CELEX: 62005CC0216
Language: en
Date: 2006-06-22
Title: Opinion of Advocate General Stix-Hackl delivered on 22 June 2006. # Commission of the European Communities v Ireland. # Failure of a Member State to fulfil obligations - Assessment of the effects of certain projects on the environment - Directives 85/337/EEC and 97/11/EC - National legislation - Participation by the public in certain assessment procedures upon payment of fees. # Case C-216/05.

OPINION OF ADVOCATE GENERAL
      STIX-HACKL
      delivered on 22 June 2006 1(1)
      
      Case C-216/05
      Commission of the European Communities 
      v
      Ireland
      (Action against a Member State for failure to fulfil obligations – Directive 85/337/EEC – Environmental impact assessment – Public consultation – Levying of administrative fees)I –  Introduction
      1.        By the present action for failure to fulfil obligations, the Commission seeks a declaration that, by making the full and effective
         participation of the public in certain environmental impact assessments subject to prior payment of participation fees, (2) Ireland has failed to comply with its obligations under Articles 6 and 8 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, (3) as amended by Council Directive 97/11/EC of 3 March 1997 (4) (‘the EIA Directive’).
      
      2.        The EIA Directive contains no express provision relating to administrative fees as levied, in the present case, in Ireland
         for public participation in the consultation process when environmental impact assessments are carried out. Although the failure
         to fulfil obligations that is pleaded in the present proceedings is to be examined with specific regard to the EIA Directive,
         the more general question is also raised of the extent to which the Member States are allowed to levy administrative fees
         in a domestic administrative procedure which is carried out on the basis or in implementation of Community provisions.
      
      II –  Legal context
      A –    The EIA Directive
      3.        The EIA Directive provides that, before the execution of certain works or other interventions in the natural surroundings,
         an environmental impact assessment is to be carried out.
      
      4.        Article 6 of the EIA Directive reads as follows:
      
      ‘1.   Member States shall take the measures necessary to ensure that the authorities likely to be concerned by the project by reason
         of their specific environmental responsibilities are given an opportunity to express their opinion on the information supplied
         by the developer and on the request for development consent. To this end, Member States shall designate the authorities to
         be consulted, either in general terms or on a case-by-case basis. The information gathered pursuant to Article 5 shall be
         forwarded to those authorities. Detailed arrangements for consultation shall be laid down by the Member States. 
      
      2.     Member States shall ensure that any request for development consent and any information gathered pursuant to Article 5 are
         made available to the public within a reasonable time in order to give the public concerned the opportunity to express an
         opinion before the development consent is granted. 
      
      3.     The detailed arrangements for such information and consultation shall be determined by the Member States, which may in particular,
         depending on the particular characteristics of the projects or sites concerned: 
      
      –        determine the public concerned, 
      –        specify the places where the information can be consulted, 
      –        specify the way in which the public may be informed, for example by bill-posting within a certain radius, publication in local
         newspapers, organisation of exhibitions with plans, drawings, tables, graphs, models, 
      
      –        determine the manner in which the public is to be consulted, for example, by written submissions, by public enquiry, 
      –        fix appropriate time limits for the various stages of the procedure in order to ensure that a decision is taken within a reasonable
         period.’
      
      5.        Article 8 provides:
      
      ‘The results of consultations and the information gathered pursuant to Articles 5, 6 and 7 must be taken into consideration
         in the development consent procedure.’
      
      B –    The national provisions relating to the administrative charges at issue
      6.        Under Irish planning law, members of the public may be charged administrative fees for making submissions or observations
         on planning applications and on appeals, that is to say both in the procedure before the local planning authority and in proceedings
         before An Bord Pleanála (the Planning Appeals Board; ‘Bord Pleanála’). These administrative fees relate to all planning procedures,
         including procedures involving an environmental impact assessment. Their amount does not depend on the scale of the project
         or the extent of the submissions or observations. Also, the fee is to be levied only once, so that no further charge becomes
         payable for additional submissions or observations in the same procedure.
      
