European Commission v Italian Republic.
Date: 2020-11-10
28


Referring to paragraphs 43 and 45 of the judgment of 22 February 2018, Commission v Poland (C‑336/16, EU:C:2018:94), the Commission notes that Directive 2008/50 replaced, in accordance with recital 3 thereof, five EU acts, including Directive 1999/30 which specified the air quality limit values to be complied with as from 1 January 2005. The Court pointed out in particular in that regard that the provisions of Article 5 of, in conjunction with Annex III to, Directive 1999/30, which covered the period preceding the implementation of Directive 2008/50 were maintained in force under the provisions of Article 13(1) of, and Annex XI to, that directive, so that a complaint alleging an infringement of the latter provisions is also admissible for the periods from 1 January 2005 to 11 June 2010.
30


Furthermore, the Commission maintains that the Court has previously held that the Italian Republic failed to fulfil its obligation to ensure that, for 2006 and 2007, concentrations of PM10 in ambient air did not exceed the daily and annual limit values laid down by Directive 1999/30 in many Italian zones and agglomerations (judgment of 19 December 2012, Commission v Italy, C‑68/11, EU:C:2012:815, paragraphs 55 to 58 and 67). Therefore, the present action relates to continuous exceedance of the daily and annual limit values for PM10 from 2008 until the expiry of the compliance deadline indicated in the reasoned opinion, that is, 28 June 2017.
58


The Commission notes that the Italian Republic has referred on several occasions to alleged improvement and to likely downward trends in PM10 concentration levels in the various zones concerned. However, in reliance on the judgment of 22 February 2018, Commission v Poland (C‑336/16, EU:C:2018:94, point 65), the Commission states that a possible partial downward trend highlighted by the data collected, which does not, however, result in compliance by the Member State concerned with the limit values which it is obliged to respect, cannot invalidate the finding of failure to fulfil obligations attributable to it.
65


At the outset, it must be noted, in the first place, that the Commission maintains that the Italian Republic has failed, systematically and persistently, to fulfil its obligations under the provisions of Article 13 of, in conjunction with Annex XI to, Directive 2008/50, in the zones and agglomerations covered by the present action, from 1 January 2008 until the expiry of the deadline indicated in the reasoned opinion, that is, 28 June 2017. However, in so far as part of that period falls before the date on which the Member States had to bring into force the laws, regulations and administrative provisions necessary to comply with that directive, which was set as 11 June 2010, which is indeed before the date of its entry into force, that is, 11 June 2008, it must be stressed that the Court has previously stated that complaints based on those provisions are admissible also for the period from 1 January 2005 to 11 June 2010, since the obligations laid down by those provisions were created in the original version of Directive 1999/30, which was replaced by Directive 2008/50, in particular the provisions of Article 5 of Directive 1999/30 in conjunction with Annex III to that directive (see, to that effect, judgment of 5 April 2017, Commission v Bulgaria, C‑488/15, EU:C:2017:267, paragraphs 50 to 55).
66


In the second place, it must be noted that, in order to support the proposition that the failure to fulfil obligations is of a consistent and general nature, the Commission relies, in its application, on the air quality data for 2016 submitted to it by the Italian Republic on 15 September 2017 and, in its reply, on the data for 2017. While those data thus constitute facts arising after the expiry of the deadline set out in the reasoned opinion, the fact remains that they are of the same kind as the facts to which the opinion referred and constitute the same conduct, with the result that the subject matter of the present action may extend to them (see, to that effect, judgment of 5 April 2017, Commission v Bulgaria, C‑488/15, EU:C:2017:267, paragraphs 42 to 47 and the case-law cited).
68


