CELEX: 62009CJ0050
Language: en
Date: 2011-03-03
Title: Judgment of the Court (First Chamber) of 3 March 2011. # European Commission v Ireland. # Failure of a Member State to fulfil obligations - Directive 85/337/EEC - Obligation of the competent environmental authority to carry out an assessment of the effects of certain projects on the environment - More than one competent authority - Need to ensure an assessment of the interaction between factors likely to be directly or indirectly affected - Application of the directive to demolition works. # Case C-50/09.

Case C-50/09
      European Commission
      v
      Ireland
      (Failure of a Member State to fulfil obligations – Directive 85/337/EEC – Obligation of the competent environmental authority to carry out an assessment of the effects of certain projects on the
         environment – More than one competent authority – Need to ensure an assessment of the interaction between factors likely to be directly or indirectly affected – Application of the directive to demolition works)
      
      Summary of the Judgment
      1.        Environment – Assessment of the effects of certain projects on the environment – Directive 85/337 – Obligation of the competent
            environmental authority to carry out an assessment of the effects of certain projects on the environment – Extent
      (Council Directive 85/337, as amended by Directives 97/11 and 2003/35, Art. 3)
      2.        Environment – Assessment of the effects of certain projects on the environment – Directive 85/337 – More than one competent
            authority – Condition – Powers and rules governing their implementation ensuring that an environmental impact assessment is
            carried out fully and before the giving of consent
      (Council Directive 85/337, as amended by Directives 97/11 and 2003/35, Arts 2, 3 and 4)
      3.        Environment – Assessment of the effects of certain projects on the environment – Directive 85/337 – Scope – Demolition works
            – Inclusion
      (Council Directive 85/337, as amended by Directives 97/11 and 2003/35, Art. 1(2))
      1.        Article 3 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 and by Directive 2003/35, makes the competent environmental authority responsible for carrying
         out an environmental impact assessment which must include a description of a project’s direct and indirect effects on the
         factors set out in the first three indents of that article and the interaction between those factors. That assessment obligation
         is distinct from the obligations laid down in Articles 4 to 7, 10 and 11 of Directive 85/337, which are, essentially, obligations
         to collect and exchange information, consult, publicise and guarantee the possibility of challenge before the courts. They
         are procedural provisions which concern only the implementation of the substantial obligation laid down in Article 3 of that
         directive.
      
      However, even if, under Article 8 of Directive 85/337, the results of the consultations and the information gathered pursuant
         to Articles 5 to 7 must be taken into consideration in the development consent procedure, that obligation to take into consideration,
         at the conclusion of the decision‑making process, information gathered by the competent environmental authority must not be
         confused with the assessment obligation laid down in Article 3 of Directive 85/337. Indeed, that assessment, which must be
         carried out before the decision-making process, involves an examination of the substance of the information gathered as well
         as a consideration of the expediency of supplementing it, if appropriate, with additional data. That competent environmental
         authority must thus undertake both an investigation and an analysis to reach as complete an assessment as possible of the
         direct and indirect effects of the project concerned on the factors set out in the first three indents of Article 3 and the
         interaction between those factors.
      
      It follows therefore both from the wording of the provisions at issue of Directive 85/337 and from its general scheme that
         Article 3 is a fundamental provision. The transposition of Articles 4 to 11 alone cannot be regarded as automatically transposing
         Article 3. Consequently, by failing to transpose Article 3, a Member State fails to fulfil its obligations under Directive
         85/337, as amended. 
      
      In that respect, whilst it is true that 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, the fact remains 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 paras 36, 38-41, 46, 107, operative part)
      2.        Article 2(1) 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 and by Directive 2003/35, states that the environmental impact assessment must take place before
         the giving of consent. That entails examination of a project’s direct and indirect effects on the factors referred to in Article
         3 of that directive and on the interaction between those factors being fully carried out before consent is given.
      
      In those circumstances, while nothing precludes the Member State’s choice to entrust the attainment of that directive’s aims
         to two different authorities, that is subject to those authorities’ respective powers and the rules governing their implementation
         ensuring that an environmental impact assessment is carried out fully and in good time, that is to say before the giving of
         consent, within the meaning of that directive.
      
      Thus, a Member State which fails to ensure that, when planning authorities and the Agency both have decision-making powers
         concerning a project, there will be complete fulfilment of the requirements of Articles 2 to 4 of that directive fails to
         fulfil its obligations under that directive. 
      
      (see paras 76-77, 107, operative part)
      3.        Demolition works come within the scope 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 and by Directive 2003/35, and, in that respect, may constitute
         a ‘project’ within the meaning of Article 1(2) thereof.
      
      The definition of the word ‘project’ in Article 1(2) of that directive cannot lead to the conclusion that demolition works
         could not satisfy the criteria of that definition. Such works can, indeed, be described as ‘other interventions in the natural
         surroundings and landscape’. That interpretation is supported by the fact that, if demolition works were excluded from the
         scope of that directive, the references to ‘the cultural heritage’ in Article 3 thereof, to ‘landscapes of historical, cultural
         or archaeological significance’ in point 2(h) of Annex III to that directive and to ‘the architectural and archaeological
         heritage’ in point 3 of Annex IV thereto would have no purpose.
      
