Opinion of the Advocate-General
I - Introduction
1 In these proceedings, which are brought under Article 226 EC, the Commission of the European Communities seeks a declaration from the Court of Justice that the Kingdom of Spain has failed to fulfil its obligations under Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (1) (`the Directive'), in that it has not adopted the laws, regulations and administrative provisions necessary to comply with the Directive. In particular, the Commission in its application seeks a declaration that there has been a failure to comply with Articles 2(1) and 4(2) of, in conjunction with Annex II to, the Directive. (2)
2 More particularly, the breach alleged by the Commission relates to the adoption in the Kingdom of Spain of the environmental legislation whereby the basic provisions are laid down in national legislation and the regions, known as autonomous communities, may enact secondary legislation. The Commission claims that the Spanish legislation infringes Community law for two, closely-linked, reasons. First, the Commission submits that the national legislation requires that only a very limited number of the classes of projects listed in Annex II to the Directive must undergo an environmental impact assessment. Second, it emerges from the Commission's examination of the legislation of the autonomous communities that while (the majority of) those communities have adopted legislation concerning the assessment of the effects of certain classes of project on the environment, that legislation has only partially eliminated the shortcomings of the national legislation.
3 The Spanish Government rejects the Commission's claims on a large number of points. The Spanish Government contends that, in any event, there are far more factors involved in the transposition of the Directive into national law than those described by the Commission. That being the case, the Court, in the interests of legal certainty - and in the event that a declaration is made against the Kingdom of Spain -, must specify the exact nature of the infringement.
II - The legal framework
European law
4 Article 2(1) of the Directive provides:
`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.'
5 Article 3 provides:
`The environmental impact assessment will identify, describe and assess in an appropriate manner, in the light of each individual case and in accordance with the Articles 4 to 11, the direct and indirect effects of a project on the following factors:
- human beings, fauna and flora,
- soil, water, air, climate and the landscape,
- the inter-action between the factors mentioned in the first and second indents,
- material assets and the cultural heritage.'
6 Article 4 provides as follows:
`1. Subject to Article 2(3), projects of the classes listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.
2. Projects of the classes listed in Annex II shall be made subject to an assessment, in accordance with Articles 5 to 10, where Member States consider that their characteristics so require. 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.'
7 Annex II, to which Article 4(2) refers, lists a whole series of classes of projects which are grouped according to specific types of activity. By way of illustration I shall cite points 1 to 6 inclusive, which are headed agriculture, extractive industry, energy industry, processing of metals, manufacture of glass, and chemical industry.
National law
8 Under the Spanish constitution, the State and the autonomous communities (3) share competence in relation to the environment. That applies at both a legislative and an executive level. The State is empowered to adopt primary legislation, while the autonomous communities may adopt secondary legislation deriving therefrom. The autonomous communities may enact supplementary protective measures. In principle, the autonomous communities are responsible for implementation. However, the Spanish Constitutional Court has ruled that, in exceptional cases, the State may adopt implementing acts in order to avoid irreparable damage and to ensure that the objective aims of the primary legislation are achieved. The Constitutional Court also declared that the division of powers to which I have referred applies without restrictions to the implementation of Community law.
9 As a result of that division of powers, nearly all the autonomous communities of Spain have environmental impact assessment legislation which supplements the national legislation. That does not apply to the autonomous cities of Ceuta and Melilla which, by way of an exception to the previous point, do not have any legislative powers in relation to the environment. Furthermore, the autonomous community of La Rioja has not exercised the legislative power conferred upon it.
10 At a national level, Royal Legislative Decree 1302/1986 of 28 June 1986 on environmental impact assessment, and Royal Decree 1131/1988 of 30 September 1988 approving the implementing rules for the former, constitute the first measures transposing the Directive into national law. The Annex to Royal Legislative Decree 1302/1986 lists the projects contained in Annex I to the Directive, plus four of the classes of projects contained in Annex II.
11 In addition, pursuant to Article 6(3) of Royal Decree 1997/1995 of 7 December 1995, any project which is included in Annex II to the Directive and which affects a special area of conservation are made subject to an environmental impact assessment. The special areas of conservation in question are those referred to in Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (4) (`the Habitats Directive'). Furthermore, in the present proceedings, the Commission disputes that the assessment to which the Royal Decree refers satisfies the conditions laid down in the Directive.
12 In addition, for many sectors there is specific national legislation containing provisions governing the assessment of effects on the environment. One example is Law 54/1997 of 27 November 1997 governing the electrical sector.
13 A Royal Decree on environmental impact assessment, which entered into force on 8 October 2000, was adopted in order to implement Directive 97/11, which thoroughly amended the Directive. (5)
III - Facts and procedure
14 By letter dated 28 February 1990, the Commission gave the Kingdom of Spain formal notice that it considered that the majority of the projects listed in Annex II to the Directive were not subject to an environmental impact assessment in Spain. In reply to that letter of formal notice, the Spanish Government, by letter of 2 May 1990, disputed the Commission's view and claimed that, under Article 4(2) of the Directive, Member States have a wide discretion to decide which of the classes of projects listed in Annex II should be subject to an environmental impact assessment. In their letter, the Spanish authorities indicated the legislative measures which ensured the transposition of the Directive into national law.
