Niels Møller v Haderslev Kommune (C-585/10)

Contents

Judgment of the Court(Eighth Chamber)15 December 2011^noteIn Case C-585/10,REFERENCE for a preliminary ruling under Article 267 TFEU from the Vestre Landsret (Denmark), made by decision of 2 December 2010, received at the Court on 13 December 2010, in the proceedingsNiels MøllervHaderslev Kommune,THE COURT (Eighth Chamber),composed of K. Schiemann, acting as President of the Eighth Chamber, C. Toader and E. Jarašiūnas (Rapporteur), Judges,Advocate General: P. Mengozzi,Registrar: C. Strömholm, Administrator,having regard to the written procedure and further to the hearing on 6 October 2011,after considering the observations submitted on behalf of:— Mr Møller, by G. Lund, advokat,— Haderslev Kommune, by E. Gram, advokat,— the Danish Government, by C. Vang, acting as Agent,— the Czech Government, by M. Smolek and D. Hadroušek, acting as Agents,— Ireland, by D. O’Hagan, acting as Agent, and B. Doherty, Barrister,— the European Commission, by A. Alcover San Pedro, S. Petrova and U. Nielsen, acting as Agents,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following

Judgment

1This reference for a preliminary ruling concerns the interpretation of subheading 6.6(c) of Annex I to Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control (OJ 1996 L 257, p. 26), as amended by Regulation (EC) No 166/2006 of the European Parliament and of the Council of 18 January 2006 (OJ 2006 L 33, p. 1) (‘Directive 96/61’).

2The reference has been made in proceedings between Mr Møller and Haderslev Kommune (Haderslev municipality) (‘the Kommune’) concerning a decision by the Kommune ordering Mr Møller to reduce his livestock holding to a maximum of 750 places for sows.

Legal context

European Union law

3Article 1 of Council Directive 91/630/EEC of 19 November 1991 laying down minimum standards for the protection of pigs (OJ 1991 L 340, p. 33), as amended by Council Directive 2001/88/EC of 23 October 2001 (OJ 2001 L 316, p. 1), (‘Directive 91/630’) stated:‘This Directive lays down the minimum standards for the protection of pigs confined for rearing and fattening.’

4Article 2 of Directive 91/630 provided:‘For the purposes of this Directive, the following definitions shall apply:1. “pig”: an animal of the porcine species, of any age, kept for breeding or fattening;…3. “gilt”: a female pig after puberty and before farrowing;4. “sow”: a female pig after the first farrowing;…’

5Recitals 8 and 27 in the preamble to Directive 96/61 state:(8) … the objective of an integrated approach to pollution control is to prevent emissions into air, water or soil wherever this is practicable, taking into account waste management, and, where it is not, to minimise them in order to achieve a high level of protection for the environment as a whole;…(27) … this Directive is concerned with installations whose potential for pollution, and therefore transfrontier pollution, is significant; …’

6Article 1 of Directive 96/61 defines the purpose and scope of that directive in the following terms:‘The purpose of this Directive is to achieve integrated prevention and control of pollution arising from the activities listed in Annex I. It lays down measures designed to prevent or, where that is not practicable, to reduce emissions in the air, water and land from the abovementioned activities, including measures concerning waste, in order to achieve a high level of protection of the environment taken as a whole, without prejudice to [Council] Directive 85/337/EEC [of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40), as amended by Council Directive 97/11/EC of 3 March 1997 (OJ 1997 L 73, p. 5),] and other relevant Community provisions.’

7Article 2 of Directive 96/61 is worded as follows:‘For the purposes of this Directive:…3. “installation” shall mean a stationary technical unit where one or more activities listed in Annex I are carried out, and any other directly associated activities which have a technical connection with the activities carried out on that site and which could have an effect on emissions and pollution;4. “existing installation” shall mean an installation in operation or, in accordance with legislation existing before the date on which this Directive is brought into effect, an installation authorised or in the view of the competent authority the subject of a full request for authorisation, provided that that installation is put into operation no later than one year after the date on which this Directive is brought into effect;…9. “permit” shall mean that part or the whole of a written decision (or several such decisions) granting authorisation to operate all or part of an installation, subject to certain conditions which guarantee that the installation complies with the requirements of this Directive. ……’

8Paragraph (1) of Article 5 of Directive 96/61, which relates to the requirements for the granting of permits for existing installations, states:‘Member States shall take the necessary measures to ensure that the competent authorities see to it, by means of permits in accordance with Articles 6 and 8 or, as appropriate, by reconsidering and, where necessary, by updating the conditions, that existing installations operate in accordance with the requirements of Articles 3, 7, 9, 10, 13, the first and second indents of 14, and 15(2) not later than eight years after the date on which this Directive is brought into effect, without prejudice to specific Community legislation.’