      (see paras 97-98, 101)
JUDGMENT OF THE COURT (First Chamber)
      3 March 2011 (*)
      
      (Failure of a Member State to fulfil obligations – Directive 85/337/EEC – Obligation of the competent environmental authority to carry out an assessment of the effects of certain projects on the
         environment – More than one competent authority – Need to ensure an assessment of the interaction between factors likely to be directly or indirectly affected – Application of the directive to demolition works)
      
      In Case C‑50/09,
      ACTION under Article 226 EC for failure to fulfil obligations, brought on 4 February 2009,
      European Commission, represented by P. Oliver, C. Clyne 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, assisted by G. Simons SC and D. McGrath BL, with an address for service in Luxembourg,
      
      defendant,
      THE COURT (First Chamber),
      composed of A. Tizzano, President of the Chamber, J.‑J. Kasel, A. Borg Barthet, M. Ilešič and M. Berger (Rapporteur), Judges,
      Advocate General: J. Mazák, 
      Registrar: N. Nanchev, Administrator,
      having regard to the written procedure and further to the hearing on 24 June 2010,
      having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
      gives the following
      Judgment
      1        By its action, the Commission of the European Communities requested the Court to declare that:
      
      –        by failing to transpose Article 3 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) and by Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 (OJ 2003
         L 156, p. 17; ‘Directive 85/337’);
      
      –        by failing to ensure that, where Irish planning authorities and the Environmental Protection Agency (‘the Agency’) both have
         decision-making powers on a project, there will be complete fulfilment of the requirements of Articles 2 to 4 of that directive;
         and
      
      –        by excluding demolition works from the scope of its legislation transposing that directive,
      Ireland has failed to fulfil its obligations under that directive.
       Legal context
       European Union legislation
      2        Article 1(2) and (3) of Directive 85/337 provide:
      
      ‘(2)      For the purposes of this Directive: 
      “project” means: 
      –        the execution of construction works or of other installations or schemes, 
      –        other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources;
         
      
      ...
      “development consent” means: 
      the decision of the competent authority or authorities which entitles the developer to proceed with the project. 
      (3)      The competent authority or authorities shall be that or those which the Member States designate as responsible for performing
         the duties arising from this Directive.’
      
      3        Under Article 2(1) to (2a) of Directive 85/337:
      
      ‘(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 an assessment with
         regard to their effects. These projects are defined in Article 4.
      
      (2)      The environmental impact assessment may be integrated into the existing procedures for consent to projects in the Member States,
         or, failing this, into other procedures or into procedures to be established to comply with the aims of this Directive.
      
      (2a)      Member States may provide for a single procedure in order to fulfil the requirements of this Directive and the requirements
         of Council Directive 96/61/EC of 24 September 1996 on integrated pollution prevention and control …’
      
      4        Article 3 of Directive 85/337 provides:
      
      ‘The environmental impact assessment will identify, describe and assess in an appropriate manner, in the light of each individual
         case and in accordance with Articles 4 to 11, the direct and indirect effects of a project on the following factors:
      
      –        human beings, fauna and flora,
      –        soil, water, air, climate and the landscape,
      –        material assets and the cultural heritage,
      –        the interaction between the factors mentioned in the first, second and third indents.’
      5        Article 4(1) and (2) of Directive 85/337 are worded as follows:
      
      ‘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).’
      6        Articles 5 to 7 of Directive 85/337 concern the information which must be gathered and the consultations which must be undertaken
         for the purposes of the assessment procedure. Article 5 deals with the information which the developer must supply, Article
         6 deals with the obligation to consult, on the one hand, authorities with specific environmental responsibilities and the
         public, on the other, and Article 7 covers the obligation, in the case of a cross-border project, to inform the other Member
         State concerned. Article 8 of the directive states that the results of those consultations and the information gathered must
         be taken into consideration in the development consent procedure.
      
      7        Articles 9 to 11 of Directive 85/337, relating to the decision taken at the conclusion of the consent procedure, cover, respectively,
         informing the public and the Member States concerned, respect for commercial and industrial confidentiality, the right of
         members of the public to bring proceedings before a court and the exchange of information between Member States and the Commission.
      
      8        Under Article 12(1) of Directive 85/337, in its original version, the Member States were obliged to comply with that directive’s
         provisions by 3 July 1988 at the latest. With regard to the amendments made to it by Directives 97/11 and 2003/35, the Member
         States were obliged to bring them into force at the latest by 14 March 1999 and 25 June 2005 respectively.
      
       National legislation
       The Planning and Development Act 2000
      9        The Planning and Development Act 2000, as amended by the Strategic Infrastructure Act 2006 (‘the PDA’), lays down the legal
         framework for issuing development consent for most of the project categories listed in Annexes I and II to Directive 85/337.
         For some projects, development consent under the PDA, which is termed ‘planning permission’ and granted, as a rule, by a local
         authority, is the only form of consent required for a project to proceed. In such cases, the PDA provides that the decisions
         taken by local authorities may be appealed against to An Bord Pleanála (The Planning Appeals Board; ‘the Board’).
      
      10      Part X of the PDA, comprising sections 172 to 177, is devoted to environmental impact assessments. Section 176 provides for
         ministerial regulations to identify projects requiring such an assessment. Section 172 provides that, for projects covered
         by regulations made under section 176, applications for planning permission are to be accompanied by an environmental impact
         statement. Under section 173, where a planning authority receives an application for planning permission accompanied by an
         environmental impact statement, that authority and, on appeal, the Board must have regard to that statement. Section 177 provides
         that the information to be included in such a statement is to be prescribed by ministerial regulation.
      
      11      Detailed measures for the implementation of the PDA are set out in the Planning and Development Regulations 2001, as amended
         by the Planning and Development Regulations 2008 (‘the PDR’), which were adopted pursuant to, among others, sections 176 and
         177 of the PDA. 
      
      12      Part 2 of the PDR concerns projects which are exempt from an environmental impact assessment. Article 6 thereof refers in
         that regard to Part 1 of Schedule 2 to the PDR, which, in Category 50, refers to ‘the demolition of a building or other structure’.
         Articles 9 and 10 of the PDR lay down the conditions under which a project as a rule exempted must none the less be made subject
         to a consent procedure.
      
