Jozef Križan and Others v Slovenská inšpekcia životného prostredia.
Date: 2013-01-15
53. In that regard, it must be borne in mind that, according to settled case-law, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of European Union law, the Court is in principle required to give a ruling (Case C-169/07 Hartlauer  [2009] ECR I-1721, paragraph 24, and Case C-470/11 Garkalns  [2012] ECR, paragraph 17).
54. It follows that questions relating to European Union law enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of European Union law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (Joined Cases C-570/07 and C-571/07 Blanco Pérez and Chao Gómez  [2010] ECR I-4629, paragraph 36, and Case C-509/10 Geistbeck  [2012] ECR, paragraph 48).
56. It must be stated that the alleged absence of direct effect of the directives at issue does not alter that analysis because the Court has jurisdiction, under Article 267 TFEU, to give preliminary rulings concerning the interpretation of acts of the institutions of the European Union, irrespective of whether they are directly applicable (Case C-373/95 Maso and Others  [1997] ECR I-4051, paragraph 28; Case C-254/08 Futura Immobiliare and Others [2009] ECR I-6995, paragraph 34; and Case C-370/12 Pringle [2012] ECR, paragraph 89). Moreover, as regards the assumed irrelevance of the request for a preliminary ruling by reason of the clarity of the applicable rules, it must be recalled that Article 267 TFEU always allows a national court, if it considers it desirable, to refer questions of interpretation to the Court (see, to that effect, Joined Cases C-165/09 to C-167/09 Stichting Natuur en Milieu and Others  [2011] ECR I-4599, paragraph 52 and the case-law cited).
58. As regards the factors arising from the separation of the various proceedings under national law, it is important to note that the referring court adopts a view of the consequences which must be drawn from that separation under national law which is very different from that supported by the inšpekcia and Ekologická skládka. However, in the procedure laid down by Article 267 TFEU, the functions of the Court of Justice and those of the referring court are clearly distinct, and it falls exclusively to the latter to interpret national legislation (Case C-295/97 Piaggio [1999] ECR I-3735, paragraph 29, and Case C-500/06 Corporación Dermoestética [2008] ECR I-5785, paragraph 21). Consequently, those factors are insufficient to show that the questions raised are manifestly unconnected with the facts or subject-matter of the dispute.
64. As regards the other aspects of the first question referred, it is settled case-law that Article 267 TFEU gives national courts the widest discretion in referring matters to the Court if they consider that a case pending before them raises questions involving interpretation of provisions of European Union law, or consideration of their validity, which are necessary for the resolution of the case (Case C-348/89 Mecanarte  [1991] ECR I-3277, paragraph 44, and Case C-173/09 Elchinov  [2010] ECR I-8889, paragraph 26).
65. Article 267 TFEU therefore confers on national courts the power and, in certain circumstances, an obligation to make a reference to the Court once the national court forms the view, either of its own motion or at the request of the parties, that the substance of the dispute involves a question which falls within the scope of the first paragraph of that article (Case C-261/95 Palmisani [1997] ECR I-4025, paragraph 20, and Case C-104/10 Kelly  [2011] ECR I-6813, paragraph 61). That is the reason why the fact that the parties to the main proceedings did not raise a point of European Union law before the referring court does not preclude the latter from bringing the matter before the Court of Justice (Case 126/80 Salonia  [1981] ECR 1563, paragraph 7, and Case C-251/11 Huet  [2012] ECR, paragraph 23).
66. A reference for a preliminary ruling is based on a dialogue between one court and another, the initiation of which depends entirely on the national court’s assessment as to whether that reference is appropriate and necessary (Case C-210/06 Cartesio  [2008] ECR I-9641, paragraph 91, and Case C-137/08 VB Pénzügyi Lízing  [2010] ECR I-10847, paragraph 29).
