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Included here are all the judgments, opinions and orders relating to Irish cases. Work is  ongoing posting the case summaries, relevant Press Releases from the Commission and from Ireland in respects of efforts to comply with judgments or to addresses cases at an early stage. See our scorecards.

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Scorecard updated following yesterday’s meeting [8 October 2012] with the Commission. Note that two Irish cases for fines were heard by the ECJ last Thursday – C–374/11 (in respect of C–188/08 septic tanks) and C–279/11 (in respect of C–66/06 EIA agriculture/aquaculture). These are open and shut cases, so we can expect to see fines in both cases around 6 months from now (based on recent precedents). This means that the first fines against Ireland will be implemented during Ireland’s Presidency of the EU. Also note that in June this year the Commission took a formal decision to take a third case back to the ECJ for a fine – in respect of the ECJ’s judgment in C–50/09 (EIA) – the application to the ECJ is being drafted at present.ead More //


Europe ruling on planning directive welcomed

ENVIRONMENTAL CAMPAIGNERS have welcomed a ruling by the European Court of Justice reversing an Irish Supreme Court judgment which they say has serious implications for how Irish planning authorities assess major projects.
The European Court of Justice has issued a ruling in the case of the European Commission vs Ireland in which the court found that Ireland had failed to properly implement the EU’s environmental impact assessment directive in the case of major projects.
Solicitor Joe Noonan, acting for the Cork Harbour Alliance for a Safe Environment (Chase), had argued that Ireland had breached the EU directive in the way it had split the statutory approval functions for major projects between the EPA and An Bord Pleanála.
Mr Noonan had also argued that Ireland had breached the directive by failing to require either the EPA or An Bord Pleanála to perform an assessment of environmental impacts as required.
Under article 2 of the council’s 1985 EIA directive, planning permission can only be given after an assessment is carried out on all significant projects which, because of their nature, size or location, could have significant effects on the environment.
Article 3 of the 1985 EIA directive says any assessment must look at the impact of a project on human beings, fauna, flora, soil, water, air, climate, landscape, material assets and the cultural heritage as well as the interaction between any of these subjects.
The European Court of Justice found that Ireland had failed to properly transpose article 3 and had failed to properly implement the requirements of article 2 in cases where the Irish planning authorities and the EPA both have decision–making powers concerning a project.
The court also ruled that Ireland was in breach of the directive by excluding demolition works from the scope of its legislation, not transposing the EU EIA directive into Irish law and ordered Ireland to pay costs in the case.
Mr Noonan said it was a significant decision and would come into effect immediately. It would apply to any major projects in the pipeline while the consequences of the ruling with regard to any retrospective application would also have to be considered.
The ruling would require consideration by both the Department of the Environment and the Attorney General as it marked a reversal of a 2007 Supreme Court decision which found the State could split the statutory approval functions between the EPA and planning authorities, he said.
The Department of the Environment said the part of the judgment relating to demolition works had been clarified by a 2008 amendment to the 2001 planning and development regulations regarding which aspects of demolition were exempt from planning permission requirements.
A second part of the judgment relating to the transposing article 3 of the 1985 directive had been remedied through the Planning and Development (Amendment) Act 2010, said the department in its statement.
“A response to the final substantive element of the judgment regarding split decision–making will require further consideration by the State,” it said.

C–392/96 Environment and consumers Environment — Directive 85/337/EEC — Assessment of the effects of certain public or private projects — Setting of thresholds

 

[These urls have been corrected – apologies. 24.01.12.]


 

JUDGMENT OF THE COURT (First Chamber)
3 March 2011
(Failure of a Member State to fulfil obligations - Directive 85/337/EEC - Obligation of the competent environmental authority to carry out an assessment of the effects of certain projects on the environment - More than one competent authority - Need to ensure an assessment of the interaction between factors likely to be directly or indirectly affected - Application of the directive to demolition works)
In Case C 50/09,
ACTION under Article 226 EC for failure to fulfil obligations, brought on 4 February 2009,
European Commission, represented by P. Oliver, C. Clyne and J.-B. Laignelot, acting as Agents, with an address for service in Luxembourg,
applicant,
v
Ireland, represented by D. O'Hagan, acting as Agent, assisted by G. Simons SC and D. McGrath BL, with an address for service in Luxembourg,
defendant,

