(Appeal – Fisheries – Community financial aid – Reduction of the aid – Council Regulation (EC, Euratom) No 2988/95 – Articles 1 and 3 – Limitation period)

Summary of the Judgment

(Council Regulation No 2988/95, Article 1(2) and Article 3(1), second and third subparas)

1.According to Article 1(2) of Regulation No 2988/95 on the protection of the European Communities financial interests, an irregularity presupposes a breach of a provision of Community law resulting from an act or omission by an economic operator.

Where the omission occasioning the breach of the provision of Community law persists, the irregularity is ‘continuous’ for the purposes of the second subparagraph of Article 3(1) of that regulation. The corresponding limitation period begins to run only from the day on which the irregularity ceases.

That period is interrupted by a Commission letter which specifically seeks to investigate the irregularity and to reduce the financial aid, since that letter is an investigative document for the purposes of the third subparagraph of Article 3(1).

(see paras 16-18, 30)

2.If the grounds of a judgment of the Court of First Instance reveal an infringement of Community law but its operative part appears well founded on other legal grounds the appeal must be dismissed.

(see para. 29)

JUDGMENT OF THE COURT (Second Chamber) 2 December 2004 (1)

(Appeal – Fisheries – Community financial aid – Reduction of the aid – Council Regulation (EC, Euratom) No 2988/95 – Articles 1 and 3 – Limitation period)

In Case C-226/03 P,APPEAL under Article 56 of the Statute of the Court of Justice, brought on 22 May 2003,

José Martí Peix SA, established in Huelva (Spain), represented by J.R. García-Gallardo Gil-Fournier and D. Domínguez Pérez, avocats,

applicant,

the other party to the proceedings being:

Commission of the European Communities, represented by S. Pardo Quintillán, acting as Agent, and J. Guerra Fernández, avocat, with an address for service in Luxembourg,

THE COURT (Second Chamber),

composed of: C.W.A. Timmermans, President of the Chamber, J.-P. Puissochet and N. Colneric (Rapporteur), Judges,

Advocate General: A. Tizzano, Registrar: M. Múgica Azarmendi, Principal Administrator,

having regard to the written procedure and further to the hearing on 10 June 2004, after considering the observations submitted by the parties,

after hearing the Opinion of the Advocate General at the sitting on 7 September 2004,

gives the following

1.1 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’).

2.2 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.

ECLI:EU:C:2025:140

(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;

or

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

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

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

(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

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

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

On 20 February 1997 the Spanish authorities received a letter from the applicant, dated 31 January 1997, in which it described the management difficulties experienced by the joint enterprise, caused by the demands made by the Angolan partner and, on the basis of those difficulties, sought a change in third country for the vessels Periloja and Sonia Rosal. In that letter, the applicant notified the transfer of those two vessels to the joint enterprise Peix Camerún SARL and applied for authorisation to present the third periodic progress report on activity in the context of the latter enterprise.

22By letter of 4 February 1997 received by the Commission on 5 March 1997, the Spanish authorities forwarded the requests made by the applicant, with the relevant documentation, and declared themselves in favour of those requests.

23On 4 April 1997 the Commission replied to the Spanish authorities that the third periodic activity report should have been submitted in September 1996 and that, consequently, that report must be presented following on from the preceding reports and not in the new perspective proposed by the applicant.

24By letter of 18 June 1997 the Commission asked the Spanish authorities to send the third periodic activity report as soon as possible.

25In September 1997 the third periodic activity report, covering the period from 20 May 1995 to 20 May 1996, was received by the Commission. In it mention was made of the conduct of the Angolan partner which prevented the pursuit of normal fishing activities. It was stated that the most recent landings of fish from Angola took place in March 1995 and that, in the light of the difficulties arising from that conduct, the Community partners had decided to sell their shares in the joint enterprise to the Angolan partner and to repurchase the vessels which had been transferred to the project. The report mentioned that, after their repurchase, the vessels had been transferred by the applicant to a Nigerian port, where they had undergone repairs until 1996.