      13      Part 10 of the PDR is devoted to environmental impact assessments. Article 93 thereof, in combination with Schedule 5 thereto,
         defines the categories of projects for which such an assessment is required. Article 94 of the PDR, which lists the information
         that should be found in an environmental impact statement, is worded as follows:
      
      ‘An environmental impact statement shall contain:
      (a)      the information specified in paragraph 1 of Schedule 6,
      (b)      the information specified in paragraph 2 of Schedule 6 to the extent that
      (i)      such information is relevant to a given stage of the consent procedure and to the specific characteristics of the development
         or type of development concerned and of the environmental features likely to be affected, and 
      
      (ii)      the person or persons preparing the statement may reasonably be required to compile such information having regard, among
         other things, to current knowledge and methods of assessment, and, 
      
      (c)      a summary in non-technical language of the information required under paragraphs (a) and (b).’
      14      Schedule 6 to the PDR specifies the information to be contained in an environmental impact statement. Paragraph 2(b) of Schedule
         6 stipulates that it must contain:
      
      ‘A description of the aspects of the environment likely to be significantly affected by the proposed development, including
         in particular:
      
      –      human beings, fauna and flora,
      –      soil, water, air, climatic factors and the landscape,
      –        material assets, including the architectural and archaeological heritage, and the cultural heritage,
      –        the inter-relationship between the above factors.’
      15      Under Article 108 of the PDR, the competent planning authority is obliged to establish whether the information contained in
         an environmental impact statement complies with the requirements laid down in the PDR.
      
       The Environmental Protection Agency Act 1992
      16      The Environmental Protection Agency Act 1992 (‘the EPAA’) introduced, among other things, a new system of integrated pollution
         control under which many industrial activities require a licence granted by the Agency. Where the activity is new and/or involves
         new construction, it must also obtain planning permission as provided for by the PDA.
      
      17      Section 98 of the EPAA, which precluded planning authorities from taking into consideration aspects connected with pollution
         risks in considering an application for planning permission, was amended by section 256 of the PDA to the effect that, whilst
         it precluded planning authorities from including any pollution control conditions in planning permissions for activities also
         requiring a licence from the Agency, they could nevertheless, where appropriate, refuse to grant planning permission on environmental
         grounds. Section 98 of the EPAA, as amended, provides that planning authorities may ask the Agency for an opinion, in particular
         on an environmental impact statement. However, the Agency is not required to respond to such a request.
      
      18      Under the Environmental Protection Agency (Licensing) Regulations 1994 (‘the EPAR’), the Agency may notify a planning authority
         of a licence application. There is, however, no obligation on the planning authority to respond to such a notification.
      
       The National Monuments Act 1930 
      19      The National Monuments Act 1930 (‘the NMA’) governs the protection of Ireland’s most culturally significant archaeological
         remains, which are classed as ‘national monuments’. It was amended by the National Monuments (Amendment) Act 2004, to relax
         the constraints imposed under earlier legislation concerning proposals to alter or remove national monuments. 
      
      20      Section 14 of the NMA confers on the Irish Minister for the Environment, Heritage and Local Government (‘the Minister’) discretion
         to consent to the destruction of a national monument. Where a national monument is discovered during the carrying out of a
         road development which has been subject to an environmental impact assessment, section 14A of the NMA provides that it is,
         in principle, prohibited to carry out any works on the monument pending directions by the Minister. Those directions can relate
         to ‘the doing to the monument of [various] matters’, including its demolition. There is no provision for any assessment to
         be made, for the adoption of such directions, of the effects on the environment. However, section 14B of the NMA provides
         that the Minister’s directions must be notified to the Board. If those directions envisage an alteration to the approved road
         development, the Board must consider whether or not that alteration is likely to have significant adverse effects on the environment.
         If it is of that opinion, it must require the submission of an environmental impact statement.
      
       Pre-litigation procedure
      21      Following the examination of a complaint regarding Ireland’s transposition of Directive 85/337, the Commission took the view
         that Ireland had failed to ensure its full and correct transposition and, by letter of 19 November 1998, gave Ireland formal
         notice, to submit its observations, in accordance with the procedure for failure to fulfil Treaty obligations. A further letter
         of formal notice was sent to Ireland on 9 February 2001.
      
      22      After examining the observations received in response to those letters, the Commission, on 6 August 2001, sent the Irish authorities
         a reasoned opinion in which it claimed that Ireland had not correctly transposed Articles 2 to 6, 8 and 9 of Directive 85/337.
         In reply, Ireland stated that the legislative amendments necessary to bring about the transposition were being adopted and
         requested that the proceedings be stayed.
      
      23      Following further complaints, the Commission, on 2 May 2006, sent an additional letter of formal notice to Ireland.
      
      24      As the Commission was not satisfied with the replies received, on 29 June 2007 it addressed an additional reasoned opinion
         to Ireland in which it claimed that Ireland had not correctly transposed Directive 85/337, in particular Articles 2 to 4 thereof,
         and called upon it to comply with that reasoned opinion within a period of two months from the date of its receipt. In reply,
         Ireland maintained its position that the Irish legislation in force now constitutes adequate transposition of that directive.
      
      25      The Commission then brought the present action.
      
       The action
       The first complaint, alleging failure to transpose Article 3 of Directive 85/337
       Arguments of the parties
      26      According to the Commission, Article 3 of Directive 85/337 is of pivotal importance, since it sets out what constitutes an
         environmental impact assessment and must therefore be transposed explicitly. The provisions relied upon by Ireland as adequate
         transposition of Article 3 of the directive are insufficient.
      
      27      Thus, section 173 of the PDA, which requires planning authorities to have regard to the information contained in an environmental
         impact statement submitted by a developer, relates to the obligation, under Article 8 of Directive 85/337, to take into consideration
         the information gathered pursuant to Articles 5 to 7 thereof. By contrast, section 173 does not correspond to the wider obligation,
         imposed by Article 3 of Directive 85/337 on the competent authority, to ensure that there is carried out an environmental
         impact assessment which identifies, describes and assesses all the matters referred to in that article.
      
