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

Opinion of Advocate General Tizzano delivered on 28 October 2004

Judgment of the Court (Second Chamber), 27 January 2005

Summary of the Judgment

Approximation of laws – Disposal of waste oils – Directive 75/439 – Obligation of the Member States to give priority to the processing of 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 or 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 thereby intend 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.

To consider that the technical, economic and organisational circumstances obtaining in a Member State automatically constituted constraints making it impossible to adopt the measures provided for in that article would deprive it 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 to give priority to the processing of waste oils by regeneration.

(see paras 38-39)

JUDGMENT OF THE COURT (Second Chamber) 27 January 2005 (1)

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

In Case C-15/03, ACTION under Article 226 EC for failure to fulfil obligations, brought on 14 January 2003,

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

applicant,

Republic of Austria, represented by E. Riedl, M. Hauer and E. Wolfslehner, acting as Agents, with an address for service in Luxembourg,

defendant, supported by: Republic of Finland, represented by T. Pynnä, acting as Agent, with an address for service in Luxembourg, and by United Kingdom of Great Britain and Northern Ireland, represented by K. Manji, acting as Agent, and by M. Demetriou, Barrister, with an address for service in Luxembourg,

THE COURT (Second Chamber),

composed of C.W.A. Timmermans, President of the Chamber, R. Silva de Lapuerta (Rapporteur), C. Gulmann, G. Arestis and J. Klučka, Judges,

Advocate General: A. Tizzano, Registrar: K. Sztranc, Administrator,

having regard to the written procedure and further to the hearing on 16 September 2004,

after hearing the Opinion of the Advocate General at the sitting on 28 October 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

19

The Commission considers that those conditions shift the responsibility for complying with the principle of priority to the holders of waste instead of making it the responsibility of the public authorities, as the Directive requires.

As regards the argument that regeneration is uneconomical in Austria because of the small quantity of waste oils generated on its territory, the Commission argues that the Directive applies not only to Member States that produce large quantities of waste oils but also to all the other Member States. Furthermore, no tangible argument has been put forward to show why the regeneration of waste oils is uneconomical in Austria.

21

The Commission states that the point from which the regeneration of waste oils may be financially viable depends on various economic factors, and that the capacity of regeneration plants is only one such factor. Furthermore, it cannot be concluded from the statements of the Austrian authorities that they have endeavoured to create the appropriate conditions to ensure the viability of a regeneration plant for waste oils or for using the regeneration capacities of other Member States.

22

The Austrian Government considers that the obligation in Article 3(1) of the Directive has been transposed by the various provisions of the AWG. In particular the amendments to the AWG, which entered into force in 2002, further highlight the priority given to the regeneration of waste oils. In accordance with Paragraph 16(3)(1) of the AWG, waste oils are to undergo recycling, that is, regeneration, to the extent that such a procedure is technically possible and economically acceptable.

23

The Austrian Government asserts that, under Article 3(1) of the Directive, there must be regeneration only where it is not precluded by technical, economic and organisational constraints. According to the case-law of the Court, those constraints should not be interpreted restrictively and should be understood as reflecting the principle of proportionality.

24

The Austrian Government submits that it is not apparent, either from the Directive or the case-law, that such constraints should not be linked to the situation of the holder of the waste. The Directive does not, in any event, contain any indication that it is for the Member States themselves to collect and regenerate waste oils or that it is only the Member States that must be affected by such constraints. Against that background, the term ‘constraints’ for the purposes of Article 3(1) of the Directive was clarified, with a view to its effectiveness, in the amended version of the AWG.

25

As regards the setting of a number of limit values for the base oil produced by regeneration, the Austrian Government states that the Directive itself sets such values for regenerated oil. Furthermore, the conditions required for the re-use of regenerated base oils made it necessary to introduce such ceilings.

26

The Austrian Government submits that, having regard to the quantities concerned, the construction of a regeneration plant specifically for waste oils recovered from third parties was uneconomical. The viability of the regeneration of waste oils depends on several economic factors and the obligation to give priority to the regeneration of waste oils cannot extend so far as to require the Member State to construct itself a plant which is uneconomical, in order to allow regeneration to take place on its territory or to oblige holders of waste to carry out regeneration.

The Austrian Government points out that the amendment of the AWG sought to recast the applicable law on the subject, the scope of which now also covers the regeneration of waste oils within undertakings, rather than just regeneration by third parties as it did before. The fact that the national legislation gives priority to the regeneration of waste oils is demonstrated, in particular, by the fact that those oils are exported for the purposes of regeneration as well as by a number of financial measures.

