Opinion of the Advocate-General
I - Introduction
1 In this case the Commission is seeking a declaration pursuant to Article 226 EC that, by failing to adopt and bring into force the laws, regulations and administrative provisions necessary to comply with 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 (1) (hereinafter `Directive 97/11/EC'), or at least failing to inform the Commission fully of these laws, regulations and administrative provisions, the Kingdom of Belgium has failed to fulfil its obligations under that directive.
2 Without disputing this accusation in principle, Belgium refers to the legislation - adopted both by the Federal Government and by the Brussels-Capital Region - which, in its view, suffices to transpose that directive within the respective areas of jurisdiction of these legal entities.
II - Legislative background
3 Directive 97/11/EC amends and adds to Council Directive 85/337/EEC (2) (hereinafter `Directive 85/337/EEC') to ensure that the latter is applied in an increasingly harmonised and efficient way. In particular, it introduces provisions requiring development consent for projects for which an environmental impact assessment is prescribed. It also amends the annexes to Directive 85/337/EEC by adding to the list of projects in Annex I for which an assessment is required and by clarifying the criteria by which Member States may decide whether the projects listed in Annex II must undergo an assessment of this kind.
4 The first subparagraph of Article 3(1) of Directive 97/11/EC requires the Member States to bring into force the laws, regulations and administrative provisions necessary for the transposition of the directive by 14 March 1999 at the latest. They are further required to inform the Commission thereof forthwith.
III - Pre-litigation procedure
5 By letter of 8 July 1999 the Belgian authorities forwarded to the Commission a decree of the Walloon Region of 11 March 1999 on environmental consent and amending the decree of 11 September 1985 on environmental impact assessment in the Walloon Region (hereinafter `decree of the Walloon Region of 11 March 1999'). (3)
6 Having received no further information on the national transposing measures from the Belgian Government and having at its disposal no other information in this regard, the Commission called on the Belgian Government by letter of 5 August 1999 to submit its observations within two months.
7 By letter of 27 October 1999 the Belgian Government forwarded to the Commission a regulation of the Council of the Brussels-Capital Region of 22 April 1999 identifying Class IA facilities pursuant to Article 4 of the regulation of 5 June 1997 on environmental consent (hereinafter `the regulation of the Council of the Region of 22 April 1999') (4) and the decree of the Government of the Brussels-Capital Region of 4 March 1999 identifying Class IB, II and III facilities (hereinafter `the decree of 4 March 1999'). (5)
8 With two letters dated 20 December 1999 the Belgian authorities forwarded to the Commission a draft royal decree concerning the protection of the public, employees and the environment against ionising radiation and the Law of 20 January 1999 on the protection of the marine environment in areas under Belgian sovereignty (6) (hereinafter `Law of 20 January 1999'), the provisions of that law being partly directed to the environmental impact assessment of certain projects, especially those on the continental shelf.
9 As the Commission did not receive any further information on the current situation regarding the transposition of Directive 97/11/EC, it sent to the Kingdom of Belgium a reasoned opinion within the meaning of Article 226 EC, in which it urged the Kingdom of Belgium to take the necessary measures within a period of two months.
10 With its written reply of 10 July 2000 the Belgian Government again forwarded the aforementioned (7) texts of the transposing measures of the Brussels-Capital Region, together with a table illustrating transposition in that region.
11 On 9 August 2000 the Belgian Government forwarded a copy of the draft of a transposing measure of the Walloon Government, commenting that it was expected to be adopted by the end of June 2001.
12 On 8 December 2000 the draft royal decree on the procedure for approving certain activities in marine areas under Belgian sovereignty was also forwarded. That decree (8) was adopted on 20 December 2000, as was a further royal decree laying down the rules on environmental impact assessment pursuant to the Law of 20 January 1999. (9) They were both received by the Commission on 8 February 2001.
13 Finally, by letter of 23 May 2001 the Belgian Government forwarded the drafts of ministerial orders approved by the Walloon Government at second reading implementing the decree of the Walloon Region of 11 March 1999.
14 As the Commission was of the opinion that Belgium had not done enough to transpose all the provisions of Directive 97/11/EC throughout its national territory, it brought the present action on 10 August 2001. It was registered at the Court of Justice on 14 August 2001.
15 The Commission claims that the Court should:
- declare that, by failing to adopt and bring into force the laws, regulations and administrative provisions necessary to comply with 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 (hereinafter `Directive 97/11/EC'), or at least failing to inform the Commission fully of those laws, regulations and administrative provisions, the Kingdom of Belgium has failed to fulfil its obligations under that directive;
- order the Kingdom of Belgium to pay the costs of the proceedings.
16 The Kingdom of Belgium contends that the Court should:
- dismiss the application in so far as it concerns the parts of Belgian national territory which fall within the jurisdiction of the federal authorities and the Brussels-Capital Region.
IV - Infringement of the Treaty
Submissions of the parties
17 The Commission submits that, although the Kingdom of Belgium has taken some measures, they are not enough for full transposition. The Kingdom of Belgium has, in any case, failed to inform the Commission of the necessary transposing measures.
18 The provisions implementing the decree of the Walloon Region of 11 March 1999 and the Law of 20 January 1999, which are necessary to bring the two measures into force, were not adopted within the prescribed period. The Belgian Government has itself admitted that further measures are necessary.
19 The Commission recalls that a Member State may not plead 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. It must therefore be declared that the infringement of the Treaty has occurred in the whole of the national territory of Belgium.
