# C_2022002EN.01002102.xml

| 3.1.2022 | EN | Official Journal of the European Union | C 2/21 |
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3.1.2022

EN

Official Journal of the European Union

C 2/21

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Request for a preliminary ruling from the Verwaltungsgericht Wien (Austria) lodged on 20 September 2021 — WertInvest Hotelbetriebs GmbH

(Case C-575/21)

(2022/C 2/27)

Language of the case: German

Referring court

Verwaltungsgericht Wien

Parties to the main proceedings

Applicant: WertInvest Hotelbetriebs GmbH

Construction authority: Magistrat der Stadt Wien

Questions referred

| I. | Does Directive 2011/92/EU (1) 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 (OJ 2012 L 26, p. 1) as amended by Directive 2014/52/EU (2) of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92/EU’) preclude a national rule by which the assessment of the environmental effects of urban development projects is made conditional both on the attainment of thresholds for land take of at least 15 ha and for gross floor area of more than 150 000 m2 and on the development project in question being a project for entirely multifunctional development with at least residential and commercial buildings, including the access roads and utilities intended for those buildings, and with a catchment area that extends beyond the area covered by the project? In this regard, is it relevant that national law imposes special conditions for:






  — | theme parks or amusement parks, sports stadia or golf courses (above a certain land take or a certain number of parking spaces); |
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I.

Does Directive 2011/92/EU (1) 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 (OJ 2012 L 26, p. 1) as amended by Directive 2014/52/EU (2) of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92/EU’) preclude a national rule by which the assessment of the environmental effects of urban development projects is made conditional both on the attainment of thresholds for land take of at least 15 ha and for gross floor area of more than 150 000 m2 and on the development project in question being a project for entirely multifunctional development with at least residential and commercial buildings, including the access roads and utilities intended for those buildings, and with a catchment area that extends beyond the area covered by the project? In this regard, is it relevant that national law imposes special conditions for:

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theme parks or amusement parks, sports stadia or golf courses (above a certain land take or a certain number of parking spaces);

| — | industrial or trading estates (above a certain land take); |
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industrial or trading estates (above a certain land take);

| — | shopping centres (above a certain land take or a certain number of parking spaces); |
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shopping centres (above a certain land take or a certain number of parking spaces);

| — | accommodation establishments, such as hotels or holiday villages, and ancillary facilities (above a certain number of beds or a certain land take, limited to the area outside enclosed settlements); and |
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accommodation establishments, such as hotels or holiday villages, and ancillary facilities (above a certain number of beds or a certain land take, limited to the area outside enclosed settlements); and

| — | car parks or garages accessible to the public (above a certain number of parking spaces)? |
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car parks or garages accessible to the public (above a certain number of parking spaces)?

| II. | Does Directive 2011/92/EU require lower thresholds or criteria with lower thresholds (than those referred to in the first question) to be set for areas of particular historical, cultural, urban-design or architectural significance, such as UNESCO World Heritage Sites, having regard, in particular, to the rule in point 2(c)(viii) of Annex III, according to which ‘landscapes and sites of historical, cultural or archaeological significance’ are also to be taken into account when deciding whether an environmental impact assessment must be carried out for the projects listed in Annex II? |
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II.

Does Directive 2011/92/EU require lower thresholds or criteria with lower thresholds (than those referred to in the first question) to be set for areas of particular historical, cultural, urban-design or architectural significance, such as UNESCO World Heritage Sites, having regard, in particular, to the rule in point 2(c)(viii) of Annex III, according to which ‘landscapes and sites of historical, cultural or archaeological significance’ are also to be taken into account when deciding whether an environmental impact assessment must be carried out for the projects listed in Annex II?

| III. | Does Directive 2011/92/EU preclude a national rule according to which, when assessing an ‘urban development project’ as referred to in the first question, aggregation (cumulation) with other similar and geographically related projects is restricted in such a way that only the sum of the capacities approved in the last five years, including the capacity or capacity expansion applied for, is to be taken into account; urban development projects or parts of such projects are no longer to be regarded conceptually as urban development projects once they have been carried out; and the assessment to be carried out on a case-by-case basis of whether an accumulation of effects is likely to result in significant harmful, undesirable or adverse effects on the environment, thus requiring an environmental impact assessment to be carried out for the proposed project, is not carried out if the capacity of the proposed project is less than 25 % of the threshold? |
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III.

