«(Arbitration clause – Non-performance of contract – Termination – Recovery of sums advanced – Interest)»

Judgment of the Court (First Chamber), 11 September 2003

Summary of the Judgment

Procedure – Proceedings brought before the Court on the basis of an arbitration clause – Contract granting Community funding for an energy project – Unilateral termination under the terms of the contract – Right to reimbursement of advances together with interest as provided for in the contract (Art. 238 EC; Council Regulation No 3640/85)

JUDGMENT OF THE COURT (First Chamber) 11 September 2003 (1)

(Arbitration clause – Non-performance of contract – Termination – Recovery of sums advanced – Interest)

In Case C-323/02,

Commission of the European Communities, represented by H. Støvlbaek, acting as Agent, and by E. Cabau, avocat, with an address for service in Luxembourg,

applicant,

Hydrowatt SARL, established in Lyon (France),

defendant,

APPLICATION by the Commission under Article 238 EC for recovery of the outstanding balance of an advance paid by the applicant to the defendant under Contract No HY 134/87 FR on the completion of a project receiving financial support pursuant to Council Regulation (EEC) No 3640/85 of 20 December 1985 on the promotion, by financial support, of demonstration projects and industrial pilot projects in the energy field (OJ 1985 L 350, p. 29),

THE COURT (First Chamber),

composed of: M. Wathelet, President of the Chamber, P. Jann (Rapporteur) and A. Rosas, Judges,

Advocate General: A. Tizzano, Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

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

gives the following

1 This request for a preliminary ruling concerns the interpretation of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).

2 The request has been made in proceedings between, on the one hand, Waltham Abbey Residents Association and, on the other hand, An Bord Pleanála (Planning Board, Ireland; ‘the Board’), Ireland and the Attorney General (Ireland), concerning authorisation granted by the Board for a strategic residential housing development.

Legal context

European Union law

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

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(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development 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 on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where 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. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

4. The criteria of Annex III shall be taken into account, where relevant, when compiling the information in accordance with points 1 to 3.’

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

24The fact that Hydrowatt, referring to the Commission's letters of 1 August 1991 and 24 January 1992, sent the Commission a report, on 6 February 1992, containing explanations for the delays in the completion of the project is of no relevance. That report was submitted at a date on which the contract was already terminated. Moreover, even assuming that the technical and administrative difficulties to which that report refers could have been such as to justify delays in carrying out the project had they been raised in sufficient time, they certainly could not have been relied on as justification for the non-fulfilment of the obligation to submit a report within the period stated in the contract.

25In accordance with the third paragraph of Clause 8 of the contract, where the Commission terminates the contract as of right the contractor is immediately to reimburse the amounts paid by way of financial support.

26That provision also states that the Commission may nevertheless take account of any works which have yielded concrete results as provided for in the work programme contained in Annex I to the contract.

27The Commission's claim to reimbursement of the total advance thus comes within the scope of its discretion in the present case.

28Therefore, the Court must grant the form of order sought by the Commission as regards recovery of the outstanding balance of the advance paid by it.

29Under the third paragraph of Clause 8 of the contract, interest is incurred on the amounts to be reimbursed as from the date of receipt of those amounts. That provision also states that the rate of interest is to be the rate applied by the European Monetary Cooperation Fund for its transactions in ecus published on the first working day of each month.

30It is apparent from the information supplied by the Commission that Hydrowatt received an advance of EC 37 109 on 8 December 1989. The Commission received a partial reimbursement of ECU 12 000 on 6 April 1993, thus leaving an outstanding balance of ECU 25 109.

31In its application, the Commission does not seek interest for the period up to the complete payment of the debt, but sets 30 June 2002 as the date up to which it is seeking payment of the interest due under the contract.

32In consequence, the sum that Hydrowatt must repay to the Commission must be increased by default interest at the contractual rate:

on ECU 37 109, from 8 December 1989 until 6 April 1993,

on ECU 25 109, from 7 April 1993 until 30 June 2002.

33Pursuant to Article 2(1) of Council Regulation (EC) No 1103/97 of 17 June 1997 on certain provisions relating to the introduction of the euro (OJ 1997 L 162, p. 1), references to the ecu must be replaced by references to the euro at a rate of one euro to one ecu.

34It is apparent from the documents produced by the Commission that for the period from 8 December 1989 to 6 April 1993 the interest, calculated in respect of EUR 37 109 using the monthly interest rates applied by the European Monetary Cooperation Fund for its transactions in ecus, came to EUR 12 498.50. For the period from 7 April 1993 to 30 June 2002, the interest, calculated in respect of EUR 25 109 using the monthly interest rates applied by the European Monetary Cooperation Fund for its transactions in ecus, published from August 1994 as the interest rate charged by [that fund], then, from April 2000, as the interest rate charged by the European Central Bank for capital financing operations, came to EUR 15 577.26. Accordingly, the total interest thus calculated amounts to EUR 28 075.76.

35However, in calculating the interest claimed, the Commission applied a single rate of 10.27837%, rounded up to 10.28%, for the period from 8 December 1989 to 6 April 1993, and a single rate of 4.619591% for the period from 7 April 1993 to 30 June 2002, equal to the average of the monthly rates recorded during those periods. According to that calculation, the total outstanding interest amounts to EUR 12 707.04 for the first period and EUR 10 715.87 for the second, which comes to a total of EUR 23 422.91.

36Since that amount is the lower of the two amounts, the Court must grant the form of order sought by the Commission as regards the payment of interest of EUR 23 422.91.

37It follows from all the foregoing considerations that Hydrowatt must be ordered to pay to the Commission the sum of EUR 25 109, plus contractual interest of EUR 23 422.91.

Costs

38Under 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 Hydrowatt has been unsuccessful, the latter must be ordered to pay the costs.

On those grounds,

THE COURT (First Chamber) hereby:

1Orders Hydrowatt SARL to pay to the Commission of the European Communities the sum of EUR 25 109, plus contractual interest of EUR 23 422.91;

2Orders Hydrowatt SARL to pay the costs.

Wathelet

Jann

Rosas

Delivered in open court in Luxembourg on 11 September 2003.

Registrar

President of the First Chamber

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Language of the case: French.