9Paragraphs (1) and (3) of Article 9 of Directive 96/61, which relates to the conditions of the permit, provide:1. Member States shall ensure that the permit includes all measures necessary for compliance with the requirements of Articles 3 and 10 for the granting of permits in order to achieve a high level of protection for the environment as a whole by means of protection of the air, water and land.…3.The permit shall include emission limit values for pollutants, in particular those listed in Annex III, likely to be emitted from the installation concerned in significant quantities, having regard to their nature and their potential to transfer pollution from one medium to another (water, air and land). If necessary, the permit shall include appropriate requirements ensuring protection of the soil and ground water and measures concerning the management of waste generated by the installation. Where appropriate, limit values may be supplemented or replaced by equivalent parameters or technical measures.For installations under subheading 6.6 in Annex I, emission limit values laid down in accordance with this paragraph shall take into account practical considerations appropriate to these categories of installation.…’

10Under subheading 6.6 in Annex I to Directive 96/61, the following are categories of activities covered by that directive:‘Installations for the intensive rearing of poultry or pigs with more than:…(b) 2000 places for production pigs (over 30 kg),or(c) 750 places for sows.’

11Point 2 of the introduction to Annex I states that the threshold values given in that annex generally refer to production capacities or outputs.

National law

12Paragraph 41(1) and (2) of the Law on environmental protection (lov om miljøbeskyttelse), as published by Consolidating Law No 1757 of 22 December 2006, provides:1. If a listed undertaking causes significant pollution, the supervisory authorities may order that the pollution is to be reduced, including specific measures. The supervisory authorities may also issue an order if a listed undertaking is deemed to entail an obvious risk of significant pollution.2. If the pollution cannot be reduced, the supervisory authorities may issue a prohibition on continued operation and potentially order the undertaking to be shut down.’

13Paragraph 1(6) of Order No 1640 of 13 December 2006 relating to approval, in the version applicable to the dispute in the main proceedings, provides:‘livestock holdings covered by point I.101 in the list in Annex 1 are to be deemed to be listed undertakings until such time as the livestock holding carries out changes or expansion…’

14Point I.101 of Annex 1 to that order provides:‘Facilities for livestock operations for more than:(a) 250 livestock units, or 270 livestock units if at least 90 % of the livestock units are sows with accompanying piglets of up to 30 kg, or 750 sty places for sows.’

The dispute in the main proceedings and the question referred for a preliminary ruling

15On 8 November 2007 the Kommune conducted an environmental inspection of Mr Møller’s holding. During that inspection, the latter was found to consist of a livestock holding of 875 yearling sows. On 26 November 2007, the Kommune served notice on Mr Møller to reduce the capacity of his holding to a maximum of 750 places for sows, on the ground that he did not have the permit required to operate an installation having more that 750 of those places. On 20 December 2007, the Kommune ordered Mr Møller to make such a reduction by 15 June 2008 at the latest. Mr Møller challenged that decision before the Vestre Landsret (Western Regional Court).

16In his action before the Vestre Landsret, Mr Møller submits that it is necessary to distinguish places for gilts from places for sows. He takes the view that the term ‘sow’ refers only to adult female pigs which have farrowed, whereas the term ‘gilt’ designates adult female pigs which have been serviced once, but have not yet farrowed. Mr Møller maintains that the Kommune thus incorrectly included the number of places for gilts in the number of places for sows on his holding. Consequently, he argues, the contested decision is unlawful because the capacity of his holding does not exceed the limit of 750 places for sows.

17The Kommune submits, before the Vestre Landsret, that it was justified in including the places for gilts in the number of places for sows. It maintains that the objective of Directive 96/61 is to protect the environment and that there is no reason to take the view that a gilt pollutes less than, or in a different manner to, a sow. It concludes that places for gilts are covered by the expression ‘places for sows’. According to the Kommune, the legislation on animal welfare is not relevant in that regard.