As regards exceedances of the daily limit value for PM10, the Commission submits that they can be observed in zone IT 1911 (agglomeration of Palermo) from 2008 to 2012 and in 2014 and 2016 and in zone IT 1215 (agglomeration of Rome) from 2008 up to and including 2016. The Commission maintains that the merits of the first plea in law of the action should therefore be analysed in the light of that information, since it merely seeks to set out in detail a complaint which the Commission had already made more generally in the application and, thus, does not alter the subject matter of the alleged failure to fulfil obligations and has no effect on the scope of the proceedings (see, to that effect, judgment of 4 June 2015, Commission v Poland, C‑678/13, not published, EU:C:2015:358, paragraph 37 and the case-law cited).
70


It should be borne in mind that the complaint alleging infringement of the obligation set out in the first subparagraph of Article 13(1) of Directive 2008/50 must be assessed taking into account the settled case-law according to which the procedure provided for in Article 258 TFEU is based on an objective finding that a Member State has failed to fulfil its obligations under the FEU Treaty or secondary legislation (judgments of 5 April 2017, Commission v Bulgaria, C‑488/15, EU:C:2017:267, paragraph 68, and of 30 April 2020, Commission v Romania (Exceedance of limit values for PM10), C‑638/18, not published, EU:C:2020:334, paragraph 67 and the case-law cited).
71


The Court has thus previously stressed repeatedly that exceeding the limit values for PM10 in ambient air is in itself sufficient for a finding to be made that there has been an infringement of the provisions of Article 13(1) of, in conjunction with Annex XI to, Directive 2008/50 (judgments of 5 April 2017, Commission v Bulgaria, C‑488/15, EU:C:2017:267, paragraph 69, and of 30 April 2020, Commission v Romania (Exceedance of limit values for PM10), C‑638/18, not published, EU:C:2020:334, paragraph 68, and the case-law cited).
76


It follows that the exceedances thus established must be regarded as persistent and systematic, without the Commission’s being required to provide additional evidence to that effect.
77


Likewise, contrary to what the Italian Republic claims, a failure to fulfil obligations may remain systematic and persistent even where a partial downward trend may be revealed by the data collected, which does not, however, result in that Member State complying with the limit values that it is required to observe (judgments of 22 February 2018, Commission v Poland, C‑336/16, EU:C:2018:94, paragraph 65, and of 30 April 2020, Commission v Romania(Exceedance of limit values for PM10), C‑638/18, not published, EU:C:2020:334, paragraph 70), as is the situation in the present case.
81


In addition, to accept such an argument would amount to allowing a Member State to disregard the deadline imposed by the provisions of Article 13 of, in conjunction with Annex XI to, Directive 2008/50, and thus comply with the limit values for PM10 under less stringent conditions than those imposed by Article 22 of that directive, which alone expressly provides for the possibility for a Member State to be exempted from that deadline, and would therefore impair the effectiveness of those provisions (see, by analogy, judgment of 19 November 2014, ClientEarth, C‑404/13, EU:C:2014:2382, paragraphs 42 to 44).
83


It should be recalled in this respect that, in proceedings for failure to fulfil obligations under Article 258 TFEU, it is for the Commission to establish the existence of the alleged failure to fulfil obligations and thus to prove that a Member State has failed to fulfil an obligation under a provision of EU law, without being able to rely on any presumption (see, inter alia, judgment of 5 September 2019, Commission v Italy(Bacteria Xylella fastidiosa), C‑443/18, EU:C:2019:676, paragraph 78 and the case-law cited).
87


Where such a finding has, as in the present case, been made, and in the absence of proof adduced by the Italian Republic of the existence of exceptional circumstances whose consequences could not have been avoided despite all the steps taken, it is irrelevant whether the failure to fulfil obligations is the result of intention or negligence on the part of the Member State responsible, or of technical or structural difficulties encountered by it (see, to that effect, judgments of 19 December 2012, Commission v Italy, C‑68/11, EU:C:2012:815, paragraphs 63 and 64, and of 24 October 2019, Commission v France (Exceedance of limit values for nitrogen dioxide), C‑636/18, EU:C:2019:900, paragraph 42).
88


