(Failure of a Member State to fulfil obligations – Directive 75/439/EEC – Disposal of waste oils – Priority to processing by regeneration)

Opinion of Advocate General Tizzano delivered on 28 October 2004

Judgment of the Court (Second Chamber), 27 January 2005

Summary of the Judgment

Approximation of laws – Disposal of waste oils – Directive 75/439 – Obligation of the Member States to give priority to the processing of oils by regeneration – Limits – Technical, economic or organisational constraints – Meaning

(Council Directive 75/439, Art. 3(1))

It is clear from Article 3(1) of Directive 75/439 on the disposal of waste oils, as amended by Directive 87/101, that the reference to ‘technical, economic or organisational constraints’ in that article forms part of a provision giving general expression to the obligation imposed on Member States and that the Community legislature did not thereby intend to provide limited exceptions to a rule having general application, but to define the scope and content of a positive obligation to give priority to the processing of waste oils by regeneration.

To consider that the technical, economic and organisational circumstances obtaining in a Member State automatically constituted constraints making it impossible to adopt the measures provided for in that article would deprive it of all practical effect, since the obligation imposed on Member States would be limited by maintenance of the status quo, with the result that there would be no genuine obligation to take the measures necessary to give priority to the processing of waste oils by regeneration.

(see paras 35-36)

JUDGMENT OF THE COURT (Second Chamber) 27 January 2005 (1)

(Failure of a Member State to fulfil obligations – Directive 75/439/EEC – Disposal of waste oils – Priority to processing by regeneration)

In Case C-92/03, ACTION under Article 226 EC for failure to fulfil obligations, brought on 28 February 2003,

Commission of the European Communities, represented by A. Caeiros and M. Konstantinidis, acting as Agents, with an address for service in Luxembourg,

applicant,

Portuguese Republic, represented by L. Fernandes and M. Lois, acting as Agents, with an address for service in Luxembourg,

defendant, supported by: Republic of Finland, represented by A. Guimaraes-Purokoski, acting as Agent, with an address for service in Luxembourg,

intervener,

THE COURT (Second Chamber),

composed of C.W.A. Timmermans, President of the Chamber, R. Silva de Lapuerta (Rapporteur), C. Gulmann, R. Schintgen and J. Klučka Judges,

Advocate General: A. Tizzano, Registrar: R. Grass,

having regard to the written procedure,

after hearing the Opinion of the Advocate General at the sitting on 28 October 2004,

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

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.

(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

Finally, the Commission takes the view that the publication of the document entitled ‘New National Waste-Oil Management Strategy’ is irrelevant. The same is true of the other initiatives announced by the Portuguese authorities.

20The Portuguese Government submits that the absence of legislation is not sufficient to prove infringement of Article 3(1) of the Directive, because, theoretically, the objective referred to in that provision does not necessarily have to be enacted in concrete terms in national legislation. The national legislation defines the conditions governing the regeneration of waste oils in terms which do not jeopardise the objectives of the Directive.

21The Portuguese Government contends that the quantities of waste oils collected, particularly waste oils of good quality, do not reach the minimum threshold of economic viability. Furthermore, it is impossible to prohibit the export of waste oils for energy recovery, which discourages potential investors from investing in a regeneration unit on national territory because they have no guarantee that the waste oils collected will be sent to that plant.

22As regards the question of the export of waste oils, the Portuguese Government submits that the fact that it is possible for the competent authorities to intervene pursuant to Article 7(4)(a) of Regulation No 259/93 does not constitute an effective means of preventing the export of waste oils for energy recovery, even if there were adequate regeneration capacity in Portugal. That provision does not enable Member States to justify restrictions on exports of waste oils for energy recovery as measures to protect their national waste oil regeneration industry.

23The Portuguese Government points out that, apart from financial, technical and legislative constraints, the size of the Portuguese market gives an indication of the difficulties encountered in implementing the regeneration of waste oils, given the minimum reference thresholds for ensuring the viability of such a process. It states that it has really endeavoured to minimise the economic, technical and organisational constraints that it faces in order to give priority to processing by regeneration of this type of waste.

24The Portuguese Government states that the pivotal issue for a regeneration plant is the cost of supplying the waste oils, which depends mainly on the local economy, the market price of crude oil and the regeneration technology used. Unless there are captive markets for the base oils resulting from regeneration, large plants are better able to cope with the considerable variations in the price of crude oil and retain sufficient long‑term economic viability.

25The Portuguese Government submits, in that regard, that although technical, economic and organisational constraints have discouraged operators in the sector from setting up regeneration units for waste oils, the national authorities are determined to put in place a system of management of this waste which does indeed give priority to regeneration.

26The Finnish Government takes the view, in its intervention in support of the forms of order sought by the Portuguese Republic, that, when the economic feasibility and viability of regeneration is being assessed, it is necessary to take into account, in particular, the quantity of waste oil produced, transport distances, production costs and market conditions. Consequently, the conditions as regards regeneration must be considered on a case‑by‑case basis in the Member State concerned. The market situation is one of the factors influencing conditions as regards regeneration.

