Case C-117/02

Commission of the European Communities

v

Portuguese Republic

(Failure of a Member State to fulfil obligations – Directive 85/337/EEC – Assessment of the effects of certain projects on the environment – Construction of holiday villages and hotel complexes – Failure to make a project to construct a hotel complex subject to such an assessment)

Summary of the Judgment

1. Actions for failure to fulfil obligations – Pre-litigation procedure – Purpose

(Art. 226 EC)

2. Actions for failure to fulfil obligations – Proof of the failure – Burden of proof on the Commission – Presumptions – Not permissible

(Art. 226 EC; Council Directive 85/337, Arts 2(1) and 4(2))

1. In proceedings for failure to fulfil obligations, the purpose of the pre-litigation procedure is to give the Member State concerned the 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 objections formulated by the Commission.

(see para. 53)

2. In proceedings for failure to fulfil obligations brought under Article 226 EC, it is incumbent upon the Commission to prove the allegation that the obligation has not been fulfilled. It is the Commission’s responsibility to provide the Court with all the evidence necessary to enable it to establish that the obligation has not been fulfilled and, in so doing, the Commission may not rely on any presumption.

Thus, in the case of an infringement of Article 2(1) of Directive 85/337, on the assessment of the effects of certain public and private projects on the environment, the Commission cannot rely on the presumption that a project located in a national park is likely to have significant effects on the environment.

(see paras 80, 88)

JUDGMENT OF THE COURT (Fifth Chamber) 29 April 2004 (1)

(Failure of a Member State to fulfil obligations – Directive 85/337/EEC – Assessment of the effects of certain projects on the environment – Construction of holiday villages and hotel complexes – Failure to make a project to construct a hotel complex subject to such an assessment)

In Case C-117/02,

applicant,

v

defendant,

APPLICATION for a declaration that, by allowing consent to be given to a planned tourism complex including residential units, hotels and golf courses, located in the area of Ponta do Abano, without an assessment of the effects of that project on the environment, the Portuguese Republic has failed to fulfil its obligations under Article 2(1) of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40),

THE COURT (Fifth Chamber),,

composed of: A. Rosas (Rapporteur), acting for the President of the Fifth Chamber, A. La Pergola and S. von Bahr, Judges,

Advocate General: A. Tizzano,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Directive 85/337/EEC

‘–

‘Member States shall adopt all measures necessary to ensure that, before 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 an assessment with regard to their effects.

These projects are defined in Article 4.’

‘1.

2.To this end Member States may inter alia specify certain types of projects as being subject to an assessment or may establish the criteria and/or thresholds necessary to determine which of the projects of the classes listed in Annex II are to be subject to an assessment in accordance with Articles 5 to 10.’

‘Holiday villages, hotel complexes’.

Directive 92/43/EEC

‘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.’

On those grounds,

THE COURT (Fifth Chamber)

hereby

Rosas

La Pergola

von Bahr

Delivered in open court in Luxembourg on 29 April 2004.

R. Grass

V. Skouris

Registrar

President