceedings, and are, consequently, outside the scope of the complaint before the Court alleging, solely, a failure to transpose.
         
      
      60      It follows from the foregoing that the second complaint, in so far as it concerns the transposition of Article 3(1) of Directive
         2003/35, is unfounded. 
      
       The requirement to transpose Articles 3(3) to (6), and 4(2) and (3), of Directive 2003/35
      –       Arguments of the parties 
      61      According to the Commission, Article 3(3) to (6), and Article 4(2) and (3), have not been fully transposed.
      
      62      As regards those provisions, Ireland contends that there has been transposition in so far as the planning consent system is
         concerned, but it accepts that it was still necessary, when the time-limit prescribed in the additional reasoned opinion elapsed,
         to transpose those provisions by adopting legislative measures in relation to other consent procedures.
      
      63      As regards Article 4(2) and (3) of that directive, Ireland recognises that it still had to adopt and notify certain measures
         in relation to full transposition of those provisions when the time-limit prescribed in that reasoned opinion elapsed.
      
      –       Findings of the Court
      64      It must be borne in mind that, 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 in that Member State as it stood at the end of the period laid
         down in the reasoned opinion (see, inter alia, Case C‑173/01 Commission v Greece [2002] ECR I‑6129, paragraph 7, and Case C‑114/02 Commission v France [2003] ECR I‑3783, paragraph 9). 
      
      65      It is not in dispute that, by the end of the period laid down in the additional reasoned opinion, Ireland had not adopted
         the laws, regulations and administrative provisions necessary to ensure full transposition of Article 3(3) to (6), and Article
         4(2) and (3), of Directive 2003/35. Furthermore, and in accordance with settled case-law, any subsequent changes once the
         action for failure to fulfil obligations has been lodged cannot be taken into consideration by the Court (see, inter alia,
         Case C‑211/02 Commission v Luxembourg [2003] ECR I‑2429, paragraph 6). 
      
      66      In so far as it concerns the failure to transpose Article 3(3) to (6) and Article 4(2) and (3) of Directive 2003/35, the second
         complaint is therefore well founded.
      
       The requirement to transpose Articles 3(7) and 4(4) of Directive 2003/35
      –       Arguments of the parties
      67      The Commission claims that Ireland did not transpose the requirements arising out of Articles 3(7) and 4(4) of Directive 2003/35,
         those provisions having inserted, respectively, Article 10a into Directive 85/337 and Article 15a into Directive 96/61. The
         Commission puts forward five arguments in support of this part of the second complaint. 
      
      68      By its first argument, which concerns the concept of sufficient interest in Article 3(7) and Article 4(4) of Directive 2003/35,
         the Commission asserts that the criterion that a ‘substantial interest’ must be established in the context of the specific
         statutory procedure for applying for judicial review of decisions of competent planning authorities laid down in Section 50
         of the PDA does not correspond to the ‘sufficient interest’ criterion in Directive 2003/35.
      
      69      The setting of such a criterion – stricter than that used in Article 10a of Directive 85/337, inserted by Article 3(7) of
         Directive 2003/35, and Article 15a of Directive 96/61, inserted by Article 4(4) of Directive 2003/35, – amounts, according
         to the Commission, to non transposition of the requirements laid down in Directive 2003/35.
      
      70      Lastly, the Commission points out that two judgments of the Irish High Court handed down in the Friends of the Curragh Environment Ltd case on 14 July 2006 and 8 December 2006 show that the system of judicial review in force in Ireland cannot be regarded as
         implementing Directive 2003/35, since the High Court stated, in the second of those judgments, in relation to the assessment
         of ‘substantial interest’, that that directive had not yet been implemented in Irish law.
      
      71      Ireland contests the relevance of those High Court judgments, inasmuch as they were dealing, primarily, with the issue of
         the direct effect of Directive 2003/35.
      
      72      It adds that the judgment handed down by the High Court on 26 April 2007 in the Sweetman case established, on the contrary, that the abovementioned provisions of that directive are implemented by the judicial review
         procedure, supplemented by specific procedural rules laid down in certain legislation, in particular section 50 of the PDA,
         since the criterion of substantial interest was held by the judge to be flexible and not inconsistent with Article 10a of
         Directive 85/337, inserted by Article 3(7) of Directive 2003/35.
      