28

The Finnish Government considers, in its intervention in support of the forms of order sought by the Republic of Austria, that the national provisions at issue do give priority to regeneration. Moreover, the priority required is not absolute given the existence of a condition of feasibility from the technical, economic and organisational perspectives.

29

The Finnish Government asserts that the Member States are not obliged to construct regeneration plants, because the viability of that process depends on several factors, such as the quantity of waste oil produced, transport distances, production costs and the market price. The existence of economic conditions permitting regeneration should be considered on a case‑by‑case basis, with account being taken of the relevant circumstances as a whole in the Member State concerned.

30

The United Kingdom Government, which has also intervened in support of the Republic of Austria, takes the view that Paragraph 16(3) of the AWG 2002 properly implements Article 3(1) of the Directive. In particular, the national legislation places a requirement on the holders of waste oils to process them by way of regeneration.

31

The United Kingdom Government states that the AWG correctly gives effect to the principle of proportionality by requiring holders of waste oils to process them by regeneration unless it is technically impossible or economically unreasonable for them to do so. It is legitimate for Member States to discharge the obligations imposed upon them by directives by arranging in the framework of domestic legislation the rights and obligations of individuals or undertakings.

32

The United Kingdom Government acknowledges that Article 3(1) of the Directive requires Member States to take measures on a macroeconomic level to prioritise regeneration and to tackle any obstacles to such regeneration, to an extent proportionate to the objective pursued. The scope of that obligation varies, however, according to the circumstances in each Member State and the actual form of the measures required depends on the nature of any constraints that exist in that State.

33

The United Kingdom Government argues, lastly, that the small quantities of waste oils produced in Austria and the fact that Austria does not possess a regeneration plant are relevant factors that the Austrian Government is entitled to take into account when assessing the economic constraints upon regeneration and the scope of its obligation under Article 3(1) of the Directive.

Findings of the Court

34

It must be noted, as a preliminary point, that the recasting of the AWG resulting from the second law on waste management, in particular the amendments to Paragraph 16(3), entered into force only on 2 November 2002, that is to say after the expiry of the two‑month period fixed in the reasoned opinion to allow the Republic of Austria to comply with its obligations.

35

According to settled case-law, 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-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).

36

In those circumstances the Republic of Austria’s argument that the prioritisation of regeneration of waste oils was clarified in the framework of the recasting of the AWG cannot be taken into consideration by the Court.

37

As far as the legal situation before the recasting of the AWG in 2002 is concerned, it should be pointed out, as the Advocate General rightly observed in point 45 of his Opinion, that the national provisions applicable on the matter do not constitute a legal context calculated to ensure priority for regeneration. The provisions in question authorise the disposal of waste oils by recycling ‘or’ by energy recovery, thereby placing regeneration and combustion on exactly the same footing in disregard of the order of precedence laid down by Article 3(1) of the Directive.

38

As regards the argument relied on by the Republic of Austria, that putting in place regeneration plants on its territory is uneconomical and that in those circumstances and by reason of the principle of proportionality the obligations of the Member States concerned should be modified according to the actual circumstances prevailing in them, it must be recalled, as the Court held in paragraphs 35 to 43 of its judgment in Case C-102/97 Commission v Germany [1999] ECR I‑5051, that one of the primary objectives of the Directive was to give priority to the processing of waste oils by regeneration. Therefore, to consider that the technical, economic and organisational circumstances obtaining in a Member State automatically constituted constraints making it impossible to adopt the measures provided for in Article 3(1) of the Directive would deprive that provision 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 to give priority to the processing of waste oils by regeneration.

Furthermore, as regards such priority, it must be pointed out, as the Court stated in paragraphs 38 and 39 of the judgment in 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 thereby intend 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.

40

It is clear from all of the foregoing that the Commission’s action must be regarded as well founded.

41

Accordingly, it must be held that, by failing to adopt the measures necessary to give priority to the processing of waste oils by regeneration where the technical, economic and organisational constraints so allow, the Republic of Austria has failed to fulfil its obligations under Article 3(1) of the Directive.

Costs

42

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 asked that the Republic of Austria be ordered to pay the costs and the latter has been unsuccessful in its defence, it must be ordered to pay the costs. In accordance with Article 69(4), Finland and the United Kingdom are to bear their own costs.

On those grounds the Court (Second Chamber) hereby:

Declares that, by failing to adopt the measures necessary to give priority to the processing of waste oils by regeneration where the technical, economic and organisational constraints so allow, the Republic of Austria has failed to fulfil its obligations 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;

Orders the Republic of Austria to pay the costs;

Orders the Republic of Finland and the United Kingdom of Great Britain and Northern Ireland to bear their own costs.

[Signatures]

*1 Language of the case: German.