C-474/99

OPINION OF MR GEELHOED — CASE C-474/99

OPINION OF ADVOCATE GENERAL GEELHOED delivered on 7 March 2002 1

I — Introduction legislation whereby the basic provisions are laid down in national legislation and the regions, known as autonomous commu- nities, may enact secondary legislation. The Commission claims that the Spanish legis- lation infringes Community law for two, 1. In these proceedings, which are brought closely-linked, reasons. First, the Commis- under Article 226 EC, the Commission of sion submits that the national legislation the European Communities seeks a declar- requires that only a very limited number of ation from the Court of Justice that the the classes of projects listed in Annex II to Kingdom of Spain has failed to fulfil its the Directive must undergo an environ- obligations under Council Directive mental impact assessment. Second, it 85/337/EEC of 27 June 1985 on the assess- emerges from the Commission's examin- ment of the effects of certain public and ation of the legislation of the autonomous private projects on the environment 2('the communities that while (the majority of) Directive'), in that it has not adopted the those communities have adopted legislation laws, regulations and administrative provi- concerning the assessment of the effects of sions necessary to comply with the Direc- certain classes of project on the environ- tive. In particular, the Commission in its ment, that legislation has only partially application seeks a declaration that there eliminated the shortcomings of the national has been a failure to comply with legislation. Articles 2(1) and 4(2) of, in conjunction with Annex II to, the Directive. 3

'Member States shall adopt all measures — the inter-action between the factors necessary to ensure that, before consent is mentioned in the first and second given, projects likely to have significant indents, 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. — material assets and the cultural heri- tage.'

These projects are defined in Article 4.' 6. Article 4 provides as follows:

5. Article 3 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.

'The environmental impact assessment will identify, describe and assess in an appropri- ate manner, in the light of each individual 2. Projects of the classes listed in Annex II case and in accordance with the Articles 4 shall be made subject to an assessment,

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8. Under the Spanish constitution, the State and the autonomous communities 4share competence in relation to the environment. That applies at both a legislative and an executive level. The State is empowered to adopt primary legislation, while the auton- 10. At a national level, Royal Legislative omous communities may adopt secondary Decree 1302/1986 of 28 June 1986 on legislation deriving therefrom. The auton- environmental impact assessment, and omous communities may enact supplemen- Royal Decree 1131/1988 of 30 September tary protective measures. In principle, the 1988 approving the implementing rules for the former, constitute the first measures transposing the Directive into national law. 4 — In this Opinion, the term also includes the autonomous The Annex to Royal Legislative Decree cities of Ceuta and Melilla. 1302/1986 lists the projects contained in

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Annex I to the Directive, plus four of the III — Facts and procedure classes of projects contained in Annex II.

13. A Royal Decree on environmental impact assessment, which entered into force on 8 October 2000, was adopted in order to implement Directive 97/11, which thoroughly amended the Directive. 6 16. It was only much later, on 18 De- cember 1998, that a supplementary rea- soned opinion was delivered. The Spanish 5 — OJ 1992 L 206, p. 7. Government replied by letter of 25 Feb- 6 — See footnote 3. ruary 1999. The Spanish Government

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20. The Commission goes on to list the 18. During the written phase of the pro- classes of projects which are not included in cedure before the Court, the Commission the Spanish national legislation. In response complained, in particular, that the Spanish to the Spanish Government's claim that any Government had failed to send it copies of gaps were filled by the legislation of the many of the implementing measures. That autonomous communities, the Commission complaint referred more particularly to analysed the provisions which were sub- measures adopted by the autonomous mitted to it. The Commission finds that communities. As a result of that complaint, there are extensive gaps in those provisions. the Spanish Government attached a size- able bundle of legislation to its rejoinder but without indicating which specific provisions were intended to give effect to the Directive. The hearing in these proceed- ings was held on 10 January 2002.

21. The Commission also rejects the Span- ish Government's argument that some of the projects listed in Annex II are assessed under an informal procedure, similar to IV — Arguments of the parties that used for the projects listed in Annex I. It is settled case-law of the Court that mere administrative practices cannot constitute measures of transposition. 19. In its application, the Commission asserts that Article 4(2) of the Directive must be interpreted in the light of the 7 — Case C-133/94 [1996] ECR I-2323.

