Avis juridique important

61996J0084

European Court reports 1999 Page I-06547

Summary

1 In setting 31 March 1995 as the deadline for requesting final payment from the Commission of the sums committed for projects in respect of which co-financing by the European Regional Development Fund (ERDF) was decided before 1 January 1989, the transitional arrangements provided for by Article 12 of Regulation No 4254/88 left the Commission with no discretion as regards imposition of the penalty for non-observance of that deadline - namely the automatic release of portions of the sums committed - since release of the sums is the automatic and inescapable consequence of failure to observe that deadline.

It follows that the Commission's imposition of the penalty provided for in Article 12 of the above Regulation infringes neither the principle of Community solidarity nor its corollary, the principle of regional partnership; nor does it infringe the principles of proportionality or protection of legitimate expectations.

Furthermore, the procedure necessitating consultation of the ERDF Committee, laid down in Article 32 of Regulation No 1787/84 on the European Regional Development Fund, entails the exercise of discretion by the Commission and does not fall to be applied where the latter applies Article 12.

2 It is clear from Article 12 of Regulation No 4254/88, read in conjunction with Article 15 of Regulation No 2052/88, that requests submitted by Member States for final payment of sums committed by way of funding for projects co-financed by the European Regional Development Fund must at least contain the information needed by the Commission in order to proceed with the final conclusion of those projects and payment of the sums claimed.

A letter by which a Member State confines itself to announcing the completion of certain projects for which funding has been granted and which does not provide the Commission with any information enabling it finally to conclude the projects at issue, in particular as regards the amounts claimed, cannot be regarded as a request for final payment within the meaning of Article 12 of Regulation No 4254/88.

Parties

In Case C-84/96,

Kingdom of the Netherlands, represented by J.S. van den Oosterkamp and A. Fierstra, Deputy Legal Advisers at the Ministry of Foreign Affairs, acting as Agents, with an address for service in Luxembourg at the Netherlands Embassy, 5 Rue C.M. Spoo,

applicant,

Commission of the European Communities, represented by E. Mennens, Principal Legal Adviser, and P. Oliver, Legal Adviser, acting as Agents, with an address for service in Luxembourg at the Chambers of C. Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

APPLICATION for the annulment of the Commission decisions of 16 February 1996 and of the debit note based on one of those decisions concerning the conclusion of ERDF infrastructure projects nos 80.07.03.002 (Veendam-Musselkanaal) and 84.07.03.004 (Weg Veendam) co-financed by the European Regional Development Fund,

(Sixth Chamber),

composed of: P.J.G. Kapteyn, President of the Chamber, G. Hirsch, J.L. Murray (Rapporteur), H. Ragnemalm and R. Schintgen, Judges,

Advocate General: A. La Pergola,

Registrar: L. Hewlett, Administrator,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 3 December 1998,

after hearing the Opinion of the Advocate General at the sitting on 25 February 1999,

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.

(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.’

4 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.

2. Subject to Article 2(4), for projects listed in Annex II, Member States shall determine whether the project shall be made subject to an assessment in accordance with Articles 5 to 10. Member States shall make that determination through:

(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.

2. A description of the aspects of the environment likely to be significantly affected by the project.

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.

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

21In that connection, the first point to note is that Article 15(3) of Regulation No 2052/88 laid down, inter alia, the principle that grants of assistance for projects in respect of which the decision to grant assistance was made before 1 January 1989 should be concluded by 30 September 1995.

22To that end, in Article 12 of Regulation No 4254/88 the Community legislature set 31 March 1995 as the deadline for requesting final payment from the Commission of the sums committed. Moreover, it made non-observance of that deadline subject to a penalty, namely the automatic release of portions of the sums committed.

23It must be stated that, in so doing, it left the Commission with no discretion as to the imposition of that penalty since release of the sums is the automatic and inescapable consequence of failure to observe the 31 March 1995 deadline.

24Consequently, that date cannot be deemed to be merely an indicative time-limit which the Commission could defer at will.

25That conclusion is, moreover, compatible with the principle of legal certainty, one of the general principles of Community law.