      73      By its second argument, the Commission claims that Article 10a of Directive 85/337, inserted by Article 3(7) of Directive
         2003/35, and Article 15a of Directive 96/61, inserted by Article 4(4) of Directive 2003/35, have not been transposed, on the
         ground that, contrary to the first paragraph in each of those articles, the requirement that an applicant must be able to
         challenge the substantive legality of decisions, acts or omissions subject to the public participation provisions in each
         of the directives has not been transposed into Irish law.
      
      74      Ireland contends, in that regard, that those articles do not require provision to be made for an exhaustive review of the
         merits of a decision, but merely require that it be possible to contest the substantive legality of a decision. Such a form
         of review is provided for under Irish law.
      
      75      Ireland also asserts that the requirements laid down in Article 10a of Directive 85/337, inserted by Article 3(7) of Directive
         2003/35, and in Article 15a of Directive 96/61, inserted by Article 4(4) of Directive 2003/35, are fully implemented into
         Irish law by reason of the existence of the judicial review procedure available before Irish courts. The purpose of judicial
         review is to provide a form of review of decisions made and actions taken by courts and administrative bodies, to ensure that
         the functions conferred on such authorities have been carried out correctly and legally. 
      
      76      In addition, according to Ireland, a specific statutory judicial review procedure applies to challenges to decisions of the
         competent planning authorities, which is governed by sections 50 and 50A of the PDA. 
      
      77      The Commission claims, in its third argument, that no measure has been taken by Ireland to ensure transposition of the requirement
         of timeliness, laid down in Article 10a of Directive 85/337, inserted by Article 3(7) of Directive 2003/35, and in Article
         15a of Directive 96/61, inserted by Article 4(4) Directive 2003/35. 
      
      78      In its fourth argument, the Commission raises the same failure to transpose as regards the requirement that any such procedure
         must not be prohibitively expensive, pointing out that, in relation to costs, there is no applicable ceiling as regards the
         amount that an unsuccessful applicant will have to pay, as there is no legal provision which refers to the fact that the procedure
         will not be prohibitively expensive.
      
      79      According to Ireland, the existing procedures are fair, equitable and not prohibitively expensive. They enable, furthermore,
         the decisions referred to in Directives 83/337 and 96/61, as amended by Directive 2003/35, to be reviewed in a timely manner.
         
      
      80      Lastly, by its fifth argument, the Commission criticises Ireland for not having made available to the public practical information
         on access to administrative and judicial review procedures, as required by the sixth paragraph of Article 10a of Directive
         85/337, inserted by Article 3(7) of Directive 2003/35, and the sixth paragraph of Article 15a of Directive 96/61, inserted
         by Article 4(4) of Directive 2003/35. 
      
      81      Ireland takes the view that it has fulfilled that obligation, since Order 84 of the Rules of the Superior Courts, referred
         to in paragraph 17 of this judgment, is a statutory provision and there is, in addition, a website for the Courts Service
         of Ireland which describes the different courts and the limits of their jurisdiction, and allows for access to High Court
         judgments.
      
      –       Findings of the Court 
      82      As regards the first argument relating to sufficient interest, it is clear from paragraphs (a) and (b) of the first paragraph
         of Article 10a of Directive 85/337, inserted by Article 3(7) of Directive 2003/35, and from paragraphs (a) and (b) of the
         first paragraph of Article 15a of Directive 96/61, inserted by Article 4(4) of Directive 2003/35, that the Member States must
         ensure that, in accordance with the relevant national legal system, members of the public concerned having a sufficient interest,
         or alternatively, maintaining the impairment of a right, where the administrative procedural law of a Member State requires
         this as a precondition, have access to a review procedure under the conditions specified in those provisions, and must determine
         what constitutes a sufficient interest and impairment of a right consistently with the objective of giving the public concerned
         wide access to justice. 
      
