CELEX: 62007CC0473
Language: en
Date: 2008-11-06
Title: Opinion of Mr Advocate General Mengozzi delivered on 6 November 2008. # Association nationale pour la protection des eaux et rivières-TOS and Association OABA v Ministère de l'Ecologie, du Développement et de l'Aménagement durables. # Reference for a preliminary ruling: Conseil d'État - France. # Pollution and nuisance - Directive 96/61/EC - Annex I - Subheading 6.6(a) - Intensive rearing of poultry - Definition - Meaning of ‘poultry’ - Maximum number of animals per installation. # Case C-473/07.

OPINION OF ADVOCATE GENERAL
      MENGOZZI
      delivered on 6 November 2008 (1)
      
      Case C‑473/07
      Association nationale pour la protection des eaux et rivières – TOS,
      Association OABA
      v
      Ministère de l’Écologie, du Développement et de l’Aménagement durables
      (Reference for a preliminary ruling from the Conseil d’État (France))
      (Directive 96/61/EC – Pollution prevention and control – Environment – Concepts of ‘poultry’ and ‘places’ – Whether quails, partridges and pigeons come within the scope of the directive – Maximum number of birds per place – Prior declaration and authorisation systems governing installations for the intensive rearing of poultry)I –  Introduction
      1.        By its present reference, the Conseil d’État (Council of State) (France) seeks a preliminary ruling from the Court on the
         interpretation of subheading 6.6(a) of Annex I to Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution
         prevention and control. (2)
      
      2.        The reference was made in the course of proceedings brought by the Association nationale pour la protection des eaux et rivières
         (National Association for the Protection of Waters and Rivers) (‘ANPER-TOS’) and the Association OABA before the referring
         court seeking the annulment of Decree No 2005-989 of 10 August 2005 amending the nomenclature of classified installations. (3)
      
      3.        In substance, it is necessary, first of all, to determine whether quails, partridges and pigeons are to be regarded as poultry
         coming within the scope of Directive 96/61, which establishes a prior authorisation system for installations intended for
         the intensive rearing of poultry with more than 40 000 places. Second, and if the answer to that question is affirmative,
         it is necessary to determine whether a national scheme known as ‘animal‑equivalents’, laid down by Decree No 2005-989, which
         gives weighting to animals according to the amount of nitrogen actually excreted and which is used to calculate the threshold
         from which installations are subject to the prior authorisation system, complies with Directive 96/61.
      
      II –  Legal framework
      A –    Community legislation
      4.        Article 1 of Directive 96/61 provides:
      
      ‘The purpose of this Directive is to achieve integrated prevention and control of pollution arising from the activities listed
         in Annex I. It lays down measures designed to prevent or, where that is not practicable, to reduce emissions in the air, water
         and land from the abovementioned activities, including measures concerning waste, in order to achieve a high level of protection
         of the environment taken as a whole, without prejudice to [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)] and other relevant Community
         provisions.’
      
      5.        Article 2 of Directive 96/61, entitled ‘Definitions’, provides:
      
      ‘For the purposes of this Directive:
      …
      3.      “installation” shall mean a stationary technical unit where one or more activities listed in Annex I are carried out …
      4.      “existing installation” shall mean an installation in operation or, in accordance with legislation existing before the date
         on which this Directive is brought into effect, an installation authorised or in the view of the competent authority the subject
         of a full request for authorisation, provided that that installation is put into operation no later than one year after the
         date on which this Directive is brought into effect; 
      
      …
      9.      “permit” shall mean that part or the whole of a written decision (or several such decisions) granting authorisation to operate
         all or part of an installation, subject to certain conditions which guarantee that the installation complies with the requirements
         of this Directive. …
      
      …’
      6.        Article 4 of Directive 96/61 states:
      
      ‘Member States shall take the necessary measures to ensure that no new installation is operated without a permit issued in
         accordance with this Directive …’
      
      7.        Under Article 5 of Directive 96/61:
      
      ‘1.       Member States shall take the necessary measures to ensure that the competent authorities see to it, by means of permits in
         accordance with Articles 6 and 8 or, as appropriate, by reconsidering and, where necessary, by updating the conditions, that
         existing installations operate in accordance with the requirements of Articles 3, 7, 9, 10, 13, the first and second indents
         of 14, and 15(2) not later than eight years after the date on which this Directive is brought into effect, without prejudice
         to specific Community legislation.
      
      2.      Member States shall take the necessary measures to apply the provisions of Articles 1, 2, 11, 12, 14, third indent, 15(1),
         (3) and (4), 16, 17 and 18(2) to existing installations as from the date on which this Directive is brought into effect.’
      