26The Court has consistently held that the principle of legal certainty requires that a provision laying down a preclusive period, particularly one which may have the effect of depriving a Member State of the payment of financial aid its application for which has been approved and on the basis of which it has already incurred considerable expenditure, should be clearly and precisely drafted so that the Member States may be made fully aware of the importance of their complying with the time-limit (Case 44/81 Germany v Commission [1982] ECR 1855, paragraph 16).

27If, as the Netherlands Government maintains, the Commission had had a discretion enabling it, depending on its workload and its ability finally to conclude the projects by 30 September 1995, to alter the 31 March 1995 deadline, it would have been impossible for the Member States to ascertain with certainty the date on which their requests for final payment were to be submitted so as to avoid the risk of the preclusive period being relied upon against them.

28Finally, the fact that the Commission itself failed to comply with the 30 September 1995 deadline without any legal consequence ensuing therefrom cannot be interpreted as revealing the existence on the Commission's part of any discretion as to application of the time-limits.

29Indeed, the fact that no penalty was attached by the Community legislature to non-observance of that deadline is plainly due to the fact that it was not in a position in July 1993 when it set the dates at 31 March and 30 September 1995 to determine the number of projects which the Commission would have to deal with during the period of six months between those two dates.

30It follows from the foregoing that the first plea is unfounded.

The plea alleging inadequacy of reasoning

31The Netherlands Government claims that, if the Commission appeared in the end to have taken 31 March 1995 as an indicative time-limit, the conclusion to be drawn would be that it failed to provide an adequate statement of the reasons why it was unable to take into consideration requests for final payment lodged after that date. The inadequacy of the reasoning is all the more striking since the Commission did not conclude the projects until 15 January and 16 February 1996.

32The Commission considers this plea to be unfounded since, as it has pointed out, it had no room for manoeuvre in the application of Article 12 of Regulation No 4254/88.

33It is clear from the reply to the first plea that the Commission was entitled to take the view that 31 March 1995 was not merely an indicative time-limit. Therefore the second plea is likewise unfounded.

The plea alleging infringement of certain general principles of Community law

34The Netherlands Government goes on to claim that the application by the Commission of Article 12 of Regulation No 4254/88 infringes certain general principles of Community law.

35First of all, it considers that the Commission adopted the decisions at issue in breach of the principle of cooperation in good faith laid down in Article 5 of the EC Treaty, and of the principle of regional partnership, mentioned inter alia in the preamble to Regulation No 2052/88, which is a specific expression thereof.

36Thus, regard being had to the meticulous checks and the efforts made by the Netherlands authorities, the Commission ought to have taken into consideration the requests for final payment of which it had been notified by letter of 21 March 1995 and which reached it on 1 June 1995, all the more so since those requests did not concern expenditure incurred after 31 March 1995.

37The Netherlands Government further considers that the Commission contravened the principle of protection of legitimate expectations. It states that Article 15 of Regulation No 2052/88 in conjunction with Article 12 of Regulation No 4254/88 fundamentally amended with retroactive effect the provisions applicable to infrastructure projects by introducing a date by which requests for final payment had to be submitted and a date for final conclusion of the projects. Prior to the entry into force of those two provisions, the Community rules applicable to ERDF assistance laid down no time-limit for implementation in regard to financial commitments for projects to be carried out over several accounting periods, or for submission of requests for final payment.

38Moreover, where individual decisions granting assistance did lay down implementing periods, the Commission was accustomed to agreeing to requests for an extension without laying down any conditions other than that the newly agreed period should be observed.

39In the light of the excessive nature of the new provisions, the Commission ought to have informed the Member States of how it intended to interpret Article 12 of Regulation No 4254/88 and of the financial consequences of that interpretation, even if it had never itself entertained any doubts concerning that article, given the possibility that a Member State might consider it ambiguous.

40In the absence of such information, the Netherlands Government considers that it was entitled to take the view that the project at issue would, under Article 12 of Regulation No 4254/88, be finally concluded as before in a spirit of collaboration and cooperation in good faith, especially as the Commission allowed the crucial date of 30 September 1995 to pass without reacting.

41The Netherlands Government further argues that imposition of the penalty by the Commission contravenes the principle of proportionality.

42It thus points out that the Court has held that breach of a secondary obligation cannot in itself entail loss of entitlement to aid where the principal obligations are fully observed (Case 240/78 Atalanta Amsterdam [1979] ECR 2137). Besides, according to settled case-law, the penalty must be appropriate in order to achieve the objective pursued and may not go beyond what is appropriate and necessary to attain that objective (see, in particular, Case C-118/89 Lingenfelser [1990] ECR I-2637).

