European Commission, v Italian Republic [2012] EUECJ C-68/11 (19 December 2012)

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(Failure of a Member State to fulfil obligations – Environment – Directive 1999/30/EC – Pollution control – Limit values for concentrations of PM10 in ambient air)

European Commission, represented by A. Alcover San Pedro and S. Mortoni, acting as Agents, with an address for service in Luxembourg,

Italian Republic, represented by G. Palmieri, acting as Agent, and by S. Varone, avvocato dello Stato, with an address for service in Luxembourg,

1 By its application, the European Commission requests the Court to declare that, by having failed to ensure, for a number of consecutive years, that in numerous zones and agglomerations in Italian territory concentrations of PM₁₀ in ambient air do not exceed the limit values set in Article 5(1) of Council Directive 1999/30/EC of 22 April 1999 relating to limit values for sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter and lead in ambient air (OJ 1999 L 163, p. 41), now Article 13(1) of Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe (OJ 2008 L 152, p. 1), the Italian Republic has failed to fulfil its obligations under Article 5 of Directive 1999/30.

2 Under Article 11 of Council Directive 96/62/EC of 27 September 1996 on ambient air quality assessment and management (OJ 1996 L 296, p. 55), Member States are required to submit to the Commission annual reports on compliance with the limit values applicable to PM₁₀concentrations.

‘1. Member States shall draw up a list of zones and agglomerations in which the levels of one or more pollutants are higher than the limit value plus the margin of tolerance.

3. In the zones and agglomerations referred to in paragraph 1, Member States shall take measures to ensure that a plan or programme is prepared or implemented for attaining the limit value within the specific time limit.

The said plan or programme, which must be made available to the public, shall incorporate at least the information listed in Annex IV.

4. In the zones and agglomerations referred to in paragraph 1, where the level of more than one pollutant is higher than the limit values, Member States shall provide an integrated plan covering all the pollutants concerned.

4 PM₁₀is defined in Article 2(11) of Directive 1999/30 as being particulate matter which passes through a size-selective inlet with a 50% efficiency cut-off at 10μm aerodynamic diameter.

‘Member States shall take the measures necessary to ensure that concentrations of PM₁₀in ambient air, as assessed in accordance with Article 7, do not exceed the limit values laid down in Section I of Annex III as from the dates specified therein.

‘Where the limit values for PM₁₀ laid down in Section I of Annex III are exceeded owing to concentrations of PM₁₀ in ambient air due to natural events which result in concentrations significantly in excess of normal background levels from natural sources, Member States shall inform the Commission in accordance with Article 11(1) of Directive 96/62/EC, providing the necessary justification to demonstrate that such exceedances are due to natural events. In such cases, Member States shall be obliged to implement action plans in accordance with Article 8(3) of Directive 96/62/EC only where the limit values laid down in Section I of Annex III are exceeded owing to causes other than natural events.’

7 In order to ensure the protection of human health, Annex III to the directive sets two types of limits for PM₁₀ whilst distinguishing two stages, each of which is itself divided into two periods. In relation to the periods of stage 1, which runs from 1 January 2005 to 31 December 2009, on the one hand the daily value of 50 μg/m³ must not be exceeded more than 35 times per calendar year and, on the other, the annual value not to be exceeded is 40 μg/m³. In relation to the periods of stage 2, which runs from 1 January 2010, on the one hand the daily value not to be exceeded more than 7 times per calendar year is 50 μg/m³ and, on the other hand, the annual limit value is 20 μg/m³.

8 For the purposes of the assessment of concentrations of PM₁₀provided for in Article 7 of Directive 1999/30, it is necessary to draw a distinction between a ‘zone’ and an ‘agglomeration’.

9 Under Article 2(8) of Directive 1999/30, ‘zone’ means ‘part of their territory delimited by the Member States’.

10 Article 2(9) of the directive defines an agglomeration as ‘a zone with a population concentration in excess of 250 000 inhabitants or, where the population concentration is 250 000 inhabitants or less, a population density per km² which for the Member States justifies the need for ambient air quality to be assessed and managed’.