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25. The Commission sets out four tests which a legislative measure must satisfy in 23. The Commission set out in detail its order to be taken into consideration: objections to the above both in its reply and at the hearing.

24. The Commission contests the method by which the Spanish Government — the legislation must have entered into informed it of the implementing measures. force no later than 25 February 1999; In particular, the legislation mentioned by the Spanish Government was never notified to the Commission as an implementing measure. In its defence, the Spanish Gov- ernment merely stated that the legislation in question provided for environmental impact assessments, but it did not specify which of the classes of projects from Annex II are subject to an assessment. In — the legislation must refer to the projects addition, the copies of the provisions in listed in Annex II to the Directive;

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— the environmental impact assessment, cific — to which the Spanish Government which must be carried out in accord- refers, the Commission's complaint is ance with the legislation, must meet the founded on the fact that those provisions requirements of the Directive both as do not mention the procedure provided for regards the procedure to be followed under the Directive. The Commission also and the information to be made avail- puts forward the following more specific able to the public; complaints:

8 — I will not discuss all the measutes cited by the Commission 9 —Decree 2114/1961 of 30 November 1961 approving the here, but will confine myself to those measures on which the regulations on activities which present a nuisance or a Commission has specifically commented. health risk or are harmful or dangerous.

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— Law 46/1999 of 13 December 1999 on — The Commission reiterates its position water and Royal Decree 1836/1999 of concerning practices which are merely 3 December 1999 on nuclear and administrative in nature. The Commis- radioactive installations were adopted sion also submits that, according to the after the expiry of the time-limit laid settled case-law of the Court, domestic down in the supplementary reasoned political circumstances may never be opinion; relied upon in order to justify a short- coming in implementation.

— Law 25/1988 of 29 July 1988 and 28. Based on the information available to Royal Decree 1812/1994 of 2 Septem- it, the Commission accepts that Spanish ber 1994 on roads cannot be regarded national legislation effectively governs the as implementing measures, since they assessment of effects on the environment only provide for certain derogations for six of the 83 classes listed in Annex II. from the duty to carry out an environ- mental impact assessment;

31. In the rejoinder the Spanish Govern- ment states first of all that the Commission fails to take account of the division of — In Navarra, no rules governing the powers between the State and the auton- assessment of the effects on the omous communities. The Spanish constitu- environment of the projects listed in Annex II have been adopted; tion gives the State power to adopt primary legislation on the environment. In a judg- ment of 4 July 1991,11the Constitutional Court held that, as regards the environ- ment, the State has a lesser duty than in other fields to leave scope for the imple- — In Catalonia, Extremadura, Aragon, mentation of primary legislation by means Galicia and Asturias, specific provi- of legislation adopted in the autonomous sions governing environmental impact communities. The Constitutional Court assessment have been adopted. Those held that the primary legislation on the provisions are limited to certain sec- protection of the environment 12 lays down tors. Additional measures are needed in the minimum level of environmental pro- order to provide, inter alia, for com- tection required at a national level, which pulsory environmental impact assess- may be increased by the legislation of the ments in other sectors; autonomous communities. In addition, cer- tain of the classes listed in Annex II to the Directive may be regulated at both State and regional levels. Furthermore, the court noted that the provisions set out in national (primary) legislation also apply in the — Specific provisions creating a duty to autonomous communities, even if the legis- carry out environmental impact assess- lation of those communities does not ments have been enacted in the other specify as m u c h . In t h e S p a n i s h Govern- autonomous communities. However, 10 — At the hearing, the Commission submitted a supplement an initial examination of the provisions (amendment) to its observations regarding the legislation submitted reveals that certain amend- of Murcia and of Castile and Leon. ments and, in some cases, additions are 11—Judgment 149/1991. 12 — And also on town planning, in the view of the Spanish needed. Government.

37. In the opinion of the Spanish Govern- 34. At the hearing, the Spanish Govern- ment, the Commission takes a very strict ment stated that the definitions of the view of the provisions of Annex II. In projects listed in Annex II have not been interpreted uniformly by experts. That, together with the fact that the Community 1 3— Case C-392/96 [1999] UCR I-5901.

