Joined Cases C‑165/09 to C‑167/09, Stichting Natuur en Milieu

These references for a preliminary ruling concerned the interpretation of Art. 9 of the IPPC Directive 96/61 (Directive 96/61) and certain provisions of the NEC Directive (Directive 2001/81).

The references had been made in proceedings brought, as regards Case C-165/09, by the foundations Stichting Natuur en Milieu and Stichting Greenpeace Nederland and by four natural persons against the Provincial Executive of the Province of Groningen concerning a decision by which the latter granted the company RWE Eemshaven holding BV, formerly RWE Power AG, a permit for the construction and operation of a power station in the province of Groningen.

As regards Cases C-166/09 and C-167/09, proceedings had been brought by the foundations Natuur en Milieu, Stichting Zuid-Hollandse Milieufederatie and Greenpeace and the Association of concerned Citizens of Voorne against the Provincial Executive of the Province of South Holland concerning the decisions by which that authority granted the companies Electrabel Nederland N.V. and E.On Benelux N.V. respectively, permits for the construction and operation of two power stations in the province of South Holland.

Obligation to include national emission ceilings?

The referring Court first of all asked whether Art. 9(1), (3) and (4) of the IPPC Directive must be interpreted as meaning that, when granting an environmental permit for the construction and operation of an industrial installation, the competent national authorities were obliged to include among the conditions for grant of that permit the national emission ceilings for SO2 and NOx laid down by the NEC Directive.

The Court first of all pointed out that none of these paragraphs of Art. 9 of the IPPC Directive referred, expressly or by implication, to those emission ceilings. Furthermore, the obligation, laid down in the second sentence of Art. 9(4) of the IPPC Directive, to see to it that the conditions of the permit contained provisions on the minimisation of long-distance or transboundary pollution and ensure a high level of protection for the environment as a whole, could be interpreted only in the context of the system established by the IPPC Directive itself and in particular of the rule, set out in the first sentence of Art. 9(4), under which it was mandatory for the emission limit values to be based on the best available techniques.

The Court held that equally no provision of the NEC Directive imposed obligations on the competent national authorities to regard the national emission ceilings for SO2 and NOx, when granting an environmental permit, as a condition for the permit.

On the contrary, the European Union legislature expressly stated, in recital 19 in its preamble, that the NEC Directive should applied ‘without prejudice to [the provisions of the IPPC Directive] in relation to emission limit values and use of best available techniques’, thereby, according to the Court, indicating that the obligations owed by the Member States under the NEC Directive could not directly affect those flowing, inter alia, from Art. 9 of the IPPC Directive.

According to the Court, this interpretation was borne out, finally, by the different purpose and the general scheme of both of the directives in question.

The answer to the first question therefore was it followed from Article 9(1), (3) and (4) of the IPPC Directive that, when granting an environmental permit for the construction and operation of an industrial installation, such as those at issue in the main actions, the Member States were not obliged to include among the conditions for grant of that permit the national emission ceilings for SO2 and NOx laid down by the NEC Directive, whilst they must comply with the obligation arising from the NEC Directive to adopt or envisage, within the framework of national programmes, appropriate and coherent policies and measures capable of reducing, as a whole, emissions of inter alia those pollutants to amount not exceeding the ceilings laid down in Annex I to that directive by the end of 2010 at the latest.

Obligations during period prescribed for transposition of directive

The referring Court furthermore asked what obligations were owed by the Member States under the NEC Directive during the period between 27 November 2002, when the time-limit for its transposition expired, and 31 December 2010, the deadline after which the Member States must comply with the emission ceilings laid down by it.

The Court of Justice first of all reiterated that that, during the period prescribed for transposition of a directive, the Member States to which it was addressed must refrain from taking any measures liable seriously to compromise the attainment of the result prescribed by that directive (Case C-129/96 Inter-Environnement Wallonie [1997] ; Case C-14/02 ATRAL [2003]; and Joined Cases C-261/07 and C-299/07 VTB-VAB and Galatea [2009]).

The Court held that such an obligation to refrain owed by all the national authorities must be understood as referring to the adoption of any measure, general or specific, liable to produce such a compromising effect (see Case C-212/04 Adeneler and Others [2006]).

This obligation to refrain from taking measures was also owed by the Member States, by virtue of the application of Art. 4(3) TEU in conjunction with the third paragraph of Art. 288 TFEU, during a transitional period in which they were authorised to continued to apply their national systems, even though those systems did not complied with the directive in question (see Case C-316/04 Stichting Zuid-Hollandse Milieufederatie [2005] and Case C-138/05 Stichting Zuid-Hollandse Milieufederatie [2006]).

The Court however held that a simple specific measure relating to a single source of SO2 and NOx, consisting in the decision to grant an environmental permit for the construction and operation of an industrial installation, did not appear liable, in itself, seriously to compromise the result prescribed by the NEC Directive, namely limiting emissions from those sources of pollution into the atmosphere to annual total amounted not exceeding the national ceilings in 2010 at the latest.

