Kingdom of the Netherlands v Commission of the European Communities.
Date: 2008-11-06
44. As regards, next, the argument that the Kingdom of the Netherlands is, by its first ground of appeal, seeking to put findings of fact in issue, it is sufficient to observe that such is not the case. In fact, the Kingdom of the Netherlands is in no way challenging the Court of First Instance’s findings in that context, from which it is clear, in particular, that the data for the year 2004 was incorporated in the TNO’s report and that the Commission, apart from that report, also took account of the MNP’s report. On the other hand, that Member State does challenge the conclusions which the Court of First Instance drew from those findings of fact. The question whether the Court of First Instance could, properly in law, conclude from those facts that the Commission failed neither in its duty of care nor in its duty to state reasons for its decisions, is a question of law subject to the review of the Court of Justice on appeal (see Case C‑188/96 P Commission  v V  [1997] ECR I‑6561, paragraph 24, and Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others  v Commission  [2005] ECR I‑5425, paragraph 453).
45. Finally, as regards the Commission’s objection to the second ground of appeal, the fact that an appeal, or a plea in support of an appeal, does not refer to all the reasons which led the Court of First Instance to adopt a position on a question does not result in the plea being inadmissible (see Case C‑458/98 P Industrie des poudres sphériques  v Council  [2000] ECR I‑8147, paragraph 67, and the order of 23 September 2005 in Case C‑357/04 P Andolfi v Commission , paragraph 24).
52. That provision requires that the introduction of such provisions be based on new scientific evidence relating to the protection of the environment or the working environment made necessary by reason of a problem specific to the Member State concerned arising after the adoption of the harmonisation measure, and that the proposed provisions as well as the grounds for introducing them be notified to the Commission (Case C‑512/99 Germany  v Commission  [2003] ECR I‑845, paragraph 80, and Joined Cases C‑439/05 P and C‑454/05 P Land Oberösterreich and Austria  v Commission  [2007] ECR I‑7141, paragraph 57).
53. Those conditions are cumulative in nature and must therefore all be satisfied if the derogating national provisions are not to be rejected by the Commission (see Germany  v Commission , paragraph 81, and Land Oberösterreich and Austria  v Commission , paragraph 58).
55. The exercise of that discretion is not, however, excluded from review by the Court. According to the case-law of the Court of Justice, not only must the Community judicature establish whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it (see Case C‑525/04 P Spain  v Lenzing  [2007] ECR I-9947, paragraph 57 and the case-law cited).
56. Moreover, it must be recalled that, where a Community institution has a wide discretion, the review of observance of guarantees conferred by the Community legal order in administrative procedures is of fundamental importance. The Court of Justice has had occasion to specify that those guarantees include, in particular for the competent institution, the obligations to examine carefully and impartially all the relevant elements of the individual case and to give an adequate statement of the reasons for its decision (see Case C‑269/90 Technische Universität München  [1991] ECR I‑5469, paragraph 14; Joined Cases C‑258/90 and C‑259/90 Pesquerias De Bermeo and Naviera Laida  v Commission  [1992] ECR I‑2901, paragraph 26; and Spain v Lenzing , paragraph 58).
61. Under the first indent of Article 174(3) EC, the Commission is, as a rule, obliged to take account, in its decisions in the field of the environment, of all available new scientific and technical data. That obligation applies, particularly, to the procedure under Article 95(5) and (6) EC, for which taking account of new data forms the very foundation.
67. In fact, while the Court of Justice has recognised that the Commission, as part of its assessment of the merits of a request for derogation under Article 95(5) EC, may have to have recourse to outside experts in order to obtain their advice on new scientific evidence adduced in support of such request (see Land Oberösterreich and Austria  v Commission , paragraph 32), the primary responsibility for making that assessment rests on the Commission, which must itself, if appropriate on the basis of the experts’ advice, properly take account of all the relevant evidence and explain, in its final decision, the essential considerations which led it to adopt that decision.