European Commission v Republic of Poland.
Date: 2018-02-22
43


In this regard, in accordance with its Article 34, Directive 2008/50, which is the only directive referred to by the Commission in its action, entered into force on 11 June 2008, and under Article 33(1) thereof, Member States were required to bring into force the laws, regulations and administrative provisions necessary to comply with it by 11 June 2010. However, that directive replaced, in accordance with recital 3, five acts of EU law, including Directive 1999/30, which specified limit values which had to be complied with as from 1 January 2005.
44


According to the Court’s case-law, a complaint seeking a declaration of a failure to fulfil obligations which were created in the original version of an EU measure, subsequently amended or repealed, and which were maintained in force under the provisions of a new EU measure, is admissible. 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 (judgment of 5 April 2017, Commission v Bulgaria, C‑488/15, EU:C:2017:267, paragraph 52 and the case-law cited).
45


More specifically, the Court has held that the provisions of Article 5 of, in conjunction with Annex III to, Directive 1999/30, which covered the period preceding the implementation of Directive 2008/50, were maintained in the provisions of Article 13(1) of, in conjunction with Annex XI to, that latter directive (see, to that effect, judgment of 5 April 2017, Commission v Bulgaria, C‑488/15, EU:C:2017:267, paragraphs 53 and 54).
47


As regards the argument put forward by the Republic of Poland, as set out in paragraph 37 of the present judgment, it follows from settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined on the basis of the position in which the Member State found itself on the expiry of the deadline laid down in the reasoned opinion, and that any subsequent changes cannot be taken into account (see, inter alia, judgment of 27 November 1990, Commission v Greece, C‑200/88, EU:C:1990:422, paragraph 13).
48


However, if, as is the case here, an action brought under Article 258 TFEU seeks a declaration of a systematic and persistent failure to comply with the provisions referred to, the Court allows the production of additional evidence intended, at the stage of proceedings before it, to support the proposition that the failure thus alleged is general and consistent (see, to that effect, judgment of 5 April 2017, Commission v Bulgaria, C‑488/15, EU:C:2017:267, paragraph 42 and the case-law cited).
49


The Court, in particular, has already had the opportunity to point out that, in such circumstances, the subject matter of an action for allegedly persistent 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 (judgment of 5 April 2017, Commission v Bulgaria, C‑488/15, EU:C:2017:267, paragraph 43).
51


Although, as concerns 2015, the data on air quality which were sent by the Polish authorities in September 2016 are in part facts which arose after that supplementary reasoned opinion, those facts must be regarded as being of the same kind as those which were covered by that reasoned opinion and, therefore, as constituting the same conduct on the part of the Member State concerned.
52


Consequently, the Commission could legitimately mention those data, of which it became aware only after the supplementary reasoned opinion had been issued, in order to find that the Republic of Poland had systematically and persistently failed to comply with the provisions of Article 13(1) of Directive 2008/50 and of Annex XI thereto. In those circumstances, the mere fact that the Commission does not indicate the date up to which the Republic of Poland had allegedly failed to fulfil its obligations under those provisions, read together, is not such as to render the first complaint inadmissible.
61


The complaint alleging infringement of the obligation set out in the first subparagraph of Article 13(1) of Directive 2008/50 must be assessed taking into account the settled case-law according to which 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 judgment of 5 April 2017, Commission v Bulgaria, C‑488/15, EU:C:2017:267, paragraph 68 and the case-law cited).
62


It follows that, in the present case, the fact that the limit values applicable to PM10 concentrations in ambient air were exceeded is sufficient in itself to make it possible to establish an infringement of the provisions of Article 13(1) of Directive 2008/50, in conjunction with those of Annex XI thereto (judgment of 5 April 2017, Commission v Bulgaria, C‑488/15, EU:C:2017:267, paragraph 69).
65


Contrary to the Republic of Poland’s assertions, a possible partial downward trend highlighted by the data collected, which does not, however, result in compliance by that Member State with the limit values which it is obliged to respect, cannot invalidate the finding of failure to fulfil obligations attributable to the Republic of Poland in that regard.
76


It must be noted that that provision establishes a direct link between, first, the exceedance of the limit values for PM10 concentrations, as laid down in the provisions of Article 13(1) of Directive 2008/50, in conjunction with those of Annex XI thereto, and, second, the drawing up of such plans.
78


Nevertheless, even if that factor were considered to be relevant to the assessment of the admissibility of the second complaint, it appears in any event that the Commission does not merely establish such a schematic causation. It puts forward several concrete elements underpinning its finding.
93


The Court has held that 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 (judgment of 5 April 2017, Commission v Bulgaria, C‑488/15, EU:C:2017:267, paragraph 106).
94


Therefore, the fact that a Member State exceeds the limit values for PM10 concentrations in ambient air is not in itself sufficient to find that that Member State has failed to fulfil its obligations under the second subparagraph of Article 23(1) of Directive 2008/50 (judgment of 5 April 2017, Commission v Bulgaria, C‑488/15, EU:C:2017:267, paragraph 107).
95


In this regard, it follows from that provision 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 5 April 2017, Commission v Bulgaria, C‑488/15, EU:C:2017:267, paragraph 109 and the case-law cited).
96


In those circumstances, it is necessary to ascertain on the basis of a case-by-case analysis whether the plans drawn up by the Member State concerned comply with the second subparagraph of Article 23(1) of Directive 2008/50 (judgment of 5 April 2017, Commission v Bulgaria, C‑488/15, EU:C:2017:267, paragraph 108).
99


However, it is common ground that the plans adopted subsequently by the Republic of Poland set the expiry of the periods prescribed for putting an end to such exceedances between 2020 and 2024, depending on the different zones, which makes it possible for the Member State concerned to put an end to such exceedances only 10, or even 14, years after the date on which those exceedances were recorded.
101


However, while such factors may be taken into account in the context of the balancing exercise referred to in paragraph 93 of the present judgment, the fact remains that it has not been established that the difficulties referred to by the Republic of Poland, which are not exceptional, are such as to rule out the possibility of having set shorter periods, especially since a large portion of the measures envisaged are connected with the replacement of individual and collective boilers by more efficient equipment.
120


According to settled case-law, transposing a directive into national law does not necessarily require its provisions to be copied verbatim in express, specific law or regulation; a general legal context may be sufficient, provided that it does effectively ensure the full application of the directive in a sufficiently clear and precise manner (judgment of 30 June 2016, Commission v Poland, C‑648/13, EU:C:2016:490, paragraph 73 and the case-law cited).