15 The reasoned opinion was delivered on 23 December 1992, and the Spanish Government replied by letter of 3 March 1993. The Spanish Government maintained its position, stating that a number of projects were covered by Royal Legislative Decree 1302/1986, that the majority of projects were covered by the legislation of the autonomous communities and that, furthermore, on many occasions informal procedures were used.
16 It was only much later, on 18 December 1998, that a supplementary reasoned opinion was delivered. The Spanish Government replied by letter of 25 February 1999. The Spanish Government attached to that reply a copy of a preliminary draft of a bill on environmental impact assessment, together with various legislative measures which had been adopted by the autonomous communities. It supplemented that information by means of two further letters to the Commission, dated 9 and 22 April 1999.
17 As a result of the foregoing, the Commission brought an action before the Court of Justice on 9 December 1999, claiming that only a very few of the shortcomings previously identified had been eliminated.
18 During the written phase of the procedure before the Court, the Commission complained, in particular, that the Spanish Government had failed to send it copies of many of the implementing measures. That complaint referred more particularly to measures adopted by the autonomous communities. As a result of that complaint, the Spanish Government attached a sizeable bundle of legislation to its rejoinder but without indicating which specific provisions were intended to give effect to the Directive. The hearing in these proceedings was held on 10 January 2002.
IV - Arguments of the parties
19 In its application, the Commission asserts that Article 4(2) of the Directive must be interpreted in the light of the provisions of Article 2(1) of the Directive. Article 2(1) requires Member States to determine on a case-by-case basis whether a project must be made subject to an environmental impact assessment. Article 4(2) provides that Member States may establish criteria and/or thresholds for the purposes of that assessment. However, Member States are not permitted to exempt certain classes of projects in advance from assessment. In that regard, the Commission cites Commission v Belgium, (6) which I shall discuss in section V of this Opinion.
20 The Commission goes on to list the classes of projects which are not included in the Spanish national legislation. In response to the Spanish Government's claim that any gaps were filled by the legislation of the autonomous communities, the Commission analysed the provisions which were submitted to it. The Commission finds that there are extensive gaps in those provisions.
21 The Commission also rejects the Spanish Government's argument that some of the projects listed in Annex II are assessed under an informal procedure, similar to that used for the projects listed in Annex I. It is settled case-law of the Court that mere administrative practices cannot constitute measures of transposition.
22 In its defence, the Spanish Government lists in detail the national legislation and the legislation of the autonomous communities. Spain contends that by adopting all the aforesaid measures it has fulfilled its obligations under the Directive. Accordingly, it contends that the application should be dismissed. That contention is founded mainly on the provisions of Royal Decree 1997/1995 of 7 December 1995. That royal decree includes all the projects listed in Annex II. An environmental impact assessment is required to be carried out for all such projects in cases where they have a significant effect on so-called special areas of conservation. The Spanish Government thus uses the `location' of a project as a criterion for the purposes of Article 4(1) of the Directive. The Spanish Government claims that that criterion is admissible under Community law.
23 The Commission set out in detail its objections to the above both in its reply and at the hearing.
24 The Commission contests the method by which the Spanish Government informed it of the implementing measures. In particular, the legislation mentioned by the Spanish Government was never notified to the Commission as an implementing measure. In its defence, the Spanish Government merely stated that the legislation in question provided for environmental impact assessments, but it did not specify which of the classes of projects from Annex II are subject to an assessment. In addition, the copies of the provisions in question were only submitted with the rejoinder, and the provisions which were intended to give effect to the Directive were not specified, despite the fact that the environmental legislation of the autonomous communities is very extensive. All this makes it difficult to carry out a proper analysis of the measures. The Spanish Government's manner of proceeding is also in conflict with the obligation of the Member States, under Article 12(2) of the Directive, to communicate to the Commission the texts of the relevant provisions of national law. The Commission requests the Court to take account of this tactic of the Spanish Government when determining the burden of proof.
25 The Commission sets out four tests which a legislative measure must satisfy in order to be taken into consideration:
- the legislation must have entered into force no later than 25 February 1999;
- the legislation must refer to the projects listed in Annex II to the Directive;
- the environmental impact assessment, which must be carried out in accordance with the legislation, must meet the requirements of the Directive both as regards the procedure to be followed and the information to be made available to the public;
- compulsory environmental impact assessments may not be restricted to certain (vulnerable) areas.
26 The Commission notes that the Spanish Government has referred to 25 pieces of national legislation which have transposed the Directive into domestic law. (7) The Commission does not dispute that Law 54/1997 of 27 November 1997 governing the electrical sector, which provides for there to be an environmental impact assessment for overhead electrical cables of a specified power, serves to transpose the second class of Point 3(b) of Annex II (`transmission of electrical energy by overhead cables') into national law. However, the Commission draws attention to the fact that the law in question was notified to it after the expiry of the time-limit indicated in the supplementary reasoned opinion.
