Raffinerie Mediterranee (ERG) SpA, Polimeri Europa SpA and Syndial SpA v Ministero dello Sviluppo economico and Others.
Date: 2010-03-09
31. In that connection, it is sufficient to point out that, although the Court does not, in a reference for a preliminary ruling, have jurisdiction to give a ruling on the compatibility of a national measure with European Union law, it does have jurisdiction to supply the national court with a ruling on the interpretation of that law so as to enable that court to determine whether such compatibility exists and to decide the case before it (Case C‑439/06 c itiworks  [2008] ECR I‑3913, paragraph 21 and the case-law cited).
32. Moreover, a lower court must be free, if it considers that a higher court’s legal ruling could lead it to give a judgment contrary to EU law, to refer to the Court questions which concern it (see, to that effect, Case 166/73 Rheinmühlen-Düsseldorf  [1974] ECR 33, paragraph 4).
40. It is apparent from the first and second indents of Article 17 of Directive 2004/35 that the directive does not apply to damage caused by an emission, event or incident which took place before 30 April 2007 or to damage caused after that date which derives from a specific activity that was carried out and finished before that date.
41. It must be concluded that Directive 2004/35 applies to damage caused by an emission, event or incident which took place after 30 April 2007 where such damage derives either from activities carried out after that date or activities which were carried out but had not finished before that date.
42. Article 267 TFEU is based on a clear division of functions between the national courts and the Court of Justice, so that the Court may rule on the interpretation or validity of a provision of EU law only on the basis of the facts which the national court puts before it. It follows that, within the framework of the procedure under Article 267 TFEU, it is not for the Court of Justice but for the national court to apply to national measures or situations the rules of EU law as interpreted by the Court of Justice (see Case C‑279/06 CEPSA  [2008] ECR I‑6681, paragraph 28).
43. It is therefore for the referring court to ascertain, on the basis of the facts, which it alone is in a position to assess, whether, in the main proceedings, the damage in respect of which environmental remedial measures were imposed by the competent national authorities falls within one of the situations referred to at paragraph 41 above.
44. If that court reaches the conclusion that Directive 2004/35 is not applicable in the case pending before it, such a situation is governed by national law, in compliance with the rules of the Treaty and without prejudice to other secondary legislation.
45. Article 174 EC states that Community policy on the environment is to aim at a high level of protection and is based, inter alia, on the principle that the polluter should pay. That provision is therefore confined to defining the general environmental objectives of the Community, since Article 175 EC confers on the Council of the European Union responsibility for deciding what action is to be taken, where appropriate following the codecision procedure with the European Parliament (see, to that effect, Case C‑379/92 Peralta  [1994] ECR I‑3453, paragraphs 57 and 58).
46. As the Netherlands Government correctly observes, since Article 174 EC, which establishes the ‘polluter pays’ principle, is directed at action at Community level, that provision cannot be relied on as such by individuals in order to exclude the application of national legislation – such as that at issue in the main proceedings – in an area covered by environmental policy for which there is no Community legislation adopted on the basis of Article 175 EC that specifically covers the situation in question.
52. As stated in recital 13 in the preamble to Directive 2004/35, not all forms of environmental damage can be remedied by means of the liability mechanism and, for the mechanism to be effective, there needs to be, inter alia, a causal link established between one or more identifiable polluters and concrete and quantifiable environmental damage.
53. As is apparent from Article 4(5) and Article 11(2) of Directive 2004/35, if it is necessary for the competent authority to establish such a causal link in order to impose remedial measures on operators irrespective of the kind of pollution involved, then that requirement is also a condition for the application of the directive in the case of pollution of a diffuse, widespread character.
