Case C-433/02

«(Failure of a Member State to fulfil obligations – Directive 92/100/EEC – Copyright – Remuneration of authors in the event of public lending of their literary or artistic works)»

Judgment of the Court (Sixth Chamber), 16 October 2003

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Summary of the Judgment

Approximation of laws – Copyright and related rights – Rental right and lending right for protected works – Directive 92/100 – Remuneration of authors in the event of public lending – Possibility for Member States to exempt certain categories of establishments – Scope (Council Directive 92/100, Art. 5(3))

Article 5(3) of Directive 92/100 on rental right and lending right and on certain rights related to copyright in the field of intellectual property, under which Member States may exempt certain categories of establishments from the payment of the remuneration for public lending provided for in paragraphs 1 and 2 of that article, authorises but does not oblige a Member State to exempt certain categories of establishments. Consequently, if the circumstances prevailing in a Member State do not enable a valid distinction to be drawn between categories of establishments, that Member State must, in order to transpose the directive correctly, impose the obligation to pay the remuneration in question on all the establishments concerned.see para. 20

JUDGMENT OF THE COURT (Sixth Chamber) 16 October 2003 (1)

((Failure by a Member State to fulfil its obligations – Directive 92/100/EEC – Copyright – Remuneration of authors in the event of public lending of their literary or artistic works))

In Case C-433/02,

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

applicant,

Kingdom of Belgium, represented by A. Snoecx, acting as Agent,

defendant,

APPLICATION for a declaration that, by failing to apply the provisions on the public lending right provided for in Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 1992 L 346, p. 61), the Kingdom of Belgium has failed to fulfil its obligations under Articles 1 and 5 of that directive,

THE COURT (Sixth Chamber),,

composed of: J.-P. Puissochet, President of the Chamber, R. Schintgen, C. Gulmann (Rapporteur), V. Skouris and J.N. Cunha Rodrigues, Judges,

Advocate General: P. Léger, Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

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

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

3 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.

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(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

The Belgian Government considers that, in practice, it is very difficult for Member States to designate from the whole class of establishments accessible to the public which lend works with no direct or indirect economic or commercial advantage the categories of establishments exempted from payment of the remuneration. The term lending as defined in Article 1(3) of the Directive relates only to a freely defined category of establishments. In practice, this concerns lending by public libraries and media libraries, school and university libraries and public documentation centres which are accessible to the public and do not charge borrowers any remuneration for the lending, or only a remuneration whose amount does not exceed what is necessary to cover the establishment's costs of operation. It is by no means obvious to draw, within that group of establishments, a distinction based on cultural or educational grounds, for example between categories of establishments liable to pay a remuneration for lending, on the one hand, and categories of establishments exempt from such a remuneration, on the other, given that all the establishments covered by Article 1(3) of the Directive are orientated to lending for cultural, educational or similar purposes in view of the fact that, according to the Directive, lending for direct or indirect economic or commercial purposes is outside the scope of that article.

Finally, the Belgian Government says that the Commission indicated, in a report of 12 September 2002, that it appears that in certain other Member States no remuneration is paid to the persons entitled. That appears to be the case in France, Greece and Luxembourg, and probably elsewhere as well.

18It must be observed, first, that in the absence of sufficiently precise Community criteria in a directive to delimit the obligations under the directive, it is for the Member States to determine, in their own territory, what are the most relevant criteria for ensuring, within the limits imposed by Community law and in particular by the directive, compliance with that directive (see, to that effect, Case C-245/00 SENA [2003] ECR I-1251, paragraph 34).

19Moreover, as the Commission observed, Article 5(3) of the Directive authorises but does not oblige a Member State to exempt certain categories of establishments. Consequently, if the circumstances prevailing in the Member State in question do not enable a valid distinction to be drawn between categories of establishments, the obligation to pay the remuneration in question must be imposed on all the establishments concerned.

20Next, even assuming that other Member States do not apply correctly the public lending right as provided for in the Directive, it suffices to point out that, according to settled case-law, a Member State cannot justify its failure to perform its obligations under Community law by relying on the fact that other Member States are also in breach of their obligations (see Case C-173/99 BECTU [2001] ECR I-4881, paragraph 56).

21Finally, with respect to the difficulties encountered by the federal authorities in convincing the federated entities to accept that an obligation to pay a remuneration for public lending should be imposed on the establishments falling within the scope of Article 1(3) of the Directive, it is settled case-law that a Member State cannot rely on provisions, practices or circumstances in its internal legal order to justify failure to comply with obligations and time-limits laid down by a directive (see Case C-419/01 Commission v Spain [2003] ECR I-4947, paragraph 22).

Consequently, since the directive was not fully transposed within the time-limit set, the Commission's action is well founded.

Costs

24Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the Kingdom of Belgium has been unsuccessful, it must be ordered to pay the costs.

On those grounds,

THE COURT (Sixth Chamber) hereby:

1.Declares that, by failing to apply the provisions on the public lending right provided for in Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property, the Kingdom of Belgium has failed to fulfil its obligations under Articles 1 and 5 of that directive;

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

Delivered in open court in Luxembourg on 16 October 2003.

Registrar

President of the Chamber

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Language of the case: French.