      8.        Article 9 of Directive 96/61, entitled ‘Conditions of the permit’, states:
      
      ‘1.       Member States shall ensure that the permit includes all measures necessary for compliance with the requirements of Articles
         3 and 10 for the granting of permits in order to achieve a high level of protection for the environment as a whole by means
         of protection of the air, water and land.
      
      …
      3.      The permit shall include emission limit values for pollutants, in particular, those listed in Annex III, likely to be emitted
         from the installation concerned in significant quantities, having regard to their nature and their potential to transfer pollution
         from one medium to another (water, air and land). … Where appropriate, limit values may be supplemented or replaced by equivalent
         parameters or technical measures.
      
      For installations under subheading 6.6 in Annex I, emission limit values laid down in accordance with this paragraph shall
         take into account practical considerations appropriate to these categories of installation.
      
      4.      Without prejudice to Article 10, the emission limit values and the equivalent parameters and technical measures referred to
         in paragraph 3 shall be based on the best available techniques, without prescribing the use of any technique or specific technology,
         but taking into account the technical characteristics of the installation concerned, its geographical location and the local
         environmental conditions. In all circumstances, the conditions of the permit shall contain provisions on the minimisation
         of long-distance or transboundary pollution and ensure a high level of protection for the environment as a whole.
      
      …’
      9.        Article 16(2) of Directive 96/61 provides:
      
      ‘The Commission shall organise an exchange of information between Member States and the industries concerned on best available
         techniques, associated monitoring, and developments in them. Every three years the Commission shall publish the results of
         the exchanges of information.’
      
      10.      Article 18 of Directive 96/61 states:
      
      ‘1.       Acting on a proposal from the Commission, the Council will set emission limit values, in accordance with the procedures laid
         down in the [EC] Treaty, for:
      
      –        the categories of installations listed in Annex I …
      and
      –        the polluting substances referred to in Annex III,
      for which the need for Community action has been identified, on the basis, in particular, of the exchange of information provided
         for in Article 16.
      
      2.      In the absence of Community emission limit values defined pursuant to this Directive, the relevant emission limit values contained
         in the Directives referred to in Annex II and in other Community legislation shall be applied as minimum emission limit values
         pursuant to this Directive for the installations listed in Annex I. 
      
      …’
      11.      Annex I to Directive 96/61, entitled ‘Categories of industrial activities referred to in Article 1’, provides in subheading
         6.6:
      
      ‘Installations for the intensive rearing of poultry … with more than:
      (a)      40 000 places for poultry;
      …’
      12.      Annex III to Directive 96/61, entitled ‘Indicative list of the main polluting substances to be taken into account if they
         are relevant for fixing emission limit values’, provides:
      
      ‘AIR
      …
      2. Oxides of nitrogen and other nitrogen compounds
      …
      5. Metals and their compounds
      …
      WATER
      …
      2. Organophosphorus compounds
      …
      7. Metals and their compounds
      …
      11. Substances which contribute to eutrophication (in particular, nitrates and phosphates)
      …’
      B –    National legislation
      13.      Under Article 1 of Decree No 2005-989, the table constituting the nomenclature of classified installations … became Annex
         I to that decree. 
      
      14.      Annex I to Decree No 2005-989 provides in heading 2111:
      
      ‘Poultry, game birds (rearing, sale, etc.), excluding the specific activities referred to under other headings:
      1.      More than 30 000 animal-equivalents: authorisation
      2.      From 5 000 to 30 000 animal‑equivalents: declaration
      Note. – Poultry and game birds are counted by using the following values expressed as animal‑equivalents:
      quail = 0.125;
      pigeon, partridge = 0.25;
      cockerel = 0.75;
      small chicken = 0.85;
      hen, standard chicken, “quality label” chicken, organic chicken, pullet, laying hen, breeder hen, pheasant, guinea fowl, mallard
         duck = 1;
      
      large chicken = 1.15;
      roasting duck, duck ready for force-feeding, breeder duck = 2;
      small turkey = 2.20;
      medium turkey, breeder turkey, goose = 3;
      large turkey = 3.50;
      force-fed geese or duck = 7.’
      III –  Dispute in the main proceedings and the question referred for a preliminary ruling
      15.      It is apparent from the order for reference that ANPER-TOS submits that the calculation method adopted by Decree No 2005-989
         is contrary to Directive 96/61, whereas the Ministre de l’Écologie, du Développement et de l’Aménagement durables (Minister
         for Ecology, Sustainable Development and Planning) takes the view, first, that the directive does not mention quails, partridges
         and pigeons among the poultry which it designates and, second, that the values in animal-equivalents have been calculated
         in order better to take account of the quantity of nitrogen actually excreted by the various species.
      
