# C_2012133EN.01001502.xml

| 5.5.2012 | EN | Official Journal of the European Union | C 133/15 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/15

---

Reference for a preliminary ruling from the Bundesverwaltungsgericht (Federal Administrative Court) Leipzig (Germany) lodged on 13 February 2012 — Gemeinde Altrip (Municipality of Altrip), Gebrüder Hört GbR, Willi Schneider v Rhineland-Palatinate

(Case C-72/12)

2012/C 133/28

Language of the case: German

Referring court

Referring court

Bundesverwaltungsgericht (Federal Administrative Court) Leipzig

Parties to the main proceedings

Parties to the main proceedings

Applicants: Gemeinde Altrip (Municipality of Altrip), Gebrüder Hört GbR, Willi Schneider

Applicants:

Defendant: Rhineland-Palatinate

Defendant:

Questions referred

Questions referred

| 1. | Is Article 6(1) of Directive 2003/35/EC (1) of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC (2) and 96/61/EC to be interpreted as meaning that Member States were required to declare the rules of national law adopted to implement Article 10a of Directive 85/337/EEC applicable also to those official permit procedures which had been initiated before 25 June 2005 but in which the permits were not issued until after that date? |
| --- | --- |

1.

Is Article 6(1) of Directive 2003/35/EC (1) of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC (2) and 96/61/EC to be interpreted as meaning that Member States were required to declare the rules of national law adopted to implement Article 10a of Directive 85/337/EEC applicable also to those official permit procedures which had been initiated before 25 June 2005 but in which the permits were not issued until after that date?

1

2

| 2. | If Question 1 is answered in the affirmative:
  Is Article 10a 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 Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003, to be interpreted as meaning that Member States were required to extend the applicability of the rules of national law adopted in implementation of Article 10a of Directive 85/337/EEC for the purpose of challenging the procedural legality of a decision to include cases in which an environmental impact assessment was carried out but was incorrect? |
| --- | --- |

2.

If Question 1 is answered in the affirmative:

Is Article 10a 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 Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003, to be interpreted as meaning that Member States were required to extend the applicability of the rules of national law adopted in implementation of Article 10a of Directive 85/337/EEC for the purpose of challenging the procedural legality of a decision to include cases in which an environmental impact assessment was carried out but was incorrect?

| 3. | If Question 2 is answered in the affirmative:
  In cases in which, in accordance with Article 10a(1)(b) of Directive 85/337/EEC, the administrative procedural law of a Member State lays down in principle that access to a judicial review procedure for members of the public concerned is conditional upon maintaining the impairment of a right, is Article 10a of Directive 85/337/EEC to be interpreted as meaning






  (a) | that a challenge before a court to the procedural legality of decisions to which the provisions of this Directive on public participation are applicable can be successful and lead to the decision being set aside only if, in the circumstances of the case, there is a definite possibility that the contested decision would have been different without the procedural error and if, at the same time, the procedural error affected a substantive legal position to which the applicant was entitled, or |
| --- | --- | --- |

3.

If Question 2 is answered in the affirmative:

In cases in which, in accordance with Article 10a(1)(b) of Directive 85/337/EEC, the administrative procedural law of a Member State lays down in principle that access to a judicial review procedure for members of the public concerned is conditional upon maintaining the impairment of a right, is Article 10a of Directive 85/337/EEC to be interpreted as meaning

(a)

that a challenge before a court to the procedural legality of decisions to which the provisions of this Directive on public participation are applicable can be successful and lead to the decision being set aside only if, in the circumstances of the case, there is a definite possibility that the contested decision would have been different without the procedural error and if, at the same time, the procedural error affected a substantive legal position to which the applicant was entitled, or

| (b) | that, in a challenge before a court to procedural legality, procedural errors in decisions to which the provisions of the Directive on public participation are applicable must be considerable on a wider scale? |
| --- | --- |

(b)

that, in a challenge before a court to procedural legality, procedural errors in decisions to which the provisions of the Directive on public participation are applicable must be considerable on a wider scale?

If it is necessary to answer the above question as in b):

Which substantive requirements should apply to procedural errors, in order for these to be taken into account in challenges before a court to the procedural legality of the decision in favour of an applicant?

---

(1)  Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC — Statement by the Commission. (OJ L 156, p. 17).

1

(2)  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 L 175, p. 40).

2

---