      7.        The statutory basis for levying the administrative fees is the Planning and Development Act 2000. 
      
      8.        Section 33 of the Act empowers the Minister for the Environment inter alia to prescribe by regulation an administrative fee
         payable by members of the public for making submissions or observations on planning applications before local planning authorities.
         At the material time, the administrative fee prescribed by the Minister for the Environment amounted to EUR 20. 
      
      9.        Section 144 of the Act empowers Bord Pleanála, subject to the approval of the Minister, to determine a fee for the making
         of submissions or observations on planning appeals. According to the Commission, this administrative charge amounted to EUR
         45 at the material time.
      
      10.      The Act exempts various State bodies and certain organisations from the administrative fees payable at both stages. This exemption
         covers, in addition to regional and State authorities, bodies which represent particular interests in connection with planning
         proposals, such as Fáilte Ireland, An Taisce and the Environmental Protection Agency.
      
      III –  Facts and procedure
      11.      Acting on the basis of two complaints received by it in 2000, the Commission called on the Irish authorities by letter of
         29 August 2000 to comment on certain aspects of the Planning and Development Act 2000, which was not yet in force, in particular
         on the provisions under which interested members of the public would have to pay an administrative fee in order to participate
         in the planning process.
      
      12.      Following an initial letter in response from the Irish authorities, on 23 October 2001 the Commission sent Ireland a letter
         of formal notice calling on it to comment on the fact that, under Irish planning law, rights pursuant to the EIA Directive
         would be exercisable only upon payment of a participation fee.
      
      13.      By letter of 7 March 2002, the Irish authorities responded that in their view the EIA Directive did not preclude the levying
         of administrative fees of the kind prescribed on the basis of the Planning and Development Act 2000. They stated in particular
         that under the Directive it is for the Member States to determine the detailed arrangements for consultation of the public
         and that the public would not be discouraged by the fees at issue from participating in the consultation process.
      
      14.      The Commission responded by sending a reasoned opinion to Ireland on 23 January 2003, in which it reaffirmed the complaint
         that, by levying the administrative fees at issue, Ireland was infringing Articles 6 and 8 of the EIA Directive.
      
      15.      In their reply of 16 May 2003, the Irish authorities again disputed that it was contrary to the EIA Directive to levy fees,
         stating in particular that the charges were proportionate and necessary in order to absorb the costs of the enhanced rights
         of public consultation under Irish planning law.
      
      16.      However, the Commission adhered to its view and therefore, by application dated 29 April 2005, registered at the Court on
         17 May 2005, it brought the present action against Ireland pursuant to Article 226 EC.
      
      IV –  Consideration of the action
      A –    Key arguments of the parties
      17.      The Commission submits that the Irish legislation under which administrative fees are payable for participation by interested members of
         the public in the consultation process required by the EIA Directive is incompatible with Article 6 of the EIA Directive essentially
         for four reasons.
      
      18.      The Commission contends, first, that no provision of the Directive expressly permits such fees. By contrast, it is expressly
         provided, for example, in Article 5 of Directive 90/313/EEC on the freedom of access to information on the environment (5) that Member States may make a charge for supplying information. To levy a charge such as that at issue would be justified
         under the EIA Directive only if to do so were objectively necessary and proportionate. Furthermore, no other Member State
         requires payment of an administrative fee for participation in the consultation process.
      
      19.      The Commission submits, second, that levying the administrative fees is contrary to the scheme and purpose of the EIA Directive,
         under which environmental impact assessments are to be carried out on the basis of appropriate information from a number of
         sources, including the public. The charge makes it less likely that the public will participate, through the consultation
         procedure, in the decision-making process and that the authorities will thus assess a project’s environmental effects appropriately.
      
      20.      Third, the wording of Article 6 of the Directive does not admit the broad interpretation put forward by Ireland. The imposition
         of fees is not to be regarded as one of the ‘detailed arrangements for consultation’ under Article 6(3) of the Directive which
         is to be determined by the Member States, because that legislative power covers only what is necessary to give practical effect
         to consultation under Article 6(2). The ‘polluter pays’ principle laid down in Article 174(2) EC also militates in favour
         of this interpretation, since otherwise costs attributable to applicants for development proposals which have environmental
         impacts are passed instead to the public or to those who may be affected by those impacts. 
      