      83      It is not in dispute that, by enabling applicants who are members of ‘the public concerned’ and who can claim an interest
         meeting the conditions laid down in section 50A(3) of the PDA to challenge certain planning measures, Ireland has adopted
         provisions under which the right of access to justice in that particular area depends directly on those applicants’ interest,
         as the Advocate General points out in point 57 of her Opinion. 
      
      84      In that regard, inasmuch as, as has been stated in paragraph 49 of this judgment, the Commission disputes only the failure
         to transpose certain provisions – having moreover expressly stated that it did not mean to allege incorrect or incomplete
         transposition – there is no need to ascertain whether the criterion of substantial interest as applied and interpreted by
         the Irish courts corresponds to the sufficient interest referred to in Directive 2003/35, as that would lead to calling into
         question the quality of the transposition having regard, in particular, to the competence of the Member States recognised
         by that directive to determine what constitutes a sufficient interest consistently with the objective which that directive
         pursues.
      
      85      Furthermore, the second judgment of the High Court in Friends of the Curragh Environment Ltd, to which the Commission principally refers, was handed down under the legislation applicable prior to the amendments made
         to the PDA in 2006 and it is not, in any event, enough to prove the alleged failure to transpose. 
      
      86      The first argument is therefore unfounded. 
      
      87      In relation to the second argument, it is common ground that in Irish law, apart from the specific statutory procedure applicable
         pursuant to sections 50 and 50A of the PDA, there is judicial review governed by Order 84 of the Rules of the Superior Courts.
         In those review procedures applicants can ask for decisions or acts to be quashed in the context of supervision in relation
         to decisions and actions taken by lower courts and administrative bodies to ensure that the functions conferred on those authorities
         are carried out legally. 
      
      88      The various procedures thus established for judicial review are applicable to decisions, acts or omissions subject to the
         public participation provisions in Directives 85/337 and 96/61 as amended by Directive 2003/35, inter alia, in the specific
         area of planning, and may therefore be considered to constitute transposition of Article 10a of Directive 85/337, inserted
         by Article 3(7) of Directive 2003/35, and Article 15a of Directive 96/61, inserted by Article 4(4) of Directive 2003/35, inasmuch
         as they require that the applicant be able to challenge the substantive or procedural legality of such acts, decisions or
         omissions.
      
      89      Since the Court does not have before it a complaint alleging incorrect transposition of those provisions, it cannot examine
         the arguments submitted by the Commission relating to the extent of the review actually carried out in the context of judicial
         review, as shown, in particular, by the case-law of the High Court.
      
      90      The second argument is therefore unfounded.
      
      91      As regards the third argument relating to the failure to transpose Article 10a of Directive 85/337, inserted by Article 3(7)
         of Directive 2003/35, and Article 15a of Directive 96/61, inserted by Article 4(4) of Directive 2003/35, in so far as they
         require that the procedures should be timely, having regard to what was stated in paragraph 49 of this judgment and inasmuch
         as it follows from sections 50A(10) and (11)(b) of the PDA that the courts having jurisdiction must determine applications
         as expeditiously as possible consistent with the administration of justice, that argument is therefore unfounded.
      
      92      As regards the fourth argument concerning the costs of proceedings, it is clear from Article 10a of Directive 85/337, inserted
         by Article 3(7) of Directive 2003/35, and Article 15a of Directive 96/61, inserted by Article 4(4) of Directive 2003/35, that
         the procedures established in the context of those provisions must not be prohibitively expensive. That covers only the costs
         arising from participation in such procedures. Such a condition does not prevent the courts from making an order for costs
         provided that the amount of those costs complies with that requirement.
      
      93      Although it is common ground that the Irish courts may decline to order an unsuccessful party to pay the costs and can, in
         addition, order expenditure incurred by the unsuccessful party to be borne by the other party, that is merely a discretionary
         practice on the part of the courts.
      
      94      That mere practice which cannot, by definition, be certain, in the light of the requirements laid down by the settled case-law
         of the Court, cited in paragraphs 54 and 55 of this judgment, cannot be regarded as valid implementation of the obligations
         arising from Article 10a of Directive 85/337, inserted by Article 3(7) of Directive 2003/35, and Article 15a of Directive
         96/61, inserted by Article 4(4) of Directive 2003/35. 
      
