delivered on 16 February 2017 (1)

Case C‑129/16

(Request for a preliminary ruling from the Szolnoki Közigazgatási és Munkaügyi Bíróság (Administrative and Labour Court, Szolnok, Hungary))

Environment — Directive 2004/35/EC — Environmental liability with regard to the prevention and remedying of environmental damage — Directive 2008/98/EC — Waste — Polluter-pays principle — Proportionality — Presumption of innocence — Air pollution caused by illegal waste incineration — Shared responsibility of the owner of the land where the environmental pollution occurred and the polluter

I – Introduction

1.Once again, (2) the Court is asked to clarify the consequences of the polluter-pays principle. This time, the question is whether the owner of a leased-out plot of land may be penalised because waste was illegally incinerated there and that owner did not identify who was the actual user of the land or prove that it, the owner, bears no responsibility for the breach.

2.Although the national court raised this question in the context of the Environmental Liability Directive, (3) that directive is not applicable because it does not contain any provisions on penalties. Penalties for the illegal incineration of waste instead should rather be assigned to the Waste Directive. (4) It is also based on the polluter-pays principle and expressly requires effective penalties for breaches. And, because penalties are involved, in addition to the polluter-pays principle, the proportionality principle, which limits the imposition of penalties, must also be considered, as must the presumption of innocence.

II – Legal framework

A – EU law

Article 48(1) of the Charter contains the presumption of innocence:

‘Everyone who has been charged shall be presumed innocent until proved guilty according to law.’

The principle of lawful punishment and the application of the principle of proportionality with respect to penalties is derived from Article 49 of the Charter:

‘1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national law or international law at the time when it was committed. …

Article 1 of the Environmental Liability Directive relates to its subject matter:

‘The purpose of this Directive is to establish a framework of environmental liability based on the “polluter-pays” principle, to prevent and remedy environmental damage.’

The concept of environmental damage is defined in Article 2(1) of the Directive:

‘1. “environmental damage” means:

damage to protected species and natural habitats, which is any damage that has significant adverse effects on reaching or maintaining the favourable conservation status of such habitats or species. The significance of such effects is to be assessed with reference to the baseline condition, taking account of the criteria set out in Annex I;

Damage to protected species and natural habitats does not include previously identified adverse effects which result from an act by an operator which was expressly authorised by the relevant authorities in accordance with provisions implementing Article 6(3) and (4) or Article 16 of Directive 92/43/EEC or Article 9 of Directive 79/409/EEC or, in the case of habitats and species not covered by Community law, in accordance with equivalent provisions of national law on nature conservation;

water damage, which is any damage that significantly adversely affects the ecological, chemical and/or quantitative status and/or ecological potential, as defined in Directive 2000/60/EC, of the waters concerned, with the exception of adverse effects where Article 4(7) of that Directive applies;

land damage, which is any land contamination that creates a significant risk of human health being adversely affected as a result of the direct or indirect introduction, in, on or under land, of substances, preparations, organisms or micro-organisms’.”

The concept of environmental damage is also explained in the fourth recital of the Directive:

‘Environmental damage also includes damage caused by airborne elements as far as they cause damage to water, land or protected species or natural habitats.’

Recital 26 of the Waste Directive relates to the polluter-pays principle:

‘The polluter-pays principle is a guiding principle at European and international levels. ...’

Article 36 of the Waste Directive relates to the implementation of requirements relating to waste legislation:

‘1. Member States shall take the necessary measures to prohibit the abandonment, dumping or uncontrolled management of waste.

B – Hungarian law

The request for a preliminary ruling describes the relevant Hungarian provisions as follows:

Under Article 102(1) of the 1995 évi LIII. törvény környezet védelmének általános szabályairól (Law No LIII of 1995 on general norms for environmental protection), liability for environmental damage or risk is — except where evidence to the contrary is provided — to be borne jointly and severally by those who, once the environmental damage or risk has materialised, own and are in possession (the user) of the land on which the environmental damage occurred or on which the activity which was potentially harmful to the environment took place. Under Article 102(2), the owner is relieved of joint liability if he identifies the actual user of the land and unequivocally proves that he is not liable.

