(Failure of a Member State to fulfil obligations – Directive 75/439/EEC – Disposal of waste oils – Priority to be given to the processing of waste oils by regeneration)

Summary of the Judgment

Approximation of laws – Disposal of waste oils – Directive 75/439 – Member States obliged to give priority to the processing of waste oils by regeneration – Limits – Technical, economic or organisational constraints – Meaning

(Council Directive 75/439, Art. 3(1))

It is clear from Article 3(1) of Directive 75/439 on the disposal of waste oils, as amended by Directive 87/101, that the reference to ‘technical, economic and organisational constraints’ in that article forms part of a provision giving general expression to the obligation imposed on Member States and that the Community legislature did not intend thereby to provide limited exceptions to a rule having general application, but to define the scope and content of a positive obligation to give priority to the processing of waste oils by regeneration.

It follows that the definition of such constraints cannot be left to the exclusive discretion of the Member States. Apart from being contrary to the principle of the uniform interpretation and application of Community law, interpretation by the Member States alone would make the compatibility of processing by regeneration with technical, economic and organisational constraints a condition the fulfilment of which would depend entirely on a policy assessment on the part of the Member State concerned.

Article 3(1) of Directive 75/439, which relates to the ‘technical, economic and organisational constraints’ must be understood as an expression of the principle of proportionality; accordingly, Member States are under an obligation to take measures appropriate and proportionate to the objective of giving priority to the processing of waste oils by regeneration, which is to say that the limit to that positive obligation is the existence of those constraints. If the technical, economic and organisational circumstances obtaining in a Member State were considered automatically to constitute constraints making it impossible to adopt the measures provided for in that provision, it would be deprived of all practical effect, since the obligation imposed on Member States would be limited by maintenance of the status quo, with the result that there would be no genuine obligation to take the measures necessary for the processing of waste oils by regeneration.

(see paras 20-23)

JUDGMENT OF THE COURT (First Chamber) 15 July 2004*

(Failure of a Member State to fulfil its obligations – Directive 75/439/EEC – Disposal of waste oils – Priority to be given to the processing of waste oils by regeneration)

In Case C-424/02,

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

applicant,

United Kingdom of Great Britain and Northern Ireland, represented by M. Bethell, acting as Agent, and by M. Demetriou, Barrister, with an address for service in Luxembourg,

defendant,

APPLICATION for a declaration that, by failing to adopt the laws, regulations or administrative provisions necessary to comply with Article 3(1) of Council Directive 75/439/EEC of 16 June 1975 on the disposal of waste oils (OJ 1975 L 194, p. 23), as amended by Directive 87/101/EEC of 22 December 1986 (OJ 1987 L 42, p. 43), requiring Member States to take the measures necessary to give priority to the processing of waste oils by regeneration or, in any event, by failing to notify such provisions to the Commission, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under that directive,

THE COURT (First Chamber),

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

Advocate General: C. Stix-Hackl, Registrar: L. Hewlett, Principal Administrator,

after hearing oral argument from the parties at the hearing on 4 March 2004,

after hearing the Opinion of the Advocate General at the sitting on 1 April 2004,

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.’

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.

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

Only where waste oils are neither regenerated nor burned, on account of the constraints mentioned in Article 3(1) and (2) of the Directive, are Member States subject to the even more subsidiary obligation, laid down in paragraph 3 of the same article, to take the measures necessary to ensure their safe destruction or their controlled storage or tipping (see Commission v Germany, paragraph 37).

As regards the method to which priority is given, that is, the processing of waste oils by regeneration, it must be observed, as the Court held in paragraphs 38 and 39 of Commission v Germany, that the reference to ‘technical, economic and organisational constraints’ in Article 3(1) of the Directive forms part of a provision giving general expression to the obligation imposed on Member States and that the Community legislature did not intend thereby to provide limited exceptions to a rule having general application, but to define the scope and content of a positive obligation to give priority to the processing of waste oils by regeneration.

It follows, as the Court has also pointed out, that the definition of such constraints cannot be left to the exclusive discretion of the Member States. Apart from being contrary to the principle of the uniform interpretation and application of Community law, interpretation by the Member States alone would make the compatibility of processing by regeneration with technical, economic and organisational constraints a condition the fulfilment of which would depend entirely on a policy assessment on the part of the Member State concerned (see Commission v Germany, paragraph 40).

