OPINION OF MR LÉGER — CASE C-287/98

OPINION OF ADVOCATE GENERAL LÉGER delivered on 11 January 2000 *

1. The State of Luxembourg commenced domestic legislation is in compliance with a proceedings against the Linsters, the own­ Community directive that has not been ers in undivided shares of arable land in transposed. The Tribunal d'Arrondissement Luxembourg, in order to expropriate land de Luxembourg (District Court, Luxem­ from them in the public interest for the bourg), which has been called upon to construction of a section of motorway decide whether the Directive applies in the linking the south of the country to the case before it and to determine the condi­ German road network. tions under which it may apply, seeks in particular a ruling from the Court of Justice on whether it is necessary, in order to apply the Directive, for it first to be shown that it has direct effect or whether this is not necessary in order to review whether the 2. The Linsters object to the expropriation project complies with the Directive. and submit that the Grand-Ducal regula­ tion under which the route of the road link concerned was adopted is unlawful. They contend that adoption of that regulation was not preceded by an assessment of the environmental impact of the project in accordance with the provisions of Council Directive 85/337/EEC of 27 June 1985, 1 I — Relevant provisions and furthermore that the Directive was not fully transposed within the time-limit. 2

A — Directive 85/337

3. This is accordingly another case in which the question is raised as to whether 4. Article 1 of the Directive, which defines its subject-matter and scope, provides: * Original language: French. 1 — Directive on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40, hereinafter 'the Directive' or 'Directive 85/337'). 2 — This point is expressly made in the first question referred for a preliminary ruling by the national court. I would point out that in Case C-313/93 Commission v Luxembourg [1994] ECR I-1279 the Court of Justice held in proceedings under '1. This Directive shall apply to the assess­ Article 169 of the EC Treaty (now Article 226 EC) that the Grand Duchy of Luxembourg had failed to transpose ment of the environmental effects of those Directive 85/337 within the prescribed time-limit. public and private projects which are likely

I - 6920 LINSTER to have significant effects on the environ­ ment.

7. Construction of motorways, express roads (1)...

C) For the purposes of the Directive, 5. This Directive shall not apply to projects "express road" means a road which com­ the details of which are adopted by a plies with the definition in the European specific act of national legislation, since Agreement on main international traffic the objectives of this Directive, including arteries of 15 November 1975.' that of supplying information, are achieved through the legislative process.'

7. Articles 5 and 6 of the Directive lay down the rules applicable to projects which come within its scope with regard to 5. Article 4 sets out the projects subject to informing and consulting the public con­ the Directive. Article 4(1) provides that, cerned. They deal in particular with the subject to Article 2(3), 3 projects of the role of Member States in the communica­ classes listed in Annex I are to be made tion of information on the project which subject to an assessment in accordance with the developer is required to supply to the Articles 5 to 10. public, the detailed arrangements for such communication, the nature of the informa­ tion to be communicated and the obligation on Member States to consult.

6. Annex I reads as follows:

8. Article 5 provides:

'Projects subject to Article 4(1)

'1. In the case of projects which, pursuant 3 — Article 2(3) authorises Member States, in exceptional cases, to Article 4, must be subjected to an to exempt a specific project from the provisions of the Directive and lays down the procedure for such exemption environmental impact assessment in accor­ and the alternative measures of assessment and public information which may replace the generally applicable dance with Articles 5 to 10, Member States rules. shall adopt the necessary measures to

I - 6921 OPINION OF MR LÉGER — CASE C-287/98 ensure that the developer supplies in an — the data required to identify and assess appropriate form the information specified the main effects which the project is in Annex III inasmuch as: likely to have on the environment,

(a) the Member States consider that the — a non-technical summary of the infor­ information is relevant to a given stage mation mentioned in indents 1 to 3. of the consent procedure and to the specific characteristics of a particular project or type of project and of the environmental features likely to be affected; 3. Where they consider it necessary, Mem­ ber States shall ensure that any authorities with relevant information in their posses­ sion make this information available to the developer.' (b) the Member States consider that a developer may reasonably be required to compile this information having regard inter alia to current knowledge and methods of assessment. 9. Article 6(2) and (3) provides:

2. The information to be provided by the developer in accordance with paragraph 1 shall include at least: '2. Member States shall ensure that:

— a description of the project comprising — any request for development consent information on the site, design and size and any information gathered pursuant of the project, to Article 5 are made available to the public,

— a description of the measures envisaged in order to avoid, reduce and, if — the public concerned is given the possible, remedy significant adverse opportunity to express an opinion effects, before the project is initiated.

I - 6922 LINSTER

3. The detailed arrangements for such B — National law information and consultation shall be determined by the Member States, which may in particular, depending on the parti­ cular characteristics of the projects or sites concerned: 10. Article 1 of the Law of 16 August 1967 for the establishment of a comprehensive communications network and a road fund 4 provides:

— determine the public concerned,

'The Government is authorised to establish — specify the places where the informa­ a comprehensive road network in accor­ tion can be consulted, dance with the general programme provi­ ded for in Article 6 and plans to be adopted by the Grand Duke under Article 9. The construction works for the road network are declared to be in the public interest.' — specify the way in which the public may be informed, for example by bill- posting within a certain radius, pub­ lication in local newspapers, organisa­ tion of exhibitions with plans, draw­ ings, tables, graphs, models, 11. Article 6 of that Law contains the list of roads to be built. As amended by the Law of 31 July 1995, 5 it states:

— determine the manner in which the public is to be consulted, for example, by written submissions, by public enquiry, 'The general programme for establishing a comprehensive road network is as follows. The names of the towns referred to do not

— fix appropriate time-limits for the var­ 4 — Memorial A — 57, 1967, p. 868; Doc. Pari. 1209. ious stages of the procedure in order to 5 — Law amending and supplementing the amended Law of 16 August 1967 (Mémorial A — 73, 1995, p. 1810; Doc. ensure that a decision is taken within a Pari. 3929; corrigendum— 88 of 25 October 1995, reasonable period.' p. 2058).

I - 6923 OPINION OF MR LÉGER — CASE C-287/98 necessarily indicate the towns themselves, II — Facts and the main proceedings but their general area:

13. Expropriation proceeded under the Law of 16 August 1967, as amended by the Law of 31 July 1995, which included the communications network project in the general programme for a comprehensive communications network, and under the Grand-Ducal Regulation of 21 November 1996, which approved the plans showing — a South Distributor Road, connecting the parcels of land. up the main towns in the mining basin from Rodange to Bettembourg, its connection to the existing motorway network, its connections with the main industrial sites in that region and its linkage with the German and Belgian road networks at their respective bor­ ders; 14. The Tribunal d'Arrondissement de Luxembourg has pointed out that, under the 1995 Law, Article 14a was added to the Law of 16 August 1967, the first paragraph of which provides: 'The inclusion of any construction project in the body of this ...' Law shall be subject to prior preparation of a study assessing its impact on the natural and human environment'.