Under Article 27(2) of 306/2010 (XII.23) kormányrendelet a levegő védelméről (Government Decree No 306/2010 of 23 December 2010 on air protection), it is prohibited to incinerate waste outdoors or in facilities that do not comply with the law on waste incineration; as an exception, where home-based facilities are used, the incineration of paper waste from private households or untreated wood wastes is classified as being not dangerous. Incineration of waste in open spaces is deemed to occur where such waste burns for whatever reason, except as a result of natural causes.

Under Article 34(1) of that Government Decree, the Environmental Protection Agency is required, except where otherwise provided, to impose a fine designed to protect air quality on the natural or legal person or the entity without legal personality which has breached the requirements relating to air quality and, at the same time, order cessation of the illegal activity or failure to act, absent provision to the contrary.

According to Hungary, waste management law is also found in other Hungarian laws, including the 2012 évi CLXXXV. törvény a hulladékról (Law CLXXXV of 2012 on waste management) and the 271/2011 (XII.21.) Korm. Rendelet a hulladékgazdálkodási bírság mértékéről, valamint kiszabásának és megállapításának módjáról (Government Decree No 271/2001 of 21 December 2001 on the amount of the penalty in the context of waste management, and the detailed arrangements by which it is imposed and determined).

III – Facts and request for a preliminary ruling

15.On 2 July 2014, a customs and finance agency informed the Lower Environmental Protection Agency that municipal waste was being incinerated at the Túrkevei Tejtermelő Kft. (‘TTK’) facility in Túrkeve.

16.Staff of the Environmental Protection Agency carried out an on-site inspection of the land, in respect of which a report was drawn up. It was stated in that report that each of the three on-site storage units contained 30 to 40 m³ of incinerated municipal waste, including tin cans and other metallic waste. At the same site, other metallic waste resulting from incineration was found in a 5 x 5 metre area outside the storage units.

17.When they arrived at the site, the inspectors found three lorries ready to transport the metallic waste resulting from the incineration. The drivers of the vehicles stated that they belonged to a commercial undertaking based in Budapest. According to statements made by the drivers, after the metallic waste had been loaded on to the lorries they would then receive instructions as to where to transport it.

18.The Lower Environmental Protection Agency established that TTK, according to a statement given on 12 July 2014, had leased the land, since 15 March 2014, to a person who died on 1 April 2014. The request for a preliminary ruling does not contain any information as to whether the heirs of this person or the persons who are responsible for the waste incineration have been identified.

19.The Lower Environmental Protection Agency imposed an air-quality-protection fine on TTK of HUF 500000 (approximately EUR 1650) and based the imposition of the fine on TTK’s legal title to the land.

20.Following an objection by TTK, the Országos Környezetvédelmi és Természetvédelmi Főfelügyelőség (State General Inspectorate for Environment and Nature Protection) upheld the lower agency’s decision.

21.The authorities involved in the proceedings explained that the incineration of waste in an open space releases substances which are harmful for human health and the environment and which, therefore, constitute an environmental hazard. Liability for the environmental hazard attaches to the owner of the facility. The State General Inspectorate noted that the facility where the incineration took place belongs to the applicant and that, in accordance with the Law on environmental protection, persons who own or are in possession of the land at any time are to be held jointly and severally liable, except where the owner can prove unequivocally that he is not responsible for the environmental hazard. Taking account of the fact that the lessee of the land had passed away, the lower agency took the necessary procedural steps to clarify the facts and considered, furthermore, that there had been a reversal of the burden of proof to the effect that the burden was on the applicant to prove that it was not liable.

22.TTK brought an action challenging this and the court seised has referred the following questions to the Court of Justice:

1.Do Article 191 TFEU and the provisions of the Environmental Liability Directive preclude a provision of national law which — going beyond the polluter-pays principle — permits the environmental protection agency to hold specifically the owner of the property liable to pay compensation for the environmental damage caused, without it first being necessary to determine whether there is a causal link between the conduct of that person (a commercial undertaking) and the pollution caused?

2.If the first question is to be answered in the negative and, with regard to the air pollution, it is not necessary to remedy the environmental damage, may a fine aimed at protecting air quality be imposed on the basis of legislation of the Member State which is more stringent within the meaning of Article 16 of Directive 2004/35/EC and Article 193 TFEU, or can even that more stringent legislation not result in the imposition of a fine which is solely punitive in nature on the owner of the property, which is not responsible for the pollution caused?

