(Failure of a Member State to fulfil obligations – Unlawful deposit of waste at the ‘Pera Galini’ site – Directive 75/442/EEC on waste, as amended by Directive 91/156/EEC – Articles 4 and 9)

Summary of the Judgment

Environment – Waste disposal – Directive 75/442, as amended by Directive 91/156 – First subparagraph of Article 4 – Obligation on Member States to ensure disposal of waste – Scope – Need for the measures to be adopted – Discretion – Limits

(Council Directive 75/442, as amended by Directive 91/156, Art. 4, first subpara.)

Whilst the first subparagraph of Article 4 of Directive 75/442 on waste, as amended by Directive 91/156, does not specify the actual content of the measures which must be taken in order to ensure that waste is disposed of without endangering human health and without harming the environment, it is none the less true that it is binding on the Member States as to the objective to be achieved, whilst leaving to them a margin of discretion in assessing the need for such measures.

From the fact that a situation is not in conformity with the objectives laid down in the first subparagraph of Article 4 of Directive 74/442, as amended, then, the direct inference may not in principle be drawn that the Member State concerned has necessarily failed to fulfil its obligations under that provision. However, if that situation persists and leads in particular to a significant deterioration in the environment over a protracted period without any action being taken by the competent authorities, it may be an indication that the Member States have exceeded the discretion conferred on them by that provision.

(see paras 21-22)

JUDGMENT OF THE COURT (First Chamber) 18 November 2004(1)

(Failure of a Member State to fulfil obligations – Unlawful deposit of waste at the ‘Pera Galini’ site – Directive 75/442/EEC on waste, as amended by Directive 91/156/EEC – Articles 4 and 9)

In Case C-420/02, ACTION under Article 226 EC for failure to fulfil obligations, brought on 21 November 2002,

Commission of the European Communities, represented by M. Konstantinidis, acting as Agent, with an address for service in Luxembourg,

applicant,

Hellenic Republic, represented by E. Skandalou, acting as Agent, with an address for service in Luxembourg,

defendant,

THE COURT (First Chamber),

composed of: P. Jann, President of the Chamber, R. Silva de Lapuerta (Rapporteur), K. Lenaerts, S. von Bahr and K. Schiemann, Judges,

Advocate General: L.A. Geelhoed, greffier: M. Múgica Arzamendi, Principal Administrator,

having regard to the written procedure and further to the hearing on 24 June 2004,

after hearing the Opinion of the Advocate General at the sitting on 15 July 2004,

gives the following

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’).

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.

(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;

or

(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.

3. A description of any likely significant effects, to the extent of the information available on such effects, of the project on the environment resulting from:

(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.

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

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

It notes that, in their replies to the letter of formal notice and the reasoned opinion, the Greek authorities admit that the landfill operations have not been halted. It submits that the measures taken at the site are not sufficient to ensure the proper operation of the landfill and to prevent any risks to the natural and human environment within the meaning of Article 4 of the directive. According to the Commission, the construction of drainage ditches should be accompanied by hydrogeological studies and information regarding impermeability. Furthermore, no protective measures against pollution of the soil and groundwater have been proposed, such as the construction of a geological isolating barrier, the implementation of a new system for the collection of drainage water and a sealing system, periodic on-site checks, analyses of the quality of water or the collection and processing of biogas.

Moreover, the Commission points out that, according to a report drawn up on 23 January 2002 by the health authority of the prefecture of Heraklion, leachate was not contained and flowed into a stream before ending up in the sea. With regard to the impermeability of the rocks underlying the landfill, this was not proven and could not therefore be put forward to justify the absence of measures intended to prevent pollution of the soil and groundwater. Lastly, the measures contained in the regional waste management plan for resolving the problem of waste management in Crete were still at the study stage.

In those circumstances, the Commission submits that, to the extent that the ‘Pera Galini’ tip has been in use since 1994 and remains in operation to date, the Hellenic Republic has exceeded the limits of the discretion it enjoys under Article 4 of the directive.

The Greek Government contends that it has not exceeded the limits of the discretion enjoyed by Member States under Article 4 of the directive. It considers that, having regard to the measures taken at the ‘Pera Galini’ site, the current operation of the landfill does not endanger human health or the environment.

In that regard, it submits as follows:

–as part of the new waste management plan, the site in question is the subject of a rehabilitation study;

–the second phase of the regional waste management plan for Crete has been completed;

–the plan and the programme for investment and operation of the system for recycling packaging materials, approved by the Minister for the Environment, should become operational during 2004;

–an application to the Cohesion Fund for the purposes of financing the construction of the central controlled landfill site and the rehabilitation of the ‘Pera Galini’ site was to be made in 2003.

With regard to the report of January 2002 referred to by the Commission, the Greek Government submits that this was drawn up following an inspection which took place at a time when circumstances were particularly difficult owing to continuous rainfall. In addition, the Greek authorities indicate that, according to a report drawn up on 12 March 2003, other than in exceptional cases, the drainage water is collected in three watertight cisterns where it is recycled. Furthermore, the environment impact assessment report relating to the rehabilitation of the ‘Pera Galini’ landfill was submitted on 10 February 2003, with approval expected in April 2003. With regard to the impermeability of the rock in the region, this was confirmed in a geological study carried out for the purposes of the implementation of the waste management plan. The Greek authorities also indicate that checks on water quality carried out by the competent authorities have never shown the authorised limits to have been exceeded.