12. The route of the Saarland motorway was established by the Grand-Ducal Reg­ ulation of 21 November 1996 approving plans of parcels of land subject to compul­ sory acquisition and lists of the owners of According to the Tribunal d'Arrondisse­ those parcels with a view to the construc­ ment, the Public Works Committee of the tion of Section II — Hellange to Mondorf- Chamber of Deputies had considered that les-Bains — of the Saarland Link. 6 Article 14a should not apply to the pro­ posed project, taking the view 'that the spirit of Article 14a [had been] respected 6 — Mémorial A 1996, p. 2468. regarding the construction of that road link I - 6924 LINSTER and that it [was] unnecessary to apply the III — The questions referred for a preli­ procedure provided for in Article 14a'. 7 minary ruling The legislature thus decided that the requirement to carry out an impact assess­ ment, laid down in Article 14a, did not apply to the proposed link with the Ger­ 16. In order to review whether the con­ man road network. tested measures are compatible with the Directive, the national court considers it necessary to refer a number of questions to the Court of Justice. The first two concern the applicability of the Directive in relation The national court has also pointed out to the direct effect which it may have, that Article 14a and the Grand-Ducal Reg­ whilst the other four concern the interpre­ ulation of 31 October 1995 adopted in tation of its provisions. implementation of that article are designed to transpose Directive 85/337 for the purpose of future projects to be added to the 1967 Law and prescribe the impact assessments to be carried out and the public consultation procedure. 8 '1. Must Articles 177 and 189 of the EEC Treaty be interpreted as meaning that a court against whose decision there is no judicial remedy under national law and which is called on to verify the legality of a 15. The Tribunal d'Arrondissement has procedure for the expropriation in the clearly stated that it considers that the public interest of immovable property legality of the expropriation procedure belonging to a private individual may find depends on whether the Law of 31 July that the assessment of the impact of the 1995 and the Grand-Ducal Regulation of construction of a motorway required by 21 November 1996 are compatible with Article 5(1) of Council Directive 85/337/ Directive 85/337, so that it has the task of EEC of 27 June 1985 on the assessment of considering whether an impact assessment the effects of certain public and private and public consultation have been carried projects on the environment, being a pro­ out in accordance with the requirements of ject of the kind referred to in Article 4(1) the Directive. 9 thereof, has not been carried out, that the information gathered in accordance with Article 5 has not been made available to 7 — According to the State of the Grand Duchy of Luxembourg, the public and that the members of the 'the Government made great efforts to make information available to the public and arrange public meetings...' public concerned have not had an oppor­ (paragraph 16 of its written observations). In addition, a tunity to express an opinion before the motion of the Luxembourg Chamber of Deputies dated 13 July 1995 states: 'the Government has arranged for project is initiated, contrary to the require­ studies to be carried out comparing the northern route option and southern route option in respect of the ments of Article 6(2) — the directive not geographical position of the towns of Aspelt, Frisange and having been fully transposed into national Hellange, ana the studies deal with both the natural and the human environment as well as the effectiveness of the two law despite the expiry of the period laid options as regards the removal of traffic' (second recital in the preamble to the motion, the motion forming Annex C to down for that purpose — or does such a the written observations of the State of the Grand Duchy of finding involve an appraisal of the direct Luxembourg). effect of the directive, so that the court is 8 — Reference for a preliminary ruling, p. 11. 9 — Ibid. required to refer a question on the matter

I - 6925 OPINION OF MR LÉGER — CASE C-287/98 to the Court of Justice of the European 4. If the term "specific act of national Communities? legislation" has an independent meaning in Community law, is a measure adopted by the parliament after public parliamentary debate to be regarded as an act of national legislation within the meaning of Arti­ cle 1(5) of the directive? 2. If the Court of Justice, in reply to the first question, holds that the court against whose decision there is no judicial remedy under national law is under an obligation to seek a preliminary ruling from the Court 5. Does the term "project" as used in of Justice, then the question referred is as Article 1(5) of the abovementioned direc­ follows: tive, the details of which are adopted by a specific act of national legislation, have an independent meaning in Community law or must it be defined in accordance with domestic law?

May the abovementioned directive be applied to a dispute concerning the expro­ priation in the public interest of immovable property belonging to a private individual 6. If the term "project" as used in Arti­ and may the court, called on to verify the cle 1(5) of the directive, the details of legality of the expropriation procedure, which are adopted by a specific act of find that, contrary to Article 5(1) and national legislation, has an independent Article 6(2), no environmental impact meaning in Community law, is the project assessment has been carried out, that the adopted by parliament decision, after pub­ information gathered in accordance with lic parliamentary debate, to construct a Article 5 has not been made available to motorway to join two other roads, without the public and that the members of the laying down the route of the motorway to public concerned have not had an oppor­ be built, to be regarded as a project to tunity to express an opinion before the which the directive does not apply?' construction of a motorway, a project of the kind referred to in Article 4(1), is initiated?

IV — Questions 1 and 2

3. Does the act of national legislation mentioned in Article 1(5) of the abovemen­ tioned directive have an independent mean­ 17. The first two questions referred for a ing in Community law or must it be defined preliminary ruling both relate to the in accordance with domestic law? requirements which Directive 85/337 must I - 6926 LINSTER meet in order to apply in this particular of Justice for a preliminary ruling in order case, so it is appropriate to consider them to establish whether the relevant provisions together. of the directive do have direct effect.

18. The direct effect of the Directive lies at 22. Finally, if so, the Court is requested to the core of those questions. They also rule whether Articles 5(1) and 6(2) of concern the obligation, or power, of a court Directive 85/337 have direct effect, so that to refer a question to the Court of Justice they may be applied in the case before the for a preliminary ruling on whether or not national court. a directive which has not been transposed has direct effect, should it first be necessary to show direct effect in order for the directive to apply. 23. The first point, on which the answers to the following questions turn, is without doubt the most important since it raises a fundamental question linked to the condi­ 19. More precisely, it is apparent from tions for the effective application of Com­ reading the questions submitted that the munity law. 10 Those conditions are deter­ Tribunal d'Arrondissement de Luxembourg mined by the particularly complex relation­ is seeking clarification on the following ship between untransposed directives and points, which are included in the questions the direct effect which they may be accor­ to the Court. ded in certain circumstances. We shall see that that relationship may appear in a particular light where a national court is called upon to assess the legality of a rule of domestic law. 20. First, the national court asks the Court of Justice if, when called upon to consider whether a rule of national law complies with a directive which has not been trans­ posed within the period laid down, it can apply the provisions of that directive with­ out verifying that they have direct effect, or The direct effect of untransposed directives if application of those provisions is depen­ dent on first establishing that they have such effect in national law. 24. We know that Community law is an integral part of the legal order applying

10 — For a general study of the means of ensuring the 21. Second, the Luxembourg court seeks to effectiveness of Community environmental law, see M. Pâques, Trois remèdes à l'inexécution du droit commu­ ascertain whether, in the latter case, it is nautaire: efficacité pour l'environnement?', Reime de droit required to make a reference to the Court international et de droit comparé, 1996, p. 135. I - 6927 OPINION OF MR LÉGER — CASE C-287/98

11 within each of the Member States and by the failure of the competent authority that the effects in domestic law of a rule of with regard to its transposition into domes­ Community law are not, as a rule, condi­ tic law, a national court hearing a case that 12 tional on the existence of State rules. comes within the scope of an untransposed directive is faced with an uncertain situa­ tion likely to prejudice the effectiveness of Community law.

25. Although this basic principle applies, in particular, to a large number of the rules of the Treaty, 13 to regulations 14 and to deci­ 15 27. By definition, legal rules arising from sions, the special nature of directives has the treaties are intended from their adop­ given rise to more discussion. Since a tion to alter the legal orders of the Member directive is binding, as to the result to be States, a fact which justifies the removal of achieved, upon each Member State to obstacles to such integration. However, as which it is addressed, but leaves to the regards directives, the difficulty stems from national authorities the choice of form and 16 the fact that the obstacle is constituted by a methods, recognition of the direct effect failure on the part of Member States, when of directives in the law of the Member the very nature of that category of mea­ States was not self-evident and, in any sures means that their effectiveness is event, the overriding need to ensure the dependent upon the adoption of a measure effectiveness of Community law was imme­ of domestic law. diately limited by the very nature of the measures intended to implement it.

28. Hence, any initiative to accord to the provisions of an untransposed directive the 26. Being required to apply a rule whose ability to produce legal effects directly effects must take precedence but are curbed meets with opposition on several counts.

