European Commission v Republic of Bulgaria.
Date: 2017-04-05
33


In addition, as regards the period referred to in the first complaint, the present action includes imprecise expressions, such as the Republic of Bulgaria ‘continues to fail to fulfil’ its obligations. In those circumstances, the absence of an indispensable element from the content of the application initiating proceedings, such as the period during which the Republic of Bulgaria — according to the Commission’s assertions — has infringed European Union law, does not satisfy the requirements of coherence, clarity and precision, as outlined in the judgment of 15 November 2012, Commission v Portugal (C‑34/11, EU:C:2012:712, paragraph 47).
37


In accordance with the Court’s settled case-law, the subject matter of an action under Article 258 TFEU for failure to fulfil obligations is determined by the Commission’s reasoned opinion, so that the action must be based on the same grounds and pleas as that opinion (see judgments of 8 July 2010, Commission v Portugal, C‑171/08, EU:C:2010:412, paragraph 25, and of 13 February 2014, Commission v Bulgaria, C‑152/12, not published, EU:C:2014:82, paragraph 30).
40


In addition, it is apparent from the Court’s case-law that the question of whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion (judgments of 10 April 2003, Commission v Germany, C‑20/01 and C‑28/01, EU:C:2003:220, paragraph 32; of 6 October 2009, Commission v Spain, C‑562/07, EU:C:2009:614, paragraph 23; and of 1 December 2016, Commission v Luxembourg, C‑152/16, not published, EU:C:2016:919, paragraph 20).
42


However, it is also apparent from the Court’s case-law that in so far as the action seeks to raise a systematic and consistent failure to comply with the provisions of Article 13(1) of, in conjunction with Annex XI to, Directive 2008/50, the production of additional evidence intended, at the stage of proceedings before the Court, to support the proposition that the failure thus alleged is general and consistent cannot be ruled out in principle (see, to that effect, judgments of 26 April 2005, Commission v Ireland, C‑494/01, EU:C:2005:250, paragraph 37; of 22 December 2008, Commission v Spain, C‑189/07, not published, EU:C:2008:760, paragraph 29; and of 11 July 2013, Commission v Netherlands, C‑576/10, EU:C:2013:510, paragraph 29).
43


The Court, in particular, has already stated that the subject matter of an action for failure to fulfil obligations may extend to events which took place after the reasoned opinion, provided that they are of the same kind as the events to which the opinion referred and constitute the same conduct (see, to that effect, judgments of 22 March 1983, Commission v France, 42/82, EU:C:1983:88, paragraph 20; of 22 December 2008, Commission v Spain, C‑189/07, not published, EU:C:2008:760, paragraph 30; and of 15 March 2012, Commission v Cyprus, C‑340/10, EU:C:2012:143, paragraph 37).
44


In the present case, the Republic of Bulgaria submitted to the Commission, in accordance with Article 27 of Directive 2008/50, the annual report on air quality for 2014, which related, in particular, to the compliance with the provisions of Article 13(1) of, in conjunction with Annex XI to, Directive 2008/50. The data in that report are set out in the annex to the Republic of Bulgaria’s defence.
45


In its reply, the Commission relied on those data in order to argue that the first complaint related to the period ‘up to and including 2014 at least’.
46


While the data on air quality for 2014 amount to events which took place after the reasoned opinion of 11 July 2014, those events are of the same kind as those to which the opinion referred and constitute the same conduct.
47


Consequently, those data, which came to the Commission’s knowledge after the reasoned opinion of 11 July 2014 was issued, could legitimately be mentioned by it in finding that the Republic of Bulgaria had failed to comply with the provisions of Article 13(1) of, in conjunction with Annex XI to, Directive 2008/50, also in relation to 2014.
48


In those circumstances, the mere fact that the Commission does not refer to a fixed, specific date to indicate until what point the Republic of Bulgaria failed to fulfil its obligations under the provisions of Article 13(1) of, in conjunction with Annex XI to, Directive 2008/50, is insufficient to find that the first complaint is inadmissible as a whole.
50


In addition, since the Court may consider of its own motion whether the conditions laid down in Article 258 TFEU for an action for failure to fulfil obligations to be brought are satisfied (see judgments of 15 January 2002, Commission v Italy, C‑439/99, EU:C:2002:14, paragraph 8, and of 22 September 2016, Commission v Czech Republic, C‑525/14, EU:C:2016:714, paragraph 14), it must be ascertained whether, by its first complaint, the Commission is entitled to declare that the Republic of Bulgaria failed to fulfil its obligations as from 2007.
51