      21.      Fourth, the Commission states that the levying of the fees at issue impedes, or potentially impedes, exercise of the rights
         conferred on the public by Article 6(2). The fees have a deterrent effect on social welfare recipients in particular, especially
         as the aggregate fees of EUR 65 for the procedure before the local planning authority and the appeal proceedings before Bord
         Pleanála represent 50% of the weekly income of this category of persons.
      
      22.      The Commission then submits that the breach of Article 8 of the Directive that is pleaded follows from the infringement of
         Article 6, as Ireland fails thereby to ensure that opinions of members of the public who do not pay the administrative fees
         are taken into account in the development consent procedure. 
      
      23.      Ireland opposes each of the Commission’s arguments. 
      
      24.      In its submission, it cannot be concluded from the fact that administrative fees of the kind at issue are not expressly envisaged
         in the Directive that the Member States are prohibited from introducing such fees. This follows also from the principle of
         subsidiarity, from the discretion which the Member States generally have under Article 249 EC with regard to the transposition
         of directives and from the legislative power of the Member States pursuant to Article 6(3) of the Directive. The fact that
         other Member States do not impose a fee does not mean that this is incompatible with the Directive.
      
      25.      There is no basis whatsoever in the Directive for the ‘justification test’ which the Commission has proposed. The question
         whether administrative fees erode the right under Article 6(2) of the Directive to be consulted is to be answered solely in
         relation to the administrative fees actually levied in Ireland. So far as concerns the amount of the fees, Ireland considers
         that the income of social welfare recipients is not the right yardstick. Instead, the average monthly income in Ireland should
         be taken as a basis. In any event, the administrative fees at issue are not high, but reasonable and not a deterrent. They
         are intended to contribute in some small way towards defraying the considerable costs which arise because the Planning and
         Development Act 2000 has enhanced the rights of members of the public.
      
      26.      In Ireland’s submission, no conclusions are in any event to be drawn for the EIA Directive from Directive 90/313. The contested
         provisions comply with both the principle of effectiveness and the principle of equivalence.
      
      B –    Appraisal
      27.      First of all, issue must, in my view, be taken with the Commission in so far as it submits that a Member State would be allowed
         to levy an administrative fee only if this were expressly provided for in the Directive. 
      
      28.      That approach ultimately implies that a Member State might act only in so far as there is permission under Community law to
         do so. It is more correct, however, to proceed as a matter of principle on the basis that anything not prohibited by Community
         law remains, generally speaking, open to a Member State, or that Member States have legislative power or freedom to act in
         so far as Member State action does not conflict with the requirements of Community law. This also corresponds to the principle,
         enshrined in Article 5 EC, of conferred powers, under which the Community is attributed no general or exclusive power to legislate,
         but acts within the framework of, and in accordance with, the respective powers laid down by the Treaty and binds the Member
         States to that extent.
      
      29.      In that connection, as Ireland has stated, it can in any event not be inferred automatically from the EIA Directive’s silence
         as to administrative fees in connection with public consultation pursuant to Article 6(2) that the Member States are prohibited
         from levying such fees. 
      
      30.      Rather, it is to be remembered that according to the general principles on which the Community is based and which govern relations
         between the Community and the Member States, it is for the latter, under Article 10 EC, to ensure that Community rules are
         implemented within their territories. In implementing those rules, the national authorities are to act in accordance with
         the procedural and substantive rules of their own national law so far as Community law, including its general principles,
         does not include common rules to that end. (6)
      
      31.      Recourse to rules such as the rules of Irish planning law at issue under which administrative fees are levied for public participation
         in the consultation process is thus possible in so far as, or only in so far as, the application of those rules of national
         law does not jeopardise the scope and effectiveness of Community law, including its general principles. (7)
      
      32.      The present case concerns primarily the compatibility of national rules with the EIA Directive. As Ireland has pointed out,
         under Article 249 EC the Member States are left free to choose the ways and means of implementing a directive, but that freedom
         does not affect the obligation on each of the Member States to adopt, in their national legal systems, all the measures necessary
         to ensure that the directive is fully effective, in accordance with the objective it pursues. (8)
      
      33.      It must therefore be examined below whether the levying of administrative fees for public participation in the consultation
         process when an environmental impact assessment is carried out is contrary to the requirements resulting from the Directive
         – in accordance with its wording, its context and its objective (9) – and to its practical effectiveness.
      
