Case C‑427/07, Commission v Ireland

This was an interesting case on Directive 2003/35, which, as was well known, together with Directive 2003/4/EC, implemented the first and second “pillars” of the Århus Convention on access to information, public participation in decision-making and access to justice in environmental matters.

In short, this case was based on two different pre-litigation procedures. First, the Commission complained that the EIA Directive (Directive 85/337 as amended by Directive 97/11) had not been transposed by Ireland in relation to private roads. In 2001, the Commission registered a complaint against Ireland concerning damage to a coastal wetland at Commogue Marsh, Kinsale, County Cork (pictured) caused by a private road project. The Commission eventually brought the present proceedings, arguing that it appeared that no consent for the project in question had been granted and that no prior environmental impact assessment had been carried out despite the sensitivity of the site, contrary to the requirements of the EIA Directive.

The Commission considered that the construction of a private road constituted an infrastructure project that fell within point 10(e) of Annex II to the EIA Directive and that, as a consequence, the Irish authorities were bound, in accordance with Art. 2 of that amended directive, to ensure that, before consent was given, such projects were made subject to an assessment with regard to their effects on the environment if it was considered that they were likely to have significant effects on the environment.

In the second pre-litigation procedure, the Commission alleged that Ireland had not transposed (fully) the Århus Directive. The Commission inter alia argued that that no measure had been taken by Ireland to ensure transposition of the requirement of timeliness, laid down in Art. 10a of the EIA Directive, and in Art. 15a of the (first) IPPC Directive (Directive 96/61). The Commission also argued there was no applicable ceiling as regards the amount that an unsuccessful applicant would have to pay, as there was no legal provision which referred to the fact that the procedure would not be prohibitively expensive.

Lastly, the Commission criticised Ireland for not having made available to the public practical information on access to administrative and judicial review procedures, as required by Art. 10a of the EIA Directive and Art. 15a of the IPPC Directive.

Scope of EIA Directive
The Court held that although the Member States had thus been allowed a measure of discretion in specifying certain types of projects which would be subject to an assessment or to establish the criteria and/or thresholds applicable, the limits of that discretion were to be found in the obligation set out in Art. 2(1) of the EIA Directive that projects likely, by virtue inter alia of their nature, size or location, to have significant effects on the environment were to be subject to an impact assessment (see
Case C‑72/95 Kraaijeveld and Others [1996]; Case C‑2/07 Abraham and Others [2008]; and Case C‑75/08 Mellor [2009]).

The Court held that, by subjecting private road construction development to an environmental impact assessment only if that development formed part of other developments coming within the scope of Directive 85/337 as amended by Directive 97/11 and themselves subject to the assessment obligation, the Irish legislation meant that any private road construction development carried out in isolation could avoid an environmental impact assessment, even if the development was likely to have significant effects on the environment.

Implementation of Århus Directive
With regard to the requirement to transpose the provisions of Art. 3(1) of Directive 2003/35, the Court reiterated that the transposition of a directive into domestic law did not necessarily require the provisions of the directive to be enacted in precisely the same words in a specific, express provision of national law and a general legal context might be sufficient if it actually ensured the full application of the directive in a sufficiently clear and precise manner (see, inter alia,
Case C‑214/98 Commission v Greece [2000]; Case C‑38/99 Commission v France [2000]; and Case C‑32/05 Commission v Luxembourg [2006]).

The Court also reiterated that the provisions of a directive must be implemented with unquestionable binding force and with the specificity, precision and clarity required in order to satisfy the need for legal certainty, which required that, in the case of a directive intended to confer rights on individuals, the persons concerned must be enabled to ascertain the full extent of their rights (see, inter alia,
Case C‑197/96 Commission v France [1997]; and Case C‑207/96 Commission v Italy [1997]).

The Court held that the scope of the new definition of “the public concerned” introduced by Directive 2003/35 could be assessed only with regard to all of the rights which that directive accords to “the public concerned’, since those two aspects were indissociable.

The Court found that the Commission did not establish to what extent “the public concerned’, understood as the public affected or likely to be affected by, or having an interest in, environmental decision‑making procedures, did not have the rights which it was deemed to enjoy under the amendments introduced by Directive 2003/35.

As regards the argument concerning the costs of proceedings, the Court argued that it was clear from Art. 10a of the EIA Directive and Art. 15a of the IPPC Directive that the procedures established in the context of those provisions must not be prohibitively expensive. That covered only the costs arising from participation in such procedures. Such a condition did not prevent the courts from making an order for costs provided that the amount of those costs complied with that requirement. This argument was therefore well founded.

The final argument of the Commission was also well founded. The Court pointed out that one of the underlying principles of Directive 2003/35 was to promote access to justice in environmental matters, along the lines of the Århus Convention on access to information, public participation in decision-making and access to justice in environmental matters. Therefore, the obligation to make available to the public practical information on access to administrative and judicial review procedures laid down in the sixth paragraph of Art. 10a of the EIA Directive and Art. 15a of the IPPC Directive, amounted to an obligation to obtain a precise result which the Member States must ensured was achieved.

The Court held that, in the absence of any specific statutory or regulatory provision concerning information on the rights thus offered to the public, the mere availability, through publications or on the internet, of rules concerning access to administrative and judicial review procedures and the possibility of access to court decisions could not be regarded as ensuring, in a sufficiently clear and precise manner, that the public concerned was in a position to be aware of its rights on access to justice in environmental matters.

Text of judgment