Commission of the European Communities v Ireland.
Date: 2008-11-20
30. It is clear from Article 38(1)(c) of the Rules of Procedure of the Court of Justice and from the case-law relating to that provision that an application must state the subject-matter of the proceedings and a summary of the pleas in law on which the application is based, and that that statement must be sufficiently clear and precise to enable the defendant to prepare his defence and the Court to rule on the application. It is therefore necessary for the essential points of fact and of law on which a case is based to be indicated coherently and intelligibly in the application itself and for the form of order sought to be set out unambiguously so that the Court does not rule ultra petita  or indeed fail to rule on a complaint (see, inter alia, Case C-195/04 Commission  v Finland  [2007] ECR I‑3351, paragraph 22, and the judgment of 21 February 2008 in Case C-412/04 Commission  v Italy , not yet published in the ECR, paragraph 103).
31. The Court has also held that, in the context of an action brought under Article 226 EC, the reasoned opinion and the action must set out the Commission’s complaints coherently and precisely in order that the Member State and the Court may appreciate exactly the scope of the infringement of Community law complained of, a condition which is necessary in order to enable the Member State to avail itself of its right to defend itself and the Court to determine whether there is a breach of obligations as alleged (see, in particular, Case C-98/04 Commission  v United Kingdom  [2006] ECR I-4003, paragraph 18).
59. Consequently, Ireland’s line of argument that the Commission has not adequately established the factual basis for its action can only be rejected. Since the action for failure to fulfil obligations is concerned with the way in which Directive 85/337 has been transposed, and not with the actual result of the application of the legislation transposing it, it must be determined whether that legislation itself harbours the insufficiencies or defects in transposition of the directive which the Commission alleges, without any need to establish the actual effects of the legislation with regard to specific projects (see, to this effect, Case C-392/96 Commission  v Ireland  [1999] ECR I-5901, paragraphs 59 and 60).
61. In accordance with settled case-law, where Member States have decided to have recourse to the establishment of thresholds and/or criteria, the limits of the measure of discretion which is thus conferred upon them are to be found in the obligation set out in Article 2(1) of Directive 85/337 that projects likely, by virtue inter alia of their nature, size or location, to have significant effects on the environment are to be subject to an impact assessment before consent is given (see, to this effect, in particular Case C-72/95 Kraaijeveld and Others  [1996] ECR I‑5403, paragraph 50, and the judgment of 28 February 2008 in Case C-2/07 Abraham and Others , not yet published in the ECR, paragraph 37).
62. In addition, pursuant to Article 4(3) of Directive 85/337, the Member States are under an obligation to take into account, when establishing those criteria or thresholds, the relevant selection criteria set out in Annex III to the directive.
64. It follows that a Member State which, on the basis of Article 4(2) of Directive 85/337, established thresholds and/or criteria taking account only of the size of projects, without taking into consideration the criteria noted in paragraph 63 of the present judgment, would exceed the limits of its discretion under Articles 2(1) and 4(2) of the directive (see, to this effect, Case C-392/96 Commission  v Ireland , paragraph 65).
65. Furthermore, a Member State which established those thresholds and/or criteria at a level such that, in practice, all projects of a certain type would be exempted in advance from the requirement of an impact assessment would likewise exceed the limits of that discretion, unless all the projects excluded could, when viewed as a whole, be regarded as not likely to have significant effects on the environment (see Case C-392/96 Commission  v Ireland , paragraph 75 and the case-law cited).
78. It should be remembered at this point that while, in proceedings under Article 226 EC for failure to fulfil obligations it is for the Commission to prove the existence of the alleged infringement and to place before the Court the information necessary for it to determine whether the infringement is made out, and in so doing the Commission may not rely on any presumption (see, to this effect, inter alia Case C-494/01 Commission  v Ireland  [2005] ECR I-3331, paragraph 41 and the case-law cited, and Case C-441/02 Commission  v Germany  [2006] ECR I‑3449, paragraph 48), the Member States are required, under Article 10 EC, to facilitate the achievement of the Commission’s tasks (see, inter alia, Case C‑494/01 Commission  v Ireland , paragraph 42). 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 (Case C-494/01 Commission  v Ireland , paragraph 44).
85. It follows that, by setting thresholds which take account only of the size of projects – to the exclusion of the other criteria laid down in Annex III to Directive 85/337 – for project categories covered by point 1(a) to (c) of Annex II to the directive and by not providing for a case-by-case examination for those project categories ensuring that projects likely to have significant effects on the environment do not escape an assessment of their environmental effects, Ireland has exceeded the limits of its discretion under Articles 2(1) and 4(2) of the directive and has consequently not adopted all necessary measures to ensure that projects likely to have significant effects on the environment are made subject to a requirement for development consent and to an assessment of their environmental effects in accordance with Articles 5 to 10 of the directive.
The second complaint
– Arguments of the parties
91. First of all, it should be recalled that, in accordance with settled case-law, amendments to national legislation are irrelevant for the purposes of giving judgment on the subject-matter of an action for failure to fulfil obligations if they have not been implemented before the expiry of the period set by the reasoned opinion (see, in particular, Case C-392/96 Commission  v Ireland , paragraph 86). It is thus inappropriate to take into account, for the purpose of assessing the merits of the present complaint, the amendments made to the Irish legislation in 2006.