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In essence, in that case the Court came to 44. That interpretation was confirmed and the view that Article 4(2) does not refined in Kraaijeveld and Others, 18 a case empower the Member States to exclude which concerned construction works, in generally and definitively from possible this instance the reinforcement of a dyke assessment one or more classes mentioned along waterways. 19 The Court acknowl- in Annex II. In Commission v Germany, 17 edged that the exercise of the power to lay the Court also held that the term 'class' down specifications, criteria and thresholds does not refer to the 12 'principal' classes does not dispense with the duty of a of projects listed in Annex II, but rather to Member State to undertake an actual the projects which feature as subdivisions examination of each project in order to of those classes, each of which is preceded verify if it fulfils the criteria of Article 2(1) by a letter of the alphabet. of the Directive.

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46. In Commission v Ireland, 20 the Court preliminary observations. Next, I will use further clarified its view. A Member State that outline of the context as a basis for which limits itself to establishing criteria determining the scope of the dispute. Only and/or thresholds taking account only of after I have done that will I analyse the the size of a project, without also taking actual object of these proceedings, namely their nature and location into consider- the alleged failure to fulfil certain obli- ation, exceeds the limits of its discretion gations deriving from the Directive. under Articles 2(1) and 4(2) of the Direc- tive. Even a small-scale project can have significant effects on the environment if it is in a location where the environmental factors set out in Article 3 of the Directive, such as fauna and flora, soil, water, climate or cultural heritage, are sensitive to the slightest alteration. 21 Member States must also ensure that the objective of the legis- Preliminary observations lation will not be circumvented by the splitting of projects. 22

49. At the hearing, the question arose as to why the Commission has brought these proceedings, in view of the fact that in the 47. To complete this overview, I should meantime new legislation implementing also mention — although it may be super- Directive 97/11 has entered into force in fluous to do so — the case of WWF and Spain.24 The Commission puts forward Others, 23 in which the Court upheld its two reasons why, notwithstanding this, it earlier case-law and also considered the has pursued these proceedings. First, the question of the direct effect of the provi- new legislation does not cover projects sions of the directive in question in a case which had already been approved prior to where a Member State had exceeded the the entry into force of the new legislation. limits of the discretion conferred upon it. Second, the new legislation provides for long transitional periods.

51. By way of a second preliminary obser- 53. Furthermore, for what it is worth, I vation, I would like to draw attention to would also like to point out that it does not the obligations of Member States in cases necessarily follow from the organisation of where implementation of a directive is the Spanish State that implementation of decentralised. In Commission v Ger- the Directive must be (partially) decen- many, 25 the Court held that Germany tralised. The Spanish State is empowered to had failed to fulfil its obligations under adopt primary legislation. There is nothing the Treaty by not requiring the Länder to to preclude that primary legislation from ensure the application of certain imple- containing all the provisions required to menting measures. In my opinion, under transpose the Directive into national law. I current Community law, the central autho- note that the Spanish Government chose to rities of a Member State where the imple- transpose Directive 97/11 into national law mentation of a directive is assigned, in by setting out all the implementing provi- whole or in part, to regional authorities sions in legislation of the national State. In have at least the following obligation: the that connection, the Spanish Government central authority must ensure that imple- continues to complain that the Commission mentation at the decentralised level is has failed to take account of the nature of effectively carried out. In the present case, the division of powers between the Spanish that means that central authorities must State and the autonomous communities. I intervene if a regional authority has not consider that complaint to be wholly carried out correctly the task which it has groundless. The Commission considers been required to perform, namely the both the national legislation and the legis- implementation of a directive. In the pres- lation of the autonomous communities in ent case, there is no evidence that the its analysis. Only after carrying out that Spanish national authorities carried out analysis did the Commission conclude that such checks or that they intervened in cases even the two levels of legislation taken where the Directive was incorrectly imple- together cannot lead to the conclusion that mented in the autonomous communities. the Directive has been fully implemented.

