Raffinerie Mediterranee (ERG) SpA, Polimeri Europa SpA and Syndial SpA v Ministero dello Sviluppo economico and Others (C-379/08) and ENI SpA v Ministero Ambiente e Tutela del Territorio e del Mare and Others (C-380/08).
Date: 2010-03-09
25. In that connection, it is sufficient to point out that, although the Court does not, in a reference for a preliminary ruling, have jurisdiction to give a ruling on the compatibility of a national measure with European Union law, it does have jurisdiction to supply the national court with a ruling on the interpretation of that law so as to enable that court to determine whether such compatibility exists and decide the case before it (Case C‑439/06 citiworks  [2008] ECR I‑3913, paragraph 21 and the case law cited).
26. Moreover, a lower court must be free, if it considers that a higher ruling court’s legal ruling could lead it to give a judgment contrary to EU law, to refer to the Court questions which concern it (see, to that effect, Case 166/73 Rheinmühlen‑Düsseldorf  [1974] ECR 33, paragraph 4).
34. It must be concluded that Directive 2004/35 applies to damage caused by an emission, event or incident which took place after 30 April 2007 where such damage derives either from activities carried out after that date or activities which were carried out but had not finished before that date.
35. Article 267 TFEU is based on a clear division of functions between the national courts and the Court of Justice, so that the Court may rule on the interpretation or validity of a provision of EU law only on the basis of the facts which the national court puts before it. It follows that, within the framework of the procedure under Article 267 TFEU, it is not for the Court of Justice but for the national court to apply to national measures or situations the rules of EU law as interpreted by the Court of Justice (see Case C‑279/06 CEPSA  [2008] ECR I‑6681, paragraph 28).
37. If that court reaches the conclusion that Directive 2004/35 is not applicable in the cases pending before it, such a situation will therefore be governed by national law, in compliance with the rules of the Treaty and without prejudice to other secondary legislation.
38. Article 174 EC states that European Community policy on the environment is to aim at a high level of protection and is based, inter alia, on the principle that the polluter should pay. That provision is therefore confined to defining the general environmental objectives of the Community, since Article 175 EC confers on the Council of the European Union responsibility for deciding what action is to be taken, where appropriate following the codecision procedure with the European Parliament (see, to that effect, Case C‑379/92 Peralta [1994] ECR I‑3453, paragraphs 57 and 58).
39. Since Article 174 EC, which establishes the ‘polluter pays’ principle, is directed at action at Community level, that provision cannot be relied on as such by individuals in order to exclude the application of national legislation – such as that at issue in the main proceedings – in an area covered by environmental policy for which there is no Community legislation adopted on the basis of Article 175 EC that specifically covers the situation in question.
46. Under the system set up by Articles 6 and 7 of Directive 2004/35, as a rule, it is for the operator who caused the damage to put forward proposals for the remedial measures which it considers appropriate to the situation. In view of the knowledge which the operator is deemed to have as regards the nature of the damage to the environment caused by his activities, such a system may enable appropriate environmental remedial measures to be identified and implemented swiftly.
54. However, the principle of the right to be heard, whose observance is ensured by the Court, requires a public authority to hear interested parties before adopting a decision which concerns them (see Joined Cases C‑439/05 P and C‑454/05 P Land Oberösterreich and Austria  v Commission [2007] ECR I‑7141, paragraph 35 and the case‑law cited).
60. Where the competent authority is called upon, in the performance of the duties entrusted to it by the directive in question, to make complex assessments, its discretion applies also, to a certain extent, to the finding of facts underlying its action (see, by analogy, Case 138/79 Roquette Frères v Council [1980] ECR 3333, paragraph 25; Case C‑120/97 Upjohn [1999] ECR I‑223, paragraph 34; and Case C‑425/08 Enviro Tech (Europe)  [2009] ECR I‑0000, paragraph 62).
61. In exercising that discretion, the competent authority is nevertheless required, in such circumstances, to examine carefully and impartially all the relevant aspects of the individual case (see, by analogy, Case C‑269/90 Technische Universität München  [1991] ECR I‑5469, paragraph 14, and Case C‑405/07 P Netherlands  v Commission  [2008] ECR I‑8301, paragraph 56).
65. Lastly, a Member State cannot validly rely on Article 16(1) of Directive 2004/35, that is, the pursuit of the same objective of protecting the environment as laid down in the directive (see Case C‑6/03 Deponiezweckverband Eiterköpfe  [2005] ECR I‑2753, paragraph 41), if it maintains or adopts provisions or authorises a practice enabling the competent authority to disregard, first, the operators’ right to be heard and the obligation to invite the persons on whose land remedial measures are to be carried out to submit their observations and, second, the obligation to carry out a detailed examination of the potential options for environmental recovery.
75. If, on the other hand, the directive were to apply, it must be noted that, under the system set up by Directive 2004/35, operators are under a duty both to prevent and remedy environmental damage. Accordingly, in particular in accordance with the precautionary principle and as is apparent from recital 2 in the preamble to the directive, those operators must, first, take the preventive measures necessary to ensure that environmental damage does not occur.
76. Second, where environmental damage has occurred, as in the cases in the main proceedings, Article 6(1) of Directive 2004/35 provides that operators must take, inter alia, the necessary remedial measures, in accordance with Article 7 of the directive. Where appropriate, the competent authority has special powers to oblige them to do so or to take such measures itself.
79. Directive 2004/35 does not specify the precise conditions under which the competent authority may require the operators concerned to take the remedial measures identified by the authority. In such circumstances, it is for each Member State to determine those conditions, which must, first, seek to attain the objective of the directive, as set out in Article 1 thereof, namely to prevent and remedy environmental damage and, second, comply with EU law, in particular its general principles.
80. As regards infringement of their right to property, invoked by the applicants in the main proceedings, the Court has consistently held that, while the right to property forms part of the general principles of EU law, it is not an absolute right and must be viewed in relation to its social function. Consequently, its exercise may be restricted, provided that those restrictions in fact correspond to objectives of general interest pursued by the European Union and do not constitute disproportionate and intolerable interference, impairing the very substance of the rights guaranteed (Case 44/79 Hauer [1979] ECR 3727, paragraph 23; Case 265/87 Schräder HS Kraftfutter [1989] ECR 2237, paragraph 15; Case C‑293/97 Standley and Others [1999] ECR I‑2603, paragraph 54; and Joined Cases C‑402/05 P and C‑415/05 P Kadi and Al Barakaat International Foundation  v Council and Commission [2008] ECR I‑6351, paragraph 355).
81. As regards the objectives of general interest referred to above, established case‑law also shows that protection of the environment is one of those objectives (see Case 240/83 ADBHU  [1985] ECR 531, paragraph 13; Case C‑302/86 Commission  v Denmark  [1988] ECR 4607, paragraph 8; and Case C‑213/96 Outokumpu  [1998] ECR I‑1777, paragraph 32).
86. However, it is necessary to consider whether such measures, which are permitted under national legislation, exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see, to that effect, Case C‑534/06 Industria Lavorazione Carni Ovine  [2008] ECR I‑4129, paragraph 25, and Case C‑170/08 Nijemeisland [2009] ECR I‑0000, paragraph 41).