23.The State General Inspectorate for Environment and Nature Protection, Hungary and the European Commission have submitted written observations on both of those questions and on a further question from the Court of Justice concerning the relevance of the Waste Directive.

IV – Legal analysis

24.The request for a preliminary ruling seeks to ascertain whether the polluter-pays principle in Article 191(2) TFEU allows a penalty to be imposed on the owner of a leased plot of land on which waste is incinerated illegally, where no causal link has been established between that owner’s conduct and the infringement.

25.The national court correctly assumes that the polluter-pays principle can be applied only in connection with a specific implementation in secondary law. However, it erroneously looks for this specific implementation in the Environmental Liability Directive (see A, below). In the present case, it is to be found, rather, in the Waste Directive (see B, below). In this context, it is necessary to address the consequences of the polluter-pays principle as well as the principle of proportionality and presumption of innocence. In conclusion, it will be necessary to examine the second question, which concerns the powers of the Member States to introduce more stringent protective measures (see C, below).

A – The Environmental Liability Directive

26.In the present case, an air-quality-protection penalty for illegal waste incineration was imposed. However, the Commission correctly points out that the Environmental Liability Directive covers neither the imposition of penalties for breaches of environmental law nor the impairment of air quality.

27.The purpose of the Environmental Liability Directive, as stated in Article 1, is to establish a framework of environmental liability based on the polluter-pays principle to prevent and remedy environmental damage.

28.Although it is in principle conceivable that penalties for breaches should be included in a statutory framework for environmental liability for the purpose of preventing and remedying environmental damage, the Environmental Liability Directive does not provide for this. It confines itself, with regard to environmental damage, to the obligation to provide for measures for prevention and remedy and to regulating responsibility for the costs of such measures.

29.Furthermore, the concept of environmental damage as defined in Article 2(1) of the Environmental Liability Directive does not include pollution affecting air quality. Instead, this concept is restricted to damage to protected species and natural habitats, water and land.

30.Recital 4, admittedly, clarifies that the concept of ‘environmental damage’ includes damage caused by airborne elements in so far as they cause damage to water, land or protected species or natural habitats. There is; however, no evidence of effects of this kind in the present case.

31.Furthermore, the illegal burning of waste also does not, as such, constitute environmental damage within the meaning of the Environmental Liability Directive.

32.Consequently, the Environmental Liability Directive is not applicable in the present case and thus cannot be used as a bridge for the application of the polluter-pays principle in accordance with Article 191(2) TFEU.

B – The law on waste

33.The request for a preliminary ruling shows, however, that the disputed penalty was imposed because of the illegal waste incineration.

Therefore, the Court of Justice should examine the request for a preliminary ruling in the light of the law on waste. In the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the questions referred to it. The Court may also find it necessary to consider provisions of EU law to which the national court has not referred in its questions. (6)

Therefore, I will first identify the principles to be applied to penalties pursuant to Article 36(2) of the Waste Directive. It will then be necessary to determine the basis on which a penalty was imposed on TTK in the main proceedings, namely a rebuttable suspicion that it was jointly liable for the breaches. Finally, it will be necessary to determine the limits of this assumption in the context of the abovementioned principles.

As in the case of the Environmental Liability Directive, the Waste Directive also refers expressly to the polluter-pays principle. While that principle is mentioned in recital 1 and Article 14 only in connection with the costs of waste management, recital 26 generally emphasises its function as a guiding principle at European and international level.

In addition, the EU legislature always needs to integrate the polluter-pays principle when adopting environmental laws in accordance with Article 191(2) TFEU. The Waste Directive is one such legislative text, as it was based on Article 175(1) TEC (now Article 192(1) TFEU). Therefore, this directive must be construed in the light of the polluter-pays principle.

Accordingly, the obligation in Article 36(2) of the Waste Directive to impose penalties in respect of breaches must also be construed in such a way as to give effect to the polluter-pays principle.

