C-301/95

OPINION OF MR MISCHO — CASE C-301/95

OPINION OF ADVOCATE GENERAL MISCHO delivered on 12 March 1998 *

1. The Commission of the European Com­ 12 February 1990, which came into force on 3 munities has brought an action under the 1 August 1990. second paragraph of Article 169 of the EC Treaty seeking a declaration that the Federal Republic of Germany has failed to fulfil its obligations under Articles 5 and 189 of that Treaty, read in conjunction with Council Directive 85/377/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment 1(here­ 4. The Commission considers that, in con­ inafter 'the Directive'), and in particular Arti­ nection with that transposition, there are five cles 2, 3, 5(2), 6(2), 8, 9 and 12(1) and (2) points on which the defendant has failed to thereof. fulfil its obligations under the Treaty and the Directive. In its application, the Commission had raised a sixth head of claim concerning implementation of two specific projects. How­ ever, since the Federal Republic of Germany has provided the Commission with sufficient evidence that the consent applications for those two projects were commenced before the time-limit for transposition of the Direc­ 2. The Court has already had cause to examine 2 tive expired, the Commission withdrew that those provisions on a number of occasions. head of claim in its reply.

6. I propose to deal with the first and third heads of claim together as they both concern the question whether it is justified for the Court to rule again on failures to fulfil obli­ 10. The Commission's third head of claim gations which it has already found in the relates to the transitional provision contained grounds, but not in the operative part, of pre­ in Paragraph 22 of the UVPG . Under that vious judgments. paragraph, procedures already initiated are to be subject to environmental impact assess­ ment only if they have not been published by the date of entry into force of the UVPG . Thus, consent procedures initiated in Ger­ many before 1 August 1990 but after 3 July 1988, the deadline for transposition of the Directive, would not have been subject to 7. In its first head of claim, the Commission environmental impact assessment in accor­ alleges that the German Government failed to dance with the Directive. adopt, within the prescribed period, the mea­ sures necessary to comply with the Directive. The UVPG did not enter into force until 1 August 1990, whereas the time-limit for trans­ position laid down in Article 12(1) of the Directive expired on 3 July 1988.

11. The German Government points out that it is clear from the abovementioned judg­ ments in Bund Naturschutz in Bayern and Commission v Germany, which was an action for failure to fulfil obligations, that the Fed­ 8. The German Government points out that eral Republic of Germany was not permitted the Court, in its Bund Naturschutz in Bayern to introduce the derogating provision of Para­ judgment, cited above, had already found that graph 22 of the UVPG for projects in respect the Directive had been belatedly transposed of which the consent procedure had been ini­ in Germany, and submits that 'there is no tiated after 3 July 1988. There is therefore no point in the German Government restating justification for the Court to rule again on its position on the matter'. the same point of law.

15. I would simply point out, in this regard, that the Court has always recognised that the the Federal Republic of Germany has failed Commission has discretion to decide whether to fulfil its obligations under the third para­ to bring an action against a Member State for graph of Article 189 of the Treaty and Article failure to fulfil its obligations. 12(1) of the Directive.

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Second head of claim: failure to communi- 21. Second, the Federal Republic of Germany cate all the provisions adopted in the field refers to Paragraph 4 of the UVPG which, it covered by the Directive contends, ensures that the Directive is cor­ rectly applied throughout the national terri­ tory.

18. Article 12(2) of the Directive provides: 22. Paragraph 4 states that the UVPG is to be applicable only if provisions of the Bund or Länder do not define the obligation con­ cerning environmental impact assessment in greater detail or if their requirements do not match those of the UVPG. Provisions con­ taining more stringent requirements are unaf­ fected by the law. 'Member States shall communicate to the Commission the texts of the provisions of national law which they adopt in the field covered by this Directive.'

23. The wording of Paragraph 4 appears to be attributable to a legislative technique designed to avoid the federal legislature having to amend the substance of numerous specific laws. 19. The Commission interprets this provi­ sion to mean that the government is obliged to notify not only the texts adopted at federal level, but also the provisions applicable in the Länder in the field covered by the Directive.

28. To that end, it is vital for the Commis­ sion to have knowledge of the provisions 25. The Commission points out that the applicable in a Member State in the field cov­ defendant therefore does not contest that the ered by a Directive. provisions of the Länder are legal provisions that have been adopted in the field covered by the Directive. In any event, they are pro­ visions adopted by a Member State that the German Government is responsible for com­ municating to the Commission. The question of the rank of federal legislation in relation to that of the Länder could be important when assessing whether the Directive had been cor­ 29. There may, in fact, be situations where rectly transposed in Germany. And the Com­ the authorities of the Bund or Länder have mission was unable to carry out that substan­ not detected any inconsistency with Commu­ tive check until it had received communication nity law whereas, if the Commission is able of all the relevant legal provisions. to examine all relevant texts, it can draw the Member State's attention to the problem.