1 By its action, the Commission of the European Communities requested the Court to declare that:
- by failing to transpose Article 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 (OJ 1985 L 175, p. 40), as amended by Council Directive 97/11/EC of 3 March 1997 (OJ 1997 L 73, p. 5) and by Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 (OJ 2003 L 156, p. 17; ‘Directive 85/337');
- by failing to ensure that, where Irish planning authorities and the Environmental Protection Agency (‘the Agency') both have decision-making powers on a project, there will be complete fulfilment of the requirements of Articles 2 to 4 of that directive; and
- by excluding demolition works from the scope of its legislation transposing that directive,
Ireland has failed to fulfil its obligations under that directive.
Legal context
European Union legislation
2 Article 1(2) and (3) of Directive 85/337 provide:
‘(2) For the purposes of this Directive:
"project" means:
- the execution of construction works or of other installations or schemes,
- other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources;
...
"development consent" means:
the decision of the competent authority or authorities which entitles the developer to proceed with the project.
(3) The competent authority or authorities shall be that or those which the Member States designate as responsible for performing the duties arising from this Directive.'
3 Under Article 2(1) to (2a) of Directive 85/337:
‘(1) Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue inter alia, of their nature, size or location are made subject to an assessment with regard to their effects. These projects are defined in Article 4.
(2) The environmental impact assessment may be integrated into the existing procedures for consent to projects in the Member States, or, failing this, into other procedures or into procedures to be established to comply with the aims of this Directive.
(2a) Member States may provide for a single procedure in order to fulfil the requirements of this Directive and the requirements of Council Directive 96/61/EC of 24 September 1996 on integrated pollution prevention and control ...'
4 Article 3 of Directive 85/337 provides:
‘The environmental impact assessment will identify, describe and assess in an appropriate manner, in the light of each individual case and in accordance with Articles 4 to 11, the direct and indirect effects of a project on the following factors:
- human beings, fauna and flora,
- soil, water, air, climate and the landscape,
- material assets and the cultural heritage,
- the interaction between the factors mentioned in the first, second and third indents.'
5 Article 4(1) and (2) of Directive 85/337 are worded as follows:
‘1. Subject to Article 2(3), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.
2. Subject to Article 2(3), for projects listed in Annex II, the Member States shall determine through:
(a) a case-by-case examination,
or
(b) thresholds or criteria set by the Member State
whether the project shall be made subject to an assessment in accordance with Articles 5 to 10.
Member States may decide to apply both procedures referred to in (a) and (b).'
6 Articles 5 to 7 of Directive 85/337 concern the information which must be gathered and the consultations which must be undertaken for the purposes of the assessment procedure. Article 5 deals with the information which the developer must supply, Article 6 deals with the obligation to consult, on the one hand, authorities with specific environmental responsibilities and the public, on the other, and Article 7 covers the obligation, in the case of a cross-border project, to inform the other Member State concerned. Article 8 of the directive states that the results of those consultations and the information gathered must be taken into consideration in the development consent procedure.
7 Articles 9 to 11 of Directive 85/337, relating to the decision taken at the conclusion of the consent procedure, cover, respectively, informing the public and the Member States concerned, respect for commercial and industrial confidentiality, the right of members of the public to bring proceedings before a court and the exchange of information between Member States and the Commission.
8 Under Article 12(1) of Directive 85/337, in its original version, the Member States were obliged to comply with that directive's provisions by 3 July 1988 at the latest. With regard to the amendments made to it by Directives 97/11 and 2003/35, the Member States were obliged to bring them into force at the latest by 14 March 1999 and 25 June 2005 respectively.
National legislation
The Planning and Development Act 2000
9 The Planning and Development Act 2000, as amended by the Strategic Infrastructure Act 2006 (‘the PDA'), lays down the legal framework for issuing development consent for most of the project categories listed in Annexes I and II to Directive 85/337. For some projects, development consent under the PDA, which is termed ‘planning permission' and granted, as a rule, by a local authority, is the only form of consent required for a project to proceed. In such cases, the PDA provides that the decisions taken by local authorities may be appealed against to An Bord Pleanála (The Planning Appeals Board; ‘the Board').
10 Part X of the PDA, comprising sections 172 to 177, is devoted to environmental impact assessments. Section 176 provides for ministerial regulations to identify projects requiring such an assessment. Section 172 provides that, for projects covered by regulations made under section 176, applications for planning permission are to be accompanied by an environmental impact statement. Under section 173, where a planning authority receives an application for planning permission accompanied by an environmental impact statement, that authority and, on appeal, the Board must have regard to that statement. Section 177 provides that the information to be included in such a statement is to be prescribed by ministerial regulation.
11 Detailed measures for the implementation of the PDA are set out in the Planning and Development Regulations 2001, as amended by the Planning and Development Regulations 2008 (‘the PDR'), which were adopted pursuant to, among others, sections 176 and 177 of the PDA.
12 Part 2 of the PDR concerns projects which are exempt from an environmental impact assessment. Article 6 thereof refers in that regard to Part 1 of Schedule 2 to the PDR, which, in Category 50, refers to ‘the demolition of a building or other structure'. Articles 9 and 10 of the PDR lay down the conditions under which a project as a rule exempted must none the less be made subject to a consent procedure.
13 Part 10 of the PDR is devoted to environmental impact assessments. Article 93 thereof, in combination with Schedule 5 thereto, defines the categories of projects for which such an assessment is required. Article 94 of the PDR, which lists the information that should be found in an environmental impact statement, is worded as follows:
‘An environmental impact statement shall contain:
(a) the information specified in paragraph 1 of Schedule 6,
(b) the information specified in paragraph 2 of Schedule 6 to the extent that
(i) such information is relevant to a given stage of the consent procedure and to the specific characteristics of the development or type of development concerned and of the environmental features likely to be affected, and
(ii) the person or persons preparing the statement may reasonably be required to compile such information having regard, among other things, to current knowledge and methods of assessment, and,
(c) a summary in non-technical language of the information required under paragraphs (a) and (b).'
14 Schedule 6 to the PDR specifies the information to be contained in an environmental impact statement. Paragraph 2(b) of Schedule 6 stipulates that it must contain:
‘A description of the aspects of the environment likely to be significantly affected by the proposed development, including in particular:
- human beings, fauna and flora,
- soil, water, air, climatic factors and the landscape,
- material assets, including the architectural and archaeological heritage, and the cultural heritage,
- the inter-relationship between the above factors.'
15 Under Article 108 of the PDR, the competent planning authority is obliged to establish whether the information contained in an environmental impact statement complies with the requirements laid down in the PDR.
The Environmental Protection Agency Act 1992
16 The Environmental Protection Agency Act 1992 (‘the EPAA') introduced, among other things, a new system of integrated pollution control under which many industrial activities require a licence granted by the Agency. Where the activity is new and/or involves new construction, it must also obtain planning permission as provided for by the PDA.
17 Section 98 of the EPAA, which precluded planning authorities from taking into consideration aspects connected with pollution risks in considering an application for planning permission, was amended by section 256 of the PDA to the effect that, whilst it precluded planning authorities from including any pollution control conditions in planning permissions for activities also requiring a licence from the Agency, they could nevertheless, where appropriate, refuse to grant planning permission on environmental grounds. Section 98 of the EPAA, as amended, provides that planning authorities may ask the Agency for an opinion, in particular on an environmental impact statement. However, the Agency is not required to respond to such a request.
18 Under the Environmental Protection Agency (Licensing) Regulations 1994 (‘the EPAR'), the Agency may notify a planning authority of a licence application. There is, however, no obligation on the planning authority to respond to such a notification.
The National Monuments Act 1930
19 The National Monuments Act 1930 (‘the NMA') governs the protection of Ireland's most culturally significant archaeological remains, which are classed as ‘national monuments'. It was amended by the National Monuments (Amendment) Act 2004, to relax the constraints imposed under earlier legislation concerning proposals to alter or remove national monuments.
20 Section 14 of the NMA confers on the Irish Minister for the Environment, Heritage and Local Government (‘the Minister') discretion to consent to the destruction of a national monument. Where a national monument is discovered during the carrying out of a road development which has been subject to an environmental impact assessment, section 14A of the NMA provides that it is, in principle, prohibited to carry out any works on the monument pending directions by the Minister. Those directions can relate to ‘the doing to the monument of [various] matters', including its demolition. There is no provision for any assessment to be made, for the adoption of such directions, of the effects on the environment. However, section 14B of the NMA provides that the Minister's directions must be notified to the Board. If those directions envisage an alteration to the approved road development, the Board must consider whether or not that alteration is likely to have significant adverse effects on the environment. If it is of that opinion, it must require the submission of an environmental impact statement.
Pre-litigation procedure
21 Following the examination of a complaint regarding Ireland's transposition of Directive 85/337, the Commission took the view that Ireland had failed to ensure its full and correct transposition and, by letter of 19 November 1998, gave Ireland formal notice, to submit its observations, in accordance with the procedure for failure to fulfil Treaty obligations. A further letter of formal notice was sent to Ireland on 9 February 2001.
22 After examining the observations received in response to those letters, the Commission, on 6 August 2001, sent the Irish authorities a reasoned opinion in which it claimed that Ireland had not correctly transposed Articles 2 to 6, 8 and 9 of Directive 85/337. In reply, Ireland stated that the legislative amendments necessary to bring about the transposition were being adopted and requested that the proceedings be stayed.
23 Following further complaints, the Commission, on 2 May 2006, sent an additional letter of formal notice to Ireland.
24 As the Commission was not satisfied with the replies received, on 29 June 2007 it addressed an additional reasoned opinion to Ireland in which it claimed that Ireland had not correctly transposed Directive 85/337, in particular Articles 2 to 4 thereof, and called upon it to comply with that reasoned opinion within a period of two months from the date of its receipt. In reply, Ireland maintained its position that the Irish legislation in force now constitutes adequate transposition of that directive.
25 The Commission then brought the present action.
The action
The first complaint, alleging failure to transpose Article 3 of Directive 85/337
Arguments of the parties
26 According to the Commission, Article 3 of Directive 85/337 is of pivotal importance, since it sets out what constitutes an environmental impact assessment and must therefore be transposed explicitly. The provisions relied upon by Ireland as adequate transposition of Article 3 of the directive are insufficient.
27 Thus, section 173 of the PDA, which requires planning authorities to have regard to the information contained in an environmental impact statement submitted by a developer, relates to the obligation, under Article 8 of Directive 85/337, to take into consideration the information gathered pursuant to Articles 5 to 7 thereof. By contrast, section 173 does not correspond to the wider obligation, imposed by Article 3 of Directive 85/337 on the competent authority, to ensure that there is carried out an environmental impact assessment which identifies, describes and assesses all the matters referred to in that article.
28 As for Articles 94, 108 and 111 of, and Schedule 6 to, the PDR, the Commission observes that they are confined, first, to setting out the matters on which the developer must supply information in its environmental impact statement and, second, to specifying the obligation on the competent authorities to establish that the information is complete. The obligations laid down by those provisions are different from that, imposed by Article 3 of Directive 85/337 on the competent authority, of carrying out a full environmental impact assessment
29 With regard to the relevance of the Irish courts' case-law on the application of the provisions of national law at issue, the Commission points out that while those courts may interpret ambiguous provisions so as to ensure their compatibility with a directive; they cannot plug legal gaps in the national legislation. Moreover, the extracts from the decisions cited by Ireland concern, in the Commission's submission, not the interpretation of that legislation but the interpretation of Directive 85/337 itself.
30 Ireland disputes the significance which the Commission attaches to Article 3 of that directive. It submits that that provision, drafted in general terms, is confined to stating that an environmental impact assessment must be made in accordance with Articles 4 to 11 of the directive. By transposing Articles 4 to 11 into national law, a Member State thereby, in Ireland's submission, ensures the transposition of Article 3.
31 Ireland maintains that Article 3 of Directive 85/337 is fully transposed by sections 172(1) and 173 of the PDA and Articles 94 and 108 of, and Schedule 6 to, the PDR. It points out that the Supreme Court (Ireland) has confirmed, in two separate judgments of 2003 and 2007, namely O'Connell v Environmental Protection Agency and Martin v An Bord Pleanála, that Irish law requires planning authorities and the Agency to assess the factors referred to in Article 3 and the interaction between them. Those judgments, which, Ireland submits, should be taken into account when assessing the scope of the national provisions at issue, do not fill a legal gap but are confined to holding that the applicable national legislation imposes an obligation on the competent authorities to carry out an environmental impact assessment of a development in the light of the criteria laid down in Article 3 of Directive 85/337.
32 In the alternative, Ireland refers to the concept of ‘proper planning and sustainable development' referred to in section 34 of the PDA. It is, in Ireland's submission, the principal criterion which must be taken into consideration by any planning authority when deciding on an application for planning permission. That concept is in addition to all the criteria referred to in section 34 of the PDA, as well as in other provisions of that Act, including section 173, the application of which it reinforces.
33 Finally, Ireland submits that the Commission does not respect the discretion which a Member State enjoys under Article 249 EC as to the form and methods for transposing a directive. By requiring the literal transposition of Article 3 of Directive 85/337, the Commission is disregarding the body of legislation and case-law built up in Ireland over 45 years surrounding the concepts of ‘proper planning' and ‘sustainable development'.
Findings of the Court
34 At the outset, it is to be noted that the Commission and Ireland give a different reading to Article 3 of Directive 85/337 and a different analysis of its relationship with Articles 4 to 11 thereof. The Commission maintains that Article 3 lays down obligations which go beyond those required by Articles 4 to 11, whereas Ireland submits that it is merely a provision drafted in general terms and that the details of the process of environmental impact assessment are specified in Articles 4 to 11.
35 In that regard, whilst Article 3 of Directive 85/337 provides that the environmental impact assessment is to take place ‘in accordance with Articles 4 to 11' thereof, the obligations referred to by those articles differ from that under Article 3 itself.
36 Article 3 of Directive 85/337 makes the competent environmental authority responsible for carrying out an environmental impact assessment which must include a description of a project's direct and indirect effects on the factors set out in the first three indents of that article and the interaction between those factors (judgment of 16 March 2006 in Case C 332/04 Commission v Spain, paragraph 33). As stated in Article 2(1) of the directive, that assessment is to be carried out before the consent applied for to proceed with a project is given.
37 In order to satisfy the obligation imposed on it by Article 3, the competent environmental authority may not confine itself to identifying and describing a project's direct and indirect effects on certain factors, but must also assess them in an appropriate manner, in the light of each individual case.
38 That assessment obligation is distinct from the obligations laid down in Articles 4 to 7, 10 and 11 of Directive 85/337, which are, essentially, obligations to collect and exchange information, consult, publicise and guarantee the possibility of challenge before the courts. They are procedural provisions which do not concern the implementation of the substantial obligation laid down in Article 3 of that directive.
39 Admittedly, Article 8 of Directive 85/337 provides that the results of the consultations and the information gathered pursuant to Articles 5 to 7 must be taken into consideration in the development consent procedure.
40 However, that obligation to take into consideration, at the conclusion of the decision-making process, information gathered by the competent environmental authority must not be confused with the assessment obligation laid down in Article 3 of Directive 85/337. Indeed, that assessment, which must be carried out before the decision-making process (Case C-508/03 Commission v United Kingdom [2006] ECR I 3969, paragraph 103), involves an examination of the substance of the information gathered as well as a consideration of the expediency of supplementing it, if appropriate, with additional data. That competent environmental authority must thus undertake both an investigation and an analysis to reach as complete an assessment as possible of the direct and indirect effects of the project concerned on the factors set out in the first three indents of Article 3 and the interaction between those factors.
41 It follows therefore both from the wording of the provisions at issue of Directive 85/337 and from its general scheme that Article 3 is a fundamental provision. The transposition of Articles 4 to 11 alone cannot be regarded as automatically transposing Article 3.
42 It is in the light of those considerations that the Court must consider whether the national provisions upon which Ireland relies constitute proper transposition of Article 3 of Directive 85/337.
43 It can be seen from the wording of section 172 of the PDA and of Article 94 of, and Schedule 6 to, the PDR that those provisions relate to the developer's obligation to supply an environmental impact statement, which corresponds, as the Commission correctly claims, to the obligation imposed upon the developer by Article 5 of Directive 85/337. Article 108 of the PDR imposes no obligation on the planning authority other than that of establishing the completeness of that information.
44 As regards section 173 of the PDA, according to which the planning authority, where it receives an application for planning permission accompanied by an environmental impact statement, must take that statement into account as well as any additional information provided to it, it is clear from the very wording of that article that it is confined to laying down an obligation similar to that provided for in Article 8 of Directive 85/337, namely that of taking the results of the consultations and the information gathered for the purposes of the consent procedure into consideration. That obligation does not correspond to the broader one, imposed by Article 3 of Directive 85/337 on the competent environmental authority, to carry out itself an environmental impact assessment in the light of the factors set out in that provision.
45 In those circumstances, it must be held that the national provisions invoked by Ireland cannot attain the result pursued by Article 3 of Directive 85/337.
46 Whilst it is true that, according to settled case-law, the transposition of a directive into domestic law does not necessarily require the provisions of the directive to be enacted in precisely the same words in a specific, express provision of national law and a general legal context may be sufficient if it actually ensures the full application of the directive in a sufficiently clear and precise manner (see, in particular, Case C 427/07 Commission v Ireland [2009] ECR I 6277, paragraph 54 and the case-law cited), the fact remains that, according to equally settled case law, the provisions of a directive must be implemented with unquestionable binding force and with the specificity, precision and clarity required in order to satisfy the need for legal certainty, which requires that, in the case of a directive intended to confer rights on individuals, the persons concerned must be enabled to ascertain the full extent of their rights (see, in particular, Commission v Ireland, paragraph 55 and the case-law cited).
47 In that regard, the judgment of the Supreme Court in O'Connell v Environmental Protection Agency gives, admittedly, in the passage upon which Ireland relies, an interpretation of the provisions of domestic law consistent with Directive 85/337. However, according to the Court's settled case-law, such a consistent interpretation of the provisions of domestic law cannot in itself achieve the clarity and precision needed to meet the requirement of legal certainty (see, in particular, Case C-508/04 Commission v Austria [2007] ECR I 3787, paragraph 79 and the case-law cited). The passage in the judgment of the same court in Martin v An Bord Pleanála, to which Ireland also refers, concerns the question of whether all the factors referred to in Article 3 of Directive 85/337 are mentioned in the consent procedures put in place by the Irish legislation. By contrast, it has no bearing on the question, which is decisive for the purposes of determining the first complaint, of what the examination of those factors by the competent national authorities should comprise.
48 As regards the concepts of ‘proper planning' and ‘sustainable development' to which Ireland also refers, it must be held that, even if those concepts encompass the criteria referred to in Article 3 of Directive 85/337, it is not established that they require that those criteria be taken into account in all cases for which an environmental impact assessment is required.
49 It follows that neither the national case-law nor the concepts of ‘proper planning' and ‘sustainable development' can be invoked to remedy the failure to transpose into the Irish legal order Article 3 of Directive 85/337.
50 The Commission's first complaint in support of its action must therefore be held to be well founded.
The second complaint, alleging failure to ensure full compliance with Articles 2 to 4 of Directive 85/337 where several authorities are involved in the decision making process
Arguments of the parties
51 For the Commission, it is of the essence that the environmental impact assessment be carried out as part of a holistic process. In Ireland, following the Agency's creation, certain projects requiring such an assessment are subject to two separate decision-making processes: one process involves decision-making on land-use aspects by planning authorities, while the other involves decision-making by the Agency on pollution aspects. The Commission accepts that planning permission and an Agency licence may be regarded, as has been held in Irish case-law (Martin v An Bord Pleanála), as together constituting ‘development consent' within the meaning of Article 1(2) of Directive 85/337 and it does not object to such consent being given in two successive stages. However, the Commission criticises the fact that the Irish legislation fails to impose any obligation on planning authorities and the Agency to coordinate their activities. In the Commission's submission, that situation is contrary to Articles 2 to 4 of Directive 85/337.