      28      As for Articles 94, 108 and 111 of, and Schedule 6 to, the PDR, the Commission observes that they are confined, first, to
         setting out the matters on which the developer must supply information in its environmental impact statement and, second,
         to specifying the obligation on the competent authorities to establish that the information is complete. The obligations laid
         down by those provisions are different from that, imposed by Article 3 of Directive 85/337 on the competent authority, of
         carrying out a full environmental impact assessment 
      
      29      With regard to the relevance of the Irish courts’ case-law on the application of the provisions of national law at issue,
         the Commission points out that while those courts may interpret ambiguous provisions so as to ensure their compatibility with
         a directive; they cannot plug legal gaps in the national legislation. Moreover, the extracts from the decisions cited by Ireland
         concern, in the Commission’s submission, not the interpretation of that legislation but the interpretation of Directive 85/337
         itself.
      
      30      Ireland disputes the significance which the Commission attaches to Article 3 of that directive. It submits that that provision,
         drafted in general terms, is confined to stating that an environmental impact assessment must be made in accordance with Articles
         4 to 11 of the directive. By transposing Articles 4 to 11 into national law, a Member State thereby, in Ireland’s submission,
         ensures the transposition of Article 3. 
      
      31      Ireland maintains that Article 3 of Directive 85/337 is fully transposed by sections 172(1) and 173 of the PDA and Articles
         94 and 108 of, and Schedule 6 to, the PDR. It points out that the Supreme Court (Ireland) has confirmed, in two separate judgments
         of 2003 and 2007, namely O’Connell v Environmental Protection Agency and Martin v An Bord Pleanála, that Irish law requires planning authorities and the Agency to assess the factors referred to in Article 3 and the interaction
         between them. Those judgments, which, Ireland submits, should be taken into account when assessing the scope of the national
         provisions at issue, do not fill a legal gap but are confined to holding that the applicable national legislation imposes
         an obligation on the competent authorities to carry out an environmental impact assessment of a development in the light of
         the criteria laid down in Article 3 of Directive 85/337.
      
      32      In the alternative, Ireland refers to the concept of ‘proper planning and sustainable development’ referred to in section
         34 of the PDA. It is, in Ireland’s submission, the principal criterion which must be taken into consideration by any planning
         authority when deciding on an application for planning permission. That concept is in addition to all the criteria referred
         to in section 34 of the PDA, as well as in other provisions of that Act, including section 173, the application of which it
         reinforces.
      
      33      Finally, Ireland submits that the Commission does not respect the discretion which a Member State enjoys under Article 249
         EC as to the form and methods for transposing a directive. By requiring the literal transposition of Article 3 of Directive
         85/337, the Commission is disregarding the body of legislation and case-law built up in Ireland over 45 years surrounding
         the concepts of ‘proper planning’ and ‘sustainable development’.
      
       Findings of the Court
      34      At the outset, it is to be noted that the Commission and Ireland give a different reading to Article 3 of Directive 85/337
         and a different analysis of its relationship with Articles 4 to 11 thereof. The Commission maintains that Article 3 lays down
         obligations which go beyond those required by Articles 4 to 11, whereas Ireland submits that it is merely a provision drafted
         in general terms and that the details of the process of environmental impact assessment are specified in Articles 4 to 11.
      
      35      In that regard, whilst Article 3 of Directive 85/337 provides that the environmental impact assessment is to take place ‘in
         accordance with Articles 4 to 11’ thereof, the obligations referred to by those articles differ from that under Article 3
         itself.
      
      36      Article 3 of Directive 85/337 makes the competent environmental authority responsible for carrying out an environmental impact
         assessment which must include a description of a project’s direct and indirect effects on the factors set out in the first
         three indents of that article and the interaction between those factors (judgment of 16 March 2006 in Case C‑332/04 Commission v Spain, paragraph 33). As stated in Article 2(1) of the directive, that assessment is to be carried out before the consent applied
         for to proceed with a project is given.
      
      37      In order to satisfy the obligation imposed on it by Article 3, the competent environmental authority may not confine itself
         to identifying and describing a project’s direct and indirect effects on certain factors, but must also assess them in an
         appropriate manner, in the light of each individual case. 
      
      38      That assessment obligation is distinct from the obligations laid down in Articles 4 to 7, 10 and 11 of Directive 85/337, which
         are, essentially, obligations to collect and exchange information, consult, publicise and guarantee the possibility of challenge
         before the courts. They are procedural provisions which do not concern the implementation of the substantial obligation laid
         down in Article 3 of that directive.
      
      39      Admittedly, Article 8 of Directive 85/337 provides that the results of the consultations and the information gathered pursuant
         to Articles 5 to 7 must be taken into consideration in the development consent procedure.
      
      40      However, that obligation to take into consideration, at the conclusion of the decision-making process, information gathered
         by the competent environmental authority must not be confused with the assessment obligation laid down in Article 3 of Directive
         85/337. Indeed, that assessment, which must be carried out before the decision-making process (Case C-508/03 Commission v United Kingdom [2006] ECR I‑3969, paragraph 103), involves an examination of the substance of the information gathered as well as a consideration
         of the expediency of supplementing it, if appropriate, with additional data. That competent environmental authority must thus
         undertake both an investigation and an analysis to reach as complete an assessment as possible of the direct and indirect
         effects of the project concerned on the factors set out in the first three indents of Article 3 and the interaction between
         those factors.
      
      41      It follows therefore both from the wording of the provisions at issue of Directive 85/337 and from its general scheme that
         Article 3 is a fundamental provision. The transposition of Articles 4 to 11 alone cannot be regarded as automatically transposing
         Article 3.
      
      42      It is in the light of those considerations that the Court must consider whether the national provisions upon which Ireland
         relies constitute proper transposition of Article 3 of Directive 85/337.
      
      43      It can be seen from the wording of section 172 of the PDA and of Article 94 of, and Schedule 6 to, the PDR that those provisions
         relate to the developer’s obligation to supply an environmental impact statement, which corresponds, as the Commission correctly
         claims, to the obligation imposed upon the developer by Article 5 of Directive 85/337. Article 108 of the PDR imposes no obligation
         on the planning authority other than that of establishing the completeness of that information.
      