30. I therefore propose that the Court find 26. The Commission's argument is con­ that, by not communicating to the Commis­ vincing. Under Article 155 of the EC Treaty, sion the texts of all domestic legal provisions the Commission's function is to ensure that adopted in the field covered by the Directive, Community law is applied. Under Article 5, the Federal Republic of Germany has failed the Member States are required to facilitate to fulfil its obligations under Article 12(2) of the achievement of the Community's tasks. the Directive.

34. The Commission argues that the Annexes to the UVPG do not include all the classes of projects listed in Annex II to the Directive. In the opinion of the Commission, all the projects '1 . Subject to Article 2(3), projects of the listed in Annex II to the Directive under the classes listed in Annex I shall be made subject various letters of the alphabet that subdivide to an assessment in accordance with Articles points 1 to 11 must be considered as 'classes' 5 to 10. within the meaning of Article 4.

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38. So where the Commission and the Fed­ eral Republic of Germany differ is in respect of what should be understood by 'classes of 36. The German Government interprets the projects'. concepts of classes and projects differendy from the Commission. In its opinion, Annex II to the Directive lists a total of '12 classes of projects' within which there are 'specific' projects. Under Article 4(2) of the Directive, each Member State may decide, at its own discretion, which of the specific projects listed 39. To really grasp the problem, I believe it under the classes in question has to be subject is essential to look at the structure of the two to the assessment obligation. The UVPG takes annexes. account of all the classes of projects in Annex II to the Directive and, within these classes, requires an assessment to be carried out on those projects whose characteristics warrant it in the opinion of the federal legislature. 40. Annex I is set out as follows:

Tide: Projects subject to Article 4(1) 37. Hence, according to that argument, in no way can it be claimed that, through Para­ graph 3 of the UVPG, the Federal Republic of Germany has excluded whole classes of projects, within the meaning of Annex II to the Directive, from the assessment obligation. 1. Crude-oil refineries...

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2. Thermal power stations... (c) Water-management projects for agricul­ ture...

3. Installations solely designed for...

Title: Projects subject to Article 4(2)

(b) Deep drillings... 1. Agriculture

(a) Projects for the restructuring of rural (c) Extraction of minerals... land holdings

(b) Projects for the use of uncultivated land... etc., up to letter (m)

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5. Manufacture of glass

42. With the exception of points 5, 9 and 12, these headings are also subdivided into sub­ headings, prefixed by letters of the alphabet, 6. Chemical industry in the same way as headings 1, 2 and 3.

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43. In order to resolve the dispute between economic sectors such as agriculture, the the Federal Republic of Germany and the extractive industry or the energy industry. Commission, we need, in my view, to take as our starting point Article 4(1) which states that: 'projects of the cUsses listed in Annex I shall be made subject to an assessment' and, in Article 4(2), that 'projects of the classes listed in Annex II shall be made subject to an 5 assessment ... where...'. 47. This point can be illustrated by an example. Annex I lists the following classes of projects:

44. It is inconceivable that the concept of 'classes' can have a different meaning depending on which of the annexes it appears '7. Construction of motorways, express roads in. and Unes for long-distance railway traffic and of airports with a basic runway length of 2 100 m or more.

49. This juxtaposition shows that points 7 and 8 of Annex I have a counterpart in point 10(d) of Annex II, which lists projects of the same type but on a smaller scale.

54. In Commission v Belgium 7the Court held that, whilst it follows from Article 4(2) of the Directive 'that Member States may always specify certain "types" of projects as 50. I do not believe that it can be claimed that the counterpart of points 7 and 8 of being subject to assessment or may establish Annex I is the whole huge field of infrastruc­ criteria and/or thresholds for determining ture projects. which projects are to be subject to assess­ ment, it must be emphasised that that power of the Member States is conferred within each of the classes listed in Annex II. This means that the Community legislature itself consid­ ered that all the classes of projects listed in Annex II may possibly have significant effects 51. The German Government's interpreta­ on the environment depending on the char­ tion, if followed, would negate a large part of acteristics exhibited by those projects at the the Directive's effectiveness. time when they were drawn up.'

52. As the Commission rightly submits, the effect of that interpretation would be that a 55. In Kraaijeveld, 8 the Court stated that Member State would be entitled to select just 'although the second paragraph of Article 4(2) one 'project' (according to the German inter­ of the directive confers on Member States a pretation of that concept) from each of the 12 measure of discretion to specify certain types main headings in Annex II, which would of projects which will be subject to an assess­ reduce it to nothing more than an 'à la carte' ment or to establish the criteria or thresholds annex.

