Case C-87/02

Commission of the European Communities

v

Italian Republic

(Failure of a Member State to fulfil obligations – Environment – Directive 85/337/EEC – Assessment of the effects of certain public and private projects – Project ‘Lotto zero’)

Summary of the Judgment

1. Member States – Obligations – Implementation of directives – Failure to implement – Justification based on the fact that failure can be attributed to decentralised authorities – Not permissible

(Art. 226 EC)

2. Actions for failure to fulfil obligations – National measures incompatible with Community law – Existence of domestic remedies – No effect on the bringing of an action for failure to fulfil obligations

(Art. 226 EC)

3. Environment – Assessment of the effect of certain projects on the environment – Directive 85/337 – Projects of the classes listed in Annex II to be made subject to assessment – Member States’ discretion – Scope and limits

(Council Directive 85/337, Art. 4(2))

1. The fact that a Member State has conferred on its regions the responsibility for giving effect to directives cannot have any bearing on the application of Article 226 EC. A Member State cannot plead conditions existing within its own legal system in order to justify its failure to comply with obligations and time-limits resulting from Community directives. While each Member State may freely allocate internal legislative powers as it sees fit, the fact remains that it alone is responsible towards the Community under Article 226 EC for compliance with obligations arising under Community law.

(see para. 38)

2. The fact that proceedings have been brought before a national court to challenge the decision of a national authority which is the subject of an action for failure to fulfil obligations and the decision of that court not to suspend implementation of that decision cannot affect the admissibility of the action for failure to fulfil obligations brought by the Commission. The existence of remedies available through the national courts cannot in any way prejudice the bringing of an action under Article 226 EC, since the two procedures have different objectives and effects.

(see para. 39)

3. The second subparagraph of Article 4(2) of Directive 85/337 on the assessment of the effects of certain public and private projects on the environment mentions, by way of indication, methods to which the Member States may have recourse when determining which of the projects falling within Annex II are to be subject to an assessment within the meaning of the directive.

Consequently, Directive 85/337 confers a measure of discretion on the Member States and does not therefore prevent them from using other methods to specify the projects requiring an environmental impact assessment under the directive. So the directive in no way excludes the method consisting in the designation, on the basis of an individual examination of each project concerned or pursuant to national legislation, of a particular project falling within Annex II to the directive as not being subject to the procedure for assessing its environmental effects.

However, the fact that the Member State has a discretion is not in itself sufficient to exclude a given project from the assessment procedure under the directive. It that were not the case, the discretion accorded to the Member States by Article 4(2) of the directive could be used by them to take a particular project outside the assessment obligation when, by virtue of its nature, size or location, it could have significant environmental effects.

Consequently, whatever the method adopted by a Member State to determine whether or not a specific project needs to be assessed, be it by legislative designation or following an individual examination of the project, the method adopted must not undermine the objective of the directive, which is that no project likely to have significant effects on the environment, within the meaning of the directive, should be exempt from assessment, unless the specific project excluded could, on the basis of a comprehensive screening, be regarded as not being likely to have such effects.

In that regard, a decision by which the national competent authority takes the view that a project’s characteristics do not require it to be subjected to an assessment of its effects on the environment must contain or be accompanied by all the information that makes it possible to check that it is based on adequate screening, carried out in accordance with the requirements of Directive 85/337.

(see paras 41-44, 49)

JUDGMENT OF THE COURT (First Chamber) 10 June 2004 (1)

(Failure by a Member State to fulfil obligations – Environment – Directive 85/337/EEC – Assessment of the effects of certain public and private projects – Project ‘Lotto zero’ )

In Case C-87/02,

applicant,

v

defendant,

APPLICATION for a declaration that, since the Abruzzo Region failed to ascertain whether the project to construct an outer ring road at Teramo (a project known as ‘Lotto zero-Variante, tra Teramo (Italy) e Giulianova, alla strada statale SS 80’), of a type listed in Annex II to 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), required an environmental impact assessment in accordance with Articles 5 to 10 of the Directive, the Italian Republic has failed to fulfil its obligations under Article 4(2) of that directive,

THE COURT (First Chamber),,

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

Advocate General: D. Ruiz-Jarabo Colomer,

after hearing the Opinion of the Advocate General at the sitting on 8 January 2004,

gives the following

‘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.’

‘Construction of roads, harbours, including fishing harbours, and airfields (projects not listed in Annex I)’.

‘2.

(a)

or

(b)

whether the project shall be made subject to an assessment in accordance with Articles 5 to 10.

Member States may decide to apply both procedures referred to in (a) and (b).

3.

4.‘1.

…

4.…

6.‘1.

2.‘(g)

(h)

On those grounds,

THE COURT (First Chamber)

hereby:

Jann

Rosas

La Pergola

Silva de Lapuerta

Lenaerts

Delivered in open court in Luxembourg on 10 June 2004.

R. Grass

P. Jann

Registrar

President of the First Chamber