      44      As regards section 173 of the PDA, according to which the planning authority, where it receives an application for planning
         permission accompanied by an environmental impact statement, must take that statement into account as well as any additional
         information provided to it, it is clear from the very wording of that article that it is confined to laying down an obligation
         similar to that provided for in Article 8 of Directive 85/337, namely that of taking the results of the consultations and
         the information gathered for the purposes of the consent procedure into consideration. That obligation does not correspond
         to the broader one, imposed by Article 3 of Directive 85/337 on the competent environmental authority, to carry out itself
         an environmental impact assessment in the light of the factors set out in that provision.
      
      45      In those circumstances, it must be held that the national provisions invoked by Ireland cannot attain the result pursued by
         Article 3 of Directive 85/337.
      
      46      Whilst it is true 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, in particular, Case C‑427/07 Commission v Ireland [2009] ECR I‑6277, paragraph 54 and the case-law cited), the fact remains that, according to equally settled case‑law, 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, in particular,
         Commission v Ireland, paragraph 55 and the case-law cited). 
      
      47      In that regard, the judgment of the Supreme Court in O’Connell v Environmental Protection Agency gives, admittedly, in the passage upon which Ireland relies, an interpretation of the provisions of domestic law consistent
         with Directive 85/337. However, according to the Court’s settled case-law, such a consistent interpretation of the provisions
         of domestic law cannot in itself achieve the clarity and precision needed to meet the requirement of legal certainty (see,
         in particular, Case C-508/04 Commission v Austria [2007] ECR I‑3787, paragraph 79 and the case-law cited). The passage in the judgment of the same court in Martin v An Bord Pleanála, to which Ireland also refers, concerns the question of whether all the factors referred to in Article 3 of Directive 85/337
         are mentioned in the consent procedures put in place by the Irish legislation. By contrast, it has no bearing on the question,
         which is decisive for the purposes of determining the first complaint, of what the examination of those factors by the competent
         national authorities should comprise.
      
      48      As regards the concepts of ‘proper planning’ and ‘sustainable development’ to which Ireland also refers, it must be held that,
         even if those concepts encompass the criteria referred to in Article 3 of Directive 85/337, it is not established that they
         require that those criteria be taken into account in all cases for which an environmental impact assessment is required.
      
      49      It follows that neither the national case-law nor the concepts of ‘proper planning’ and ‘sustainable development’ can be invoked
         to remedy the failure to transpose into the Irish legal order Article 3 of Directive 85/337.
      
      50      The Commission’s first complaint in support of its action must therefore be held to be well founded. 
      
       The second complaint, alleging failure to ensure full compliance with Articles 2 to 4 of Directive 85/337 where several authorities
            are involved in the decision‑making process
       Arguments of the parties
      51      For the Commission, it is of the essence that the environmental impact assessment be carried out as part of a holistic process.
         In Ireland, following the Agency’s creation, certain projects requiring such an assessment are subject to two separate decision-making
         processes: one process involves decision-making on land-use aspects by planning authorities, while the other involves decision-making
         by the Agency on pollution aspects. The Commission accepts that planning permission and an Agency licence may be regarded,
         as has been held in Irish case-law (Martin v An Bord Pleanála), as together constituting ‘development consent’ within the meaning of Article 1(2) of Directive 85/337 and it does not object
         to such consent being given in two successive stages. However, the Commission criticises the fact that the Irish legislation
         fails to impose any obligation on planning authorities and the Agency to coordinate their activities. In the Commission’s
         submission, that situation is contrary to Articles 2 to 4 of Directive 85/337. 
      
      52      As regards Article 2 of Directive 85/337, the Commission notes that it requires an environmental impact assessment to be undertaken
         for a project covered by Article 4 ‘before consent is given’. The Commission submits that there is a possibility under the
         Irish legislation that part of the decision-making process will take place in disregard of that requirement. First, the Irish
         legislation does not require that an application for planning permission be lodged with the planning authorities before a
         licence application is submitted to the Agency, which is not empowered to undertake an environmental impact assessment. Second,
         the planning authorities are not obliged to take into account, in their assessment, the impact of pollution, which might not
         be assessed at all.
      
      53      Referring to the Court’s case-law (see, in particular, judgment of 20 November 2008 in Case C-66/06 Commission v Ireland, paragraph 59), the Commission states that it is not obliged to wait until the application of the transposing legislation
         produces harmful effects or to establish that it does so, where the wording of the legislation itself is insufficient or defective.
      
      54      As regards Article 3 of Directive 85/337, the Commission submits that where there is more than one competent body, the procedures
         followed by each of them must, when taken together, ensure that the assessment required by Article 3 is fully carried out.
         The strict demarcation of the separate roles of the planning authorities on the one hand and the Agency on the other, as laid
         down by the Irish legislation, fails to take formally into account the concept of ‘environment’ in the decision-making. None
         of the bodies involved in the consent process is responsible for assessing and taking into consideration the interaction between
         the factors referred to in the first to third indents of Article 3, which fall respectively within the separate spheres of
         the powers of each of those authorities.
      
      55      In that regard, the Commission, referring to section 98 of the EPAA, as amended, and to the EPAR, observes that there is no
         formal link, in the form of an obligation, for the competent authorities, to consult each other between the process of planning
         permission followed by the planning authority and the licensing process followed by the Agency. 
      
      56      In order to illustrate its analysis, the Commission refers to the projects relating to the installation of an incinerator
         at Duleek, in County Meath, and to the wood-processing factory at Leap, in County Offaly.
      
      57      Referring to Case C-98/04 Commission v United Kingdom [2006] ECR I-4003, Ireland contests the admissibility of the Commission’s second complaint in support of its action, on the
         ground that, in Ireland’s submission, the Commission has failed to indicate precisely the reason why Ireland’s designation
         of two competent authorities infringes the requirements of Directive 85/337. Ireland submits that the failure has interfered
         with the preparation of its defence.
      
