(Failure of a Member State to fulfil obligations – Processing of personal data and the protection of privacy in the electronic communications sector – Articles 6 and 9 of Directive 97/66/EC – Requirement for specific statement of grounds of complaint in the reasoned opinion)

Summary of the Judgment

1. Actions for failure to fulfil obligations – Pre-litigation procedure – Delimitation of the subject-matter of the dispute – Reasoned opinion – Detailed statement of grounds of complaint – Ground of complaint alleged in the application which, although set out in the letter of formal notice, was not set out in the reasoned opinion – Not permissible

(Art. 226 EC)

(Art. 226 CE)

1.In an action for failure to fulfil obligations, whilst the letter of formal notice which comprises an initial succinct résumé of the alleged infringement, may be useful in construing the reasoned opinion, the Commission is none the less obliged to specify precisely in that opinion the grounds of complaint which it already raised more generally in the letter of formal notice and alleges against the Member State concerned, after taking cognisance of any observations submitted by it under the first paragraph of Article 226 EC. That requirement is essential in order to delimit the subject-matter of the dispute prior to any initiation of the contentious procedure provided for in the second paragraph of Article 226 EC and in order to ensure that the Member State in question is accurately apprised of the grounds of complaint maintained against it by the Commission and can thus bring an end to the alleged infringements or put forward its arguments in defence prior to any application to the Court by the Commission.

Therefore, a ground of complaint alleged in the Commission’s application which was set out in the letter of formal notice but was not set out in the reasoned opinion must be regarded as irregular.

(see paras 21, 28)

2.In the context of an action under Article 226 EC, the question whether a Member State has failed to fulfil its obligations must be determined as at the end of the period laid down in the reasoned opinion.

(see para. 31)

JUDGMENT OF THE COURT (First Chamber) 24 June 2004 (1)

(Failure of a Member State to fulfil obligations – Processing of personal data and the protection of privacy in the electronic communications sector – Articles 6 and 9 of Directive 97/66/EC – Requirement for specific statement of grounds of complaint in the reasoned opinion)

In Case C-350/02,

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

applicant,

Kingdom of the Netherlands, represented by S. Terstal, acting as Agent,

defendant,

APPLICATION for a declaration that, by failing to adopt all the laws, regulations and administrative provisions necessary to transpose into national law Articles 6 and 9 of Directive 97/66/EC of the European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector (OJ 1998 L 24, p. 1) or, at least, by not communicating those provisions to the Commission, the Kingdom of the Netherlands has failed to fulfil its obligations under the EC Treaty,

THE COURT (First Chamber),

composed of: P. Jann, President of the Chamber, A. La Pergola, S. von Bahr, R. Silva de Lapuerta and K. Lenaerts (Rapporteur), Judges,

Advocate General: J. Kokott, Registrar: M.-F. Contet, Principal Administrator,

after hearing oral argument from the parties at the hearing on 13 November 2003 at which the Commission was represented by W. Wils, assisted by P. Gerard, expert, and the Kingdom of the Netherlands, by C. Wissels, acting as Agent, assisted by R.J.I. Dielemans, expert,

after hearing the Opinion of the Advocate General at the sitting on 29 January 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

Measures implementing this article shall be adopted by general administrative measure. Such provisions may relate only to data which may be processed in conjunction with traffic data, to the purposes for which processing may take place, to the period within which processing is lawful, and to the persons who may be entrusted with processing.

Pre-litigation procedure

9By letter of 7 January 1999 the Kingdom of the Netherlands communicated to the Commission the text of the Telecommunicatiewet, stating that it should be regarded as constituting the transposition into national law of Directive 97/66.

10In accordance with Article 226 EC, the Commission, taking the view that the Telecommunicatiewet did not correctly transpose Articles 6, 9, 11 and 12 of Directive 97/66, put the Kingdom of the Netherlands on formal notice to submit its observations.

11By letter of 8 January 2001 the Netherlands Government replied to that letter of formal notice, stating in particular that legislative measures were being drawn up which would fully satisfy its obligations under Directive 97/66.

