Avis juridique important

61999J0365

European Court reports 2001 Page I-05645

Parties

In Case C-365/99,

Portuguese Republic, represented by L. Fernandes and M.J. Abecassis, acting as Agents, assisted by C. Aguiar and T. Ferreira de Lima, advogados, and by G. van der Wal, avocat, with an address for service in Luxembourg,

applicant,

Commission of the European Communities,

defendant,

APPLICATION for annulment of Commission Decision 99/517/EC of 28 July 1999 amending Decision 98/653/EC concerning emergency measures made necessary by the occurrence of bovine spongiform encephalopathy in Portugal (OJ 1999 L 197, p. 45), in so far as it extends until 1 February 2000 the restriction on exports prescribed by Article 4 of Commission Decision 98/653/EC of 18 November 1998 concerning emergency measures made necessary by the occurrence of bovine spongiform encephalopathy in Portugal (OJ 1998 L 311, p. 23),

THE COURT (Fifth Chamber),

composed of: A. La Pergola, President of the Chamber, M. Wathelet, D.A.O. Edward, L. Sevón (Rapporteur) and S. von Bahr, Judges,

Advocate General: J. Mischo,

Registrar: H.A. Rühl, Principal Administrator,

having regard to the Report for the Hearing,

after hearing oral argument from the Portuguese Republic, represented by T. Ferreira de Lima and by L. Parret, avocat, at the hearing on 22 February 2001,

after hearing the Opinion of the Advocate General at the sitting on 27 March 2001,

gives the following

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

Recitals 7 to 9 of Directive 2011/92 state:

7Development 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. …

8Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

9Projects 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:

…

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:

Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

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 case-by-case examination;

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:

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

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:

A description of the project, including in particular:

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

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:

the expected residues and emissions and the production of waste, where relevant;

the use of natural resources, in particular soil, land, water and biodiversity.

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.’

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

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)]

…

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:

all forms of deliberate capture or killing of specimens of these species in the wild;

deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

deliberate destruction or taking of eggs from the wild;

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

34In that regard, it should be noted in any event that the basis of the contested decision is not the OIE Animal Health Code (as the Portuguese Government maintains) but rather, in particular, Article 10(4) of Directive 90/425 and Article 9(4) of Directive 89/662. The contested decision may refer to the code, but does so because it is a relevant document drafted by an international organisation renowned for its expertise.

35Furthermore, for the reasons explained in points 46 to 49 of the Advocate General's Opinion, there was no inconsistency between the recommendations contained in the OIE Animal Health Code and the prohibition imposed by the contested decision. At the time when the contested decision was adopted, Portugal was, as stated in paragraph 23 above, a country with a high incidence of BSE from which beef could be exported only if strict conditions were met, which was manifestly not the case in this instance.

36It follows that the second plea must be rejected.

The third plea in law

37By its third plea, the Portuguese Government claims that the contested decision was adopted in breach of procedural requirements and was contrary to sound administrative practice.

38It submits that the Standing Veterinary Committee was not in full possession of the facts when it came to consider, at its meeting on 16 July 1999, the Commission's proposal to amend Decision 98/653. According to the Portuguese Government, the report concerning the veterinary mission carried out in Portugal between 14 and 18 June 1999 should have been made available to that committee. The draft report on that mission was sent to the Portuguese Minister for Agriculture, Rural Development and Fisheries on 14 July 1999 and reached the Portuguese Permanent Representation on 19 July 1999.

39During the Standing Veterinary Committee's meeting, the representatives of various Member States pointed out the significance of that report and drew attention to the fact that a decision should not be taken on the basis of the report relating to the veterinary mission carried out between 22 February and 3 March 1999. The Commission suggested that the report on the June 1999 veterinary mission should be presented orally but this was refused by the Portuguese delegation on the ground that it had not yet received that report, did not know what it contained and was not in a position to express any opinion on it.

40The Portuguese Government also submits that the Standing Veterinary Committee should have been given access to the periodic reports sent by the Portuguese Republic to the Commission in accordance with Article 14 of Decision 98/653.

41It should be noted in that regard that the checks carried out by the Commission's Food and Veterinary Office are governed by Commission Decision 98/139/EC of 4 February 1998 laying down certain detailed rules concerning on-the-spot checks carried out in the veterinary field by Commission experts in the Member States (OJ 1998 L 38, p. 10).

42Article 7(1) of that decision provides that [t]he Commission shall confirm the results of the checks within 20 working days in a written report and that [t]he Member State shall give its comments within 25 working days of the receipt of the written report from the Commission.

43The Portuguese Government maintains that the report on the June 1999 veterinary mission was sent to the competent Portuguese authorities on 14 July 1999 and reached Portugal's Permanent Representation on 19 July 1999, that is to say, within the period prescribed by Decision 98/139.

44As at 16 July 1999 when the Standing Veterinary Committee held its meeting, no definitive and comprehensive version of the report on the June 1999 veterinary mission could have existed, since the Portuguese Republic had not yet submitted its observations. The Commission was therefore complying with the relevant Community legislation when, for the purposes of that meeting, it submitted only the reports on the two veterinary missions carried out between February and April 1999.