67. Moreover, the existence of a national procedural rule cannot call into question the discretion of national courts to make a reference to the Court of Justice for a preliminary ruling where they have doubts, as in the case in the main proceedings, as to the interpretation of European Union law ( Elchinov , paragraph 25, and Case C-396/09 Interedil  [2011] ECR I-9915, paragraph 35).
68. A rule of national law, pursuant to which legal rulings of a higher court bind another national court, cannot take away from the latter court the discretion to refer to the Court of Justice questions of interpretation of the points of European Union law concerned by such legal rulings. That court must be free, if it considers that a higher court’s legal ruling could lead it to deliver a judgment contrary to European Union law, to refer to the Court of Justice questions which concern it (Case C-378/08 ERG and Others  [2010] ECR I-1919, paragraph 32; and Elchinov , paragraph 27).
69. At this stage, it must be noted that the national court, having exercised the discretion conferred on it by Article 267 TFEU, is bound, for the purposes of the decision to be given in the main proceedings, by the interpretation of the provisions at issue given by the Court of Justice and must, if necessary, disregard the rulings of the higher court if it considers, in the light of that interpret ation, that they are not consistent with European Union law ( Elchinov , paragraph 30).
70. The principles set out in the previous paragraphs apply in the same way to the referring court with regard to the legal position expressed, in the present case in the main proceedings, by the constitutional court of the Member State concerned in so far as it follows from well-established case-law that rules of national law, even of a constitutional order, cannot be allowed to undermine the unity and effectiveness of European Union law (Case 11/70 Internationale Handelsgesellschaft  [1970] ECR 1125, paragraph 3, and Case C-409/06 Winner Wetten  [2010] ECR I-8015, paragraph 61). Moreover, the Court of Justice has already established that those principles apply to relations between a constitutional court and all other national courts (Joined Cases C-188/10 and C-189/10 Melki and Abdeli  [2010] ECR I-5667, paragraphs 41 to 45).
72. Finally, as a supreme court, the Najvyšší súd Slovenskej republiky is even required to submit a request for a preliminary ruling to the Court of Justice when it finds that the substance of the dispute concerns a question to be resolved which comes within the scope of the first paragraph of Article 267 TFEU. The possibility of bringing, before the constitutional court of the Member State concerned, an action against the decisions of a national court, limited to an examination of a potential infringement of the rights and freedoms guaranteed by the national constitution or by an international agreement, cannot allow the view to be taken that that national court cannot be classified as a court against whose decisions there is no judicial remedy under national law within the meaning of the third paragraph of Article 267 TFEU.
77. Those rules on public participation must be interpreted in the light of, and having regard to, the provisions of the Aarhus Convention, with which, as follows from recital 5 in the preamble to Directive 2003/35, which amended in part Directive 96/61, European Union law should be ‘properly aligned’ (Case C-115/09 Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen  [2011] ECR I-3673, paragraph 41). However, Article 6(6) of that convention states that the public concerned must be able to have access to all information relevant to the decision-making relating to the authorisation of activities referred to in Annex I to that convention, including in particular landfill sites receiving more than 10 tonnes of waste per day or with a total capacity exceeding 25 000 tonnes of waste.
85. In the absence of rules laid down in this field by European Union law, the detailed procedural rules designed to ensure the protection of the rights which individuals acquire under European Union law are a matter for the legal order of each Member State, provided, however, that they are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the European Union legal order (principle of effectiveness) (Case C-312/93 Peterbroeck  [1995] ECR I-4599, paragraph 12, and Case C-378/10 VALE Építési  [2012] ECR, paragraph 48 and the case-law cited).
86. So far as concerns the principle of equivalence, this requires that all the rules applicable to actions apply without distinction to actions based on infringement of European Union law and those based on infringement of national law (see, inter alia, Case C-591/10 Littlewoods Retail and Others  [2012] ECR, paragraph 31, and Case C-249/11 Byankov  [2012] ECR, paragraph 70). It is therefore for the national court to determine whether national law allows procedural flaws of a comparable internal nature to be rectified during the administrative procedure at second instance.
