Slide 1
Presentation refers to the first and highly relevant stage of the EIA procedure
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Slide 2
Overview on session content
Very interrelated decisions concerning screening stage – and (limits of)
discretion of MS.
Some 11 decisions of the ECJ are to be highlighted in slides.
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Slide 3
Read and explain Article 4 and Annexes I and II of the directive – Directive
2011/92/EU – screening for Annex II projects is done quite different in MS
though.
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Slide 4
Facts of the Case:
Agreement between Wallonia region and TNT express worldwide (private
company) to modify infrastructure of an airport. The agreement contains a
pretty exact description of the works to be carried out. Can this agreement
be considered a “project”?
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Slide 5
ECJ ruling in 2/2007
That question calls for a negative answer. It is apparent from the very wording of
Article 1(2) that the term ‘project’ refers to works or physical interventions. An
agreement cannot, therefore, be regarded as a project within the meaning of the
Directive, irrespective of whether that agreement contains a more or less exact
description of the works to be carried out.
In the present case, it should be pointed out to the national court that it is for it to
determine, on the basis of the applicable national legislation, whether an agreement
such as the one at issue in the main proceedings constitutes a development consent
within the meaning of Article 1(2) that is to say a decision of the competent authority
which entitles the developer to proceed with the project. Such would be the case if
that decision could, under national law, be regarded as a decision of the competent
authority or authorities granting the developer the right to proceed with construction
works or other installations or schemes or to intervene in the natural surroundings and
landscape.
Where national law provides that the consent procedure is to be carried out in several
stages, the environmental impact assessment in respect of a project must, in principle,
be carried out as soon as it is possible to identify and assess all the effects which the
project may have on the environment. Thus, where one of those stages involves a
principal decision and the other involves an implementing decision which cannot
extend beyond the parameters set by the principal decision, the effects which a project
may have on the environment must be identified and assessed at the time of the
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procedure relating to the principal decision. (paragraphs 23-28)
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Slide 6
Number of EIAs in EU MS differs considerably – it shows how different
provisions are applied and how important screening stage is.
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Slide 7
Case 133/94
Facts of case: In the Flemish Region the lists of projects set out in domestic
legislation dos not cover all the projects mentioned in Annex II. As a result,
the projects not covered will never be examined in order to determine
whether their characteristics are such as to require an environmental impact
assessment.
The Belgian Government argues that, when it adopted the orders at issue,
the Flemish Government took the view that, in the light of the state of the
environment in Flanders, only some categories of projects mentioned in
Annex II, which come within the thresholds and other criteria which it has
established, ought, by reason of their nature, to be subjected to
environmental impact assessment. It therefore considered implicitly that the
characteristics of all the other projects mentioned in Annex II are such that it
is unnecessary to subject them to assessment. (para 34)
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Slide 8
ECJ ruling paragraphs 41 - 45
Whilst it appears from that provision that MS may always specify certain 'types' of projects as being
subject to assessment or may establish criteria and/or thresholds for determining which projects are
to be subject to assessment, it must be emphasized that that power of the MS is conferred within
each of the classes listed in Annex II. This means that the Community legislature itself considered
that all the classes of projects listed in Annex II may possibly have significant effects on the
environment depending on the characteristics exhibited by those projects at the time when they
were drawn up.
It follows that the criteria and/or the thresholds mentioned in Article 4(2) are designed to facilitate the
examination of the actual characteristics exhibited by a given project in order to determine whether it
is subject to the requirement to carry out an assessment and not to exempt in advance from that
obligation certain whole classes of projects listed in Annex II which may be envisaged on the
territory of a Member State.
Consequently, Article 4(2) does not empower the Member States to exclude generally and
definitively from possible assessment one or more classes mentioned in Annex II.
In view of that finding, the aforementioned arguments put forward by the Belgian and German
Governments to the effect that Article 4(2) does not preclude the possibility for a MS to determine
the projects to be subjected to assessment in the abstract using criteria and/or thresholds and
therefore does not require a decision to be taken on each specific project are irrelevant to this case,
irrespective as to whether they are based on a correct interpretation of Article 4(2).