      58      On the substance, Ireland contends that the consequence of involving a number of different competent authorities in the decision-making
         process, which is permitted by Articles 1(3) and 2(2) of Directive 85/337, is that their involvement and their obligations
         will be different and will occur at different stages prior to ‘development consent’ being given. Relying on Martin v An Bord Pleanála, Ireland contends that nowhere in that directive is it in any sense suggested that a single competent body must carry out
         a ‘global assessment’ of the impact on the environment.
      
      59      Ireland denies that there is a strict demarcation between the powers of the two decision-making bodies and submits that there
         is, rather, overlap between them. The concept of ‘proper planning and sustainable development’, to which the PDA refers, is
         a very broad one, which includes, in particular, environmental pollution. Planning authorities are required to assess environmental
         pollution in the context of a decision relating to planning permission. They are moreover empowered under various provisions
         to refuse planning permission on environmental grounds.
      
      60      Replying to the Commission’s argument that it is possible for a licence application to be made to the Agency before an application
         for planning permission has been made to the planning authority, and thus before an environmental impact assessment has been
         carried out, Ireland contends that under Irish law ‘development consent’ requires both planning permission from the competent
         planning authority and a licence from the Agency. In those circumstances, there is no practical benefit in the developer applying
         for a licence from the Agency without making a contemporaneous application to the planning authority; such separate applications
         do not therefore occur in practice. 
      
      61      In addition, Ireland argues that, contrary to the Commission’s assertion that the Agency cannot undertake an environmental
         impact assessment, there is in several instances an obligation, particularly for waste recovery or waste disposal licence
         applications and for applications for integrated pollution control and prevention licences, to submit an environmental impact
         statement to the Agency independently of any earlier application for planning permission lodged with a planning authority.
         In addition, in such cases the Agency is expressly empowered to request further information from an applicant and may therefore
         request information which is substantially similar to that contained in an environmental impact statement.
      
      62      Ireland submits that an obligation on the planning authority and the Agency to consult in every case would be inappropriate.
         It would be more appropriate to allow such consultation whilst affording a discretion to the relevant decision-makers as to
         whether, in each particular case, to undertake such consultation.
      
      63      Finally, the judgment in Case C-66/06 Commission v Ireland, to which the Commission refers in order to avoid having to adduce proof of its allegations, is not relevant to the present
         case. In Ireland’s submission, the alleged infringement, in that case, concerned the manner in which Directive 85/337 had
         been transposed into Irish domestic law, whereas the present case concerns the application of the legislation transposing
         that directive. Whilst a comprehensive scheme has been put in place by the Irish legislation on the environmental impact assessment,
         the Commission claims that that legislation may not always be applied properly in practice. In that regard, the onus of proof
         lies with the Commission, which has failed to discharge it. The references to the projects at Duleek and Leap offer no support
         whatsoever for the Commission’s allegations.
      
       Findings of the Court
      –       Admissibility of the second complaint
      64      It is settled case‑law that, in the context of an action brought on the basis of Article 226 EC, the reasoned opinion and
         the action must set out the Commission’s complaints coherently and precisely in order that the Member State and the Court
         may appreciate exactly the scope of the infringement of European Union law complained of, a condition which is necessary in
         order to enable the Member State to avail itself of its right to defend itself and the Court to determine whether there is
         a breach of obligations as alleged (see, in particular, Commission v United Kingdom, paragraph 18, and Case C‑66/06 Commission v Ireland, paragraph 31).
      
      65      In this case, it is apparent from the documents in the court file that, in the pre‑litigation procedure, both paragraphs 3.2.2
         to 3.2.5 of the reasoned opinion of 6 August 2001 and paragraphs 2.17 and 2.18 of the additional reasoned opinion of 29 June
         2007 set forth the reason for which the strict demarcation between the separate roles assigned to the planning authorities,
         on the one hand, and the Agency, on the other, does not satisfy, in the Commission’s submission, the requirements of Directive
         85/337. It is there explained that such sharing of powers is incompatible with the fact that the concept of ‘environment’,
         as it must be taken into account in the decision-making process laid down by that directive, involves taking into consideration
         the interaction between the factors falling within the separate spheres of responsibility of each of those decision-making
         authorities. 
      
      66      That complaint is set out in identical or similar terms in paragraphs 55 et seq. of the application in this action which,
         in addition, contains, in its paragraphs 9 to 20, a summary of the relevant provisions of the Irish legislation.
      
      67      It follows from those findings that the Commission’s allegations in the course of the pre-litigation procedure and the proceedings
         before the Court were sufficiently clear to enable Ireland properly to defend itself. 
      
      68      Accordingly, Ireland’s plea of inadmissibility in respect of the Commission’s second complaint must be rejected. 
      
      –       Substance 
      69      At the outset, it is to be noted that, by its second complaint, the Commission is criticising the transposition by the Irish
         legislation at issue of Articles 2 to 4 of Directive 85/337, on the ground that the procedures put in place by that legislation
         do not ensure full compliance with those articles where several national authorities take part in the decision-making process.
         
      
      70      Consequently, Ireland’s line of argument that the Commission has not adequately established the factual basis for its action
         must immediately be rejected. As the Commission claimed, since its action for failure to fulfil obligations is concerned with
         the way in which Directive 85/337 has been transposed, and not with the actual result of the application of the national legislation
         relating to that transposition, it must be determined whether that legislation itself harbours the insufficiencies or defects
         in the transposition of the directive which the Commission alleges, without any need to establish the actual effects of the
         national legislation effecting that transposition with regard to specific projects (see Case C‑66/06 Commission v Ireland, paragraph 59). 
      
      71      Article 1(2) of Directive 85/337 defines the term ‘development consent’ as ‘the decision of the competent authority or authorities
         which entitles the developer to proceed with the project’. Article 1(3) states that the competent authorities are to be that
         or those which the Member States designate as responsible for performing the duties arising from that directive.
      
      72      For the purposes of the freedom thus left to them to determine the competent authorities for giving development consent, for
         the purposes of that directive, the Member States may decide to entrust that task to several entities, as the Commission has
         moreover expressly accepted.
      