The obligation to impose penalties in Article 36(2) of the Waste Directive is closely related to the obligation in Article 36(1) to prohibit the abandonment, dumping or uncontrolled management of waste. The obligation to treat or recover waste in Article 15(1), which in principle applies to the waste producer or holder, is derived from this. (7) This person should bear the costs of disposing of the waste in conformity with the polluter-pays principle, in which connection the Court of Justice has emphasised that this person is the person who created the waste. (8)

The Court of Justice, therefore, has determined that the polluter-pays principle, within the meaning of the first subparagraph of Article 191(2) TFEU and Article 15 of the Waste Directive, would be deprived of its substance if the named persons who had contributed to the creation of the waste were able to avoid their financial obligations as provided for under the Directive. (9)

This consideration of the liability of waste producers for costs is also significant with regard to the obligation to impose penalties for breaches. Penalties must be imposed on those who caused the breach. Therefore, the Member States are obliged to take appropriate measures to identify these persons and to impose penalties on them. In the present case, priority would have had to be given to considering who had committed or ordered the breaches as well as possibly to considering who had exercised effective control over the land during the breaches, possibly the heirs of the deceased lessee.

Conversely, it would be inconsistent with the polluter-pays principle to penalise persons in respect of breaches for which they are not responsible. (10) This would also be unnecessary and would therefore infringe the principle of proportionality, (11) which must be observed in the implementation of EU law. (12) This principle also applies under Article 49(3) of the Charter to the level of penalties (13) and is also expressly mentioned in the second sentence of Article 36(2) of the Waste Directive.

Because a penalty is involved, other principles are also important, including the lawfulness of the punishment, nulla poena sine lege, in accordance with the first sentence of Article 49(1) of the Charter, and the presumption of innocence enshrined in Article 48(1) of the Charter. The presumption of innocence also includes the fault principle, nulla poena sine culpa, which requires guilt, that is to say, liability for the breach. (14)

However, we must also take into account the fact that implementation of the principles of proportionality and polluter-pays is in general, (15) and particularly in the area of penalising breaches, (16) the responsibility of the Member States and that they therefore enjoy wide latitude in implementation. Review of this latitude is primarily a matter for the national courts.

In order to determine the liability of a landowner for the acts of others on a leased plot of land, one might examine various categories of complicity under criminal law. In this respect, one might think of complicity, incitement, and aiding and abetting, as well as, after the act, assistance or obstruction of justice. But there is no evidence that the determinations necessary for these were made in the main proceedings.

Rather, the penalty was based exclusively on the fact that TTK is the landowner, but the actual user of the land was not named, nor was it unequivocally established that TTK was not responsible for the breaches.

In this respect, it is the national court’s responsibility to ascertain first of all whether Hungarian law actually establishes the liability of the landowner in accordance with the principle of legality in Article 49(1) of the Charter.

As implied in the request for a preliminary ruling, it does not appear obligatory to confer this effect on Article 102(1) of Law No LIII of 1995 on general norms for environmental protection, which is cited in the request. Under that legislation, joint and several liability attaches to the owner or holder (user) of the land in question for environmental damage or environmental hazards resulting from a damaging event.

This terminology includes future owners and users who bear no liability whatsoever for any past breaches. With respect to the restoration of damage or the prevention of risks under certain conditions, this may be allowed beyond the provisions of the Environmental Liability Directive. (17) The present case, however, does not involve the reparation of environmental damage or the prevention of environmental hazards, but the penalising of a breach.

Nevertheless, we must assume, for the purpose of replying to the present request for a preliminary ruling, that Hungarian law imposes a liability, attracting penalties, on the landowner for breaches committed on the land, if he does not name the actual user of the land and fails to prove unequivocally that he himself is not responsible.

Consequently, the penalty is based on a rebuttable presumption.

There is evidence for the admissibility of penalties based on rebuttable presumptions in the case-law of the ECtHR on the presumption of innocence in Article 6(2) ECHR. Under this principle, factual or legal presumptions must be appropriately limited, with the weight of the various concerns taken into account and the rights of the defence safeguarded. (The Court or Justice follows this case-law.)

The joint and several liability of the landowner for the behaviour of a land user rests on two pillars, first, the obvious presumption that the owner has at least tolerated or even approved the behaviour, and second, on duties of care connected to his property. The State General Inspectorate describes the latter in its submission with the principle of ‘bonus et diligens pater familias’.