11 Under Article 12 of Directive 1999/30, the Member States had to bring into force the laws, regulations and administrative provisions necessary to comply with the directive by 19 July 2001.

12 Directive 2008/50, which entered into force on 11 June 2008 repealed, by Article 31, Directives 96/62 and 1999/30 with effect from 11 June 2010, without prejudice to the Member States’ obligations as regards the time-limits for transposition and application of those directives.

13 Article 13 of Directive 2008/50, entitled ‘Limit values and alert thresholds for the protection of human health’, provides in paragraph 1:

‘Member States shall ensure that, throughout their zones and agglomerations, levels of sulphur dioxide, PM₁₀, lead, and carbon monoxide in ambient air do not exceed the limit values laid down in Annex XI.

14 It should be noted that Annex XI to Directive 2008/50 did not amend the limit values set for PM₁₀in respect of stage 1 by Annex III to Directive 1999/30.

15 However, in Article 22, Directive 2008/50 lays down rules concerning postponement of the deadlines for attaining the limit values applicable to concentrations of PM₁₀and, in particular, sets the conditions for exemption from the requirement to apply these values.

‘1. Where, in a given zone or agglomeration, conformity with the limit values for nitrogen dioxide or benzene cannot be achieved by the deadlines specified in Annex XI, a Member State may postpone those deadlines by a maximum of five years for that particular zone or agglomeration, on condition that an air quality plan is established in accordance with Article 23 for the zone or agglomeration to which the postponement would apply; such air quality plan shall be supplemented by the information listed in Section B of Annex XV related to the pollutants concerned and shall demonstrate how conformity will be achieved with the limit values before the new deadline.

2. Where, in a given zone or agglomeration, conformity with the limit values for PM₁₀ as specified in Annex XI cannot be achieved because of site-specific dispersion characteristics, adverse climatic conditions or transboundary contributions, a Member State shall be exempt from the obligation to apply those limit values until 11 June 2011 provided that the conditions laid down in paragraph 1 are fulfilled and that the Member State shows that all appropriate measures have been taken at national, regional and local level to meet the deadlines.

4. Member States shall notify the Commission where, in their view, paragraphs 1 or 2 are applicable, and shall communicate the air quality plan referred to in paragraph 1 including all relevant information necessary for the Commission to assess whether or not the relevant conditions are satisfied. In its assessment, the Commission shall take into account estimated effects on ambient air quality in the Member States, at present and in the future, of measures that have been taken by the Member States as well as estimated effects on ambient air quality of current Community measures and planned Community measures to be proposed by the Commission.

Where the Commission has raised no objections within nine months of receipt of that notification, the relevant conditions for the application of paragraphs 1 or 2 shall be deemed to be satisfied.

17 In accordance with Article 11 of Directive 96/62, the Italian Republic submitted to the Commission reports concerning compliance with the limit values applicable to concentrations of PM₁₀in ambient air for the years 2005 to 2007.

18 On analysing those reports, the Commission found that the limit values, set out in Section I of Annex III to Directive 1999/30, had been exceeded over a long period in numerous zones in Italian territory.

19 By letter of 30 June 2008, the Commission informed the Italian Republic of its intention to set in motion the procedure provided for in Article 226 EC if it did not receive, by 31 October 2008 at the latest, a request for exemption under Article 22 of Directive 2008/50.

20 By letters of 3 and 16 October 2008, the Italian Republic informed the Commission of measures planned or decided upon by 14 regions and 2 autonomous provinces to avoid exceeding the limit values applicable to concentrations of PM₁₀in the zones within their jurisdiction.

21 Having not received, by 14 January 2009, any request for exemption from that Member State, the Commission considered that Article 22 of Directive 2008/50 could not apply.

22 Therefore, taking the view that the Italian Republic had failed to fulfil its obligations under Article 5(1) of Directive 1999/30, the Commission sent it a letter of formal notice on 2 February 2009. Annexed thereto was a list of 55 Italian zones and agglomerations in which the daily and/or annual limits applicable to concentrations of PM₁₀had been exceeded during the years 2006 and 2007.