18In the order for reference, the Vestre Landsret states, first, that the number of places for sows on Mr Møller’s holding exceeds the limit of 750 only if the places for gilts are taken into account and, secondly, that the places intended for sows, which are female pigs that have farrowed, and those earmarked for gilts, which are female pigs that have not yet farrowed, are physically laid out in the same way.

19Furthermore, that court states that, although the expression ‘places for sows’ is not defined in Directive 96/61, Directive 91/630 makes a distinction between sows and gilts. In that regard, it states that gilts represent between 12 % and 20 % of a livestock holding of sows. Consequently, the question as to whether subheading 6.6(c) of Annex I to Council Directive 96/61 is to be interpreted as including places for gilts among those intended for sows has a bearing on the scope of that directive and, therefore, on the outcome of the proceedings which have been brought before it.

20In those circumstances, the Vestre Landsret decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:‘Is subheading 6.6(c) of Annex I to Council Directive [96/61] to be interpreted as covering places for gilts?’

Consideration of the question referred

21By its question, the national court asks, in essence, whether the expression ‘places for sows’, in subheading 6.6(c) of Annex I to Directive 96/61, is to be interpreted as meaning that it includes places for gilts.

22Mr Møller and Ireland take the view that that question should be answered in the negative, particularly in view of the legislation on animal welfare, which distinguishes sows from gilts. Mr Møller further submits that, according to the case-law of the Court, the pollution generated by those animals may not be taken into account for the purposes of the interpretation sought, as the Court has already rejected the possibility of calculating the authorisation thresholds for installations for intensive rearing according to the method known as ‘animal-equivalents’.

23The Kommune, the Danish and Czech Governments and the European Commission, by contrast, take the view that the expression ‘places for sows’ includes places for gilts, inter alia by reason of the fact that, in their opinion, environmental considerations must take precedence for the purpose of interpreting Directive 96/61. Gilts, they submit, generate pollution which is at least equivalent to that generated by sows.

24In that regard, it must be pointed out, first, that it is apparent from the order for reference that the term ‘gilt’ designates, in the present case, female pigs which, although they have already been serviced, have not yet farrowed. Secondly, Directive 96/61, in which the term ‘gilt’ does not appear, does not define what is meant by a ‘sow’.

25According to settled case-law, the meaning and scope of terms for which European Union law provides no definition must be determined by considering their usual meaning in everyday language, while also taking into account the context in which they occur and the purposes of the rules of which they are part (see, inter alia, Case C-72/95 Kraaijeveld and Others [1996] ECR I-5403, paragraph 38; Case C-549/07 Wallentin-Hermann [2008] ECR I-11061, paragraph 17; and Case C-473/07 Association nationale pour la protection des eaux et rivières and OABA [2009] ECR I-319, paragraphs 23 and 24).

26Likewise, the need for a uniform interpretation of the various language versions of a provision of European Union law also requires that, in the case of divergence between those language versions, the provision in question be interpreted by reference to the purpose and general scheme of the rules of which it forms part (Kraaijeveld and Others, paragraph 28, and Case C-63/06 Profisa [2007] ECR I-3239, paragraph 14).

27With regard to the usual meaning of the term ‘sow’, it must be pointed out that this generally designates a female pig. In that regard, it is important to note that Article 2 of Directive 91/630 states that the definitions that it contains are given ‘for the purposes’ of that directive, that is to say, that those definitions are specific to it. Therefore, contrary to what Ireland maintained at the hearing, the definition of the term ‘sow’ in that article cannot be regarded as allowing the usual meaning of that term to be determined. That being the case, the term ‘sow’, as that same Member State pointed out, does not have a univocal meaning in all the official languages of the European Union. That term may also, in particular in German and English, be understood as referring only to female pigs which have already farrowed once.

28It is therefore necessary also to examine the general scheme and purposes of Directive 96/61.

29The Court has already held that the purpose of Directive 96/61, as laid down in Article 1, is to achieve integrated prevention and control of pollution by putting in place measures designed to prevent or reduce emissions of the activities listed in Annex I into the air, water and land in order to achieve a high level of protection of the environment (Association nationale pour la protection des eaux et rivières and OABA, paragraph 25).

30That integrated approach is realised by appropriate coordination of the procedure and authorisation conditions for industrial installations which have a significant potential for pollution, making it possible to achieve the highest level of protection for the environment as a whole, which must in all cases include provisions minimising long-distance or transboundary pollution and ensure a high level of protection for the environment as a whole (Association nationale pour la protection des eaux et rivières and OABA, paragraph 26).

