Túrkevei Tejtermelő Kft. v Országos Környezetvédelmi és Természetvédelmi Főfelügyelőség.
Date: 2017-07-13
36


It should be observed as a preliminary point that Article 191(2) TFEU provides that EU policy on the environment is to aim at a high level of protection and is to be based on, inter alia, the polluter-pays principle. That provision thus does no more than define the general environmental objectives of the European Union, since Article 192 TFEU confers on the European Parliament and the Council of the European Union, acting in accordance with the ordinary legislative procedure, responsibility for deciding what action is to be taken in order to attain those objectives (judgment of 4 March 2015, Fipa Group and Others, C‑534/13, EU:C:2015:140, paragraph 39 and the case-law cited).
37


Consequently, since Article 191(2) TFEU, which establishes the polluter-pays principle, is directed at action at EU 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 EU legislation adopted on the basis of Article 192 TFEU that specifically covers the situation in question (see, to that effect, judgments of 9 March 2010, ERG and Others, C‑379/08 and C‑380/08, EU:C:2010:127, paragraph 39, and of 4 March 2015, Fipa Group and Others, C‑534/13, EU:C:2015:140, paragraph 40 and the case-law cited).
43


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 (judgment of 9 March 2010, ERG and Others, C‑379/08 and C‑380/08, EU:C:2010:127, paragraph 35 and the case-law cited).
45


If that court should conclude that this was not the case in this instance, it will have to find that the pollution here at issue does not come within the scope of Directive 2004/35, and that such a situation is then a matter to be dealt with under national law, in compliance with the rules of the EU and FEU Treaties and without prejudice to other measures of secondary legislation (see, to that effect, judgment of 4 March 2015, Fipa Group and Others, C‑534/13, EU:C:2015:140, paragraph 46 and the case-law cited).
47


It should be noted that, pursuant to Article 1 of Directive 2004/35, the purpose of that directive is to establish a framework of environmental liability based on the polluter-pays principle with a view to preventing and remedying environmental damage. In the framework of environmental liability laid down by that directive, which is founded on a high degree of environmental protection and on the polluter-pays principle, operators are under a duty both to prevent and to remedy environmental damage (see, to that effect, judgment of 9 March 2010, ERG and Others, C‑379/08 and C‑380/08, EU:C:2010:127, paragraphs 75 and 76).
48


As follows from Article 4(5) and Article 11(2) of Directive 2004/35, read in conjunction with recital 13 thereof, the environmental liability mechanism provided for by that directive requires the competent authority to establish a causal link between the activity of one or more identifiable operators and the environmental damage or the imminent threat of such damage (judgment of 4 March 2015, Fipa Group and Others, C‑534/13, EU:C:2015:140, paragraph 54 and the case-law cited).
49


In construing Article 3(1)(a) of Directive 2004/35, the Court has held that the competent authority’s obligation to establish a causal link applies in the context of the system of strict environmental liability of operators (judgment of 4 March 2015, Fipa Group and Others, C‑534/13, EU:C:2015:140, paragraph 55 and the case-law cited).
50


As is clear from Article 4(5) of Directive 2004/35, that obligation also applies in the context of the fault-based liability system — under which liability arises from fault or negligence on the part of the operator — provided for in Article 3(1)(b) of that directive in respect of occupational activities other than those listed in Annex III thereto (see, to that effect, judgment of 4 March 2015, Fipa Group and Others, C‑534/13, EU:C:2015:140, paragraph 56 and the case-law cited).
51


The particular importance for the application of the polluter-pays principle, and hence for the liability mechanism provided for in Directive 2004/35, of the causal link between the operator’s activity and the environmental damage is also apparent from the provisions of that directive which relate to the inferences to be drawn from the fact that the operator did not contribute to the pollution or to the risk of pollution (judgment of 4 March 2015, Fipa Group and Others, C‑534/13, EU:C:2015:140, paragraph 57).
52


In that regard, it should be borne in mind that, under Article 8(3)(a) of Directive 2004/35, read in conjunction with recital 20 thereof, the operator is not required to bear the costs if he can prove that the environmental damage was caused by a third party, and occurred despite the fact that appropriate safety measures were in place, or resulted from an order or instruction emanating from a public authority (see, to that effect, judgment of 4 March 2015, Fipa Group and Others, C‑534/13, EU:C:2015:140, paragraph 58 and the case-law cited).
53


It is apparent from all of the foregoing that the liability mechanism established by Directive 2004/35 is founded on the precautionary principle and on the polluter-pays principle. To that end, that directive places operators under a duty both to prevent and to remedy environmental damage (see, inter alia, judgment of 9 March 2010, ERG and Others, C‑379/08 and C‑380/08, EU:C:2010:127, paragraph 75).
61


As regards the requirement of compatibility with the Treaties, it is apparent from the Court’s case-law that it is for each Member State to decide on such more stringent protection measures, which must, first, seek to attain the objective of Directive 2004/35 as defined in Article 1 thereof, namely to prevent and remedy environmental damage and, second, to comply with EU law, in particular its general principles, which include the principle of proportionality (see, to that effect, judgment of 9 March 2010, ERG and Others, C‑379/08 and C‑380/08, EU:C:2010:127, paragraph 79).
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Finally, it should be noted that a failure to comply with the notification obligation under Article 193 TFEU does not in itself render unlawful the more stringent protective measures (judgment of 21 July 2011, Azienda Agro-Zootecnica Franchini and Eolica di Altamura, C‑2/10, EU:C:2011:502, paragraph 53 and the case-law cited).
66


An administrative fine imposed on the owner of land as a result of unlawful pollution which he has not prevented and in respect of which he is not able to identify the party responsible can therefore come under the liability mechanism covered by Article 16 of Directive 2004/35 and Article 193 TFEU, provided that the legislation laying down such a fine is, in accordance with the principle of proportionality, appropriate for the purposes of contributing to the attainment of the objective of more stringent protection, which is the purpose of the legislation prescribing joint liability, and that the methods for determining the amount of the fine do not go beyond what is necessary to attain that objective (see, by analogy, judgment of 9 June 2016, Nutrivet, C‑69/15, EU:C:2016:425, paragraph 51 and the case-law cited).