      16.      The referring court notes that, according to Directive 96/61, installations for the intensive rearing of poultry with more
         than 40 000 places must be subject to an authorisation system and that the directive, unlike other Community measures applicable
         to poultry which, depending on the circumstances, may or may not include quails, partridges and pigeons within their respective
         scopes, does not define the term ‘poultry’.
      
      17.      In those circumstances, taking the view that the question as to whether installations for the intensive rearing of poultry
         with more than 40 000 places must be regarded as including within their scope quails, partridges and pigeons raises a serious
         difficulty, the Conseil d’État stayed the proceedings until the Court has given a ruling on whether ‘subheading 6.6(a) of
         Annex I to Directive 96/61 … must be interpreted (i) as including within its scope quails, partridges and pigeons; and, if
         so, (ii) as authorising a mechanism for calculating authorisation thresholds on the basis of a system of “animal-equivalents”
         which gives weighting to the number of animals per place according to species so that account may be taken of the amount of
         nitrogen actually excreted by the various species’.
      
      IV –  The proceedings before the Court
      18.      In accordance with Article 23 of the Statute of the Court of Justice, ANPER-TOS, the Association France Nature Environnement,
         intervener in the main proceedings, the French and Greek Governments and the Commission submitted written observations to
         the Court. Those parties also presented oral argument at the hearing held on 18 September 2008, with the exception of the
         applicant and the intervener in the main proceedings, which were not represented at that hearing.
      
      V –  Analysis
      19.      As the referring court has observed, it is clear from the provisions of Directive 96/61 and subheading 6.6(a) of Annex I thereto
         that installations for the intensive rearing of poultry with more than 40 000 places are subject to a system of prior authorisation.
         
      
      20.      By contrast, as is also apparent from the order for reference, Decree No 2005-989 lays down, in heading 2111 of the nomenclature
         of classified installations, an authorisation threshold of 30 000 animal‑equivalents for poultry and game-bird farms by fixing,
         inter alia, a coefficient conversion of 0.125 for quails and of 0.25 for partridges and pigeons. This method of calculation,
         justified by the concern better to take account of the amount of nitrogen actually excreted into the environment by the various
         species, allows a farm with more than 40 000 quails, partridges or pigeons to operate under a prior declaration system. More
         specifically, installations for rearing quails are not subject to prior authorisation up to a threshold of 240 000 birds,
         while installations for rearing partridges or pigeons are subject to prior authorisation only above a threshold of 120 000
         birds. (4)
      
      21.      The scope of subheading 6.6(a) of Annex I to Directive 96/61 is determined by three cumulative elements: (i) the rearing must
         be intensive; (ii) it must relate to poultry; and (iii) the installations concerned must have more than 40 000 places.
      
      22.      It is common ground that Directive 96/61 does not define the meaning of ‘intensive rearing’, ‘poultry’ or ‘places’. 
      
      23.      As regards intensive rearing, the French Government argues, in its observations lodged before the Court, that quails, partridges
         and pigeons, by virtue of the fact that they were originally wild birds, cannot, in contrast to domestic species such as chickens
         or ducks, be reared intensively and cannot therefore be included within the scope of subheading 6.6(a) of Annex I to Directive
         96/61.
      
      24.      In that connection, it is important to note that the question referred by the national court relating exclusively to the interpretation
         to be given to the words ‘poultry’ and ‘places’ in Directive 96/61 starts from the premiss that quails, partridges and pigeons,
         listed in Decree No 2005-989, may be reared intensively. The grounds of the order for reference do not in any way mention
         the fact that that issue was the subject of dispute between the parties to the main proceedings.
      
      25.      It is settled case-law that, in proceedings under Article 234 EC, which are based on a clear separation of functions between
         the national courts and the Court of Justice, any assessment of the facts in the case is a matter for the national court and
         that the Court must take account, under the division of jurisdiction between the Community judicature and the national courts,
         of the factual and legislative context, as described in the order for reference, in which the questions put to it are set. (5)
      
      26.      Therefore, I suggest that the Court should not examine the objection raised by the French Government that quails, partridges
         and pigeons are unsuitable for intensive rearing. 
      
      27.      Should the Court none the less deem it necessary to decide that issue, the French Government’s objection appears to me in
         any event to be unfounded.
      