27 As concerns the other national provisions - both general and sector-specific - to which the Spanish Government refers, the Commission's complaint is founded on the fact that those provisions do not mention the procedure provided for under the Directive. The Commission also puts forward the following more specific complaints:
- Royal Decree 1997/1995 of 7 December 1995, which contains measures for the protection of biodiversity, cannot constitute a correct transposition of the Directive because it refers only to special areas of protection. In addition, that decree does not provide for an environmental impact assessment within the meaning of the Directive, but instead transposes Article 6(3) of the Habitats Directive into national law;
- The procedure provided for in Decree 2114/1961 of 30 November 1961 concerning certain activities which present a nuisance or a health risk or are harmful or dangerous (8) does not satisfy the requirements of the Directive. The Commission notes that the decree does not cover all the matters contained in Article 3 of the Directive, but the Commission does not find that surprising in view of the date on which the provision was adopted;
- Law 46/1999 of 13 December 1999 on water and Royal Decree 1836/1999 of 3 December 1999 on nuclear and radioactive installations were adopted after the expiry of the time-limit laid down in the supplementary reasoned opinion;
- Law 25/1988 of 29 July 1988 and Royal Decree 1812/1994 of 2 September 1994 on roads cannot be regarded as implementing measures, since they only provide for certain derogations from the duty to carry out an environmental impact assessment;
- Law 22/1988 of 28 July 1988 on coastlines provides for certain activities to undergo a prior assessment of their effects. Neither the law nor the decree which implements it refers to the classes of projects listed in Annex II to the Directive;
- Law 34/1998 of 7 October 1998 on the hydrocarbon sector provides for a prior environmental impact study to be carried out. In view, inter alia, of the general nature of that assessment, there is no guarantee that the provision complies with the Directive. It makes no reference to the classes of project listed in Annex II to the Directive;
- The Commission reiterates its position concerning practices which are merely administrative in nature. The Commission also submits that, according to the settled case-law of the Court, domestic political circumstances may never be relied upon in order to justify a shortcoming in implementation.
28 Based on the information available to it, the Commission accepts that Spanish national legislation effectively governs the assessment of effects on the environment for six of the 83 classes listed in Annex II.
29 The Commission's opinion of the legislation of the autonomous communities is the following:
- In general, the legislation notified only serves to show that the autonomous communities have exercised their powers in relation to the environment but there is no evidence that Annex II has been correctly transposed into the various regional legal systems;
- None of the autonomous communities require all the classes of projects listed in Annex II to be subject to an environmental impact assessment.
30 At the hearing, the Commission classified the autonomous communities as follows:
- No legislation whatsoever has been adopted in the autonomous cities of Ceuta and Melilla or in La Rioja;
- In Navarra, no rules governing the assessment of the effects on the environment of the projects listed in Annex II have been adopted;
- In Catalonia, Extremadura, Aragon, Galicia and Asturias, specific provisions governing environmental impact assessment have been adopted. Those provisions are limited to certain sectors. Additional measures are needed in order to provide, inter alia, for compulsory environmental impact assessments in other sectors;
- Specific provisions creating a duty to carry out environmental impact assessments have been enacted in the other autonomous communities. However, an initial examination of the provisions submitted reveals that certain amendments and, in some cases, additions are needed.
All of the above is set out in a table which the Commission annexed to its reply. (9)
31 In the rejoinder the Spanish Government states first of all that the Commission fails to take account of the division of powers between the State and the autonomous communities. The Spanish constitution gives the State power to adopt primary legislation on the environment. In a judgment of 4 July 1991, (10) the Constitutional Court held that, as regards the environment, the State has a lesser duty than in other fields to leave scope for the implementation of primary legislation by means of legislation adopted in the autonomous communities. The Constitutional Court held that the primary legislation on the protection of the environment (11) lays down the minimum level of environmental protection required at a national level, which may be increased by the legislation of the autonomous communities. In addition, certain of the classes listed in Annex II to the Directive may be regulated at both State and regional levels. Furthermore, the court noted that the provisions set out in national (primary) legislation also apply in the autonomous communities, even if the legislation of those communities does not specify as much. In the Spanish Government's view, the table drawn up by the Commission reveals that the latter is unaware of that fact.
32 The Spanish Government comments on the Commission's complaint that it did not send copies of the relevant legislation to the Commission. The Spanish Government contends that it was unnecessary to do so, since the Commission could have looked up all the provisions in the Spanish official publications. A reference was given in each case. The Spanish Government considers that not only was it unnecessary to send the texts but also pointless. However, since the Commission expressly requested that it be sent the texts of the legislation in question, the Spanish Government attached them to the rejoinder.
33 The Spanish Government draws a distinction between the duty to transpose the Directive into national law and the duty to communicate the implementing measures to the Commission in accordance with Article 12(2) of the Directive. The failure to fulfil the latter duty is not a subject of the application and, accordingly, must remain outside the scope of these proceedings.
34 At the hearing, the Spanish Government stated that the definitions of the projects listed in Annex II have not been interpreted uniformly by experts. That, together with the fact that the Community legislature opted for a directive rather than a regulation, means that Member States may take into account special geographical circumstances when implementing the Directive.