12On 18 July 2001 the Commission sent the Kingdom of the Netherlands a reasoned opinion in which it submitted that, upon examination of the national provisions at issue and the legislative measures being drawn up, it was of the view that the Netherlands had failed to fulfil its obligations under Articles 6 and 9 of Directive 97/66. The Kingdom of the Netherlands was requested to comply with that reasoned opinion within a period of two months of its notification.

13The Kingdom of the Netherlands replied to the reasoned opinion by letter of 29 October 2001. Since it was not satisfied by that reply, the Commission decided to bring this action.

The action

14In support of its application, the Commission raised four grounds of complaint concerning the Netherlands legislation transposing directive 97/66. Three of them relate to Article 6 of the directive and the fourth to Article 9 thereof.

15One of the grounds of complaint relating to Article 6 of Directive 97/66 alleges the incorrect transposition in Article 11(5)(2) of the Telecommunicatiewet of Article 6(2) to (5) of the directive. The Commission maintains that the provision of Netherlands law is not in conformity with Directive 97/66 inasmuch as it provides for a greater number of derogations from the principle laid down in Article 6(1) of the directive than are permitted under the terms thereof.

16The Kingdom of the Netherlands argues that that ground of complaint was not mentioned in the reasoned opinion and is therefore inadmissible.

17At the hearing the Commission submitted that the reasoned opinion had to be read in the light of the letter of formal notice which expressly mentioned the ground of complaint at issue.

18In that regard it should be pointed out that in an action for failure to fulfil obligations the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity, on the one hand, to comply with its obligations under Community law and, on the other, to avail itself of its right to defend itself against the charges formulated by the Commission (see, in particular, Case 293/85 Commission v Belgium [1988] ECR 305, paragraph 13; Case C-96/95 Commission v Germany [1997] ECR I-1653, paragraph 22; and Case C-439/99 Commission v Italy [2002] ECR I-305, paragraph 10).

19The proper conduct of that procedure constitutes an essential guarantee required by the Treaty not only in order to protect the rights of the Member State concerned, but also so as to ensure that any contentious procedure will have a clearly defined dispute as its subject-matter (see Case C-1/00 Commission v France [2001] ECR I-9989, paragraph 53, and Case C-287/00 Commission v Germany [2002] ECR I-5811, paragraph 17).

20It follows that the subject-matter of proceedings under Article 226 EC is delimited by the pre-litigation procedure governed by that provision. The Commission’s reasoned opinion and the application must be based on the same grounds and pleas, with the result that the Court cannot examine a ground of complaint which was not formulated in the reasoned opinion (Case 76/86 Commission v Germany [1989] ECR 1021, paragraph 8), which for its part must contain a cogent and detailed exposition of the reasons which led the Commission to the conclusion that the Member State concerned had failed to fulfil one of its obligations under the Treaty (see, in particular, Commission v Italy, paragraph 12, and Case C‑287/00 Commission v Germany, paragraph 19).

21It should also be emphasised that, whilst the formal letter of notice which comprises an initial succinct résumé of the alleged infringement, may be useful in construing the reasoned opinion, the Commission is none the less obliged to specify precisely in that opinion the grounds of complaint which it already raised more generally in the letter of formal notice and alleges against the Member State concerned, after taking cognizance of any observations submitted by it under the first paragraph of Article 226 EC. That requirement is essential in order to delimit the subject-matter of the dispute prior to any initiation of the contentious procedure provided for in the second paragraph of Article 226 and in order to ensure that the Member State in question is accurately apprised of the grounds of complaint maintained against it by the Commission and can thus bring an end to the alleged infringements or put forward its arguments in defence prior to any application to the Court by the Commission.