23 By letters of 1 and 30 April, 22 October and 11 November 2009, the Italian Republic replied to the Commission that it had sent to it, on 27 January and 5 May 2009, two requests for exemption under Article 22 of Directive 2008/50 relating, first, to 67 zones situated in 12 regions and two autonomous provinces and, second, to 12 zones situated in three other regions.

24 After analysing the two requests for exemption, the Commission adopted two decisions concerning the requests on 28 September 2009 and 1 February 2010 respectively.

25 In its decision of 28 September 2009, the Commission raised objections to the request submitted by the Italian Republic on 27 January 2009 in respect of 62 of the 67 zones listed by the Italian Republic, situated in the regions of Emilia Romagna, Friuli-Venezia Giulia, Lazio, Liguria, Lombardy, Marche, Umbria, Piedmont, Tuscany and Veneto and in the autonomous province of Trento.

26 In its decision of 1 February 2010, the Commission raised objections to the request submitted by the Italian Republic on 5 May 2009 in respect of 11 of the 12 zones listed by the Italian Republic, situated in the regions of Campania, Apulia and Sicily.

27 Subsequently, the Italian Republic did not put forward a new request for exemption under Article 22 of Directive 2008/50.

28 Since the Commission took the view that the Italian Republic had exceeded the limit values applicable to concentrations of PM₁₀in ambient air for a number of consecutive years, in numerous zones in Italian territory, on 7 May 2010 it issued a reasoned opinion in which it concluded that the Italian Republic had failed to fulfil its obligations under Article 5(1) of Directive 1999/30. Accordingly, the Commission called upon that Member State to take the measures necessary to comply with its obligations within a time-limit of two months from receipt of the reasoned opinion.

29 In its reply of 6 July 2010, the Italian Republic relied on the development of a national strategy, which was to result in the adoption of a set of legislative and regulatory measures, at national level, and in guidelines for the sectors primarily responsible for PM₁₀emissions and for pollutants capable of being transformed into PM₁₀. Furthermore the Italian Republic requested a meeting with the Commission to discuss the planned legislative and regulatory measures. That meeting took place in Brussels (Belgium) on 26 July 2010.

30 By letter of 25 August 2010, the Italian Republic conceded that, on expiry of the time-limit given to reply to the reasoned opinion, the limit values applicable to concentrations of PM₁₀in ambient air continued to be exceeded in numerous Italian zones and agglomerations. The Italian Republic sent to the Commission other information relating to the national measures which were to be adopted in autumn 2010 and communicated before November 2010 together with an impact assessment concerning the zones and agglomerations in which those limit values were still being exceeded, with a view to benefiting from an exemption under Article 22 of Directive 2008/50.

31 Thereafter, the Commission was not informed of the adoption of those national measures. Not did it receive an impact assessment concerning the zones and agglomerations in question or a new request for exemption under Article 22 of Directive 2008/50.

33 In its application, the Commission claims that the reports submitted under Article 11 of Directive 96/62 by the Italian Republic for the year 2005 and the following years show that the limit values applicable to concentrations of PM₁₀in ambient air had been exceeded for a long period and in numerous zones in Italian territory.

34 Furthermore, according to the information forwarded by that Member State in relation to the year 2009, those limit values continue to be exceeded in 70 zones situated in the regions of Campania, Emilia-Romagna, Friuli-Venezia Giulia, Lazio, Liguria, Lombardy, Marche, Umbria, Piedmont, Apulia, Sicily, Tuscany and Veneto and in the autonomous province of Trento.

35 The Italian Republic has not adopted the measures necessary to ensure compliance with the limit values applicable to concentrations of PM₁₀and has not submitted a new request for exemption under Article 22 of Directive 2008/50.

36 The Italian Republic observes that the PM₁₀emissions come from man-made sources, such as heating, and natural sources, like volcanoes, as well as from chemical reactions occurring in the atmosphere between ‘precursor’ pollutants. Concentrations of PM₁₀in ambient air are also largely influenced by meteorological conditions and by the extent of the rising of particulate matter deposited on the ground.

