Judgment of the Court (Third Chamber) of 24 March 2011 – Commission v Belgium

(Case C-435/09)

Failure of a Member State to fulfil obligations – Directive 85/337/EEC – Assessment of the effects of certain public and private projects on the environment – Selection criteria – Determination of thresholds – Size of the project

1.                     Environment – Assessment of the effects of certain projects on the environment – Directive 85/337 – Making the projects listed in Annex II subject to assessment – Member States’ discretion – Limits – Fixing of thresholds without taking account only of the size of the projects, excluding the other criteria listed in Annex III – Failure to fulfil obligations – Thresholds fixed particularly low – No effect (Council Directive 85/337, as amended by Directive 2003/35, Arts 2(1) and 4(2) and (3), and Annexes II and III) (see paras 48-55, 60-61)

2.                     Actions for failure to fulfil obligations – Proof of failure – Burden of proof on Commission – Insufficient or inadequate transposition of a directive – No obligation to determine the actual effects of the national implementing legislation (Art. 258 TFEU) (see para. 59)

3.                     Environment – Assessment of the effects of certain projects on the environment – Directive 85/337 – Assessment procedure – Option for a Member State to use an alternative procedure – Conditions (Council Directive 85/337, as amended by Directive 2003/35, Art. 2(1) and (2)) (see para. 62)

4.                     Environment – Assessment of the effects of certain projects on the environment – Directive 85/337 – Competent authorities obliged to carry out the assessment before they issue authorisation – Projects relating to inland waterways and ports for inland-waterway traffic – National legislation providing for a threshold expressed in numbers of ships and not in tonnes – Failure to fulfil obligations (Council Directive 85/337, as amended by Directive 2003/35, Art. 4(1), and Annex I, paragraph 8(a)) (see paras 82-83)

5.                     Environment – Assessment of the effects of certain projects on the environment – Directive 85/337 – Competent authorities obliged to carry out the assessment before they issue authorisation – Projects relating to industrial plants for the production of pulp – National legislation providing for a minimum threshold of 500 tonnes a year in order for the impact study to be obligatory – Failure to fulfil obligations (Council Directive 85/337, as amended by Directive 2003/35, Arts 2(1) and 4(1), and Annex I, point 18(a)) (see paras 86-88)

6.                     Environment – Assessment of the effects of certain projects on the environment – Directive 85/337 – Projects likely to have significant effects on the environment of another Member State – National legislation not laying down the obligation to pass on to the other Member State information regarding the nature of the decision likely to be taken – Failure to fulfil obligations (Council Directive 85/337, as amended by Directive 2003/35, Art. 7(1)(b)) (see paras 90-93)

Re:

Operative part

The Court:

–        as regards the Flemish Region, of Article 4(2) and (3) 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, as amended by Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003, in conjunction with Annexes II and III thereof;

–        as regards the Walloon Region, of Article 4(1), in conjunction with Annex I(8)(a) and (18)(a) of Directive 85/337, as amended by Directive 2003/35, and Article 7(1)(b) thereof; and

–        as regards the Brussels-Capital Region, of Article 4(2) and (3), in conjunction with Annexes II and III of Directive 85/337, as amended by Directive 2003/35, and of Annex III itself,

the Kingdom of Belgium has failed to fulfil its obligations under that directive;