      95      The fourth argument is thus well founded. 
      
      96      As regards the fifth argument, it must be borne in mind that one of the underlying principles of Directive 2003/35 is to promote
         access to justice in environmental matters, along the lines of the Århus Convention on access to information, public participation
         in decision-making and access to justice in environmental matters.
      
      97      In that regard, the obligation to make available to the public practical information on access to administrative and judicial
         review procedures laid down in the sixth paragraph of Article 10a of Directive 85/337, inserted by Article 3(7) of Directive
         2003/35, and in the sixth paragraph of Article 15a of Directive 96/61, inserted by Article 4(4) of Directive 2003/35, amounts
         to an obligation to obtain a precise result which the Member States must ensure is achieved.
      
      98      In the absence of any specific statutory or regulatory provision concerning information on the rights thus offered to the
         public, the mere availability, through publications or on the internet, of rules concerning access to administrative and judicial
         review procedures and the possibility of access to court decisions cannot be regarded as ensuring, in a sufficiently clear
         and precise manner, that the public concerned is in a position to be aware of its rights on access to justice in environmental
         matters. 
      
      99      The fifth argument must thus be upheld. 
      
      100    It follows from the foregoing that the second complaint, in so far as it concerns the requirement to transpose Articles 3(7)
         and 4(4) of Directive 2003/35 is, in its fourth and fifth arguments, well founded. 
      
       Failure to comply with the first paragraph of Article 6 of Directive 2003/35, inasmuch as the obligation to inform the Commission
         was not fulfilled
      
      –       Arguments of the parties
      101    The Commission claims that the information provided to it by Ireland in relation to the transposition of the provisions of
         Directive 2003/35 which introduced Article 10a of Directive 85/337 and Article 15a of Directive 96/61 is not sufficient.
      
      102    It argues, in that regard, that Ireland did not draw to its attention the case-law establishing access for the public concerned
         to judicial review, or the precise legislative texts that show that the rights and obligations laid down in those provisions
         have been transposed, in particular as regards the requirement for a fair, equitable, timely and not prohibitively expensive
         judicial review procedure.
      
      103    It adds that it was not informed of the relevant national case-law regarding, specifically, the use of review procedures in
         relation to Directive 2003/35, and in particular, that Ireland itself did not send it the judgments handed down by the High
         Court in the Friends of the Curragh Environment Ltd case, which were provided to the Commission by a separate source.
      
      104    Ireland accepts that it has not fully complied with the obligation to inform the Commission laid down in Article 6 of Directive
         2003/35. It nevertheless points out that, in so far as Articles 3(7) and 4(4) of that directive were already transposed by
         existing statutory provisions, it was not obliged to notify those provisions.
      
      –       Findings of the Court 
      105    It should be recalled that, while, in proceedings under Article 226 EC for failure to fulfil obligations, it is incumbent
         upon the Commission to prove the allegation and to place before the Court the information needed to enable the Court to establish
         that an obligation has not been fulfilled, in doing which the Commission may not rely on any presumption, it is also for the
         Member States, under Article 10 EC, to facilitate the achievement of the Commission’s tasks, which consist in particular,
         pursuant to Article 211 EC, in ensuring that the provisions of the EC Treaty and the measures taken by the institutions pursuant
         thereto are applied (see, inter alia, Case C‑408/97 Commission v Netherlands [2000] ECR I‑6417, paragraphs 15 and 16, and Case C‑456/03 Commission v Italy [2005] ECR I‑5335, paragraph 26).
      
      106    For the purposes set out in that case-law, Article 6 of Directive 2003/35, like other directives, imposes upon the Member
         States an obligation to provide information.
      
      107    The information which the Member States are thus obliged to supply to the Commission must be clear and precise. It must indicate
         unequivocally the laws, regulations and administrative provisions by means of which the Member State considers that it has
         satisfied the various requirements imposed on it by the directive. In the absence of such information, the Commission is not
         in a position to ascertain whether the Member State has genuinely implemented the directive completely. The failure of a Member
         State to fulfil that obligation, whether by providing no information at all or by providing insufficiently clear and precise
         information, may of itself justify recourse to the procedure under Article 226 EC in order to establish the failure to fulfil
         the obligation (see Case C‑456/03 Commission v Italy, paragraph 27).
      