35 At the hearing, the Spanish Government also contested the Commission's legal interest in bringing these proceedings, on the ground that, inter alia, Spain has adopted legislation implementing Directive 97/11. The Spanish Government claims that, subject to a transitional period, that legislation satisfies the requirements of Community law concerning environmental impact assessments and that support for that claim can be found in a letter from the Commission.
36 Consequently, the Spanish Government maintains that there are many more factors involved in the transposition of the Directive into national law than those stated by the Commission. In such a case, and in the event that judgment is given against the Kingdom of Spain, the Court, in the interests of legal certainty, must specify the exact nature of the infringement, in accordance with Commission v Ireland. (12)
37 In the opinion of the Spanish Government, the Commission takes a very strict view of the provisions of Annex II. In support of its wider interpretation, the Spanish Government refers to the Opinion which I delivered in Commission v Germany. (13) Unlike Annex I, there is no reason to duplicate Annex II in the national legislation. The factors which Member States may take into account for the purpose of establishing criteria and/or thresholds, namely, the nature, the size and the location of the project, are the same. In certain circumstances, Member States may also limit the scope of the environmental impact assessment to specific sensitive areas. According to the Spanish Government, the unfair outcome of the Commission's interpretation is that some of the provisions of the legislation of Catalonia and the Canary Islands have been rejected.
38 In its rejoinder, the Spanish Government contests the Commission's view concerning the national legislation on one specific point. It contends that Royal Decree 1997/1995 concerning the establishment of measures for the protection of biodiversity fulfils the requirements of the Directive. Under Article 4(2) of the Directive, a Member State is entitled to establish criteria and/or thresholds. In this case, the criterion chosen is that the projects are liable to have a significant impact on special areas of conservation. At the hearing, the Commission referred again in that regard to the case-law of the Court, according to which the exercise of discretion by a Member State - for the purpose of establishing criteria and/or thresholds - cannot have the result that certain projects are always exempted from environmental impact assessments. (14)
39 Furthermore, the Spanish Government states that the Commission does not recognise a simplified environmental impact assessment procedure which is used in Murcia and in Castile and Leon, whereas it appears from the reply that the Commission accepts a similar procedure in the Basque Country.
40 The Spanish Government then puts forward its view on the measures which have been adopted by the various autonomous communities. The Spanish Government summarised its assessment of those measures in a table which it submitted to the Court. Compared to the Commission's table, the Spanish Government's table shows that many more classes of projects are covered by the legislation of the autonomous communities. That does not concern all the classes.
V - The case-law of the Court regarding Article 4(2)
41 The Court interpreted Article 4(2) of the Directive in Commission v Belgium. (15) In essence, in that case the Court came to the view that Article 4(2) does not empower the Member States to exclude generally and definitively from possible assessment one or more classes mentioned in Annex II. In Commission v Germany, (16) the Court also held that the term `class' does not refer to the 12 `principal' classes of projects listed in Annex II, but rather to the projects which feature as subdivisions of those classes, each of which is preceded by a letter of the alphabet.
42 In Commission v Belgium, the Court held that the Community legislature itself considered that all the classes of projects listed in Annex II may possibly have significant effects on the environment, depending on the characteristics exhibited by those projects at the time when they were drawn up.
43 The measure of discretion enjoyed by the Member States is limited to the power to specify certain `types of project' which must always be subject to an assessment. The Member States may also lay down criteria and/or thresholds which are needed in order to determine which projects must undergo an assessment.
44 That interpretation was confirmed and refined in Kraaijeveld and Others, (17) a case which concerned construction works, in this instance the reinforcement of a dyke along waterways. (18) The Court acknowledged that the exercise of the power to lay down specifications, criteria and thresholds does not dispense with the duty of a Member State to undertake an actual examination of each project in order to verify if it fulfils the criteria of Article 2(1) of the Directive.
45 Member States have a measure of discretion which is limited by the obligation, set out in Article 2(1) of the Directive, that projects likely, by virtue inter alia of their nature, size or location, to have significant effects on the environment are to be subject to an impact assessment. A Member State which establishes criteria and/or thresholds at a level such that, in practice, all projects (relating to a particular class) would be exempted in advance from the requirement of an impact assessment exceeds the limits of its discretion under Articles 2(1) and 4(2) of the Directive, unless all projects excluded could, when viewed on the basis of a global assessment, be regarded as not being likely to have significant effects on the environment.
46 In Commission v Ireland, (19) the Court further clarified its view. A Member State which limits itself to establishing criteria and/or thresholds taking account only of the size of a project, without also taking their nature and location into consideration, exceeds the limits of its discretion under Articles 2(1) and 4(2) of the Directive. Even a small-scale project can have significant effects on the environment if it is in a location where the environmental factors set out in Article 3 of the Directive, such as fauna and flora, soil, water, climate or cultural heritage, are sensitive to the slightest alteration. (20) Member States must also ensure that the objective of the legislation will not be circumvented by the splitting of projects. (21)
47 To complete this overview, I should also mention - although it may be superfluous to do so - the case of WWF and Others, (22) in which the Court upheld its earlier case-law and also considered the question of the direct effect of the provisions of the directive in question in a case where a Member State had exceeded the limits of the discretion conferred upon it.
