Avis juridique important

61998J0347

European Court reports 2001 Page I-03327

Summary

Actions for failure to fulfil obligations - Proof of failure to fulfil obligations - Burden of proof on the Commission - Production of specific evidence indicative of failure - Absence (EC Treaty, Art. 169 (now Art. 226 EC); Council Regulation No 1408/71, Art. 13(2)(f))

In proceedings under Article 169 of the Treaty (now Article 226 EC) for failure to fulfil an obligation, it is incumbent upon the Commission to prove the allegation that the obligation has not been fulfilled and to place before the Court the information needed to enable it to determine whether the obligation has not been fulfilled. In that regard, by merely claiming, in its application, that a Member State failed to fulfil its obligations under Article 13(2)(f) of Regulation No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community by levying contributions on pensions paid in that State in respect of an occupational disease where the persons receiving such pensions do not reside in that Member State and are no longer subject to its social security scheme, the Commission infers from that provision legal consequences which do not necessarily flow from it. It considers it to be established that the conditions for applying that provision are fulfilled, although, in order to establish the merits of that proposition, it was required to prove that those conditions are in fact fulfilled in the present case, by specifying the concrete situations in which persons receiving pensions paid in that Member State in respect of an accident at work or an occupational disease are in fact no longer subject to the social security legislation of that Member State where they have their residence in the territory of another Member State.

Parties

In Case C-347/98,

Commission of the European Communities, represented by D. Gouloussis and P. Hillenkamp, acting as Agents, with an address for service in Luxembourg,

applicant,

Kingdom of Belgium, represented by A. Snoecx, acting as Agent, assisted by E. Gillet and G. Vandersanden, avocats, with an address for service in Luxembourg,

defendant,

supported by

Kingdom of the Netherlands, represented by M.A. Fierstra and I. van der Steen, acting as Agents,

intervener,

APPLICATION for a declaration that, by levying personal contributions of 13.07% on Belgian occupational disease pensions payable to persons who do not reside in Belgium and are no longer subject to the Belgian social security scheme, the Kingdom of Belgium has failed to fulfil its obligations under Article 13(2)(f) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1),

THE COURT (Sixth Chamber),

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

Advocate General: S. Alber,

Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 23 January 2001,

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:

‘(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.

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

must be interpreted as meaning that where, in the context of a screening procedure carried out under that provision, a third party has provided the competent authority with objective evidence as regards the potential significant effects of that project on the environment, in particular on a species protected under Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, as amended by Council Directive 2013/17/EU of 13 May 2013, that authority must ask the developer to provide it with additional information and take that information into account before deciding whether or not an environmental impact assessment is necessary for that project. However, where, despite the observations submitted to that authority by a third party, the competent authority is able to rule out, on the basis of objective evidence, the possibility that the project in question is likely to have significant effects on the environment, that authority may decide that an environmental impact assessment is not necessary, without being required to ask the developer to provide it with additional information.

Gratsias

Passer

Smulders

Delivered in open court in Luxembourg on 6 March 2025.

Registrar

President of the Chamber

ECLI:EU:C:2025:140

15

15The Commission was not satisfied by the Belgian Government's reply to the reasoned opinion, and therefore made the present application.

16By order of the President of the Court of Justice of 1 March 1999, the Kingdom of the Netherlands was granted leave to intervene in the case in support of the form of order sought by the Kingdom of Belgium.

Substance

Arguments of the parties

17The Commission claims that, where the social security legislation of a Member State ceases to be applicable to a person, Article 13(2)(f) of Regulation No 1408/71, which implements the principle that the legislation of only one Member State is to apply, states that the legislation of the Member State in which the person concerned resides is to be the only legislation applicable. Consequently, persons to whom the Belgian social security legislation ceases to be applicable and who reside in the territory of another Member State cannot have social security contributions deducted by the Kingdom of Belgium.

18The Commission submits that it is not possible to accept the arguments contrary to that interpretation which are relied on by the Belgian Government in its reply to the reasoned opinion and are based on the premiss that Article 13(2)(f) of Regulation No 1408/71 is not applicable to persons receiving benefits paid in Belgium in respect of an occupational disease on the ground that those persons remain subject to the Belgian social security scheme. In that regard, the Commission submits, in particular, that, under the relevant provisions of Title III of Regulation No 1408/71, entitled Special provisions relating to the various categories of benefits, it is for the Member State of residence to provide the health care (Article 27) and family benefits (Article 77) of persons who draw a pension payable by that State, no longer carry on an occupational activity in Belgian territory and do not reside there. It follows that, in accordance with Article 33 of Regulation No 1408/71, only the Member State of residence can make deductions from pensions payable in respect of contributions for the sickness and maternity benefits which it is required to pay.