      73      Article 2(2) of Directive 85/337 adds that the environmental impact statement may be integrated into the existing procedures
         for consent to projects or failing that, into other procedures or into procedures to be established to comply with the aims
         of that directive.
      
      74      That provision means that the liberty left to the Member States extends to the determination of the rules of procedure and
         requirements for the grant of the development consent in question.
      
      75      However, that freedom may be exercised only within the limits imposed by that directive and provided that the choices made
         by the Member States ensure full compliance with its aims. 
      
      76      Article 2(1) of Directive 85/337 thus states that the environmental impact assessment must take place ‘before the giving of
         consent’. That entails that the examination of a project’s direct and indirect effects on the factors referred to in Article
         3 of that directive and on the interaction between those factors be fully carried out before consent is given.
      
      77      In those circumstances, while nothing precludes Ireland’s choice to entrust the attainment of that directive’s aims to two
         different authorities, namely planning authorities on the one hand and the Agency on the other, that is subject to those authorities’
         respective powers and the rules governing their implementation ensuring that an environmental impact assessment is carried
         out fully and in good time, that is to say before the giving of consent, within the meaning of that directive.
      
      78      In that regard, the Commission maintains that it has identified, in the Irish legislation, a gap arising from the combination
         of two factors. The first is the lack of any right on the part of the Agency, where it receives an application for a licence
         for a project as regards pollution aspects, to require an environmental impact assessment. The second is the possibility that
         the Agency might receive an application and decide on questions of pollution before an application is made to the planning
         authority, which alone can require the developer to make an environmental impact statement. 
      
      79      In its defence, Ireland, which does not deny that, generally, the Agency is not empowered to require a developer to produce
         such a statement, contends that there is no practical benefit for a developer in seeking a licence from the Agency without
         simultaneously making an application for planning permission to the planning authority, since he needs a consent from both
         those authorities. However, Ireland has neither established, nor even alleged, that it is legally impossible for a developer
         to obtain a decision from the Agency where he has not applied to the planning authority for permission.
      
      80      Admittedly, the EPAR give the Agency the right to notify a licence application to the planning authority. However, it is common
         ground between the parties that it is not an obligation and, moreover, an authority which has received such notification is
         not bound to reply to it. 
      
      81      It is therefore not inconceivable that the Agency, as the authority responsible for licensing a project as regards pollution
         aspects, may make its decision without an environmental impact assessment being carried out in accordance with Articles 2
         to 4 of Directive 85/337.
      
      82      Ireland contends that, in certain cases, relating particularly to licences for the recovery or disposal of waste and integrated
         pollution control and prevention licences, the Agency is empowered to require an environmental impact statement, which it
         must take into account. However, such specific rules cannot fill the gap in the Irish legislation identified in the preceding
         paragraph.
      
      83      Ireland submits also that planning authorities are empowered, since the amendment of the EPAA by section 256 of the PDA, to
         refuse, where appropriate, planning permission on environmental grounds and that the concepts of ‘proper planning’ and ‘sustainable
         development’ confer on those authorities, generally, such power. 
      
      84      Such an extension of the planning authority’s powers may, as Ireland argues, create in certain cases an overlap of the respective
         powers of the authorities responsible for environmental matters. None the less, it must be held that such an overlap cannot
         fill the gap pointed out in paragraph 81 of the present judgment, which leaves open the possibility that the Agency will alone
         decide, without an environmental impact assessment complying with Articles 2 to 4 of Directive 85/337, on a project as regards
         pollution aspects.
      
      85      In those circumstances, it must be held that the Commission’s second complaint in support of its action for failure to fulfil
         obligations is well founded.
      
       The third complaint, alleging failure to apply Directive 85/337 to demolition works
       Arguments of the parties
      86      In the Commission’s submission, demolition works may constitute a ‘project’ within the meaning of Article 1(2) of Directive
         85/337, since they fall within the concept of ‘other interventions in the natural surroundings and landscape’. However, in
         the PDR, Ireland purported to exempt nearly all demolition works from the obligation to carry out an environmental impact
         assessment. After the end of the two-month period laid down in the additional reasoned opinion of 29 June 2007, Ireland admittedly
         notified the Commission of new legislation, which amended the PDR by significantly narrowing the scope of the exemption for
         demolition works. However, that legislation cannot, the Commission submits, be taken into account in the present infringement
         action.
      
      87      The Commission claims that Ireland’s interpretation that demolition works fall outside the scope of the directive is reflected
         in the NMA, and refers in that regard to sections 14, 14A and 14B of that Act which relate to the demolition of a national
         monument. 
      
      88      By way of illustration of how, in contravention of Directive 85/337, the exclusion of demolition works allowed, by virtue
         of section 14A of the NMA, a national monument to be demolished without an environmental impact assessment being undertaken,
         the Commission cites the ministerial decision of 13 June 2007 ordering the destruction of a national monument in order to
         permit the M3 motorway project to proceed.
      
      89      As a preliminary point, Ireland objects that the Commission’s third complaint is, in so far as it concerns section 14 of the
         NMA, inadmissible, since that provision was not mentioned in the additional reasoned opinion of 29 June 2007.
      
      90      In Ireland’s submission, demolition works do not fall within the scope of Directive 85/337, since they are not mentioned in
         Annex I or II thereto. In addition, Ireland submits that section 10 of the PDA and Article 9 of the PDR, when read together,
         make clear that the exemption from the obligation to obtain planning permission in respect of demolition works can apply only
         if the project is unlikely to have significant effects on the environment.
      
      91      As regards the obligation to carry out further assessments, Ireland argues that the essence of Directive 85/337 is that the
         environmental impact assessment be carried out at the earliest possible stage, before the development starts. The only occasion
         when it is ever necessary to carry out a fresh assessment is, in accordance with the first indent of point 13 in Annex II
         to the directive, where the development project has been changed or extended.
      
