(Failure of a Member State to fulfil obligations– Environment– Directive 2002/49

Provisional text

JUDGMENT OF THE COURT (Eighth Chamber)

13January 2022(*)

(Failure of a Member State to fulfil obligations– Environment– Directive 2002/49/EC– Assessment and management of environmental noise– Major roads and major railways– Article8(2)– Action plans– Article10(2)– AnnexVI– Summaries of action plans– Failure to communicate to the Commission within the prescribed period)

In Case C‑683/20,

ACTION for failure to fulfil obligations under Article258 TFEU, brought on 17December 2020,

European Commission, represented by R.Lindenthal and M.Noll-Ehlers, acting as Agents,

applicant,

v

Slovak Republic, represented by B.Ricziová, acting as Agent,

defendant,

THE COURT (Eighth Chamber),

composed of J.Passer (Rapporteur), President of the Seventh Chamber, acting as President of the Eighth Chamber, F.Biltgen and N.Wahl, Judges,

Advocate General: P.Pikamäe,

Registrar: A.Calot Escobar,

having regard to the written procedure,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1By its application, the European Commission asks the Court to declare that, by failing to draw up action plans and by not communicating to the Commission summaries of action plans for the major roads and major railways referred to in the annex to this judgment, the Slovak Republic has failed to fulfil its obligations under Article8(2) and under Article10(2) of Directive 2002/49/EC of the European Parliament and of the Council of 25June 2002 relating to the assessment and management of environmental noise (OJ 2002 L189, p.12), read in conjunction with AnnexVI thereto.

Legal context

2Article3 of Directive 2002/49, titled ‘Definitions’, states as follows:

‘For the purposes of this Directive:

…

(n)“major road” shall mean a regional, national or international road, designated by the Member State, which has more than three million vehicle passages a year;

(o)“major railway” shall mean a railway, designated by the Member State, which has more than 30000 train passages per year;

…

(t)“action plans” shall mean plans designed to manage noise issues and effects, including noise reduction if necessary;

…’

3Article8 of that directive, entitled ‘Action plans’, provides as follows:

‘…

2.Member States shall ensure that, no later than 18July 2013, the competent authorities have drawn up action plans notably to address priorities which may be identified by the exceeding of any relevant limit value or by other criteria chosen by the Member States for the agglomerations and for the major roads as well as the major railways within their territories.

…

5.The action plans shall be reviewed, and revised if necessary, when a major development occurs affecting the existing noise situation, and at least every five years after the date of their approval.

…

7.Member States shall ensure that the public is consulted about proposals for action plans, given early and effective opportunities to participate in the preparation and review of the action plans, that the results of that participation are taken into account and that the public is informed on the decisions taken. Reasonable time-frames shall be provided allowing sufficient time for each stage of public participation.

If the obligation to carry out a public participation procedure arises simultaneously from this Directive and any other [EU] legislation, Member States may provide for joint procedures in order to avoid duplication.’

4Article10 of that directive, entitled ‘Collection and publication of data by Member States and the Commission’, provides as follows, in paragraph2 thereof:

‘The Member States shall ensure that the information from strategic noise maps and summaries of the action plans as referred to in AnnexVI are sent to the Commission within six months of the dates laid down in Articles7 and 8 respectively.’

5AnnexV to that directive lays down the minimum requirements for action plans.

6AnnexVI to that directive sets out the data to be sent to the Commission, including, inter alia, for major roads, major railways and major airports ‘a summary of the action plan covering all the important aspects referred to in AnnexV, not exceeding ten pages in length’.

Pre-litigation procedure

7On 25June 2010, the Slovak authorities communicated to the Commission, by means of the Reportnet electronic portal of the European Environmental Information and Observation Network (Eionet), a list of agglomerations, major roads, major railways and major airports falling within the scope of Directive 2002/49. On 16January 2014, it updated that list as far as the major railways were concerned.

8On 27March 2015, following an initial exchange of letters, the Commission’s services sent the Slovak authorities, in the context of EU Pilot procedure 7453/15/ENVI, a request concerning the implementation of Directive 2002/49.

9On 26May 2015, the Slovak authorities replied to that request and, on 24July 2015, updated the data relating to agglomerations and major roads.

10On 29April 2016, the Commission sent the Slovak Republic a letter of formal notice in which it found several failures by that Member State to fulfil its obligations under Directive 2002/49, in particular the obligation laid down in Article8(2) to draw up action plans, as well as that, provided for in Article10(2), read in conjunction with AnnexesV and VI to that directive, to send it summaries of those action plans.

11By letter of 17June 2016 the Slovak Republic replied to that letter of formal notice.

12On 15June 2017, after examining that reply and the information communicated subsequently to that reply, the Commission sent the Slovak Republic a reasoned opinion. In that opinion, it found, inter alia, that that Member State had not drawn up action plans for 462 major roads and 16 major railways, in breach of Article8(2) and (4) of Directive 2002/49, read in conjunction with AnnexV thereto, and had not sent, in respect of those major roads and major railways, the summaries of the action plans, in breach of Article10(2) of that directive, read in conjunction with AnnexesV and VI thereto. The Commission set the Slovak Republic a deadline of two months from receipt of that opinion within which to adopt the measures necessary to put an end to those infringements.

