C-301/95

Federal Republic of Germany, represented by Ernst Röder, Ministerialrat at the Federal Ministry of Economic Affairs, acting as Agent, and Dieter Sellner, Recht­ sanwalt, Bonn, D-53107 Bonn,

defendant,

APPLICATION for a declaration that the Federal Republic of Germany has failed to comply with its obligations under Articles 5 and 189 of the EC Treaty and under 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), in particular Articles 2, 3, 5(2), 6(2), 8, 9 and 12(1) and (2) thereof,

* Language of the case: German.

I-6154

COMMISSION v GERMANY

after hearing the Opinion of the Advocate General at the sitting on 12 March 1998,

gives the following

Judgment

1 By application lodged at the Court Registry on 20 September 1995, the Commis­ sion of the European Communities brought an action under Article 169 of the EC Treaty for a declaration that the Federal Republic of Germany had failed to comply with its obligations under Articles 5 and 189 of the EC Treaty and under 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, 'the Direc­ tive'), in particular Articles 2, 3, 5(2), 6(2), 8, 9 and 12(1) and (2) thereof.

I-6155

JUDGMENT OF 22. 10. 1998 — CASE C-301/95

I-6156

COMMISSION v GERMANY

"development consent" means:

the decision of the competent authority or authorities which entitles the developer to proceed with the project.

...'

4 Article 3 provides:

JUDGMENT OF 22. 10. 1998 — CASE C-301/95

5 Pursuant to Article 12(1), the Member States were required to take the measures necessary to comply with the Directive within three years of its notification. Since the Directive was notified on 3 July 1985, that period expired on 3 July 1988.

6 In Germany the Directive was transposed by the Gesetz über die Umweltverträgli­ chkeitsprüfung (Law on environmental impact assessment, 'the UVPG' ) of 12 Feb­ ruary 1990, which came into force on 1 August 1990 (BGBl. I, p . 205).

7 On examining the provisions of the UVPG , the Commission reached the conclu­ sion that the legislation in force in Germany, as notified to it, did not comply with the provisions of the Directive. It therefore sent a letter of formal notice on 4 Feb­ ruary 1992 informing the German Government of the various points with which it took issue.

8 The German Government replied by letter of 16 June 1992, and the Commission reconsidered its position with regard to certain of the points raised in its letter of formal notice, finally limiting them, in its reasoned opinion sent to the German Government on 4 July 1994, to those falling under six headings each constituting a distinct instance of failure to transpose the Directive correctly. The Commission called on the German Government to take the measures necessary to comply with the reasoned opinion within two months from its notification.

9 Having received no reply to its reasoned opinion, the Commission brought the matter before the Court. Its action related to instances of failure to fulfil obliga­ tions falling under six different headings: delay in transposing the Directive; failure to communicate all the provisions adopted in the field covered by the Directive; failure to apply the Directive to all projects for which consent was given after 3 July 1988; incomplete transposition of Article 2 of the Directive with regard to the

12 The German Government considers that it would be inappropriate to make a formal declaration of the alleged failure to fulfil obligations, since the Court has already held, in Case C-396/92 Bund Naturschutz in Bayern and Others v Freistaat Bayern [1994] ECR I-3717, that there had been a delay in transposing the Direc­ tive in Germany.

13 Here, though, it must be noted that the Bund Naturschutz in Bayern judgment was given in response to a request for a preliminary ruling on the interpretation of Article 12(1) of the Directive. An action for failure to fulfil obligations differs, how­ ever, in both its purpose and its consequences.

I - 6159

JUDGMENT OF 22. 10. 1998 — CASE C-301/95

14 The purpose of such an action is to obtain a formal finding that a Member State has failed to fulfil its obligations under Community law.

15 As regards its consequences, that formal finding is a prerequisite for the initiation, where appropriate, of the procedure provided for in Article 171 of the EC Treaty, as amended by the Treaty on European Union.

19 The Commission states that the German Government did not communicate all the national provisions intended to transpose the Directive, in particular those adopted by the Länder. Such provisions, having been adopted in the field covered by the Directive, should in the Commission's view have been communicated in accordance with Article 12(2). Germany has thus failed to fulfil its obligations under Article 5 and the third paragraph of Article 189 of the Treaty, read in conjunction with Article 12(2) of the Directive.

