Corte di giustizia UE/2013

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 11 April 2013 ( * ) (Failure of a [OSCURATO:PERSONA] to fulfil obligations – Environment – [OSCURATO:PERSONA] 2008/1/EC – [OSCURATO:PERSONA] 5 – Integrated pollution prevention and control – Conditions governing the granting of permits for existing installations – Obligation to ensure that such installations operate in accordance with the requirements of that directive) [OSCURATO:PERSONA] C‑158/12, ACTION under [OSCURATO:PERSONA] 258 TFEU for failure to fulfil obligations, brought on 30 March 2012, [OSCURATO:PERSONA], represented by S. Petrova and K. Mifsud-Bonnici, acting as Agents, with an address for service in Luxembourg (Luxembourg), applicant, v [OSCURATO:PERSONA], represented by E. Creedon, acting as Agent, defendant, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of G. Arestis, President of the [OSCURATO:PERSONA], J.‑C. Bonichot and J.L. da [OSCURATO:PERSONA] (Rapporteur), [OSCURATO:PERSONA], [OSCURATO:PERSONA]: P. [OSCURATO:PERSONA], [OSCURATO:PERSONA]: A. [OSCURATO:PERSONA], having regard to the written procedure, having decided, after hearing the [OSCURATO:PERSONA], to proceed to judgment without an Opinion, gives the following [OSCURATO:PERSONA] 1 By its application, the [OSCURATO:PERSONA] asks the [OSCURATO:PERSONA] to declare that, by not issuing permits in accordance with Articles 6 and 8 of [OSCURATO:PERSONA] 2008/1/EC of the [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA] of 15 January 2008 concerning integrated pollution prevention and control (OJ 2008 L 24, p. 8; ‘the IPPC [OSCURATO:PERSONA]’) or, as appropriate, by not reconsidering and, where necessary, by not updating permit conditions, in respect of 13 existing pig-rearing and poultry-rearing installations, and by thereby failing to ensure that all existing installations operate in accordance with Articles 3, 7, 9, 10, 13, 14(a) and (b) and 15(2) of that directive by not later than 30 October 2007, [OSCURATO:PERSONA] has failed to fulfil its obligations under [OSCURATO:PERSONA] 5(1) of that directive. Legal context 2 As is apparent from recital 1 in the preamble to the IPPC [OSCURATO:PERSONA], [OSCURATO:PERSONA] 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control (OJ 1996 L 257, p. 26) was codified by the IPPC [OSCURATO:PERSONA], after being amended several times. 3 The purpose of [OSCURATO:PERSONA] 96/61 was to achieve integrated prevention and control of pollution arising from the industrial activities listed in Annex I thereto. 4 In accordance with [OSCURATO:PERSONA] 5(1) of [OSCURATO:PERSONA] 96/61, [OSCURATO:PERSONA] were required to take the necessary measures to ensure that the competent authorities would see to it, by means of permits issued in accordance with Articles 6 and 8 of that directive or, as appropriate, by reconsidering and, where necessary, by updating the conditions, that existing installations operate in accordance with the requirements of Articles 3, 7, 9, 10, 13, the first and second indents of [OSCURATO:PERSONA] 14, and [OSCURATO:PERSONA] 15(2) thereof not later than eight years after the date on which that directive was brought into effect, that is to say, by 30 October 2007. 5 According to recital 13 in the preamble to the IPPC [OSCURATO:PERSONA], some of the provisions adopted pursuant to that directive had to be applied to existing installations after 30 October 2007 and others had to be applied as from 30 October 1999. 6 [OSCURATO:PERSONA] 1 of the IPPC [OSCURATO:PERSONA] provides: ‘The purpose of this [OSCURATO:PERSONA] is to achieve integrated prevention and control of pollution arising from the activities listed in Annex I. It lays down measures designed to prevent or, where that is not practicable, to reduce emissions in the air, water and land from the abovementioned activities, including measures concerning waste, in order to achieve a high level of protection of the environment taken as a whole, without prejudice to [OSCURATO:PERSONA] 85/337/EEC and other relevant Community provisions.’ 7 [OSCURATO:PERSONA] 2 of the IPPC [OSCURATO:PERSONA], entitled ‘Definitions’, is worded as follows: ‘For the purposes of this [OSCURATO:PERSONA] the following definitions shall apply: … 4.      “existing installation” means an installation which on 30 October 1999, in accordance with legislation existing before that date, was in operation or was authorised or, in the view of the competent authority, was the subject of a full request for authorisation, provided that that installation was put into operation no later than 30 October 2000; ...’. 8 [OSCURATO:PERSONA] 5(1) of the IPPC [OSCURATO:PERSONA] is worded as follows: ‘[OSCURATO:PERSONA] shall take the necessary measures to ensure that the competent authorities see to it, by means of permits in accordance with Articles 6 and 8 or, as appropriate, by reconsidering and, where necessary, by updating the conditions, that existing installations operate in accordance with the requirements of Articles 3, 7, 9, 10 and 13, [OSCURATO:PERSONA] 14(a) and (b) and [OSCURATO:PERSONA] 15(2) not later than 30 October 2007, without prejudice to specific Community legislation.’ 9 Articles 3, 6, 7, 9, 10 and 13 to 15 of the IPPC [OSCURATO:PERSONA] establish the general principles applicable to the basic obligations of the operator and govern applications for permits, an integrated approach to issuing permits, conditions of the permit, best available techniques and environmental quality standards, the reconsideration and updating of permit conditions by the competent authority, compliance with those permit conditions, and access to information and public participation in the permit procedure. Background to the dispute and the pre-litigation procedure 10 Prior to the deadline of 30 October 2007, the [OSCURATO:PERSONA], at several meetings of the group of experts on integrated pollution prevention and control, drew the attention of all [OSCURATO:PERSONA] to the need to comply with that deadline set in [OSCURATO:PERSONA] 5(1) of the IPPC [OSCURATO:PERSONA] with respect to the authorisation and operation of existing installations. 11 By letter of 13 November 2007 the [OSCURATO:PERSONA] requested all the [OSCURATO:PERSONA] to provide it with information on the total number of existing installations and on the number of new, reconsidered and, where appropriate, updated permits for existing installations. 12 In their reply of 30 January 2008 the [OSCURATO:PERSONA] authorities indicated that, in relation to the pig-rearing sector, 71 of the 89 installations had permits that had not been brought into line with the requirements of the IPPC [OSCURATO:PERSONA]. In the poultry sector 122 installations had yet to submit an application for a permit. 13 By letter of formal notice of 27 November 2008 the [OSCURATO:PERSONA] called on [OSCURATO:PERSONA] to identify the name, sector and location of each of the existing installations for which a permit had been granted, and of those still operating without a permit. 14 [OSCURATO:PERSONA] authorities replied by letter of 29 January 2009, stating, inter alia, that the [OSCURATO:PERSONA] (‘EPA’) had drawn up a list of 41 installations – 27 poultry-rearing installations and 14 pig-rearing installations – that it considered might be operating above the threshold at which a permit was required and which therefore required such a permit. 15 After having received further information from [OSCURATO:PERSONA], and taking the view that 41 existing [OSCURATO:PERSONA] installations were still operating without a permit, in breach of [OSCURATO:PERSONA] 5(1) of the IPPC [OSCURATO:PERSONA], the [OSCURATO:PERSONA] sent a reasoned opinion to [OSCURATO:PERSONA] on 24 November 2010. 16 [OSCURATO:PERSONA] replied to the reasoned opinion by letter of 24 January 2011. It explained that, in respect of the 41 installations recorded by the EPA, some permits had already been issued and several applications for rearing permits had been submitted, and that it appeared, on examination, that other installations did not require permits. 17 Subsequently, the [OSCURATO:PERSONA] authorities regularly sent the [OSCURATO:PERSONA] new information on developments; the latest, updated on 12 January 2012, was sent to the [OSCURATO:PERSONA] by letter of 7 February 2012. 