European Commission v Ireland.
Date: 2019-11-12
38


The Commission submits that it was not for the Court to determine, in that judgment, the specific measures enabling the failure to fulfil obligations declared to be remedied. It is apparent, on the other hand, from the case-law of the Court (judgments of 7 January 2004, Wells, C‑201/02, EU:C:2004:12, paragraphs 64 and 65, and of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne, C‑41/11, EU:C:2012:103, paragraphs 42, 43 and 46) that Ireland is required to eliminate the unlawful consequences of the failure to carry out an environmental impact assessment of the wind farm and to take all measures necessary to remedy that failure. In any event, mere preparatory steps, such as those taken in the present case, are insufficient.
39


In support of its arguments, the Commission also relies on the judgments of 26 July 2017, Comune di Corridonia and Others (C‑196/16 and C‑197/16, EU:C:2017:589, paragraph 35) and of 28 February 2018, Comune di Castelbellino (C‑117/17, EU:C:2018:129, paragraph 30), which confirm that the competent national authorities are under an obligation to take all measures necessary, within the sphere of their competence, to remedy the failure to carry out an environmental impact assessment, for example by revoking or suspending consent already granted, in order to carry out such an assessment. EU law does not preclude regularisation through the conducting of an environmental impact assessment, subject to certain conditions.
43


The Commission submits, however, that Ireland is required to revoke or suspend the consents at issue and carry out an ex post remedial assessment, even if those measures affect the wind farm operator’s vested rights. The possibility for a Member State to rely, in that regard, on the principle of procedural autonomy is, in accordance with the judgment of 17 November 2016, Stadt Wiener Neustadt (C‑348/15, EU:C:2016:882, paragraph 40), limited by the principles of effectiveness and equivalence.
44


In addition, it is apparent from the judgment of 14 June 2007, Medipac-Kazantzidis (C‑6/05, EU:C:2007:337, paragraph 43) that the wind farm operator is subject to the obligations arising from EU directives since it is a wholly owned subsidiary of an entity controlled by the public authorities.
45


Moreover, the Commission submits that the delay in complying with the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380), cannot be justified. In accordance with the case-law of the Court (judgment of 9 December 2008, Commission v France, C‑121/07, EU:C:2008:695, paragraph 21), although Article 260 TFEU does not specify the period within which a judgment must be complied with, the process of compliance must be initiated at once and completed as soon as possible. In the present case, neither the complexity of the issues arising nor the alleged breakdown of communications between Ireland and the Commission at the end of 2016 can justify that Member State’s failure to take action over a prolonged period. The Commission further notes that it had stated that December 2016 was the final deadline for complying with the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380).
51


As regards the procedures enabling a national administrative decision to be annulled, they fall within the procedural autonomy of the Member States. The judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380, paragraph 59), confirms that an obligation to remedy a failure to carry out an environmental impact assessment is limited by the procedural framework applicable within each Member State. In Ireland, a development consent may only be set aside by the High Court, on a direct application to that end.
72


In that regard, it should be borne in mind that, under Article 2(1) of Directive 85/337, projects likely to have significant effects on the environment, as referred to in Article 4 of that directive, read in conjunction with Annexes I or II thereto, must be made subject to an assessment with regard to such effects before consent is given (judgment of 7 January 2004, Wells, C‑201/02, EU:C:2004:12, paragraph 42).
73


The requirement to undertake such an assessment in advance is justified by the fact that it is necessary for the competent authority to take effects on the environment into account at the earliest possible stage in all the technical planning and decision-making processes, the objective being to prevent the creation of pollution or nuisances at source rather than subsequently trying to deal with their effects (judgments of 3 July 2008, Commission v Ireland, C‑215/06, EU:C:2008:380, paragraph 58, and of 26 July 2017, Comune di Corridonia and Others, C‑196/16 and C‑197/16, EU:C:2017:589, paragraph 33).
74