22In the present case it must be stated that in the letter of formal notice of 6 November 2000 the Commission set out three specific grounds of complaint concerning the transposition into Netherlands law of Article 6 of Directive 97/66. The first ground of complaint concerns the transposition of Article 6(1) of Directive 97/66 by Article 11(5)(1) of the Telecommunicatiewet. The second ground of complaint relates to the non-conformity of Article 11(5)(2) of the Telecommunicatiewet with Article 6(2) to (5) of Directive 97/66 and alleges that the Netherlands provision includes more derogations than those permitted by those paragraphs of Article 6. The third ground of complaint alleges a failure to notify the implementing provisions mentioned at Article 11(5)(3) of the Telecommunicatiewet.

23In its reply of 8 January 2001 to the letter of formal notice, the Netherlands Government acknowledged that the grounds of complaint concerning transposition of Article 6(1) of Directive 97/66 and the failure to notify the implementing provisions mentioned in Article 11(5)(3) of the Telecommunicatiewet were well founded, at the same time pointing out that legislative measures were being drawn up in order to correct those deficiencies. Conversely, the Netherlands Government denied that Article 11(5)(2) of the Telecommunicatiewet provides for more derogations than those permitted by Article 6(2) to (5) of that directive.

24It cannot but be noted that the Commission did not reproduce in its reasoned opinion of 18 July 2001 the ground of complaint based on the incorrect transposition of Article 6(2) to (5) of Directive 97/66 by Article 11(5)(2) of the Telecommunicatiewet. Furthermore, that reasoned opinion does not include any assessment concerning the objections formulated concerning that ground of complaint by the Netherlands authorities in their reply to the letter of formal notice.

25In the reasoned opinion the Commission relies solely on the incompleteness of the transposition of Article 6 of Directive 97/66 owing to the fact the legislative measures mentioned in the reply by the Netherlands Government to the letter of formal notice were not communicated to it. Unlike the letter of formal notice, the reasoned opinion gives no indication such as to convey that Article 11(5)(2) of the Telecommunicatiewet is not in conformity with the provisions of Article 6(2) to (5) of that directive. Although the reasoned opinion refers to Article 6(1) thereof, and to the implementing provisions mentioned in Article 11(5)(3) of the Telecommunicatiewet, conversely it refers neither to paragraphs 2 to 5 of that article nor to paragraph 2 of Article 11(5).

26In its reasoned opinion, the Commission accordingly clearly gave the impression that, unlike the two other grounds of complaint concerning Article 6 of Directive 97/66 mentioned in the letter of formal notice, the ground of complaint based on the incorrect transposition of paragraphs 2 to 5 of that provision by Article 11(5)(2) of the Telecommunicatiewet had been abandoned, in the same way as the grounds of complaint concerning transposition of Articles 11 and 12 of that directive. Thus, in their reply of 29 October 2001 to that reasoned opinion, the Netherlands authorities merely gave an account of progress in the enactment of the legislation mentioned in their letter of 8 January 2001 without expressing a view on the ground of complaint at issue.

27The general reference to the letter of formal notice in the reasoned opinion in regard to Article 6 of Directive 97/66 cannot in that context be regarded as a sufficient indication enabling the Kingdom of the Netherlands to understand that the Commission had maintained against it the ground of complaint alleging incorrect transposition of Article 6(2) to (5) of that directive.

29Accordingly, the action must be declared inadmissible in so far as it concerns the ground of complaint alleging incorrect transposition of Article 6(2) to (5) of Directive 97/66 by Article 11(5)(2) of the Telecommunicatiewet.

Substance

30The three other grounds of complaint formulated in the application are based, in the case of the first two, on the incomplete transposition of Article 6 of Directive 97/66 and, in the case of the third, on the incomplete transposition of Article 9 of that directive.

31Before those complaints are examined, it should be recalled at the outset that, as the Court has repeatedly held, the question whether a Member State has failed to fulfil its obligations must be determined as at the end of the period laid down in the reasoned opinion (see, inter alia, Case C-384/97 Commission v Greece [2000] ECR I-3823, paragraph 35, and Case C-152/98 Commission v Netherlands [2001] ECR I-3463, paragraph 21).

