Stichting Natuur en Milieu and Others v College van Gedeputeerde Staten van Groningen and College van Gedeputeerde Staten van Zuid-Holland .

In the present instance, actions were brought before the Raad van State (Council of State, Netherlands) concerning permits for the construction and operation of three power stations fuelled by pulverised coal and biomass, namely the permit granted to RWE Power AG for a power station in Eemsmond, in the province of Groningen, and two permits granted respectively to Electrabel Nederland N.V. and E.On Benelux N.V. relating to power stations in Rotterdam, in the province of Zuid-Holland. In those actions, environmental organisations and a number of citizens submitted in essence that, given the fact that the emission ceilings laid down for the Netherlands by the NEC Directive could not be complied with at the end of 2010, the competent authorities should not have granted the permits covered by the IPPC Directive or should, at least, have granted them subject to stricter conditions. In those circumstances, the Raad van State decided to ask the Court of Justice to interpret those two directives. As regards whether, when granting an environmental permit for the construction and operation of an industrial installation, the competent national authorities are obliged to include among the conditions for grant of that permit the national emission ceilings for pollutants laid down by the NEC Directive, the Court answers in the negative. It points out, however, that the Member States must comply with the obligation arising from the NEC Directive to adopt or envisage, within the framework of national programs, appropriate and coherent policies and measures capable of reducing, as a whole, emissions of those pollutants. The national court also asked what obligations were owed by the Member States under the NEC Directive during the transitional period (from 27 November 2002, when the period for transposition expired, until 31 December 2010, the deadline after which the Member States had to comply with the emission ceilings) and whether the competent national authorities might be obliged to refuse or to attach restrictions to the grant of an environmental permit, or to adopt specific compensatory measures, where the national emission ceilings were exceeded or risked being exceeded. In this regard, the Court of Justice rules that, during the transitional period provided for by the NEC Directive, the Member States had to refrain from taking any measures liable seriously to compromise the attainment of the result prescribed by that directive. It is for the national court to review whether this obligation has been complied with. The Court nevertheless points out that, in light of the system established by the NEC Directive, such a review must necessarily be conducted on the basis of an overall assessment, taking account of all the policies and measures adopted in the national territory concerned. As regards the specific content of those national programs, the Court finds that the wide flexibility accorded to the Member States by the NEC Directive prevented limits from being placed upon them in the development of the programs and their thus being obliged to adopt or to refrain from adopting specific measures or initiatives for reasons extraneous to assessments of a strategic nature which took account globally of the factual circumstances and the various competing public and private interests. The imposition of any requirements to that effect would run counter to the intention of the European Union legislature, whose aim in particular was to allow the Member States to strike a certain balance between the various interests involved. Furthermore, that would result in excessive constraints being placed on the Member States, which would accordingly be contrary to the principle of proportionality. Therefore, the Court concludes that, during the transitional period from 27 November 2002 to 31 December 2010, the Member States were not obliged to refuse or to attach restrictions to the grant of an environmental permit such as the permits at issue, or to adopt specific compensatory measures for each permit granted of that kind, even where the national emission ceilings for the pollutants concerned were exceeded or risked being exceeded.