However, Directive 85/337 does not contain provisions governing the consequences of a breach of that obligation to carry out a prior assessment (see, to that effect, judgment of 26 July 2017, Comune di Corridonia and Others, C‑196/16 and C‑197/16, EU:C:2017:589, paragraph 34).
75


Under the principle of sincere cooperation provided for in Article 4(3) TEU, Member States are nevertheless required to eliminate the unlawful consequences of that breach of EU law. That obligation applies to every organ of the Member State concerned and, in particular, to the national authorities which have the obligation to take all measures necessary, within the sphere of their competence, to remedy the failure to carry out an environmental impact assessment, for example by revoking or suspending consent already granted, in order to carry out such an assessment (see, to that effect, judgments of 7 January 2004, Wells, C‑201/02, EU:C:2004:12, paragraph 64, and of 26 July 2017, Comune di Corridonia and Others, C‑196/16 and C‑197/16, EU:C:2017:589, paragraph 35).
76


As regards the possibility of regularising such an omission a posteriori, Directive 85/337 does not preclude national rules which, in certain cases, permit the regularisation of operations or measures which are unlawful in the light of EU law, provided that such a possibility does not offer the persons concerned the chance to circumvent the rules of EU law or to dispense with their application, and that it should remain the exception (judgment of 26 July 2017, Comune di Corridonia and Others, C‑196/16 and C‑197/16, EU:C:2017:589, paragraphs 37 and 38).
77


An assessment carried out in the context of such a regularisation procedure, after a plant has been constructed and has entered into operation cannot be confined to its future impact on the environment, but must also take into account its environmental impact from the time of its completion (see, to that effect, judgment of 26 July 2017, Comune di Corridonia and Others, C‑196/16 and C‑197/16, EU:C:2017:589, paragraph 41).
78


By contrast, Directive 85/337 precludes national legislation which allows the national authorities, where no exceptional circumstances are proved, to issue regularisation permission which has the same effects as those attached to a prior consent granted after an environmental impact assessment carried out in accordance with Article 2(1) and Article 4(1) and (2) of that directive (see, to that effect, judgments of 3 July 2008, Commission v Ireland, C‑215/06, EU:C:2008:380, paragraph 61; of 17 November 2016, Stadt Wiener Neustadt, C‑348/15, EU:C:2016:882, paragraph 37; and of 26 July 2017, Comune di Corridonia and Others, C‑196/16 and C‑197/16, EU:C:2017:589, paragraph 39).
79


Directive 85/337 also precludes a legislative measure, which would allow, without even requiring a later assessment and even where no exceptional circumstances are proved, a project which ought to have been subject to an environmental impact assessment, within the meaning of Article 2(1) of Directive 85/337, to be deemed to have been subject to such an assessment (see, to that effect, judgment of 17 November 2016, Stadt Wiener Neustadt, C‑348/15, EU:C:2016:882, paragraph 38).
80


Similarly, Directive 85/337 precludes projects in respect of which the consent can no longer be subject to challenge before the courts, because the time limit for bringing proceedings laid down in national legislation has expired, from being purely and simply deemed to be lawfully authorised as regards the obligation to assess their effects on the environment (judgment of 17 November 2016, Stadt Wiener Neustadt, C‑348/15, EU:C:2016:882, paragraph 43).
84


The fact remains that, as at the reference date for assessing whether there has been a failure to fulfil obligations under Article 260(2) TFEU, namely the expiry of the period prescribed in the letter of formal notice issued under that provision (see, to that effect, judgment of 11 December 2012, Commission v Spain, C‑610/10, EU:C:2012:781, paragraph 67), that is to say, in accordance with the letter of formal notice of 22 March 2010 mentioned in paragraph 26 above, at the end of May 2010, Ireland had failed to carry out a new environmental impact assessment of the wind farm within the context of the regularisation of the consents at issue and thereby failed to have regard to the authority attaching to the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380), as regards the second indent of point 1 of the operative part thereto.
89