52 As regards Article 2 of Directive 85/337, the Commission notes that it requires an environmental impact assessment to be undertaken for a project covered by Article 4 ‘before consent is given'. The Commission submits that there is a possibility under the Irish legislation that part of the decision-making process will take place in disregard of that requirement. First, the Irish legislation does not require that an application for planning permission be lodged with the planning authorities before a licence application is submitted to the Agency, which is not empowered to undertake an environmental impact assessment. Second, the planning authorities are not obliged to take into account, in their assessment, the impact of pollution, which might not be assessed at all.
53 Referring to the Court's case-law (see, in particular, judgment of 20 November 2008 in Case C-66/06 Commission v Ireland, paragraph 59), the Commission states that it is not obliged to wait until the application of the transposing legislation produces harmful effects or to establish that it does so, where the wording of the legislation itself is insufficient or defective.
54 As regards Article 3 of Directive 85/337, the Commission submits that where there is more than one competent body, the procedures followed by each of them must, when taken together, ensure that the assessment required by Article 3 is fully carried out. The strict demarcation of the separate roles of the planning authorities on the one hand and the Agency on the other, as laid down by the Irish legislation, fails to take formally into account the concept of ‘environment' in the decision-making. None of the bodies involved in the consent process is responsible for assessing and taking into consideration the interaction between the factors referred to in the first to third indents of Article 3, which fall respectively within the separate spheres of the powers of each of those authorities.
55 In that regard, the Commission, referring to section 98 of the EPAA, as amended, and to the EPAR, observes that there is no formal link, in the form of an obligation, for the competent authorities, to consult each other between the process of planning permission followed by the planning authority and the licensing process followed by the Agency.
56 In order to illustrate its analysis, the Commission refers to the projects relating to the installation of an incinerator at Duleek, in County Meath, and to the wood-processing factory at Leap, in County Offaly.
57 Referring to Case C-98/04 Commission v United Kingdom [2006] ECR I-4003, Ireland contests the admissibility of the Commission's second complaint in support of its action, on the ground that, in Ireland's submission, the Commission has failed to indicate precisely the reason why Ireland's designation of two competent authorities infringes the requirements of Directive 85/337. Ireland submits that the failure has interfered with the preparation of its defence.
58 On the substance, Ireland contends that the consequence of involving a number of different competent authorities in the decision-making process, which is permitted by Articles 1(3) and 2(2) of Directive 85/337, is that their involvement and their obligations will be different and will occur at different stages prior to ‘development consent' being given. Relying on Martin v An Bord Pleanála, Ireland contends that nowhere in that directive is it in any sense suggested that a single competent body must carry out a ‘global assessment' of the impact on the environment.
59 Ireland denies that there is a strict demarcation between the powers of the two decision-making bodies and submits that there is, rather, overlap between them. The concept of ‘proper planning and sustainable development', to which the PDA refers, is a very broad one, which includes, in particular, environmental pollution. Planning authorities are required to assess environmental pollution in the context of a decision relating to planning permission. They are moreover empowered under various provisions to refuse planning permission on environmental grounds.
60 Replying to the Commission's argument that it is possible for a licence application to be made to the Agency before an application for planning permission has been made to the planning authority, and thus before an environmental impact assessment has been carried out, Ireland contends that under Irish law ‘development consent' requires both planning permission from the competent planning authority and a licence from the Agency. In those circumstances, there is no practical benefit in the developer applying for a licence from the Agency without making a contemporaneous application to the planning authority; such separate applications do not therefore occur in practice.
61 In addition, Ireland argues that, contrary to the Commission's assertion that the Agency cannot undertake an environmental impact assessment, there is in several instances an obligation, particularly for waste recovery or waste disposal licence applications and for applications for integrated pollution control and prevention licences, to submit an environmental impact statement to the Agency independently of any earlier application for planning permission lodged with a planning authority. In addition, in such cases the Agency is expressly empowered to request further information from an applicant and may therefore request information which is substantially similar to that contained in an environmental impact statement.
62 Ireland submits that an obligation on the planning authority and the Agency to consult in every case would be inappropriate. It would be more appropriate to allow such consultation whilst affording a discretion to the relevant decision-makers as to whether, in each particular case, to undertake such consultation.
63 Finally, the judgment in Case C-66/06 Commission v Ireland, to which the Commission refers in order to avoid having to adduce proof of its allegations, is not relevant to the present case. In Ireland's submission, the alleged infringement, in that case, concerned the manner in which Directive 85/337 had been transposed into Irish domestic law, whereas the present case concerns the application of the legislation transposing that directive. Whilst a comprehensive scheme has been put in place by the Irish legislation on the environmental impact assessment, the Commission claims that that legislation may not always be applied properly in practice. In that regard, the onus of proof lies with the Commission, which has failed to discharge it. The references to the projects at Duleek and Leap offer no support whatsoever for the Commission's allegations.
Findings of the Court
- Admissibility of the second complaint
64 It is settled case law that, in the context of an action brought on the basis of Article 226 EC, the reasoned opinion and the action must set out the Commission's complaints coherently and precisely in order that the Member State and the Court may appreciate exactly the scope of the infringement of European Union law complained of, a condition which is necessary in order to enable the Member State to avail itself of its right to defend itself and the Court to determine whether there is a breach of obligations as alleged (see, in particular, Commission v United Kingdom, paragraph 18, and Case C 66/06 Commission v Ireland, paragraph 31).
65 In this case, it is apparent from the documents in the court file that, in the pre litigation procedure, both paragraphs 3.2.2 to 3.2.5 of the reasoned opinion of 6 August 2001 and paragraphs 2.17 and 2.18 of the additional reasoned opinion of 29 June 2007 set forth the reason for which the strict demarcation between the separate roles assigned to the planning authorities, on the one hand, and the Agency, on the other, does not satisfy, in the Commission's submission, the requirements of Directive 85/337. It is there explained that such sharing of powers is incompatible with the fact that the concept of ‘environment', as it must be taken into account in the decision-making process laid down by that directive, involves taking into consideration the interaction between the factors falling within the separate spheres of responsibility of each of those decision-making authorities.
66 That complaint is set out in identical or similar terms in paragraphs 55 et seq. of the application in this action which, in addition, contains, in its paragraphs 9 to 20, a summary of the relevant provisions of the Irish legislation.
67 It follows from those findings that the Commission's allegations in the course of the pre-litigation procedure and the proceedings before the Court were sufficiently clear to enable Ireland properly to defend itself.
68 Accordingly, Ireland's plea of inadmissibility in respect of the Commission's second complaint must be rejected.
- Substance
69 At the outset, it is to be noted that, by its second complaint, the Commission is criticising the transposition by the Irish legislation at issue of Articles 2 to 4 of Directive 85/337, on the ground that the procedures put in place by that legislation do not ensure full compliance with those articles where several national authorities take part in the decision-making process.
70 Consequently, Ireland's line of argument that the Commission has not adequately established the factual basis for its action must immediately be rejected. As the Commission claimed, since its action for failure to fulfil obligations is concerned with the way in which Directive 85/337 has been transposed, and not with the actual result of the application of the national legislation relating to that transposition, it must be determined whether that legislation itself harbours the insufficiencies or defects in the transposition of the directive which the Commission alleges, without any need to establish the actual effects of the national legislation effecting that transposition with regard to specific projects (see Case C 66/06 Commission v Ireland, paragraph 59).
71 Article 1(2) of Directive 85/337 defines the term ‘development consent' as ‘the decision of the competent authority or authorities which entitles the developer to proceed with the project'. Article 1(3) states that the competent authorities are to be that or those which the Member States designate as responsible for performing the duties arising from that directive.
72 For the purposes of the freedom thus left to them to determine the competent authorities for giving development consent, for the purposes of that directive, the Member States may decide to entrust that task to several entities, as the Commission has moreover expressly accepted.
73 Article 2(2) of Directive 85/337 adds that the environmental impact statement may be integrated into the existing procedures for consent to projects or failing that, into other procedures or into procedures to be established to comply with the aims of that directive.
74 That provision means that the liberty left to the Member States extends to the determination of the rules of procedure and requirements for the grant of the development consent in question.
75 However, that freedom may be exercised only within the limits imposed by that directive and provided that the choices made by the Member States ensure full compliance with its aims.
76 Article 2(1) of Directive 85/337 thus states that the environmental impact assessment must take place ‘before the giving of consent'. That entails that the examination of a project's direct and indirect effects on the factors referred to in Article 3 of that directive and on the interaction between those factors be fully carried out before consent is given.
77 In those circumstances, while nothing precludes Ireland's choice to entrust the attainment of that directive's aims to two different authorities, namely planning authorities on the one hand and the Agency on the other, that is subject to those authorities' respective powers and the rules governing their implementation ensuring that an environmental impact assessment is carried out fully and in good time, that is to say before the giving of consent, within the meaning of that directive.
78 In that regard, the Commission maintains that it has identified, in the Irish legislation, a gap arising from the combination of two factors. The first is the lack of any right on the part of the Agency, where it receives an application for a licence for a project as regards pollution aspects, to require an environmental impact assessment. The second is the possibility that the Agency might receive an application and decide on questions of pollution before an application is made to the planning authority, which alone can require the developer to make an environmental impact statement.
79 In its defence, Ireland, which does not deny that, generally, the Agency is not empowered to require a developer to produce such a statement, contends that there is no practical benefit for a developer in seeking a licence from the Agency without simultaneously making an application for planning permission to the planning authority, since he needs a consent from both those authorities. However, Ireland has neither established, nor even alleged, that it is legally impossible for a developer to obtain a decision from the Agency where he has not applied to the planning authority for permission.
80 Admittedly, the EPAR give the Agency the right to notify a licence application to the planning authority. However, it is common ground between the parties that it is not an obligation and, moreover, an authority which has received such notification is not bound to reply to it.
81 It is therefore not inconceivable that the Agency, as the authority responsible for licensing a project as regards pollution aspects, may make its decision without an environmental impact assessment being carried out in accordance with Articles 2 to 4 of Directive 85/337.
82 Ireland contends that, in certain cases, relating particularly to licences for the recovery or disposal of waste and integrated pollution control and prevention licences, the Agency is empowered to require an environmental impact statement, which it must take into account. However, such specific rules cannot fill the gap in the Irish legislation identified in the preceding paragraph.
83 Ireland submits also that planning authorities are empowered, since the amendment of the EPAA by section 256 of the PDA, to refuse, where appropriate, planning permission on environmental grounds and that the concepts of ‘proper planning' and ‘sustainable development' confer on those authorities, generally, such power.
84 Such an extension of the planning authority's powers may, as Ireland argues, create in certain cases an overlap of the respective powers of the authorities responsible for environmental matters. None the less, it must be held that such an overlap cannot fill the gap pointed out in paragraph 81 of the present judgment, which leaves open the possibility that the Agency will alone decide, without an environmental impact assessment complying with Articles 2 to 4 of Directive 85/337, on a project as regards pollution aspects.
85 In those circumstances, it must be held that the Commission's second complaint in support of its action for failure to fulfil obligations is well founded.
The third complaint, alleging failure to apply Directive 85/337 to demolition works
Arguments of the parties
86 In the Commission's submission, demolition works may constitute a ‘project' within the meaning of Article 1(2) of Directive 85/337, since they fall within the concept of ‘other interventions in the natural surroundings and landscape'. However, in the PDR, Ireland purported to exempt nearly all demolition works from the obligation to carry out an environmental impact assessment. After the end of the two-month period laid down in the additional reasoned opinion of 29 June 2007, Ireland admittedly notified the Commission of new legislation, which amended the PDR by significantly narrowing the scope of the exemption for demolition works. However, that legislation cannot, the Commission submits, be taken into account in the present infringement action.
87 The Commission claims that Ireland's interpretation that demolition works fall outside the scope of the directive is reflected in the NMA, and refers in that regard to sections 14, 14A and 14B of that Act which relate to the demolition of a national monument.
88 By way of illustration of how, in contravention of Directive 85/337, the exclusion of demolition works allowed, by virtue of section 14A of the NMA, a national monument to be demolished without an environmental impact assessment being undertaken, the Commission cites the ministerial decision of 13 June 2007 ordering the destruction of a national monument in order to permit the M3 motorway project to proceed.
89 As a preliminary point, Ireland objects that the Commission's third complaint is, in so far as it concerns section 14 of the NMA, inadmissible, since that provision was not mentioned in the additional reasoned opinion of 29 June 2007.
90 In Ireland's submission, demolition works do not fall within the scope of Directive 85/337, since they are not mentioned in Annex I or II thereto. In addition, Ireland submits that section 10 of the PDA and Article 9 of the PDR, when read together, make clear that the exemption from the obligation to obtain planning permission in respect of demolition works can apply only if the project is unlikely to have significant effects on the environment.
91 As regards the obligation to carry out further assessments, Ireland argues that the essence of Directive 85/337 is that the environmental impact assessment be carried out at the earliest possible stage, before the development starts. The only occasion when it is ever necessary to carry out a fresh assessment is, in accordance with the first indent of point 13 in Annex II to the directive, where the development project has been changed or extended.
92 With regard to the scope of ministerial directions issued under section 14A of the NMA, Ireland states that that provision applies only in the context of a road development previously approved by the Board, on the basis of an environmental impact assessment. Only the Board may authorise an alteration to a road development and it must in such a case assess whether that alteration is likely to have adverse environmental consequences. In those circumstances, the Minister's power to issue ministerial directions cannot be equated with the giving of consent for the motorway project. Those directions are issued only, if at all, following the commencement of the development works and the discovery of a new national monument and are designed only to regulate how the newly discovered national monument is to be dealt with. Also, Ireland denies that a ministerial decision was taken ordering the destruction of a national monument in order to allow the M3 motorway project to proceed.
Findings of the Court
- Admissibility of the third complaint
93 According to the Court's settled case law, the subject-matter of proceedings brought under Article 226 EC is delimited by the administrative pre-litigation procedure governed by that article and the application must be founded on the same grounds and pleas as those stated in the reasoned opinion (see, in particular, Case C 340/02 Commission v France [2004] ECR I 9845, paragraph 26 and the case law cited).
94 In this case, it is clear from the wording of the additional reasoned opinion of 29 June 2007 that the Commission, in paragraphs 2.34 to 2.38 thereof, complained that Ireland had excluded demolition works from the scope of the national legislation transposing Directive 85/337. In paragraphs 2.39 and 2.40 of the same opinion, the Commission stated that Ireland's interpretation of that directive was reflected not only in the PDA, but also in other more specific legislative provisions, such as the NMA, and it took as an example the carrying-out of the M3 motorway project.
95 It follows that, while the Commission did not expressly refer to section 14 of the NMA in that reasoned opinion, it none the less referred clearly to the decision making mechanism laid down by that section as part of its analysis of the deficiencies which, in its submission, that Act entails.
96 In those circumstances, Ireland's plea of inadmissibility against the Commission's third complaint must be rejected.
- Substance
97 As regards the question whether demolition works come within the scope of Directive 85/337, as the Commission maintains in its pleadings, or whether, as Ireland contends, they are excluded, it is appropriate to note, at the outset, that the definition of the word ‘project' in Article 1(2) of that directive cannot lead to the conclusion that demolition works could not satisfy the criteria of that definition. Such works can, indeed, be described as ‘other interventions in the natural surroundings and landscape'.
98 That interpretation is supported by the fact that, if demolition works were excluded from the scope of that directive, the references to ‘the cultural heritage' in Article 3 thereof, to ‘landscapes of historical, cultural or archaeological significance' in point 2(h) of Annex III to that directive and to ‘the architectural and archaeological heritage' in point 3 of Annex IV thereto would have no purpose.
99 It is true that, under Article 4 of Directive 85/337, for a project to require an environmental impact assessment, it must come within one of the categories in Annexes I and II to that directive. However, as Ireland contends, they make no express reference to demolition works except, irrelevantly for the purposes of the present action, the dismantling of nuclear power stations and other nuclear reactors, referred to in point 2 of Annex I.
100 However, it must be borne in mind that those annexes refer rather to sectoral categories of projects, without describing the precise nature of the works provided for. As an illustration it may be noted, as did the Commission, that ‘urban development projects' referred to in point 10(b) of Annex II often involve the demolition of existing structures.
101 It follows that demolition works come within the scope of Directive 85/337 and, in that respect, may constitute a ‘project' within the meaning of Article 1(2) thereof.
102 According to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation in that Member State as it stood at the end of the period laid down in the reasoned opinion (see, in particular, Case C-427/07 Commission v Ireland, paragraph 64 and the case law cited).
103 Ireland does not deny that, under the national legislation in force at the date of the additional reasoned opinion, demolition works were not subject, as a general rule, to an environmental impact assessment but, on the contrary, were entitled to an exemption in principle.
104 It is clear from the rules laid down in sections 14 to 14B of the NMA as regards the demolition of a national monument that, as the Commission claims, they take no account of the possibility that such demolition works might constitute, in themselves, a ‘project' within the meaning of Articles 1 and 4 of Directive 85/337 and, in that respect, require a prior environmental impact assessment. However, since the insufficiency of that directive's transposition into the Irish legal order has been established, there is no need to consider what that legislation's actual effects are in the light of the carrying-out of specific projects, such as that of the M3 motorway.
105 As regards the legislative changes subsequent to the action for failure to fulfil obligations being brought, they cannot be taken into consideration by the Court (see, in particular, Case C-427/07 Commission v Ireland, paragraph 65 and the case law cited).
106 In those circumstances, the Commission's third complaint in support of its action must be held to be well founded.
107 Accordingly, it must be declared that:
- by failing to transpose Article 3 of Directive 85/337;
- by failing to ensure that, where planning authorities and the Agency both have decision-making powers concerning a project, there will be complete fulfilment of the requirements of Articles 2 to 4 of that directive; and
- by excluding demolition works from the scope of its legislation transposing that directive,
Ireland has failed to fulfil its obligations under that directive.
Costs
108 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. Since the Commission has applied for costs and Ireland has been unsuccessful the latter must be ordered to pay the costs.
On those grounds, the Court (First Chamber) hereby:
1. Declares that:
- by failing to transpose Article 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 Council Directive 97/11/EC of 3 March 1997 and by Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003;
- by failing to ensure that, where Irish planning authorities and the Environmental Protection Agency both have decision-making powers concerning a project, there will be complete fulfilment of the requirements of Articles 2 to 4 of Directive 85/337, as amended by Directive 2003/35; and
- by excluding demolition works from the scope of its legislation transposing Directive 85/337, as amended by Directive 2003/35,
Ireland has failed to fulfil its obligations under that directive;
2. Orders Ireland to pay the costs.
[Signatures]
________________________________________
* Language of the case: English.