27In that regard, the Finnish Government submits that the price of base oil has varied significantly. Such price variation increases the risks inherent in investments in the regeneration of waste oils sector. That risk is increased by a downward trend in the consumption of lubricants, resulting from the fact that nowadays synthetic lubricants are used, which are of better quality.

28The Finnish Government adds that if national legislation introduced a mandatory requirement for regeneration and there was no regeneration plant in the Member State concerned, waste oils would have to be transported to another Member State in order to be regenerated there. If that were the case, neither the excessive costs of transport for the exporter nor the fact that such shipment might be unreasonable on account of its effects on the environment would be taken into consideration.

29It must be recalled, as a preliminary point, that, as the Court held in its judgment in Case C-102/97 Commission v Germany [1999] ECR I-5051, paragraph 35, one of the primary objectives of the Directive was to give priority to the processing of waste oils by regeneration. That objective, expressed in the second recital in the preamble to Directive 87/101, is justified by the fact that regeneration is the most rational way of re‑using waste oils in view of the energy savings that can thereby be achieved.

30As regards the Commission’s complaint of failure to comply with Article 3(1) of the Directive, it must be stated at the outset that the existing national legislation contains no provision that states, as prescribed by Article 3(1), that priority is to be given to the processing of waste oils by regeneration.

31It must also be noted that the Portuguese Republic has itself acknowledged that the competent authorities must take tangible measures to establish such prioritisation in provisions having a binding legal character. The Portuguese Government has stated, in that connection, that it is necessary to amend the national legislation on the matter in order to establish the requisite conditions for establishing such a priority and that it is with that aim that the document entitled ‘New National Waste-Oil Management Strategy’ was drawn up.

32As the Court held in paragraph 25 of its judgment in Case C-424/02 Commission v United Kingdom [2004] ECR I-0000, although it is acceptable that Member States first carry out studies and draw up reports in order to determine how waste oils should be disposed of, those preparatory steps must nevertheless be followed by tangible measures aimed at giving priority to regeneration, in order to comply with the obligation laid down by Article 3(1) of the Directive.

33As to the argument that, having regard to the provisions of Article 7(4) of Regulation No 259/93, it is difficult to ensure the viability of waste‑oil regeneration plants in Portugal, it need only be stated that, under those provisions, the competent authorities of the Member States are empowered to raise objections to the shipment of waste, including waste oils, for recovery in another Member State.

34As the Advocate General rightly pointed out in point 52 of his Opinion, if the Portuguese Republic had established, as Article 3(1) of the Directive required, priority for the regeneration of waste oils on its territory, the competent authorities could then have raised objections against a shipment of such waste to other Member States.

35As to the argument relied on by the Portuguese Republic that setting up regeneration plants on its territory was not viable and that, in those circumstances and by reason of the principle of proportionality, the obligations of the Member States concerned should be modified in accordance with actual circumstances, it must be recalled that, as the Court held in paragraphs 35 and 43 of its judgment in Commission v Germany, one of the primary objectives of the Directive was to give priority to the processing of waste oils by regeneration. Therefore, to consider that the technical, economic and organisational circumstances obtaining in a Member State automatically constituted constraints making it impossible to adopt the measures provided for in Article 3(1) of the Directive would deprive that provision of all practical effect, since the obligation imposed on Member States would be limited by maintenance of the status quo, with the result that there would be no genuine obligation to take the measures necessary to give priority treatment to the processing of waste oils by regeneration.

36Furthermore, as regards that priority, it must be pointed out, as the Court stated in paragraphs 38 and 39 of the judgment in Commission v Germany, that the reference to ‘technical, economic and organisational constraints’ in Article 3(1) of the Directive forms part of a provision giving general expression to the obligation imposed on Member States and that the Community legislature did not thereby intend to provide limited exceptions to a rule having general application, but to define the scope and content of a positive obligation to give priority to the processing of waste oils by regeneration.

37It follows from all of the foregoing that the Commission’s action must be regarded as well founded.

38It must therefore be held that, by failing to adopt the measures necessary to give priority to the processing of waste oils by regeneration where the technical, economic and organisational constraints so allow, the Portuguese Republic has failed to fulfil its obligations under Article 3(1) of the Directive.

Costs

39Under 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 asked that the Portuguese Republic be ordered to pay the costs and the latter has been unsuccessful in its defence, it must be ordered to pay the costs. In accordance with Article 69(4), the Republic of Finland is to bear its own costs.

On those grounds, the Court (Second Chamber) hereby:

Declares that, by failing to adopt the measures necessary to give priority to the processing of waste oils by regeneration where the technical, economic and organisational constraints so allow, the Portuguese Republic has failed to fulfil its obligations under Article 3(1) of Council Directive 75/439/EEC of 16 June 1975 on the disposal of waste oils, as amended by Council Directive 87/101/EEC of 22 December 1986;

Orders the Portuguese Republic to pay the costs;

Orders the Republic of Finland to bear its own costs.

[Signatures]

*1 Language of the case: Portuguese.