# C_2023252EN.01000501.xml

| 17.7.2023 | EN | Official Journal of the European Union | C 252/5 |
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17.7.2023

EN

Official Journal of the European Union

C 252/5

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Judgment of the Court (Second Chamber) of 25 May 2023 (request for a preliminary ruling from the Verwaltungsgericht Wien — Austria) — WertInvest Hotelbetriebs GmbH v Magistrat der Stadt Wien

(Case C-575/21, (1) WertInvest Hotelbetrieb)

(Reference for a preliminary ruling - Environment - Directive 2011/92/EU - Assessment of the effects of certain public and private projects on the environment - Article 2(1) and Article 4(2) - Projects covered by Annex II - Urban development projects - Examination on the basis of thresholds or criteria - Article 4(3) - Relevant selection criteria set in Annex III - Article 11 - Access to justice)

(2023/C 252/04)

Language of the case: German

Referring court

Verwaltungsgericht Wien

Parties to the main proceedings

Applicant: WertInvest Hotelbetriebs GmbH

Defendant: Magistrat der Stadt Wien

intervener: Verein Alliance for Nature

Operative part of the judgment

| 1. | Article 2(1), Article 4(2)(b) and Article 4(3) of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014, and point 10(b) of Annex II thereto and Annex III thereto,
  must be interpreted as precluding national legislation which makes the carrying out of an environmental impact assessment of ‘urban development projects’ conditional, first, on the attainment of thresholds of land take of at least 15 ha and gross floor area of more than 150 000 m2 and, secondly, on the fact that it is a project for entirely multifunctional development, including at least residential and commercial buildings, a project including the access roads and utilities intended for those buildings, and with a catchment area that extends beyond the area covered by the project. |
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1.

Article 2(1), Article 4(2)(b) and Article 4(3) of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014, and point 10(b) of Annex II thereto and Annex III thereto,

must be interpreted as precluding national legislation which makes the carrying out of an environmental impact assessment of ‘urban development projects’ conditional, first, on the attainment of thresholds of land take of at least 15 ha and gross floor area of more than 150 000 m2 and, secondly, on the fact that it is a project for entirely multifunctional development, including at least residential and commercial buildings, a project including the access roads and utilities intended for those buildings, and with a catchment area that extends beyond the area covered by the project.

| 2. | Article 4(3) of Directive 2011/92, as amended by Directive 2014/52,
  must be interpreted as meaning that, in the context of a case-by-case examination as to whether a project is likely to have significant effects on the environment and must therefore be subject to an environmental impact assessment, the competent authority must examine the project concerned having regard to all the selection criteria listed in Annex III to Directive 2011/92, as amended, in order to determine the relevant criteria in the particular case and must then apply those relevant criteria to the particular situation. |
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2.

Article 4(3) of Directive 2011/92, as amended by Directive 2014/52,

must be interpreted as meaning that, in the context of a case-by-case examination as to whether a project is likely to have significant effects on the environment and must therefore be subject to an environmental impact assessment, the competent authority must examine the project concerned having regard to all the selection criteria listed in Annex III to Directive 2011/92, as amended, in order to determine the relevant criteria in the particular case and must then apply those relevant criteria to the particular situation.

| 3. | Article 11 of Directive 2011/92, as amended by Directive 2014/52,
  must be interpreted as not precluding any case-by-case examination, as provided for in Article 4(2)(a) of Directive 2011/92, as amended, from being carried out for the first time by a court with jurisdiction to grant development consent, as provided for in Article 1(2)(c) of Directive 2011/92, as amended.
  However, an individual who is part of the ‘public concerned’, within the meaning of Article 1(2)(e) of Directive 2011/92, as amended, and who satisfies the criteria laid down by national law as to ‘sufficient interest’ or, as appropriate, ‘impairment of a right’, referred to in Article 11 of that directive, must have the possibility of challenging, before another court of law or, depending on the case, another independent and impartial body established by law, the substantive or procedural legality of any decision taken by such a court with jurisdiction finding that there is no need for an environmental impact assessment |
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3.

Article 11 of Directive 2011/92, as amended by Directive 2014/52,

must be interpreted as not precluding any case-by-case examination, as provided for in Article 4(2)(a) of Directive 2011/92, as amended, from being carried out for the first time by a court with jurisdiction to grant development consent, as provided for in Article 1(2)(c) of Directive 2011/92, as amended.

However, an individual who is part of the ‘public concerned’, within the meaning of Article 1(2)(e) of Directive 2011/92, as amended, and who satisfies the criteria laid down by national law as to ‘sufficient interest’ or, as appropriate, ‘impairment of a right’, referred to in Article 11 of that directive, must have the possibility of challenging, before another court of law or, depending on the case, another independent and impartial body established by law, the substantive or procedural legality of any decision taken by such a court with jurisdiction finding that there is no need for an environmental impact assessment

| 4. | Directive 2011/92, as amended by Directive 2014/52,
  must be interpreted as precluding the grant, before or during the execution of a required environmental impact assessment or before the completion of a case-by-case assessment of the environmental effects intended to clarify the need for an environmental impact assessment, of building permits for individual construction measures which form part of larger urban development projects. |
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4.

Directive 2011/92, as amended by Directive 2014/52,

must be interpreted as precluding the grant, before or during the execution of a required environmental impact assessment or before the completion of a case-by-case assessment of the environmental effects intended to clarify the need for an environmental impact assessment, of building permits for individual construction measures which form part of larger urban development projects.

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(1)  OJ C 2, 3.1.2022.

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