This double basis appears to be consistent with the polluter-pays principle, the proportionality principle and the presumption of innocence, particularly in view of the margin granted to the Member States. The breach of the Waste Directive in the present case was only possible because TTK did not exercise its rights as owner in order to prevent those breaches.

However, in addition to the justification of such a presumption, we must also emphasise the rights of defence. The accused must have the opportunity to rebut the presumption of guilt.

Hungary emphasises that the owner is released from joint and several liability under Article 102(2) of Law No LIII of 1995 on general norms for environmental protection if he names the actual user of the land and unequivocally proves that he is not responsible.

The State General Inspectorate concludes in the present case that TTK did not satisfy either of those requirements and therefore has not rebutted the presumption of its liability. The lessee whom it identified could not actually use the land because he had since died and TTK had also not unequivocally proved that it was not responsible for the breaches on the land.

The State General Inspectorate finds this result justified because it is derived from a breach of the duties of care that are incumbent upon a landowner. Over a long period of time, TTK paid no attention to what was happening on its land.

Duties of care must, however, be proportionate and, in particular, reasonable. This is because, according to the proportionality principle, a measure must be ‘appropriate, necessary and proportionate to the objective it pursues.’ The need for reasonableness results from the third part of this examination, namely, whether the measure — in this case, the duty of care — is proportionate or appropriate to the intended goal.

To the same extent, the rebuttal of a presumption based on such duties of care must also be reasonable.

Therefore, the competent Hungarian courts must examine critically whether the requirements for rebuttal of the presumption of the landowner’s liability in the present case are in fact reasonable.

In the present case, there may be investigatory options which would justify broader duties of care and therefore higher requirements for the rebuttal of the landowner’s liability. To this end, one might investigate whether and, if relevant, by whom the rent continued to be paid. The role of the lessee’s heirs might also be of interest. There might even be evidence that TTK concluded the lease relationship only for the sake of appearances and/or knowingly concluded it with a person acting as a ‘front’. The request for a preliminary ruling, however, contains no information on these matters.

In the event that the national court should, notwithstanding everything, conclude that TTK has not rebutted the presumption of its responsibility, then, finally, it should also be noted that the penalty also must be proportionate, that is to say, it must, in particular, be appropriate. Consequently, it must reflect the weight of the individual causative contribution or breach of the duty of care. As a rule, the breach of a landowner’s duties of care with respect to the conduct of the actual user of a leased plot of land will not have the same weight as the direct breach of rules governing the law on waste management. Therefore, it is also prohibited simply to impose the penalty for the breach of rules governing the law on waste management on the landowner in the case of a suspicion that the landowner is jointly liable.

In conclusion, Article 36(2) of the Waste Directive, the polluter-pays principle in Article 191(2) TFEU, as well as the principle in Article 49(3) of the Charter of Fundamental Rights that penalties must be proportionate, and the presumption of innocence in Article 49(1) of the Charter do not preclude the imposition of an appropriate penalty on the owner of a leased plot of land which is based on the statutorily determined presumption that the landowner and the actual user of the land share responsibility for the breach, on that land, of legal rules governing waste management, if it is in principle possible to rebut this presumption by means of reasonable evidence.

C – The concept of more stringent protective provisions

The second question regarding the right of the Member States to adopt more stringent protective provisions is raised only in the event that the polluter-pays principle precludes the imposition of a penalty on the landowner.

This cannot be ruled out if, under Hungarian law, it is possible to punish the landowner, even though he has submitted all reasonable evidence to rebut the presumption that he is liable, or if the punishment is inappropriate. Although the Waste Directive, unlike the Environmental Liability Directive, does not contain any provision on more stringent measures of the Member States, rules such as the Waste Directive do not, pursuant to Article 193 TFEU, preclude individual Member States from retaining or adopting more stringent protective measures.

The Court of Justice on one occasion in the past held that the proportionality principle should not be applied to more stringent measures adopted by the Member States. From this one could conclude that penalties which go beyond Article 36(2) of the Waste Directive are justified by Article 193 TFEU.