In view of the foregoing it must be held that the Flemish legislation at issue does not correctly
transpose Article 2(1) and Article 4(2) of the directive, since it impliedly excludes in advance all the
classes of projects mentioned in Annex II which are not covered by that legislation from the
possibility of assessment, even if it should prove that the characteristics of projects belonging to
those classes are such as to require such assessment.
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Slide 9
C-486/06 (extracts from paras 27 – 34)
The Commission considers that the Massafra incineration installation, whose capacity
exceeds 100 tonnes of waste per day, falls within point 10 of Annex I to Directive 85/337
and, as such, should, before being authorised, have been subject to an EIA.
The Commission also submits that the installations covered by Annex II to Directive
85/337 and, in particular, those to which point 11(b) of that annex refers, must, whether
they concern waste disposal or recovery, at least be subject to the determination
procedure under Article 4(2).
According to that institution, the term ‘disposal’ mentioned in points 9 and 10 of Annex I
and point 11(b) of Annex II to Directive 85/337 also covers both disposal in the strict
sense of the word and recovery operations.
Commission adds that it does not see what difference there can be, from the point of
view of the effect on the environment, between the construction in a given area of an
installation carrying out waste recovery operations and that of an installation carrying out
waste disposal operations.
Italy:
By establishing, on one hand, a link between Directive 85/337 and Directive 75/442 as
regards the technical terms used concerning waste and by referring, on the other hand,
to the actual wording of Annex I, points 9 and 10 and to that of Annex II, point 11(b) to
Directive 85/337, which rely on the single concept of waste disposal, the Italian Republic
considers that that latter directive applies only to installations which carry out waste
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disposal, thus excluding from its scope waste recovery installations.
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Slide 10
ECJ ruling (para 44 – 45)
It must be held that the concept of waste disposal for the purpose of Directive
85/337 is an independent concept which must be given a meaning which fully
satisfies the objective pursued by that measure, recalled at paragraph 36
above. Accordingly, that concept, which is not equivalent to that of waste
disposal for the purpose of Directive 75/442, must be construed in the wider
sense as covering all operations leading either to waste disposal, in the strict
sense of the term, or to waste recovery.
As a result, the establishment in Massafra, which generates electricity from
the incineration of biomass and CMW and has a capacity exceeding 100
tonnes per day, comes into the category of disposal installations for the
incineration or chemical treatment of non-hazardous waste in point 10 of
Annex I to Directive 85/337. As such, before being authorised, it should have
undergone the environmental impact assessment procedure, since the
projects which fall within Annex I must undergo a systematic assessment
under Articles 2(1) and 4(1) of that directive (see, to that effect, Case
C-431/92 Commission v Germany [1995] ECR I-2189, paragraph 35).
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Slide 11
(Read Annex II 1b, 1d, 2a of EIA Directive)
EU Commission position (para 19)
The Commission alleges that Ireland has transposed Article 4(2) of the
Directive incorrectly by setting absolute thresholds for the classes of projects
covered by points 1(b) (use of uncultivated land or semi-natural areas for
intensive agricultural purposes), 1(d) (initial afforestation / land reclamation)
and 2(a) (extraction of peat)of Annex II to the Directive. The absolute nature of
the thresholds means that it is not possible to ensure that every project likely to
have significant effects on the environment is subject to an impact
assessment, because the mere fact that a project does not reach the threshold
is sufficient for it not to subjected to such assessment, regardless of its other
characteristics.
Under Article 4(2) of the Directive, however, account must be taken of all the
characteristics of a project, not the single factor of size or capacity.
Furthermore, Article 2(1) refers also to a project's nature and location as
criteria for assessing whether it is likely to have significant environmental
effects. The Commission considers that this analysis is consistent with the
judgments of the Court
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Slide 12
EU-Commission position (paras 20 – 22)
According to the Commission, projects which do not exceed the thresholds
set may none the less have significant environmental effects. Two factors are
important in that regard.