54. A third preliminary observation con- tasks entrusted to the institutions. That cerns the procedure as it has been followed duty occasionally requires Member States up to now. I should like to point out that to cooperate actively with the institutions the procedure under Article 226 EC — to the extent that such cooperation may which, in this case, concerns the incorrect contribute to, or may even be necessary for, implementation of a directive — is not like the effective performance by the institu- a criminal procedure. In criminal proceed- tions of their tasks. In the case before the ings, it is generally for the prosecution to Court, the task in question is, specifically, adduce evidence of an offence. The accused the Commission's duty to oversee the may remain fairly passive and merely rebut transposition of the Directive. The duty of the evidence adduced by the prosecution. the Member States under Article 10 EC is to be as transparent as possible about the implementation of each of the provisions of the Directive. Naturally, where transposi- tion is more complex in nature, due, for example, to the fact that it is carried out at 55. By contrast, the procedure for infringe- a decentralised level, the contribution ment under Article 226 EC is on occasion a expected from a Member State will accord- necessary follow-up to the transposition of ingly be all the greater. a directive, which is governed by Article 10 EC. Cooperation between Member States and the Commission is a priority when it comes to the transposition of directives. The requirement of cooperation continues to be important even after the initiation of 57. In proceedings for failure to fulfil an the contentious phase of proceedings. As I obligation, brought under Article 226 EC, stated in my Opinion in Finland v Com- it is of course for the Commission to mission, while it is true that Member States adduce the evidence required to support are entitled first and foremost to act to its claim that a Member State has failed to protect their position in proceedings, that fulfil its obligations. As against that, there does not imply that they are entitled to is the legal duty of a Member State under render it totally impossible to proceed with Article 10 EC, which I described under the the case. 27 preceding point. Specifically, the Member State must provide the Commission with the necessary information to enable that institution to determine whether, and to what extent, the obligations deriving from a directive have been fulfilled. That infor- 56. In that regard, I would like to empha- mation must, therefore, enable the Com- sise that, under the EC Treaty, Member mission to substantiate its claim. States are jointly responsible for the func- tioning of the Community legal order. That joint responsibility is enshrined inter alia in Article 10 EC. The Member States are required to facilitate the achievement of the 58. I have been unable to conclude from the course of these proceedings that the 27 — Case C-170/00 [2002] ECR I-1007, I-1010, point 27. Spanish Government has borne in mind the I - 5310

61. My fourth preliminary observation fol- 59. Furthermore, in a situation like the lows on from the third. As a result of the current one, it is not the Court's task to Spanish Government's attitude, it was not undertake a detailed assessment of all the possible to take full advantage of the regional provisions. Such an assessment is pre-litigation procedure in these proceed- not relevant to the subject of these proceed- ings. I should like to point out that the aim ings. The situation would have been dif- of the procedure under the first paragraph ferent if, during the pre-litigation pro- of Article 226 EC is not only to safeguard cedure, the Spanish Government had sub- the rights of the Member States, but also to mitted to the Commission the information define the subject-matter of the contentious which would have enabled the latter to proceedings. 29 In the case before the Court, formulate in more detail the application the Commission has been prevented from lodged at the Court. Furthermore, a focusing the proceedings on the shortcom- detailed assessment of the legislation of ings which actually exist in the Spanish the autonomous communities of Spain legislation. would require the Court to undertake an excessive amount of research because the Spanish Government also failed to provide the Court with an ordered account of where, in the legislation submitted, the different classes of projects listed in 62. I should also add that, during the Annex II to the Directive feature. In course of the proceedings, the Spanish proceedings before the Court, it is first and foremost for the parties, and not for the Court, to substantiate the facts which 28 — Cited in footnote 13. 29 — See also mv Opinion in Case C-127/99 Commission v Italy they put forward. [2001] ECU I-8105, I-8307.

64. To summarise, those four preliminary observations have the following con- The scope of the dispute sequences for the scope of the dispute:

65. The first limitation on the scope of the dispute which I would like to mention is — It is not for the Court to determine the linked to the scope of the questions raised reasons why the Commission brought in these proceedings.