The court in Luxembourg has ruled that every county in the Republic, with the exception of County Cavan, has failed to comply with the 1975 EU Waste Directive governing septic tanks and other treatment systems.
The government had argued that Irish legislation was sufficient to regulate domestic waste water systems, and that there was no need to transpose the EU directive into Irish law. But the EU court dismissed the claim, concluding that Ireland had failed to meet its legal obligations.

Under the EU Waste Framework Directive domestic waste water involving septic tanks or other individual waste water treatment must be recovered or disposed of without endangering human health or the environment. In October 2009, the EU Court of Justice (ECJ) ruled that Ireland had not adopted adequate measures to comply with this requirement. Irish legislation lacks in particular systematic periodic checks and inspections.

Following the Court judgement, Ireland was required to adopt the necessary legislation, which ought to have been in place by April 1993. Despite an earlier warning from the Commission (see IP/10/1582), Ireland is still in the process of preparing these measures. While the Commission has recently seen some positive steps taken, it is not satisfied with the slow pace of progress in complying with the requirements of the ECJ judgment.It is therefore referring Ireland back to the Court and asking for a lump-sum fine of €2.7 million and a daily penalty payment of €26,173 as long as the infringement persists after the second Court ruling.


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JUDGMENT OF THE COURT (Second Chamber)

29 October 2009

(Failure of a Member State to fulfil obligations - Directive 75/442/EEC - Waste - Domestic waste waters discharged through septic tanks in the countryside - Waste not covered by other legislation - Failure to transpose)

In Case C-188/08,

ACTION under Article 226 EC for failure to fulfil obligations, brought on 6 May 2008,

Commission of the European Communities, represented by S. Pardo Quintillán, D. Lawunmi and M. Wilderspin, acting as Agents, with an address for service in Luxembourg,

applicant,

v

Ireland, represented by D. O'Hagan, acting as Agent, with an address for service in Luxembourg,

defendant,

THE COURT (Second Chamber),

composed of J.C. Bonichot (Rapporteur), President of the Fourth Chamber, acting as President of the Second Chamber, C.W.A. Timmermans, K. Schiemann, P. Kuris and L. Bay Larsen, Judges,

Advocate General: J. Kokott,

Registrar: R. Grass,

having regard to the written procedure,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 By its action, the Commission of the European Communities requests the Court to declare that, by failing fully and correctly to transpose into its domestic legislation the requirements of Articles 4 and 8 of Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39), as amended by Council Directive 91/156/EEC of 18 March 1991 (OJ 1991 L 78, p. 32; ‘Directive 75/442'), relating to the disposal of domestic waste waters in the countryside through septic tanks and other individual waste water treatment systems (‘IWWTS'), Ireland has failed to fulfil its obligations under that directive.

Legal framework

Community law

2 Article 1 of Directive 75/442 provides:

‘For the purposes of this Directive:

(a) "waste" shall mean any substance or object in the categories set out in Annex I which the holder discards or intends or is required to discard.

...

(d) "management" shall mean the collection, transport, recovery and disposal of waste, including the supervision of such operations and after-care of disposal sites;

...'

3 Article 2(1) of Directive 75/442 provides:

‘The following shall be excluded from the scope of this Directive:

...

(b) where they are already covered by other legislation:

...

(iv) waste waters, with the exception of waste in liquid form;

...'

4 Article 4 of Directive 75/442 is worded as follows:

‘Member States shall take the necessary measures to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment, and in particular:

- without risk to water, air, soil and plants and animals,

- without causing a nuisance through noise or odours,

- without adversely affecting the countryside or places of special interest.

Member States shall also take the necessary measures to prohibit the abandonment, dumping or uncontrolled disposal of waste.'

5 Article 8 of Directive 75/442 provides:

‘Member States shall take the necessary measures to ensure that any holder of waste:

- has it handled by a private or public waste collector or by an undertaking which carries out the operations listed in Annex II A or B, or

- recovers or disposes of it himself in accordance with the provisions of this Directive.'

6 Article 13 of Directive 75/442 is worded as follows:

‘Establishments or undertakings which carry out the operations referred to in Articles 9 to 12 shall be subject to appropriate periodic inspections by the competent authorities.'

7 Directive 75/442 was subsequently codified by Directive 2006/12/EC of the European Parliament and of the Council of 5 April 2006 on waste (OJ 2006 L 114, p. 9).

National law

The Public Health (Ireland) Act, 1878

8 Section 108 of the Public Health (Ireland) Act, 1878 requires the competent authorities to inspect for and abate nuisances which could be injurious to health. It applies to ‘any pool, ditch, gutter, watercourse, privy, urinal, cesspool, drain or ashpit so foul or in such a state as to be a nuisance or injurious to health'. It confers on those authorities enforcement powers, which can be coupled with a daily fine, and power to undertake, themselves, the necessary remedial measures and to recover the costs thereof from the owner.

The Local Government (Water Pollution) Acts, 1977 and 1990

9 Section 3(1) of the Local Government (Water Pollution) Act, 1977, as amended by the Local Government (Water Pollution) (Amendment) Act, 1990 (‘the Local Government (Water Pollution) Acts, 1977 and 1990'), prohibits water pollution and makes any contravention of that prohibition subject to criminal sanctions. Section 3(3) thereof provides a defence to a charge of committing such an offence if the accused ‘prove[s] that he took all reasonable care to prevent the entry to waters to which the charge relates by providing, maintaining, using, operating and supervising facilities, or by employing practices or methods of operation, that were suitable for the purpose of such prevention'.

10 Section 3(5) of the Local Government (Water Pollution) Act, 1977 provides for exceptions to the prohibition on pollution under section 3(1). Thus, the First Schedule to the Local Government (Water Pollution) Regulations, 1978 contains an exemption as regards ‘domestic sewage not exceeding five cubic metres in any 24 hour period which is discharged to an aquifer from a septic tank or any other disposal unit by means of a percolation area, soaking pit or any other method'.

11 Local authorities have powers of inspection, investigation and enforcement in cases of infringement of section 3 of the Local Government (Water Pollution) Acts, 1977 and 1990.

The Building Control Acts 1990-2007 and additional provisions

12 Under the Building Control Acts 1990-2007 new Building Regulations have, since June 1992, governed the construction of new buildings. To be considered compliant with those Regulations building projects must comply with the rules contained in 12 Technical Guidance Documents published by the Irish Department of the Environment, Heritage and Local Government.

13 Part H of the Building Regulations and Technical Guidance Document H include requirements for septic tanks. Part H 2 of the regulations requires a septic tank to be:

‘(a) of adequate capacity and so constructed that it is impermeable to liquids;

(b) adequately ventilated; and

(c) so sited and constructed that -

(i) it is not prejudicial to the health of any person,

(ii) it does not pollute, so as to endanger public health, any water (including ground water) which is used as a source of supply for human consumption,

...'

14 Technical Guidance Document H refers to Standard S.R. 6 of 1991 of the National Standards Authority of Ireland entitled, ‘Recommendations for Domestic Effluent Treatment and Disposal from a Single Dwelling House'. That is the standard in Ireland in respect of septic tanks. It was brought to the notice of local authorities by Circular No 1/92 of 8 January 1992 from the Department of the Environment, Heritage and Local Government. In addition, Standard I.S. EN 12566-3:2005 has, since its entry into force on 1 July 2009, governed ‘proprietary' systems.

15 Part D of the Building Regulations provides that works must be carried out in a workmanlike manner and materials used must be suitable for the purpose for which they are used. Innovative materials or systems, such as waste water treatment systems, must have approval from the Irish Agrément Board or ‘equivalent' certification from an approval body in a Member State.

16 The 37 local Building Control Authorities are responsible for enforcement of the Building Regulations.

The Planning and Development Acts 2000-2006

17 Under the Planning and Development Acts 2000-2006 prior planning permission is required for the installation of any new IWWTS. That may be granted only if the project complies with the corresponding development plan (section 34(2)(a)(i) of the Planning and Development Act 2000).

18 The Department of the Environment, Heritage and Local Government subsequently published Circular SP 5/03 of 31 July 2003. It addresses three subjects: the quality and use of information in development plans; the assessment of sites and of the design, installation and maintenance of septic tanks; and the necessity for suitable follow-up mechanisms (inspections, databases, tests). So far as the assessment of sites and of the design of septic tanks is concerned, that circular envisages the replacement, in Technical Guidance Document H, of Standard S.R.6:1991 by an updated version of the Manual on Treatment Systems for Single Houses, published in 2000 by the Environmental Protection Agency (‘the EPA Manual').

19 The following have also been adopted:

- the Sustainable Rural Housing Guidelines of 2005, adopted under section 28 of the Planning and Development Act 2000, which were amended by the Development Plan and Development Management Guidelines 2007. Paragraph 4.5 of the 2005 guidelines repeats the recommendations of Circular SP 5/03. Those recommendations also note the importance of providing new developments with proper waste water treatment and disposal facilities;

- development plans and local area plans, which provide the framework for the grant of planning permissions. Development plans must include the objectives of section 10(2) of the Act, that is to say, in particular, the conservation and protection of the environment under paragraph (c), sustainable development under paragraph (d) and the preservation of the character of the landscape under paragraph (e).

20 Finally, section 31 of the Planning and Development Act 2000 enables the Minister for the Environment to direct local authorities to make development plans comply with the Planning Acts.

County Cavan's 2004 Bye-Laws relating to water pollution

21 The Local Government Code of 2001 confers on local authorities the option of making bye-laws which are mandatory, but in a limited locality. Within that framework, County Cavan adopted the Water Pollution (Wastewater Treatment Systems for Single Houses) Bye-Laws, 2004 (‘the 2004 Bye-Laws'), which implement a complete system of ‘management' of waste water from all IWWTS, old and new.

22 Section 1.6 of the 2004 Bye-Laws requires every waste water treatment system to comply with the EPA Manual and its updated versions. Under section 2.1, IWWTS must function properly and be of sufficient capacity.

23 In addition, section 6.1 provides that inspections must be carried out by a competent person at least every seven years.

24 Finally, section 2.4 enables the competent authorities to require temporary measures to be taken and section 8.1 makes any contravention of the 2004 Bye-Laws a criminal offence.

Pre-litigation procedure

25 Following a complaint relating to odours from an urban waste water treatment plant, the Commission, on 18 October 2002, sent Ireland a letter of formal notice, since it considered that Ireland should have transposed Directive 75/442 as regards some aspects of the management of that waste such as odours, not regulated by Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment (OJ 1991 L 135, p. 40). The Commission then issued, on 11 July 2003, a reasoned opinion on the same complaint.

26 In an additional letter of formal notice dated 19 December 2003, the Commission maintained that Ireland, which relied on the exclusion under Article 2(1)(b) of Directive 75/442, had cited no existing legislation, Community or national, which would justify the absence of specific provision transposing that directive as regards odours from urban waste water treatment plants. The Commission also extended its action to domestic waste waters disposed of in the countryside through IWWTS, on the ground that, since no national legislation organised the management of such waste, Ireland had failed to fulfil its obligations to transpose Articles 4 and 7 to 14 of that directive.

27 On 22 December 2004, the Commission sent Ireland an additional reasoned opinion repeating the previous complaints, concluding that Ireland had infringed its obligations under Directive 75/442 and requesting it to rectify the infringement within a period of two months from the receipt of that opinion.

28 The Commission, taking account of the enactment, at the end of 2005, of new legislation on odours from urban waste water treatment plants, abandoned the complaint on that point.

29 On the other hand, since it considered that the situation continued to be unsatisfactory as regards domestic waste waters from septic tanks and other IWWTS in the countryside or in small agglomerations, Ireland having failed, to that extent, to transpose Articles 4 and 7 to 14 of Directive 75/442, the Commission decided to bring the present action.

The action

The applicability of Directive 75/442 and the scope of the action for failure to fulfil obligations

30 Ireland denies that Directive 75/442 applies to domestic waste waters disposed of through IWWTS in the countryside.

Arguments of the parties

31 In Ireland's submission, waste waters covered by the present action are not ‘waste' within the meaning of Directive 75/442 because they are not in the ‘list of wastes belonging to the categories listed in Annex I' adopted by the Commission under Article 1(a) in accordance with the procedure referred to in Article 18 of that directive. It also challenges the relevance of the headings in the nomenclature cited by the Commission. Ireland also draws attention to the practical difficulties which the classification of such waste waters as ‘waste' would involve, since it is confronted with the management of 400 000 dwellings scattered in the countryside. It submits also that the 5th, 6th, 10th and 12th recitals in the preamble to Directive 75/442 indicate that it does not cover IWWTS.

32 The Commission denies that the preamble to Directive 75/442 can be indicative of the Community legislature's intention to include or not to include certain waste in the directive's scope by the mere fact that it is or is not expressly referred to. It argues that Annex I to that directive is very broad in scope. It submits, citing several headings in the nomenclature, that the ‘list of wastes' covers waste waters from septic tanks and other IWWTS. It points out also that waste waters are specifically referred to in Article 2 of the directive and that the Court's case-law confirms the inclusion, in certain circumstances, of waste waters in its scope, the Commission referring in that regard to Case C-114/01 AvestaPolarit Chrome [2003] ECR I-8725 and Case C-252/05 Thames Water Utilities [2007] ECR I-3883. It submits also that the difference between the text of Directive 75/442 in its original version and that following the amendments inserted by Directive 91/156 indicates, rather, the Community legislature's intention not to exclude waste waters from the scope of Directive 75/442.

Findings of the Court

33 It follows from settled case-law that both Annex I to Directive 75/442 and the list of wastes included in Commission Decision 2000/532/EC of 3 May 2000 (‘the European Waste Catalogue'), adopted pursuant to Article 1 of that directive, are only indicative (see, to that effect, Case C-9/00 Palin Granit and Vehmassalon kansanterveystyon kuntayhtyman hallitus [2002] ECR I-3533, paragraph 22; Case C-1/03 Van de Walle and Others [2004] ECR I-7613, paragraph 42; and Thames Water Utilities, paragraph 24). It follows that the mere fact that waste waters are not included in the European Waste Catalogue does not mean that they cannot be classified as waste.

34 Moreover, the Court held in paragraph 26 of the judgment in Thames Water Utilities that it is clear from Article 2(1)(b)(iv) of Directive 75/442 that the Community legislature intended expressly to classify waste waters as ‘waste' within the meaning of the directive, while providing that that waste may, in certain circumstances, escape its scope and come within that of other legislation.

35 It is clear from the foregoing that waste waters covered by the present action are ‘waste' within the meaning of Directive 75/442, regardless of whether or not they are included in the European Waste Catalogue.

36 However, it is appropriate, first, to note that the Commission, taking into account the fact that Community legislation other than Directive 75/442, namely Directive 91/271 concerning urban waste-water treatment and Council Directive 80/68/EEC of 17 December 1979 on the protection of groundwater against pollution caused by certain dangerous substances (OJ 1980 L 20 p. 43), governs, in part, waste waters and IWWTS, limited the scope of its action to domestic waste waters disposed of in the countryside through IWWTS.

37 Secondly, it should be acknowledged that the Commission, in its reply, expressly abandoned the complaints relating to inadequate transposition of Articles 7 and 9 to 14 of Directive 75/442, thus limiting the subject-matter of its action to the incorrect transposition of Articles 4 and 8 thereof. The Commission also accepted that County Cavan's 2004 Bye-Laws constitute ‘other legislation' within the meaning of Article 2(1)(b) of that directive and, consequently, also excluded that county from the subject-matter of its action.

38 It follows from the foregoing that the present action seeks a declaration that Ireland has failed to fulfil its obligations under Directive 75/442 solely in so far as, with the exception of County Cavan, it has failed to transpose Articles 4 and 8 of that directive as regards domestic waste waters disposed of in the countryside through IWWTS.

The failure to fulfil obligations

Arguments of the parties

39 The Commission notes the existence, throughout Ireland, of serious shortcomings which are capable of adversely affecting the environment and which it considers are linked to deficiencies, such as incorrect construction, unsuitable siting, insufficient capacities, maintenance and inspection and the inactivity of the competent administrative authorities.