VI - Analysis
48 First of all, I will discuss the context of the present proceedings by means of four preliminary observations. Next, I will use that outline of the context as a basis for determining the scope of the dispute. Only after I have done that will I analyse the actual object of these proceedings, namely the alleged failure to fulfil certain obligations deriving from the Directive.
Preliminary observations
49 At the hearing, the question arose as to why the Commission has brought these proceedings, in view of the fact that in the meantime new legislation implementing Directive 97/11 has entered into force in Spain. (23) The Commission puts forward two reasons why, notwithstanding this, it has pursued these proceedings. First, the new legislation does not cover projects which had already been approved prior to the entry into force of the new legislation. Second, the new legislation provides for long transitional periods.
50 According to the case-law of the Court, the Commission has discretion to decide whether to bring, and also whether to pursue, proceedings under Article 226 EC. The Court may only rule upon whether there has been a failure to fulfil an obligation deriving from the Treaty, and not on whether the Commission has properly exercised the discretion conferred upon it. Furthermore, I would also add that, in this case, I find the arguments put forward by the Commission to be valid in all respects.
51 By way of a second preliminary observation, I would like to draw attention to the obligations of Member States in cases where implementation of a directive is decentralised. In Commission v Germany, (24) the Court held that Germany had failed to fulfil its obligations under the Treaty by not requiring the Länder to ensure the application of certain implementing measures. In my opinion, under current Community law, the central authorities of a Member State where the implementation of a directive is assigned, in whole or in part, to regional authorities have at least the following obligation: the central authority must ensure that implementation at the decentralised level is effectively carried out. In the present case, that means that central authorities must intervene if a regional authority has not carried out correctly the task which it has been required to perform, namely the implementation of a directive. In the present case, there is no evidence that the Spanish national authorities carried out such checks or that they intervened in cases where the Directive was incorrectly implemented in the autonomous communities.
52 Moreover, as the Court has consistently held, a Member State may not plead, by way of an exemption, provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with the obligations and time-limits laid down in a directive. (25) In short, in Community law no great significance may be attributed to the difficulties caused by the fact that transposition is complex and is not carried out centrally.
53 Furthermore, for what it is worth, I would also like to point out that it does not necessarily follow from the organisation of the Spanish State that implementation of the Directive must be (partially) decentralised. The Spanish State is empowered to adopt primary legislation. There is nothing to preclude that primary legislation from containing all the provisions required to transpose the Directive into national law. I note that the Spanish Government chose to transpose Directive 97/11 into national law by setting out all the implementing provisions in legislation of the national State. In that connection, the Spanish Government continues to complain that the Commission has failed to take account of the nature of the division of powers between the Spanish State and the autonomous communities. I consider that complaint to be wholly groundless. The Commission considers both the national legislation and the legislation of the autonomous communities in its analysis. Only after carrying out that analysis did the Commission conclude that even the two levels of legislation taken together cannot lead to the conclusion that the Directive has been fully implemented.
54 A third preliminary observation concerns the procedure as it has been followed up to now. I should like to point out that the procedure under Article 226 EC - which, in this case, concerns the incorrect implementation of a directive - is not like a criminal procedure. In criminal proceedings, it is generally for the prosecution to adduce evidence of an offence. The accused may remain fairly passive and merely rebut the evidence adduced by the prosecution.
55 By contrast, the procedure for infringement under Article 226 EC is on occasion a necessary follow-up to the transposition of a directive, which is governed by Article 10 EC. Cooperation between Member States and the Commission is a priority when it comes to the transposition of directives. The requirement of cooperation continues to be important even after the initiation of the contentious phase of proceedings. As I stated in my Opinion in Finland v Commission, while it is true that Member States are entitled first and foremost to act to protect their position in proceedings, that does not imply that they are entitled to render it totally impossible to proceed with the case. (26)
56 In that regard, I would like to emphasise that, under the EC Treaty, Member States are jointly responsible for the functioning of the Community legal order. That joint responsibility is enshrined inter alia in Article 10 EC. The Member States are required to facilitate the achievement of the tasks entrusted to the institutions. That duty occasionally requires Member States to cooperate actively with the institutions to the extent that such cooperation may contribute to, or may even be necessary for, the effective performance by the institutions of their tasks. In the case before the Court, the task in question is, specifically, the Commission's duty to oversee the transposition of the Directive. The duty of the Member States under Article 10 EC is to be as transparent as possible about the implementation of each of the provisions of the Directive. Naturally, where transposition is more complex in nature, due, for example, to the fact that it is carried out at a decentralised level, the contribution expected from a Member State will accordingly be all the greater.
57 In proceedings for failure to fulfil an obligation, brought under Article 226 EC, it is of course for the Commission to adduce the evidence required to support its claim that a Member State has failed to fulfil its obligations. As against that, there is the legal duty of a Member State under Article 10 EC, which I described under the preceding point. Specifically, the Member State must provide the Commission with the necessary information to enable that institution to determine whether, and to what extent, the obligations deriving from a directive have been fulfilled. That information must, therefore, enable the Commission to substantiate its claim.