Accordingly, the matters relied on by the Netherlands in its pleadings concerning, on the one hand, repeal of Directive 97/66 by Article 19 of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ 2002 L 201, p. 37) with effect from 31 October 2003 and, on the other, the existence of a bill to transpose the latter directive into Netherlands law, cannot affect the assessment to be made of the obligations of the Kingdom of the Netherlands as at expiry of the period of two months laid down in the reasoned opinion.

Secondly, the Commission submits that, although Article 11(5)(3) of the Telecommunicatiewet refers to implementing provisions, none of them have been communicated to it. Consequently, it is of the view that Article 6 of Directive 97/66 was not fully transposed.

The Netherlands authorities retort that, since those implementing provisions have not been adopted, they could not be communicated to the Commission.

None the less, it should be pointed out that the Netherlands Government does not dispute that, in light of the wording in force at that time of Article 11(5) of the Telecommunicatiewet, the adoption of the implementing provisions mentioned in paragraph 3 of that article was necessary in order to support a finding that Article 6 of Directive 97/66 had been fully transposed.

Given that, first, the Netherlands Government has acknowledged that, as at the expiry of the period laid down in the reasoned opinion, the implementing provisions at issue had not been communicated to the Commission and that, second, failure to adopt those provisions by that date cannot reasonably be relied on to justify that infringement, it must be concluded that the ground of complaint raised by the Commission is well founded.

It follows from the foregoing that the Commission is legally entitled to take the view that Article 6 of Directive 97/66 has not been fully transposed into Netherlands law on the ground that, on the one hand, Article 11(5)(1) of the Telecommunicatiewet refers to a list of information to be determined by a general administrative measure which was not communicated to it and that, second, the implementing provisions mentioned in paragraph 3 of Article 11(5) aforesaid were not communicated to it.

Ground of complaint based on the incomplete transposition of Article 9 of Directive 97/66

The Commission alleges that Article 9(a) of Directive 97/66 has not been transposed into Netherlands law with the result that that article has not been fully transposed.

Since there have in fact been no Netherlands provisions transposing Article 9(a) of Directive 97/66, as the Netherlands Government has moreover acknowledged, the Commission’s ground of complaint alleging incomplete transposition of Article 9 aforesaid must be regarded as well founded.

It must therefore be held that, by incompletely transposing Article 6 of Directive 97/66, in that, first, Article 11(5)(1) of the Telecommunicatiewet refers to a general administrative measure which was not communicated to the Commission and in that, second, the implementing provisions mentioned in Article 11(5)(3) of the Telecommunicatiewet were not communicated to the Commission, and by incompletely transposing Article 9 of that directive, the Kingdom of the Netherlands 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 asked for in the successful party’s pleadings. Under Article 69(3) thereof, the Court may order that costs be shared or that the parties are to bear their own costs if each party succeeds on some and fails on other heads. Since the Kingdom of the Netherlands has been unsuccessful in respect of three of the four grounds of complaint raised by the Commission, it must, in accordance with the form of order sought by the Commission, be ordered to bear three quarters of the Commission’s costs. Since the Kingdom of the Netherlands made no request concerning costs, as to the remainder the parties are to bear their own costs.

On those grounds,

hereby:

1.Declares that, by incompletely transposing Article 6 of Directive 97/66/EC of the European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector, in that, first, Article 11(5)(1) of the Wet houdende regels inzake de telecommunicatie (Telecommunicatiewet) refers to a general administrative measure which was not communicated to the Commission of the European Communities and in that, second, the implementing provisions mentioned in Article 11(5)(3) of the Telecommunicatiewet were not communicated to the Commission, and by incompletely transposing Article 9 of that directive, the Kingdom of the Netherlands has failed to fulfil its obligations under that directive;

2.Dismisses the remainder of the action;

3.Orders the Kingdom of the Netherlands to bear, in addition to its own costs, three quarters of the Commission’s costs;

4.As to the remainder of the action orders the Commission to bear its own costs.

Delivered in open court in Luxembourg on 24 June 2004.

Registrar

President of the Chamber

ECLI:EU:C:2025:140

Language of the case: Dutch.