Keywords
Summary

Keywords

1. Environment – Atmospheric pollution – Directive 1999/32 – Reduction of the sulphur content of heavy fuel oils – Maximum sulphur content of certain combustible liquids – Derogation – Conditions for granting – Refusal by the Commission to authorise the use of heavy fuel oils with a maximum of sulphur content of 3% by mass – Contribution of emissions to exceeding the critical load in a Member State – Extent of the contribution and its role in exceeding the critical load – No effect – Principle of the protection of legitimate expectations – Infringement – None

(EC Treaty, Art. 189a and 189c (now Arts 250 EC and 252 EC); Council Directive 1999/32, Art. 3(2); Commission Decision 2003/3)

2. Environment – Atmospheric pollution – Directive 1999/32 – Reduction of the sulphur content of certain combustible liquids – Maximum sulphur content of heavy fuel oils – Derogation – Conditions for granting – No contribution by emissions to critical loads being exceeded in the Member States – Principle of proportionality – Infringement – None

(Council Directive 1999/32, Art. 3(2))

Summary

1. The Commission’s decision rejecting a request by a Member State to authorise the use of heavy fuels with a maximum sulphur content of between 1% and 3% by mass on a part of its territory does not infringe either Article 3(2) of Directive 1999/32 relating to a reduction in the sulphur content of certain liquid fuels or the principle of the protection of legitimate expectations.

First, according to the actual wording of Article 3(2), authorisation for the use of heavy fuel oils is subject, in addition, to the condition of compliance with air quality standards set for sulphur dioxide in the relevant Community legislation, to a second condition, according to which the sulphur dioxide emissions ‘do not contribute to critical loads being exceeded in any Member State’, although that provision does not specify the amount of that contribution or its role in exceeding critical loads. Nothing in the text of that provision supports the conclusion that a derogation may be granted where the contribution is not decisive for the exceeding of the critical loads, or where the contribution, although detectable, does not exceed a particular threshold.

Second, as regards the principle of the protection of legitimate expectations, it cannot be accepted that a communication submitted by the Commission together with a draft directive, even where that communication is mentioned in the recitals in the preamble to that directive, gave rise to a legitimate expectation that the policies contained in it would be adhered to, where it is clear from Articles 189a and 189c of the EC Treaty (now Articles 250 EC and 252 EC) that the Commission may amend such a proposal at any time and that the Council may adopt an act constituting an amendment to the proposal.

(see paras 58, 72)

2. The Council cannot be criticised for infringing the principle of proportionality by making an authorisation to use heavy fuel oils with a sulphur content of more than 1% by mass subject to strict conditions, such as those laid down in Article 3(2) of Directive 1999/32, relating to a reduction in the sulphur content of certain liquid fuels.

Given that the sulphur present in oil has for decades been recognised as the main source of sulphur dioxide emissions, which are largely responsible for the acid rain and air pollution experienced in many urban and industrial areas, and the transboundary nature of the problem of acidification, that measure is capable of achieving the objective pursued by the directive, namely to reduce emissions of sulphur dioxide resulting from the combustion of certain types of liquid fuels.

As regards, more particularly, the need for strict application of the condition in Article 3(2) relating to the emissions’ contribution to critical loads in the Member States being exceeded, the Council, having regard, in particular, to the effects of sulphur dioxide emissions on human health and on the environment and to the important contribution of those emissions to the transboundary problem of acidification, was able, without committing a manifest error of assessment, to take the view that it was necessary to make the grant of derogations for the use of heavy fuel oils with a sulphur content of more than 1% by mass subject to the condition that the sulphur emissions of a Member State do not contribute to critical loads being exceeded in the territory of the Member States, even if the economic costs of such a measure may be substantial and even if that contribution does not significantly contribute to the deterioration of the situation in the Member States. The importance of the objectives pursued is such as to justify even substantial negative financial consequences for certain operators, a fortiori , since the protection of the environment constitutes one of the essential objectives of the Community.

(see paras 90-93, 95-96)