58 I have been unable to conclude from the course of these proceedings that the Spanish Government has borne in mind the provisions of Article 10 EC. In particular, the Spanish Government is to be criticised for its failure to send to the Commission the very extensive legislation of the autonomous communities until it submitted its rejoinder, and then without specifically indicating what exactly were the provisions which served to implement the Directive. Also, to my mind, it is wholly logical that the Commission did not examine in detail all the provisions of the autonomous communities of Spain. Furthermore, the Commission itself cannot be expected to search for the relevant legislation of the autonomous communities in the various official Spanish publications.
59 Furthermore, in a situation like the current one, it is not the Court's task to undertake a detailed assessment of all the regional provisions. Such an assessment is not relevant to the subject of these proceedings. The situation would have been different if, during the pre-litigation procedure, the Spanish Government had submitted to the Commission the information which would have enabled the latter to formulate in more detail the application lodged at the Court. Furthermore, a detailed assessment of the legislation of the autonomous communities of Spain would require the Court to undertake an excessive amount of research because the Spanish Government also failed to provide the Court with an ordered account of where, in the legislation submitted, the different classes of projects listed in Annex II to the Directive feature. In proceedings before the Court, it is first and foremost for the parties, and not for the Court, to substantiate the facts which they put forward.
60 Accordingly, it is my view that the request, made by the Spanish Government at the hearing, that the Court should provide a detailed assessment of the Spanish national and regional legislation contradicts the position hitherto held by that party in these proceedings. In its request, the Spanish Government cited Commission v Ireland, (27) from which it infers that, in the interests of legal certainty, the Court is required to give a detailed account of the nature of the breach. I do not understand very well what the Spanish Government is hoping to achieve. There are certain aspects of the judgment which have a bearing on this case, but it certainly does not contain a detailed assessment of all the implementing instruments.
61 My fourth preliminary observation follows on from the third. As a result of the Spanish Government's attitude, it was not possible to take full advantage of the pre-litigation procedure in these proceedings. I should like to point out that the aim of the procedure under the first paragraph of Article 226 EC is not only to safeguard the rights of the Member States, but also to define the subject-matter of the contentious proceedings. (28) In the case before the Court, the Commission has been prevented from focusing the proceedings on the shortcomings which actually exist in the Spanish legislation.
62 I should also add that, during the course of the proceedings, the Spanish Government appears to have changed its position. During the pre-litigation procedure, the Spanish Government claimed that there was no reason to provide that an environmental impact assessment must be carried out for all the classes of project listed in Annex II to the Directive. In its defence, the Spanish Government withdrew from that position. Subsequently, it claimed that it had fully implemented Article 4(2) of the Directive, since Royal Decree 1997/1995 of 7 December 1995 provides that all projects listed in Annex II to the Directive which have a significant effect on a special area of protection shall be subject to an environmental impact assessment.
63 However, at the hearing the Spanish Government also appeared to withdraw from that position and acknowledged that the application was partially well founded. On the one hand, the Spanish Government seeks a detailed assessment from the Court - something which would be unnecessary were the action to be dismissed in its entirety - while, on the other hand, it does not dispute the reasoned objection put forward by the Commission to its view concerning the nature of the procedure set out in Royal Decree 1997/1995 of 7 December 1995.
64 To summarise, those four preliminary observations have the following consequences for the scope of the dispute:
- It is not for the Court to determine the reasons why the Commission brought the proceedings. Accordingly, the Court is only required to rule on the substance;
- In its assessment, the Court may not take into account the difficulties posed, vis-à-vis transposition, by a decentralised regime;
- The passive, and in consequence criticisable, attitude of the Spanish Government in the present proceedings means that there is no reason why the Court should assess in detail all the implementing provisions;
- Furthermore, the fact that the Spanish Government did not make full use of the pre-litigation procedure further supports that view.
The scope of the dispute
65 The first limitation on the scope of the dispute which I would like to mention is linked to the scope of the questions raised in these proceedings.
66 The Commission seeks a declaration from the Court that the Kingdom of Spain has failed to transpose correctly the provisions of Articles 2(1) and 4(2) of, in conjunction with Annex II to, the Directive. In my opinion, the Court is entitled to confine itself to declaring that the Kingdom of Spain has failed to fulfil its obligations, and it is not required to assess in detail the extent to which the various autonomous communities of Spain have implemented the Directive. As I have already stated, the Court does not have to provide a detailed assessment of all the implementing provisions. Similarly, I have also already pointed out that the national State has a duty to ensure that the Directive is correctly transposed throughout the whole of its territory.
67 The first question to answer is whether Article 4(2) of, in conjunction with Annex II to, the Directive has been fully transposed into Spanish national legislation, with the result that that legislation provides that an environmental impact assessment must be carried out for all the classes of projects listed in Annex II to the Directive. In the event that that question is answered in the negative, the second question to answer is the following: do the rules introduced by the autonomous communities, concerning environmental impact assessments for the classes of projects listed in Annex II, serve to eliminate in full the shortcomings in the national legislation?