In accordance with Article 34 of Directive 2008/50, that directive, which is the only directive referred to by the Commission in its first complaint, entered into force on 11 June 2008, that is after the date from which the Commission asks the Court to find an infringement. In addition, under Article 33(1) of Directive 2008/50, the Member States had to bring into force the laws, regulations and administrative provisions necessary to comply with that directive before 11 June 2010.
52


However, according to the Court’s case-law, the Commission has standing to seek a declaration that a Member State has failed to fulfil obligations which were created in the original version of an EU measure, subsequently amended or repealed, and which were maintained in force under the provisions of a new EU measure. Conversely, the subject matter of the dispute cannot be extended to obligations arising under new provisions which do not correspond to those arising under the original version of the measure concerned, for otherwise it would constitute a breach of the essential procedural requirements of infringement proceedings (judgments of 24 May 2011, Commission v Portugal, C‑52/08, EU:C:2011:337, paragraph 42, and of 10 September 2015, Commission v Poland, C‑36/14, not published, EU:C:2015:570, paragraph 24).
53


In the present case, it is apparent from the provisions of Article 5 in conjunction with Annex III to Directive 1999/30 that, as regards the stage-1 periods, from 1 January 2005 until 31 December 2009, the daily value not to be exceeded more than 35 times per calendar year was 50 μg/m3 and the annual value not to be exceeded was 40 μg/m3 per calendar year.
54


It is not disputed that those obligations were maintained in the provisions of Article 13(1) of, in conjunction with Annex XI to, Directive 2008/50. That annex states that those limit values have been imposed since 1 January 2005.
55


In the light of the foregoing, it must be found that the complaint alleging an infringement of the provisions of Article 13(1) of, in conjunction with Annex XI to, Directive 2008/50 is admissible for the period from 2007 to 2014 inclusive.
68


The procedure provided for in Article 258 TFEU presupposes an objective finding that a Member State has failed to fulfil its obligations under the FEU Treaty or secondary legislation (see judgments of 1 March 1983, Commission v Belgium, 301/81, EU:C:1983:51, paragraph 8; of 19 December 2012, Commission v Italy, C‑68/11, EU:C:2012:815, paragraph 62; and of 4 September 2014, Commission v Greece, C‑351/13, not published, EU:C:2014:2150, paragraph 23).
69


Exceeding the limit values is, therefore, sufficient for a finding to be made that there has been an infringement of the provisions of Article 13(1) in conjunction with Annex XI to Directive 2008/50 (see, to that effect, judgments of 10 May 2011, Commission v Sweden, C‑479/10, not published, EU:C:2011:287, paragraphs 15 and 16, and of 15 November 2012, Commission v Portugal, C‑34/11, EU:C:2012:712, paragraphs 52 and 53).
70


In that regard, an analysis which proposes that a Member State would have entirely satisfied its obligations under the second subparagraph of Article 13(1) of Directive 2008/50 merely because an air quality plan has been established, cannot be accepted (see, to that effect, judgment of 19 November 2014, ClientEarth, C‑404/13, EU:C:2014:2382, paragraph 42).
76


When it has been objectively found that a Member State has failed to fulfil its obligations under the FEU Treaty or secondary law, it is irrelevant whether the failure to fulfil obligations is the result of intention or negligence on the part of the Member State responsible, or of technical difficulties encountered by it (see judgments of 1 October 1998, Commission v Spain, C‑71/97, EU:C:1998:455, paragraph 15, and of 4 September 2014, Commission v Greece, C‑351/13, not published, EU:C:2014:2150, paragraph 23).
79


The Republic of Bulgaria contends that, as regards the complaint alleging an infringement of Article 23(1) of Directive 2008/50, the form of order sought in the application indicates not a period during which that infringement occurred, but only that there was a failure to fulfil obligations and that that ‘infringement is still continuing’. Consequently, as for the first complaint, the Commission does not satisfy the requirements of coherence, clarity and precision set out by the Court, in particular in the judgment of 15 November 2012, Commission v Portugal (C‑34/11, EU:C:2012:712, paragraphs 46 to 48).
81