19The Commission adds that the benefits referred to in Article 52 of Regulation No 1408/71 are not sickness benefits within the meaning of Title III, Chapter 1, of that regulation, but constitute benefits in kind which are designed specifically to meet needs arising from an accident at work or an occupational disease and which would, for that reason, always be borne by the institution of the competent State even if the beneficiary resided in another Member State. However, Chapter 4 of Title III of Regulation No 1408/71, on benefits for accidents at work and occupational diseases, does not contain any provision which, like Article 33 of that regulation, authorises the competent Member State to deduct contributions in order to finance those benefits.

20The Belgian Government contends that Article 13(2)(f) of Regulation No 1408/71 is not applicable to the deductions of contributions at issue, since the persons concerned remain subject to the Belgian legislation which, therefore, does not cease to be applicable to them. In the present case, the fact that the Belgian legislation is applicable means that benefits are payable under the Belgian occupational disease scheme and that other measures provided for under the Belgian social security scheme apply in respect, in particular, of family benefits, health care and the periods taken into account for the calculation of retirement pensions.

21The Belgian Government further submits that the question whether legislation ceases to be applicable is a matter of national law, as expressly stated in Article 10b of Regulation No 574/72, which thus supplements Article 13(2)(f) of Regulation No 1408/71, to the extent that the latter regulation does not specify the date or conditions on which national social security legislation ceases to be applicable. The Government contends that when the Court held, in Case C-275/96 Kuusijärvi [1998] ECR I-3419, that a Member State may legislate to the effect that it is obliged to continue providing the benefits payable only if the person concerned continues to reside in its territory, it recognised that it is for the legislation of the Member State responsible for payment to determine the condition - in this case that of change of residence - which, if fulfilled, renders that legislation inapplicable.

22The Belgian Government adds that, apart from Article 13(2)(f), Regulation No 1408/71 does not contain any provision which expressly makes the legislation of another Member State applicable. On the contrary, Article 52 of that regulation clearly shows that, although certain benefits may be provided by the institutions of the place of residence, the competent institution remains that of the Member State responsible for payment which reimburses the expenses and services of the institutions of that place of residence.

23The Netherlands Government submits that Kuusijärvi, when read in the light of its context, must be interpreted as meaning that a person who has ceased all activity remains none the less subject to the legislation of the last Member State in which he was employed where that legislation so provides. It follows from that judgment that, where the worker has ceased all activity in the territory of a Member State and has transferred his residence to the territory of another Member State without commencing any new activity there, the conditions of residence laid down by the legislation of the first State may operate against him: if such conditions exist, the worker is no longer subject to the legislation of the first State and, since he has ceased his activities, it is the legislation of his State of residence which, under Article 13(2)(f) of Regulation No 1408/71, is applicable.

24On the other hand, according to the Netherlands Government, where the legislation of the first State does not include any conditions of residence for affiliation to the social security scheme, that legislation continues to apply to the former employed person even if he resides in the territory of another Member State. It is only if, at a later stage, he no longer satisfies the conditions for affiliation under the legislation of the first State that the legislation of the Member State of residence becomes applicable.

Findings of the Court

25In its application, the Commission merely claims that, under Article 13(2)(f) of Regulation No 1408/71, the legislation of the Member State of residence is the only legislation which is applicable to persons who receive pensions paid in Belgium in respect of an occupational disease and who reside in the territory of a Member State other than the Kingdom of Belgium and that, accordingly, the latter is not authorised to deduct contributions from such pensions.

26It is only in response to the arguments which the Belgian Government had put forward in its reply to the reasoned opinion that the Commission further relied on Articles 27, 33, 52 and 77 of Regulation No 1408/71 in order to substantiate its argument that only the legislation of the Member State of residence is applicable to persons who receive pensions paid in Belgium in respect of an occupational disease and who do not reside in Belgium.

27In order to determine whether, in those circumstances, the Commission's application is well founded, it must be borne in mind that the provisions of Title II of Regulation No 1408/71, of which Article 13 forms part, constitute a complete and uniform system of conflict rules. Those provisions are intended not only to prevent the concurrent application of a number of national legislative systems and the complications which might ensue, but also to ensure that persons covered by Regulation No 1408/71 are not left without social security cover because there is no legislation which is applicable to them (see, in particular, Kuusijärvi, paragraph 28).