20 The German Government counters that neither Article 12(2) nor any other provi­ sion of Community law obliges it to communicate to the Commission all the mea­ sures it has taken to comply with the Directive.

21 It further argues that under Paragraph 4 of the UVPG , that Law takes precedence over specific Laws and over the legislation of the Länder. In any instance where the requirements laid down by the latter fall short of those contained in the UVPG , the rules in the UVPG are directly applicable. The UVPG thus ensures that the requirements of the Directive are fully satisfied, making it unnecessary to com­ municate other provisions to the Commission.

22 Here it must be noted that the wording of Article 12(2) of the Directive leaves no doubt as to the scope of the obligation placed on Member States to communicate to the Commission all the provisions which they adopt in the field covered by the Directive. Nor does it give any reason to suppose that distinctions may be drawn as to the nature of that obligation according to whether a Member State has a fed­ eral or centralised structure or according to the legislative technique which it employs.

26 In the Commission's submission, that transitional provision limits the scope ratione temporis of the UVPG , in that consent procedures commenced before 1 August 1990 but after 3 July 1988, when the period within which the Directive was to be transposed expired, are not subject to an environmental impact assessment in accor­ dance with the requirements of the Directive. Germany has thus failed to fulfil its

I-6162

COMMISSION v GERMANY

obligations under Article 5 and the third paragraph of Article 189 of the Treaty, read in conjunction with Article 12(1) of the Directive.

27 The Federal Government argues that it was already made clear in the Bund Natur- schutz in Bayern and Commission v Germany judgments, cited above, that the Fed­ eral Republic of Germany was not entitled to adopt a derogating provision such as that contained in Paragraph 22(1) of the UVPG concerning projects for which the consent application had been lodged before 3 July 1988 and thus to exempt such projects from the environmental impact assessment requirement. That question having been settled by those two judgments, there is no reason for the Court to rule afresh on the same point of law.

28 Here it must be observed that the subject-matter of the Commission v Germany case, cited above, was different, since it concerned a finding that Germany had failed to fulfil its obligations by failing to comply with the environmental impact assess­ ment requirement laid down by the Directive in a specific case relating to a specific project. The application in that case did not seek a finding that the Member State had failed to fulfil its obligations by adopting Paragraph 22 of the UVPG .

These projects are defined in Article 4.

...'

31 Article 4 provides:

'1 . Subject to Article 2(3), projects of the classes listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

2. Projects of the classes listed in Annex II shall be made subject to an assessment, in accordance with Articles 5 to 10, where Member States consider that their char­ acteristics so require.

I - 6164

I-6165

JUDGMENT OF 22. 10. 1998 — CASE C-301/95

35 The Commission therefore asks the Court to rind that, by excluding in advance whole classes of projects listed in Annex II to the Directive from the environmental impact assessment requirement, Germany has failed to fulfil its obligations under Article 5 and the third paragraph of Article 189 of the Treaty, read in conjunction with Articles 2(1) and 12(1) of the Directive.

36 The German Government considers that a distinction is to be drawn between the concepts of 'classes' and 'projects'. In its opinion, Annex II to the Directive lists a total of '12 classes of projects' within which there are 'specific' projects. Each of the 12 categories in the annex thus constitutes a class of projects and each of the subdivisions of those categories, preceded by a letter of the alphabet, constitutes a specific project.

37 It submits that, under Article 4(2) of the Directive, each Member State may decide, at its own discretion, which of the specific projects listed under the 12 classes has to be subject to the assessment requirement. The UVPG takes account of all the classes of projects in Annex II to the Directive and, within those classes, requires an environmental impact assessment to be carried out on those projects whose char­ acteristics warrant it in the opinion of the federal legislature. To that end, the German Government used its discretionary power to set criteria and/or thresholds for certain types of projects in respect of the assessment obligation. It is thus wrong to claim that the Federal Republic of Germany has excluded whole classes of projects from the assessment requirement.

42 However, the nine categories of projects in Annex I cannot, by their nature, cor­ respond to the 12 categories in Annex II, each of which constitutes a vast field of economic activity; they must rather correspond to the subdivisions of those cat­ egories, each preceded by a letter of the alphabet. That consideration is borne out by the fact that categories 5, 9 and 12 in Annex II, which are not subdivided, each constitute an activity confined within clear limits.

43 For example, the category of projects entitled 'Construction of motorways, express roads and lines for long-distance railway traffic and of airports ...' under point 7 in Annex I cannot correspond, as a class of projects, to the category under point 10 of Annex II, entitled 'Infrastructure projects'; it must rather correspond to subdivi­ sion (d) within that point, which refers to 'Construction of roads, harbours, including fishing harbours, and airfields (projects not listed in Annex I)'.

I - 6167

JUDGMENT OF 22. 10. 1998 — CASE C-301/95

44 Any other interpretation of the concept in question would negate the effectiveness of the rule laid down in Article 2(1) of the Directive, that projects likely to have significant effects on the environment by virtue inter alia of their nature, size or location are to be made subject to an environmental impact assessment, and would leave Member States free to apply Annex II as they saw fit.

45 It is specifically on the basis of that rule that the Court has held that the limits of the discretion conferred on the Member States by Article 4(2) of the Directive are to be found in the obligation set out in Article 2(1) (Case C-72/95 Kraaijeveld and Others v Gedeputeerde Staten van Zuid-Holland [1996] ECR I-5403, paragraph 50), and that the criteria and/or thresholds mentioned in Article 4(2) are designed to facilitate the examination of the actual characteristics exhibited by a given project in order to determine whether it is subject to the requirement to carry out an assessment and not to exempt in advance from that obligation certain whole classes of projects listed in Annex II which may be envisaged on the territory of a Member State (Case C-133/94 Commission v Belgium, cited above, paragraph 42).

49 According to the Commission, this means that other statutory provisions, defining in detail the information that must be provided by the developer, take precedence over the provisions of the UVPG and thus replace them in such cases. The Com­ mission therefore considers that, by failing to lay down a general requirement in respect of the information to be supplied under the Directive, Germany has failed to fulfil its obligations under Article 5 and the third paragraph of Article 189 of the Treaty, in conjunction with Articles 5(2) and 12(1) of the Directive.

50 The German Government claims that the Commission's approach is based on a misinterpretation of Paragraph 6(2) of the UVPG . That provision does not derogate from the general rule in Paragraph 4 of the UVPG , governing the relationship between that Law and other statutory provisions laid down by the Federation or the Länder within the field covered by the Directive. In accordance with that rule, if the requirements laid down by such statutory provisions fall short of those of the UVPG , then the latter take precedence.

51 Here, it must be noted that Article 5(2) of the Directive specifies the minimum scope of the information to be supplied by the developer. The Commission does not claim that the provisions of Paragraph 6(3) and (4) of the UVPG do not provide a correct transposition of their counterpart in the Directive.

52 If, for reasons which may be linked to the federal structure of the State, other spe­ cific provisions of the Federation or the Länder lay down particular requirements corresponding, possibly, to the individual needs of the various fields of activity covered by the Directive, it must be noted that Article 13 of the Directive allows

— by failing to communicate to the Commission all the measures which it has taken to comply with the Directive,

— by not requiring an environmental impact assessment for all projects on which such an assessment had to be carried out in compliance with the Directive, where the consent procedure was commenced after 3 July 1988, and

— by excluding in advance from the environmental impact assessment require­ ment whole classes of projects listed in Annex II to the Directive,

I-6170

COMMISSION v GERMANY

the Federal Republic of Germany has failed to fulfil its obligations under Articles 2(1), 4(2) and 12(1) and (2) of the Directive.

1) Declares that,

— by failing to take the necessary measures to comply with Council Direc- tive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment within the prescribed period,

I-6171

JUDGMENT OF 22. 10. 1998 — CASE C-301/95

— by failing to communicate to the Commission all the measures which it has taken to comply with that directive,

— by not requiring an environmental impact assessment for all projects on which such an assessment had to be carried out in compliance with that directive, where the consent procedure was commenced after 3 July 1988, and

Delivered in open court in Luxembourg on 22 October 1998.

R. Grass R J. G. Kapteyn

Registrar President of the Sixth Chamber

I - 6172