40 It submits, by reference to paragraph 37 of the judgment in Case C-135/05 Commission v Italy [2007] ECR I-3475, that whilst it cannot, as a rule, be directly inferred from the fact that a situation is not in conformity with the objectives laid down in Article 4 of Directive 75/442 that the Member State concerned has necessarily failed to fulfil its obligations under that provision, if that situation persists and leads, in particular, to a significant deterioration in the environment over a protracted period without any action being taken by the competent authorities, it may nevertheless be an indication that the Member State has exceeded its discretion.

41 The Commission submits that it has provided strong evidence of the existence, in Ireland, of serious damage to the environment in connection with the use of septic tanks, without denial in that regard by Ireland. It also points out that Irish legislation, older and more recent, has not led to any amelioration of the situation in that respect.

42 The Commission therefore claims that the Court should hold that the disposal of domestic waste waters in the countryside through septic tanks and other IWWTS is not covered in Ireland by ‘other legislation', either Community or national, within the meaning of Article 2(1)(b) of Directive 75/442, with the exception of County Cavan's 2004 Bye-Laws, and that Ireland should have adapted its national law to meet all the obligations arising from Articles 4 and 8 of that directive.

43 Ireland contends that, contrary to the Commission's claim, the existing national legal instruments fully meet the requirements of Directive 75/442.

44 It submits that the Commission's reasoning in support of the assertion that the national law in force has not enabled pollution to be reduced in practice, like the arguments which the Commission devotes to water pollution in Ireland, is outside the scope of the present action. In any event, the Commission has not proved a link between the use of septic tanks and other IWWTS and groundwater pollution.

Findings of the Court

45 Where waste waters are already covered by other legislation Article 2(1)(b)(iv) of Directive 75/442 does not apply to them, except for waste in liquid form.

46 It follows from the very wording of that provision, just as it does from the objectives of Directive 75/442, that waste waters which must be regarded as waste fall outside the legal regime under the directive only where, and to the extent that, they are governed by ‘other legislation' within the meaning of that directive, that is to say by Community or national legislation which contains precise provisions organising the management of waste and ensures a level of protection which is at least equivalent to that resulting from Directive 75/442 and, more particularly, from Articles 4, 8 and 15 thereof (see, to that effect, Thames Water Utilities, paragraph 34).

47 As the Commission points out, Ireland admits to not having expressly and specifically transposed Directive 75/442 as regards waste waters but submits that Irish law as a whole ensures compliance with all the obligations arising from that directive.

48 It must be examined, therefore, whether it can be held that there is in Ireland ‘other legislation' within the meaning of Directive 75/442 which ensures the protection of the environment as regards waste waters.

49 The requirements of Directive 75/442 relevant in this case are contained in its Article 4, which provides that Member States are to take the necessary measures to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment, and Article 8, which requires Member States to take the necessary measures to ensure that any holder of waste has it handled by a private or public waste collector or by an undertaking which carries out the operations of disposal or recovery listed in Annexes IIA and IIB respectively to that directive, or recovers or disposes of it himself in accordance with the provisions thereof.

50 Those articles thus cover without distinction ‘any holder of waste' and Article 4 concerns all ‘processes or methods which could harm the environment'. Those provisions therefore necessarily cover waste from all IWWTS constructed before or after the entry into force of Directive 75/442. Consequently, for waste waters to escape the application of that directive ‘other legislation' within the meaning of Article 2(1)(b) must apply to all domestic waste waters disposed of in the countryside.

51 The objectives of Directive 75/442 are the protection of human health and of the environment, as is made clear, first, in the third recital in its preamble, in the terms of which ‘the essential objective of all provisions relating to waste disposal must be the protection of human health and the environment against harmful effects caused by the collection, transport, treatment, storage and tipping of waste', and, second, in Article 4 of that directive.

52 Thus, in order to implement effectively the objectives of, and a level of protection equivalent to that resulting from, Directive 75/442, ‘other legislation' within the meaning of Article 2(1)(b) thereof must, taking account of the particularities of the management of a given category of waste and possibly taking as its inspiration the detailed provisions and rules under that directive, contain specific provisions with the object of preventing the adverse effects on the environment or human health which could be caused by that waste.

53 As regards domestic waste waters from IWWTS, one of the relevant detailed rules resides, as the Commission recognises, in the implementation of an appropriate system of monitoring the management of that waste, involving, in particular, regular inspection by the competent authorities of the functioning and maintenance of IWWTS.

54 As regards, first, the possible existence at Community level of ‘other legislation' within the meaning of Article 2(1)(b) of Directive 75/442, the Commission's action as finally pleaded does not cover waste waters and IWWTS covered by Directives 91/271 and 80/68, which do not apply to the disposal of domestic waste waters in the countryside through septic tanks and other IWWTS. Those directives cannot therefore constitute ‘other legislation' within the meaning of Directive 75/442.

55 In the absence of ‘other legislation' at Community level, national legislation may also constitute ‘other legislation' within the meaning of Article 2(1)(b) of Directive 75/442 (see, to that effect, AvestaPolarit Chrome, paragraphs 49 to 51).

56 As regards, secondly, possible ‘other legislation' on the national level, it need not necessarily correspond to a single provision organising the management of the waste concerned, but may consist in a number of complementary provisions each covering part of the scope of Directive 75/442, provided that it also fulfils the requirements set out in paragraph 46 of the present judgment.

57 It should however be pointed out that the question whether a Member State has failed to fulfil its obligations must 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, among others, Case C-64/01 Commission v Greece [2002] ECR I-2523, paragraph 7, and Case C-456/05 Commission v Germany [2007] ECR I-10517, paragraph 15). Therefore, a provision which entered into force after the end of that period cannot properly be relied upon in the defence of an action for failure to fulfil obligations.

58 Thus, in this case, the Water Services Act 2007, which had not been enacted or entered into force at the end of the period laid down in the reasoned opinion, cannot properly be relied upon by Ireland in the present action. The same applies to Standard I.S. EN 12566-3:2005, relating to ‘proprietary' systems, which, according to Ireland itself, did not enter into force until 1 July 2009.

59 It follows that the existence at national level of ‘other legislation' within the meaning of Article 2(1)(b) of Directive 75/442 can arise, in the framework of the present action, only from the provisions, possibly complementary, of four groups of acts enacted before the end of the period laid down in the reasoned opinion, namely the Public Health (Ireland) Act, 1878, the Local Government (Water Pollution) Acts, 1977 and 1990, the Building Control Acts 1990-2007 and the Planning and Development Acts 2000-2006.

60 It must therefore be examined whether the rules laid down by those various provisions, first, cover domestic waste waters in the countryside and, second, ensure the realisation of the objectives of Directive 75/442, particularly by establishing sufficient measures of inspection.

61 It should, first of all, be examined whether the scope of those provisions covers the treatment and disposal of domestic waste waters in the countryside sufficiently precisely.

62 The Public Health (Ireland) Act, 1878 does not, at first sight, apply to septic tanks and other IWWTS, since the list of sources of nuisance it covers does not include such systems. While the mere fact that it predates the advent of the techniques implemented in those systems makes it impossible to state that it applies to them, Ireland has not made clear whether it could have been applied to the constructions concerned.

63 The Building Control Acts 1990-2007 apply only to IWWTS constructed after their entry into force, that is since 1992.

64 Likewise, the scope of the Planning and Development Acts 2000-2006 is limited to IWWTS constructed after their entry into force, that is after 2000. Ireland has not, in that regard, shown that other legislation covered earlier installations sufficiently precisely.

65 Finally, as regards the Local Government (Water Pollution) Acts, 1977 and 1990, since they prohibit water pollution without reference to the pollution's origin, they apply to domestic waste waters in the countryside and to all IWWTS. However, the exception under those acts for discharges of domestic sewage not exceeding five cubic metres per day is likely to exclude from its scope many IWWTS covered by the present action.

66 The same provisions should, secondly, be analysed with regard to the objectives pursued by Directive 75/442.

67 The Public Health (Ireland) Act, 1878 applies to nuisances which could be injurious to health. It is not therefore limited, contrary to the Commission's submission, only to the unpleasantness referred to in the second indent of the first paragraph of Article 4 of that directive, that is to say noise and odours. However, that act does not refer to the protection of the environment.

68 The objective of the Local Government (Water Pollution) Acts, 1977 and 1990 is limited to the protection of water. That concern could be relevant, in Ireland's submission, as regards certain aspects of the protection of human health and of the environment, in particular because of the protection of underground waters used for human consumption, but that protection, by itself, is insufficient in the light of the broader objective pursued by Directive 75/442.

69 On the other hand, contrary to the Commission's submission, the prohibition of pollution under that legislation is sufficiently mandatory, since contraventions of its requirements are subject to criminal sanctions and the cases of exemption from criminal sanctions are limited.

70 The Building Control Acts 1990-2007 directly protect only human health and water which may be used for human consumption, without reference to the other elements of the environment. In order to attain that objective, that legislation covers the construction of septic tanks by reference to Standard S.R.6:1991. But that reference does not mean that the legislation can attain the general high level of safety required by Directive 75/442. The Commission points out, in that regard, that that standard is not suited to the geological and soil characteristics generally found in Ireland, and Ireland, for its part, implicitly recognises the inadequacy of that standard by stating, in its rejoinder, that it will not in future refer to it.

71 Finally, under the Planning and Development Acts 2000-2006, a person wishing to obtain planning permission must provide the competent authority with certain information relating to the installation of an IWWTS.

72 In that regard, it is appropriate to point out, first, that the information in the light of which such permission is granted is, as the Commission acknowledged in its reply, full and relevant, thus enabling the competent authority to give its decision with appropriate knowledge of the case.

73 Secondly, the Commission no longer challenges, in its reply, the binding nature of the development plan for the authority responsible for granting planning permissions. While Ireland implicitly recognises the non-binding nature of the Sustainable Rural Housing Guidelines of 2005 and the Development Plan and Development Management Guidelines 2007, since it states, in its rejoinder, its intention to make them mandatory, the Commission admits in its pleadings that development plans must take account of the objectives defined in section 10(2) of the Planning and Development Act 2000, which refers specifically to the ‘objectives of conservation and protection of the environment'. However, as the Commission maintains, that provision does not cover all the objectives of Article 4 of Directive 75/442 since it makes no reference to human health.

74 Thirdly, the standards in force before the end of the period laid down in the reasoned opinion, in the light of which planning permissions were granted, did not ensure a level of environmental and human health protection as high as that pursued by Directive 75/442. Indeed, as stated in paragraph 70 of the present judgment, Standard S.R.6:1991 relating to septic tanks is not suited to the geological and soil characteristics of most of Ireland.

75 Fourthly, the code constituted by the updated version of the EPA Manual, the relevance of which is admitted by the Commission in the final state of its pleadings, is still not mandatory for the authority responsible for granting planning permission. Likewise, the recommendations in Circular SP 5/03 do not have the indisputable binding force necessary for the effective application of Community law, as the Commission maintains in its action by also drawing attention to the numerous cases of non-compliance, on the facts, with that circular.

76 Finally, it is appropriate to examine whether the legislation upon which Ireland relies ensures a satisfactory system of inspection of the efficacy of IWWTS.

77 So far as concerns the implementation of systems of inspection permitting effective compliance with the objectives of Directive 75/442, it is common ground that settlement in Ireland is, in a substantial part of its territory, scattered, consisting of numerous isolated individual dwellings, not connected to collective sewage treatment systems, which entails almost systematic recourse to individual septic tanks. According to consistent figures presented by Ireland and by the Commission, there are about 400 000 septic tanks in that Member State.

78 However, it does not in the least follow that the implementation of an adequate system of assessment and checking of IWWTS is impossible. The Commission recognises indeed, in that respect, that County Cavan's 2004 Bye-Laws, which require inspections at least every seven years, are sufficient with regard to the objectives pursued by Directive 75/442.

79 The Public Health (Ireland) Act, 1878 confers on the authorities appropriate powers and imposes on them an inspection obligation corresponding, as the Commission accepts, to the level of safety required by that directive. Likewise, contrary to the impression given by the Commission, the extent of the powers delegated to the authorities by the Building Control Acts 1990-2007 and the existence of minimum standards of inspection are such as reasonably to guarantee the effectiveness of that legislation in the light of the particular constraints prevailing in Ireland.

80 The competent authorities' powers under the Local Government (Water Pollution) Acts, 1977 and 1990 and the Planning and Development Acts 2000-2006 are adequate, which the Commission does not deny. However, they are not exercised within the framework of a system of checks guaranteeing, for example by means of regular inspections at intervals appropriate to the situation in Ireland, a level of protection equivalent to that which Directive 75/442 is intended to achieve. Thus, as the Commission maintains, the intervention of the Minister for the Environment under section 31 of the Planning and Development Act 2000 is only discretionary. The circumstance asserted by Ireland that the Minister systematically examines, in practice, the compliance of development plans with that act cannot guarantee, with indisputable binding force, the mandatory nature of that intervention.

81 It must, consequently, be held that the Public Health (Ireland) Act, 1878 neither applies, at first sight, to IWWTS nor satisfies, in any event, the objectives of Directive 75/422, that the Local Government (Water Pollution) Acts, 1977 and 1990 do not provide for an appropriate system of inspection, that the Building Control Acts 1990-2007 apply only to IWWTS built after 1992 and do not guarantee that they conform to the objectives of Directive 75/442, and that the Planning and Development Acts 2000-2006 apply only to IWWTS built after 2000, they subject the construction of septic tanks to rules which are not suited to the objectives of the directive and they do not provide for an appropriate system of inspection.

82 It follows from all the foregoing that the provisions upon which Ireland relies, even taken in their entirety, do not constitute ‘other legislation' within the meaning of Article 2(1)(b) of Directive 75/442, since, in particular, they only partially implement procedures which ensure that the objectives pursued by that directive are effectively realised.

83 Consequently, Ireland cannot validly maintain that the existence of ‘other legislation' within the meaning of Article 2(1)(b) of Directive 75/442 relieved it of the obligation to adopt the provisions necessary to transpose fully Articles 4 and 8 thereof.

84 In the absence of such transposition, the Commission's action must be upheld.

85 Accordingly, it must be held that, by failing to adopt, save in County Cavan, all the laws, regulations and administrative provisions necessary to comply with Articles 4 and 8 of Directive 75/442 as regards domestic waste waters disposed of in the countryside through septic tanks and other IWWTS, Ireland has failed to fulfil its obligations under that directive.

Costs

86 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. Further, under Article 69(5) thereof, a party who discontinues proceedings is to be ordered to pay the costs if they have been applied for in the other party's observations on the discontinuance. As the Commission, in its reply, partly discontinued its action, and as Ireland, in its rejoinder, applied for costs against the Commission, it is appropriate to order Ireland to pay three quarters of the Commission's costs and to order that, as for the remainder, each party shall bear its own costs.

