Keywords
Summary

Keywords

1 Actions for failure to fulfil obligations - Pre-litigation procedure - Purpose - Subject-matter of the action delimited by the reasoned opinion

(EC Treaty, Art. 169 (now Art. 226 EC))

2 Actions for failure to fulfil obligations - Sufficient evidence - Burden of proof on the Commission - Insufficient or inadequate transposition of a directive into national law - Whether it is necessary to establish the actual effects of the legislation purporting to transpose the directive into national law - No such obligation

(EC Treaty, Art. 169 (now Art. 226 EC))

3 Environment - Assessment of the effects of certain projects on the environment - Directive 85/337 - Assessment requirement in respect of projects in the classes listed in Annex II - Discretion of Member States - Limits - Failure to take into account the nature, location and cumulative effect of projects - Constitutes a failure to fulfil obligations

(Council Directive 85/337, Arts 2(1) and 4(2))

4 Actions for failure to fulfil obligations - Consideration by the Court of the merits - Situation to be taken into account - Situation at the end of the period laid down in the reasoned opinion

(EC Treaty, Art. 169 (now Art. 226 EC))

Summary

1 In proceedings concerning an alleged failure to fulfil obligations, the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity, on the one hand, to comply with its obligations under Community law and, on the other, to avail itself of its right to defend itself against the objections formulated by the Commission.

The subject-matter of an action brought under Article 169 of the Treaty (now Article 226 EC) is delimited in the pre-litigation procedure provided for by that article. Consequently, the action cannot be founded on any objections other than those set out in the reasoned opinion.

2 In an action for failure to fulfil obligations, it is not necessary, in order to prove that the transposition of a directive is insufficient or inadequate, to establish the actual effects of the legislation transposing it into national law. There is nothing, therefore, to prevent the Commission from demonstrating that transposition is defective or insufficient without waiting for the application of the transposing legislation to produce harmful effects.

3 Under Article 4(2) of Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, projects belonging to the classes listed in Annex II to the Directive are to be made subject to an assessment where Member States consider that their characteristics so require, to which purpose the Member States may specify certain types of projects as being subject to an assessment or may establish the criteria and/or thresholds necessary to identify such projects. The limits of that discretion lie in the obligation set out in Article 2(1) of the Directive, under which projects likely to have significant effects on the environment - by virtue inter alia of their nature, size or location - are to be subject to an impact assessment.

Thus, a Member State which establishes criteria and/or thresholds taking account only of the size of projects, without also taking their nature and location into consideration, exceeds the limits of its discretion under Articles 2(1) and 4(2) of the Directive. This is true also where a Member State establishes criteria and/or thresholds at a level such that, in practice, all projects of a certain type are exempted in advance from the requirement of an impact assessment, unless all the projects excluded could, when viewed as a whole, be regarded as not being likely to have significant effects on the environment. That is the position where a Member State merely sets a criterion of project size and does not also ensure that the objective of the legislation will not be circumvented by the splitting of projects. Not taking account of the cumulative effect of projects means in practice that all projects of a certain type may escape the obligation to carry out an assessment when, taken together, they are likely to have significant effects on the environment within the meaning of Article 2(1) of the Directive.

4 In the context of an action for failure to fulfil obligations in which the question has been raised whether certain national legislation is compatible with Community law, amendments to that legislation are irrelevant for the purposes of giving judgment if they have not been implemented before the expiry of the period set by the reasoned opinion.