      28.      Without properly documented evidence, which is lacking in this case, it is conceivable that now or in the future quail, partridge
         and pigeon farms may exist which practise intensive farming methods. The mere fact, mentioned by the French Government, that
         French quail and pigeon farms contain on average 3 000 animals does not mean, however, that some such farms cannot exceed the threshold of 40 000 places laid down by Directive
         96/61.
      
      29.      It is true that intensive rearing is not measured only by the number of animals present on the farm. It is also characterised
         by other factors, such as the number of animals per square metre, the lack of open-air runs, the use of battery farming, or
         the use of industrial methods of production, such as the mechanisation of husbandry operations, as the applicant and intervening
         associations in the main proceedings and the French Government have submitted. In that connection, I would point out that
         the Ministerial Order of 18 September 1985, (6) produced before the Court by ANPER-TOS, which relates to the economic viability of agricultural holdings and which entitles
         them to a variety of financial and social advantages, states that the minimum surface area for battery farming is 200 000
         quails sold live and 120 000 quails sold dead. It is true, as the French Government submitted at the hearing, that such a
         ministerial order provides no specific information as to whether or not existing farms use intensive farming methods. None the less, it seems to me that that document is likely to constitute important evidence
         that farms which rear those birds intensively, such as battery farms, are not a priori excluded in France and may, at the
         very least, exceed the threshold of 40 000 places laid down in Directive 96/61. What applies to quails can also apply in equal
         measure to pigeons, which are expressly referred to in that order, or to partridges.
      
      30.      That being the case, we must now examine the term ‘poultry’, which is not defined for the purposes of Directive 96/61.
      
      31.      In that connection, the question is whether that term should be construed broadly, as the applicant and intervener in the
         main proceedings and the Commission suggest, or, on the contrary, narrowly, as advocated by the French Government.
      
      32.      The route for obtaining an answer to that question passes in particular, in my view, by way of a consideration as to the general
         scheme and purpose of Directive 96/61, as these follow from the case-law. (7)
      
      33.      As regards the first of those two points, it must be observed that the use in subheading 6.6(a) of Annex I to Directive 96/61
         of the generic term ‘poultry’, which designates, in common parlance, all birds farmed for their eggs or their meat, (8) contrasts with the precision of the wording in subheadings 6.6(b) and (c), which refer respectively to ‘production pigs (over
         30 kg)’ and to ‘sows’. As the Commission stated at the hearing, the use in subheading 6.6(a) of a general word such as ‘poultry’
         is intended to avoid the gaps which would result from the use of a list of bird species which may be covered by Directive
         96/61, as such lists are frequently incomplete.
      
      34.      In my view, examination of the purpose of Directive 96/61 also points to the adoption of a broad interpretation of the term
         ‘poultry’. In that connection, it must be remembered that Directive 96/61 is intended to establish a general framework of
         principles for an integrated approach to pollution prevention and control in the air, water and land, in order to avoid the
         shifting of pollution between the various environmental media. (9) That integrated approach is manifested by appropriate coordination of the procedure and authorisation conditions for industrial
         installations the potential of which for pollution is significant, making it possible to achieve the highest practicable level
         of protection for the environment as a whole, and which must in all cases include provisions minimising long-distance or transfrontier
         pollution and ensuring a high level of protection for the environment as a whole. (10)
      
      35.      It is thus apparent that Directive 96/61 has a broad objective.
      
      36.      That objective would, in my view, be undermined if the term ‘poultry’ were to be construed narrowly in such a way as to exempt
         certain categories of industrial installations from the authorisation procedure and conditions laid down by Directive 96/61,
         such as installations intensively farming quails, partridges or pigeons, notwithstanding the fact that those installations
         may have exceeded the threshold laid down in subheading 6.6(a) of Annex I to Directive 96/61 and are therefore liable to cause
         significant and unregulated pollution of the air, water and/or soil.
      
      37.      Having regard to those observations, it is unnecessary, in my view, to settle the dispute, initiated by the referring court
         and in respect of which the parties which have submitted observations to the Court also disagree, concerning the relevance
         of the definition of ‘poultry’ in other Community instruments adopted in the areas of animal health (11) and the environment. (12)
      