20 In its reply the Commission maintains that contention, but also acknowledges that the Royal Decree of 20 July 2001 concerning the protection of the public, employees and the environment against ionising radiation (hereinafter `the Royal Decree of 20 July 2001'), which was forwarded to the Commission on 9 October 2001, and thus after the action had been brought, has resulted in the complete transposition of Directive 97/11/EC at federal level. Nor does it dispute that it had been informed of the Brussels-Capital Region's transposing measures before the action was brought.
21 The Kingdom of Belgium asserts in its defence that the Government had completely transposed Directive 97/11/EC at federal level within the limits of its authority by means, on the one hand, of the aforementioned Law of 20 January 1999, which was forwarded to the Commission on 20 December 1999, and its two implementing regulations of 20 December 2000, which were forwarded to the Commission on 2 February 2001, and, on the other hand, of the Royal Decree of 20 July 2001.
22 Directive 97/11/EC has also been fully transposed in the Brussels-Capital Region by means of the abovementioned regulation of the Council of the Region of 22 April 1999 and the decree of the Government of the Region of 4 March 1999, also cited above. (10) The Kingdom of Belgium accuses the Commission of not specifying the provisions which it claims have not been transposed in the Brussels-Capital Region.
23 The Belgian Government then discusses the Flanders Region, which, it states, is not mentioned in the action. It points out that this region is preparing a decree for the transposition of Directive 97/11/EC and of Council Directive 96/82/EC (11) and Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment. (12) The Commission was informed of this work by letters of 21 March and 4 September 2001. The work had, however, been delayed by the belated publication of the Dutch-language version of Directive 2001/42/EC. The decree was likely to be published in the Moniteur belge in March 2002. The implementing regulations would be adopted in June 2002.
24 As regards the Walloon Region, the Belgian Government states that the adoption of the three regulations implementing the Decree of the Walloon Region of 11 March 1999, on which the entry into force of that decree depends, has been delayed by the complexity of the subject-matter, but was expected in late 2001.
Legal analysis
25 According to settled case-law of the Court of Justice, the question whether the Treaty has been infringed 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, and the Court cannot therefore take account of any subsequent changes. (13)
26 It should be noted that not all the measures necessary for the complete transposition of Directive 97/11/EC into national law had been adopted by the end of the period laid down in the reasoned opinion of 19 May 2000. Nor is this disputed by the Kingdom of Belgium.
27 The Kingdom of Belgium has not denied that the necessary transposing measures have not been adopted either in the Walloon Region or in the Flanders Region, or at least they had not been adopted by the end of the period laid down in the reasoned opinion. At federal level the royal decree required for the complete transposition of Directive 97/11/EC was not adopted until 20 July 2001 - and so, once again, after the abovementioned period had expired.
28 With regard to the transposing measures adopted by the Brussels-Capital Region, it should be pointed out that they were indeed adopted in good time, before the expiry of the relevant period mentioned above. Notwithstanding this, however, such measures are not capable - in the event of delay in or absence of the transposition of Directive 97/11/EC in other parts of the country - of limiting any infringement of the Treaty by the Kingdom of Belgium that might be found on account of belated or incomplete transposition of that directive. It should be remembered in this context that, following its judgment of 13 December 1991 in Case C-33/90, (14) the Court held, in accordance with settled case-law, (15) that `[T]he 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 169. The Court has consistently held that 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 be free to allocate areas of internal legal competence as it sees fit, the fact still remains that it alone is responsible towards the Community under Article 169 for compliance with obligations arising under Community law.'
29 What is certain, then, is that at the end of the two-month period laid down in the reasoned opinion the Kingdom of Belgium had not adopted all the measures necessary for the transposition of Directive 97/11/EC into national law. The Commission's application must therefore be regarded as well founded.
30 Under Article 69(2) of the Rules of Procedure of the Court the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. As the Kingdom of Belgium has been unsuccessful and the Commission has applied for costs, the Kingdom of Belgium should be ordered to pay the costs.
V - Conclusion
31 In my view the Court should therefore:
(1) Declare that, by failing to adopt and bring into force within the prescribed period the laws, regulations and administrative provisions necessary to comply with 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, (16) or at least failing to inform the Commission fully of those laws, regulations and administrative provisions, the Kingdom of Belgium has failed to fulfil its obligations under that directive;
(2) Order the Kingdom of Belgium to pay the costs.
(1) - OJ 1997 L 73, p. 5.
(2) - 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).
(3) - Moniteur belge, 8 June 1999.
(4) - Moniteur belge, 5 August 1999, p. 29209.
(5) - Moniteur belge, 7 August 1999, p. 29713.
(6) - Moniteur belge, 12 March 1999, Ed. 2, p. 8033.
(7) - See footnote 7 above.
(8) - Moniteur belge, 25 January 2001, p. 2104.
(9) - Moniteur belge, 25 January 2001, p. 2113.
(10) - See paragraph 7 above.
(11) - Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances (OJ 1996 L 10, p. 13).
(12) - OJ 2001 L 197, p. 30.
(13) - See, for example, the judgment in Case C-372/01 Commission v Luxembourg [2002] ECR I-0000, paragraph 7, with further references.
(14) - Commission v Italy [1991] ECR I-5987, paragraph 24.
(15) - See also, most recently, the judgment in Case C-423/00 Commission v Belgium [2002] ECR I-0000, paragraph 16: `... a Member State may not plead provisions, practices or situations in its internal legal order, including those resulting from its federal organisation, in order to justify a failure to comply with the obligations and time-limits laid down in a directive.'
(16) - OJ 1997 L 73, p. 5.
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