C-319/01

OPINION OF MRS STIX-HACKL — CASE C-319/01

OPINION OF ADVOCATE GENERAL STIX-HACKL delivered on 9 July 2002 1

I — Introduction II — Legislative background

1. In this case the Commission is seeking a 3. Directive 97/11/EC amends and adds to declaration pursuant to Article 226 EC Council Directive 85/337/EEC 3 (here- that, by failing to adopt and bring into inafter 'Directive 85/337/EEC') to ensure force the laws, regulations and adminis- that the latter is applied in an increasingly trative provisions necessary to comply with harmonised and efficient way. In particu- Council Directive 97/11/EC of 3 March lar, it introduces provisions requiring deve- 1997 amending Directive 85/337/EEC on lopment consent for projects for which an the assessment of the effects of certain environmental impact assessment is pre- public and private projects on the environ- scribed. It also amends the annexes to ment 2 (hereinafter 'Directive 97/11/EC), Directive 85/337/EEC by adding to the list or at least failing to inform the Commission of projects in Annex I for which an assess- fully of these laws, regulations and admin- ment is required and by clarifying the istrative provisions, the Kingdom of Bel- criteria by which Member States may gium has failed to fulfil its obligations decide whether the projects listed in Annex under that directive. II must undergo an assessment of this kind.

4. The first subparagraph of Article 3(1) of 2. Without disputing this accusation in Directive 97/11/EC requires the Member principle, Belgium refers to the legis- States to bring into force the laws, regu- lation — adopted both by the Federal lations and administrative provisions Government and by the Brussels-Capital necessary for the transposition of the Region — which, in its view, suffices to directive by 14 March 1999 at the latest. transpose that directive within the respect- They are further required to inform the ive areas of jurisdiction of these legal Commission thereof forthwith. entities.

7. By letter of 27 October 1999 the Belgian Government forwarded to the Commission a regulation of the Council of the Brussels- Capital Region of 22 April 1999 identify- 10. With its written reply of 10 July 2000 ing Class IA facilities pursuant to Article 4 the Belgian Government again forwarded of the regulation of 5 June 1997 on envi- the aforementioned 8texts of the transpos- ronmental consent (hereinafter 'the regu- ing measures of the Brussels-Capital lation of the Council of the Region of Region, together with a table illustrating 22 April 1999') 5and the decree of the transposition in that region. Government of the Brussels-Capital Region

6 — Moniteur belge, 7 August 1999, p. 29713. 4 — Moniteur beige, 8 June 1999. 7 — Moniteur belge, 12 March 1999, Ed. 2, p. 8033. 5 — Moniteur belge, 5 August 1999, p. 29209. 8 — See footnote 7 above.

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OPINION OF MRS STIX-HACKL — CASE C-319/01

11. On 9 August 2000 the Belgian Govern- 2001. It was registered at the Court of ment forwarded a copy of the draft of a Justice on 14 August 2001. transposing measure of the Walloon Gov- ernment, commenting that it was expected to be adopted by the end of June 2001.

15. The Commission claims that the Court should:

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COMMISSION v BELGIUM

IV — Infringement of the Treaty ing the protection of the public, employees and the environment against ionising radi- ation (hereinafter 'the Royal Decree of 20 July 2001'), which was forwarded to the Commission on 9 October 2001, and Sttbmissions of the parties thus after the action had been brought, has resulted in the complete transposition of Directive 97/11 at federal level. Nor does it dispute that it had been informed of the 17. The Commission submits that, Brussels-Capital Region's transposing although the Kingdom of Belgium has measures before the action was brought. taken some measures, they are not enough for full transposition. The Kingdom of Belgium has, in any case, failed to inform the Commission of the necessary transpos- ing measures.

21. The Kingdom of Belgium asserts in its 18. The provisions implementing the defence that the Government had com- decree of the Walloon Region of 11 March pletely transposed Directive 97/11 at fed- 1999 and the Law of 20 January 1999, eral level within the limits of its authority which are necessary to bring the two by means, on the one hand, of the afore- measures into force, were not adopted mentioned Law of 20 January 1999, which within the prescribed period. The Belgian was forwarded to the Commission on Government has itself admitted that further 20 December 1999, and its two implement- measures are necessary. ing regulations of 20 December 2000, which were forwarded to the Commission on 2 February 2001, and, on the other hand, of the Royal Decree of 20 July 2001.

Legal analysis 23. The Belgian Government then discusses the Flanders Region, which, it states, is not mentioned in the action. It points out that this region is preparing a decree for the transposition of Directive 97/11 and of 25. According to settled case-law of the Council Directive 96/82/EC 12 and Direc- Court of Justice, the question whether the tive 2001/42/EC of the European Parlia- Treaty has been infringed must be deter- ment and of the Council of 27 June 2001 mined by reference to the situation in the on the assessment of the effects of certain Member State as it stood at the end of the plans and programmes on the environ- period laid down in the reasoned opinion, ment. 13 The Commission was informed of and the Court cannot therefore take this work by letters of 21 March and account of any subsequent changes. 14 4 September 2001. The work had, how- ever, been delayed by the belated pub- lication of the Dutch-language version of Directive 2001/42. The decree was likely to be published in the Moniteur belge in March 2002. The implementing regulations would be adopted in June 2002. 26. It should be noted that not all the measures necessary for the complete trans- position of Directive 97/11 into national law had been adopted by the end of the period laid down in the reasoned opinion of 19 May 2000. Nor is this disputed by the Kingdom of Belgium.

24. As regards the Walloon Region, the Belgian Government states that the adop- tion of the three regulations implementing the Decree of the Walloon Region of 27. The Kingdom of Belgium has not 11 March 1999, on which the entry into denied that the necessary transposing meas- ures have not been adopted either in the

28. With regard to the transposing meas- ures adopted by the Brussels-Capital Region, it should be pointed out that they were indeed adopted in good time, before the expiry of the relevant period mentioned 29. What is certain, then, is that at the end above. Notwithstanding this, however, of the two-month period laid down in the such measures are not capable — in the reasoned opinion the Kingdom of Belgium event of delay in or absence of the trans- had not adopted all the measures necessary position of Directive 97/11 in other parts of for the transposition of Directive 97/11 into the country — of limiting any infringe- national law. The Commission's appli- ment of the Treaty by the Kingdom of cation must therefore be regarded as well Belgium that might be found on account of founded. belated or incomplete transposition of that directive. It should be remembered in this context that, following its judgment of 13 December 1991 in Case C-33/90, 15 the Court held, in accordance with settled case-law, 16 that '[T]he fact that a Member State has conferred on its regions the responsibility for giving effect to directives cannot have any bearing on the application of Article 169. The Court has consistently held that a Member State cannot plead conditions existing within its own legal system in order to justify its failure to comply with obligations and time-limits 30. Under Article 69(2) of the Rules of Procedure of the Court the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful 15 — Commission v Italy [1991] ECR I-5987, paragraph 24. 16 — See also, most recently, the judoment in Case C-423/00 party's pleadings. As the Kingdom of Commission v Belgium [2002] ECR 593, paragraph 16: "... Belgium has been unsuccessful and the a Member State may not plead provisions, practices or situations in its internal legal order, including those Commission has applied for costs, the resulting from its federal organisation, in order to justify Kingdom of Belgium should be ordered to a failure to comply with the obligations and time-limits laid down in a directive.' pay the costs.

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