As regards, in particular, the Italian Republic’s argument that European transport policies contributed to the exceedance of the limit values for PM10 in Italy, in particular since they did not take account of the nitrogen dioxide emissions actually produced by vehicles, especially diesel vehicles, it must be noted that the present action for failure to fulfil obligations relates to concentration levels of PM10 and not of nitrogen dioxide. Furthermore, as the Court has previously held, in addition to the fact that motor vehicles subject to the standards laid down in Regulation (EC) No 715/2007 of the European Parliament and of the Council of 20 June 2007 on type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information (OJ 2007 L 171, p. 1) are not the only cause of emissions of nitrogen dioxide, or of PM10 particulate matter, EU rules applicable to type approval of motor vehicles cannot exempt Member States from their obligation to comply with the limit values established by Directive 2008/50 on the basis of the scientific knowledge and experience of the Member States so as to reflect the level deemed appropriate by the European Union and the Member States in order to avoid, prevent or reduce the harmful effects of air pollutants on human health and the environment as a whole (see, to that effect, judgment of 24 October 2019, Commission v France(Exceedance of limit values for nitrogen dioxide), C‑636/18, EU:C:2019:900, paragraph 48).
89


Moreover, the topographical and climatic features of the zones and agglomerations concerned which are particularly unfavourable to the dispersion of pollutants are not such as to exempt the Member State concerned from responsibility for exceeding the limit values for PM10 but, on the contrary, constitute factors, as is apparent from point 2(c) and (d) of Section A of Annex XV to Directive 2008/50, which must be taken into account in the air quality plans that that Member State must, pursuant to Article 23 of that directive, draw up for those zones or agglomerations in order to achieve the limit value in the event of its exceedance.
90


Moreover, nor can the argument that the Commission was late in taking the measures necessary to achieve the objectives of Directive 2008/50 exempt the Italian Republic from its failure to fulfil its obligations under Article 13(1) of that directive, read in conjunction with Annex XI thereto (judgment of 24 October 2019, Commission v France (Exceedance of limit values for nitrogen dioxide), C‑636/18, EU:C:2019:900, paragraph 47).
95


As regards the Italian Republic’s argument that, first, the fact that the complaints raised by the Commission relate to only 17% of the whole of the national territory, which consequently precludes per se infringement of Article 13 of that directive, which, it argues, can only be envisaged if the limit values for PM10 are exceeded throughout the national territory, and, secondly, the differences in values recorded in measuring stations located in a single zone are, contrary to what the Commission maintains, relevant, it should be noted that the fact that limit values for PM10 are exceeded, even in a single zone, is sufficient in itself for a possible finding of failure to comply with the provisions of Article 13(1) of, and Annex XI to, Directive 2008/50 (judgment of 30 April 2020, Commission v Romania(Exceedance of limit values for PM10), C‑638/18, not published, EU:C:2020:334, paragraph 72 and the case-law cited).
96


Infringement of those provisions is examined in that context at the level of zones and agglomerations, and exceedance must be analysed for each zone or agglomeration on the basis of results from each measuring station. The Court has held, in that regard, that Article 13(1) and Article 23(1) of Directive 2008/50 must be interpreted, in accordance with the general scheme and purpose of the rules of which those provisions form part, as meaning that, in order to establish whether a limit value with an averaging period of one calendar year, as laid down in Annex XI to that directive, has been exceeded, it is sufficient that a pollution level higher than that value be measured at a single sampling point (judgments of 26 June 2019, Craeynest and Others, C‑723/17, EU:C:2019:533, paragraphs 60, 66 and 68, and of 30 April 2020, Commission v Romania (Exceedance of limit values for PM10), C‑638/18, not published, EU:C:2020:334, paragraph 73).
97