31As the purpose of Directive 96/61 has therefore been broadly defined, subheading 6.6(c) of Annex I to that directive cannot, as Mr Møller and Ireland suggest, be interpreted restrictively in such a way as to exclude places intended for gilts (see, by analogy, Association nationale pour la protection des eaux et rivières and OABA, paragraph 27).

32An interpretation which equates gilts with the sows referred to in subheading 6.6(c) of Annex I to Directive 96/61 is borne out, in the first place, by the context in which the term ‘sow’ in that provision is used. Subheading 6.6 distinguishes, as regards the intensive rearing of pigs, between production pigs of over 30 kilograms, which are referred to in subheading 6.6(b), and sows, which are referred to in subheading 6.6(c). Consequently, for the purposes of Directive 96/61, a distinction is made between the intensive rearing of male or female production pigs of over 30 kilograms intended for fattening, and the intensive rearing of female pigs intended for reproduction. If a female pig has been serviced once, it comes, in the nature of things, within the category of female pigs intended for reproduction and must, therefore, be covered by the concept of ‘sow’ for the purposes of subheading 6.6(c) in the same way as a female pig which has already farrowed.

33That interpretation is borne out, in the second place, by the fact, referred to by the Danish and Czech Governments and by the Commission, and not seriously challenged by Mr Møller, that a female pig which has been serviced once is a source of pollution having the same effect on the environment as that generated by a sow which has already farrowed. In that regard, it must be pointed out that, in view of the fact that the purpose of Directive 96/61 is, as is apparent from paragraphs 29 and 30 of the present judgment, to achieve a high level of protection of the environment by making industrial installations which have a significant potential for pollution subject to authorisation and to certain conditions, the pollution resulting from a given activity is, contrary to what Mr Møller maintains, certainly relevant for the purposes of the interpretation of subheading 6.6(c) of Annex I to that directive.

34It is also important to point out in that regard that the Court, in paragraph 40 of the judgment in Association nationale pour la protection des eaux et rivières and OABA, did not exclude all possibility of establishing the prior authorisation threshold of installations for intensive rearing in accordance with a system of ‘animal-equivalents’ which takes into account the pollution actually generated by a given animal. It merely took the view that, first, the use of such a method should be permitted only if it is fully consistent with the objective of prevention and control of pollution arising from certain activities, pursued by Directive 96/61, and that, secondly, the use of that method must not have the effect of excluding from the system established by that directive installations set up under that method in relation to their total number of places (Association nationale pour la protection des eaux et rivières and OABA, paragraph 40).

35The fact that Directive 91/630 make a distinction between, inter alia, sows and gilts is not such as to call into question the interpretation set out in paragraph 32 of the present judgment.

36It is apparent from Article 1 of Directive 91/630 that that directive lays down minimum standards for the protection of pigs confined for rearing and fattening, which standards, according to the second recital in the preamble to the directive, are designed to ensure animal welfare. To that end, the directive provides for various rules intended, inter alia, to ensure that pigs in the wider sense benefit from an environment corresponding to their need for exercise and to their investigatory animal nature, and which allows them, as the case may be, to interact socially with other pigs (see recitals 4 and 5 in the preamble to Directive 2001/88).

37Directive 91/630 thus has a manifestly different purpose from that assigned to Directive 96/61 and, consequently, the provisions of Directive 91/630 cannot be used to determine how the concept of ‘sow’ in subheading 6.6(c) of Annex I to Directive 96/61 is to be interpreted.

38Furthermore, it is important, first, to state that Directive 96/61 does not contain any reference to Directive 91/630 as regards the definition of the activities which it covers and, secondly, to reiterate that, as has already been established in paragraph 27 of the present judgment, Article 2 of Directive 91/630 states that the definitions which that directive contains are specific to it.

39It follows from all of the foregoing that the answer to the question referred is that the expression ‘places for sows’, in subheading 6.6(c) of Annex I to Directive 96/61, must be interpreted as meaning that it includes places for gilts (female pigs which have already been serviced, but have not yet farrowed).

Costs

40Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (Eighth Chamber) hereby rules: The expression ‘places for sows’, in subheading 6.6(c) of Annex I to Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control, as amended by Regulation (EC) No 166/2006 of the European Parliament and of the Council of 18 January 2006, must be interpreted as meaning that it includes places for gilts (female pigs which have already been serviced, but have not yet farrowed).