11 — Case 106/77 Simmenthal (1978] ECR 629. 12 — The fundamental ground of the judgment in Case 26/62 Van Cend & Loos (1963| ECR 1 may be recalled: 'the Community constitutes a new legal order of international law for the benefit of which the States have limited their 29. There is firstly the risk of failing to take sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but account of a directive's specific nature also their nationals. Independently of the legislation of Member States, Community law therefore not only which is justified by the concern to lay imposes obligations on individuals but is also intended to down specific and binding objectives for confer upon them rights which become part of their legal heritage.' the Member States but at the same time to 13 — For example, Van Cend & Loos, cited above, and Case allow them some discretion in the imple­ 6/64 Costa [19641 ECR 585. mentation of Community law. Even if the 14 — The second paragraph of Article 189 of the EC Treaty (now the second paragraph of Article 249 EC) provides boundaries separating the different types of that a regulation is directly applicable in all Member States. Community measure are not always very 15 — Case 9/70 Crad [1970] ECR 825. distinct, particularly where directives attain 16 — Third paragraph of Article 189 of the Treaty. a level of precision comparable to that of I - 6928 LINSTER regulations, or where regulations require 32. Lastly, as we have seen, the Court of for their implementation a number of Justice has ruled that '... a directive may not implementing measures in the Member of itself impose obligations on an individual States' domestic law, the wishes of the and... may not be relied upon as such authors of the treaties and the classification against such a person', strictly precluding of the various measures as laid down in what is commonly called the 'horizontal' Article 189 of the Treaty necessitate at least direct effect of directives. 19 some respect for the initial distinction. 17

33. When confronted with the same dilemma as that faced by national courts, 30. That distinction is all the more vital which requires them to make a choice since it reflects to a great extent the division between formal legality dictated by the of powers between the Member States and nomenclature of Community measures and the Community; this is a reason for not a pragmatic concern to ensure the effec­ regarding directives, which are acts of tiveness of a rule of Community law, the legislative cooperation, as being in princi­ Court of Justice has sought to balance the ple the same as regulations, which are rules two alternatives. It has accepted that in that are preferred in connection with certain precisely identifiable circumstances actions coming within exclusive Commu­ it is possible to accord certain provisions of nity competence. a directive direct effect in domestic law.

31. Moreover, to allow a national court to 34. Recognition of the direct effect of apply an untransposed directive would in directives was initially based exclusively some respects be to endow it with a on the binding effect attributed to a direc­ legislative function, since its decision would tive by Article 189 of the Treaty, which occupy the space originally allocated to the means that it is not possible '... to exclude, competent authorities of the Member States in principle, the possibility that the obliga­ entrusted with transposition of the direc­ tion which it imposes may be invoked by tive. 18 those concerned', 20 and on its practical effect, which '... would be weakened if

17 — The Court considers, for example, that the case-law according to which individuals are entitled to rely on certain provisions of directives against State authorities 19 — Case 152/84 Marshall [1986] ECR 723, paragraph 48. See cannot be extended '... to the sphere of relations between footnote 17 of this Opinion. individuals [themselves, since that would amount to 20— Case 41/74 Van Duyn (19741 ECR 1337, paragraph 12. recognising] a power in the Community to enact obliga­ That judgment moreover takes up the reasoning already set tions for individuals with immediate effect, whereas it has out, in connection with a Community decision, in Grad, competence to do so only where it is empowered to adopt cited above, that 'although it is true that by virtue of regulations' (Case C-91/92 Faccini Dori [1994] ECR Article 189 regulations are directly applicable and there­ I-3325, paragraph 24, emphasis added). fore by virtue of their nature capable of producing direct 18 — On this fundamental aspect of the relationship between effects, it does not follow from this that other categories of untransposed directives and the principle of the separation legal measures mentioned in that article can never produce of powers, see D. Edward, 'Direct effect, the separation of similar effects' (paragraph 5). The implications of that powers and the judicial enforcement of obligations' in reasoning are clear: the principle of direct effect does not Scritti in onore di CF. Mancini, p. 423 et seq. apply solely to a specific category of Community measures.

I - 6929 OPINION OF MR LÉGER — CASE C-287/98 individuals were prevented from relying on 37. In order for the provisions of a directive it before their national courts and if the to have effect in the absence of domestic latter were prevented from taking it into implementing legislation, certain condi­ consideration as an element of Community 21 tions must also be met demonstrating that law'. those provisions can be automatically inte­ grated into national legislation and there­ fore applied without any intervening mea­ sure. An incomplete legal rule, as a direc­ tive is by definition, is initially frozen in the absence of an instrument transposing it, unless the nature of its provisions is such that they can simply be applied directly. 35. The conduct of the defaulting Member State subsequently proved to be the main basis for this exceptional effect of direc­ tives. The Court thus held that '... a Member State which has not adopted the implementing measures required by the directive in the prescribed periods may 38. That is the case where the obligation it not rely, as against individuals, on its own entails is sufficiently precise and uncondi­ failure to perform the obligations which the 23 22 tional. These requirements are purely directive entails'. technical in the sense that they are dictated by the very function of giving judgment; a rule of law is all the easier to apply where there is no doubt regarding its content and is thus able to create legal effects by itself. 24 They also define the limits of the court's jurisdiction by designating the rules which it may apply without exceeding its 36. Thus confined to 'vertical' cases, that is 25 to say cases between an individual and a powers. public authority, the ability of directives to produce direct effect no longer merely has as its fundamental justification the fact that they are enforceable rules which have been laid down, designed to alter the legal order; it is also explained by the fact that, since 39. The requirement of unconditionality, Member States are entrusted with the task which is the less easy of the two conditions of transposing directives in order to make to define, is based on the idea that, in order them full legal rules, Member States are not to have direct effect, the provision of an permitted to plead in support of their case untransposed directive which is relied on their own failure to complete transposition.

23 — See, for example, Ratti, cited above, and Case 8/81 Becker 21 — Van Duyn, cited above, paragraph 12. [1982] ECR 53. 22 —Case 148/78 Ratti [1979] ECR 1629, paragraph 22. 24 — Y. Galmot and J.-C. Bonichot, 'La Cour de justice des Conversely, the right of individuals to rely on a directive Communautés européennes et la transposition des direc­ against a defaulting Member State before the courts is, in tives en droit national', Revue française de droit admin­ the view of the Court of Justice, a 'minimum guarantee' istratif, 4(1), January-February 1988, p. 16. resulting from the binding nature of directives (Case 25 — S. Van Raepenbusch, 'Droit institutionnel de l'Union et des 102/79 Commission v Belgium [1980] ECR 1473, para­ Communautés européennes', 2nd ed., De Boeck University, graph 12). p. 355.

I - 6930 LINSTER must not be subject in particular '... to the 42. It has been the case that, when asked taking of any measure either by the institu­ specifically about the direct effect of a tions of the Community or by the Member directive the Court, after referring to the States'. 26 More specifically, the transposing binding effect of directives and the need to measures or, at Community level, the protect their effectiveness, has abandoned implementing measures which may be the dual requirement of precision and necessary do not prevent recognition of unconditionality and merely concerned the direct effect of a directive where the itself with the level of discretion available authority responsible for transposing or to Member States under the directive. 29 implementing it has no discretion or even Instead of analysing the content of the just reduced discretion. 27 provisions in question in order to establish or deny their applicability, the Court of Justice has called on the national court to determine '... whether the national legisla­ ture, in exercising its choice as to the form and methods for implementing the direc­ tive, had kept within the limits of its 40. On the other hand, the fact that a discretion set out in the directive'. 30 directive is conditional or imprecise pre­ vents a court from applying it until it has been transposed into domestic law. Thus it has been written that, 'where a State has not implemented a "conditional" directive it is certainly at fault, but there can be no direct effect because no one knows what rule of law should be applied'. 28 It is not for the court to take the place of the defaulting Member State by creating the 43. This qualification of the Court's tradi­ missing rule of law in its stead. tional case-law originates from the judg­ ment in Verbond van Nederlandse Onder­ nemingen. 31 That judgment was given in a case arising from a challenge to a decision of the tax authorities. One of the questions submitted concerned the interpretation of Article 11 of the Second VAT Directive,32 41. However, although the Court of Justice which deals with the right to deduct VAT generally refers to those criteria before invoiced to a taxable person in respect of ruling on the direct effect of a directive, goods supplied to him. The Court first that is not always so. considered direct effect, from the point of view both of the principle of direct effect

26 —Case 28/67 Molkerei-Zentrale [1968] ECR 143. Other conditions apart from the adoption of specific implement­ ing measures may be laid down in the directive, such as the 29 — Case C-435/97 WWF and Others [1999] ECR I-5613, condition concerning the expiry of the period of transposi­ paragraph 69. tion. 30 — Ibid., paragraph 69, and Case C-72/95 Kraaijeueld and 27 — See, as an example of provisions '... which exclude the Others [1996] ECR I-5403, paragraph 56. possibility of discretionary assessments', Case 271/82 Auer 31 — Case 51/76 [1977] ECR 113. [1983] ECR 2727, paragraph 16, and, as an example of 32 — Second Council Directive (67/228/EEC) of 11 April 1967 provisions which are not unconditional in that '... Member on the harmonisation of legislation of Member States States enjoy a broad discretion ...', Case C-131/97 concerning turnover taxes — Structure and procedures for Carbonari and Others [1999| ECR I-1103, paragraph 46. application of the common system of value added tax (OJ 28 — Y. Galmot and J.-C. Bonichot, cited above, p. 16. English Special Edition 1967, p. 161.