68 The second limitation on the scope of these proceedings relates to the period in relation to which the assessment is made. In that regard, I should like to recall that the Court has consistently held that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation in the Member State as it stood at the end of the period laid down in the reasoned opinion. The Court cannot take account of any subsequent changes. (29) It follows from that case-law that, in its assessment, the Court may not, in any event, take into account the royal decree which entered into force on 8 October 2000 and pursuant to which Spanish legislation was allegedly harmonised with the Directive.
69 There are more reasons in these proceedings than in others why legislation which was adopted out of time, in other words after the expiry of the time-limit stipulated in the reasoned opinion, should not be taken into consideration. The Directive should have been fully transposed by the end of the time-limit of three years from the date of its notification, that is by 3 July 1988. (30) The Commission had already sent a letter of formal notice to the Spanish Government on 28 February 1990. The supplementary reasoned opinion, which is decisive in this case, was issued on 18 December 1998. In other words, the Spanish Government had more than sufficient time to rectify any possible shortcomings in the legislation.
70 I will briefly mention the third limitation. As the Spanish Government rightly claims, the dispute does not turn on whether there has been an infringement of Article 12(2) of the Directive, pursuant to which Member States are required to communicate to the Commission the measures adopted in order to transpose the Directive into national law. That means that there is no need for the Court to consider the question whether the implementing measures were communicated to the Commission within the required period.
Substance
71 As I stated in point 67 of this Opinion, I shall discuss the Spanish national legislation first. The Commission accepts that the provisions concerning compulsory environmental impact assessments have been correctly transposed for six of the 83 classes of projects listed in Annex II. The dispute accordingly focuses on the remaining 77 classes. In that regard, I shall start from the premiss that Law 54/1997 of 27 November 1997 governing the electrical sector, which provides for an environmental impact assessment to be carried out in respect of overhead electrical cables of a specified power, constitutes a correct transposition of the second class of point 3(b) of Annex II (`transmission of electrical energy by overhead cables') into national law. The Commission's position in that regard has been somewhat ambiguous. However, it is my view that the fact that the legislation in question was communicated to the Commission too late - which does not mean that it entered into force too late! - does not preclude such a finding.
72 In essence, it is necessary to determine whether Royal Decree 1997/1995 of 7 December 1995, setting out measures for the protection of biodiversity, constitutes a correct transposition of the Directive. Under that royal decree, environmental impact assessments are required for projects listed in Annex II to the Directive which have a significant effect on special areas of conservation. It falls to the Court to answer the question whether the limitation to projects having that specific characteristic is an admissible criterion under Article 4(2) of the Directive.
73 According to the case-law of the Court, the measure of discretion enjoyed by the Member States is limited by the duty, set out in Article 2(1), to make projects likely to have significant effects on the environment, by virtue inter alia of their nature, size or location, subject to an assessment with regard to their effects.
74 Accordingly, Member States may not exempt projects in advance where it is possible that those projects might have significant effects on the environment. To my mind, it is clear that projects which are not situated anywhere near a special area of conservation, for the purposes of the Habitats Directive, can also have significant effects on the environment. I am also of the view that it is of decisive significance that Article 3 of Directive 85/337 contains a wide definition of the environment, whereas the Habitats Directive is aimed only at the protection of biodiversity and, accordingly, only designates areas which are important in terms of their biodiversity.
75 I must also add the following. In Commission v Ireland, (31) the Court held that when establishing criteria and/or thresholds Member States may not take account only of the size of projects. By analogy with that judgment, it is my view that nor may Member States take account only of the location of projects. Thus, irrespective of its location, a project - due, for example, to its size - may still be liable to have significant effects on the environment.
76 I therefore conclude that Royal Decree 1997/1995 of 7 December 1995 does not fully implement the Directive. Indeed, I have reached that conclusion without giving consideration to the Commission's claim that the environmental impact assessment procedure, laid down in the royal decree, does not satisfy the requirements of the Directive.
77 Similarly, the other national provisions, even where they are viewed in conjunction with one another, cannot lead to the conclusion that the national legislature has fully transposed the Directive. In that respect, I would recall the four criteria put forward by the Commission. In order for a legal measure to be regarded as an implementing provision it must have entered into force before the expiry of the time-limit laid down in the reasoned opinion, it must refer to the projects listed in Annex II, it must satisfy the (procedural) requirements of the Directive, and it must not be limited to specific sectors. There is no doubt at all in my mind that those criteria are correct.
78 The Commission goes on to state that none of the national measures cited by the Spanish Government complies with all those four criteria. (32) The Spanish Government does not contest that assertion, other than by reference to Royal Decree 1997/1995 which I have already discussed in sufficient detail.
79 At this point, I will now deal with the question whether the rules adopted by the autonomous communities have served to rectify in full the shortcomings of the national legislation.
80 I do not need to carry out a detailed analysis for it to be clear to me that that question can only be answered in the negative.