 The Court held that this conclusion applied all the more where, in circumstances such as those in the main actions, the installation in question was not to be brought into operation until 2012 at the earliest.

The Court furthermore held that the obligation of a Member State to take all the measures necessary to achieve the result prescribed by a directive was a binding obligation imposed by the third paragraph of Art. 288 TFEU and by the directive itself (Case 152/84 Marshall [1986];Case 72/95 Kraaijeveld and Others [1996]).

The Court reiterated that it followed from that obligation that, during the period prescribed for transposition, the Member States must take the measures necessary to ensure that the result prescribed by the directive was achieved at the end of that period. The same was true as regards a transitional period, such as the period provided for in Art. 4 of the NEC Directive.

 As regards the specific content of those national programmes the Court nevertheless emphasised the wide flexibility accorded to the Member States by the NEC Directive prevented limits from being placed upon them in the development of the programmes and their thus being obliged to adopt or to refrain from adopting specific measures or initiatives for reasons extraneous to assessments of a strategic nature which take account globally of the factual circumstances and the various competing public and private interests.

The Court summarised that during the transitional period from 27 November 2002 to 31 December 2010, provided for in Art. 4 of the NEC Directive:

– Art. 4(3) TEU, the third paragraph of Art. 288 TFEU and the NEC Directive required the Member States to refrain from adopting any measures liable seriously to compromise the attainment of the result prescribed by that directive;

– adoption by the Member States of a specific measure relating to a single source of SO2 and NOx did not appear liable, in itself, seriously to compromise the attainment of the result prescribed by the NEC Directive. It was for the national court to review whether that was true of each of the decisions granting an environmental permit for the construction and operation of an industrial installation such as the permit at issue in the main actions;

– the third paragraph of Art. 288 TFEU and Arts 6, 7(1) and (2) and 8(1) and (2) of the NEC Directive required the Member States, first, to draw up, to update and to revise as necessary programmes for the progressive reduction of national SO2 and NOx emissions, which they were obliged to make available to the public and appropriate organisations by means of clear, comprehensible and easily accessible information, and to notify to the Commission within the time-limit prescribed, and second, to prepare and annually update national inventories of those emissions and national emission projections for 2010, which they must report to the Commission and the European Environment Agency within the time-limit prescribed;

– the third paragraph of Art. 288 TFEU and the NEC Directive itself did not require the Member States to refuse or to attach restrictions to the grant of an environmental permit for the construction and operation of an industrial installation such as the permit at issue in the main actions, or to adopt specific compensatory measures for each permit granted of that kind, even where the national emission ceilings for SO2 and NOx were exceeded or risked being exceeded.

Whether Arts 4 and 6 NEC Directive directly effective

Thirdly, the national court asked whether and, if so, to what extent an individual could rely directly before the national courts upon the obligations imposed by Arts 4 and 6 of the NEC Directive.

The Court reiterated that, whenever provisions of a directive appear, so far as their subject-matter was concerned, to be unconditional and sufficiently precise, they might be relied upon by individuals against the Member State where the latter had failed to implement the directive in domestic law by the end of the period prescribed or where it had failed to implement the directive correctly (see, inter alia, Joined Cases C‑6/90 and C‑9/90 Francovich and Others [1991]; Case C62/00 Marks & Spencer [2002]; and Joined Cases C-397/01 to C‑403/01 Pfeiffer and Others [2004]).

The Court held that it would be incompatible with the binding effect which the third paragraph of Art. 288 TFEU ascribes to a directive to exclude, in principle, the possibility of the obligation imposed by a directive being relied on by persons concerned. That consideration applied particularly in respect of a directive whose objective was to control and reduce atmospheric pollution and which was designed, therefore, to protect public health (see Case C-237/07 Janecek [2008]).

The Court nevertheless added that a provision of European Union law was unconditional where it set forth an obligation which was not qualified by any condition, or subject, in its implementation or effects, to the taking of any measure either by the institutions of the European Union or by the Member States (see, inter alia, Case 28/67 Molkerei-Zentrale Westfalen/Lippe [1968] and Case C‑236/92 Comitato di coordinamento per la difesa della cava and Others [1994]).

According to the Court, it was clear that Article 4 of the NEC Directive did not display the characteristics set out above. That Article was purely programmatic in nature, in that it merely laid down an objective to be attained, leaving the Member States wide flexibility as to the means to be employed in order to reach that objective.

On the other hand, the Court found that Art. 6 of the NEC Directive was unconditional and sufficiently precise in that it required the Member States in unequivocal terms, first, under Art. 6(1) and (3), to draw up national programmes for the progressive reduction of national emissions of inter alia SO2 and NOx in order to comply with the ceilings laid down in Annex I to the directive by the end of 2010 at the latest and, second, as provided in Art. 6(4), to make those programmes available to the public and to appropriate organisations such as environmental organisations by means of clear, comprehensible and easily accessible information.