By its action, the Commission of the European Communities requested the Court to declare that, in failing to correctly transpose Articles 2(1) and 4 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, as amended by Council Directive 97/11/EC of 3 March 1997, the United Kingdom of Great Britain and Northern Ireland had failed to fulfill its obligations under that directive and under the EC Treaty.
Article 2(1) of Directive 85/337 provided: ‘Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects.”
By virtue of Article 3 of Directive 97/11, the Member States had to adopt the measures necessary to comply with that directive by 14 March 1999 at the latest.
Since the Commission considered that, by not providing in national legislation that Crown development was subject to the requirements of Directive 85/337, the United Kingdom had not transposed Articles 2(1) and 4 of Directive 85/337 correctly within the prescribed period, it initiated the infringement procedure provided for in the first paragraph of Article 226 EC.
The United Kingdom Government acknowledged that it was necessary to transpose Articles 2(1) and 4 of Directive 85/337 by adopting binding national legislation and not by instituting an administrative practice. It committed itself to taking the measures necessary for such transposition by removing the Crown exemption provided for by national law. It stated, however, that those measures could not be adopted before the end of 2005.
The court emphasized that according to settled case-law, the question whether a Member State had failed to fulfill its obligations had to be determined by reference to the situation prevailing in that Member State at the end of the period laid down in the reasoned opinion.
Since the United Kingdom had not adopted, before expiry of the period set in the reasoned opinion, the measures required in order to bring its legislation into conformity with Community law, the action brought by the Commission had to be considered well founded.
Therefore it held that, in failing to correctly transpose Articles 2(1) and 4 of Directive 85/337, the United Kingdom had failed to fulfill its obligations under that directive.