26By letter of 6 March 1998 the applicant, in reply to a request by the Spanish authorities on 26 February 1998, provided the latter with clarifications as regards the implementation of the project. That letter stated that the joint enterprise’s vessels had left Angolan waters during the first quarter of 1995. The documents annexed to that letter showed that the Community shipowners sold their shares in the joint enterprise to the Angolan partner on 3 February 1995.

By letter of 26 June 1998 the Commission asked the Spanish authorities to provide information concerning the state of the project. In reply to that letter, on 2 July 1998 those authorities sent the Commission the applicant’s letter of 6 March 1998.

28In a letter of 26 July 1999 addressed to the applicant and to the Spanish authorities, Mr Cavaco, Director-General of the Fisheries Directorate of the Commission (DG XIV), announced that, in accordance with Article 44(1) of Regulation No 4028/86, the Commission had decided to reduce the aid initially granted to the project on the ground that, in contrast to the requirements laid down in that regulation and by Regulation No 1956/91, the joint enterprise had not exploited for three years the fisheries resources of the third country mentioned in the decision to grant assistance. As regards the vessel Pondal, that letter stated that it was possible to deduce from the documents received by the Commission that the vessel had been exercising its activities from 20 April to 20 July 1993 – that is, for three months – when it sank, which justified a reduction in aid of ECU 160 417. Nevertheless, it added that the Commission’s calculation was subject to obtaining information establishing that that sinking constituted a case of force majeure. As regards the Periloja and Sonia Rosal, it stated that the information available to the Commission showed that those two vessels had exercised their activities in Angolan waters on behalf of the joint enterprise from 20 April 1993 to 20 April 1994 and from 20 May 1994 to 3 February 1995, the date the applicant sold its shares in the joint enterprise, namely for a total period of 21 months, which justified a reduction in the aid of ECU 114 520. In total, the planned reduction therefore amounted to ECU 274 937, the reimbursement of which the Commission intended to claim from the applicant, which had been paid the whole of the aid beforehand. The letter stated that, failing formal agreement to the proposed solution by the applicant within 30 days, the Commission would continue with the procedure for reducing the aid.

29On 5 October 1999 the applicant sent the Commission its comments on the latter’s letter of 26 July 1999. In essence, it provided information seeking to establish that the sinking of the Pondal was a case of force majeure and stated that it had tried to replace it by another vessel of its fleet but had not been able to do so because of the conduct of the Angolan authorities. As regards the Periloja and Sonia Rosal, it explained that the difficulties caused by the Angolan partner had obliged it to transfer the activity of those vessels to Cameroonian waters. It pointed out that this change had been notified to the Spanish authorities in January 1997. It stressed that the formal requirements for creating and operating the joint enterprise had been satisfied and that its activities had envisaged supplying the Community market by priority.

30On 9 November 1999 a meeting took place between the Commission and the applicant.

31Following that meeting, the applicant sent the Commission a statement of observations on 18 February 2000 in which it pleaded that the facts complained of by the Commission were time-barred and that the Commission had acted in breach of the principles of due care and of good administration.

32By letter of 25 May 2000 addressed to the applicant and to the Spanish authorities, Mr Smidt, Director-General of the Fisheries Directorate of the Commission, stated that a reading of the documents provided by the applicant on 5 October 1999 had indicated that the sinking of the Pondal occurred on 13 January 1993, and not on 20 July 1993 as the applicant had informed the Commission, and that in those circumstances the absence of any reference to that sinking in the application for payment of the first instalment of the aid presented by the applicant in May 1993 and the statement in the first and second periodic reports on the activities of the joint enterprise that the sinking took place on 20 July 1993 constituted irregularities of such a kind as to warrant discontinuing the part of the aid relating to the vessel in question. Since that part of the aid amounted to ECU 525 000 and the Commission confirmed its position as set out on 26 July 1999 as regards the two other vessels belonging to the joint enterprise, that letter proposed to take the total amount of the reduction of the aid to ECU 639 520. The letter also set out the Commission’s objections as regards the applicant’s claims concerning the time-bar on the proposed measures of reduction and recovery. It stated that if the applicant had not, within 30 days, notified its agreement to the proposed solution or provided information likely to warrant a change in the Commission’s position, the Commission would continue the reduction and recovery procedures.