      108    Moreover, although the transposition of a directive may be carried out by means of domestic legal rules already in force,
         the Member States are not, in that event, absolved from the formal obligation to inform the Commission of the existence of
         those rules so that it can be in a position to assess whether the rules comply with the directive (see, to that effect, Case
         C-456/03 Commission v Italy, paragraph 30).
      
      109    In the present case, in so far as the law already in force was deemed to ensure, by itself, the implementation of the provisions
         of Directive 2003/35 relating to access to justice in environmental matters, it was for Ireland to inform the Commission of
         the laws or regulations in question, and it cannot properly argue that it had previously notified the Commission of those
         domestic legal rules in the context of the transposition of Directives 85/337 and 96/61 as applicable before the amendments
         introduced by Directive 2003/35.
      
      110    Since it claimed that transposition had been confirmed by the case-law of its national courts, in particular, that of the
         High Court, it was also for Ireland to communicate to the Commission a precise summary of that case-law, thus enabling the
         Commission to ascertain whether Ireland had indeed implemented Directive 2003/35 solely by virtue of applying national law
         as it existed before that directive entered into force, and to carry out its task of supervision under the Treaty.
      
      111    Consequently, the second complaint is well founded in so far as it concerns infringement of the obligation to inform the Commission.
      
      112    Therefore, having regard to all of the foregoing considerations, it must be held that 
      
      –        by failing to adopt, in conformity with Article 2(1) and Article 4(2) to (4) of Council Directive 85/337 as amended by Directive
         97/11, all measures to ensure that, before consent is given, projects likely to have significant effects on the environment
         in the road construction category covered by point 10(e) of Annex II to Directive 85/337 as amended by Directive 97/11 are
         made subject to a requirement for development consent and to an assessment with regard to their effects in accordance with
         Articles 5 to 10 of that amended directive, and 
      
      –        by failing to adopt the laws, regulations and administrative provisions necessary to comply with Articles 3(3) to (7) and
         4(2) to (4) of Directive 2003/35, and by failing to adequately notify such provisions to the Commission, 
      
      Ireland has failed to fulfil its obligations under Directive 85/337, as amended by Directive 97/11, and Article 6 of Directive
         2003/35.
      
      113    The remainder of the action is dismissed.
      
       Costs
      114    Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been
         applied for in the successful party’s pleadings. Under Article 69(3) of those rules, where each party succeeds on some and
         fails on other heads, or where the circumstances are exceptional, the Court may order that the costs be shared or that the
         parties bear their own costs.
      
      115    In the present dispute, while the Commission has requested that Ireland be ordered to pay the costs, account must be taken
         of the fact that a substantial number of the applicant’s complaints were unsuccessful. Therefore, each of the parties will
         be ordered to bear its own costs.
      
      On those grounds, the Court (Second Chamber) hereby:
      1.      Declares that
      –        by failing to adopt, in conformity with Article 2(1) and Article 4(2) to (4) 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, as amended by Council Directive
            97/11/EC of 3 March 1997, all measures to ensure that, before consent is given, projects likely to have significant effects
            on the environment in the road construction category, covered by point 10(e) of Annex II to Directive 85/337, as amended by
            Directive 97/11, are made subject to a requirement for development consent and to an assessment with regard to their effects
            in accordance with Articles 5 to 10 of that directive, and 
      –        by failing to adopt the laws, regulations and administrative provisions necessary to comply with Article 3(3) to (7) and Article
            4(2) to (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, and by failing to adequately notify such provisions
            to the Commission of the European Communities,
      Ireland has failed to fulfil its obligations under Directive 85/337, as amended by Directive 97/11, and Article 6 of Directive
            2003/35;
      2.      Dismisses the action as to the remainder;
      3.      Orders the Commission of the European Communities and Ireland to bear their own costs. 
      [Signatures]
      * Language of the case: English.