43In view of the fact that the principal obligations on which entitlement to ERDF assistance depends were met, the Commission ought to have refrained from imposing the penalty provided for in the event of failure to submit requests for final payment within the proper time-limits, especially as the objective of final conclusion of the projects by 30 September 1995 was in no way jeopardised.

44The Commission emphasises that the reasoning deployed by the Netherlands Government using the principles of Community solidarity and regional partnership, protection of legitimate expectations and proportionality presupposes that it enjoyed some discretion with regard to the application of Article 12 of Regulation No 4254/88, which is not the case.

45Furthermore, it is the Commission's view that the applicant's arguments cannot be deemed to challenge Article 12 because, if they were, they would be inadmissible, the period for bringing an action against that provision having long since expired.

46First of all, as indicated in paragraphs 21 to 24 hereof, the Commission had no discretion as to the application of the penalty laid down in Article 12 of Regulation No 4254/88 in the event of non-observance of the 31 March 1995 deadline.

47Accordingly, by not taking into consideration, in regard to the conclusion of ERDF projects nos 80.07.03.002 (Veendam-Musselkanaal) and 84.07.03.004 (Weg Veendam), the requests for final payment communicated to it on 1 June 1995 by the Netherlands authorities, the Commission was merely applying Article 12 of Regulation No 4254/88. As such, therefore, the action taken by it cannot have infringed either the principle of Community solidarity and its corollary, the principle of regional partnership, or the principle of proportionality.

48On the alleged infringement of the principle of protection of legitimate expectations, the Netherlands Government has confined itself to referring to the Commission's approach before the entry into force of Article 12 of Regulation No 4254/88. In regard to the period subsequent to that date, it has pointed to no specific conduct on the part of the Commission which might have led it to believe that 31 March 1995 was no more than an indicative time-limit the observance of which would entail no legal consequences.

49Moreover, there can be no ambiguity surrounding the connection established in Article 12 between non-observance of the 31 March 1995 deadline for the submission of requests for final payment and automatic release of portions of the sums committed; by failing to ascertain what each Member State's understanding of that provision was, the Commission cannot be said to have given rise on the part of one of them to a legitimate expectation that to exceed that time-limit would not be attended by any consequences.

50Finally, since the Netherlands Government has clearly stated that it was not seeking in its plea alleging infringement of the principles of Community solidarity and regional partnership, proportionality and protection of legitimate expectations, to call in question the legality of Article 12 of Regulation No 4254/88, there is no need to examine that point.

51It follows from all the foregoing that the third plea is unfounded.

The plea alleging manifest error of assessment by the Commission in not treating the letter of 21 March 1995 as a request for final payment

52The Netherlands Government claims that, as there was no special application form, the letter from the Ministry of Economic Affairs of 21 March 1995 ought to have been regarded by the Commission as a request for final payment, regard being had to the principles of cooperation in good faith and partnership.

53In its view, the Commission should have inferred from that letter that the projects at issue had been concluded and that the intention of the Netherlands authorities was to lay claim to the unpaid assistance.

54It considers that there are no grounds for the assumption that the request for final payment referred to in Article 15 of Regulation No 2052/88 and Article 12 of Regulation No 4254/88 may be assimilated to the `final payment claim' mentioned in Article 28 of Regulation No 1787/84. Unlike the latter claim, no other condition is laid down as regards the request for final payment, which implies that a simple letter may suffice.

55Moreover, if the letter of 21 March 1995 could not be deemed to constitute a completed request for final payment, it was for the Commission, acting on the principle of cooperation in good faith, to notify the Netherlands authorities of its position by return of post so as to enable them to regularise their request for payment within the time-limit or, if appropriate, within a suitable period to be determined by the Commission.

56On the other hand, the Commission considers that, even on the assumption that a request for final payment cannot be assimilated to a final payment claim within the meaning of Article 28 of Regulation No 1787/84, which it disputes, the request for final payment must at least indicate clearly and precisely that a specific amount is being sought. It must also contain the information on the basis of which the amount is to be calculated. Yet the letter at issue displays none of these features.