However, the power to adopt more stringent measures is in every case limited by the objectives of the EU-law rules in question, which the Member States may not undermine. (25) And Article 36(2) of the Waste Directive expressly provides that penalties for breach of the law on waste management must be proportionate. ‘More stringent’ penalties which are based on unreasonable requirements or which impose inappropriate penalties would be incompatible with that principle.

73.The Member States therefore may not use Article 193 TFEU as a basis for imposing penalties for the breach of waste management obligations if these are based on unreasonable requirements or are inappropriate.

V – Conclusion

I therefore propose that the Court answer the questions referred for a preliminary ruling along the following lines:

(1)Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage is not applicable to either the imposition of penalties for breaches of obligations under environmental law or to pollution of air quality which does not cause damage to protected species or natural habitats, water or land.

(2)Article 36(2) of Directive 2008/98/EC on waste, the polluter-pays principle in Article 191(2) TFEU, the principle in Article 49(3) of the Charter of Fundamental Rights that penalties must be proportionate, and the presumption of innocence in Article 48(1) of the Charter do not preclude the imposition of an appropriate penalty on the owner of a leased plot of land which is based on the statutorily determined presumption that the landowner and the actual user of the land share responsibility for the breach, on that land, of legal rules governing waste management, if it is in principle possible to rebut this presumption by means of reasonable evidence.

(3)Member States cannot use Article 193 TFEU as the basis for imposing penalties for the breach of waste management obligations which are founded on unreasonable requirements or which are inappropriate.

* * *

(1) Original language: German.

(2) See judgments of 29 April 1999, Standley and Others (C‑293/97, EU:C:1999:215); of 7 September 2004, Van de Walle and Others (C‑1/03, EU:C:2004:490); of 24 June 2008, Commune de Mesquer (C‑188/07, EU:C:2008:359); of 16 July 2009, Futura Immobiliare and Others (C‑254/08, EU:C:2009:479); of 9 March 2010, ERG and Others (C‑378/08, EU:C:2010:126) and (C‑379/08 and C‑380/08, EU:C:2010:127); and of 4 March 2015, Fipa Group and Others (C‑534/13, EU:C:2015:140).

(3) Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (OJ 2004 L 143, p. 56).

(4) Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives (OJ 2008 L 312, p. 3).

(5) See judgments of 9 March 2010, ERG and Others (C‑378/08, EU:C:2010:126, paragraph 46) and ERG and Others (C‑379/08 and C‑380/08, EU:C:2010:127, paragraph 39), and of 4 March 2015, Fipa Group and Others (C‑534/13, EU:C:2015:140, paragraph 42).

(6) See, most recently, judgments of 11 February 2015, Marktgemeinde Straßwalchen and Others (C‑531/13, EU:C:2015:79, paragraph 37), and of 13 October 2016, M. and S. (C‑303/15, EU:C:2016:771, paragraph 16).

See also judgment of 26 September 2013, Texdata Software (C‑418/11, EU:C:2013:588, paragraphs 43 to 46).

Judgment of 7 September 2004, Van de Walle and Others (C‑1/03, EU:C:2004:490, paragraph 56).

Judgments of 7 September 2004, Van de Walle and Others (C‑1/03, EU:C:2004:490, paragraph 58), and of 24 June 2008, Commune de Mesquer (C‑188/07, EU:C:2008:359, paragraph 71).

Judgment of 24 June 2008, Commune de Mesquer (C‑188/07, EU:C:2008:359, paragraph 72).

See judgment of 29 April 1999, Standley and Others (C‑293/97, EU:C:1999:215, paragraph 51).

Judgment of 29 April 1999, Standley and Others (C‑293/97, EU:C:1999:215, paragraphs 51 and 52).

See judgment of 9 March 2010, ERG and Others (C‑379/08 and C‑380/08, EU:C:2010:127, paragraph 86).

See judgment of 28 July 2016, JZ (C‑294/16 PPU, EU:C:2016:610, paragraph 42).

EU:C:2009:479

paragraphs 48, 52 and 55)

Judgment of 23 October 2007, Commission v Council (C‑440/05, EU:C:2007:625, paragraph 70)

See my Opinions in Fipa Group and Others (C‑534/13, EU:C:2014:2393, point 60 et seq.), and in ERG and Others (C‑378/08 and C‑379/08 and C‑380/08, EU:C:2009:650, points 130 to 138).