On those grounds, the Court (Second Chamber) hereby:

1. Declares that, by failing to adopt, save in County Cavan, all the laws, regulations and administrative provisions necessary to comply with Articles 4 and 8 of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC of 18 March 1991, as regards domestic waste waters disposed of in the countryside through septic tanks and other individual waste water treatment systems, Ireland has failed to fulfil its obligations under that directive;

2. Orders Ireland to pay three quarters of the costs of the Commission of the European Communities and to bear its own costs;

3. Orders the Commission of the European Communities to bear one quarter of its own costs.

[Signatures]

* Language of the case: English.

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JUDGMENT OF THE COURT (Second Chamber)
16 July 2009 (*)
(Failure of a Member State to fulfil obligations - Assessment of the effects of projects on the environment - Directive 85/337/EEC - Access to justice - Directive 2003/35/EC)
In Case C 427/07,
ACTION under Article 226 EC for failure to fulfil obligations, brought on 14 September 2007,
Commission of the European Communities, represented by D. Recchia, P. Oliver and J.-B. Laignelot, acting as Agents, with an address for service in Luxembourg,
applicant,
v
Ireland, represented by D. O'Hagan, acting as Agent, and M. Collins SC, and D. McGrath BL, with an address for service in Luxembourg,
defendant,
THE COURT (Second Chamber),
composed of C.W.A. Timmermans, President of the Chamber, J. C. Bonichot, K. Schiemann, J. Makarczyk (Rapporteur) and C. Toader, Judges,
Advocate General: J. Kokott,
having regard to the written procedure and further to the hearing on 27 November 2008,
after hearing the Opinion of the Advocate General at the sitting on 15 January 2009,
gives the following
Judgment

 