      34.      As regards, first, the Commission’s reference to Directive 90/313, the fact that under another directive it is expressly permitted
         to levy fees cannot in my view found a general presumption that the Community legislature has wished to allow fees only when
         the legislation expressly so provides. In any event, that mention of fees does not mean that it can safely be concluded a
         contrario that such fees are intended to be prohibited under the EIA Directive. 
      
      35.      So far as concerns, next, the ‘justification test’ put forward by the Commission, according to which the levying of a fee
         should be objectively required, for example on grounds of good administration, and be proportionate, it is to be noted, as
         Ireland has pointed out, that neither the Directive itself nor Article 249 EC – in contrast to, for example, the Treaty provisions
         on the fundamental freedoms – contain such a qualification. 
      
      36.      The Commission has also submitted that the levying of administrative fees is contrary to the aim and purpose of Article 6(2)
         of the Directive of enabling the public to participate in the consultation process when an environmental impact assessment
         is carried out and the competent authorities to assess the environmental effects properly, and erodes the practical effectiveness
         of this provision.
      
      37.      Under Article 5(3) of the Directive in conjunction with the sixth recital in its preamble, where development consent is sought
         for a project, the assessment of its environmental effects must be conducted primarily on the basis of the appropriate information
         supplied by the developer. According to that recital, this information may be supplemented by the authorities and by the public.
      
      38.      Under Article 6(2) of the Directive, the Member States are correspondingly to ensure that any request for development consent
         and any information gathered are made available to the public within a reasonable time ‘in order to give the public concerned
         the opportunity to express an opinion before the development consent is granted’.
      
      39.      In my view, that cannot be taken to mean that there is an unrestricted right for everybody to be consulted. As Ireland has submitted, this is so in particular because the Member States are expressly empowered under
         Article 6(3) of the Directive to determine the detailed arrangements for consultation of the public in such a way that the
         scope of the resulting consultation is restricted. 
      
      40.      The Member States can, in accordance with the non-exhaustive list of possibilities in Article 6(3), determine both the public
         concerned and how the consultation is carried out; the consultation may, for example, even be in the form of public enquiry.
         In addition, the consultation stage can be limited in time.
      
      41.      Viewed in this light, the levying of administrative fees as a condition for public participation in the consultation process,
         which in the relevant Member State takes place by way of written submissions, does impose a condition on or restrict consultation
         of the public, but that restriction is not in itself incompatible with the Directive. 
      
      42.      Of course, the discretion of the Member States with regard to implementation of the Directive is limited in addition by the
         general principles of Community law, (10) which include, in particular, the principles of effectiveness and equivalence. Under these principles, which the Court has
         applied not only to national judicial proceedings but also in connection with administrative procedures, (11) the detailed procedural and substantive rules laid down in national law must not render it virtually impossible or excessively
         difficult to implement the Community rules, and national law must be applied in a manner which is not discriminatory as compared
         to corresponding proceedings or procedures which concern purely domestic law. (12)
      
      43.      First, therefore, it is to be asked, in accordance with the principle of effectiveness, whether participation of the public
         in the consultation process forming part of the environmental impact assessment procedure is rendered excessively difficult
         or even virtually impossible by the administrative fees at issue. The answer to this question can naturally not be given in
         the abstract, but depends on the actual amount of the administrative fees in question. 
      
      44.      In the present case, the fee for making observations in the procedure before a local planning authority amounts to EUR 20
         and the fee in proceedings before Bord Pleanála is EUR 45. Both parties have correctly proceeded on the basis that the significance
         or the (deterrent) effect of these fees for persons wishing to participate in the consultation process depends in principle
         on whether, in view of the means available to them, that is to say, above all their incomes, the fees appear easily, or less
         easily, affordable. The parties do not agree, however, on the criterion of assessment to be applied.
      