I - 6931 OPINION OF MR LÉGER — CASE C-287/98 with regard to directives 33 and of the 46. Such an approach is not fundamentally conditions for finding it, 34 but opted for different from that adopted in most of the review by the national court of the legality judgments which followed the judgment in of the national measure in question in light Verbond van Nederlandse Ondernemin­ of the margin of discretion which the gen. 35 In successive cases, the question directive leaves to the Member States. whether it must first be established whether a directive has direct effect is to be answered in the affirmative.

44. The judgment in Verbond van Neder­ landse Ondernemingen contains a special feature, however, in that it combines the 47. Under such a system, the answer to the two approaches to this matter. On the one question referred by the Tribunal d'Arron­ hand, the Court noted the explicit and dissement de Luxembourg should be foun­ precise nature of the principle of deduction ded on first showing that the Directive has at issue, as laid down in Article 11(1) of the direct effect. In Linster and Others, the Second Directive 67/228. On the other national court is similarly faced with a plea hand, pointing out that that principle was challenging the legality of a decision which, subject to certain derogations and excep­ it is claimed, is not in compliance with the tions which the Member States had the provisions of a directive. Following the power to determine and that exercise of logic of the judgment in Verbond van those powers was a matter for the discre­ Nederlandse Ondernemingen, the national tion of the national authorities, it held that court would be required to verify whether it was the duty of the national court before the relevant provisions of the Directive are which the case had been brought to deter­ unconditional and sufficiently precise to be mine whether the disputed national mea­ applied in this particular case, failing which sure fell outside the margin of the discre­ it should review how Member States have tion of the Member States. exercised their discretion.

48. The same conclusion may be drawn 45. Thus, the case-law on reviewing whe­ from the judgment in Kraaijeveld and ther Member States have kept within their Others, cited above, where the legislation discretion is still, in that judgment, sub­ at issue, namely Directive 85/337, was the sidiary to the case-law concerning assess­ same as that being relied on by the Linsters. ment of the direct effect of the directive The Court, asked whether certain provi­ being relied on and applies only where the sions of the Directive have direct effect, power devolved to Member States to stated first that those provisions are condi­ implement a directive provides them with tional, pointing out that Member States a genuine choice in how they do so. have a certain discretion in that they '... may inter alia specify certain types of projects as being subject to an assessment 33 — Verbond van Nederlandse Ondernemingen, cited above, paragraph 21. 34 — Ibid., paragraphs 25 to 28, relating to the requirement for the directive in question to be precise and unconditional. 35 — See footnote 23 of this Opinion. I - 6932 UNSTER or may establish the criteria or thresholds prior examination of the direct effect of a necessary to determine which projects are directive, within the meaning of the case- to be subject to an assessment'. 36 It went law contained in the judgments in Ratti or on to say that '... the limits of that Becker, cited above (hereinafter 'the Becker discretion are to be found in the obliga­ case-law'), a necessary precondition for its tion... that projects likely... to have signifi­ application. 41 The Court's traditional ana­ cant effects on the environment are to be lysis of the content of the provisions being subject to an impact assessment'. 37 Lastly, invoked in order to decide whether they are the Court pointed out that national courts sufficiently precise and unconditional is not have the power to review the discretion therefore systematic. In those few cases, 38 accorded to the national legislature. review of the way in which the Member State has exercised its discretion remains alone at the heart of the judgment, as if analysis of the provisions at issue were less relevant to their direct application in 49. As I have stated, the undoubtedly domestic law than with regard to a formal predominating tendency in the Court of examination of the powers allocated by the Justice's case-law to link the applicability of directive between the Community and the directives, or the possibility of relying on them, to finding that they have direct effect is, however, not exclusive.

50. In some judgments, whether older 39 or 40 41 — I should, moreover, point out that it is a judgment of this more recent, the Court has not made very type, in Case C-69/89 Nakajima v Council [1991] ECR I-2069, which prompted the national court to ask whether the compatibility of a domestic measure with a directive might be reviewed irrespective of the latter's direct effect (reference for a preliminary ruling, p. 12). The 36 — Paragraph 48. point at issue in that case was the validity of a Community 37 — Paragraph 50. regulation which, it was claimed, could not apply because it was in breach of an international agreement implement­ 38 — Paragraph 56. ing provisions of the General Agreement on Tariffs and 39 — In the judgment in Case 21/78 Delkvist [1978] ECR 2327, Trade. The applicant was allowed to challenge the legality at paragraphs 12 to 22, the Court itself reviewed Member of the regulation without its being necessary to consider State observance of the margin of discretion accorded to the direct effect of the rule relied on. It is true that that them under the directive, and then affirmed that the judgment does not take into account the general thrust of directive had direct effect solely on the basis of the binding the Court's case-law in the field of international agree­ effect of directives and the need to maintain their ments concluded by the Community. In accordance with effectiveness, without analysing the precise and uncondi­ the criteria set out in Case C-280/93 Germany v Council tional nature of the provisions relied upon. [1994] ECR I-4973, the Court has in fact pointed out that 40 — In WWF and Others, cited above, there is no reference at direct effect must be established first, stating that the all to the dual requirement of precision and uncondition¬ special features of GATT mean that the rules it contains ality. However, the sixth question referred by the national are not unconditional and preclude their recognition as court sought a ruling on whether Article 4(2) of Directive rules that are directly applicable in the domestic legal 85/337, in conjunction with Article 2(1) thereof, has direct systems of the Contracting Parties. However, limits have effect. That question was interpreted by the Court as been set on this principle. In the absence of direct effect asking whether, '... where the discretion conferred by those following from the Agreement itself, the Court has provisions has been exceeded by the legislative or admin­ declared it has jurisdiction to review the lawfulness of istrative authorities of a Member State, individuals may the Community act in question '... if the Community rely on those provisions before a court of that Member intended to implement a particular obligation entered into State against the national authorities and thus obtain from within the framework of GATT, or if the Community act the latter the setting aside of the national rules or measures expressly refers to specific provisions of GATT...' (para­ incompatible with those provisions' (paragraph 68, graph 111). Undoubtedly it must be inferred from this emphasis added). The Court replied in the affirmative to reservation that, where a Community measure is adopted that question, as rephrased, without however ruling on pursuant to an international agreement or simply refers to whether the Member State concerned had kept within the such an agreement, the latter may be relied upon for the limits of its own powers, leaving it to the national court to purposes of reviewing the legality of a Community rule decide on this (paragraph 71). even though it does not have direct effect.

I - 6933 OPINION OF MR LÉGER — CASE C-287/98

Member States. In other words, those 53. In that case, the Tribunal d'Arrondisse­ judgments seem to owe more to the prin­ ment would be entitled to apply the Direc­ ciple of primacy than to the principle of tive for the purpose being pursued. In the direct effect. other case, the national court could verify directly (and solely) whether, by adopting the contested decision, the Grand Duchy of Luxembourg kept within the limits of its discretion. It would then be applying the Directive without ascertaining that it has direct effect within the meaning of the 51. Regardless of their respective histories, Becker case-law. it does not appear that the prior determi­ nation of direct effect was required in each case in order to dispose of them. It may be asked, more generally, whether examining the direct effect of a directive is relevant in 54. The choice between those alternatives deciding all cases involving a directive must be made on the basis of considera­ which has not been transposed and a tions relating to whether both the require­ conflicting rule of domestic law. ments of the effectiveness of Community law and the rules and competencies estab­ lished by Community law are complied with.