87. As regards the principle of effectiveness, while European Union law cannot preclude the applicable national rules from allowing, in certain cases, the regularisation of operations or measures which are unlawful in the light of European Union law, such a possibility is subject to the condition that it does not offer the persons concerned the opportunity to circumvent the European Union rules or to dispense with applying them, and that it should remain the exception (Case C-215/06 Commission  v Ireland  [2008] ECR I-4911, paragraph 57).
94. According to settled case-law, the principle that projects likely to have significant effects on the environment must be subject to an environmental assessment does not apply where the application for authorisation for a project was formally lodged before the expiry of the period set for transposition of Directive 85/337 (Case C-431/92 Commission  v Germany [1995] ECR I-2189, paragraphs 29 and 32, and Case C-81/96 Gedeputeerde Staten van Noord-Holland  [1998] ECR I-3923, paragraph 23).
102. However, when examining a comparable procedure, the Court of Justice has taken the view that the date which should be used as a reference to determine whether the application in time of a directive imposing an environmental impact assessment was the date on which the project was formally submitted because the various phases of examination of a project are so closely connected that they represent a complex operation (Case C-209/04 Commission  v Austria [2006] ECR I-2755, paragraph 58).
106. By virtue of their procedural autonomy, the Member States have discretion in implementing Article 9 of the Aarhus Convention and Article 15a of Directive 96/61, subject to compliance with the principles of equivalence and effectiveness. It is for them, in particular, to determine, in so far as the abovementioned provisions are complied with, which court of law or which independent and impartial body established by law is to have jurisdiction in respect of the review procedure referred to in those provisions and what procedural rules are applicable (see, by analogy, Joined Cases C-128/09 to C-131/09, C-134/09 and C-135/09 Boxus and Others  [2011] ECR I-9711, paragraph 52).
107. Moreover, it is apparent from settled-case law that a national court seised of a dispute governed by European Union law must be in a position to grant interim relief in order to ensure the full effectiveness of the judgment to be given on the existence of the rights claimed under European Union law (Case C-213/89 Factortame and Others  [1990] ECR I-2433, paragraph 21, and Case C-432/05 Unibet  [2007] ECR I-2271, paragraph 67).
109. However, exercise of the right to bring an action provided for by Article 15a of Directive 96/61 would not make possible effective prevention of that pollution if it were impossible to prevent an installation which may have benefited from a permit awarded in infringement of that directive from continuing to function pending a definitive decision on the lawfulness of that permit. It follows that the guarantee of effectiveness of the right to bring an action provided for in that Article 15a requires that the members of the public concerned should have the right to ask the court or competent independent and impartial body to order interim measures such as to prevent that pollution, including, where necessary, by the temporary suspension of the disputed permit.
113. However, the right to property is not an absolute right and must be viewed in relation to its social function. Consequently, its exercise may be restricted, provided that those restrictions in fact correspond to objectives of general interest and do not constitute, in relation to the aim pursued, disproportionate and intolerable interference, impairing the very substance of the right guaranteed (Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission  [2008] ECR I-6351, paragraph 355, and Joined Cases C-379/08 and C-380/08 ERG and Others  [2010] ECR I-2007, paragraph 80).
114. As regards the objectives of general interest referred to above, established case-law shows that protection of the environment is one of those objectives and is therefore capable of justifying a restriction on the use of the right to property (see Case 240/83 ADBHU  [1985] ECR 531, paragraph 13; Case 302/86 Commission  v Denmark [1988] ECR 4607, paragraph 8; Case C-213/96 Outokumpu  [1998] ECR I-1777, paragraph 32; and ERG and Others , paragraph 81).
115. As regards the proportionality of the infringement of the right of property at issue, where such an infringement may be established, it is sufficient to state that Directive 96/61 operates a balance between the requirements of that right and the requirements linked to protection of the environment.