      38.      If the Court were, none the less, to take the view, as the French Government and the Commission propose, that Directive 85/337
         may be relevant in interpreting the term ‘poultry’ in Directive 96/61, in particular on account of the fact that those two
         measures share a common objective, (13) I take the view that it cannot be inferred, as the French Government argues, that the scope of Directive 96/61 should cover
         only broilers and hens. It is true that point 17(a) of Annex I to Directive 85/337 makes projects concerning installations
         for the intensive rearing of poultry with more than 85 000 places for hens or 60 000 for broilers subject to the prior assessment
         provided for in Article 4(1) thereof. However, the scope of Directive 85/337 is not limited to those installations as it also
         includes, in accordance with point 1(e) of Annex II thereto, ‘[i]ntensive livestock installations (projects not included in
         Annex I)’. Although the projects listed in that annex need not be subject to a systematic prior assessment, in accordance
         with the rule laid down in Article 4(2) of Directive 85/337, the fact none the less remains that all intensive farming installations,
         including, therefore, those rearing poultry not listed in point 17(a) of Annex I to Directive 85/337, fall within the scope
         of that directive. It therefore cannot be argued, by reference to the provisions of Directive 85/337, that installations for
         the intensive rearing of quails, partridges or pigeons fall outside the scope of Directive 96/61.
      
      39.      Furthermore, contrary to the arguments put forward by the French Government, I do not think that any lesson whatsoever can
         be drawn from the reference document published in July 2003 by the Commission on best available techniques for intensive rearing
         of poultry and pigs (the ‘BREF document 2003’) (14) as to the interpretation to be given to the term ‘poultry’ for the purposes of Directive 96/61.
      
      40.      Admittedly, it seems to me that such an argument cannot be dismissed solely on the basis that BREF documents have no binding
         legal force, as the Commission submits as one of its main arguments.
      
      41.      It must be noted that, despite the absence of such binding force, the Court has already had occasion, in the order in Saetti and Frediani (15) made under Article 104(3) of its Rules of Procedure, to refer, inter alia, to the information set out in a BREF document
         adopted on the basis of Directive 96/61 concerning the conditions for the production and use of petroleum coke in an oil refinery
         in order to ascertain whether such conditions might constitute a ground for disapplying the classification of ‘waste’, within
         the meaning of Council Directive 75/442/EEC of 15 July 1975 on waste. (16)
      
      42.      However, the information in the BREF document referred to by the Court in the order in Saetti and Frediani sets out the most common methods of use of petroleum coke and therefore, unlike the present case, did not concern a question
         of interpretation of a Community law concept and the delimitation of the scope of Directive 96/61. Furthermore, that information
         was accepted by the Court in connection with a requirement, imposed by the case-law, stating that the question as to whether
         something is in fact waste must be determined in the light of all the circumstances, regard being had to the aim of Directive 75/442,
         and the need to ensure that its effectiveness was not undermined. (17) It is clear from that order that the information in the BREF document was only one of a number of sources of information
         likely to assist the national court in ascertaining the conditions of production and use of petroleum coke in an oil refinery.
      
      43.      It would therefore appear problematic, in the light of the context in which the reference to a BREF document was made by the
         Court and the nature of the information that it took from the document, to envisage extending the approach followed in the
         order in Saetti and Frediani to the circumstances of the present case.
      
      44.      As regards the BREF document 2003, it must be observed that, although it lists only laying hens, table chickens, turkeys,
         ducks and guinea fowl and deals in detail only with the first two categories of poultry, it is clear that the list concerned
         applies only ‘in this document’, (18) without prejudice therefore to the interpretation to be given to the definition of ‘poultry’ within the meaning of Directive
         96/61. Furthermore, as the Commission stated in its written observations, the document entitled ‘IPPC BREF Outline and Guide’
         which it published in December 2005 (19) expressly states that a BREF document does not interpret Directive 96/61. I would add, in that connection, that attributing
         to the BREF 2003 document the scope to interpret that directive would amount, for example, to excluding geese from the definition
         of ‘poultry’, for the purposes of the directive, even though all the parties which submitted observations to the Court rightly
         agree that those animals belong to that generic category. In other words, the fact that only certain categories of poultry
         are mentioned and/or examined in the BREF 2003 document does not mean that the scope of the term ‘poultry’, for the purposes
         of Directive 96/61, is limited to those categories. Furthermore, to adopt a restrictive interpretation of the definition of
         ‘poultry’, limited to the species listed in the BREF 2003 document, would impact adversely on the objective of Directive 96/61,
         as I have already had occasion to state in this Opinion.
      
      45.      Finally, I take the view that it is also necessary to reject the French Government’s argument that the proposal for a directive
         of the European Parliament and the Council on industrial emissions (integrated pollution prevention and control), presented
         by the Commission on 21 December 2007 (20) and seeking to recast into a single legal text a number of Community instruments, including Directive 96/61, supports a narrow
         interpretation of the term ‘poultry’ for the purposes of that directive. Suffice it to state that, regardless of the content
         of that proposal, it certainly does not represent the present state of Community law. (21)
      
      46.      I accordingly suggest that the answer to the first part of the question referred should be that subheading 6.6(a) of Annex
         I to Directive 96/61 must be interpreted in such a way as to include quails, partridges and pigeons within the scope of that
         directive.
      