55. At all events, a directive which has not Direct effect of directives which have not been transposed cannot produce legal been transposed and assessment of the effects, in the same way as a Community legality of a rule of national law regulation, where, due to its content, it cannot be applied without the adoption of another measure. This does not mean that, in order to be effectively applied by a national court for the purpose of deciding a 52. In the present case, in which the legality case, the provisions relied on must have the of the 1996 Grand-Ducal Regulation is at same characteristics, whatever the use issue, the Tribunal d'Arrondissement de made of them. Luxembourg may adopt one of two approaches. Under the first, it would verify whether Articles 5(1) and 6(2) of Directive 85/337, which concern making information on the project available to the public 56. It seems to me, therefore, that it is the concerned and taking into account the nature of the national proceedings brought opinion expressed by those to whom the by an individual which may determine, information has been given, have direct according to their objective, the use which effect because their content is precise and will be made of the provisions of the unconditional. directive in question. I - 6934 LINSTER

57. The claims set out by the parties indeed concerned, where they do not strictly have a bearing on the way in which the speaking have direct effect. court will call in aid a Community rule in order to give it practical effect. To cite a distinction which is sometimes used, I think that a directive is subject to different requirements depending on whether it is pleaded for purposes of 'exclusion' or 59. The Court has moreover drawn a 'substitution' of a legal rule. 42 number of conclusions from this, in judg­ ments which are among the most innova­ tive of its case-law, when, since those conditions were not met, the question remained as to how it would be possible to ensure the precedence of a rule of Community law laid down in a directive. In the absence of direct effect, and of the 'ability to plead substitution' which might 58. Before returning to the 'ability to plead result therefrom, the Court has allowed exclusion', I should like to consider for a national courts to draw certain legal con­ few moments the meaning of the 'ability to sequences from directives that have not plead substitution' and its significance been transposed, triggering a process of within the case-law of the Court. It refers dissociating the principle of direct effect to the ability of a party to rely on a from other means of pleading a directive. directive before a national court, instead of a national instrument which is non-existent or which does not comply with the direc­ tive, in order to enjoy a right established by that directive. 43 The provisions concerned must therefore '... define rights which 60. Thus, in Von Colson and Kamann, 45 individuals are able to assert against the 44 the Court laid down the principle of State'. This ability to plead a directive is, 'consistent interpretation'. In that case, as is well known, closely linked to condi­ which concerned the nature of penalties tions requiring the applicable rule to be for sex discrimination, the Court held that precise and unconditional. The provisions Directive 76/207/EEC 46 did not lay down of an untransposed directive which seek to an unconditional and sufficiently precise create rights for individuals do not there­ obligation, leaving 'the Member States free fore rank as enforceable rules laid down to choose between the different solutions within the domestic legal system, in the suitable for achieving its objective...'.47 same way as the legal rules of the State The Court, after setting out what it regar­ ded as the main feature of the requirements of the relevant Community law — namely 42 — See in particular Y. Galmot and J.-C. Bonichot, cited above; G. Isaac, Droit communautaire général, Masson, 1994; T. Dal Farra, 'L'invocabilité des directives commu­ nautaires devant le juge national de la légalité', RTD eur., 28(4), October-December 1992, p. 631; P. Manin, 'De 45 —Case 14/83 [1984] ECR 1891. See also Case 111/75 l'utilisation des directives communautaires par les per­ Mazzalai [1976] ECR 657. sonnes physiques ou morales', AJDA, 20 April 1994, 46 — Council Directive of 9 February 1976 on the implementa­ p. 259; D. Simon, La directive européenne, Dalloz, 1997; tion of the principle of equal treatment for men and Le système juridique communautaire, 2nd ed., PUF, 1998. women as regards access to employment, vocational 43 — Y. Galmot and J.-C. Bonichot, cited above, p. 10, and training and promotion, and working conditions P. Manin, cited above, p. 260. (OJ 1976 L 39, p. 40). 44 — Becker, cited above, paragraph 25. 47 — Von Colson and Kamann, paragraph 28. I - 6935 OPINION OF MR LÉGER — CASE C-287/98 that if a Member State chooses to penalise completed the arrangements intended to employers at fault by the award of com­ offset the adverse consequences, in terms of pensation, the amount of such compensa­ the effectiveness of Community law, stem­ tion must be adequate in relation to the ming from a Member State's failure to damage sustained — added, however, that comply with its obligation to transpose a it was for 'the national court to interpret directive. and apply the legislation adopted for the implementation of the directive in confor­ mity with [those] requirements... in so far as it is given discretion to do so under national law'. 48 63. Where the direct effect of a directive is not clear cut, the Court's case-law attempts to preserve the full effectiveness of the Community rules by other means, which seek both to attain that objective and not to 61. The effectiveness of Community law call into question the nomenclature of required at the very least that, taking Community measures given in Article 189 account of the limits imposed by the nature of the Treaty. of directives and by the content of the relevant provisions of the directive in question, parties who considered they had suffered injury as a result of failure to transpose a directive that conferred rights on them whilst leaving Member States a 64. In short, where one of the parties to certain margin of discretion should be proceedings before a national court seeks granted 'the ability to plead consistent recognition of a right under a directive interpretation'. 49 which has not been transposed and cannot have direct effect in domestic law, it appears that it is not possible for the 'ability to plead substitution' to result in application of the directive. 51 In that situation, the party concerned can only 62. Following the same logic, the Court opt for a solution which enables him to established in its judgment in Francovich derive the appropriate consequences from and Others 50 what has been called the the directive's precedence over domestic 'ability to plead reparation'. The Court law, without guaranteeing him full applica­ recognised the right of a party who has tion of Community law. The two ways in suffered harm as the result of failure by a which the directive can be pleaded seek to Member State to transpose a directive to give the individual the means of invoking, have that State held liable before the by differing means and to differing extents, national courts where the directive does the relevant provisions of the directive, not meet the necessary conditions for it to have direct effect in domestic law. This 51 — Even if the conditions for direct effect are met, the 'ability to plead substitution' is not available in all circumstances, since directives which have not been transposed cannot 48 — Ibid. produce 'horizontal' direct effect: in Faccini Dori, cited above, the relevant articles of the directive were deemed to 49 — See, in particular, D. Simon, Le système juridique com­ be unconditional and sufficiently precise but, as we have munautaire, cited above, p. 308 et seq. seen, an individual was not granted the right to rely on 50 —Joined Cases C-6/90 and C-9/90 [1991] ECR I-5357. provisions of that type against another individual.

I - 6936 LINSTER either by influencing the interpretation of 68. In other words, it is for the Linsters less domestic law or by using it as a basis for an a question of relying on a 'subjective' action for reparation. (individual) right which they seek to enforce than of applying to the national court for review of whether domestic law is in accordance with the relevant Commu­ nity law, a process which may result in invalidation of the national rule. 65. It is therefore possible now to talk of 'minimum enforceability' where the 'greater enforceability' provided by recog­ nition of direct effect cannot operate. 52 I would point out in this connection that in the judgment in Verbond van Nederlandse Ondernemingen, cited above, as in the judgments which refer to it, the Court has indicated that '... the individual invokes a 66. Those judgments, however, fall into the provision of a directive before a national same category, since they derive from court in order that the latter shall rule actions brought by parties relying directly whether the competent national authori­ ties... have kept within the limits as to their on rights introduced for their benefit by a 53 directive. The solutions adopted by the discretion set out in the directive'. Court of Justice in that regard result from the finding, after close analysis of the content of the provisions in question, that they cannot have direct effect. 69. In that context it may be asked whether it is still justified to review the direct effect of the directive being invoked as in the case where a party seeks to substitute the Community rule for the national rule. 67. It seems to me that a case such as that before the court making the present refer­ ence is of a different nature and therefore calls for a different solution. In the pro­ ceedings before that court, the intention of the parties is to challenge the rule which it 70. Admittedly, the Court's case-law does is sought to apply to them, relying on not clearly reveal a comparable distinction Directive 85/337 in support of their claim, from which one might infer the existence of rather than to seek the Directive's direct two separate systems applying to a court's application. The main proceedings corre­ obligation to examine the content of the spond to the logic of the 'ability to plead directive. On the contrary, the paragraph exclusion'. which in most of the Court's judgments sets out the dual condition to which the Court

52 — D. Simon, Le système juridique communautaire, cited above, p. 308 et seq. 53 — Paragraph 24.