37 Since exceeding of the limit values applicable to concentrations of PM₁₀had been recorded since 2001, the Italian regions adopted the plans referred to in Article 8 of Directive 96/62 to reduce emissions of that particulate matter. Those plans applied principally to the transport sectors. Measures were gradually adopted from 2006 concerning the civil, agriculture and livestock sectors.

38 At national level, the relevant authorities have also taken measures in the civil, industrial, agricultural and transport sectors to reduce the concentrations of PM₁₀in ambient air.

39 The Italian Republic states that all of those steps led to a marked improvement in air quality between the years 1990 and 2009, with a decrease in the number of days in which the daily limit value for PM₁₀was exceeded. However, that improvement was not sufficient to ensure compliance with the limit values applicable to concentrations of PM₁₀within the given time-limit.

40 According to the Italian Republic, that objective was impossible to achieve. In order to do so, it would have been necessary to adopt drastic economic and social measures and infringe fundamental rights and freedoms such as the free movement of goods and persons, private economic initiative and the right of citizens to public utility services.

41 The Italian Republic considers that there are at least five reasons why the limit values applicable to concentrations of PM₁₀were not complied with within the given time-limit, namely, (i) the complexity of the process of PM₁₀formation, (ii) the impact of the weather on concentrations of PM₁₀in the atmosphere, (iii) insufficient technical knowledge of the process of PM₁₀formation which led to the imposition of time-limits which were too short for compliance with those limit values, (iv) the fact that the various European Union policies to reduce PM₁₀precursors did not produce the results expected and (v) the absence of a link between European Union policy concerning air quality and, inter alia, that aiming at reducing greenhouse gas emissions.

42 In its reply, the Commission observes that, under Directives 96/62, 1999/30 and 2008/50, it can only rely, in supervising compliance with the limit values applicable to concentrations of PM₁₀, on the information given by the Member State concerned, which determines the zones for measuring PM₁₀concentrations and takes on responsibility for carrying out those measurements. In those circumstances, the fact that those limit values had been exceeded for a number of consecutive years, in numerous zones, would have been well known to the Italian Republic.

43 As regards the argument concerning the existence of general reasons which are said not to have allowed the Italian Republic to comply with the limit values applicable to concentrations of PM₁₀in the time-limit given, the Commission notes that Article 22 of Directive 2008/50 provides, under certain conditions, for an exemption from the requirement to apply those limit values. However, the Italian Republic did not submit a new request for exemption following the objections raised by the Commission in its decisions of 28 September 2009 and 1 February 2010.

44 Furthermore, in its decision of 28 September 2009, the Commission stated that the argument concerning PM₁₀emissions at global and continental level could only be taken into account in certain specific situations and not generally. As regards the Po basin it pointed out that the ‘estimated contribution of transboundary pollution in the Po basin cannot be regarded as being representative because of the specific geographical situation of that region, since it is surrounded by mountains and the sea. The Commission finds that transboundary contributions have, in any event, a limited importance in that zone’.

45 Similarly, in its decisions of 28 September 2009 and 1 February 2010, the Commission pointed out the lack of information furnished by the Italian Republic, under Article 20 of Directive 2008/50, as to the contribution of natural sources to the exceeding of the limit values applicable to concentrations of PM₁₀in the zones concerned. In addition, although the Italian Republic submitted several regional plans to the Commission, it never submitted a national air quality plan.

46 As regards the argument concerning the obligation to adopt drastic economic and social measures and infringe fundamental rights, the Commission states that no Member State brought an action for annulment of Directives 1999/30 and 2008/50.

47 The Commission adds that the Italian Republic concedes, in its defence, that the limit values applicable to concentrations of PM₁₀continue not to be complied with and that that situation will not be resolved in the short or medium term. The Commission deduces therefrom that the exceeding of those limit values has a constant and systemic character.