Thus, it is clear from that case-law that there is no de minimis threshold with regard to the number of zones in which an exceedance may be detected or with regard to the number of measuring stations in a given zone for which exceedances are recorded (judgment of 30 April 2020, Commission v Romania (Exceedance of limit values for PM10), C‑638/18, not published, EU:C:2020:334, paragraph 74). Moreover, it is apparent from the file that, the zones concerned by the present action include the largest agglomerations in Italy, which have several tens of millions of inhabitants. Ignoring this fact would be tantamount to disregarding the objectives pursued by Directive 2008/50, in particular the protection of human health and of the environment as a whole.
104


First, the classification by the Court of the exceedance of limit values for several years as ‘systematic and persistent’ shows in itself, without there being any need to examine in detail the content of the air quality plans drawn up by the Member State concerned, that that Member State has failed to implement appropriate and effective measures to keep the period during which the limit values for PM10 are exceeded ‘as short as possible’ (judgment of 5 April 2017, Commission v Bulgaria, C‑488/15, EU:C:2017:267, paragraphs 115 to 117).
105


Secondly, exceeding the limit values over a long period amounts to strong evidence that the Member State has not fulfilled its obligation under the second subparagraph of Article 23(1) of Directive 2008/50. The duration of future estimated exceedance of the limit values, should also, as the Court noted in its judgment of 22 February 2018, Commission v Poland (C‑336/16, EU:C:2018:94, paragraph 99), be taken into consideration when assessing air quality plans, and a particularly long time frame can only be justified by exceptional circumstances.
132


According to the Court’s settled case-law, Article 23(1) of Directive 2008/50 is of general application given that it applies, without being limited in time, to exceedances of any pollutant limit value established by that directive, after the deadline fixed for its application, whether that deadline is fixed by that directive or by the Commission under Article 22 of the directive (judgments of 5 April 2017, Commission v Bulgaria, C‑488/15, EU:C:2017:267, paragraph 104, and of 30 April 2020, Commission v Romania(Exceedance of limit values for PM10), C‑638/18, not published, EU:C:2020:334, paragraph 114 and the case-law cited).
133


It must also be noted that Article 23 of Directive 2008/50 establishes a direct link between, first, the exceedance of the limit values for PM10, as laid down in the provisions of Article 13(1) of, in conjunction with Annex XI to, Directive 2008/50, and, secondly, the drawing up of air quality plans (judgments of 5 April 2017, Commission v Bulgaria, C‑488/15, EU:C:2017:267, paragraph 83, and of 30 April 2020, Commission v Romania(Exceedance of limit values for PM10), C‑638/18, not published, EU:C:2020:334, paragraph 115 and the case-law cited).
134


Such plans may be adopted only on the basis of the balance between the aim of minimising the risk of pollution and the various opposing public and private interests (judgments of 5 April 2017, Commission v Bulgaria, C‑488/15, EU:C:2017:267, paragraph 106, and of 30 April 2020, Commission v Romania(Exceedance of limit values for PM10), C‑638/18, not published, EU:C:2020:334, paragraph 116 and the case-law cited).
135


Therefore, the fact that a Member State has exceeded the limit values for PM10 is not in itself sufficient to find that that Member State has failed to fulfil its obligations under the second subparagraph of Article 23(1) of Directive 2008/50 (judgments of 5 April 2017, Commission v Bulgaria, C‑488/15, EU:C:2017:267, paragraph 107, and of 30 April 2020, Commission v Romania(Exceedance of limit values for PM10), C‑638/18, not published, EU:C:2020:334, paragraph 117 and the case-law cited).
136


However, it follows from the second subparagraph of Article 23(1) of Directive 2008/50 that, while Member States have a degree of discretion in deciding which measures to adopt, those measures must, in any event, ensure that the period during which the limit values are exceeded is kept as short as possible (judgments of 5 April 2017, Commission v Bulgaria, C‑488/15, EU:C:2017:267, paragraph 109, and of 30 April 2020, Commission v Romania(Exceedance of limit values for PM10), C‑638/18, not published, EU:C:2020:334, paragraph 118 and the case-law cited).
137