As regards the argument put forward by the United Kingdom that the scope of the obligation contained in Article 3(1) of the Directive varies according to the circumstances in each Member State and that adverse circumstances prevailing in a Member State may constitute constraints of such an extreme nature that there is no duty to give priority to the regeneration of waste oils, it must be stated, as the Court observed in paragraph 43 of Commission v Germany, that if the technical, economic and organisational circumstances obtaining in a Member State were considered automatically to constitute constraints making it impossible to adopt the measures provided for in Article 3(1) of the Directive, that provision would be deprived of all practical effect, since the obligation imposed on Member States would be limited by maintenance of the status quo, with the result that Article 3(1) would not impose a genuine obligation to take the measures necessary for the processing of waste oils by regeneration.

Furthermore, in answer to the argument of the United Kingdom Government that the reference to ‘technical, economic or organisational constraints’ means that the Community legislature recognises that Member States have a margin of discretion, it should be noted that the provision relating to constraints must be understood as an expression of the principle of proportionality; accordingly, Member States are under an obligation to take measures appropriate and proportionate to the objective of giving priority to the processing of waste oils by regeneration, which is to say that the limit to that positive obligation is the existence of the technical, economic and organisational constraints referred to in Article 3(1) of the Directive (Commission v Germany, paragraph 42).

While it is not for the Court to determine the measures which a Member State should have taken in order to implement Article 3(1) of the Directive, it none the less has a responsibility, in determining whether there are constraints within the meaning of that article, to consider whether it was possible to adopt measures aimed at giving priority to the processing of waste oils by regeneration and satisfying the criterion of technical, economic and organisational feasibility (Commission v Germany, paragraph 48).

Consequently, although it is acceptable that Member States first carry out studies and draw up reports in order to determine how waste oils should be disposed of, those preparatory steps must nevertheless be followed by tangible measures aimed at giving priority to regeneration, in order to comply with the obligation laid down by Article 3(1) of the Directive.

In this case it is clear that the United Kingdom has not adopted tangible measures aimed at giving priority to the processing of waste oils by regeneration. It has merely identified constraints, studied the market and investigated measures which might be taken.

It is worth adding that the Member States were to comply with the obligations arising from Article 3(1) of the Directive with effect from 1 January 1990. Furthermore, Article 3 of Directive 75/439, in its original 1975 version, already provided that Member States were to take the necessary measures to ensure that, as far as possible, the disposal of waste oils was carried out by recycling (regeneration and/or combustion other than for destruction). Those measures were to be taken as from 1977.

It is also common ground that over a prolonged period, that is, between the time-limit for implementation (1 January 1990) and the expiry of the two-month period laid down in the reasoned opinion of 21 December 2001, no action was undertaken by the United Kingdom to commence the process for adopting the measures necessary to ensure that priority was given to the use of regeneration for the processing of waste oils in accordance with the requirements in Article 3(1) of the Directive.

With regard to the United Kingdom’s arguments which sought to establish the existence of economic constraints, in particular, because of the structure of the market for waste oils, it must be held that it was not until 2002 that a waste management plan was adopted in order to deal with that situation.

In view of the Member States’ obligations in the area in question, it must be observed that such steps do not constitute implementation of the obligation laid down in Article 3(1) of the Directive.

In any event, it is settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion (see, in particular, Case C-147/00 Commission v France [2001] ECR I‑2387, paragraph 26; Case C-173/01 Commission v Greece [2002] ECR I-6129, paragraph 7; and Case C-114/02 Commission v France [2003] ECR I-3783, paragraph 9).

In those circumstances it must be held that, by failing to take the measures necessary under Article 3(1) of the Directive to give priority to the processing of waste oils by regeneration, the United Kingdom has failed to fulfil its obligations under that 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 United Kingdom has been unsuccessful, the United Kingdom must be ordered to pay the costs.

On those grounds,

THE COURT (First Chamber) hereby:

Declares that, by failing to take the measures necessary under Article 3(1) of Council Directive 75/439/EEC of 16 June 1975 on the disposal of waste oils, as amended by Council Directive 87/101/EEC of 22 December 1986, to give priority to the processing of waste oils by regeneration, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under that directive;

Orders the United Kingdom of Great Britain and Northern Ireland to pay the costs.

Delivered in open court in Luxembourg on 15 July 2004.

Registrar

President of the First Chamber

ECLI:EU:C:2025:140

Language of the case: English.