81 First, it is not disputed that the autonomous cities of Ceuta and Melilla and the autonomous community of La Rioja have not enacted any environmental impact assessment legislation. As a result, contrary to the Directive, projects undertaken in those regions are not subject to an environmental impact assessment.
82 Second, it appears from the table lodged at the Court by the Spanish Government that there are also considerable gaps in other autonomous communities with regard to compulsory environmental impact assessment. I would point first of all to the situation in the autonomous community of Navarra, in relation to which the Commission claims that there has been a general failure to adopt rules concerning environmental impact assessment for the projects listed in Annex II. The Spanish Government contends that there is a legal duty to carry out such assessments for 11 classes of project, but that represents only a small proportion of the projects mentioned in Annex II. The table shows that very many classes of projects are not subject to an assessment in other regions too. I refer, by way of example, to Asturias, Cantabria, the Canary Islands and the Balearic Islands, which appear to have the most gaps in their legislation.
83 Geographical circumstances can in themselves mean that, in some regions, there is no duty to undertake environmental impact assessments for certain classes of projects, but only where it is impossible to carry out those classes of projects in the region in question. I have in mind, for example, the extraction of certain materials (see part 2 of Annex II) if those materials do not exist in the specific region. However, the derogations set out in the legislation of the autonomous communities are far wider than that. I shall give one example. Projects in the food industry are exempted in Asturias, the Canary Islands, the Balearic Islands and Castile and Leon, (33) despite the fact that, according to the table, there are no national provisions governing that sector either.
84 Finally, I would refer to the informal practices on which the Spanish Government relied previously in support of its argument that the Directive had been transposed into national law. In so far as the Spanish Government continues to make that claim, I must draw attention to the fact that the Court has consistently held that mere administrative practices, which are alterable at the will of the administration and are not given adequate publicity, cannot be regarded as constituting a correct transposition of the provisions of a directive into national law. (34)
VII - Conclusion
85 In the light of the foregoing considerations, I propose that the Court of Justice should:
(a) Declare that the Kingdom of Spain has failed to fulfil its obligations under Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, in that it has not adopted the laws, regulations and administrative provisions necessary to comply with Articles 2(1) and 4(2) of, in conjunction with Annex II to, that directive.
(b) Order the Kingdom of Spain to pay the costs, in accordance with Article 69(2) of the Rules of Procedure.
(1) - OJ 1985 L 175, p. 40.
(2) - The Directive was amended thoroughly by Council Directive 97/11/EC of 3 March 1997 amending Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment (OJ 1997 L 73, p. 5). These proceedings turn on the failure to comply with the Directive as it stood prior to amendment.
(3) - In this Opinion, the term also includes the autonomous cities of Ceuta and Melilla.
(4) - OJ 1992 L 206, p. 7.
(5) - See footnote 3.
(6) - Case C-133/94 [1996] ECR I-2323.
(7) - I will not discuss all the measures cited by the Commission here, but will confine myself to those measures on which the Commission has specifically commented.
(8) - Decree 2114/1961 of 30 November 1961 approving the regulations on activities which present a nuisance or a health risk or are harmful or dangerous.
(9) - At the hearing, the Commission submitted a supplement (amendment) to its observations regarding the legislation of Murcia and of Castile and Leon.
(10) - Judgment 149/1991.
(11) - And also on town planning, in the view of the Spanish Government.
(12) - Case C-392/96 [1999] ECR I-5901.
(13) - Opinion of 12 July 2001 in Case C-24/99 Commission v Germany (case removed from the register).
(14) - See also point 19 above.
(15) - See paragraphs 41 to 43 of the judgment, cited in footnote 7. The Commission refers to the case in its application.
(16) - Judgment in Case C-301/95 [1998] ECR I-6135, paragraph 43.
(17) - Judgment in Case C-72/95 [1996] ECR I-5403, paragraphs 49 to 53.
(18) - The Court held that that type of work falls under point 10(e) of Annex II to the Directive.
(19) - Cited in footnote 13.
(20) - Paragraphs 65 and 66 of the judgment.
(21) - Paragraph 82 of the judgment.
(22) - Case C-435/97 [1999] ECR I-5613.
(23) - See points 13 and 35 of this Opinion.
(24) - Judgment in Case C-237/90 [1992] ECR I-5973, paragraph 35.
(25) - See, for example, Case C-470/98 Commission v Greece [2000] ECR I-4657.
(26) - Case C-170/00 [2002] ECR I-1007, point 27.
(27) - Cited in footnote 13.
(28) - See also my Opinion in Case C-127/99 Commission v Italy [2001] ECR I-8305.
(29) - See, inter alia, the judgment in Case C-185/96 Commission v Greece [1998] ECR I-6601, paragraph 18.
(30) - See Article 12 of the Directive.
(31) - See point 46 of this Opinion.
(32) - With the exception of the legislation concerning the six classes which the Commission has accepted.
(33) - With the exception of installations for the slaughter of animals in the Canary Islands and in Castile and Leon.
(34) - See, for example, Case C-131/88 Commission v Germany [1991] ECR I-825.
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