55. In that regard, it must be noted that Directive 2004/35 does not specify how such a causal link is to be established. Under the shared competence enjoyed by the European Union and the Member States in environmental matters, where a criterion necessary for the implementation of a directive adopted on the basis of Article 175 EC has not been defined in the directive, such a definition falls within the competence of the Member States and they have a broad discretion, in compliance with the Treaty rules, when laying down national rules developing or giving concrete expression to the ‘polluter pays’ principle (see, to that effect, Case C‑254/08 Futura Immobiliare and Others  [2009] ECR I‑0000, paragraphs 48, 52 and 55).
57. However, since, in accordance with the ‘polluter pays’ principle, the obligation to take remedial measures is imposed on operators only because of their contribution to the creation of pollution or the risk of pollution (see, by analogy, Case C‑188/07 Commune de Mesquer  [2008] ECR I‑4501, paragraph 77), in order for such a causal link to thus be presumed, the competent authority must have plausible evidence capable of justifying its presumption, such as the fact that the operator’s installation is located close to the pollution found and that there is a correlation between the pollutants identified and the substances used by the operator in connection with his activities.
59. It follows that, if the Tribunale amministrativo regionale della Sicilia considers that the pollution in question in the main proceedings is diffuse and no causal link can be established, such a situation does not fall within the scope ratione materiæ of Directive 2004/35 but within that of national law, in accordance with the conditions set out at paragraph 44 above.
63. In the case of the occupational activities falling within Annex III to Directive 2004/35, environmental liability on the part of operators active in those areas is strict liability.
64. However, as the applicants in the main proceedings have correctly pointed out, the effect of Article 11(2) of Directive 2004/35, read in conjunction with recital 13 in the preamble, is that, in order to impose remedial measures, the competent authority is obliged to establish, in accordance with national rules on evidence, which operator is responsible for the environmental damage. It follows that, to that end, that authority must first investigate the origin of the pollution found and, as stated at paragraph 53 above, it cannot impose remedial measures without first establishing a causal link between the damage established and the activities of the operator whom the authority holds responsible for the damage.
65.  Articles 3(1), 4(5) and 11(2) of Directive 2004/35 must therefore be interpreted as meaning that, when deciding to impose remedial measures on operators whose activities fall within Annex III to the directive, the competent authority is not required to establish fault, negligence or intent on the part of operators whose activities are held to be responsible for the environmental damage. On the other hand, that authority must, first, carry out a prior investigation into the origin of the pollution found, and has a discretion as to the procedures, means to be employed and length of such an investigation. Second, the competent authority is required to establish, in accordance with national rules on evidence, a causal link between the activities of the operators at whom the remedial measures are directed and the pollution.
67. It should be recalled, first, that in accordance with Article 11(4) of Directive 2004/35, operators have available to them legal remedies to challenge remedial measures adopted on the basis of the directive and the existence of any causal link between their activities and the pollution found. Second, in accordance with Article 8(3) of the directive, such operators are not required to bear the costs of remedial actions where they can prove that the environmental damage was caused by a third party and occurred despite the fact that appropriate safety measures were in place, since it is not a consequence of the ‘polluter pays’ principle that operators must take on the burden of remedying pollution to which they have not contributed (see, by analogy, Case C‑293/97 Standley and Others  [1999] ECR I‑2603, paragraph 51).
72. In accordance with settled case-law, the procedure provided for by Article 267 TFEU is a means of cooperation between the Court of Justice and national courts, by which the Court provides the national courts with the points of interpretation of European Union law which they need in order to decide the disputes before them (see, in particular, Case C-83/91 Meilicke  [1992] ECR I‑4871, paragraph 22, and Case C‑313/07 Kitruna and Vigano  [2008] ECR I-7907, paragraph 25).
73. In the context of that cooperation, it is for the national court before which the dispute has been brought, which alone has direct knowledge of the facts giving rise to the dispute and 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 questions submitted concern the interpretation of EU law, the Court of Justice is bound, in principle, to give a ruling (Case C‑295/05 Asemfo  [2007] ECR I‑2999, paragraph 30 and the case-law cited).