      47.      As regards the second part of the question referred, it should be recalled that the Conseil d’État seeks to ascertain whether
         subheading 6.6(a) of Annex I to Directive 96/61 precludes a Member State from establishing a system which consists in fixing
         thresholds for prior authorisation with respect to installations for the intensive rearing of poultry by reference to the
         concept of ‘animal-equivalents’ based on a weighting mechanism for animals per place according to species, so that account
         may be taken of the amount of nitrogen actually excreted by the various species. In the present case, it is common ground
         that the result of that mechanism is that installations for the intensive rearing of quails are subject to the prior authorisation
         procedure only where they exceed 240 000 birds, while those for the intensive rearing of partridges or pigeons are subject
         to that procedure only where they exceed the threshold of 120 000 birds.
      
      48.      As previously stated, it follows from subheading 6.6(a) of Annex I to Directive 96/61 that installations for the intensive
         rearing of poultry must be subject to a prior authorisation procedure when they have more than ‘40 000 places’ for poultry,
         regardless of the species of poultry concerned.
      
      49.      Although the word ‘places’ is not defined in Directive 96/61, it cannot, in my view, deviate from its customary meaning, namely
         as designating a site or a location occupied by someone or something. (22) That assessment appears to me to be confirmed by the comparison of the different linguistic versions of subheading 6.6(a)
         of Annex I to Directive 96/61, which, by a large majority, use the word ‘places’. (23) Since a place may, as a general rule, be occupied by only one single being, in this case by only one single animal, it seems
         logical to assume that installations for the intensive rearing of poultry with more than ‘40 000 places’ are, in fact, installations
         the rearing or production capacity of which exceeds 40 000 poultry, regardless of the species of poultry concerned, since
         the wording of subheading 6.6(a) of Annex I to Directive 96/61 does not make any distinction as between birds coming within
         the definition of ‘poultry’ for the purposes of that directive.
      
      50.      That interpretation also appears to me to derive from the general scheme of Directive 96/61. First, as the threshold of 40 000
         places applies in particular to new installations intended for the intensive rearing of poultry with such a number of places, it cannot depend on actual occupation of those installations, which may, after all, fluctuate seasonally,
         but relates rather to rearing or production capacity. Second, the other provisions of heading 6 of Annex I to Directive 96/61
         refer explicitly either to production capacities or to treatment or consumption capacities.
      
      51.      This does not, of course, mean that the size of each place need be the same, regardless of whether geese, ducks or quails
         are being reared. However, if, after the size of a place has been defined according to each species (which may well fall within
         the competence of each Member State), an installation has more than 40 000 places for poultry, its activity must necessarily
         be subject to the prior authorisation procedure laid down by Directive 96/61.
      
      52.      Therefore, I take the view that a system such as that provided for by Decree No 2005-989, which gives rise to a situation
         in which only installations for the intensive rearing of quails, pigeons or partridges exceeding 240 000 quails or 120 000
         partridges or pigeons are subject to the prior authorisation procedure laid down by Directive 96/61, is contrary to subheading
         6.6(a) of Annex I to Directive 96/61.
      
      53.      That assessment does not appear to me to be invalidated by the general argument set out by the referring court and the French
         Government, according to which the weighting of species of poultry provided for by Decree No 2005-989 is justified by the
         intention to take account of the amount of nitrogen actually excreted by the various species and is therefore consistent with
         the objective pursued by Directive 96/61.
      
      54.      In that connection, it is necessary to point out that the French Government has not challenged the reference norms produced
         before the Court by ANPER-TOS and extracted from the annexes to the circular of 7 September 2007 of the Ministry of Ecology,
         Sustainable Development and Planning on classified installations (farms, poultry) – use of new references for waste material. (24) It follows from those data that the relationship between nitrogenous excretions from a quail, pigeon or partridge and those
         of a standard chicken clearly does not correspond to the weighting between those poultry species provided for by the animal-equivalents
         mechanism in Decree No 2005-989. While the latter provides that one standard chicken is equivalent to eight quails, four pigeons
         or four partridges, the reference norms annexed to the circular indicate that quail excrement contains an amount of nitrogen
         equivalent to half that of a standard chicken, that amount being slightly higher for partridges, while a pigeon produces more
         than five times that amount. (25) In assessing those official data, and if one takes account only of the amount of nitrogen, highlighted by the referring court
         and the French Government, it follows, as the applicant and intervening associations in the main proceedings have explained,
         that Decree No 2005-989 has the result of exempting from the prior authorisation procedure laid down by Directive 96/61 French
         intensive rearing installations consisting of 40 001 to 240 000 quails, or 40 001 to 120 000 pigeons or partridges, notwithstanding
         the fact that those installations are likely to produce an amount of nitrogen greater than that produced by installations
         for the intensive rearing of 40 000 standard chickens. (26)
      