58. That interpretation does not conflict with the statement by the Council and the Com­ mission, recorded in the Council minutes, quoted by the German Government, to the effect that under Article 4(2) Member States 56. Those passages from the Court's case-law may also decide that projects falling within would be meaningless if 'classes of projects' classes listed in Annex II are to be subject to had to be taken as meaning the 12 main fields a simplified examination or do not need to be of activity identified by arabic numerals and subject to an examination. That statement is not the more specific categories prefixed by totally in line with the Commission's argu­ letters of the alphabet. ment since, as I see it, 'projects' should be understood to mean individual projects pre­ sented by a given developer.

57. In my view, the Court meant that Member States have the power to decide that within a precise category of projects (or 'classes' according to the term used by the Directive) 59. The Commission's view (with which I — for instance 'pig-rearing installations' — agree) has, moreover, unquestionably been only individual projects exceeding a certain confirmed by the new version of Article 4

11 — See judgment in the aforementioned Case C-72/95 9 — Cited above, paragraph 42. Kraaijeveld and Others v Gedeputeerde Staten van Zuid- 10 — Emphasis added. Holland [1996] ECR I-5403, paragraph 49.

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inserted into Directive 85/337 by Council Member States may decide to apply both Directive 97/11/EC of 3 March 1997. Article procedures referred to in (a) and (b).' 4 now reads as follows:

64. The Commission itself recognises that the provide the competent authority to assess the terminology previously used by the Directive impact of the project on the environment. could give rise to difficulties in interpretation. The fact remains, however, that several Member States interpreted the Directive in the same way as the Commission. Moreover, the action for failure to fulfil obligations is an objective procedure designed to clarify the obligations of Member States arising from Community law. As is apparent from the 67. The Commission concedes that the defen­ Court's case-law, the procedure for a declara­ dant has defined the information required in tion of a failure on the part of a State to fulfil Paragraph 6(3) and (4) of the UVPG, in accor­ an obligation itself affords a means of deter­ dance with the requirements of the Directive. mining the exact nature of the obligations of However, the second sentence of Paragraph the Member States in case of differences of 6(2) of the UVPG states that the provisions 15 interpretation. in question are only applicable 'if the infor­ mation listed in those subparagraphs is not defined in detail by a legal provision'.

65. The Court therefore cannot but declare that the Federal Republic of Germany has failed to fulfil its obligations under Article 2 of the Directive, since it excluded in advance 68. According to the Commission, this means certain entire classes of projects listed in that other legal provisions, defining in detail Annex II from an assessment of the effects on the information that must be provided by the the environment. developer, take precedence over the provi­ sions of the UVPG and thus replace them, irrespective of whether those other provisions do or do not comply with the requirements of Article 5(2) of the Directive.

70. The German Government's reply is that assessment and hence warrant provision by the Commission's argument does not take the developer of certain information that he account of Paragraph 4 of the UVPG, which would not have had to provide in another sets out the general rules governing relation­ field. ships between the UVPG and the other legal provisions enacted by the Federation or the Länder in the field covered by the Directive. That paragraph lays down the basic rule that, when the requirements contained in the statu­ tory provisions enacted by the Federation or Länder fall short of the requirements of the 74. Paragraph 6(2) of the UVPG ensures, in UVPG , then the latter prevails. conjunction with Paragraph 4 thereof, that the developer will always have to provide at least the information laid down in Paragraph 6(3) and (4). This corresponds to the infor­ mation required under Article 5(2) of the Directive.

71. Conversely, if the legal provisions of the Federation or Länder require the production of documents additional to those required under Paragraph 6(3) and (4) of the UVPG , then those provisions remain applicable. 75. It is therefore my opinion that the Fed­ eral Republic of Germany has not transposed Article 5(2) of the Directive incompletely.

72. I propose that the Court accept the argu­ ments of the German Government on this point. It is common ground that Article 5(2) 76. I therefore propose that the Court declare only requires a minimum of information to this head of claim unfounded. be provided by the developer. Furthermore, Article 13 of the Directive expressly allows Member States to lay down stricter rules to govern the environmental impact assessment procedure. In my view, that includes the infor­ Costs mation to be provided.

— by failing to take the necessary measures to comply with the Directive within the prescribed period,

— by failing to communicate to the Commission the texts of all domestic legal provisions adopted in the field covered by the Directive,

— by failing to provide for an environmental impact assessment to be carried out for all projects in respect of which such an assessment is to be carried out under the Directive, and for which the development consent procedure was commenced after 3 July 1988 and

— by failing to provide that all the classes of projects listed in Annex II to the Directive must be examined in order to determine whether they are likely to have significant effects on the environment,

(2) dismiss the remainder of the application;

(3) order the Federal Republic of Germany to pay the costs.