Commission of the European Communities v Portuguese Republic.
Date: 2004-04-29
21. In particular, it stated that, even though an environmental impact assessment had not been carried out pursuant to Directive 92/43, it should have been made pursuant to Directive 85/337. Although the projects at issue are referred to in Annex II to Directive 85/337, the Portuguese authorities acted in breach of the discretion afforded them under Article 4(2) of the Directive, which, as the Court has confirmed, is limited by Article 2(1) thereof (see, to that effect, Case C-392/96 Commission  v Ireland  [1999] ECR I-5901, paragraph 64). According to the Commission, the projects would undoubtedly give rise to significant effects on the environment since the areas in question included habitat types referred to in Annex I to Directive 92/43 and species referred to in Annex II to the Directive.
53. However, such elements do not appear to call in question the admissibility of the action. The purpose of the pre-litigation procedure is to give the State concerned the opportunity, on the one hand, to comply with its obligations under Community law and, on the other, to avail itself of its right to defend itself against the objections formulated by the Commission ( Commission  v Ireland , cited above, paragraph 51).
55. The plea of inadmissibility raised by the Portuguese Republic on the basis that Directive 85/337 was mentioned only in the alternative during the pre-litigation procedure, while the complaint based on that directive is the sole infringement complaint and the centre of the proceedings, cannot be upheld. Suffice it to note that that complaint was in fact one of the complaints referred to in the letter of formal notice and the reasoned opinion and that it was set out there in a summary but sufficient manner. The alternative nature of the complaint in no way prevented the Portuguese Republic from submitting observations on it.
80. It is settled case-law that in proceedings for failure to fulfil obligations brought under Article 226 EC, it is incumbent upon the Commission to prove the allegation that the obligation has not been fulfilled. It is the Commission’s responsibility to provide the Court with all the evidence necessary to enable it to establish that the obligation has not been fulfilled and, in so doing, the Commission may not rely on any presumption (see, inter alia, Case 96/81 Commission  v Netherlands  [1982] ECR 1791, paragraph 6; Case C-404/00 Commission  v Spain  [2003] ECR I-6695, paragraph 26; and Case C-434/01 Commission  v  United Kingdom  [2003] ECR I-0000, paragraph 21).
82. Proof that Article 2(1) of Directive 85/337 has been infringed requires the Commission to demonstrate that a Member State has failed to adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to an assessment with regard to their effects. That proof may effectively be furnished by demonstrating that a Member State did not take all measures necessary to ascertain whether a project which does not reach the thresholds referred to in Article 4(2) of Directive 85/337 is nevertheless likely to have significant effects on the environment by virtue, inter alia, of its nature, size or location. The Commission might also determine that a project likely to have significant effects on the environment was not the subject of an impact assessment although it should have been.
85. It is not sufficient to establish that a project is to be carried out in a national park in order to assume that the project will have significant effects on the environment.  At the very least, the Commission must furnish a minimum of proof of the effects that the project is likely to have on the environment.
87. It is not sufficient in that regard to make a general statement that the location of a project in an area defined by national legislation as ‘favouring tourism’ cannot ensure that the project will not have a significant effect on the environment in a specific case. Similarly, the Commission cannot merely point out that the information provided shows that the project in question is located in a highly sensitive area where the flora has already deteriorated, at the very least, without presenting specific evidence to demonstrate that the Portuguese authorities made a manifest error of assessment when they gave consent to the location of the project in an area specifically envisaged for projects of that type.