«(Failure of a Member State to fulfil obligations – Directive 98/84/EC – Information society – Radio broadcasting – Services based on conditional access – Services consisting of conditional access – Protected services – Legal protection – Devices giving unauthorised access)»

Opinion of Advocate General Geelhoed delivered on 10 July 2003

Judgment of the Court (Fifth Chamber), 7 January 2004

Summary of the Judgment

Acts of the institutions – Directives – Implementation by the Member States – Transposition of a directive into national law without legislative action – Conditions – Existence of a general legal context ensuring full implementation of the directive

Transposing a directive into national law does not necessarily require the provisions of the directive to be enacted in precisely the same words in a specific express legal provision and the general legal context may be sufficient if it actually ensures the full application of the directive in a sufficiently clear and precise manner. National legislation which does not prohibit all the infringing activities referred to in Directive 98/84 on the legal protection of services based on, or consisting of, conditional access does not meet that requirement.see paras 26, 28

JUDGMENT OF THE COURT (Fifth Chamber) 7 January 2004 (1)

((Failure of a Member State to fulfil obligations – Directive 98/84/EC – Information society – Radio broadcasting – Services based on conditional access – Services consisting of conditional access – Protected services – Legal protection – Devices giving unauthorised access))

In Case C-58/02,

Commission of the European Communities, represented by G. Valero Jordana and M. Shotter, acting as Agents, with an address for service in Luxembourg,

applicant,

Kingdom of Spain, represented by S. Ortiz Vaamonde, acting as Agent, with an address for service in Luxembourg,

defendant,

APPLICATION for a declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 98/84/EC of the European Parliament and of the Council of 20 November 1998 on the legal protection of services based on, or consisting of, conditional access (OJ 1998 L 320, p. 54), or, at the very least, by failing to notify the Commission of the adoption of those measures, the Kingdom of Spain has failed to fulfil its obligations under that directive,

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

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’).

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:

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. …

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

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:

…

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.

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:

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

In their reply of 1 October 2001 to that reasoned opinion, the Spanish authorities transmitted to the Commission a copy of the draft bill for the basic law reforming the Criminal Code, which was intended, inter alia, to implement the Directive. Thereafter the Commission received no further communication from the Spanish Government concerning the progress of the legislative work.

Taking the view that the Kingdom of Spain had not brought the infringement to an end, the Commission decided to bring the present action.

Substance

The Commission alleges that the Kingdom of Spain has not fulfilled its obligations under the Directive, since the measures necessary to implement it have not been adopted in the period prescribed for that purpose, or, at the very least, the Commission has not been notified of the adoption of those measures.

The Spanish Government claims, first, that the draft bill for the basic law reforming the Criminal Code, reproducing almost word for word the definitions of the activities set out in the Directive, was drawn up and reviewed by the competent authorities and, secondly, that the Spanish legislation in force already provides for sanctions affording protection like that required under the Directive.

The Spanish Government believes in that regard that Articles 248(2), 255 and 270 of the Criminal Code do transpose the Directive, in particular in relation to the prohibition of the infringements in Article 4 of the Directive. In the alternative, Articles 28 and 29 of the Criminal Code apply generally to persons who disclose to the public where they can access the programme and the means necessary to decode the signal fraudulently.

The Commission points out that the drawing up of a draft bill for the basic law cannot be considered a valid and adequate measure to implement a directive. It adds that the provisions relied on by the Spanish Government are clearly insufficient to ensure the correct and complete transposition of Articles 4 and 5 of the Directive into the Spanish legal system.

In relation to Article 270 of the Criminal Code, the Commission points out that it refers to intellectual property, whilst the Directive is aimed at protecting the interest the providers of services consisting of conditional access have in obtaining remuneration for their provision of services. Concerning the offence of computer fraud laid down in Article 248(2) of the Criminal Code, the Commission claims that that presupposes the existence of an unauthorised transfer of assets to the detriment of a third party, whereas the Directive covers the manufacture, import, distribution, sale, rental or possession for commercial purposes of illicit devices and the use of commercial communications to promote them. As regards Article 255 of the Criminal Code, the Commission points out that it applies to fraud for personal gain whereas the Directive covers infringements of a commercial nature.

Regarding the provisions cited by the Spanish Government in the alternative, the Commission claims that none of them implements the obligation on the Member States to adopt measures intended to ensure an inquiry into the request by providers of protected services that illicit devices be removed from commercial channels.