      92      With regard to the scope of ministerial directions issued under section 14A of the NMA, Ireland states that that provision
         applies only in the context of a road development previously approved by the Board, on the basis of an environmental impact
         assessment. Only the Board may authorise an alteration to a road development and it must in such a case assess whether that
         alteration is likely to have adverse environmental consequences. In those circumstances, the Minister’s power to issue ministerial
         directions cannot be equated with the giving of consent for the motorway project. Those directions are issued only, if at
         all, following the commencement of the development works and the discovery of a new national monument and are designed only
         to regulate how the newly discovered national monument is to be dealt with. Also, Ireland denies that a ministerial decision
         was taken ordering the destruction of a national monument in order to allow the M3 motorway project to proceed.
      
       Findings of the Court
      –       Admissibility of the third complaint
      93      According to the Court’s settled case‑law, the subject-matter of proceedings brought under Article 226 EC is delimited by
         the administrative pre-litigation procedure governed by that article and the application must be founded on the same grounds
         and pleas as those stated in the reasoned opinion (see, in particular, Case C‑340/02 Commission v France [2004] ECR I‑9845, paragraph 26 and the case‑law cited).
      
      94      In this case, it is clear from the wording of the additional reasoned opinion of 29 June 2007 that the Commission, in paragraphs
         2.34 to 2.38 thereof, complained that Ireland had excluded demolition works from the scope of the national legislation transposing
         Directive 85/337. In paragraphs 2.39 and 2.40 of the same opinion, the Commission stated that Ireland’s interpretation of
         that directive was reflected not only in the PDA, but also in other more specific legislative provisions, such as the NMA,
         and it took as an example the carrying-out of the M3 motorway project.
      
      95      It follows that, while the Commission did not expressly refer to section 14 of the NMA in that reasoned opinion, it none the
         less referred clearly to the decision‑making mechanism laid down by that section as part of its analysis of the deficiencies
         which, in its submission, that Act entails.
      
      96      In those circumstances, Ireland’s plea of inadmissibility against the Commission’s third complaint must be rejected. 
      
      –       Substance
      97      As regards the question whether demolition works come within the scope of Directive 85/337, as the Commission maintains in
         its pleadings, or whether, as Ireland contends, they are excluded, it is appropriate to note, at the outset, that the definition
         of the word ‘project’ in Article 1(2) of that directive cannot lead to the conclusion that demolition works could not satisfy
         the criteria of that definition. Such works can, indeed, be described as ‘other interventions in the natural surroundings
         and landscape’.
      
      98      That interpretation is supported by the fact that, if demolition works were excluded from the scope of that directive, the
         references to ‘the cultural heritage’ in Article 3 thereof, to ‘landscapes of historical, cultural or archaeological significance’
         in point 2(h) of Annex III to that directive and to ‘the architectural and archaeological heritage’ in point 3 of Annex IV
         thereto would have no purpose. 
      
      99      It is true that, under Article 4 of Directive 85/337, for a project to require an environmental impact assessment, it must
         come within one of the categories in Annexes I and II to that directive. However, as Ireland contends, they make no express
         reference to demolition works except, irrelevantly for the purposes of the present action, the dismantling of nuclear power
         stations and other nuclear reactors, referred to in point 2 of Annex I.
      
      100    However, it must be borne in mind that those annexes refer rather to sectoral categories of projects, without describing the
         precise nature of the works provided for. As an illustration it may be noted, as did the Commission, that ‘urban development
         projects’ referred to in point 10(b) of Annex II often involve the demolition of existing structures. 
      
      101    It follows that demolition works come within the scope of Directive 85/337 and, in that respect, may constitute a ‘project’
         within the meaning of Article 1(2) thereof.
      
      102    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, in particular, Case C-427/07 Commission v Ireland, paragraph 64 and the case‑law cited).
      
      103    Ireland does not deny that, under the national legislation in force at the date of the additional reasoned opinion, demolition
         works were not subject, as a general rule, to an environmental impact assessment but, on the contrary, were entitled to an
         exemption in principle.
      
      104    It is clear from the rules laid down in sections 14 to 14B of the NMA as regards the demolition of a national monument that,
         as the Commission claims, they take no account of the possibility that such demolition works might constitute, in themselves,
         a ‘project’ within the meaning of Articles 1 and 4 of Directive 85/337 and, in that respect, require a prior environmental
         impact assessment. However, since the insufficiency of that directive’s transposition into the Irish legal order has been
         established, there is no need to consider what that legislation’s actual effects are in the light of the carrying-out of specific
         projects, such as that of the M3 motorway.
      
      105    As regards the legislative changes subsequent to the action for failure to fulfil obligations being brought, they cannot be
         taken into consideration by the Court (see, in particular, Case C-427/07 Commission v Ireland, paragraph 65 and the case‑law cited).
      
      106    In those circumstances, the Commission’s third complaint in support of its action must be held to be well founded.
      
      107    Accordingly, it must be declared that: 
      
      –        by failing to transpose Article 3 of Directive 85/337;
      –        by failing to ensure that, where planning authorities and the Agency both have decision-making powers concerning a project,
         there will be complete fulfilment of the requirements of Articles 2 to 4 of that directive; and
      
      –        by excluding demolition works from the scope of its legislation transposing that directive,
      Ireland has failed to fulfil its obligations under that directive.
       Costs
      108    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 has applied for costs and Ireland has been unsuccessful
         the latter must be ordered to pay the costs.
      
      On those grounds, the Court (First Chamber) hereby:
      1.      Declares that: 
      –        by failing to transpose Article 3 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 and by Directive
            2003/35/EC of the European Parliament and of the Council of 26 May 2003;
      –        by failing to ensure that, where Irish planning authorities and the Environmental Protection Agency both have decision-making
            powers concerning a project, there will be complete fulfilment of the requirements of Articles 2 to 4 of Directive 85/337,
            as amended by Directive 2003/35; and
      –        by excluding demolition works from the scope of its legislation transposing Directive 85/337, as amended by Directive 2003/35,
      Ireland has failed to fulfil its obligations under that directive;
      2.      Orders Ireland to pay the costs. 
      [Signatures]
      * Language of the case: English.