It should be noted at the outset that whilst the first subparagraph of Article 4 of the directive does not specify the actual content of the measures which must be taken in order to ensure that waste is disposed of without endangering human health and without harming the environment, it is none the less true that it is binding on the Member States as to the objective to be achieved, whilst leaving to the Member States a margin of discretion in assessing the need for such measures (Case C‑365/97 Commission v Italy [1999] ECR I-7773, paragraph 67).

From the fact that a situation is not in conformity with the objectives laid down in the first paragraph of Article 4 of the directive, then, the direct inference may not in principle be drawn that the Member State concerned has necessarily failed to fulfil its obligations under that provision to take the requisite measures to ensure that waste is disposed of without endangering human health and without harming the environment. However, if that situation persists and leads in particular to a significant deterioration in the environment over a protracted period without any action being taken by the competent authorities, it may be an indication that the Member States have exceeded the discretion conferred on them by that provision (Commission v Italy, cited above, paragraph 68).

It must also be recalled that the Court has consistently held that the question whether there has been a failure to fulfil obligations must be examined on the basis of the position in which the Member State found itself at the end of the period laid down in the reasoned opinion and the Court cannot take account of any subsequent changes (see, inter alia, Case C-455/00 Commission v Italy [2002] ECR I-9231, paragraph 21, and Case C-348/02 Commission v Italy [2003] ECR I‑0000, paragraph 7).

The Court must therefore ascertain whether the Commission has established to the requisite legal standard that, on expiry of the period laid down in the reasoned opinion, the Hellenic Republic had failed over a protracted period to take the measures necessary to ensure that waste deposited at the ‘Pera Galini’ site was recovered or disposed of without endangering human health and without using processes or methods which could harm the environment.

In that regard, it should be noted that the Greek Government does not dispute the presence at the ‘Pera Galini’ site of waste likely to endanger human health and harm the environment.

It should also be noted that, as early as 1998, the conclusions of an inspection carried out at the site in question showed that the operation of the landfill at the ‘Pera Galini’ site was a source of environmental pollution and entailed risks for the health of the local population.

In the same year, a decision of the Heraklion Court of First Instance finding that the installation was being operated unlawfully and ordering that waste cease to be deposited at the ‘Pera Galini’ site noted the resultant risks to the environment and to human health.

Furthermore, the inspection report drawn up on 23 January 2002 shows that, despite the measures taken by the Greek authorities, leachate was not contained by the protective barrier erected for this purpose and flowed into a stream before ending up in the sea.

That finding cannot be invalidated by the fact that the inspection was carried out at a time of heavy rainfall. Nor can the Greek Government base its argument on the conclusions of the report drawn up following the inspection of 12 March 2003, since that took place after the expiry of the period laid down in the reasoned opinion, namely after 20 February 2002.

With regard to the plans and studies, relied on by the Greek Government, for improving the treatment of waste in the region of Crete, it must be held that they do not constitute the measures necessary to ensure that waste deposited at the ‘Pera Galini’ site is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment.

In addition, they do not offer any information to enable it to be determined when operations for the recovery or disposal of waste at the site in question are to commence, if at all. On the contrary, they show that, on expiry of the period laid down in the reasoned opinion, those operations had not materialised.

Furthermore, as observed by the Advocate General in paragraph 16 of his Opinion, the very existence of those plans and studies implies recognition by the Greek authorities of the threat posed by the ‘Pera Galini’ landfill to human health and to the environment.

The Commission has, therefore, shown to the requisite legal standard that the Greek authorities have failed over a protracted period to adopt the necessary measures to ensure that waste deposited at the ‘Pera Galini’ site is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment.

It follows that the first complaint, alleging infringement of Article 4 of the directive, is well founded.

The second complaint alleging infringement of Article 9 of the directive

By its second complaint, the Commission requests the Court to declare that, by granting a permit for operation of the ‘Pera Galini’ site which does not contain the necessary information, the Hellenic Republic has failed to fulfil its obligations under Article 9 of the directive.

The Commission submits that the ‘Pera Galini’ landfill is operating without fulfilling the requirements of the Greek legislation in force. In those circumstances, the Commission considers that it is a fortiori indisputable that the landfill is operating without a licence meeting the requirements laid down in Article 9 of the directive.

The Greek Government does not dispute that allegation. Consequently, in the absence of any evidence to the contrary presented by the Greek Government, it must be held that the Commission’s second complaint, alleging infringement of Article 9 of the directive, is well founded.

In the light of the foregoing, it must be held that, by failing to take the necessary measures to ensure that waste deposited at the ‘Pera Galini’ site in the prefecture of Heraklion will be recovered or disposed of without endangering human health, without risk to water, air, soil, plants and animals and without causing a nuisance through noise or odours, and by granting a permit to operate that installation which does not contain the necessary information, the Hellenic Republic has failed to fulfil its obligations under Articles 4 and 9 of the directive.

Costs

Under 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 the Hellenic Republic has been unsuccessful, the Hellenic Republic must be ordered to pay the costs.

On those grounds, the Court (First Chamber) hereby:

1.Declares that, by failing to take the necessary measures to ensure that waste deposited at the ‘Pera Galini’ site in the prefecture of Heraklion will be recovered or disposed of without endangering human health, without risk to water, air, soil, plants and animals and without causing a nuisance through noise or odours, and by granting a permit to operate that installation which does not contain the necessary information, the Hellenic Republic has failed to fulfil its obligations under Articles 4 and 9 of Council Directive 75/442/EEC on waste, as amended by Council Directive 91/156/EEC;

2.Orders the Hellenic Republic to pay the costs.

Signatures.

Language of the case: Greek.