I - 6937 OPINION OF MR LÉGER — CASE C-287/98 makes recognition of direct effect subject, 'objective' (non-personal), in which the imposes compliance with those require­ pleas put forward by a party against a ments as a precondition for relying on the public body do not seek directly to obtain provisions, not only in so far as they define recognition of an individual right, the rights for individuals, but also where they question of direct effect tends to be eclipsed are used to challenge '... any national by that of primacy. The problem of inte­ provision which is incompatible with the grating the rule of Community law into directive...'. 54 national law is restricted to confrontation between the different rules and does not extend to their application to individuals.

71. 'Uncoupling' direct effect and the pos­ sibility of relying on a directive, in the same 74. When reviewing the compatibility of a way as when consistent interpretation or subordinate rule, the need to ensure that reparation remain the only options open in the directive is precise is less important, and the absence of such effect, would, however, the court is moreover entitled to interpret have advantages. it, where appropriate after referring a question to the Court of Justice for a preliminary ruling. 56 In particular, where the national court is faced with a provision which leaves Member States genuine dis­ 72. As we have seen, the reasons justifying cretion, it has the task, taking account of prior assessment of direct effect relate the objective being sought by the injured mainly to the particular nature of a direc­ party, of verifying that the public body tive, whose primary purpose is not to be whose decision is being challenged has kept directly integrated into the laws of the within the limits of the powers which it was Member States. In supplementing a direc­ left under the directive. tive by a creative interpretation in order to settle a case brought before it, the court takes the place of the legislature. 55

75. The question of a Member State's discretion, which constitutes one of the

73. These constraints inherent in the 56 — In,this connection, the position of the French Conseil court's work are not the same when it is d'État (Council of State) may be mentioned, which, in exercising its power to review the legality of administrative called upon to assess the validity of a rule measures, examines whether such measures, and also the laws under which they have been adopted, are compatible of domestic law in the light of the relevant with a Community directive and, where appropriate, Community rule. In such proceedings draws the necessary consequences as regards their legality (CE, 5 February 1997, Elahi, application No 161639, and which are simultaneously 'vertical' and CE, 6 February 1998, M.Tete, Association de sauvegarde de l'Ouest lyonnais, applications Nos 138777, 147424 and 147425). See also the judgments of 28 February 1992 in which the Conseil d'État, sitting in Assembly, disapplied a law that was incompatible with a directive without 54 — Becker, cited above, paragraph 25, emphasis added. considering whether it had direct effect (CE, Rothmans 55 — See, however, advocating simple abandonment of the International France SA and Philip Morris France SA, theory of direct effect, P. Manin, 'L'invocabilité des applications Nos 56776 and 56777, and Sté Arizona directives: quelques interrogations', Revue trimestrielle de Tobacco Products and Philip Morris France SA, applica­ droit européen, 26(4), October-December 1990, p. 669. tion No 87753, AJDA, 20 March 1992, p. 210 et seq.).

I - 6938 LINSTER conditions for direct effect, is, in this and consulting the public concerned. It is particular case, in some way the very possible to imagine the challenge to the subject-matter of the proceedings in which expropriation procedure having taken the the court must give its ruling. form of an application for an injunction ordering such public information and con­ sultation measures to be carried out. It is evident that in the case of proceedings based on a claim for 'substitution' by a right provided for in a directive the require­ ments laid down for application of the 76. The judgments in Verbond van Neder­ Community rule are not entirely identical. landse Ondernemingen, Kraaijeveld and Others, Delkvist and WWF and Others, cited above, provide examples of proceed­ ings in which directives were relied on to that end although in those particular cases prior review of the direct effect of the directive in question was not always avoided.

79. The consequences of allowing such an application would be that the provisions of 77. Even though it is not always easy to the directive would ipso facto be treated as draw a line between court proceedings with a rule of domestic law, in the same way as the objective of exclusion, and those with other legal rules applying within the State the objective of substitution, of a legal rule, concerned. We have seen why such equi- that line is far from being theoretical. It paration, giving rise to recognition of a separates two fields which are generally 'subjective' right, had to be made subject to quite distinct. certain fundamental requirements.

78. The present case is not without interest in this connection. The Linsters applied to the court hearing the case for collateral review of the legality of a Grand-Ducal regulation. Whether it was opted for freely or was imposed by circumstances or by the 80. On the other hand the plea put forward features of the relevant national law, the by the Linsters, although based on the same approach chosen was thus that of 'exclu­ rule of law, uses it in a different way, sion' of the national rule. The regulation at determined by the purely formal purpose, issue is challenged on the ground that it from the legal viewpoint, of their claims. does not comply with the provisions of From that angle, the content of the rule is Directive 85/337 with regard to informing less important than if it were to be applied

I - 6939 OPINION OF MR LÉGER — CASE C-287/98 specifically for the benefit of an indivi­ been transposed, irrespective of the terms in dual. 57 which they are couched, where they are invoked for the purposes of reviewing the legality of rules of domestic law.

81. In my view, therefore, there is no need for prior consideration of the direct effect of the provisions relied on, at least in the sense in which the term 'direct effect' is 58 83. This solution has several advantages. understood.

82. It must thus be possible to exercise rights contained in a directive that has not 84. While complying with Article 189 of the Treaty, it protects the rights of indivi­ duals and reduces the harm caused to the 57 — In an analysis of Kraaijeveld, a judgment which concerns effectiveness of Community law by the the interpretation of Directive 85/337, the following comment was made on the paragraph that traditionally behaviour of States. appears in judgments regarding the Member States* exercise of their discretion: 'Individuals cannot be exclu­ ded, as a matter of principle, from invoking that obligation (as opposed to a subjective right of their own) before the courts, nor can the courts be prevented from taking it into account, in order to ensure that the national authorities keep within the limits of their discretion' (D. Edward, cited above, p. 441). The emphasis is therefore placed on the objective treatment of the dispute, which enables the individual concerned to rely on a directive for purposes 85. Individuals have an interest in securing other than his exclusive and immediate benefit. That particular case concerned a reference for a preliminary compliance by the authorities with Com­ ruling from a national court hearing an action for the munity rules which bind them in the same annulment of a decision approving a zoning plan brought by an economic operator, Kraaijeveld, whose business way as rules of national law. Infringement consisted of carrying out works on waterways. Under the new plan the waterway to which Kraaijeveld had access proceedings are traditionally brought could cease to be linked to navigable waterways. No against a Member State which is in breach environmental impact assessment (EIA) had been carried out. Referring to Kraaijeveld's rights, the author adds: '... of its obligations. However, it is well the individual has a procedūrai right, so the case remains an example of "individual rights" and therefore of "direct known that several years may pass between effect" in the classical sense. On the other hand, the the time when the Commission becomes Court's judgment gave Kraaijeveld no immediate right to require an EIA to be carried out before construction of the aware of an infringement and the time dyke could begin. At the end of the day, having gone through all the proper procedures, all discretions naving when the Court delivers its judgment. been correctly exercised, Kraaijeveld might still find Furthermore, as the Court has consistently themselves cut off from the navigable waterways. The right recognised was not to secure any positive remedy or held, the Commission is not bound to to have a particular result achieved, but rather the right to call for judicial review..' (ibid., pp. 441 and 442, emphasis commence infringement proceedings if it added to last sentence). does not consider it necessary. In fact, the 58 — It is difficult to claim that application of a directive for the Commission has a discretion which purposes of 'excluding' a measure of domestic law does not amount, in a certain way, to deriving some effect from excludes the right for individuals to require that directive. The point at issue in the present case is the 59 capacity of an untransposed directive to create a full right it to adopt a specific position. It may for individuals, and not just 'partial' direct effect (B. Jadot, therefore be justified to grant individuals 'Le justiciable et l'inexécution, en droit belge, des direc­ tives européennes en matière d'environnement', Amén. 1987, p. 38, cited in M. Pâques, cited above) or 'relative' direct effect. See, in this connection, with regard to the current uncertain state of the terminology and to the 59 — Case 247/87 Star Fruit (1989] ECR 291, paragraphs 10,11 distinction drawn in Germany between 'objective' direct and 12. See also the order of the Court of First Instance of effect and 'subjective' direct effect, D. Edward, cited 5 May 1999 in Case T-190/98 Gluiber, not published in above, pp. 442 and 443. the ECR, paragraph 13.

