Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland.
Date: 2006-05-04
18. Planning permission may be granted in several forms, one of which is outline permission with a requirement of subsequent approval of the reserved matters.
61. As to those submissions, it is not permissible for a party to alter the very subject-matter of the case during the proceedings, and the merits of the action must be examined solely in the light of the claims contained in the application initiating the proceedings (see, to that effect, Case 232/78 Commission  v France  [1979] ECR 2729, paragraph 3, and Case C-256/98 Commission  v France  [2000] ECR I‑2487, paragraph 31).
62. Furthermore, by virtue of Article 21 of the Statute of the Court of Justice and Article 38(1)(c) of its Rules of Procedure, the Commission must, in any application made under Article 226 EC, indicate the specific complaints on which the Court is asked to rule and, at the very least in summary form, the legal and factual particulars on which those complaints are based (see Case C-52/90 Commission  v Denmark  [1992] ECR I-2187, paragraph 17).
67. It should be stated with regard to those submissions, first, that the infringement procedure is based on the objective finding that a Member State has failed to fulfil its obligations under the Treaty or secondary legislation (see, to that effect, Case C-71/97 Commission  v Spain  [1998] ECR I-5991, paragraph 14, and Case C‑83/99 Commission  v Spain  [2001] ECR I-445, paragraph 23).
68. Secondly, it follows from case-law that, while the principles of legal certainty and of the protection of legitimate expectations require the withdrawal of an unlawful measure to occur within a reasonable time and regard must be had to how far the person concerned might have been led to rely on the lawfulness of the measure, the fact remains that such withdrawal is, in principle, permitted (see, in particular, Joined Cases 7/56 and 3/57 to 7/57 Algera and Others v Common Assembly of the ECSC [1957] ECR 39, at 55 and 56; Case 14/81 Alpha Steel  v Commission  [1982] ECR 749, paragraph 10; and Case 15/85 Consorzio Cooperative d’Abruzzo  v Commission  [1987] ECR 1005, paragraph 12).
69. A Member State cannot therefore rely on legal certainty and legitimate expectations derived by developers from acquired rights in order to prevent the Commission from bringing an action seeking an objective finding that the Member State has failed to fulfil its obligations under Directive 85/337 with regard to assessment of the effects of certain projects on the environment.
– The jurisdiction of the national courts
71. As to that submission, the fact that proceedings have been brought before a national court to challenge the decision of a competent authority which is the subject of an action for failure to fulfil obligations and the decision of that court cannot affect the admissibility of the action for failure to fulfil oblig ations brought by the Commission. The existence of the remedies available through the national courts cannot prejudice the bringing of an action under Article 226 EC, since the two procedures have different objectives and effects (see Case 31/69 Commission  v Italy  [1970] ECR 25, paragraph 9; Case 85/85 Commission  v Belgium  [1986] ECR 1149, paragraph 24; and Case C-87/02 Commission  v Italy  [2004] ECR I‑5975, paragraph 39).
– The action is devoid of purpose
73. As to that submission, an action in respect of an infringement which no longer existed on the date upon which the period laid down in the reasoned opinion expired is, according to the case-law, inadmissible because it is devoid of purpose (see Case C-362/90 Commission  v Italy  [1992] ECR I-2353, paragraph 13, and Case C-209/02 Commission  v Austria  [2004] ECR I-1211, paragraphs 17 and 18).
74. It is clear from settled case-law that the purpose of an action brought under Article 226 EC is to obtain a declaration that the State concerned has failed to fulfil its obligations under the Treaty and that it has failed to put an end to that infringement within the time set by the Commission in its reasoned opinion (Case C-347/88 Commission  v Greece  [1990] ECR I-4747, paragraph 40). The Court has also consistently held that the question whether a Member State has failed to fulfil its obligations must be assessed by reference to the situation prevailing in the Member State concerned at the end of the period laid down in the reasoned opinion (see Case C-200/88 Commission  v Greece  [1990] ECR I-4299, paragraph 13, and Case C-362/90 Commission  v Italy , paragraph 10).
77. Before considering the merits, it is appropriate first to note that in proceedings under Article 226 EC for failure to fulfil obligations it is incumbent upon the Commission to prove the allegation that the obligation has not been fulfilled. It is the Commission’s responsibility to place before the Court the information needed to enable the Court to establish that the obligation has not been fulfilled, and in so doing the Commission may not rely on any presumptions (see, in particular, Case C-494/01 Commission  v Ireland  [2005] ECR I-3331, paragraph 41 and the case-law cited).