48 In those circumstances, if the Court limited itself to finding a breach of obligations for the years 2005 to 2007, that judgment would have no practical effect. Since the breach of obligations continues, the Commission would be required to bring a new action for the years 2008 to 2010, and so on. Therefore, the Commission requests the Court to rule on the present situation as well, since the action concerns continued compliance with Directives 1999/30 and 2008/50.

49 It should be noted at the outset that, even though the Italian Republic has not put forward a plea that this action is inadmissible, the Court may of its own motion examine whether the conditions laid down in Article 258 TFEU for bringing an action for failure to fulfil obligations are satisfied (see, inter alia, Case C-362/90 Commission v Italy [1992] ECR I-2353, paragraph 8; judgment of 26 January 2012 in Case C-185/11 Commission v Slovenia, paragraph 28; and Case C-34/11 Commission v Portugal [2012] ECR I-0000, paragraph 42).

50 From that point of view, it should be determined whether the reasoned opinion and the action set out the complaints coherently and precisely in order that the Court may appreciate exactly the extent of the alleged infringement of European Union law, a condition which is necessary in order to enable the Court to determine whether there has been a breach of obligations as alleged (see, to that effect, Case C-199/04 Commission v United Kingdom [2007] ECR I-1221, paragraphs 20 and 21, and Commission v Portugal, paragraph 43).

51 Indeed, as follows in particular from Article 38(1)(c) of the Rules of Procedure of the Court of Justice in the version in force at the date of commencement of the action and from the case-law relating to that provision, the application initiating proceedings must state the subject-matter of the dispute and a summary of the pleas in law on which the application is based and that statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application. It is therefore necessary for the essential points of law and fact on which a case is based to be indicated coherently and intelligibly in the application itself and for the form of order sought to be set out unambiguously so that the Court does not rule ultra petita or indeed fail to rule on a claim (see Commission v Portugal, paragraph 44 and the case-law cited).

52 In the present case, the Commission does not specify, either in the form of order sought in the application or in the grounds thereof, the years for which the breach of obligations is alleged. It merely states that the Italian Republic exceeded the limit values applicable to concentrations of PM₁₀‘for a number of consecutive years’. It alleges that there is a current breach of obligations and that the Court’s decision must apply to the present and not the past, without specifying the period referred to.

53 In those circumstances, it must be stated that the absence of an indispensable element from the content of the application initiating proceedings, such as the period during which the Italian Republic, according to the Commission’s assertions, has infringed European Union law, does not satisfy the requirements of coherence, clarity and precision (see, to that effect, Commission v Portugal, paragraph 47).

54 In addition, the Commission does not set out the exact period concerned by the alleged breach of obligations and fails, moreover, to provide pertinent evidence while laconically stating that it has no legal interest in this case in seeking from the Court a ruling on past facts given that it gains no advantage from a judgment making a finding in relation to a past situation. Therefore, the Commission not only manifestly fails to have regard to the obligations, both for the Court and for itself, resulting from the case-law cited at paragraphs 50 and 51 of this judgment, but also fails to put the Court in a position to rule on these infringement proceedings.

55 It should however be noted that the verification of the annual reports submitted by the Italian Republic relating to the years 2005 to 2007 showed that the limit values applicable to concentrations of PM₁₀had been exceeded in a number of zones and agglomerations. On the basis of these reports, the Commission considered that the Italian Republic had not complied with the obligations laid down in Article 5(1) of Directive 1999/30 in that, in 55 Italian zones and agglomerations, listed in the annex to the letter of formal notice, the daily and/or annual limit values applicable to concentrations of PM₁₀ had been exceeded during the years 2006 and 2007.

56 It can be deduced from that information that the breach of the obligations imposed by Article 5(1) of Directive 1999/30, on any view, covers the period from 2006 to 2007 and concerns 55 Italian zones and agglomerations.

57 In those circumstances, these infringement proceedings, within the limits thus defined, may be declared admissible. On the other hand, in so far as it relates to 2005 and the period following 2007, the action must be dismissed as inadmissible.