      45.      The weekly income of the category of persons constituted by social welfare recipients, the yardstick used by the Commission,
         is as extreme a yardstick as, for example, the average annual income of people in the highest income brackets would be. An
         assessment having regard to average monthly income in Ireland appears to me more sensible, even though no clear conclusions
         can be drawn from this either. On the whole, however, Ireland’s view that EUR 20 and EUR 45 are, generally, affordable sums
         is probably to be accepted as correct. Furthermore, as is apparent from the case‑file and Ireland’s submissions, the amount
         of these fees falls perfectly within the normal range for various fees and charges in connection with administrative procedures
         in Ireland.
      
      46.      Finally, regard must be had to the fact that, as I have already stated, the Directive does not oblige the Member States to
         guarantee the unconditional and unrestricted consultation of everybody but to grant the ‘public’, which is not more precisely
         defined, an effective opportunity to be consulted.
      
      47.      For those reasons I am of the view that the actual amount of the administrative fees at issue does not render realisation
         of the public consultation virtually impossible or excessively difficult.
      
      48.      With regard to the second principle, that is to say the principle of equivalence, as Ireland has stated and the Commission
         has not disputed, the administrative fees at issue are levied generally for observations of the public in the Irish planning
         process and therefore are not applicable just to environmental impact assessment procedures in accordance with the EIA Directive.
         The provisions of Irish planning law governing public consultation pursuant to Article 6(2) of the Directive are not, in this
         regard, less favourable than those relating to comparable, purely national, procedures and thus the consultation complies
         with the principle of equivalence too.
      
      49.      Finally, in its application the Commission has not only contended that the administrative fees at issue are incompatible with
         Community law, first, generally and, secondly, because of their respective actual amounts, but has also complained, thirdly,
         that the Planning and Development Act 2000 authorises the competent minister or Bord Pleanála to prescribe the fees without
         limiting that power or defining it more precisely.
      
      50.      This criticism clearly relates to the principle of legal certainty, which the Member States are also to observe when transposing
         directives. According to the case-law on this principle, the Member States must implement their obligations under Community
         law with unquestionable binding force and with the specificity, precision and clarity necessary to satisfy the requirements
         flowing from that principle. (13)
      
      51.      As is also apparent from the case-law, legislative action is not necessarily required for this. The principle of legal certainty
         can also be satisfied by a general legal framework provided that the full application of the directive by the national authorities
         is actually ensured and that, where the relevant provision of the directive seeks to create rights for individuals, the legal
         situation arising from the general legal framework is sufficiently precise and clear and that the persons concerned are put
         in a position to know the full extent of their rights. (14)
      
      52.      In particular, in accordance with settled case-law, to which the Commission clearly alludes, mere administrative practices
         for example, which by their nature are alterable at will by the authorities and are not given appropriate publicity, cannot
         be regarded as constituting the proper fulfilment of a Member State’s obligations under Community law, since they maintain,
         for the persons concerned, a state of uncertainty as regards the extent of their rights in an area governed by Community law.
         (15)
      
      53.      I do not think, however, that the way in which the administrative fees at issue are laid down in Irish law, namely by regulations
         of the competent minister or by Bord Pleanála with approval of the minister, can be equated to a ‘mere administrative practice’
         within the meaning of this case-law. The Court has also already found to this effect, stating that the mere fact that a national
         legislative instrument has delegated to an authority of a Member State, such as a minister, authority to adopt measures prescribed
         by Community law is not in itself of such a nature as to infringe the principle of legal certainty, since the adoption of
         a measure following such a procedure does not necessarily mean that that measure is not binding or does not satisfy the requirement
         of that principle that it be specific, precise and clear. (16)
      
      54.      Accordingly, the Irish administrative fees at issue have been prescribed pursuant to the Planning and Development Act 2000
         with sufficient binding force and precision to satisfy the principle of legal certainty.
      
