Stichting Natuur en Milieu and Others v College van Gedeputeerde Staten van Groningen (C-165/09) and College van Gedeputeerde Staten van Zuid-Holland (C-166/09 and C-167/09).
Date: 2011-05-26
47. It should be recalled that, in accordance with settled case‑law, in proceedings under Article 267 TFEU, which are based on a clear separation of functions between the national courts and the Court of Justice, the national court alone has jurisdiction to find and assess the facts in the case before it and to interpret and apply national law. Similarly, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the forthcoming judicial decision, to determine, in the light of the particular circumstances of the case, both the need for 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 bound to give a ruling (see Case C‑145/03 Keller  [2005] ECR I‑2529, paragraph 33; Case C‑119/05 Lucchini  [2007] ECR I‑6199, paragraph 43; and Case C‑11/07 Eckelkamp and Others  [2008] ECR I‑6845, paragraphs 27 and 32).
48. The Court is not bound to give a ruling, in particular, 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 or where the problem is hypothetical (see, to this effect, Case C-379/98 PreussenElektra  [2001] ECR I-2099, paragraph 39, and Case C-169/07 Hartlauer  [2009] ECR I‑1721, paragraph 25).
52. Furthermore, as regards E.On’s argument that the questions submitted in the present cases concern an interpretation of European Union law that follows fairly clearly from the Court’s well-established case-law, it is to be remembered that Article 267 TFEU always allows a national court, if it considers it desirable, to refer questions of interpretation to the Court (see, to this effect, Joined Cases 28/62 to 30/62 Da Costa and Others  [1963] ECR 31, 38; Case 283/81 Cilfit and Others  [1982] ECR 3415, paragraph 15; and Case C-45/09 Rosenbladt  [2010] ECR I-0000, paragraph 31).
55. However, inasmuch as the provisions of Article 9 of Directive 96/61 and of the IPPC Directive to which the first question relates have the same wording and must therefore be interpreted in the same way (see Case C-513/99 Concordia Bus Finland  [2002] ECR I‑7213, paragraph 91, and Case C-331/04 ATI EAC e Viaggi di Maio and Others  [2005] ECR I‑10109, paragraph 20), the Court can give a proper answer to the questions by referring only to the consolidated version of those provisions.
Question 1
72. The objective of the IPPC Directive, as set out in essence in Article 1 thereof, is to achieve integrated prevention and control of pollution by the implementation of measures designed to prevent or, where that is not practicable, to reduce emissions, from the activities referred to there, in the air, water and land in order to achieve a high level of protection of the environment taken as a whole. That integrated approach is realised by appropriate coordination of the procedure and authorisation conditions for industrial installations whose potential for pollution is significant (see to this effect, in respect of Directive 96/61, Case C-473/07 Association nationale pour la protection des eaux et rivières and OABA  [2009] ECR I‑319, paragraphs 25 and 26).
78. First of all, it is to be remembered that it is settled case-law that, during the period prescribed for transposition of a directive, the Member States to which it is addressed must refrain from taking any measures liable seriously to compromise the attainment of the result prescribed by that directive (Case C‑129/96 Inter-Environnement Wallonie  [1997] ECR I‑7411, paragraph 45; Case C‑14/02 ATRAL [2003] ECR I‑4431, paragraph 58; and Joined Cases C-261/07 a nd C-299/07 VTB-VAB and Galatea  [2009] ECR I-2949, paragraph 38). Such an obligation to refrain owed by all the national authorities (see Case C-212/04 Adeneler and Others  [2006] ECR I‑6057, paragraph 122 and the case-law cited) must be understood as referring to the adoption of any measure, general or specific, liable to produce such a compromising effect.
79. This obligation to refrain from taking measures is also owed by the Member States, by virtue of the application of Article 4(3) TEU in conjunction with the third paragraph of Article 288 TFEU, during a transitional period in which they are authorised to continue to apply their national systems, even though those systems do not comply with the directive in question (see Case C-316/04 Stichting Zuid-Hollandse Milieufederatie  [2005] ECR I‑9759, paragraph 42, and Case C‑138/05 Stichting Zuid-Hollandse Milieufederatie  [2006] ECR I‑8339, paragraph 42).
80. It therefore follows that such an obligation is also to be complied with in the transitional period provided for in Article 4 of the NEC Directive, during which the Member States are authorised not to comply for the time being with the annual national emission quantities laid down in Annex I to that directive. It is for the national court to review whether this obligation has been complied with in the light of the provisions and measures whose legality it is called upon to examine (see, to this effect, Inter-Environnement Wallonie , paragraph 46).
82. Having regard to the system established by the NEC Directive and, in particular, to the programmatic approach, as noted in paragraph 75 of the present judgment, for which it provides, attainment of the result prescribed by that directive can be seriously impeded by the Member States only by the adoption and implementation of a body of policies and measures which, given, in particular, their effects in practice and their duration in time, allow or give rise to a critical situation in light of the total quantity of emissions discharged into the atmosphere by all sources of pollution, such as necessarily to compromise compliance, at the end of 2010, with the ceilings laid down in Annex I to the directive (see, by analogy, Inter-Environnement Wallonie , paragraphs 47 and 49).