To substantiate its argument that Spanish law already has measures which transpose the Directive, the Spanish Government also relies on two judgments given by two different courts punishing the infringements covered by the Directive. The first is the judgment of the Juzgado de lo Penal (Criminal Court) No 1 of Cordoba (Spain) of 11 February 2002 in which the distribution of pirated cards to the detriment of Canal Satélite Digital SL was found to constitute fraud and an infringement of intellectual property rights for which the perpetrator was sentenced to imprisonment and a fine, and was ordered to pay compensation to the company. Secondly, it cited the judgment of the Juzgado de lo Penal No 9 of Barcelona (Spain) in which the sale to third parties of pirated cards for the unauthorised decoding of the signal of a cable television operator was held to constitute fraud.

According to the Spanish Government, protection afforded under the Criminal Code to providers of services based on conditional access is more effective than that required under the Directive and the introduction of new categories of offences in the Criminal Code could lead to confusion.

The Commission takes the view that these judgments are isolated cases and should be read narrowly, and are solely concerned with the application of Article 248(2) of the Criminal Code to the sale or distribution of unauthorised decoding cards or pirated cards, infringements which constitute fraud. In addition, there is no case-law of the Tribunal Supremo (Supreme Court) (Spain) supporting the Spanish Government's interpretation of the national legal system.

Findings of the Court

Contrary to the Spanish Government's contentions, the two judgments that it relies on cannot constitute, per se, proof of the transposition of the Directive into the Spanish legal system.

As the Commission has pointed out, these are isolated cases and must be read narrowly and are solely concerned with the application of Article 248(2) of the Criminal Code to the sale or distribution of unauthorised decoding cards. Even if the decisions came from the supreme court, it would be necessary in any event to show that the Spanish legal system contains provisions for attaining the objectives referred to in the Directive by prohibiting all the activities stipulated in the Directive, in particular in Article 4 thereof.

It is true that the Court has held that transposing a directive into national law does not necessarily require the provisions of the directive to be enacted in precisely the same words in a specific express legal provision of national law and that the general legal context may be sufficient if it actually ensures the full application of the directive in a sufficiently clear and precise manner (see inter alia Case 29/84 Commission v Germany [1985] ECR 1661, paragraph 23, Case 247/85 Commission v Belgium [1987] ECR 3029, paragraph 9, and Case C-217/97 Commission v Germany [1999] ECR I-5087, paragraph 31).

Regarding the provisions cited by the Spanish Government, Article 270 of the Criminal Code refers only to infringements of the rights of owners of intellectual property, whereas the Directive, rather than that, concerns illicit devices. Article 248 of the Criminal Code requires a transfer of an asset, whilst the Directive applies to the mere possession of such devices. Article 255 of the Criminal Code refers to fraud, whilst the Directive prohibits conduct on a strict liability basis. Likewise, under Article 4(c) of the Directive, the promotion of illicit devices must be prohibited by the Member States, whereas it is not in Spanish law. As the Commission has correctly pointed out, the provisions of the Civil and Criminal Codes and the Codes of Civil and Criminal Procedure, cited in the alternative by the Spanish Government, cannot overcome this deficiency.

It follows that the Spanish legislation does not prohibit all the activities referred to in the Directive and that the provisions relied on by the Spanish Government are insufficient to ensure the correct and complete transposition of Articles 4 and 5 of the Directive into the Spanish legal system. Even interpreting the Criminal Code in accordance with the Directive, the gaps and inadequacies found by the Commission cannot be filled or made good without breaching the principles of legality and legal certainty, which prevent sanctioning conduct which has not been clearly designated and expressly treated as an infringement by the Criminal Code.

Moreover, the Commission has also observed that the drawing up of a draft bill for the basic law cannot be considered a valid and adequate measure to implement a directive. It must therefore be held that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with the Directive, the Kingdom of Spain has failed to fulfil its obligations under that Directive.

Costs

Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission has applied for costs and the Kingdom of Spain has been unsuccessful, the latter must be ordered to pay the costs of the proceedings.

On those grounds,

THE COURT (Fifth Chamber) hereby:

Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 98/84/EC of the European Parliament and of the Council of 20 November 1998 on the legal protection of services based on, or consisting of, conditional access, the Kingdom of Spain has failed to fulfil its obligations under that Directive;

Orders the Kingdom of Spain to pay the costs.

Delivered in open court in Luxembourg on 7 January 2004.

Registrar

President of the Chamber

ECLI:EU:C:2025:140

Language of the case: Spanish.