First of all, the Court points out that, according to settled case-law, a Member State cannot plead provisions, practices or situations prevailing in its domestic legal order to justify failure to observe obligations arising under EU law (judgments of 2 December 2014, Commission v Greece, C‑378/13, EU:C:2014:2405, paragraph 29, and of 24 January 2018, Commission v Italy, C‑433/15, EU:C:2018:31, paragraph 56 and the case-law cited). It follows that Ireland, for the purposes of justifying the failure to comply with the obligations stemming from the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380), cannot rely on national provisions limiting the possibilities for commencing a regularisation procedure, such as Section 177 B and Section 177 C of Part XA of the PDAA, a procedure which it introduced into its national legislation specifically in order to ensure compliance with that judgment.
91


As regards, next, the wind farm operator’s inaction, or even its refusal to initiate the regularisation procedure pursuant to Section 177 C of Part XA of the PDAA, it suffices to refer, mutatis mutandis, to the considerations set out in paragraph 89 above, since that operator is controlled by Ireland. Consequently, the operator must be considered an emanation of that Member State on which, as the Commission rightly argued, the obligations arising from EU directives are binding (judgment of 14 June 2007, Medipac — Kazantzidis, C‑6/05, EU:C:2007:337, paragraph 43 and the case-law cited).
92


As regards Ireland’s argument based on the contention that the principle of legal certainty and the principle of the protection of legitimate expectations preclude the consents unlawfully granted to the wind farm’s operator from being withdrawn, it must be borne in mind, 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 and, secondly, that while the withdrawal of an unlawful measure must 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 (judgment of 4 May 2006, Commission v United Kingdom, C‑508/03, EU:C:2006:287, paragraphs 67 and 68).
93


Ireland cannot, therefore, rely on legal certainty and legitimate expectations derived by the operator concerned from acquired rights in order to contest the consequences flowing from the objective finding that Ireland has failed to fulfil its obligations under Directive 85/337 with regard to assessment of the effects of certain projects on the environment (see, to that effect, judgment of 4 May 2006, Commission v United Kingdom, C‑508/03, EU:C:2006:287, paragraph 69).
111


As a preliminary point, it should be borne in mind that, in each case, it is for the Court to determine, in the light of the circumstances of the case before it and according to the degree of persuasion and deterrence which appears to it to be required, the financial penalties appropriate, in particular, for preventing the recurrence of similar infringements of EU law (judgment of 14 November 2018, Commission v Greece, C‑93/17, EU:C:2018:903, paragraph 107 and the case-law cited).
112


As a preliminary point it must be borne in mind that, in exercising the discretion conferred on it in such matters, the Court is empowered to impose a penalty payment and a lump sum payment cumulatively (judgment of 14 November 2018, Commission v Greece, C‑93/17, EU:C:2018:903, paragraph 153).
113


The imposition of a lump sum payment and the fixing of that sum must depend in each individual case on all the relevant factors relating both to the characteristics of the failure to fulfil obligations established and to the conduct of the Member State involved in the procedure initiated under Article 260 TFEU. That provision confers a wide discretion on the Court in deciding whether to impose such a penalty and, if it decides to do so, in determining the amount (judgment of 14 November 2018, Commission v Greece, C‑93/17, EU:C:2018:903, paragraph 154).
114


In addition, it is for the Court, in the exercise of its discretion, to fix the lump sum in an amount appropriate to the circumstances and proportionate to the infringement. Relevant considerations in this respect include factors such as the seriousness of the infringement and the length of time for which the infringement has persisted since the delivery of the judgment establishing it, and the relevant Member State’s ability to pay (see, to that effect, judgments of 2 December 2014, Commission v Italy, C‑196/13, EU:C:2014:2407, paragraphs 117 and 118, and of 14 November 2018, Commission v Greece, C‑93/17, EU:C:2018:903, paragraphs 156, 157 and 158).
115