84. With regard to the question of whether and, if so, what positive obligations are owed by the Member States during the transitional period from 27 November 2002 to 31 December 2010, it should be recalled that, in accordance with settled case-law, the obligation of a Member State to take all the measures necessary to achieve the result prescribed by a directive is a binding obligation imposed by the third paragraph of Article 288 TFEU and by the directive itself (Case 152/84 Marshall  [1986] ECR 723, paragraph 48; Case 72/95 Kraaijeveld and Others  [1996] ECR I-5403, paragraph 55; and Inter-Environnement Wallonie , paragraph 40).
85. It follows from that obligation that, during the period prescribed for transposition, the Member States must take the measures necessary to ensure that the result prescribed by the directive is achieved at the end of that period ( Inter-Environnement Wallonie , paragraph 44). The same is true as regards a transitional period, such as the period provided for in Article 4 of the NEC Directive.
87. More specifically, under Articles 6 and 8(2) of the NEC Directive, the Member States must draw up by 1 October 2002 at the latest, and then update and revise as necessary by 1 October 2006 at the latest, programmes for the progressive reduction of the emissions in question, which they are obliged to make available to the public and appropriate organisations by means of clear, comprehensible and easily accessible information, and to notify to the Commission within the time-limit prescribed. Articles 7(1) and (2) and 8(1) of the NEC Directive also oblige the Member States to prepare and annually update national inventories of those emissions and national emission projections for 2010. The final emission inventories for the previous year but one and the provisional emission inventories for the previous year, as well as the national emission projections for 2010, must be reported to the Commission and the European Environment Agency each year, by 31 December at the latest (see, to this effect, the judgment of 18 December 2008 in Case C-273/08 Commission  v Luxembourg , not published in the ECR, paragraphs 2 and 11).
89. The imposition of any requirements to that effect would run counter to the intention of the European Union legislature, whose aim in particular is to allow the Member States to strike a certain balance between the various interests involved. Furthermore, that would result in excessive constraints being placed on the Member States and would, accordingly, be contrary to the principle of proportionality, laid down in Article 5 TEU and expressly borne in mind in recital 13 in the preamble to the NEC Directive, which requires that the means deployed by a provision of European Union law be appropriate for attaining the legitimate objectives pursued by the legislation at issue and must not go beyond what is necessary to achieve them (see Joined Cases C-453/03, C‑11/04, C-12/04 and C‑194/04 ABNA and Others  [2005] ECR I-10423, paragraph 68 and the case-law cited, and Case C-58/08 Vodafone and Others  [2010] ECR I-0000, paragraph 51).
93. It is to be recalled at the outset that it is settled case-law that, whenever provisions of a directive appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise, they may be relied upon by individuals against the Member State where the latter has failed to implement the directive in domestic law by the end of the period prescribed or where it has failed to implement the directive correctly (see, inter alia, Joined Cases C‑6/90 and C‑9/90 Francovich and Others [1991] ECR I‑5357, paragraph 11; Case C‑62/00 Marks & Spencer  [2002] ECR I‑6325, paragraph 25; and Joined Cases C-397/01 to C‑403/01 Pfeiffer and Others  [2004] ECR I‑8835, paragraph 103).
94. As the Court of Justice has pointed out on numerous occasions, it would be incompatible with the binding effect which the third paragraph of Article 288 TFEU ascribes to a directive to exclude, in principle, the possibility of the obligation imposed by a directive being relied on by persons concerned. That consideration applies particularly in respect of a directive whose objective is to control and reduce atmospheric pollution and which is designed, therefore, to protect public health (see Case C-237/07 Janecek  [2008] ECR I‑6221, paragraph 37).
95. It should nevertheless be noted in this regard that a provision of European Union law is unconditional where it sets forth an obligation which is not qualified by any condition, or subject, in its implementation or effects, to the taking of any measure either by the institutions of the European Union or by the Member States (see, inter alia, Case 28/67 Molkerei-Zentrale Westfalen/Lippe  [1968] ECR 143 and Case C‑236/92 Comitato di coordinamento per la difesa della cava and Others  [1994] ECR I‑483, paragraph 9).
100. It follows that the natural and legal persons directly concerned must be able to require the competent authorities, if necessary by bringing the matter before the national courts, to observe and implement such rules of European Union law.
101. As to the content of the programmes that must be drawn up, it is true that, as follows from paragraph 88 of the present judgment, the Member States have wide flexibility in selecting the specific initiatives to be implemented, whilst it is also true that they are not obliged to adopt policies and measures to ensure that ceilings are not exceeded before the end of 2010.
102. It is apparent, however, from Article 6 of the NEC Directive and from the scheme of that directive, which seeks a progressive reduction of national emissions of the pollutants expressly referred to, that the Member States have the task, during the transitional period from 27 November 2002 to 31 December 2010, of adopting or envisaging appropriate and coherent policies and measures capable of reducing, as a whole, emissions of those pollutants so as to comply with the national ceilings laid down in Annex I to the directive.
103. Whilst the Member States thus have a discretion, Article 6 of the NEC Directive nevertheless involves limits on its exercise, which are capable of being relied upon before the national courts, relating to the appropriateness of the body of policies and measures adopted or envisaged within the framework of the respective national programmes to the objective of limiting, by the end of 2010 at the latest, emissions of the pollutants covered to amounts not exceeding the ceilings laid down for each Member State (see, to this effect, Janecek , paragraph 46).