The first factor is that certain sites which are particularly sensitive or valuable
maybe damaged by projects which do not exceed the thresholds set. That is
the case with areas identified as valuable and important for nature
conservation and areas of particular archaeological or geomorphological
interest.
The second factor is that the legislation fails to take account of the
cumulative effect of projects. A number of separate projects, which
individually do not exceed the threshold set and therefore do not require an
impact assessment may, taken together, have significant environmental
effects.
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Slide 13
Irish position
Ireland submits that the Commission has failed to prove actual abuse of thresholds through
cumulative projects. The theoretical possibility of such abuse does not make the use of
thresholds unlawful: their use is envisaged by the Directive and has been approved in the
two cases considered by the Court (omission v Belgium and Kraaijeveld,. It is only Council
Directive 97/11/EC of 3 March 1997 amending Directive 85/337) which has required account
to be taken of the cumulation of projects.
As regards projects for the use of uncultivated land or semi-natural areas for intensive
agricultural purposes, covered by point 1(b) of Annex II to the Directive, Ireland disputes that
sheep grazing as practised in its territory comes under intensive agriculture and can be
considered to be a project within the meaning of Article 1(2) of the Directive. It is not an
intervention in the natural surroundings and landscape within the meaning of that provision
and it would be absurd to suggest that a farmer is obliged to seek prior consent whenever he
wants to increase the number of sheep able to graze on a piece of land. That suggestion is
particularly impracticable because much of the land used for the grazing of sheep is
commonage, shared between a number of farmers who all have the right to graze their
sheep there.
As regards the objection relating to afforestation, Ireland submits that the Commission has
adduced no objectively verifiable evidence that afforestation below the threshold has had
significant effects on waters.
Nor is there any evidence that afforestation on peat land has had significant environmental
effects.
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Slide 14
ECJ ruling extracts
A Member State which established criteria or thresholds taking account only of
the size of projects, without also taking their nature and location into
consideration, would exceed the limits of its discretion under Articles 2(1) and
4(2)of the Directive.
Even a small-scale project can have significant effects on the environment if it is
in a location where the environmental factors set out in Article 3 of the Directive,
such as fauna and flora, soil, water, climate or cultural heritage, are sensitive to
the slightest alteration. (para 65 – 66)
That would be the case where a Member State merely set a criterion of project
size and did not also ensure that the objective of the legislation would not be
circumvented by the splitting of projects. Not taking account of the cumulative
effect of projects means in practice that all projects of a certain type may escape
the obligation to carry out an assessment when, taken together, they are likely to
have significant effects on the environment within the meaning of Article 2(1) of
the Directive.
In order to demonstrate that Ireland has failed to fulfil its obligations in this regard
the Commission has also provided various examples of the effects of the Irish
legislation as drafted. (para 76 – 77)
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Slide 15
ECJ ruling extract (para 59)
the relevant criterion for the implementation of Directive 85/337 is the
significant effect that a particular project is ‘likely’ to have on the
environment (see, in that regard, Article 1(1) of the Directive and the fifth
and sixth recitals in the preamble thereto). Under those conditions, it is
not for the Commission to establish the concrete negative effects that a
project in fact has on the environment. On the other hand, the
Commission has in the present case proved to the requisite legal
standard that the project in question falls within the scope of one of the
provisions of Annex I to that directive and must therefore be made
subject to a mandatory environmental impact assessment.
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Slide 16
Infringement of Commission against Spain with 5 complaints in total
4th complaint concerns insufficient legislation:
Commission position:
Annex II to Directive 85/337/EEC, as amended, includes in Point 10(b), among the
projects which may have to be the subject of an environmental impact assessment,
urban-development projects, including the construction of shopping centres and
parking facilities. The Spanish legislation reduces that requirement so as to apply only
to projects outside urban areas. The Commission considers that that reduction of
scope, which generally excludes the taking into consideration of criteria or thresholds
relating to the dimensions and nature of the projects, goes beyond the degree of
latitude available to the Member States under Articles 2(1) and 4(2) of Directive
85/337/EEC, as amended. In addition, it is clear from an analysis of the State and
Autonomous Community legislation on town planning and of the Autonomous
Community legislation on environmental impact assessments that urban-development
projects on urban land and developable land are not, in most of the Autonomous
Communities, subject to environmental impact assessment.