28As is clear from paragraphs 32 to 34 of Kuusijärvi, the purpose of Article 13(2)(f) of Regulation No 1408/71 is precisely to ensure that a person covered by that regulation is always subject to the social security legislation of a Member State.

29It should be observed, however, that that provision provides for the application of the legislation of the Member State in the territory of which the person concerned is residing only if no other legislation is applicable and, in particular, only if that to which the person concerned had previously been subject ceases to be applicable to him.

30The Commission has not shown that that is necessarily true of the legislation applicable to persons receiving pensions paid in Belgium in respect of an occupational disease where they have their residence in the territory of a Member State other than the Kingdom of Belgium.

31To that end a simple reference to Article 13(2)(f) of Regulation No 1408/71 is not sufficient, since the fact that the legislation of a Member State ceases to be applicable constitutes a condition for the application of that provision, and that provision does not itself define the conditions in which the legislation of a Member State ceases to be applicable.

32Furthermore, none of the arguments which the Commission has based on Articles 27, 33, 52 or 77 of Regulation No 1408/71, in order to show that only the legislation of the Member State of residence is applicable to persons who receive pensions paid in Belgium in respect of an occupational disease and who do not reside in Belgium, is decisive in that regard.

33As regards, first of all, Article 27, it should be observed, first, that in providing that a pensioner who is entitled to draw pensions under the legislation of two or more Member States, of which one is that of the Member Sate in the territory of which he resides, is to receive sickness and maternity benefits from the latter Member Sate where he is entitled to them under the legislation of that State, that provision does not of itself confer a right to those benefits.

34It should be noted, second, that where the pensioner who is entitled to draw a pension under the legislation of one Member State is not entitled to sickness or maternity benefits under the legislation of the Member State in the territory of which he resides, Article 28 of Regulation No 1408/71 expressly designates the competent institution of a Member State other than that of residence to provide such benefits.

35In those circumstances, it is likewise not possible to rely on Article 33 of Regulation No 1408/71, which authorises the institution of a Member State which is responsible for payment of a pension to make deductions from that pension in respect of contributions for the sickness and maternity benefits which that institution might be required to bear.

36As regards, next, Article 52 of Regulation No 1408/71, it must be noted that it expressly provides that, even where the worker is residing in the territory of a Member State other than the competent State, the benefits payable in respect of an accident at work or an occupational disease to which he is entitled are provided to him either directly by the institution of the competent State or on behalf of that institution by the institution of the place of residence.

37As regards, finally, Article 77 of Regulation No 1408/71, in respect of the grant to those receiving pensions for an accident at work or an occupational disease of the benefits referred to in that provision it provides, like Articles 27 and 28 of that regulation, that the legislation of the Member State in the territory of which that pensioner resides is to be applicable only if the right to those benefits is acquired under that legislation itself and, in other cases, expressly designates the competent institution of a Member State other than that of residence to provide such benefits.

38In those circumstances, it is clear that, by merely claiming, in its application, that the Kingdom of Belgium failed to fulfil its obligations under Article 13(2)(f) of Regulation No 1408/71 by levying contributions on pensions paid in Belgium in respect of an occupational disease where the persons receiving such pensions do not reside in that Member State and are no longer subject to the Belgian social security scheme, the Commission infers from that provision legal consequences which do not necessarily flow from it. It considers it to be established that the conditions for applying that provision are fulfilled, although, in order to establish the merits of that proposition, it was required to prove that those conditions are in fact fulfilled in the present case, by specifying the concrete situations in which persons receiving pensions paid in Belgium in respect of an accident at work or an occupational disease are in fact no longer subject to Belgian social security legislation where they have their residence in the territory of a Member State other than the Kingdom of Belgium.

39In proceedings under Article 169 of the Treaty for failure to fulfil an obligation, it is incumbent upon the Commission to prove the allegation that the obligation has not been fulfilled and to place before the Court the information needed to enable it to determine whether the obligation has not been fulfilled (see, in particular, Case C-159/94 Commission v France [1997] ECR I-5815, paragraph 102).

40Therefore, the Commission's application must be dismissed as unfounded.

Decision on costs

Costs

41Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs, if they have been asked for in the other party's pleadings. Since the Kingdom of Belgium has asked for the Commission to be ordered to pay the costs and the Commission has been unsuccessful, it must be ordered to pay the costs. Under Article 69(4) of those Rules, which provides that Member States and institutions which have intervened in the proceedings are to bear their own costs, the Kingdom of the Netherlands must bear its own costs.

Operative part

On those grounds,

hereby: