Commission of the European Communities v Kingdom of Spain.
Date: 2002-06-13
25 However, it is settled case-law that an action against a Member State for failure to fulfil its obligations is objective in nature and that the bringing and continuation of such an action before the Court, in application of the second paragraph of Article 226 EC, is a matter for the Commission in its entire discretion and the Court must consider whether or not there has been a failure to fulfil obligations as alleged, without its being part of its role to take a view on the Commission's exercise of its discretion (see, inter alia, Case 415/85 Commission v Ireland [1988] ECR 3097, paragraph 9, and Case C-209/89 Commission v Italy [1991] ECR I-1575, paragraph 6).
27 As a preliminary point, it must be stated, first, that the Commission did not refer in its action to the failure by the Kingdom of Spain to comply with Article 12(2) of the Directive, under which Member States must communicate to the Commission the provisions of national law which they adopt in the field covered by the Directive. The alleged infringement can thus exist, as submitted by the Spanish Government at the hearing, only if, on 18 February 1999 - the date on which the period prescribed in the supplementary reasoned opinion expired - the provisions of national law necessary to transpose the Directive had not entered into force, whatever the circumstances in which those provisions were communicated to the Commission.
28 Second, the consideration by the Court must, in the framework thus defined, relate to all the Spanish legislation adopted in the field governed by the Directive for the purpose of transposing it, whether that legislation originates from the national authorities or the decentralised authorities. In fact, the constitutional division of powers between those authorities has no effect on the assessment of the infringement. It is for the Member States to ensure that the implementation of their Community obligations by the centralised and decentralised competent authorities is effective (see, to that effect, Case C-237/90 Commission v Germany [1992] ECR I-5973, paragraph 35).
29 Third, the Court has repeatedly held that internal difficulties, such as those put forward by the Spanish Government in the present case, relating to the circumstances in which laws and regulations are drawn up, cannot exempt Member States from their Community obligations (see, inter alia, Case C-374/98 Commission v France [2000] ECR I-10799, paragraph 13).
30 Lastly, the Court has already held that Article 4(2) of the Directive does not empower the Member States to exclude generally and definitively from the obligation of assessment one or more classes of projects mentioned in Annex II (Case C-133/94 Commission v Belgium [1996] ECR I-2323, paragraphs 41 to 43), since the concept of classes of projects must be understood to mean not the 12 main categories in Annex II, but the subdivisions of those categories, each preceded by a letter of the alphabet (Case C-301/95 Commission v Germany [1998] ECR I-6135, paragraphs 39 to 43).
31 By contrast, Member States may establish the criteria and/or thresholds necessary to determine which of the projects covered by Annex II are to be subject to an assessment (Case C-72/95 Kraaijeveld and Others [1996] ECR I-5403, paragraphs 49 to 53). When establishing those thresholds and/or criteria, Member States must take account not only of the size of projects, but also their nature and location (Case C-392/96 Commission v Ireland [1999] ECR I-5901, paragraphs 65 to 67).
32 More generally, national provisions of a general or sectoral nature which require the assessment of the environmental impact of certain types of projects must satisfy the requirements set out in Article 3 of the Directive, as well as the procedural rules in Articles 5 to 9 of the Directive which concern, inter alia, public information.
36 Royal Decree No 1997/1995, which, according to the Spanish Government, reproduces all the classes of projects listed in Annex II to the Directive, in fact concerns only projects affecting special areas of conservation established under the Habitats Directive. The choice of such a criterion, based on the location of the projects within limited and, moreover, essentially rural areas of the national territory, has the effect of relieving of the obligation of assessment a considerable number of projects situated outside those areas which are likely to have significant effects on the environment. Such a choice, which precludes generally the taking into account of criteria and/or thresholds relating to the size and nature of projects, exceeds the limits of the Member States' discretion under Articles 2(1) and 4(2) of the Directive (see, to that effect, Case C-392/96 Commission v Ireland, cited above, paragraphs 64 to 68).
41 With respect to the legislation adopted by the other autonomous communities, the provisions cited by the Spanish Government have for the most part been communicated to the Commission only as an annex to the rejoinder. They are not accompanied by any direct reference to the classes of project listed in Annex II to the Directive.
42 In order to facilitate consideration of the state of transposition of the Directive, at the hearing the Spanish Government communicated to the Commission and the Court a table which indicates, in respect of each autonomous community and each class of projects listed in Annex II, whether the transposition of the Directive has already been carried out or remains to be achieved, and it requested the Court to carry out a detailed examination of the national and regional legislation in order systematically to make clear the infringement.