13By letter of 24July 2017, the Slovak Republic stated that it had not been able to comply fully and in due time with the obligations arising under Directive 2002/49 because the road infrastructure managers and railway operators had failed to comply with their legal obligations within the prescribed periods. That Member State also informed the Commission that 17 action plans concerning major roads were in the process of being prepared.

14On 21August and 10September 2020, the Slovak authorities sent new information to the Eionet network concerning the major roads and major railways, respectively.

15Taking the view that the Slovak Republic had failed to fulfil its obligations under Article8(2) and under Article10(2) of Directive 2002/49, read in conjunction with AnnexVI thereto, the Commission decided to bring the present action.

The action

Arguments of the parties

16While acknowledging that the Slovak Republic has made some progress in the implementation of Directive 2002/49 since the initiation of the proceedings, the Commission claims that that Member State has failed to fulfil its obligation to send it summaries of the action plans in respect of 445 major roads outside agglomerations and 16 major railways outside agglomerations, as provided for in Article10(2) of Directive 2002/49, read in conjunction with AnnexVI thereto. Given the absence of any information to the contrary, the Commission thus infers that the Slovak Republic has not drawn up action plans for those roads and railways and has therefore failed to fulfil its obligation under Article8(2) of that directive.

17The Slovak Republic concedes that it fulfilled late its obligations under Article8(2) and Article10(2) of Directive 2002/49. It nevertheless considers that the present action has become devoid of purpose.

18It claims that, having sent to the Commission, on 10September 2020, a document entitled ‘Action plan for protection against noise from certain major railways managed by the Slovak national railway company (ŽSR) in operation in 2011– Summary’, dating from July 2013, and, on 31December 2020, a document entitled ‘Action plan for protection against noise from certain major roads managed by the Slovak Road Administration (SSC) on the basis of the situation in 2011– Summary’, dating from November 2020, none of the alleged failures to fulfil obligations remain applicable.

19In its reply, the Commission disputes the relevance of those documents. It submits that those documents refer to public consultations carried out in 2020. Since public consultations must, in accordance with Article8(7) of Directive 2002/49, precede the adoption of action plans, those documents cannot therefore relate to action plans covering the period from 2013 to 2018. They are probably recent documents relating to a past situation. It follows from a systematic interpretation of the provisions of Directive 2002/49 that an action plan must be adopted in good time to cover a future period. In particular, it follows from the system of obligations established by that directive, in particular Article8(5) thereof, that, after five years at the latest, action plans are to be reviewed and, if necessary, revised. Consequently, the adoption in 2020 of the action plan which should have been drawn up in 2013 cannot lead to compliance with Directive 2002/49. Were it possible to adopt action plans after the expiry of the period to which they relate, Directive 2002/49 would be rendered redundant.

20The Commission adds that, in any event, the issue of whether the Slovak Republic fulfilled its obligations under Article8(2) and Article10(2) of Directive 2002/49 must be assessed by reference to the situation prevailing at the end of the period laid down in the reasoned opinion, in the present case, on 15August 2017. It is common ground that, on that date, the Slovak Republic had yet to draw up action plans for 445 major roads and 16 major railways.

21The Slovak Republic rejects the Commission’s line of argument, which it submits is illogical and confused. It maintains that it follows from Directive 2002/49 that the action plans which that Member State was required to draw up for 16 major railways and 445 major roads before 18July 2013 had to rely on data from 2011 and to include the measures for the years 2013 to 2018. The Slovak Republic claims that it fulfilled that obligation a posteriori. The requirements set out by the Commission at the reply stage amount, in practice, to the Slovak Republic being obliged to refrain from endeavouring, if only a posteriori, to fulfil the obligation laid down in Article8(2) of Directive 2002/49 and referred to in the present action, while requiring it to seek to fulfil another obligation, namely that laid down in Article8(5) of Directive 2002/49– an obligation in respect of which no infringement proceedings have been brought against it. In other words, the Commission’s arguments mean that if a Member State has not fulfilled its obligations within the period laid down by that directive, then it will never be able to do so.

22In the event that the Commission alleges, in the reply, that the Slovak Republic failed to fulfil the obligation to carry out in good time a public consultation on the action plans, laid down in Article8(7) of Directive 2002/49, and the obligation to review or revise action plans at the latest five years after their date of approval, laid down in Article8(5) of Directive 2002/49, the Slovak Republic submits that those complaints are inadmissible.

23Furthermore, the Slovak Republic points out, first, that, even though the action plans which are the subject of the action were not finalised until 2020, that does not mean that no measure to combat environmental noise was adopted with regard to the major roads and major railways concerned after 2013. In that regard, it mentions several measures for the modernisation of railway lines or aimed directly at reducing noise sources.

24Next, the Slovak Republic contends that it is fully aware of its obligations under Article8(5) of Directive 2002/49. It states that, in accordance with that provision, it drew up and communicated to the Commission several summaries of action plans taking into account the situation in respect of 2016.