      55.      The French Government has thus failed to explain how the thresholds set by Decree No 2005-989 with respect to installations
         for the intensive rearing of quails, partridges or pigeons correspond to the objective pursued by Directive 96/61 of seeking
         to guarantee a high level of protection for the environment as a whole.
      
      56.      I would add, for the sake of complete clarity, that this appraisal does not mean, contrary to the form of order initially
         proposed by the Commission in its written observations and carefully qualified at the hearing, that a mechanism using animal-equivalents,
         such as that provided for by Decree No 2005-989, is per se contrary to Directive 96/61. The latter does not in any way preclude
         a Member State from putting into place such a mechanism if it results, as is the case regarding the many species of poultry
         referred to in Decree No 2005-989, in the fixing of prior authorisation thresholds for the installations engaged in the intensive
         farming of poultry which are less than or equal to the threshold laid down in subheading 6.6(a) of Annex I to Directive 96/61.
      
      57.      That being so, the answer to the second part of the question referred for a preliminary ruling should, in my view, be that
         subheading 6.6(a) of Annex I to Directive 96/61 precludes national legislation which results in the calculation of authorisation
         thresholds being based on a system of ‘animal-equivalents’ which gives a weighting to the number of animals per place according
         to species in order to take account of the amount of nitrogen actually excreted by the various species, where such a system
         leads to the exclusion from the scope of Directive 96/61, and in particular from the prior authorisation procedure established
         by that directive, of installations for the intensive rearing of poultry with more than 40 000 places, and where in practice
         that system does not appear even to meet the objective set by the national legislation, in accordance with that pursued by
         Directive 96/61, of seeking to ensure a high level of protection for the environment as a whole.
      
      VI –  Conclusion
      58.      In light of the foregoing considerations, I propose that the Court should reply as follows to the question referred by the
         Conseil d’État:
      
      Subheading 6.6(a) of Annex I to Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention
         and control, which refers to installations for the intensive rearing of poultry with more than 40 000 places, must be interpreted
         as including quails, partridges and pigeons within its scope and as precluding national legislation which results in the calculation
         of authorisation thresholds being based on a system of ‘animal-equivalents’ which gives a weighting to the number of animals
         per place according to species in order to take account of the amount of nitrogen actually excreted by the various species,
         where such a system leads to the exclusion from the scope of Directive 96/61, and in particular from the prior authorisation
         procedure established by that directive, of installations for the intensive rearing of poultry with more than 40 000 places,
         and where in practice that system does not appear even to meet the objective set by the national legislation, in accordance
         with that pursued by Directive 96/61, of seeking to ensure a high level of protection for the environment as a whole.
      
      1 –	Original language: French.
      
      2 –	OJ 1996 L 257, p. 26.
      
      3 –	JORF of 13 August 2005, p. 13195.
      
      4 –	Thus, whereas Directive 96/61 provides for a fixed threshold of 40 000 places for poultry above which an installation for
         intensive rearing must be subject to prior authorisation, under the system established by Decree No 2005-989, by contrast,
         the authorisation threshold of 30 000 animal-equivalents varies according to the species concerned.
      
      5 –	See, inter alia, Case C-341/05 Laval un Partneri [2007] ECR I-11767, paragraphs 45 and 47.
      
      6 –	Order of the French Ministry of Agriculture fixing the coefficient equivalents for battery production (JORF of 8 October
         1985, p. 11683).
      
      7 –	See, in that connection, in particular, Case C-72/95 Kraaijeveld and Others [1996] ECR I-5403, paragraph 38, concerning the interpretation of an expression not defined in Council Directive 85/337.
      
      8 –	According to the definition in Le Grand Robert de la langue française, Dictionnaires Le Robert, Paris, 2005.
      
      9 –	See recitals 7 and 8 in the preamble to, and Article 1 of, Directive 96/61.
      
      10 –	See recitals 14, 17 and 27 in the preamble to, and Article 9 of, Directive 96/61.
      