I - 6940 UNSTER the right to apply to the national courts to for individuals, would complete that ten­ secure compliance with the hierarchy of dency. norms where, due to failure to transpose a directive, that hierarchy is infringed. 60

88. I would add that, if it is accepted that the preconditions for recognition of direct effect in fact correspond to functional considerations, it is natural that they may 86. This promotes stricter compliance with be dispensed with in proceedings that do Community law, whose primacy may thus not require the provisions concerned to benefit from the support of individuals. The have their full effect at that time. Whether latter are directly interested, through their or not a rule may be relied on depends on own interests, in compliance with the law. the way in which the national court is called upon to apply it. 62 Ultimately, 'Community law can be applied by national courts if it meets the conditions required for the specific judicial use sought'. 63

87. The Court has for a long time spelt out the consequences of the direct applicability of a provision of Community law where it is incompatible with the law of a Member 89. I therefore propose that the Court State. Every national court must, in a case should reply to the first two questions that within its jurisdiction, apply Community Article 189 of the Treaty is to be inter­ law in its entirety and protect rights which preted as meaning that a national court the latter confers on individuals, and must hearing a case which necessitates consid­ accordingly set aside any provision of eration of whether a rule of domestic law is national law which may conflict with it. 61 compatible with a directive that has not been transposed within the period laid

62 — G. Isaac, cited above, p. 169. The author explains that 'where the court is called upon to apply Community law itself in the absence, or even in place of, national law, it is understandable that the legislation relied upon must in every respect be unconditional and sufficiently precise to lend itself to such application/substitution. On the other hand, in the case of use to verify compatibility, a In the case of directives, recognition of their Community provision may be relied upon even if it allows status as enforceable rules, irrespective of the national authorities some discretion../. 63 — Ibid. See Case 158/80 Rewe [1981] ECR 1805, where it is their capacity to give rise directly to rights stated that 'the binding effect of a directive implies that a national authority may not apply to an individual a national legislative or administrative measure which is not in accordance with a provision of the directive which has all the characteristics necessary to render possible its 60 — In that case the Objective' nature of the proceedings application by the court' (paragraph 41); this does not removes the need to examine the conditions for direct require the conditions of precision and unconditionality to effect, as was held, in relation to infringement proceedings, be met but does presuppose that the rule in question is in Case C-431/92 Commission v Germany [1995] ECR suitable for application as it stands, if necessary following I-2189, paragraph 26. interpretation by the court within the limits of its 61 — Simmenthal, cited above, paragraph 21. jurisdiction.

I - 6941 OPINION OF MR LÉGER — CASE C-287/98 down is not required, in order to rule on 93. That also follows from the Court's that point, to verify first whether the settled case-law, according to which 'the provisions of the directive which are relied Community legal order does not in fact aim on are sufficiently precise and uncondi­ in principle to define its concepts on the tional. basis of one or more national legal systems without express provision to that effect'. 64

90. In the light of the proposed reply, it is not necessary to rule on the question whether the national court is required to 94. That principle applies not only to refer a question to the Court of Justice for a Treaty provisions or regulations but also preliminary ruling in order to determine to directives. The interpretation of a term whether the relevant articles of Directive used in a provision of a directive '... which 85/337 are sufficiently precise and uncon­ does not refer to the law of the Member ditional and, in that case, whether those States for the determining of its meaning provisions have those characteristics. and its scope... cannot be left to the discretion of each Member State'. 65 The Directive does not make any reference to the law of the Member States which would support different interpretations depending on the various national laws.

V — Questions 3 and 5

95. Uniform application of Community 91. Called upon to apply Directive 85/337, law and the principle of equality require the Tribunal d'Arrondissement de Luxem­ that conclusion to be drawn. 66 bourg essentially asks whether the term 'projects the details of which are adopted by a specific act of national legislation' in Article 1(5) of Directive 85/337 is to be interpreted in an autonomous manner or in accordance with national law. 96. The objectives pursued by Directive 85/337 confirm that requirement. The Directive seeks to eliminate the disparities between the laws in force in the various

92. None of the parties questions the need to give that term a meaning which ensures 64 — Case 64/81 Corman [1982] ECR 13, paragraph 8. 65 — Verbond van Nederlandse Ondernemingen, cited above, it is applied uniformly throughout the paragraphs 10 and 11. Community. 66 — Case 327/82 Ekro [1984] ECR 107, paragraph 11.

I - 6942 LINSTER

Member States with regard to the assess­ obligations of public information and con­ ment of the environmental effects of public sultation laid down in Articles 5 and 6. and private projects. 67 It states also that '... the principles of the assessment of environ­ mental effects should be harmonised, in particular with reference to the projects which should be subject to assessment, the main obligations of the developers and the 99. In the main proceedings, the Linsters content of the assessment'. 68 Elimination maintain that those obligations did apply, of the disparities between national laws since the 1995 Law amending the 1967 and the harmonisation of those laws inevi­ Law does not come within the definition tably require the Directive's provisions to contained in Article 1(5). They argue that, be read in a uniform manner. in the absence of an assessment and of a public inquiry in accordance with the Directive, the expropriation procedure is unlawful. 70

100. Consequently, the national court seeks to ascertain whether Article 1(5) of Direc­ VI — Questions 4 and 6 tive 85/337 is to be interpreted as covering a law adopted by parliament after public parliamentary debate which authorises the construction of a motorway without defin­ ing its route, so that the construction project does not fall within the scope of 97. As provided in Article 1(5), the Direc­ Directive 85/337. tive does not cover 'projects the details of which are adopted by a specific act of national legislation, since the objectives of this Directive... are achieved through the 69 legislative process'. 101. The Luxembourg Government main­ tains that a motorway construction project adopted by Parliament may be regarded as being excluded from the scope of the Directive as regards consent for the route of the motorway where, first, adoption of the law is accompanied by the passing of a 98. A motorway construction project pro­ motion by which Parliament chooses vided for by a law which comes within that between the various routes which have category would not be subject to the been proposed and calls on the Govern­ ment to decide on a specific route when the regulation implementing the law is adopted 67 — Second recital in the preamble. 68 — Seventh recital in the preamble. 69 — Emphasis added. 70 — Reference for a preliminary ruling, pp. 2 and 3.