Because the domestic legislation was not properly amended so as to conform with
Annex II to Directive 85/337/EEC, as amended, the Spanish authorities did not carry
out an environmental impact assessment for a leisure centre at Paterna (Valencia),
the only explanation given for not doing so being that it was to be constructed in an
urban area.
Spanish position: see slide text
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Slide 17
Commission ruling in C-332/04 , Para 77 – 79
By limiting the environmental impact assessment for urban development projects
exclusively to projects located on non-urban land, the Spanish Government is confining
itself to applying the criterion of location, which is only one of three criteria set out in
Article 2(1) of the EIA Directive, and is failing to take account of the other two criteria,
namely the nature and size of a project. Moreover, insofar as Spanish law provides for
environmental impact assessment only in respect of urban development projects outside
urban areas, it fails to apply completely the criterion of location.
ECJ in C-486/04 reiterates this:
Para 55 Annex III to Directive 85/337 distinguishes, among the selection criteria referred
to in Article 4(3), (i) the characteristics of projects, which must be considered having
regard, in particular, to the size of the project, the cumulation with other projects, the use
of natural resources, the production of waste, pollution and nuisances and the risk of
accidents, (ii) the location of projects, which means that the environmental
sensitivity of geographical areas likely to be affected by projects must be
considered having regard, in particular, to the existing land use and the absorption
capacity of the natural environment, and (iii) the potential significant effects of projects
having regard in particular to the geographical area and size of the population.
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Slide 18
ECJ ruling in C-332/04, para 79 -80
In fact, densely populated areas and landscapes of historical, cultural or
archaeological significance in points 2c vi and vii of Annex III of the EIA
Directive are among the selection criteria to be taken into account by
Member States, under Article 4(3) of the Directive, in the event of a case-bycase examination or of setting thresholds or criteria for the purpose of Article
4(2) to determine whether a project should be subject to an assessment.
These selection criteria relate more often to urban areas.
The argument of the Spanish government cannot be accepted given the list
of factors that may be directly or indirectly affected by projects covered by
Directive 85/337.
Factors listed in Article 3 can be found both inside and outside urban areas
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Slide 19
(additional info to the slide)
Those projects concern specifically the re-routing underground, first, of the M-30
between Marquès de Monistrol and Puente de Segovia, between Puente de Segovia
and Puente de San Isidro, between Puente de San Isidro and Puente de Praga and
between Puente de Praga and Nudo Sur and, second, of the Avenida de Portugal as
far as the San Vicente roundabout. According to CODA’s observations, which are not
contradicted in that respect, the M-30 is a road intended exclusively for motor traffic,
without traffic lights, pavements or verges for pedestrians and without bus stops or taxi
ranks. (paras 17 – 18)
The projects are part of a complex civil engineering scheme which consists in
improving and refurbishing virtually the whole of the Madrid urban ring road. That
scheme, also called ‘Madrid calle 30’, aims, according to the observations of the
Ayuntamiento de Madrid, to reduce congestion on the roads and the risk of accidents,
and not to increase the traffic capacity on that road.
It is apparent from the order for reference that the Madrid City Council has split the
larger ‘Madrid calle 30’ project into 15 independent sub-projects, treated separately,
only one of which concerns alteration or rehabilitation work on any existing road on a
section exceeding five kilometres, the threshold at which the regional rules applicable
make a project subject to an environmental impact assessment, while the larger project
taken as a whole substantially exceeds that threshold. It is also clear from the referring
court’s explanations that, according to certain estimates, the execution of the overall
scheme will lead to an increase in traffic of nearly 25% and will involve different kinds
of works in the urban area surrounding the M-30. (para 20)
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Slide 20
Refering court: Juzgado de lo Contencioso-Administrativo No 22 de Madrid (Spain)
Para 25:
By the first three questions, which it is appropriate to examine together, the referring
court asks essentially whether the amended directive must be interpreted as meaning
that projects for the refurbishment and improvement of virtually the whole of an urban
ring road must be made subject to an environmental impact assessment taking
account, inter alia, of the nature of those projects, the type of road in question, the
characteristics and size of the projects, their effect on densely populated areas or
landscapes having a historical, cultural or archaeological significance, and the fact that
they are the result of the splitting up of a larger project concerning the execution of a
series of similar works on the same road.