Does Directive 2011/92/EU preclude a national rule according to which, when assessing an ‘urban development project’ as referred to in the first question, aggregation (cumulation) with other similar and geographically related projects is restricted in such a way that only the sum of the capacities approved in the last five years, including the capacity or capacity expansion applied for, is to be taken into account; urban development projects or parts of such projects are no longer to be regarded conceptually as urban development projects once they have been carried out; and the assessment to be carried out on a case-by-case basis of whether an accumulation of effects is likely to result in significant harmful, undesirable or adverse effects on the environment, thus requiring an environmental impact assessment to be carried out for the proposed project, is not carried out if the capacity of the proposed project is less than 25 % of the threshold?

| IV. | If the answer to Question I and/or II is in the affirmative: Can the examination to be carried out on a case-by-case basis in the event that the discretion accorded to the national authorities of the Member States (in conformity with the provisions of Article 2(1) and Article 4(2) and (3) of Directive 2011/92/EU, which are directly applicable in this case) is exceeded, in order to determine whether the project is likely to have significant effects on the environment and must therefore be made subject to an environmental impact assessment, be limited to certain aspects of protection, such as the protection objective of a particular area, or must all of the criteria set out in Annex III to Directive 2011/92/EU be taken into account in that case? |
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IV.

If the answer to Question I and/or II is in the affirmative: Can the examination to be carried out on a case-by-case basis in the event that the discretion accorded to the national authorities of the Member States (in conformity with the provisions of Article 2(1) and Article 4(2) and (3) of Directive 2011/92/EU, which are directly applicable in this case) is exceeded, in order to determine whether the project is likely to have significant effects on the environment and must therefore be made subject to an environmental impact assessment, be limited to certain aspects of protection, such as the protection objective of a particular area, or must all of the criteria set out in Annex III to Directive 2011/92/EU be taken into account in that case?

| V. | Does Directive 2011/92/EU, having regard in particular to the principles of judicial protection laid down in Article 11 of that Directive, permit the assessment referred to in the fourth question to be carried out first by the referring court (in a building consent procedure and as part of the verification of its own jurisdiction) in the proceedings of which national law accords the ‘public’ only extremely limited status as a party and against the decisions of which members of the ‘public concerned’ have only extremely limited judicial protection within the meaning of Article 1(2)(d) and (e) of Directive 2011/92/EU? Is it relevant to the answer to that question that — apart from the possibility for an authority to make a declaration of its own motion — only the project applicant, a participating authority or the environmental ombudsman is permitted under national law to request a separate declaration to establish whether the project is subject to the requirement to carry out an environmental impact assessment? |
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V.

Does Directive 2011/92/EU, having regard in particular to the principles of judicial protection laid down in Article 11 of that Directive, permit the assessment referred to in the fourth question to be carried out first by the referring court (in a building consent procedure and as part of the verification of its own jurisdiction) in the proceedings of which national law accords the ‘public’ only extremely limited status as a party and against the decisions of which members of the ‘public concerned’ have only extremely limited judicial protection within the meaning of Article 1(2)(d) and (e) of Directive 2011/92/EU? Is it relevant to the answer to that question that — apart from the possibility for an authority to make a declaration of its own motion — only the project applicant, a participating authority or the environmental ombudsman is permitted under national law to request a separate declaration to establish whether the project is subject to the requirement to carry out an environmental impact assessment?

| VI. | Does Directive 2011/92/EU permit building permits for individual construction measures which form part of ‘urban development projects’ pursuant to point 10(b) of Annex II to this Directive to be granted before, or alongside, a necessary 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, without carrying out a comprehensive assessment of the environmental effects within the meaning of Directive 2011/92/EU as part of the building consent procedure, and while according the public only limited status as a party? |
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VI.

Does Directive 2011/92/EU permit building permits for individual construction measures which form part of ‘urban development projects’ pursuant to point 10(b) of Annex II to this Directive to be granted before, or alongside, a necessary 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, without carrying out a comprehensive assessment of the environmental effects within the meaning of Directive 2011/92/EU as part of the building consent procedure, and while according the public only limited status as a party?

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(1)  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 (OJ 2012 L 26, p. 1).

(2)  Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment (OJ 2014 L 124, p. 1).

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