In accordance with Article 120(c) of the Rules of Procedure of the Court of Justice and the related case-law, an application initiating proceedings must state the subject matter of the proceedings, the pleas in law and arguments relied on and a summary of those pleas in law. 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 to be set out unambiguously so that the Court does not rule ultra petita or fail to rule on a complaint (see, in particular, judgments of 15 June 2010, Commission v Spain, C‑211/08, EU:C:2010:340, paragraph 32, and of 22 September 2016, Commission v Czech Republic, C‑525/14, EU:C:2016:714, paragraph 16).
83


The provision establishes, therefore, a direct link between, first, the exceedance of the limit values for PM10 concentrations such as those laid down in the provisions of Article 13(1) of, in conjunction with Annex XI to, Directive 2008/50 and, secondly, the drawing up of such plans.
88


In the present case, Article 5 of Directive 1999/30, read in conjunction with Article 8 of Directive 96/62, did not expressly lay down a time limit for the action plans to be drawn up. In that regard, as the Commission submits, Directive 96/62 simply required Member States to adopt, within a reasonable time, measures designed to bring air quality into line with the limit values for PM10 concentrations.
89


By contrast, the second subparagraph of Article 23(1) of Directive 2008/50 provides that, in the event of exceedances of the limit values for PM10 concentrations for which the attainment deadline is already expired, the air quality plans must set out appropriate measures, so that the exceedance period can be kept as ‘short as possible’.
90


In those circumstances, by that requirement to comply with as short as possible an exceedance period, that provision lays down an obligation which does not correspond to one arising under the earlier EU legislation, as the Commission states itself in its application.
104


According to the Court’s case-law, Article 23(1) of Directive 2008/50 has a general scope because it applies, without being limited in time, to breaches of any pollutant limit value established by that directive, after the deadline fixed for its application, whether that deadline is fixed by Directive 2008/50 or by the Commission under Article 22 of the directive (see judgment of 19 November 2014, ClientEarth, C‑404/13, EU:C:2014:2382, paragraph 48).
105


In the context of the interpretation of Directive 96/62, the Court has held that while the Member States have a discretion, Article 7(3) of that directive includes limits on the exercise of that discretion which may be relied upon before the national courts, relating to the adequacy of the measures which must be included in the action plan with the aim of reducing the risk of the limit values and/or alert thresholds being exceeded and the duration of such an occurrence, taking into account the balance which must be maintained between that objective and the various opposing public and private interests (see judgment of 25 July 2008, Janecek, C‑237/07, EU:C:2008:447, paragraphs 45 and 46).
106


As the Advocate General observed in point 96 of her Opinion, the same approach must be followed as regards the interpretation of Article 23(1) of Directive 2008/50. Consequently, the air quality plans may be adopted only on the basis of the balance between the aim of minimising the risk of pollution and the various opposing public and private interests.
107


Therefore, the fact that a Member State exceeds the limit values for PM10 concentrations is not in itself sufficient to find that that Member State has failed to fulfil its obligations under Article 23(1) of Directive 2008/50.
108


In those circumstances, it must be ascertained, on the basis of a case-by-case analysis, whether the plans drawn up by the Member State concerned comply with that provision.
109


In that regard, it follows from Article 23(1) of Directive 2008/50 that while Member States have a degree of discretion in deciding which measures to adopt, those measures must, in any event, ensure that the period during which the limit values are exceeded is as short as possible (judgment of 19 November 2014, ClientEarth, C‑404/13, EU:C:2014:2382, paragraph 57).
115


However, in 2014 the daily and annual limit values for PM10 concentrations throughout the six Bulgarian zones and agglomerations were again exceeded, that is more than three years after the expiry of the deadline for transposing Directive 2008/50. Those limit values were still, therefore, systematically and continuously exceeded in that Member State, notwithstanding its obligations under Directive 2008/50.
116


In addition, as the Republic of Bulgaria noted and as is apparent from paragraph 100 above, the national legislation was amended only in December 2015 in order to speed up the process of improving ambient air quality.
117


Such a situation proves of itself, without the need to examine in detail the content of the plans drawn up by the Republic of Bulgaria, that in the present case that Member State has not implemented appropriate and effective measures to keep the exceedance period for limit values for PM10 concentrations as ‘short as possible’, with the meaning of the second subparagraph of Article 23(1) of Directive 2008/50.