33On 10 July 2000, the applicant sent the Commission its observations on the latter’s letter of 25 May 2000. In essence, it stated that the Pondal sank on 13 January 1993 but that it was not removed from the Angolan register until 20 July 1993, which explained why the sinking was not mentioned in the application for payment of the first instalment of the aid and the reference to the latter date in the first periodic report on activity. As regards the two other vessels, it maintained that it was established that it had notified the change of third country to the Spanish authorities in January 1997. It also claimed it had acted in good faith in the matter.

34On 19 March 2001 the Commission adopted a decision reducing the aid granted to the project to EUR 710 030 and ordering the applicant to reimburse it the amount of EUR 639 520 …’.

The judgment under appeal

5By an application lodged at the Registry of the Court of First Instance on 8 June 2001, the appellant brought an action against the Commission for the annulment of the contested decision under Article 230 EC.

6In the judgment under appeal the Court of First Instance dismissed the action as unfounded.

7At paragraphs 81 to 95 of the judgment under appeal, the Court of First Instance examined the appellant’s plea based on Article 3(1) of Regulation No 2988/95 and expiry of the limitation period in respect of the facts:

81First, as regards the sinking of the Pondal, it should be observed that the irregularity established, correctly, in the contested decision consists in the fact that the applicant at first concealed that sinking and subsequently communicated an incorrect date for it. The actions for which the applicant is criticised in relation to the sinking of the Pondal must be considered to constitute a continuous irregularity within the meaning of the second subparagraph of Article 3(1) of Regulation No 2988/95, in that they were identical in substance – that is, an infringement by the applicant of its duty to provide information and act in good faith as regards that sinking. It must therefore be held, in accordance with that same provision, that as regards the irregularity concerning the Pondal, the limitation period began to run “from the day on which the irregularity ceases”.

82In that regard, although, admittedly, the applicant indicated the occurrence of the sinking of the Pondal in the first periodic report on the activity of the joint enterprise, sent to the Spanish authorities on 20 May 1994, it admitted at the hearing that it was only in its document of 5 October 1999, which contained its comments on the Commission’s letter of 26 July 1999, that it first informed the Commission of the exact date of that sinking, namely 13 January 1993, and not 20 July 1993 as it had stated until then. In those circumstances, it must be held that the irregularity linked to the applicant’s breach of its duty to provide information and to act in good faith as regards the sinking of the Pondal ended on 5 October 1999. The applicant cannot in those circumstances rely on the limitation period as regards the facts found in the contested decision concerning that vessel.

91The alleged facts as regards the Periloja and Sonia Rosal must be considered to constitute a continuous irregularity within the meaning of the second subparagraph of Article 3(1) of Regulation No 2988/95, since they continued until 20 May 1996, the date which, according to the third periodic report on the activity of the joint enterprise, marks the end of the compulsory triennial period of activity for that enterprise and on which the irregularity definitively took the form claimed in the contested decision, namely the failure by those two vessels to engage in activities in Angolan waters for 15 of the 36 months making up the abovementioned period. In those circumstances, the limitation period of four years must, in accordance with the same provision of Regulation No 2988/95, be considered as having run “from the day on which the irregularity ceases” – in this case, 20 May 1996.

92By virtue of the third subparagraph of Article 3(1) of Regulation No 2988/95 the limitation period is interrupted by any act of the competent authority notified to the person in question, relating to investigation or legal proceedings concerning the irregularity.

93In the present case, on 26 July 1999 the Commission sent the applicant a letter informing it of the commencement of a reduction procedure linked to irregularities concerning, inter alia, the activity of the vessels Periloja and Sonia Rosal. It is clear from Article 44(1) of Regulation No 4028/86 (…) that the Commission is the competent authority, within the meaning of the provision referred to in the preceding paragraph, to reduce the aid granted on the basis of that regulation. Moreover, the letter of 26 July 1999 must, as the applicant itself states (…), be considered to refer to proceedings concerning the abovementioned irregularities. In those circumstances, it must be considered as an act interrupting the limitation period within the meaning of the third subparagraph of Article 3(1) of Regulation No 2988/95.