25Lastly, the Slovak Republic points out that it was far from being the only Member State to have delayed in fulfilling the obligations under Article8(2) and Article10(2) of Directive 2002/49.

Findings of the Court

26In accordance with the Court’s settled case-law, the issue whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion and the Court cannot take account of any subsequent changes (see judgment of 27January 2021, Commission v Austria (VAT– Travel agencies), C‑787/19, not published, EU:C:2021:72, paragraph34 and the case-law cited).

27In the present case, the Slovak Republic does not dispute that, on the expiry of the period laid down in the reasoned opinion, namely 15August 2017, it had not drawn up action plans for the major roads and major railways referred to in the annex to the present judgment, nor forwarded to the Commission summaries of those action plans.

28As regards the documents entitled ‘Action plan for protection against noise from certain major railways managed by the Slovak national railway company (ŽSR) in operation in 2011– Summary’ and ‘Action plan for protection against noise from certain major roads managed by the Slovak Road Administration (SSC) on the basis of the situation in 2011– Summary’, the Slovak Republic does not dispute that it communicated them to the Commission on 10September and 31December 2020, that is to say, after the expiry of the period laid down in the reasoned opinion. As regards the first of those two documents, it also states that the reference to 2013 (see paragraph18 above) was retained on that document, as it was initially to have been drawn up in 2013. However, it confirms that even that document was not finalised until 2020, after the public consultation.

29It follows that, in accordance with the case-law cited in paragraph26 above, those documents are irrelevant for the purposes of assessing the existence, at that date, of the alleged infringements.

30Furthermore, it must be noted that the Slovak Republic’s claim concerning the inadmissibility of some of the Commission’s arguments is based on a misreading of the Commission’s pleadings.

31As the Slovak Republic itself points out, the Commission does not ask the Court to find that there has been a failure to fulfil obligations other than those laid down in Article8(2) and Article10(2) of Directive 2002/49.

32In fact, the Commission referred to the obligations to revise the action plans and consult the public about proposals for action plans, laid down in Article8(5) and (7) of that directive, solely in the context of the documents referred to in paragraph28 above, in order to demonstrate, in particular, that those documents were adopted recently and, in any event, after the expiry of the period laid down in the reasoned opinion, a fact which is not disputed in the present proceedings by the Slovak Republic.

33In so far as the Slovak Republic points out that it was far from being the only Member State to have delayed in fulfilling the obligations arising under Article8(2) and Article10(2) of Directive 2002/49, suffice it to note that the Court has repeatedly held that a Member State cannot justify its failure to fulfil its obligations under the FEU Treaty by pointing to the fact that other Member States have also failed, and continue to fail, to fulfil their obligations (judgment of 18November 2010, Commission v Spain, C‑48/10, not published, EU:C:2010:704, paragraph33 and the case-law cited).

34Accordingly, the action must be upheld.

35In the light of all the foregoing considerations, it must be held that, by failing, first, to draw up action plans for the major roads and major railways referred to in the annex to this judgment and, secondly, by not communicating to the Commission summaries of those action plans, the Slovak Republic has failed to fulfil its obligations under Article8(2) and under Article10(2) of Directive 2002/49, read in conjunction with AnnexVI thereto, respectively.

Costs

36Under Article138(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. Since the Commission has applied for costs and the Slovak Republic has been unsuccessful, the latter must be ordered to pay the costs.

On those grounds, the Court (Eighth Chamber) hereby:

1.Declares that, by failing, first, to draw up action plans for the major roads and major railways referred to in the annex to this judgment, and, secondly, by not communicating to the European Commission summaries of those action plans, the Slovak Republic has failed to fulfil its obligations under Article8(2) and under Article10(2) of Directive 2002/49/EC of the European Parliament and of the Council of 25June 2002 relating to the assessment and management of environmental noise, read in conjunction with AnnexVI thereto, respectively;

2.Orders the Slovak Republic to pay the costs.

[Signatures]

Annex

Major roads

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1330SK_b_rd426

5570SK_b_rd427

5570SK_b_rd428

5570SK_b_rd429

5570SK_b_rd430

5580SK_b_rd431

1789SK_b_rd432

81330SK_b_rd433

81330SK_b_rd434

81330SK_b_rd435

81340SK_b_rd436

81340SK_b_rd437

81340SK_b_rd438

81340SK_b_rd439

81350SK_b_rd440

81350SK_b_rd441

81350SK_b_rd442

81360SK_b_rd443

81360SK_b_rd444

81360SK_b_rd445

Major railways

National identification numberUnique identification number

ŽSR-110SK_a_rl1

ŽSR-110SK_a_rl2

ŽSR-120SK_a_rl3

ŽSR-120SK_a_rl4

ŽSR-130SK_a_rl5

ŽSR-130SK_a_rl6

ŽSR-120SK_a_rl7

ŽSR-127SK_a_rl8

ŽSR-180SK_a_rl9

ŽSR-180SK_a_rl10

ŽSR-180SK_a_rl11

ŽSR-180SK_a_rl12

ŽSR-180SK_a_rl13

ŽSR-180SK_a_rl14

ŽSR-180SK_a_rl15

ŽSR-190SK_a_rl16

*Language of the case: Slovak.