      11 –	Such as Council Directive 90/539/EEC of 15 October 1990 on animal health conditions governing intra-Community trade in,
         and imports from third countries of, poultry and hatching eggs (OJ 1990 L 303, p. 6), which includes quails, partridges and
         pigeons within its scope, or Council Directive 71/118/EEC of 15 February 1971 on health problems affecting trade in fresh
         poultry meat (OJ, English Special Edition 1971 (I), p. 106), which excludes the meat of those birds from its scope.
      
      12 –	Such as Directive 85/337.
      
      13 –	An approach of this nature appears to be inferred from Case C-127/02 Waddenvereniging and Vogelbeschermingsvereniging [2004] ECR I-7405, paragraph 26, in which the Court acknowledged the relevance of the word ‘project’ as defined in Directive
         85/337 in order to clarify the meaning of ‘plan’ or ‘project’ within the meaning of Council Directive 92/43/EEC of 21 May
         1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7) in so far as the latter seeks,
         ‘as does Directive 85/337, to prevent activities which are likely to damage the environment from being authorised without
         prior assessment of their impact on the environment’. The relevance of Directive 85/337 for the interpretation of the terms
         referred to in Directive 96/61 also appears to be reinforced by the mutual references contained in the two directives. In
         particular, Directive 85/337, as amended by Council Directive 97/11/EC of 3 March 1997 (OJ 1997 L 73, p. 5), states in Article
         2a that Member States may provide for a single procedure in order to fulfil the requirements of the two directives.
      
      14 –	The entire BREF document, entitled ‘Integrated Pollution and Control (IPPC – Reference Document on Best Available Techniques
         for Intensive Rearing of Poultry and Pigs)’ is available on the internet at the following address: http://eippcb.jrc.ec.europa.eu/pages/FActivities.htm.
      
      15 –	Order in Case C-235/02 [2004] ECR I‑1005, paragraphs 41 to 44.
      
      16 –	OJ 1975 L 194, p. 39.
      
      17 –	Order in Saetti and Frediani, paragraph 40 and the case-law cited.
      
      18 –	See page (i) of the summary of the BREF document produced before the Court by ANPER-TOS.
      
      19 –	This document may be consulted on the internet at the following address: http://eippcb.jrc.ec.europa.eu/pages/FActivities.htm.
      
      20 –	COM(2007) 844 final.
      
      21 –	In addition, it should be noted that that proposal is currently the subject of a first reading before the European Parliament,
         with respect to which the Committee on the Environment, Public Health and Food Safety submitted a proposal for amendments
         relating in particular to subheading 6.6(a) of Annex I to Directive 96/61 (see the draft report of the European Parliament
         Committee on the Environment, Public Health and Food Safety, 2007/0286 (COD) 2 July 2008, pp. 39 and 40).
      
      22 –	See, for example the definition given in Le Grand Robert de la langue française, cited above.
      
      23 –	That is the case with respect to the versions of the text in Danish (‘pladser’), German (‘Plätzen’), English (‘places’),
         Italian (‘posti’), Dutch (‘plaatsen’), Finnish (‘paikkaa’) and Swedish (‘platser’). The Spanish version uses the word ‘emplazamientos’,
         while the Portuguese version is unspecific.
      
      24 –	Official Gazette of the Ministry of Ecology, Sustainable Development and Planning of 30 October 2007, MEDAD 2007/20, Text
         15, p. 1. It should be noted that, although this circular was adopted several months after the action for annulment had been
         brought before the Conseil d’État in the case in the main proceedings, it is none the less based on data from studies carried
         out in 2006 by the ‘Poultry’ group of the Steering Committee for Environmentally Friendly Agricultural Practices (Corpen)
         acting under the auspices of the French Ministry of Agriculture and Fisheries and the Ministry of Ecology, Sustainable Development
         and Planning, as stated in the circular and established by the documents produced before the Court by ANPER-TOS.
      
      25 –	See the data in Table A, entitled ‘Quantities of controllable elements produced after deduction of losses at the installation
         or in storage (in grams per animal, except copper and zinc in milligrams)’, annexed to that circular.
      
      26 –	For the sake of completeness, it should be pointed out that the applicant and intervening associations in the main proceedings
         have also indicated, in their written observations to the Court, that the waste materials contain phosphorus, copper and zinc,
         that substance and those metals also being set out in the tables drawn up by Corpen and annexed to the abovementioned ministerial
         circular. On the basis of the data in those tables, the amount of phosphorus, copper and zinc excreted by 240 000 quails,
         120 000 partridges or 120 000 pigeons is more, indeed sometimes substantially more, than that contained in the excrement of
         40 000 standard chickens.