57In that connection, it should be noted that Article 12 of Regulation No 4254/88 in conjunction with Article 15 of Regulation No 2052/88 makes it clear that requests for final payment submitted by the Member States must at least contain the information which the Commission needs in order to proceed with the final conclusion of those projects and payment of the sums claimed.

58It appears that, in its letter of 21 March 1995, the Netherlands Government confined itself, as regards ERDF projects nos 80.07.03.002 (Veendam-Musselkanaal) and 84.07.03.004 (Weg Veendam), to announcing that the projects had been completed and that final statements would be sent to the Commission in September 1995. It did not provide the Commission with any information enabling it finally to conclude the projects at issue, in particular as regards the amounts claimed. Accordingly, that letter could not be regarded as a request for final payment within the meaning of Article 12 of Regulation No 4254/88.

59Furthermore, it cannot be held against the Commission that it failed to inform the Netherlands authorities by return of post that the letter of 21 March 1995 could not be deemed to constitute a request for final payment since, as is apparent from paragraph 57 hereof, the Netherlands Government could not reasonably be unaware of that conclusion.

60Accordingly, the fourth plea must be rejected as unfounded.

The plea alleging that Article 32(1) of Regulation No 1787/84 was not applied

61The Netherlands Government considers that since conclusion of the projects at issue involved a reduction in ERDF assistance, the Commission was required under Article 32(1) of Regulation No 1787/84 to consult the ERDF committee which, to the applicant's knowledge, was not done.

62The Commission, on the other hand, considers that Article 32 of Regulation No 1787/84 relates to a situation which differs from that envisaged by Article 12 of Regulation No 4254/88. The procedures under each provision are different. In the case of Article 12, provision is made for the automatic release of the sums committed, which precludes consultation of the ERDF committee, as provided for under the other provisions.

63In that connection, it should be noted that Article 32 of Regulation No 1787/84 provides that the Commission may decide to reduce or cancel assistance where a measure has not been carried out as planned, or if the conditions imposed by the provisions which govern the measure are not fulfilled. It thus enjoys a discretion whose exercise, however, must always be preceded by consultation of the ERDF committee.

64The situation referred to in Article 12 of Regulation No 4254/88 is different. Under that provision, the Commission has no discretion because, as stated in paragraph 23 hereof, the release of sums and thus the reduction, or even cancellation, of assistance, is the automatic and inescapable consequence of non-observance of the 31 March 1995 deadline for the submission of requests for final payment. It must therefore be concluded that the procedure laid down in Article 32 of Regulation No 1787/84, providing for consultation of the ERDF committee, does not fall to be applied.

65Consequently, the fifth plea is unfounded.

The plea alleging that a manifest error of assessment was made by the Commission in not taking account of the interim statement of 6 April 1994

66Finally, the Netherlands Government considers that the figure of NLG 15 552 734.98 calculated by the Commission in its decision of 16 February 1996 is incorrect because it omitted to take into account an interim statement of 6 April 1994.

67The Netherlands Government acknowledges that the statement in question was cancelled by facsimile of 8 November 1994 from the Ministry of Economic Affairs. None the less, that facsimile established a link between cancellation of the interim statement and submission of the request for final payment.

68The Commission points out that the statement of 6 April 1994 was unclear. Accordingly, the calculation criteria used by the Netherlands were uncertain and the calculation itself resulted in assistance at the rate of 33% instead of the 30% provided for in the decision granting assistance. It was for that reason that the Netherlands Government, in reply to a letter from the Commission, decided to cancel that statement.

69In that connection, suffice it to state that, by choosing unilaterally and unconditionally to withdraw its statement of 6 April 1994, the Netherlands Government has rendered it non-existent in law. Consequently, it cannot be held against the Commission that it failed to take account of that statement in its decision concluding ERDF project no 84.07.03.004 (Weg Veendam).

70The sixth plea is therefore unfounded.

71In the light of the foregoing, the application must be dismissed in its entirety.

Decision on costs

Costs

72Under 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. As the Commission has asked for costs to be awarded against the Kingdom of the Netherlands and the latter has failed in its submissions, it must be ordered to pay the costs.

On those grounds,

hereby:

2. Orders the Kingdom of the Netherlands to pay the costs.