1. By its application, the Commission of the European Communities requests the Court to declare that, first, by failing to provide that individual decisions not to carry out an environmental impact assessment pursuant to Article 4(2) of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40), as amended by Council Directive 97/11/EC of 3 March 1997 (OJ 1997 L 73, p. 5) (‘Directive 85/337’), must be supported by sufficient reasoning and, second, by failing to make applications for Review of Mineral Planning (‘ROMP applications’) lodged in Wales prior to 15 November 2000 subject to the requirements of that directive, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under that directive.
2. By document lodged at the Registry of the Court on 1 July 2009, the Commission stated that it was pursuing its application only in relation to the second complaint, and that it was withdrawing its first complaint.
3. The pre-litigation procedure relating to that second complaint has its origins in infringement procedure 2003/4793. By letter of 10 April 2006, the Commission, pursuant to Article 226 EC, gave formal notice to the United Kingdom to submit its observations on that issue within a period of two months. The United Kingdom replied to that formal notice by letter of 21 June 2006. That reply prompted the Commission to send, on 15 December 2006, a reasoned opinion to the United Kingdom, in which the Commission called on it to bring an end to the alleged infringement within a period of two months from receipt of the reasoned opinion. The United Kingdom replied to that reasoned opinion by letter of 8 February 2007.
4. Taking the view that that reply was not satisfactory, the Commission decided to bring the present action.
5. The Commission claims that failing to make ROMP applications lodged in Wales prior to 15 November 2000 subject to the requirements of Directive 85/337 is contrary to the provisions of Articles 2(1) and 4(2) of that directive. It relies, in that regard, on Case C‑201/02 Wells [2004] ECR I‑723.
6. The United Kingdom does not dispute the infringement complained of and limits itself to contending that Wales is currently preparing the legislation necessary for the transposition, in relation to that issue, of Directive 85/337. The United Kingdom contends, in addition, that there are a number of complex legal and operational issues which explain the delay in carrying out that transposition.
7. A Member State cannot however plead provisions, practices or situations prevailing in its domestic legal order to justify failure to observe obligations laid down by a directive (see, inter alia, Case C‑235/04 Commission v Spain [2007] ECR I‑5415, paragraph 55).
8. The question whether a Member State has failed to fulfil its obligations must, moreover, be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion (see, inter alia, Case C‑173/01 Commission v Greece [2002] ECR I‑6129, paragraph 7).
9. It is not in dispute that, at the end of the period laid down in the reasoned opinion, the measures necessary to transpose Directive 85/337 into national law had not been adopted.
10. Accordingly, it must be held that, by failing to make ROMP applications lodged in Wales prior to 15 November 2000 subject to the requirements of Articles 2(1) and 4(2) of Directive 85/337, the United Kingdom has failed to fulfil its obligations under that directive. Costs
11. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Furthermore, under the first subparagraph of Article 69(5), a party who discontinues or withdraws from proceedings is to be ordered to pay the costs if they have been applied for in the other party’s observations on the discontinuance.
12. In its application, the Commission sought an order that the United Kingdom pay the costs. The United Kingdom has been unsuccessful in its pleas on the second complaint and did not submit observations on the Commission’s partial discontinuance. The United Kingdom will therefore be ordered to pay the costs.