Commission of the European Communities v Federal Republic of Germany.
Date: 1998-10-22
16 Finally, as the Court has consistently held, the Commission, given its role as guardian of the Treaty, is alone competent to decide whether it is appropriate to bring proceedings against a Member State for failure to fulfil its obligations (Case C-431/92 Commission v Germany [1995] ECR I-2189, paragraph 22).
29 Consequently, having regard to the considerations set out in paragraphs 13 to 15 above, it must be held that, by not requiring an environmental impact assessment for all projects on which such an assessment had to be carried out in compliance with the Directive, where the consent procedure was commenced after 3 July 1988, the Federal Republic of Germany has failed to fulfil its obligations under Article 12(1) of the Directive.
Incomplete transposition of Article 2 of the Directive with regard to the projects listed in Annex II thereto
38 The Court has held that Article 4(2) of the Directive does not empower the Member States to exclude generally and definitively from possible assessment one or more classes mentioned in Annex II (see Case C-133/94 Commission v Belgium [1996] ECR I-2323, paragraph 43).  In order to settle the dispute on this point, therefore, the question of the interpretation of the concept of classes of projects, within the meaning of Article 4 of the Directive, must first be dealt with.
39 Here, it must be noted that Article 4 of the Directive uses the same wording in both paragraphs 1 and 2 in relation to the concept in question, namely `projects of the classes listed in Annex I shall be made subject to an assessment ...' and `projects of the classes listed in Annex II shall be made subject to an assessment ... where ...'.
40 The tenor and scope of that concept thus clearly cannot differ depending whether it is used in Annex I or Annex II of the Directive.
41 Referring as it does in Annex I to categories of projects defined according to their nature, it can only refer to the same kind of categories of projects with regard to Annex II.
42 However, the nine categories of projects in Annex I cannot, by their nature, correspond to the 12 categories in Annex II, each of which constitutes a vast field of economic activity; they must rather correspond to the subdivisions of those categories, each preceded by a letter of the alphabet.  That consideration is borne out by the fact that categories 5, 9 and 12 in Annex II, which are not subdivided, each constitute an activity confined within clear limits.
43 For example, the category of projects entitled `Construction of motorways, express roads and lines for long-distance railway traffic and of airports ...' under point 7 in Annex I cannot correspond, as a class of projects, to the category under point 10 of Annex II, entitled `Infrastructure projects'; it must rather correspond to subdivision (d) within that point, which refers to `Construction of roads, harbours, including fishing harbours, and airfields (projects not listed in Annex I)'.
45 It is specifically on the basis of that rule that the Court has held that the limits of the discretion conferred on the Member States by Article 4(2) of the Directive are to be found in the obligation set out in Article 2(1) (Case C-72/95 Kraaijeveld and Others v Gedeputeerde Staten van Zuid-Holland [1996] ECR I-5403, paragraph 50), and that the criteria and/or thresholds mentioned in Article 4(2) are designed to facilitate the examination of the actual characteristics exhibited by a given project in order to determine whether it is subject to the requirement to carry out an assessment and not to exempt in advance from that obligation certain whole classes of projects listed in Annex II which may be envisaged on the territory of a Member State (Case C-133/94 Commission v Belgium, cited above, paragraph 42).