I - 6943 OPINION OF MR LÉGER — CASE C-287/98 and, second, that motion is followed by the Court's function under Article 177 of the adoption of an implementing regulation Treaty (now Article 234 EC) and with its which is in accordance with the contents of duty to ensure that the Governments of the the motion. 71 Member States and the parties concerned are given the opportunity to submit obser­ vations under Article 20 of the EC Statute of the Court, bearing in mind that, under that provision, the order of the referring court is notified to the interested parties. 72 102. At the hearing the Grand Duchy of Luxembourg added that public consulta­ tion had taken place before the adoption of the 1995 Law. 105. As regards public consultation, this point and the point concerning the carrying out of an impact assessment were clearly mentioned by the national court, but it did 103. It should be noted that the questions not consider it appropriate to include them referred by the national court relate to the in the text of the questions submitted. 73 I status, with regard to Directive 85/337, of a do not consider it necessary for the Court national legislative measure which does not to take this factual situation into account in settle the route of the motorway that is to order to reply to the questions submitted. be constructed. No reference is made to a The questions do not relate either to motion supplementing the law in question whether or not an assessment was carried by specifying the geographic location of the out in this particular case or to consultation project. of the public in general and the Linsters in particular, these being questions of fact which may be assessed only by the national court: the questions relate to the character­ istics which a law must display in order for the construction project it deals with not to 104. Even if the parliamentary motion in be subject to the obligations relating to question calling on the Government to information and consultation laid down in choose one of the possible routes was the Directive. sufficiently precise and complete for it to be concluded that a 'project the details of which are adopted by a specific act of national legislation' within the meaning of the Directive was involved, I do not think that that matter can be taken into account 106. According to the Luxembourg Gov­ since it is such as to affect the content of the ernment, it cannot be accepted that all the questions referred. The Court of Justice has details relating to the implementation of a consistently held that to alter the substance project, even the most insignificant ones, of questions referred for a preliminary must be the subject of a legislative measure. ruling would be incompatible with the

72 — See, for example, Case C-352/95 Phyteron International [1997] ECR I-1729, paragraph 14. 71 — Paragraph 59 of the written observations. 73 — Reference for a preliminary ruling, p. 11.

I - 6944 LINSTER

Furthermore, a project may be the subject 110. In order to describe the characteristics of consents at several different stages of its which such a legislative act must display, implementation. There is nothing, there­ the Court referred to the definition in fore, to prevent only certain aspects of a Article 1(2) of 'development consent' as project being the subject of a specific act of 'the decision of the competent authority or national legislation and thus being exempt authorities which entitles the developer to from the compulsory environmental assess­ proceed with the project'. 76 The Court ment. 74 clearly laid down the principle that '... if it is a legislative act, instead of a decision of the competent authorities, which grants the developer the right to carry out the project, that act must be specific and display the same characteristics as the development 107. It is necessary in this connection to consent ...'. 77 determine the conditions which a legislative act must meet, as regards its content, in order to be regarded as a 'specific act of national legislation' within the meaning of Directive 85/337. 111. The Court accordingly stated that, '... in order for a legislative act to display the same characteristics as development con­ sent... the act must lay down the project in 108. Recently, in WWF and Others, cited detail, that is to say in a sufficiently precise above, the Court gave a very precise and and definitive manner so as to include, like full interpretation of Article 1(5) of the development consent, following their con­ Directive. I think it appropriate to refer to sideration by the legislature, all the ele­ ments of the project relevant to the envir­ it in order to answer the questions sub­ 78 mitted. onmental impact assessment'.

109. It is stated in that judgment that 112. It is only by complying with such Article 1(5) exempts projects envisaged by requirements that the objectives referred to the directive from the assessment procedure in the second condition laid down by subject to two conditions: 'The first Article 1(5) of the Directive can be requires the details of the project to be achieved through the legislative process. 79 adopted by a specific legislative act; under Indeed, as the Court quite rightly held, if the second, the objectives of the Directive, the legislative act does not include the including that of supplying information, elements of the project which may be must be achieved through the legislative process'. 75 76 — Paragraph 58. 77 — Ibid., emphasis added. 74 — Paragraph 56 of its written observations. 78 — Paragraph 59, emphasis added. 75 — Paragraph 51. 79 — Paragraph 60.

I - 6945 OPINION OF MR LÉGER — CASE C-287/98 relevant to the assessment of its impact on 115. In other words, it is because the the environment, '... the objectives of the project approved by the legislature Directive would be undermined, because a achieves, from the point of view of impact project could be granted consent without assessment and public information and prior assessment of its environmental consultation, the environmental protection effects even though they might be signifi­ objectives pursued by the Directive that it is cant'. 80 exempt from complying with the letter of the Directive.

113. The Court drew the following conclu­ sion from all those factors: '... the details of a project cannot be considered to be 116. The Court, moreover, recalled one of adopted by a law, for the purposes of the principal purposes of the Directive in Article 1(5) of the Directive, if the law does quoting the sixth recital in its preamble, not include the elements necessary to assess which states: 'development consent for the environmental impact of that project public and private projects which are likely but, on the contrary, requires a study to be to have significant effects on the environ­ carried out for that purpose, which must be ment should be granted only after prior drawn up subsequently, and if the adoption assessment of the likely significant environ­ of other measures are needed in order for mental effects of these projects has been the developer to be entitled to proceed with carried out' and '... this assessment must be the project'. 81 conducted on the basis of the appropriate information supplied by the developer, which may be supplemented by the autho­ rities and by the people who may be concerned by the project in question'.

114. The position of the Court is clear. By making an exception for cases where a project is adopted by a legislative act, the Community legislature did not intend to lay down a formal criterion enabling Member 117. The entire reasoning contained in the States to exclude such projects from an judgment in WWF and Others must be assessment of their environmental impact approved and consequently transposed to and from the requirement to inform and the present case. consult the public concerned merely on the basis of the nature of the act in question and the status of the authority which adopted it. Only legislative acts which provide the same safeguards as those which would have been required under the Direc­ tive fall outside the scope of the Directive. 118. Can it reasonably be asserted that, under the Directive, Member States are exempted from assessing the environmental 80 — Paragraph 60. impact of a project and from implementing 81 — Paragraph 62. information and consultation procedures

I - 6946 LINSTER before the project is carried out, whatever route of the motorway is not definitively its nature, solely because they choose to and precisely laid down in the legislative adopt the project through the legislative act in question. process?

119. That proposition is admittedly not 121. It is important that the natural envir­ contradicted by the wording of Article 1(5) onment liable to be affected by the project which is in fact ambiguous and seems to should be identifiable, which is not possible imply an automatic link between recourse unless the route has already been defined. to the legislative process and compliance The same applies as regards the public with the objectives of the Directive. concerned by the project, who are to receive information in advance and to be consulted in advance. 82 No information can be supplied and no consultation can take place unless the geographical location of the project, and hence of the public affected, has been precisely determined. However, the proposition results in the grant to the Member States of a discretion enabling them to derogate as much as they wish from the provisions of the Directive, to the detriment of the environment and of the public concerned by projects which could have an adverse environmental impact. Such a reading of Article 1(5) is thus simply tantamount to repudiating the 122. Consequently, I propose that the objectives pursued by the Council. Court should rule that the inclusion in a general programme laid down by legislative provision of a motorway construction pro­ ject adopted by parliament after public parliamentary debate, but which does not comprise the route of the motorway to be constructed, does not fall within Arti­ cle 1(5) of Directive 85/337 and must 120. On the basis of this most recent case- therefore be subject to the rules laid down law, I consider that merely including a by the Directive. motorway construction project in a general programme for the creation of a compre­ 82 — It is to be remembered that, under Article 1(5), in order for hensive communications network does not a project to be exempt from the arrangements introduced by the Directive, it must have been adopted by means of a mean that the details of the project can be legislative process ensuring compliance with the objective regarded as having been adopted if the 'of supplying information'.

I - 6947 OPINION OF MR LÉGER — CASE C-287/98

Conclusion

123. In the light of the foregoing I propose that the Court give the following answer to the questions submitted by the Tribunal d'Arrondissement de Luxembourg:

(1) Article 189 of the EC Treaty (now Article 249 EC) is to be interpreted as meaning that a national court hearing a case which necessitates consideration of whether a rule of domestic law is compatible with a directive that has not been transposed within the period laid down is not required, in order to rule on that point, to verify first that the provisions of the directive which are relied on are unconditional and sufficiently precise.

(2) Article 1(5) of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment must be interpreted as not covering a motorway construction project, such as the one at issue in the main proceedings, which, having been included in a general programme for a comprehensive road network laid down by legislative provision, following a legislative procedure giving rise to public debate, does not comprise the route of the motorway to be constructed.

I - 6948