18 In the light of that information, the [OSCURATO:PERSONA] found that 13 pig- and poultry-rearing installations were continuing to operate in [OSCURATO:PERSONA] without valid permits, and consequently brought the present action. The action 19 [OSCURATO:PERSONA] claims that [OSCURATO:PERSONA] has infringed [OSCURATO:PERSONA] 5(1) of the IPPC [OSCURATO:PERSONA] in so far as 13 existing installations still do not have permits. [OSCURATO:PERSONA], [OSCURATO:PERSONA] has not taken any measures to prevent those 13 installations from operating without a valid permit within the terms of that provision. 20 In its defence, [OSCURATO:PERSONA] essentially confines itself to pointing out the efforts undertaken by the EPA to ensure that operators of all the intensive pig- and poultry-rearing installations concerned are informed of their legal obligation to obtain a permit as provided by the IPPC [OSCURATO:PERSONA]. 21 [OSCURATO:PERSONA] states that, as a result of those efforts, only 3 installations out of the 13 referred to in the [OSCURATO:PERSONA]’s application are still being assessed with a view to the issuing of permits under the IPPC [OSCURATO:PERSONA]. 22 As is apparent from [OSCURATO:PERSONA] 1 of the IPPC [OSCURATO:PERSONA], the [OSCURATO:PERSONA] legislature has imposed on the [OSCURATO:PERSONA] obligations which include those laid down in [OSCURATO:PERSONA] 5(1) of that directive, in order that a high level of protection of the environment, taken as a whole, might be achieved. It follows from this that it is only if the [OSCURATO:PERSONA] carry out the obligations imposed on them by that directive fully and in accordance with that directive that the objective of protection may be achieved (see, inter alia, judgment of 24 May 2012 in [OSCURATO:PERSONA] C‑352/11 [OSCURATO:PERSONA] v Austria , paragraph 11). 23 [OSCURATO:PERSONA], according to settled case-law, the question whether a [OSCURATO:PERSONA] has failed to fulfil its obligations must be determined by reference to the situation prevailing in that [OSCURATO:PERSONA] at the end of the period laid down in the reasoned opinion, and the [OSCURATO:PERSONA] cannot take account of any subsequent changes (see, inter alia, [OSCURATO:PERSONA] C‑286/12 [OSCURATO:PERSONA] v Hungary [2012] ECR I‑0000, paragraph 41). 24 In the present case, [OSCURATO:PERSONA] does not dispute that, at the end of the period prescribed in the reasoned opinion, the measures required in order to ensure that the installations concerned would be brought into line with the provisions referred to in [OSCURATO:PERSONA] 5 of the IPPC [OSCURATO:PERSONA], as well as the measures to ensure compliance with [OSCURATO:PERSONA] 5, had not been taken. 25 That being the case, the [OSCURATO:PERSONA]’s application must be granted. 26 Consequently, it must be held that, by not issuing permits in accordance with Articles 6 and 8 of the IPPC [OSCURATO:PERSONA] or, as appropriate, by not reconsidering and, where necessary, by not updating permit conditions, in respect of 13 existing pig-rearing and poultry-rearing installations, and by thereby failing to ensure that all existing installations operate in accordance with Articles 3, 7, 9, 10, 13, 14(a) and (b) and 15(2) of that directive by not later than 30 October 2007, [OSCURATO:PERSONA] has failed to fulfil its obligations under [OSCURATO:PERSONA] 5(1) of that directive. Costs 27 [OSCURATO:PERSONA] 138 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the [OSCURATO:PERSONA] has applied for [OSCURATO:PERSONA] to be ordered to pay the costs, and since the latter has been unsuccessful, [OSCURATO:PERSONA] must be ordered to pay the costs. On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby: 1. Declares that, by not issuing permits in accordance with Articles 6 and 8 of [OSCURATO:PERSONA] 2008/1/EC of the [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA] of 15 January 2008 concerning integrated pollution prevention and control or, as appropriate, by not reconsidering and, where necessary, by not updating permit conditions, in respect of 13 existing pig-rearing and poultry-rearing installations, and by thereby failing to ensure that all existing installations operate in accordance with Articles 3, 7, 9, 10, 13, 14(a) and (b) and 15(2) of that directive by not later than 30 October 2007, [OSCURATO:PERSONA] has failed to fulfil its obligations under [OSCURATO:PERSONA] 5(1) of that directive; 2. [OSCURATO:PERSONA] to pay the costs. [Signatures] * Language of the case: English.