Madrid argument (para 27):
According to the Ayuntamiento de Madrid, the ring road concerned in the main
proceedings is an urban road. The amended directive does not refer to that type of
road in Annexes I and II, which mention only motorways, express roads and roads.
Furthermore, those terms are not defined, except, with respect to the notion of express
road, by reference to the definition given by the agreement. According to the defendant
in the main proceedings, in the absence of clarification as to those terms, the Spanish
law transposing the amended directive repeated its exact words. Since urban roads
are not mentioned there, it was entitled to take the view that projects for the alteration
of such a road were not covered by the amended directive and, consequently, did not
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have to be made subject to an environmental impact assessment.
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Slide 21
ECJ ruling (paras 28 – 34 extracts)
That argument cannot be accepted. The Court has stated on numerous occasions that the scope of
Directive 85/337 and that of the amended directive is very wide .It would, therefore, be contrary to the
very purpose of the amended directive to allow any urban road project to fall outside its scope solely on
the ground that the directive does not expressly mention among the projects listed in Annexes I and II
those concerning that kind of road.
Point 7(b) and (c) of Annex I to the amended directive mentions among the projects which must be made
subject to an environmental impact assessment ‘motorways’, ‘express roads’ and ‘[c]onstruction of a new
road of four or more lanes, or realignment and/or widening of an existing road of two lanes or less so as
to provide four or more lanes, where such new road, or realigned and/or widened section of road would
be 10 km or more in a continuous length’. As to Annex II, it mentions in point 10(e) and the first indent of
point 13 respectively ‘[c]onstruction of roads’ and ‘[a]ny change or extension of projects listed in Annex I
or Annex II, already authorised, executed or in the process of being executed, which may have significant
adverse effects on the environment’ among the projects for which the Member States may require an
environmental impact assessment to be carried out .
The amended directive does not define the concepts mentioned above with the exception of ‘express
roads’, for which it refers to the agreement thereby including the definition of ‘express road’ contained
therein. Since not all the MS are parties to that agreement, this reference concerns the version of the
agreement in force when Directive 85/337 was adopted, that is the agreement of 15 November 1975
According to Annex II to the agreement, an express road is a road reserved for motor traffic accessible
only from interchanges or controlled junctions and on which stopping and parking are prohibited on the
running carriageway(s). It does not follow from that definition that roads sited in urban areas would a
priori be excluded. On the contrary, unless roads in built-up areas are expressly excluded, the words
‘express roads’ cover urban roads which have the characteristics set out in that annex.
…Accordingly, urban road projects must be regarded as falling within the scope of the amended directive.
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Slide 22
ECJ ruling
Para 44 is largely text on slide, plus Para 45:
As regards the projects at issue in the main proceedings, it is clear from
the order for reference that they are all part of the larger project ‘Madrid
calle 30’. It is for the referring court to verify whether they must be dealt
with together by virtue, in particular, of their geographical proximity, their
similarities and their interactions.
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Slide 23
Facts of the case
The subject-matter of the present action is limited to a 13.2-km-long section
between Las Palmas and Oropesa and that, contrary to the Spanish
Government’s assertion, it in no way extends to the whole of the route of the
Valencia-Tarragona line, which is 251 km in length.
EU-Commission:
In its application, the Commission insists that such a doubling of the track of
an existing railway line should be held to be subject to the requirements of
the Directive. In addition, it refers to the entire length of the ValenciaTarragona line, which is 251 km.