In those circumstances, it is necessary to ascertain on the basis of a case-by-case analysis whether the air quality plans drawn up by the Member State concerned comply with the second subparagraph of Article 23(1) of Directive 2008/50 (judgments of 5 April 2017, Commission v Bulgaria, C‑488/15, EU:C:2017:267, paragraph 108, and of 30 April 2020, Commission v Romania(Exceedance of limit values for PM10), C‑638/18, not published, EU:C:2020:334, paragraph 119 and the case-law cited).
147


However, that situation in itself demonstrates, without there being any need to examine in greater detail the content of the air quality plans drawn up by the Italian Republic, that, in the present case, that Member State has not implemented appropriate and effective measures to ensure that the period of time during which the limit values for PM10 are exceeded is kept ‘as short as possible’ within the meaning of the second subparagraph of Article 23(1) of Directive 2008/50 (see, to that effect, judgments of 5 April 2017, Commission v Bulgaria, C‑488/15, EU:C:2017:267, paragraph 117, and of 30 April 2020, Commission v Romania (Exceedance of limit values for PM10), C‑638/18, not published, EU:C:2020:334, paragraph 123, and the case-law cited).
149


It should be noted in that regard that, according to the very wording of the second subparagraph of Article 23(1) of Directive 2008/50, the appropriateness of the measures referred to in an air quality plan must be assessed in relation to their capacity to ensure that the exceedance period is ‘kept as short as possible’, that requirement being stricter than that previously applicable under Directive 96/62, which merely required the Member States to adopt measures to bring air quality into line with the limit values for PM10‘within a reasonable period’ (see, to that effect, judgment of 5 April 2017, Commission v Bulgaria, C‑488/15, EU:C:2017:267, paragraphs 88 to 90).
150


It is with that in mind that Article 23 of Directive 2008/50 requires that, where it has been established that the limit values for PM10 have been exceeded, such a situation should lead the Member State concerned as soon as possible not only to adopt but also to implement appropriate measures in an air quality plan, the discretion available to that Member State in the event of an exceedance of the limit values being accordingly, in that context, limited by that requirement.
151


Moreover, as regards the Italian Republic’s argument that the deadlines which it has laid down are wholly appropriate to the extent of the structural changes necessary to put an end to the exceedances of the limit values for PM10 in ambient air, highlighting in particular difficulties pertaining to the socio-economic and budgetary implications of the investments to be made and local traditions, it should be recalled that that Member State must establish that the difficulties on which it relies in bringing to an end the exceedances of limit values for PM10 are such as to rule out the possibility that shorter deadlines could have been set (see, to that effect, judgment of 22 February 2018, Commission v Poland, C‑336/16, EU:C:2018:94, paragraph 101).
152


However, the Court has previously held, in reply to arguments that are entirely comparable to those put forward by the Italian Republic in the present case, that structural difficulties arising from the socio-economic and budgetary implications of large-scale investments that need to be carried out, were not, in themselves, exceptional and were not such as to rule out the possibility that shorter deadlines could have been set (see, to that effect, judgments of 24 October 2019, Commission v France (Exceeding limit values for nitrogen dioxide), C‑636/18, EU:C:2019:900, paragraph 85, and, by analogy, of 22 February 2018, Commission v Poland, C‑336/16, EU:C:2018:94, paragraph 101). The same applies to local traditions.
153


In that context, in the light of the foregoing, the Italian Republic’s argument based on the principles of proportionality, subsidiarity and balance between public and private interests, which, in its view, allows for even very long postponements of compliance with the limit values laid down by Directive 2008/50 must also be rejected. The Court has previously stated that, in accordance with Article 23(1) of that directive, air quality plans must be adopted on the basis of the balance between the aim of minimising the risk of pollution and the various opposing public and private interests (see to that effect judgments of 5 April 2017, Commission v Bulgaria, C‑488/15, EU:C:2017:267, paragraph 106, and of 24 October 2019, Commission v France (Exceeding limit values for nitrogen dioxide), C‑636/18, EU:C:2019:900, paragraph 79).