1 By its application, the Commission of the European Communities requests the Court to declare that:
- by failing to adopt, in conformity with Article 2(1) and Article 4(2) to (4) 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 as amended by Directive 97/11'), all measures to ensure that, before consent is given, projects likely to have significant effects on the environment in the road construction category covered by point 10(e) of Annex II to Directive 85/337 as amended by Directive 97/11 are made subject to a requirement for development consent and to an assessment with regard to their effects in accordance with Articles 5 to 10 of that amended directive, and
- by failing to adopt the laws, regulations and administrative provisions necessary to comply with Articles 3(1) and (3) to (7) and 4(1) to (6) of Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC (OJ 2003 L 156, p. 17) or, in any event, by failing to adequately notify such provisions to the Commission,
Ireland has failed to fulfil its obligations under Directive 85/337, as amended by Directive 97/11, and Article 6 of Directive 2003/35.
Legal context
Community legislation
Directive 2003/35
2 Article 1 of Directive 2003/35 provides:
‘The objective of this Directive is to contribute to the implementation of the obligations arising under the Århus Convention [on access to information, public participation in decision-making and access to justice in environmental matters], in particular by:
(a) providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment;
(b) improving the public participation and providing for provisions on access to justice within Council Directive 85/337... and 96/61/EC.'
3 Article 6 of Directive 2003/35 states:
‘Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 25 June 2005 at the latest. They shall forthwith inform the Commission thereof.
When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.'
Directive 85/337
4 In accordance with Article 1(2) of Directive 85/337, as amended by Article 3(1) of Directive 2003/35, for the purposes of that directive:
‘...
"the public" means: one or more natural or legal persons and, in accordance with national legislation or practice, their associations, organisations or groups;
"the public concerned" means: the public affected or likely to be affected by, or having an interest in, the environmental decision-making procedures referred to in Article 2(2); for the purposes of this definition, non-governmental organisations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest.'
5 Article 2(1) and (3) of Directive 85/337, as amended by Article 3(3) of Directive 2003/35, states:
‘1. Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects. These projects are defined in Article 4.
...
3. Without prejudice to Article 7, Member States may, in exceptional cases, exempt a specific project in whole or in part from the provisions laid down in this Directive.
In this event, the Member States shall:
(a) consider whether another form of assessment would be appropriate;
(b) make available to the public concerned the information obtained under other forms of assessment referred to in point (a), the information relating to the exemption decision and the reasons for granting it;
...'
6 Article 4 of Directive 85/337 as amended by Directive 97/11 provides:
‘1. Subject to Article 2(3), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.
2. Subject to Article 2(3), for projects listed in Annex II, the Member States shall determine through:
(a) a case-by-case examination,
or
(b) thresholds or criteria set by the Member State,
whether the project shall be made subject to an assessment in accordance with Articles 5 to 10.
Member States may decide to apply both procedures referred to in (a) and (b).
3. When a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account.
4. Member States shall ensure that the determination made by the competent authorities under paragraph 2 is made available to the public.'
7 Article 5 of Directive 85/337 as amended by Directive 97/11 provides:
‘1. In the case of projects which, pursuant to Article 4, must be subjected to an environmental impact assessment in accordance with Articles 5 to 10, Member States shall adopt the necessary measures to ensure that the developer supplies in an appropriate form the information specified in Annex IV inasmuch as:
(a) the Member States consider that the information is relevant to a given stage of the consent procedure and to the specific characteristics of a particular project or type of project and of the environmental features likely to be affected;
(b) the Member States consider that a developer may reasonably be required to compile this information having regard inter alia to current knowledge and methods of assessment.
...
3. The information to be provided by the developer in accordance with paragraph 1 shall include at least:
- a description of the project comprising information on the site, design and size of the project,
- a description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects,
- the data required to identify and assess the main effects which the project is likely to have on the environment,
- an outline of the main alternatives studied by the developer and an indication of the main reasons for his choice, taking into account the environmental effects,
- a non-technical summary of the information mentioned in the previous indents.
...'
8 Article 6(2) to (6) of Directive 85/337, as amended by Article 3(4) of Directive 2003/35, states as follows:
‘2. The public shall be informed, whether by public notices or other appropriate means such as electronic media where available, of the following matters early in the environmental decision-making procedures referred to in Article 2(2) and, at the latest, as soon as information can reasonably be provided:
(a) the request for development consent;
(b) the fact that the project is subject to an environmental impact assessment procedure and, where relevant, the fact that Article 7 applies;
(c) details of the competent authorities responsible for taking the decision, those from which relevant information can be obtained, those to which comments or questions can be submitted, and details of the time schedule for transmitting comments or questions;
(d) the nature of possible decisions or, where there is one, the draft decision;
(e) an indication of the availability of the information gathered pursuant to Article 5;
(f) an indication of the times and places where and means by which the relevant information will be made available;
(g) details of the arrangements for public participation made pursuant to paragraph 5 of this Article.
3. Member States shall ensure that, within reasonable time-frames, the following is made available to the public concerned:
(a) any information gathered pursuant to Article 5;
(b) in accordance with national legislation, the main reports and advice issued to the competent authority or authorities at the time when the public concerned is informed in accordance with paragraph 2 of this Article;
(c) in accordance with the provisions of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information ..., information other than that referred to in paragraph 2 of this Article which is relevant for the decision in accordance with Article 8 and which only becomes available after the time the public concerned was informed in accordance with paragraph 2 of this Article.
4. The public concerned shall be given early and effective opportunities to participate in the environmental decision-making procedures referred to in Article 2(2) and shall, for that purpose, be entitled to express comments and opinions when all options are open to the competent authority or authorities before the decision on the request for development consent is taken.
5. The detailed arrangements for informing the public (for example by bill posting within a certain radius or publication in local newspapers) and for consulting the public concerned (for example by written submissions or by way of a public inquiry) shall be determined by the Member States.
6. Reasonable time-frames for the different phases shall be provided, allowing sufficient time for informing the public and for the public concerned to prepare and participate effectively in environmental decision-making subject to the provisions of this Article.'
9 Article 7 of Directive 85/337, as amended by Article 3(5) of Directive 2003/35, provides:
‘1. Where a Member State is aware that a project is likely to have significant effects on the environment in another Member State or where a Member State likely to be significantly affected so requests, the Member State in whose territory the project is intended to be carried out shall send to the affected Member State as soon as possible and no later than when informing its own public, inter alia:
(a) a description of the project, together with any available information on its possible transboundary impact;
(b) information on the nature of the decision which may be taken,
and shall give the other Member State a reasonable time in which to indicate whether it wishes to participate in the environmental decision-making procedures referred to in Article 2(2), and may include the information referred to in paragraph 2 of this Article.
2. If a Member State which receives information pursuant to paragraph 1 indicates that it intends to participate in the environmental decision making procedures referred to in Article 2(2), the Member State in whose territory the project is intended to be carried out shall, if it has not already done so, send to the affected Member State the information required to be given pursuant to Article 6(2) and made available pursuant to Article 6(3)(a) and (b).
...
5. The detailed arrangements for implementing this Article may be determined by the Member States concerned and shall be such as to enable the public concerned in the territory of the affected Member State to participate effectively in the environmental decision-making procedures referred to in Article 2(2) for the project.'
10 Article 9 of Directive 85/337, as amended by Article 3(6) of Directive 2003/35, provides:
‘1. When a decision to grant or refuse development consent has been taken, the competent authority or authorities shall inform the public thereof in accordance with the appropriate procedures and shall make available to the public the following information:
- the content of the decision and any conditions attached thereto,
- having examined the concerns and opinions expressed by the public concerned, the main reasons and considerations on which the decision is based, including information about the public participation process,
- a description, where necessary, of the main measures to avoid, reduce and, if possible, offset the major adverse effects.
2. The competent authority or authorities shall inform any Member State which has been consulted pursuant to Article 7, forwarding to it the information referred to in paragraph 1 of this Article.
The consulted Member States shall ensure that that information is made available in an appropriate manner to the public concerned in their own territory.'
11 Article 10a of Directive 85/337, inserted by Article 3(7) of Directive 2003/35, states as follows:
‘Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned:
(a) having a sufficient interest, or alternatively
(b) maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a precondition,
have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive.
Member States shall determine at what stage the decisions, acts or omissions may be challenged.
What constitutes a sufficient interest and impairment of a right shall be determined by the Member States, consistently with the objective of giving the public concerned wide access to justice. To this end, the interest of any non-governmental organisation meeting the requirements referred to in Article 1(2), shall be deemed sufficient for the purpose of subparagraph (a) of this Article. Such organisations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph (b) of this Article.
The provisions of this Article shall not exclude the possibility of a preliminary review procedure before an administrative authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures, where such a requirement exists under national law.
Any such procedure shall be fair, equitable, timely and not prohibitively expensive.
In order to further the effectiveness of the provisions of this article, Member States shall ensure that practical information is made available to the public on access to administrative and judicial review procedures.'
12 Annex II to Directive 85/337 as amended by Directive 97/11 lists the projects subject to Article 4(2) of that amended directive. Under the heading ‘Infrastructure projects', point 10(e) of that annex covers the construction of roads, harbours and port installations, including fishing harbours (projects not included in Annex I).
Directive 96/61/EC
13 In accordance with Article 2(13) and (14) of Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control (OJ 1996 L 257, p. 26), as amended by Article 4(1) of Directive 2003/35:
‘13. "the public" shall mean one or more natural or legal persons and, in accordance with national legislation or practice, their associations, organisations or groups;
14. "the public concerned" shall mean the public affected or likely to be affected by, or having an interest in, the taking of a decision on the issuing or the updating of a permit or of permit conditions; for the purposes of this definition, non-governmental organisations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest.'
14 Article 15(1) and (5) of Directive 96/61, as amended by Article 4(3) of Directive 2003/35, states as follows:
‘1. Member States shall ensure that the public concerned are given early and effective opportunities to participate in the procedure for:
- issuing a permit for new installations,
- issuing a permit for any substantial change in the operation of an installation,
- updating of a permit or permit conditions for an installation in accordance with Article 13, paragraph 2, first indent.
The procedure set out in Annex V shall apply for the purposes of such participation.
...
5. When a decision has been taken, the competent authority shall inform the public in accordance with the appropriate procedures and shall make available to the public the following information:
(a) the content of the decision, including a copy of the permit and of any conditions and any subsequent updates; and
(b) having examined the concerns and opinions expressed by the public concerned, the reasons and considerations on which the decision is based, including information on the public participation process.'
15 Article 15a of Directive 96/61, inserted by Article 4(4) of Directive 2003/35, provides:
‘Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned:
(a) having a sufficient interest, or alternatively,
(b) maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a precondition;
have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive.
Member States shall determine at what stage the decisions, acts or omissions may be challenged.
What constitutes a sufficient interest and impairment of a right shall be determined by the Member States, consistently with the objective of giving the public concerned wide access to justice. To this end, the interest of any non governmental organisation meeting the requirements referred to in Article 2(14) shall be deemed sufficient for the purpose of subparagraph (a) of this Article. Such organisations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph (b) of this Article.
The provisions of this Article shall not exclude the possibility of a preliminary review procedure before an administrative authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures, where such a requirement exists under national law.
Any such procedure shall be fair, equitable, timely and not prohibitively expensive.
In order to further the effectiveness of the provisions of this Article, Member States shall ensure that practical information is made available to the public on access to administrative and judicial review procedures.'
National legislation
16 According to the combined provisions of section 176 of the Planning and Development Act 2000 (No 30/2000), as amended by the Planning and Development (Strategic Infrastructure) Act 2006 (No 27/2006, S.I. No 525/2006) (‘the PDA'), and Schedule 5 to the Planning and Development Regulations 2001 (S.I. No 600/2001), an environmental impact statement and an environmental impact assessment are mandatory in respect of certain projects where the thresholds specified are exceeded, but private roads development is not identified as a discrete category of project.
17 Judicial review is governed by Order 84 of the Rules of the Superior Courts. Those courts have jurisdiction to review, subject to certain conditions, the decisions of lower courts and administrative bodies.
18 Both public-law and private-law remedies are available in judicial review proceedings. The traditional public law remedies relate to review of whether those lower courts or bodies have acted in excess or abuse of jurisdiction and to supervision of the exercise of their jurisdiction.
19 Judicial review is a two-stage process. An application for leave to bring judicial review proceedings must be made to the court, accompanied by a statement of grounds identifying the relief sought and an affidavit setting out the facts relied on. If leave is granted, the applicant can bring judicial review proceedings.
20 A specific statutory procedure applies to applications for judicial review of decisions of the competent planning authorities, which is governed by sections 50 and 50A of the PDA.
21 Section 50A(3) of the PDA states:
‘The Court shall not grant section 50 leave unless it is satisfied that -
(a) there are substantial grounds for contending that the decision or act concerned is invalid or ought to be quashed, and
(b) (i) the applicant has a substantial interest in the matter which is the subject of the application, or
(ii) where the decision or act concerned relates to a development identified in or under regulations made under section 176, for the time being in force, as being development which may have significant effects on the environment, the applicant -
(I) is a body or organisation (other than a State authority, a public authority or governmental body or agency) the aims or objectives of which relate to the promotion of environmental protection,
(II) has, during the period of 12 months preceding the date of the application, pursued those aims or objectives, and
(III) satisfies such requirements (if any) as a body or organisation, if it were to make an appeal under section 37(4)(c), would have to satisfy by virtue of section 37(4)(d)(iii) (and, for this purpose, any requirement prescribed under section 37(4)(e)(iv) shall apply as if the reference in it to the class of matter into which the decision, the subject of the appeal, falls were a reference to the class of matter into which the decision or act, the subject of the application for section 50 leave, falls).'
22 Section 50A(4) of the PDA specifies that the substantial interest required is not limited to an interest in land or other financial interest.
23 Section 50A(10) and (11)(b) of the PDA require the court, in determining applications, to act as expeditiously as possible consistent with the administration of justice. Section 50A(12) of the PDA allows for additional rules to be adopted to expedite the procedure.
The pre-litigation procedure
24 The Commission has combined, in the present action, complaints raised in two pre-litigation procedures.
25 First, in 2001 the Commission registered a complaint against Ireland concerning damage to a coastal wetland at Commogue Marsh, Kinsale, County Cork caused by a private road project. On 18 October 2002, the Commission sent a letter of formal notice to Ireland, indicating that it appeared that no consent for the project in question had been granted and that no prior environmental impact assessment had been carried out despite the sensitivity of the site, contrary to the requirements of Directive 85/337 as amended by Directive 97/11.
26 Ireland replied to that letter of formal notice on 5 March 2003, pointing out that the project at issue was a part of a development for which consent had been given.
27 As the Commission was not satisfied with that reply, it issued a reasoned opinion on 11 July 2003, calling on Ireland to take the necessary measures to comply with Directive 85/337 as amended by Directive 97/11 within two months of receipt of that opinion.
28 By letter of 9 September 2003, Ireland requested an extension of the two-month time limit for reply to the reasoned opinion. Ireland replied to the reasoned opinion by letter of 10 November 2003.
29 Secondly, the Commission sent a letter of formal notice to Ireland on 28 July 2005 concerning the transposition of Directive 2003/35, inviting Ireland to submit its observations within two months of receipt of that letter.
30 Ireland replied by letter of 7 September 2005, in which it admitted that it had only partially transposed Directive 2003/35.
31 The Commission issued a reasoned opinion on 19 December 2005, calling on Ireland to take the necessary measures to comply with that directive within two months of receipt of that opinion.
32 By letter of 14 February 2006, Ireland indicated that transposition measures were in preparation.
33 On 18 October 2006, the Commission issued an additional reasoned opinion calling on Ireland to adopt the necessary measures to comply with that opinion within two months of receipt. Ireland replied on 27 February 2007, outside the time-limit prescribed by the Commission.
34 As it was not satisfied with Ireland's replies in the course of those two pre litigation procedures, the Commission brought the present action pursuant to the second paragraph of Article 226 EC.
The action
35 The Commission's action is based on two complaints.
The first complaint
Arguments of the parties
36 The Commission considers that the construction of a private road constitutes an infrastructure project that falls within point 10(e) of Annex II to Directive 85/337 as amended by Directive 97/11 and that, as a consequence, the Irish authorities are bound, in accordance with Article 2 of that amended directive, to ensure that, before consent is given, such projects are made subject to an assessment with regard to their effects on the environment if it is considered that they are likely to have significant effects on the environment.
37 In limiting the need to carry out an environmental impact assessment to public road projects proposed by public authorities, the Irish legislation thus fails to take account of Community requirements.
38 Ireland contends that private road construction development which, it does not dispute, falls within point 10(e) of Annex II to Directive 85/337 as amended by Directive 97/11, almost invariably forms an integral part of other developments which, for their part, are subject to the requirement of an environmental impact assessment under the combined provisions of Article 176 of the PDA and Schedule 5 to the Planning and Development Regulations 2001 if they are likely to have significant effects on the environment.
39 Ireland accepts, moreover, that Directive 85/337 as amended by Directive 97/11 makes no distinction between public and private road projects, and it indicates its intention to amend its legislation so as to include road development as a stand alone category subject to an environmental impact assessment if the road development is likely to have significant effects on the environment.
Findings of the Court
40 Pursuant to Article 4(2) of Directive 85/337 as amended by Directive 97/11, the Member States are to determine, for projects in the classes listed in Annex II to that amended directive, through a case-by-case examination, or thresholds or criteria, whether those projects are to be made subject to an environmental impact assessment in accordance with Articles 5 to 10 of that directive. According to that same provision, the Member States may also decide to apply both procedures.
41 Although the Member States have thus been allowed a measure of discretion in specifying certain types of projects which will be subject to an assessment or to establish the criteria and/or thresholds applicable, the limits of that discretion are to be found in the obligation set out in Article 2(1) of Directive 85/337 as amended by Directive 97/11 that projects likely, by virtue inter alia of their nature, size or location, to have significant effects on the environment are to be subject to an impact assessment (see Case C 72/95 Kraaijeveld and Others [1996] ECR I 5403, paragraph 50; Case C 2/07 Abraham and Others [2008] ECR I 1197, paragraph 37; and Case C 75/08 Mellor [2009] ECR I 0000, paragraph 50).
42 In that regard, the Court has already held that a Member State which established criteria or thresholds at a level such that, in practice, an entire class of projects would be exempted in advance from the requirement of an impact assessment would exceed the limits of its discretion under Articles 2(1) and 4(2) of that amended directive unless all projects excluded could, when viewed as a whole, be regarded as not being likely to have significant effects on the environment (see Kraaijeveld and Others, paragraph 53, and Case C 435/97 WWF and Others [1999] ECR I 5613, paragraph 38).
43 Among the projects subject to Article 4(2) of Directive 85/337 as amended by Directive 97/11, point 10(e) of Annex II to that amended directive refers to ‘construction of roads'.
44 In that regard, by subjecting private road construction development to an environmental impact assessment only if that development formed part of other developments coming within the scope of Directive 85/337 as amended by Directive 97/11 and themselves subject to the assessment obligation, the Irish legislation, as applicable when the time-limit set in the reasoned opinion expired, meant that any private road construction development carried out in isolation could avoid an environmental impact assessment, even if the development was likely to have significant effects on the environment.
45 It should also be pointed out that a criterion relating to the private or public nature of the road is irrelevant as regards the applicability of point 10(e) of Annex II to Directive 85/337 as amended by Directive 97/11.
46 Therefore, the first complaint is well founded.
The second complaint
47 It is apparent from the most recent of the Commission's written pleadings that, in its view, and having regard to the withdrawal of the complaints concerning Article 4(1), (5) and (6) of Directive 2003/35, Ireland's transposition of Article 3(1) and (3) to (7) and Article 4(2) to (4) of that directive remains incomplete, as a result of which there is a failure to fulfil obligations under Article 6 of that directive.
48 In addition, the Commission takes the view that, in any event, Ireland did not communicate within the prescribed time limit the provisions which were deemed to implement the aforementioned articles, contrary to the requirements of Article 6.
49 The second complaint, considered in its various parts, as pleaded in essence by the Commission, thus relates exclusively - as the Commission, moreover, confirmed at the hearing - to the failure to transpose certain provisions of Directive 2003/35, without any criticism of the quality of transposition, and, consequently, no such criticism may properly be raised by the Commission in the context of this case.