In the first place, as regards the seriousness of the infringement, it must be borne in mind that the objective of protecting the environment constitutes one of the essential objectives of the European Union and is both fundamental and inter-disciplinary in nature (see, to that effect, judgment of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne, C‑41/11, EU:C:2012:103, paragraph 57 and the case-law cited).
117


In accordance with the case-law recalled in paragraph 75 above, in the event of a breach of the obligation to assess the environmental impact, Member States are nevertheless required by EU law to eliminate at least the unlawful consequences of that breach (see, to that effect, judgment of 26 July 2017, Comune di Corridonia and Others, C‑196/16 and C‑197/16, EU:C:2017:589, paragraph 35).
121


Since that judgment has not yet been complied with, the Court cannot, therefore, but confirm the particularly lengthy character of an infringement which, in the light of the environmental protection aim pursued by Directive 85/337, is a matter of indisputable seriousness (see, by analogy, judgment of 22 February 2018, Commission v Greece, C‑328/16, EU:C:2018:98, paragraph 94).
122


As regards, in the second place, the duration of the infringement, it should be borne in mind that that duration must be assessed by reference to the date on which the Court assesses the facts and not the date on which proceedings are brought before it by the Commission. In the present case, the duration of the infringement, of over 11 years from the date of delivery of the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380), is considerable (see, by analogy, judgment of 22 February 2018, Commission v Greece, C‑328/16, EU:C:2018:98, paragraph 99).
123


Although Article 260(1) TFEU does not specify the period within which a judgment must be complied with, it follows from settled case-law that the importance of immediate and uniform application of EU law means that the process of compliance must be initiated at once and completed as soon as possible (judgment of 22 February 2018, Commission v Greece, C‑328/16, EU:C:2018:98, paragraph 100).
124


In the third place, as regards the ability to pay of the Member State concerned, it is apparent from the case-law of the Court that it is necessary to take account of recent trends in that Member State’s gross domestic product (GDP) at the time of the Court’s examination of the facts (judgment of 22 February 2018, Commission v Greece, C‑328/16, EU:C:2018:98, paragraph 101).
127


According to settled case-law, the imposition of a penalty payment is, in principle, justified only in so far as the failure to comply with an earlier judgment of the Court continues up to the time of the Court’s examination of the facts (judgment of 14 November 2018, Commission v Greece, C‑93/17, EU:C:2018:903, paragraph 108 and the case-law cited).
131


As regards the calculation of the amount of the penalty payment, according to settled case-law, the penalty payment must be decided upon according to the degree of persuasion needed in order for the Member State which has failed to comply with a judgment establishing a breach of obligations to alter its conduct and bring to an end the infringement established. In exercising its discretion in the matter, it is for the Court to set the penalty payment so that it is both appropriate to the circumstances and proportionate to the infringement established and the ability to pay of the Member State concerned (judgment of 14 November 2018, Commission v Greece, C‑93/17, EU:C:2018:903, paragraphs 117 and 118).
132


The Commission’s proposals regarding the amount of the penalty payment cannot bind the Court and are merely a useful point of reference. The Court must remain free to set the penalty payment to be imposed in an amount and in a form that it considers appropriate for the purposes of inducing the Member State concerned to bring to an end its failure to comply with its obligations arising under EU law (see, to that effect, judgment of 14 November 2018, Commission v Greece, C‑93/17, EU:C:2018:903, paragraph 119).
133


For the purposes of determining the amount of a penalty payment, the basic criteria which must be taken into consideration in order to ensure that that payment has coercive effect and that EU law is applied uniformly and effectively are, in principle, the seriousness of the infringement, its duration and the ability to pay of the Member State in question. In applying those criteria, regard must be had, in particular, to the effects on public and private interests of the failure to comply and to how urgent it is for the Member State concerned to be induced to fulfil its obligations (judgment of 14 November 2018, Commission v Greece, C‑93/17, EU:C:2018:903, paragraph 120).