Judgment of the ECtHR of 7 October 1988, Salabiaku v. France, no. 10519/83, § 28; of 25 September 1992, Pham Hoang v. France, no. 13191/87, § 33; and of 30 March 2004, Radio France v France no. 53984/00, § 24.

Judgment of 23 December 2009, Spector Photo Group and Van Raemdonck (C‑45/08, EU:C:2009:806, paragraph 43). See, earlier, judgment of 10 July 1990, Hansen (C‑326/88, EU:C:1990:291, paragraph 19).

See judgment of the ECtHR of 30 March 2004, Radio France v. France, no. 53984/00,§ 24.

See, to this effect, judgments of 21 December 2011, Vlaamse Oliemaatschappij (C‑499/10, EU:C:2011:871, paragraphs 24)

to 26), and of 2 June 2016, Kapnoviomichania Karelia (C‑81/15, EU:C:2016:398, paragraphs 50, 52 and 53).

See my Opinion in G4S Secure Solutions (C‑157/15, EU:C:2016:382, point 98), citing the French Conseil Constitutionnel (Constitutional Council), Decisions No 2015-527 QPC of 22 December 2015 (FR:CC:2015:2015.527.QPC, paragraph 4 and paragraph 12) and No 2016-536 QPC of 19 February 2016 (FR:CC:2016:2016.536.QPC, paragraphs 3 and 10); similarly the French Conseil d’État (Council of State), judgment 317827 of 26 October 2011 (FR:CEASS:2011:317827.20111026); see also the German Bundesverfassungsgericht (Federal Constitutional Court), BVerfGE 120, 274, 318 et seq. (DE:BVerfG:2008:rs20080227.1bvr037007, paragraph 218).

Judgment of 14 April 2005, Deponiezweckverband Eiterköpfe (C‑6/03, EU:C:2005:222, paragraph 63). See, however, judgment of 9 March 2010, ERG and Others (C‑379/08 and C‑380/08, EU:C:2010:127, paragraphs 66 and 86).

Judgments of 9 March 2010, ERG and Others (C‑379/08 and C‑380/08, EU:C:2010:127, paragraph 66); of 21 July 2011, Azienda Agro-Zootecnica Franchini and Eolica di Altamura (C‑2/10, EU:C:2011:502, paragraph 50); and of 26 February 2015, ŠKO-Energo (C‑43/14, EU:C:2015:120, paragraph 25). See also my Opinion in ERG and Others (C‑378/08, C‑379/08 and C‑380/08, EU:C:2009:650, points 96 to 115).

* Language of the case: English.

ECLI:EU:C:2025:140

JUDGMENT OF 6. 3. 2025 – CASE C-41/24 WALTHAM ABBEY RESIDENTS ASSOCIATION

after considering the observations submitted on behalf of:

–Waltham Abbey Residents Association, by J. Devlin, Senior Counsel, J. Kenny, Barrister-at-Law, and D. Healy, Solicitor,

–An Bord Pleanála, by. B. Foley, Senior Counsel, A. Carroll, Barrister-at-Law, and P. Reilly, Solicitor,

–Ireland, by M. Browne, Chief State Solicitor, S. Finnegan, K. Hoare and A. Joyce, acting as Agents, and by D. McGrath, Senior Counsel, F. Valentine, Senior Counsel, and E. O’Callaghan, Barrister-at-Law,

–the European Commission, by M. Noll-Ehlers and N. Ruiz García, acting as Agents,

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

gives the following

Judgment

1This 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’).

2The 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

3Recitals 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.

ECLI:EU:C:2025:140

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.’

4Article 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.’

5Under 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)];

…’

6Article 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;

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

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

3.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.

4.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.

5.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.’

7Annex 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:

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

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.

ECLI:EU:C:2025:140

JUDGMENT OF 6. 3. 2025 – CASE C-41/24 WALTHAM ABBEY RESIDENTS ASSOCIATION

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

8Annex 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

9Recitals 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

10Article 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.’

11Article 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.’

12Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law