78. Thus, with regard more specifically to Directive 85/337, the Court held in Case C‑117/02 Commission  v Portugal  [2004] ECR I-5517, at paragraph 85, that the Commission must furnish at least some evidence of the effects that the project in question is likely to have on the environment.
79. However, the Member States are required, under Article 10 EC, to facilitate the achievement of the Commission’s tasks, which consist in particular, pursuant to Article 211 EC, in ensuring that the provisions of the Treaty and the measures taken by the institutions pursuant thereto are applied (see, in particular, Commission  v Ireland , paragraph 42 and the case-law cited).
80. It follows in particular that, where the Commission has adduced sufficient evidence of certain matters in the territory of the defendant Member State, it is incumbent on the latter to challenge in substance and in detail the information produced and the consequences flowing therefrom (see Commission  v Ireland , paragraph 44 and the case-law cited).
88. Although in those circumstances Article 4(2) of Directive 85/337 gives the competent authority a degree of freedom in appraising whether or not a particular project must be made subject to an assessment, it is, however, clear from settled case-law that the limits of that discretion are to be found in the obligation, set out in Article 2(1) of the directive, that all projects which are likely to have significant effects on the environment are to be subject to an assessment (see, to that effect, Case C-435/97 WWF and Others  [1999] ECR I-5613, paragraphs 44 and 45; Case C-87/02 Commission  v Italy , paragraphs 43 and 44; and Case C‑83/03 Commission  v Italy  [2005] ECR I-4747, paragraph 19).
89. Thus, it is clear from case-law that Directive 85/337 requires that all projects falling within Annex II that are likely to have significant effects on the environment be made subject to an assessment (see, to that effect, WWF and Others , paragraph 45; Commission  v Portugal , paragraph 82; and Case C-87/02 Commission  v Italy , paragraph 44).
90. However, as has already been noted in paragraphs 77 to 80 above, proof that  Article 2(1) of Directive 85/337 has been infringed requires the Commission to demonstrate that a Member State has failed to 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. That proof may effectively be furnished by demonstrating that a Member State did not take the measures necessary to ascertain whether a project which does not reach the thresholds envisaged in Article 4(2) of Directive 85/337 is nevertheless likely to have significant effects on the environment by virtue inter alia of its nature, size or location. The Commission might also establish that a project likely to have significant effects on the environment was not the subject of an impact assessment although it should have been ( Commission  v Portugal , paragraph 82).
91. In that last respect, it is also clear from paragraphs 85 and 87 of Commission  v Portugal  that, in order to demonstrate that the national authorities exceeded the limits of their discretion by failing to require that an impact assessment be carried out before giving consent for a specific project, the Commission cannot limit itself to general assertions by, for example, merely pointing out that the information provided shows that the project in question is located in a highly sensitive area, without presenting specific evidence to demonstrate that the national authorities concerned made a manifest error of assessment when they gave consent to a project. The Commission must furnish at least some evidence of the effects that the project is likely to have on the environment.
101. In the present case, it is common ground that, under national law, a developer cannot commence works in implementation of his project until he has obtained reserved matters approval. Until such approval has been granted, the development in question is still not (entirely) authorised.
102. Therefore, the two decisions provided for by the rules at issue in the present case, namely outline planning permission and the decision approving reserved matters, must be considered to constitute, as a whole, a (multi-stage) ‘development consent’ within the meaning of Article 1(2) of Directive 85/337, as amended.
103. In those circumstances, it is clear from Article 2(1) of Directive 85/337, as amended, that projects likely to have significant effects on the environment, as referred to in Article 4 of the directive read in conjunction with Annexes I and II thereto, must be made subject to an assessment with regard to their effects before (multi-stage) development consent is given (see, to that effect, Case C-201/02 Wells  [2004] ECR I-723, paragraph 42).
104. In that regard, the Court stated in Wells , at paragraph 52, that where national law provides for a consent procedure comprising more than one stage, one involving a principal decision and the other involving an implementing decision which cannot extend beyond the parameters set by the principal decision, the effects which a project may have on the environment must be identified and assessed at the time of the procedure relating to the principal decision. It is only if those effects are not identifiable until the time of the procedure relating to the implementing decision that the assessment should be carried out in the course of that procedure.
105. In the present case, the rules at issue provide that an environmental impact assessment in respect of a project may be carried out only at the initial outline planning permission stage, and not at the later reserved matters stage.
106. Those rules are therefore contrary to Articles 2(1) and 4(2) of Directive 85/337, as amended. The United Kingdom has thus failed to fulfil its obligation to transpose those provisions into domestic law.