58 In relation to the merits of this action, it should be noted that the Italian Republic admits, in its observations, that the limit values applicable to concentrations of PM₁₀in ambient air were exceeded within the limits stated at paragraph 56 of this judgment.

59 The Italian Republic adds that those limit values could not be complied with within the time-limit laid down by Directive 1999/30 for at least five reasons, listed at paragraph 41 of this judgment. In those circumstances, ensuring compliance with those limit values would have involved the adoption of drastic economic and social measures and the infringement of fundamental rights and freedoms such as the free movement of goods and persons, private economic initiative and the right of citizens to public utility services.

60 In that regard, it should be noted that, unless a directive has been amended by the European Union legislature for the purpose of extending the time-limits prescribed for implementation, the Member States are required to comply with the time-limits originally laid down.

61 Furthermore, it must be stated that the Italian Republic does not claim to have requested, in particular, application of Article 5(4) of Directive 1999/30, which concerns the situation where the limit values applicable to concentrations of PM₁₀in ambient air are exceeded due to natural events that result in concentrations significantly in excess of normal background levels from natural sources.

62 The procedure provided for in Article 258 TFEU presupposes an objective finding that a Member State has failed to fulfil its obligations under the FEU Treaty or secondary legislation (see Case 301/81 Commission v Belgium [1983] ECR 467, paragraph 8, and Case C-297/08 Commission v Italy [2010] ECR I-1749, paragraph 81).

63 Where such a finding has been made, as in the present case, it is irrelevant whether the failure to fulfil obligations is the result of intention or negligence on the part of the Member State responsible, or of technical difficulties encountered by it (Case C-71/97 Commission v Spain [1998] ECR I-5991, paragraph 15, and Commission v Italy, paragraph 82).

64 In any event, a Member State which encounters temporarily insuperable difficulties preventing it from complying with its obligations under European Union law may plead force majeure only for the period necessary in order to resolve those difficulties (see, to that effect, Case C-1/00 Commission v France [2001] ECR I-9989, paragraph 131).

65 However, in the present case, the arguments put forward by the Italian Republic are too general and vague to be able to constitute a case of force majeure justifying non-compliance with the limit values applicable to concentrations of PM₁₀in the 55 Italian zones and agglomerations mentioned by the Commission.

66 Consequently, the action should be upheld within the limits referred to at paragraph 56 of this judgment.

67 Having regard to the preceding considerations, it must be held that, by having failed to ensure that, for the years 2006 and 2007, concentrations of PM₁₀in ambient air did not exceed the limit values set in Article 5(1) of Directive 1999/30 in the 55 Italian zones and agglomerations referred to in the Commission’s letter of formal notice of 2 February 2009, the Italian Republic has failed to fulfil its obligations under that provision.

68 Under Article 138(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under the first sentence of Article 138(3), the parties are to bear their own costs where each party succeeds on some and fails on other heads.

69 In the present case, account should be taken of the fact that the Commission’s complaint in respect of non-compliance with the obligations resulting from Article 5 of Directive 1999/30, now Article 13 of Directive 2008/50, has been declared inadmissible so far as concerns the year 2005 and the period following 2007.

70 Accordingly, the Commission and the Italian Republic should be ordered to bear their own costs.

1. Declares that, by having failed to ensure that, for the years 2006 and 2007, concentrations of PM₁₀in ambient air did not exceed the limit values set in Article 5(1) of Council Directive 1999/30/EC of 22 April 1999 relating to limit values for sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter and lead in ambient air in the 55 Italian zones and agglomerations referred to in the European Commission’s letter of formal notice of 2 February 2009, the Italian Republic has failed to fulfil its obligations under that provision;

3. Orders the European Commission and the Italian Republic to bear their own costs.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> European Commission, v Italian Republic [2012] EUECJ C-68/11 (19 December 2012) URL: http://www.bailii.org/eu/cases/EUECJ/2012/C6811.html Cite as: EU:C:2012:815, ECLI:EU:C:2012:815, [2012] EUECJ C-68/11

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