45Nor are there any grounds for complaining that the Commission should have arranged for the veterinary mission carried out in June 1999 to take place earlier, in order to be in a position to submit the definitive and comprehensive version of the report thereon to the Standing Veterinary Committee before the latter took its decision. For such a report to have been available in sufficient time, the mission would have had to take place in May 1999. It is sufficient to observe that the latest veterinary mission in respect of which a report was submitted to the Standing Veterinary Committee had been carried out between 19 and 23 April 1999 and that, as the Advocate General notes in point 37 of his Opinion, the report described serious shortcomings, especially as regards the identification of animals, which could certainly not have been put right in one month.

46Moreover, according to the Portuguese Government, the Commission proposed that the report on the June 1999 veterinary mission should be presented orally to the members of the Standing Veterinary Committee but this was opposed by the Portuguese delegation itself.

47As to the periodic reports sent by the Portuguese Government to the Commission pursuant to Article 14 of Decision 98/653, suffice it to say that those documents were not of an adversarial nature and that the Commission was not obliged to submit them to the members of the Standing Veterinary Committee.

49It follows that the third plea is unfounded.

The fourth plea in law

50By its fourth plea, the Portuguese Government claims that the contested decision violates the principle of proportionality.

51It takes the view that an export ban is disproportionate to the objective pursued. It compares its situation with that of the United Kingdom of Great Britain and Northern Ireland at the time when it was decided to impose a ban in relation to that Member State and points out that Portugal is not a significant exporter of meat or meat products. It is easier to regulate low-volume exports than large volumes such as those exported from the United Kingdom. Furthermore, the Community did not adopt any protective measures concerning Community imports from Switzerland, despite a report attributing various shortcomings and risks connected with BSE to that country.

52Even before the adoption of Decision 98/653, there was a significant body of legislation in Portugal concerning the prevention and eradication of BSE. That legislation has been finalised and improved. The matters of detail needing to be regulated in accordance with the report drawn up after the June 1999 veterinary mission were such that there was neither any need nor any justification for an extension of the export ban while those details were being worked out.

53The Portuguese Government points out in that connection that, according to the Food and Veterinary Office of the Commission, various improvements were found to have taken place from a legislative standpoint and as regards the implementation of Community and national legislation in the course of the veterinary missions carried out in Portugal between 22 February and 3 March 1999 and 14 and 18 June 1999. The Office concluded that less rigorous measures than the extension of the export ban until 1 February 2000 were sufficient - always assuming that any measures at all were still necessary or required.

54In that connection, it is already apparent from the assessment of the first two pleas that the contested decision was appropriate as regards the objective pursued by it, and that it was not possible at that time to contemplate a resumption of exports in the immediate future.

55Furthermore, as regards the control of exports from Portugal, it is apparent from the situation described in point II.2.1.1 of the report of the veterinary mission carried out between 22 February and 3 March 1999 that there were, in effect, no physical checks on beef exports at the points of exit from Portuguese territory. Point II.2.1.1 of the report on the June 1999 veterinary mission states that it was not until after 21 April 1999, when an agreement was entered into between two Portuguese administrative departments, that such checks could be carried out.

56As to the anti-BSE measures adopted and implemented by the Portuguese authorities, it is quite clear, simply from reading the reports of the Food and Veterinary Office of the Commission, that the shortcomings referred to in those reports were not matters of mere detail, despite the assertions of the Portuguese Government.

57Even supposing that it were relevant, for the purpose of assessing the proportionality of the contested decision, to take as a basis (i) the situation of other Member States or third countries in relation to risks connected with BSE and (ii) the scope of the measures taken by the Community in respect of those risks, a comparison between the situation in Portugal and that of the United Kingdom or Switzerland does not, on any view, show that the measure imposed by the contested decision with regard to the Portuguese Republic is disproportionate. The resumption of beef exports from the United Kingdom was authorised only after that Member State had proved that it had put in place export arrangements of a kind advocated by the OIE Animal Health Code. As is apparent from a document produced by the Portuguese Government at the hearing, it was not until December 2000 that a date which could be used as a reference date in the context of such arrangements was fixed for the Portuguese Republic. It was, therefore, impossible in practical terms to contemplate a resumption of exports in 1999.

58As regards Switzerland, the incidence of BSE was much lower there than in Portugal and the report on a veterinary mission carried out in Switzerland between 8 and 12 February 1999 by the Food and Veterinary Office of the Commission did not find such serious shortcomings as those which came to light in the course of the veterinary missions carried out in Portugal.

59It follows that the fourth plea is unfounded.

60In the light of the foregoing, the applicant's claims must be held to be unfounded and the action must therefore be dismissed.

Decision on costs

Costs

61Since the Portuguese Republic has been unsuccessful, it must be ordered to bear its own costs.

Operative part

On those grounds,

hereby:

Dismisses the action;

Orders the Portuguese Republic to bear its own costs.