Commission of the European Communities v Federal Republic of Germany.
Date: 1995-08-11
14 That plea cannot be accepted.
18 Although Article 2 of the directive is not formally referred to in the conclusions arrived at in the reasoned opinion, it is none the less mentioned in the body of the opinion among the provisions invoked by the Commission.
21 In exercising its powers under Articles 155 and 169 of the Treaty, the Commission does not have to show that there is a specific interest in bringing an action. Article 169 is not intended to protect the Commission' s own rights. The Commission' s function, in the general interest of the Community, is to ensure that the Member States give effect to the Treaty and the provisions adopted by the institutions thereunder and to obtain a declaration of any failure to fulfil the obligations deriving therefrom with a view to bringing it to an end (Case 167/73 Commission v France [1974] ECR 359, paragraph 15, and Case C-422/92 Commission v Germany [1995] ECR I-1097, paragraph 16).
22 Given its role as guardian of the Treaty, the Commission alone is therefore competent to decide whether it is appropriate to bring proceedings against a Member State for failure to fulfil its obligations and to determine the conduct or omission attributable to the Member State concerned on the basis of which those proceedings should be brought. It may therefore ask the Court to find that, in not having achieved, in a specific case, the result intended by the directive, a Member State has failed to fulfil its obligations.
23 In this case, Germany' s submissions as to the inadmissibility of the action essentially come down to the fact that at the material time it had not yet implemented the directive. A Member State may not, however, plead the fact that it has not taken the necessary measures to implement a directive in order to prevent the Court from dealing with an application for a declaration that it has failed to fulfil a specific obligation flowing from that directive.
26 In its application, the Commission complains that Germany has not observed, in a specific case, the obligation flowing directly from the directive to assess the environmental impact of the project concerned. The question which arises is thus whether the directive is to be construed as imposing that obligation. That question is quite separate from the question whether individuals may rely as against the State on provisions of an unimplemented directive which are unconditional and sufficiently clear and precise, a right which has been recognized by the Court of Justice.
28 In Case C-396/92 Bund Naturschutz in Bayern and Others v Freistaat Bayern [1994] ECR I-3717, paragraphs 19 and 20, the Court of Justice ruled that, regardless of whether the directive permits a Member State to waive the obligations concerning the environmental impact assessment in respect of consent procedures already initiated before the deadline for implementation, namely 3 July 1988, the directive in any case precludes such a waiver for procedures initiated after that date.
29 In this case, the documents before the Court show that the application for consent for the project at issue was lodged with the Regierungspraesidium Darmstadt by PreussenElektra AG, the developer, on 26 July 1988, and thus after 3 July 1988. Consequently, the obligation imposed by the directive to carry out an environmental impact assessment could not in principle be waived in respect of the consent procedure for the project at issue.
32 Informal contacts and meetings between the competent authority and the developer, even relating to the content and proposal to lodge an application for consent for a project, cannot be treated for the purposes of applying the directive as a definite indication of the date on which the procedure was initiated. The date when the application for consent was formally lodged thus constitutes the sole criterion which may be used. Such a criterion accords with the principle of legal certainty and is designed to safeguard the effectiveness of the directive. The Court moreover followed this approach in Bund Naturschutz, cited above (paragraph 16).
35 By virtue of paragraph 2 of Annex I to the directive, projects for thermal power stations with a heat output of 300 megawatts or more must undergo a systematic assessment. For the purposes of that provision, such projects must be assessed irrespective of whether they are separate constructions, are added to a pre-existing construction or even have close functional links with a pre-existing construction. Links with an existing construction do not prevent the project from being a "thermal power station with a heat output of 300 megawatts or more" so as to bring it within the category headed "Modifications to development projects included in Annex I", mentioned in paragraph 12 of Annex II.
38 That argument cannot be accepted.