      55.      In light of all the foregoing, I reach the conclusion that the complaint alleging infringement of Article 6 of the EIA Directive
         and an associated breach of Article 8 is unfounded.
      
      56.      The Commission’s action is therefore to be dismissed.
      
      V –  Costs
      57.      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. Since the Commission is unsuccessful, it must bear the costs as applied for
         by Ireland.
      
      VI –  Conclusion
      58.      I accordingly propose that the Court should:
      
      –        dismiss the action;
      –        order the Commission of the European Communities to pay the costs.
      1 –	Original language: German.
      
      2 –	This is the – somewhat imprecise – term used by the Commission in its application, but technically administrative charges/fees
         are at issue.
      
      3 –	OJ 1985 L 175, p. 40.
      
      4 –	Directive amending Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the
         environment (OJ 1997 L 73, p. 5).
      
      5 –	Council Directive of 7 June 1990 (OJ 1990 L 158, p. 56).
      
      6 –	See, inter alia, Joined Cases C-480/00, C-481/00, C-482/00, C-484/00, C-489/00, C-490/00, C‑491/00, C-497/00, C-498/00
         and C‑499/00 Azienda Agricola Ettore Ribaldi and Others [2004] ECR I-2943, paragraph 42; Case C‑285/93 Dominikanerinnen-Kloster Altenhohenau [1995] ECR I‑4069, paragraph 26; and Case C‑292/97 Karlsson and Others [2000] ECR I‑2737, paragraph 27.
      
      7 –	Cf., inter alia, Joined Cases C‑80/99, C‑81/99 and C‑82/99 Flemmer and Others [2001] ECR I‑7211, paragraph 55; Joined Cases 146/81, 192/81 and 193/81 Bay Wa and Others [1982] ECR 1503, paragraph 29; and Joined Cases 205/82 to 215/82 Deutsche Milchkontor and Others [1983] ECR 2633, paragraphs 17 and 22.
      
      8 –	Inter alia, Case 14/83 Von Colson and Kamann [1984] ECR 1891, paragraph 26, and Case C‑478/99 Commission v Sweden [2002] ECR I‑4147, paragraph 15.
      
      9 –	Cf., inter alia, Case C-72/95 Kraaijeveld [1996] ECR I‑5403, paragraph 28.
      
      10 –	See above, point 30.
      
      11 –	See, by way of example, for the application of those principles to an administrative procedure for the settling of disputes
         concerning the levying of a domestic tax, Case C-228/98 Dounias [2000] ECR I‑577, paragraphs 62 to 67; with regard to the collection of Community revenues and of agricultural levies in
         accordance with the detailed rules and conditions laid down in Member States’ domestic law, see Joined Cases 66/79, 127/79
         and 128/79 Salumi and Others [1980] ECR 1237, paragraphs 17 to 20; see also, on the provisions to be applied with regard to recovery by the national authorities
         of unduly paid aid, Deutsche Milchkontor and Others, cited in footnote 7, paragraph 15 et seq.
      
      12 –	Inter alia, Deutsche Milchkontor and Others, cited in footnote 7, paragraph 19; Case C-298/96  Ölmühle Hamburg and Schmidt Söhne [1998] ECR I‑4767, paragraph 24; Case C-255/00 Grundig Italiana [2002] ECR I‑8003, paragraph 33; and Case C-201/02 Wells [2004] ECR I‑723, paragraph 70.
      
      13 –	Inter alia, Case C-313/99 Mulligan and Others [2002] ECR I-5719, paragraphs 46 and 47, and Case C-159/99 Commission v Italy [2001] ECR I-4007, paragraph 32.
      
      14 –	See, in this regard, in particular Case C-233/00 Commission v France [2003] ECR I-6625, paragraph 76, and the case-law cited.
      
      15 –	See, to this effect, Case C-80/92 Commission v Belgium [1994] ECR I‑1019, paragraph 20, and Case C-151/94 Commission v Luxembourg [1995] ECR I‑3685, paragraph 18.
      
      16 –	See Mulligan and Others, cited in footnote 13, paragraph 50.