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66. The Commission seeks a declaration relation to which the assessment is made. In from the Court that the Kingdom of Spain that regard, I should like to recall that the has failed to transpose correctly the provi- Court has consistently held that the ques- sions of Articles 2(1) and 4(2) of, in tion whether a Member State has failed to conjunction with Annex II to, the Directive. fulfil its obligations must be determined by In my opinion, the Court is entitled to reference to the situation in the Member confine itself to declaring that the Kingdom State as it stood at the end of the period laid of Spain has failed to fulfil its obligations, down in the reasoned opinion. The Court and it is not required to assess in detail the cannot take account of any subsequent extent to which the various autonomous changes. 30 It follows from that case-law communities of Spain have implemented that, in its assessment, the Court may not, the Directive. As I have already stated, the in any event, take into account the royal Court does not have to provide a detailed decree which entered into force on 8 Oc- assessment of all the implementing provi- tober 2000 and pursuant to which Spanish sions. Similarly, I have also already pointed legislation was allegedly harmonised with out that the national State has a duty to the Directive. ensure that the Directive is correctly trans- posed throughout the whole of its territory.

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claims, the dispute does not turn on 72. In essence, it is necessary to determine whether there has been an infringement of whether Royal Decree 1997/1995 of 7 De- Article 12(2) of the Directive, pursuant to cember 1995, setting out measures for the which Member States are required to protection of biodiversity, constitutes a communicate to the Commission the meas- correct transposition of the Directive. ures adopted in order to transpose the Under that royal decree, environmental Directive into national law. That means impact assessments are required for pro- that there is no need for the Court to jects listed in Annex II to the Directive consider the question whether the imple- which have a significant effect on special menting measures were communicated to areas of conservation. It falls to the Court the Commission within the required period. to answer the question whether the limi- tation to projects having that specific char- acteristic is an admissible criterion under Article 4(2) of the Directive.

Substance

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a wide definition of the environment, with one another, cannot lead to the con- whereas the Habitats Directive is aimed clusion that the national legislature has only at the protection of biodiversity and, fully transposed the Directive. In that accordingly, only designates areas which respect, I would recall the four criteria are important in terms of their biodiversity. put forward by the Commission. In order for a legal measure to be regarded as an implementing provision it must have entered into force before the expiry of the time-limit laid down in the reasoned opinion, it must refer to the projects listed in Annex Il, it must satisfy the (procedural) 75. I must also add the following. In requirements of the Directive, and it must Commission v Ireland, 32 the Court held not be limited to specific sectors. There is that when establishing criteria and/or no doubt at all in my mind that those thresholds Member States may not take criteria are correct. account only of the size of projects. By analogy with that judgment, it is my view that nor may Member States take account only of the location of projects. Thus, irrespective of its location, a project — due, for example, to its size — may still be liable to have significant effects on the environment. 78. The Commission goes on to state that none of the national measures cited by the Spanish Government complies with all those four criteria. 33 The Spanish Govern- ment does not contest that assertion, other 76. I therefore conclude that Royal Decree than by reference to Royal Decree 1997/1995 of 7 December 1995 does not 1997/1995 which I have already discussed fully implement the Directive. Indeed, I in sufficient detail. have reached that conclusion without giv- ing consideration to the Commission's claim that the environmental impact assess- ment procedure, laid down in the royal decree, does not satisfy the requirements of the Directive.

80. I do not need to carry out a detailed 83. Geographical circumstances can in analysis for it to be clear to me that that themselves mean that, in some regions, question can only be answered in the there is no duty to undertake environ- negative. mental impact assessments for certain classes of projects, but only where it is impossible to carry out those classes of projects in the region in question. I have in mind, for example, the extraction of certain materials (see part 2 of Annex II) if those materials do not exist in the specific region. However, the derogations set out in the 81. First, it is not disputed that the auton- legislation of the autonomous communities omous cities of Ceuta and Melilla and the are far wider than that. I shall give one autonomous community of La Rioja have example. Projects in the food industry are not enacted any environmental impact exempted in Asturias, the Canary Islands, assessment legislation. As a result, contrary the Balearic Islands and Castile and to the Directive, projects undertaken in Leon, 34 despite the fact that, according to those regions are not subject to an envi- the table, there are no national provisions ronmental impact assessment. governing that sector either.

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V I I— Conclusion

85. In the light of the foregoing considerations, I propose that the Court of Justice should:

(a) Declare that the Kingdom of Spain has failed to fulfil its obligations 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, in that it has not adopted the laws, regulations and administrative provisions necessary to comply with Articles 2(1) and 4(2) of, in conjunction with Annex II to, that directive.

(b) Order the Kingdom of Spain to pay the costs, in accordance with Article 69(2) of the Rules of Procedure.