According to the Commission, such an assessment was mandatory in the
present case, since it involved one of the projects mentioned in point 7 of
Annex I to the Directive, to which Article 4(1) thereof refers. (para 32)
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Slide 24
Position of Spain, paras 37-39
That directive was not applicable since the work undertaken merely consisted
in improving an already existing railway line by doubling the original single
track without constructing a new railway line and with no need for a new longdistance route.
That view is supported by the wording of the national legislation transposing
point 7 of Annex I to Directive 85/337 into Spanish law, which the
Commission at no time claimed was incompatible with the requirements of
the Directive. Moreover, as regards the wording of point 7, the Englishlanguage version also uses the term ‘lines’ rather than the term ‘tracks’.
In addition, the project at issue is not intended for long-distance traffic within
the meaning of point 7, since it links two towns which are only 13.2 km
distant from one another.
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Slide 25
ECJ ruling in 227/01 (extracts)
The wording of Directive 85/337 indicates that its scope is wide and its purpose very broad (para 46).
On the basis of those considerations alone, point 7 of Annex I to the EIA Directive must be understood to
include the doubling of an already existing railway track. A project of that kind can have a significant
effect on the environment within the meaning of that directive, since it is likely to have lasting effects on,
for example, flora and fauna and the composition of soil or even on the landscape and produce significant
noise effects, inter alia, so that it must be included in the scope of the Directive. The objective of the EIA
Directive would be seriously undermined if that type of project for the construction of new railway track,
even parallel to existing track, could be excluded from the obligation to carry out an assessment of its
effects on the environment. Accordingly, a project of that sort cannot be considered a mere modification
to an earlier project within the meaning of point 12 (now 13) of Annex II to the Directive. (48 – 49)
If the argument of Spain were upheld, the effectiveness of Directive 85/337 could be seriously
compromised, since the national authorities concerned would need only to split up a long-distance project
into successive shorter sections in order to exclude from the requirements of the Directive both the
project as a whole and the sections resulting from that division. (para 53)
Plus Para 59: As regards the Spanish Government’s contention that the Commission failed to provide a
proper statement of reasons for the alleged infringement since it did not furnish evidence that the
doubling of an existing track has effects on the environment beyond those produced by the construction
of the original line, suffice it to point out that the relevant criterion for the implementation of Directive
85/337 is the significant effect that a particular project is ‘likely’ to have on the environment (see, in that
regard, Article 1(1) of the Directive and the fifth and sixth recitals in the preamble thereto). Under those
conditions, it is not for the Commission to establish the concrete negative effects that a project in fact has
on the environment. On the other hand, the Commission has in the present case proved to the requisite
legal standard that the project in question falls within the scope of one of the provisions of Annex I to that
directive and must therefore be made subject to a mandatory environmental impact assessment.
Moreover, it is indisputable that a project of this type is such as to create significant new nuisances, even
if only as the result of the adaptation of the railway line with a view to traffic which can attain a speed of
220 km/h.
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Slide 26
ECJ ruling in 87/02 /(extract)
In the present case, the infringement relates to a project to construct a road
which, in accordance with the Italian legislation which transposes Directive
85/337 and with the Directive itself, should have been screened to determine
whether it needed to be subjected to an assessment. The Commission
claims that the Italian Republic in essence failed to state reasons for the
decision by the Abruzzo Region not to carry out an impact assessment,
which suggests that no preliminary screening was carried out. (para 45)
Information available for the ECJ indicates that no screening was carried out
to determine whether to subject the project ‘Lotto zero’ to an impact study
and that the failure to fulfil obligations as set out by the Commission in its
claims is established. (para 48)
It should be pointed out, however, that if the civil engineer’s opinion had not
been produced at the request of the Court, it would have been impossible to
determine whether the screening had been carried out or not. It must be
observed that a decision by which the national competent authority takes the
view that a project’s characteristics do not require it to be subjected to an
assessment of its effects on the environment must contain or be
accompanied by all the information that makes it possible to check that it is
based on adequate screening, carried out in accordance with the
requirements of Directive 85/337. (para 49)
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