50 Moreover, it should be noted that the provisions of the PDA referred to in the present action are those which result from amendments introduced by the amending Act of 2006, mentioned in paragraph 16 of this judgment. Those provisions, as the Advocate General noted in point 53 of her Opinion, entered into force on 17 October 2006, that is to say, before the expiry of the time-limit laid down in the additional reasoned opinion.
The requirement to transpose the provisions of Article 3(1) of Directive 2003/35
- Arguments of the parties
51 As regards Article 3(1) of Directive 2003/35, the Commission claims that the Irish authorities must adopt measures to ensure that domestic legislation does not treat the concepts of ‘the public' and ‘the public concerned' more narrowly than Directive 2003/35. It points out, in particular, that the rights conferred on non governmental organisations are not sufficiently guaranteed, as is apparent from the case-law, although that directive confers on such non governmental organisations certain rights as being among the public concerned.
52 Ireland counters that, in the light of the general obligation to interpret national law in accordance with the provisions of Community law which applies, in particular, to the courts, it is not necessary to introduce legislative definitions of ‘the public' and ‘the public concerned' in order to give full effect to those definitions. It adds that the newly-created rights are already guaranteed to all of the public and that it is not, therefore, necessary to give a specific definition of ‘the public concerned'.
53 Ireland also contends that, pursuant to section 50A(3)(b)(ii) of the PDA, non governmental organisations promoting the environment are exempted from the requirement to demonstrate that they have a substantial interest.¬
- Findings of the Court
54 It should be recalled that, according to settled case-law, the transposition of a directive into domestic law does not necessarily require the provisions of the directive to be enacted in precisely the same words in a specific, express provision of national law and a general legal context may be sufficient if it actually ensures the full application of the directive in a sufficiently clear and precise manner (see, inter alia, Case C 214/98 Commission v Greece [2000] ECR I 9601, paragraph 49; Case C 38/99 Commission v France [2000] ECR I 10941, paragraph 53; and Case C 32/05 Commission v Luxembourg [2006] ECR I 11323, paragraph 34).
55 It follows from an equally consistent line of case-law that the provisions of a directive must be implemented with unquestionable binding force and with the specificity, precision and clarity required in order to satisfy the need for legal certainty, which requires that, in the case of a directive intended to confer rights on individuals, the persons concerned must be enabled to ascertain the full extent of their rights (see, inter alia, Case C 197/96 Commission v France [1997] ECR I 1489, paragraph 15; Case C 207/96 Commission v Italy [1997] ECR I 6869, paragraph 26; and Commission v Luxembourg, paragraph 34).
56 In the light of the purpose of Article 3(1) of Directive 2003/35, which is to add definitions to those appearing in Article 1(2) of Directive 85/337, and in particular to indicate, for the purposes of the latter directive, what is to be meant by ‘the public concerned' and, whereas, at the same time, Directive 2003/35 accords new rights to that public, it cannot be concluded from Ireland's failure to reproduce those definitions in its legislation expressly that Ireland has not fulfilled its obligation to transpose the provisions in question.
57 The scope of the new definition of ‘the public concerned' thus introduced by Directive 2003/35 can be assessed, as the Advocate General stated in points 36 and 37 of her Opinion, only with regard to all of the rights which that directive accords to ‘the public concerned', since those two aspects are indissociable.
58 In that regard, the Commission does not establish to what extent ‘the public concerned', understood as the public affected or likely to be affected by, or having an interest in, environmental decision making procedures, does not have the rights which it is deemed to enjoy under the amendments introduced by Directive 2003/35.
59 Lastly, it should be pointed out that the Commission's arguments relating to the construal, in the case-law, of the role of non governmental organisations promoting the environment as belonging to ‘the public concerned' deal, primarily, with possible defects in the effective implementation of the rights which those organisations may rely on, in particular in judicial review proceedings, and are, consequently, outside the scope of the complaint before the Court alleging, solely, a failure to transpose.
60 It follows from the foregoing that the second complaint, in so far as it concerns the transposition of Article 3(1) of Directive 2003/35, is unfounded.
The requirement to transpose Articles 3(3) to (6), and 4(2) and (3), of Directive 2003/35
- Arguments of the parties
61 According to the Commission, Article 3(3) to (6), and Article 4(2) and (3), have not been fully transposed.
62 As regards those provisions, Ireland contends that there has been transposition in so far as the planning consent system is concerned, but it accepts that it was still necessary, when the time-limit prescribed in the additional reasoned opinion elapsed, to transpose those provisions by adopting legislative measures in relation to other consent procedures.
63 As regards Article 4(2) and (3) of that directive, Ireland recognises that it still had to adopt and notify certain measures in relation to full transposition of those provisions when the time-limit prescribed in that reasoned opinion elapsed.
- Findings of the Court
64 It must be borne in mind that, according to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation in that Member State as it stood 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, and Case C 114/02 Commission v France [2003] ECR I 3783, paragraph 9).
65 It is not in dispute that, by the end of the period laid down in the additional reasoned opinion, Ireland had not adopted the laws, regulations and administrative provisions necessary to ensure full transposition of Article 3(3) to (6), and Article 4(2) and (3), of Directive 2003/35. Furthermore, and in accordance with settled case-law, any subsequent changes once the action for failure to fulfil obligations has been lodged cannot be taken into consideration by the Court (see, inter alia, Case C 211/02 Commission v Luxembourg [2003] ECR I 2429, paragraph 6).
66 In so far as it concerns the failure to transpose Article 3(3) to (6) and Article 4(2) and (3) of Directive 2003/35, the second complaint is therefore well founded.
The requirement to transpose Articles 3(7) and 4(4) of Directive 2003/35
- Arguments of the parties
67 The Commission claims that Ireland did not transpose the requirements arising out of Articles 3(7) and 4(4) of Directive 2003/35, those provisions having inserted, respectively, Article 10a into Directive 85/337 and Article 15a into Directive 96/61. The Commission puts forward five arguments in support of this part of the second complaint.
68 By its first argument, which concerns the concept of sufficient interest in Article 3(7) and Article 4(4) of Directive 2003/35, the Commission asserts that the criterion that a ‘substantial interest' must be established in the context of the specific statutory procedure for applying for judicial review of decisions of competent planning authorities laid down in Section 50 of the PDA does not correspond to the ‘sufficient interest' criterion in Directive 2003/35.
69 The setting of such a criterion - stricter than that used in Article 10a of Directive 85/337, inserted by Article 3(7) of Directive 2003/35, and Article 15a of Directive 96/61, inserted by Article 4(4) of Directive 2003/35, - amounts, according to the Commission, to non transposition of the requirements laid down in Directive 2003/35.
70 Lastly, the Commission points out that two judgments of the Irish High Court handed down in the Friends of the Curragh Environment Ltd case on 14 July 2006 and 8 December 2006 show that the system of judicial review in force in Ireland cannot be regarded as implementing Directive 2003/35, since the High Court stated, in the second of those judgments, in relation to the assessment of ‘substantial interest', that that directive had not yet been implemented in Irish law.
71 Ireland contests the relevance of those High Court judgments, inasmuch as they were dealing, primarily, with the issue of the direct effect of Directive 2003/35.
72 It adds that the judgment handed down by the High Court on 26 April 2007 in the Sweetman case established, on the contrary, that the abovementioned provisions of that directive are implemented by the judicial review procedure, supplemented by specific procedural rules laid down in certain legislation, in particular section 50 of the PDA, since the criterion of substantial interest was held by the judge to be flexible and not inconsistent with Article 10a of Directive 85/337, inserted by Article 3(7) of Directive 2003/35.
73 By its second argument, the Commission claims that Article 10a of Directive 85/337, inserted by Article 3(7) of Directive 2003/35, and Article 15a of Directive 96/61, inserted by Article 4(4) of Directive 2003/35, have not been transposed, on the ground that, contrary to the first paragraph in each of those articles, the requirement that an applicant must be able to challenge the substantive legality of decisions, acts or omissions subject to the public participation provisions in each of the directives has not been transposed into Irish law.
74 Ireland contends, in that regard, that those articles do not require provision to be made for an exhaustive review of the merits of a decision, but merely require that it be possible to contest the substantive legality of a decision. Such a form of review is provided for under Irish law.
75 Ireland also asserts that the requirements laid down in Article 10a of Directive 85/337, inserted by Article 3(7) of Directive 2003/35, and in Article 15a of Directive 96/61, inserted by Article 4(4) of Directive 2003/35, are fully implemented into Irish law by reason of the existence of the judicial review procedure available before Irish courts. The purpose of judicial review is to provide a form of review of decisions made and actions taken by courts and administrative bodies, to ensure that the functions conferred on such authorities have been carried out correctly and legally.
76 In addition, according to Ireland, a specific statutory judicial review procedure applies to challenges to decisions of the competent planning authorities, which is governed by sections 50 and 50A of the PDA.
77 The Commission claims, in its third argument, that no measure has been taken by Ireland to ensure transposition of the requirement of timeliness, laid down in Article 10a of Directive 85/337, inserted by Article 3(7) of Directive 2003/35, and in Article 15a of Directive 96/61, inserted by Article 4(4) Directive 2003/35.
78 In its fourth argument, the Commission raises the same failure to transpose as regards the requirement that any such procedure must not be prohibitively expensive, pointing out that, in relation to costs, there is no applicable ceiling as regards the amount that an unsuccessful applicant will have to pay, as there is no legal provision which refers to the fact that the procedure will not be prohibitively expensive.
79 According to Ireland, the existing procedures are fair, equitable and not prohibitively expensive. They enable, furthermore, the decisions referred to in Directives 83/337 and 96/61, as amended by Directive 2003/35, to be reviewed in a timely manner.
80 Lastly, by its fifth argument, the Commission criticises Ireland for not having made available to the public practical information on access to administrative and judicial review procedures, as required by the sixth paragraph of Article 10a of Directive 85/337, inserted by Article 3(7) of Directive 2003/35, and the sixth paragraph of Article 15a of Directive 96/61, inserted by Article 4(4) of Directive 2003/35.
81 Ireland takes the view that it has fulfilled that obligation, since Order 84 of the Rules of the Superior Courts, referred to in paragraph 17 of this judgment, is a statutory provision and there is, in addition, a website for the Courts Service of Ireland which describes the different courts and the limits of their jurisdiction, and allows for access to High Court judgments.
- Findings of the Court
82 As regards the first argument relating to sufficient interest, it is clear from paragraphs (a) and (b) of the first paragraph of Article 10a of Directive 85/337, inserted by Article 3(7) of Directive 2003/35, and from paragraphs (a) and (b) of the first paragraph of Article 15a of Directive 96/61, inserted by Article 4(4) of Directive 2003/35, that the Member States must ensure that, in accordance with the relevant national legal system, members of the public concerned having a sufficient interest, or alternatively, maintaining the impairment of a right, where the administrative procedural law of a Member State requires this as a precondition, have access to a review procedure under the conditions specified in those provisions, and must determine what constitutes a sufficient interest and impairment of a right consistently with the objective of giving the public concerned wide access to justice.
83 It is not in dispute that, by enabling applicants who are members of ‘the public concerned' and who can claim an interest meeting the conditions laid down in section 50A(3) of the PDA to challenge certain planning measures, Ireland has adopted provisions under which the right of access to justice in that particular area depends directly on those applicants' interest, as the Advocate General points out in point 57 of her Opinion.
84 In that regard, inasmuch as, as has been stated in paragraph 49 of this judgment, the Commission disputes only the failure to transpose certain provisions - having moreover expressly stated that it did not mean to allege incorrect or incomplete transposition - there is no need to ascertain whether the criterion of substantial interest as applied and interpreted by the Irish courts corresponds to the sufficient interest referred to in Directive 2003/35, as that would lead to calling into question the quality of the transposition having regard, in particular, to the competence of the Member States recognised by that directive to determine what constitutes a sufficient interest consistently with the objective which that directive pursues.
85 Furthermore, the second judgment of the High Court in Friends of the Curragh Environment Ltd, to which the Commission principally refers, was handed down under the legislation applicable prior to the amendments made to the PDA in 2006 and it is not, in any event, enough to prove the alleged failure to transpose.
86 The first argument is therefore unfounded.
87 In relation to the second argument, it is common ground that in Irish law, apart from the specific statutory procedure applicable pursuant to sections 50 and 50A of the PDA, there is judicial review governed by Order 84 of the Rules of the Superior Courts. In those review procedures applicants can ask for decisions or acts to be quashed in the context of supervision in relation to decisions and actions taken by lower courts and administrative bodies to ensure that the functions conferred on those authorities are carried out legally.
88 The various procedures thus established for judicial review are applicable to decisions, acts or omissions subject to the public participation provisions in Directives 85/337 and 96/61 as amended by Directive 2003/35, inter alia, in the specific area of planning, and may therefore be considered to constitute transposition of Article 10a of Directive 85/337, inserted by Article 3(7) of Directive 2003/35, and Article 15a of Directive 96/61, inserted by Article 4(4) of Directive 2003/35, inasmuch as they require that the applicant be able to challenge the substantive or procedural legality of such acts, decisions or omissions.
89 Since the Court does not have before it a complaint alleging incorrect transposition of those provisions, it cannot examine the arguments submitted by the Commission relating to the extent of the review actually carried out in the context of judicial review, as shown, in particular, by the case-law of the High Court.
90 The second argument is therefore unfounded.
91 As regards the third argument relating to the failure to transpose Article 10a of Directive 85/337, inserted by Article 3(7) of Directive 2003/35, and Article 15a of Directive 96/61, inserted by Article 4(4) of Directive 2003/35, in so far as they require that the procedures should be timely, having regard to what was stated in paragraph 49 of this judgment and inasmuch as it follows from sections 50A(10) and (11)(b) of the PDA that the courts having jurisdiction must determine applications as expeditiously as possible consistent with the administration of justice, that argument is therefore unfounded.
92 As regards the fourth argument concerning the costs of proceedings, it is clear from Article 10a of Directive 85/337, inserted by Article 3(7) of Directive 2003/35, and Article 15a of Directive 96/61, inserted by Article 4(4) of Directive 2003/35, that the procedures established in the context of those provisions must not be prohibitively expensive. That covers only the costs arising from participation in such procedures. Such a condition does not prevent the courts from making an order for costs provided that the amount of those costs complies with that requirement.
93 Although it is common ground that the Irish courts may decline to order an unsuccessful party to pay the costs and can, in addition, order expenditure incurred by the unsuccessful party to be borne by the other party, that is merely a discretionary practice on the part of the courts.
94 That mere practice which cannot, by definition, be certain, in the light of the requirements laid down by the settled case-law of the Court, cited in paragraphs 54 and 55 of this judgment, cannot be regarded as valid implementation of the obligations arising from Article 10a of Directive 85/337, inserted by Article 3(7) of Directive 2003/35, and Article 15a of Directive 96/61, inserted by Article 4(4) of Directive 2003/35.
95 The fourth argument is thus well founded.
96 As regards the fifth argument, it must be borne in mind that one of the underlying principles of Directive 2003/35 is to promote access to justice in environmental matters, along the lines of the Århus Convention on access to information, public participation in decision-making and access to justice in environmental matters.
97 In that regard, the obligation to make available to the public practical information on access to administrative and judicial review procedures laid down in the sixth paragraph of Article 10a of Directive 85/337, inserted by Article 3(7) of Directive 2003/35, and in the sixth paragraph of Article 15a of Directive 96/61, inserted by Article 4(4) of Directive 2003/35, amounts to an obligation to obtain a precise result which the Member States must ensure is achieved.
98 In the absence of any specific statutory or regulatory provision concerning information on the rights thus offered to the public, the mere availability, through publications or on the internet, of rules concerning access to administrative and judicial review procedures and the possibility of access to court decisions cannot be regarded as ensuring, in a sufficiently clear and precise manner, that the public concerned is in a position to be aware of its rights on access to justice in environmental matters.
99 The fifth argument must thus be upheld.
100 It follows from the foregoing that the second complaint, in so far as it concerns the requirement to transpose Articles 3(7) and 4(4) of Directive 2003/35 is, in its fourth and fifth arguments, well founded.
Failure to comply with the first paragraph of Article 6 of Directive 2003/35, inasmuch as the obligation to inform the Commission was not fulfilled
- Arguments of the parties
101 The Commission claims that the information provided to it by Ireland in relation to the transposition of the provisions of Directive 2003/35 which introduced Article 10a of Directive 85/337 and Article 15a of Directive 96/61 is not sufficient.
102 It argues, in that regard, that Ireland did not draw to its attention the case-law establishing access for the public concerned to judicial review, or the precise legislative texts that show that the rights and obligations laid down in those provisions have been transposed, in particular as regards the requirement for a fair, equitable, timely and not prohibitively expensive judicial review procedure.
103 It adds that it was not informed of the relevant national case-law regarding, specifically, the use of review procedures in relation to Directive 2003/35, and in particular, that Ireland itself did not send it the judgments handed down by the High Court in the Friends of the Curragh Environment Ltd case, which were provided to the Commission by a separate source.
104 Ireland accepts that it has not fully complied with the obligation to inform the Commission laid down in Article 6 of Directive 2003/35. It nevertheless points out that, in so far as Articles 3(7) and 4(4) of that directive were already transposed by existing statutory provisions, it was not obliged to notify those provisions.
- Findings of the Court
105 It should be recalled that, while, in proceedings under Article 226 EC for failure to fulfil obligations, it is incumbent upon the Commission to prove the allegation and to place before the Court the information needed to enable the Court to establish that an obligation has not been fulfilled, in doing which the Commission may not rely on any presumption, it is also for the Member States, under Article 10 EC, to facilitate the achievement of the Commission's tasks, which consist in particular, pursuant to Article 211 EC, in ensuring that the provisions of the EC Treaty and the measures taken by the institutions pursuant thereto are applied (see, inter alia, Case C 408/97 Commission v Netherlands [2000] ECR I 6417, paragraphs 15 and 16, and Case C 456/03 Commission v Italy [2005] ECR I 5335, paragraph 26).
106 For the purposes set out in that case-law, Article 6 of Directive 2003/35, like other directives, imposes upon the Member States an obligation to provide information.
107 The information which the Member States are thus obliged to supply to the Commission must be clear and precise. It must indicate unequivocally the laws, regulations and administrative provisions by means of which the Member State considers that it has satisfied the various requirements imposed on it by the directive. In the absence of such information, the Commission is not in a position to ascertain whether the Member State has genuinely implemented the directive completely. The failure of a Member State to fulfil that obligation, whether by providing no information at all or by providing insufficiently clear and precise information, may of itself justify recourse to the procedure under Article 226 EC in order to establish the failure to fulfil the obligation (see Case C 456/03 Commission v Italy, paragraph 27).
108 Moreover, although the transposition of a directive may be carried out by means of domestic legal rules already in force, the Member States are not, in that event, absolved from the formal obligation to inform the Commission of the existence of those rules so that it can be in a position to assess whether the rules comply with the directive (see, to that effect, Case C-456/03 Commission v Italy, paragraph 30).
109 In the present case, in so far as the law already in force was deemed to ensure, by itself, the implementation of the provisions of Directive 2003/35 relating to access to justice in environmental matters, it was for Ireland to inform the Commission of the laws or regulations in question, and it cannot properly argue that it had previously notified the Commission of those domestic legal rules in the context of the transposition of Directives 85/337 and 96/61 as applicable before the amendments introduced by Directive 2003/35.
110 Since it claimed that transposition had been confirmed by the case-law of its national courts, in particular, that of the High Court, it was also for Ireland to communicate to the Commission a precise summary of that case-law, thus enabling the Commission to ascertain whether Ireland had indeed implemented Directive 2003/35 solely by virtue of applying national law as it existed before that directive entered into force, and to carry out its task of supervision under the Treaty.
111 Consequently, the second complaint is well founded in so far as it concerns infringement of the obligation to inform the Commission.
112 Therefore, having regard to all of the foregoing considerations, it must be held that
- by failing to adopt, in conformity with Article 2(1) and Article 4(2) to (4) of Council Directive 85/337 as amended by Directive 97/11, all measures to ensure that, before consent is given, projects likely to have significant effects on the environment in the road construction category covered by point 10(e) of Annex II to Directive 85/337 as amended by Directive 97/11 are made subject to a requirement for development consent and to an assessment with regard to their effects in accordance with Articles 5 to 10 of that amended directive, and
- by failing to adopt the laws, regulations and administrative provisions necessary to comply with Articles 3(3) to (7) and 4(2) to (4) of Directive 2003/35, and by failing to adequately notify such provisions to the Commission,
Ireland has failed to fulfil its obligations under Directive 85/337, as amended by Directive 97/11, and Article 6 of Directive 2003/35.
113 The remainder of the action is dismissed.
Costs
114 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. Under Article 69(3) of those rules, where each party succeeds on some and fails on other heads, or where the circumstances are exceptional, the Court may order that the costs be shared or that the parties bear their own costs.
115 In the present dispute, while the Commission has requested that Ireland be ordered to pay the costs, account must be taken of the fact that a substantial number of the applicant's complaints were unsuccessful. Therefore, each of the parties will be ordered to bear its own costs.
On those grounds, the Court (Second Chamber) hereby:
1. Declares that
- by failing to adopt, in conformity with Article 2(1) and Article 4(2) to (4) 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 Council Directive 97/11/EC of 3 March 1997, all measures to ensure that, before consent is given, projects likely to have significant effects on the environment in the road construction category, covered by point 10(e) of Annex II to Directive 85/337, as amended by Directive 97/11, are made subject to a requirement for development consent and to an assessment with regard to their effects in accordance with Articles 5 to 10 of that directive, and
- by failing to adopt the laws, regulations and administrative provisions necessary to comply with Article 3(3) to (7) and Article 4(2) to (4) of Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC, and by failing to adequately notify such provisions to the Commission of the European Communities,
Ireland has failed to fulfil its obligations under Directive 85/337, as amended by Directive 97/11, and Article 6 of Directive 2003/35;
2. Dismisses the action as to the remainder;
3. Orders the Commission of the European Communities and Ireland to bear their own costs.
[Signatures]
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* Language of the case: English.