**Case C-156/07**

**Salvatore Aiello and Others**

**v**

**Comune di Milano and Others**

(Reference for a preliminary ruling from the Consiglio di Stato)

(Reference for a preliminary ruling – Directive 85/337/EEC – Assessment of the effects of certain public and private projects on the environment – Construction of a road in Milan)

Summary of the Order

1.        *Environment – Assessment of the effects of certain projects on the environment – Directive 85/337 – Obligation of the Member
States to ensure that projects likely to have a significant impact on the environment are made subject to an environmental
assessment – Scope*

*(Council Directive 85/337, as amended by Directive 97/11, Art. 2(1))*

2.        *Environment – Assessment of the effects of certain projects on the environment – Directive 85/337 – Determination by the Member
States of the projects in the classes listed in Annex II requiring to be made subject to an environmental assessment*

*(Council Directive 85/337, as amended by Directive 97/11, Art. 4 and Annexes II and III)*

3.        *Environment – Assessment of the effects of certain projects on the environment – Directive 85/337 – Determination by the Member
States of the projects in the classes listed in Annex II requiring to be made subject to an environmental assessment*

*(Council Directive 85/337, as amended by Directive 97/11, Art. 4 and Annexes II and III)*

1.        Article 2(1) of Directive 85/337 on the assessment of the impact of certain public and private projects on the environment,
as amended by Directive 97/11, must be interpreted as not requiring that any project likely to have a significant effect on
the environment be made subject to the environmental impact assessment provided for in that directive, but only those referred
to in Annexes I and II to that directive, under the conditions set out in Article 4 thereof and subject to Articles 1(4) and
(5) and 2(3) thereof.

(see para. 34, operative part 1)

2.        Directive 85/337 on the assessment of the impact of certain public and private projects on the environment, as amended by
Directive 97/11, requires the Member States to take account of the relevant selection criteria listed in Annex III to Directive
85/337 when they determine, in respect of the projects in the classes listed in Annex II thereto, either on the basis of case-by-case
assessments, or on the basis of thresholds or criteria fixed by the Member State, whether the projects concerned must be subject
to the environmental impact assessment procedure.

Under Article 4(2) of the directive, it is for the Member States to determine themselves in which cases the projects in the
classes listed in Annex II to the directive must be made subject to an environmental impact assessment. That provision leaves
the Member States two options. The first is to decide on a case-by-case basis whether a project covered by Annex II must be
made subject to the assessment. The second is to determine, in a general and abstract manner and according to thresholds or
criteria, the projects in that annex which must be made subject to the assessment.

It stems from the actual wording of Article 4(3) of the directive that it requires Member States, in both cases, to take into
account the relevant selection criteria set out in Annex III to the directive, that is to say, those of the criteria which
must be applied in the light of the characteristics of the project concerned.

(see paras 37-40, 46, operative part 2)

3.        Where a Member State opts for determining on a case-by-case basis those of the projects in the classes listed in Annex II
to Directive 85/337 on the assessment of the impact of certain public and private projects on the environment, as amended
by Directive 97/11, which must be made subject to an environmental impact assessment, it must, either by referring in its
national rules to Annex III to that directive or by reproducing in its national rules the criteria listed there, ensure that
all of those criteria can in fact be taken into account where one or more of them is relevant for the purposes of the project
concerned, and cannot expressly or impliedly exclude them. Depending on the characteristics of the national legal order in
question, such an exclusion might dissuade or even prevent the competent national authority from taking into account the criterion
or criteria in question.

(see paras 48-51, operative part 3)

ORDER OF THE COURT (Sixth Chamber)

10 July 2008 (*)

(Preliminary ruling – Directive 85/337/EEC – Assessment of the impact of certain public and private projects on the environment – Construction of a road in Milan)

In Case C‐156/07,

REFERENCE for a preliminary ruling under Article 234 EC from the Consiglio di Stato (Italy), made by decision of 24 October
2006, received at the Court on 21 March 2007, in the proceedings

**Salvatore Aiello and Others**

v

**Comune di Milano and Others,**

intervening parties:

**Euromilano SpA,**

**Metropolitana milanese SpA,**

THE COURT (Sixth Chamber),

composed of L. Bay Larsen, President of the Chamber, J.‐C. Bonichot, (Rapporteur) and C. Toader, Judges,

Advocate General: J. Mazák,

Registrar: R. Grass,

having informed the referring court that the Court proposes to give its decision by reasoned order in accordance with the
second subparagraph of Article 104(3) of its Rules of Procedure,

after hearing the Advocate General,

makes the following

**Order**

1        This reference for a preliminary ruling concerns the interpretation of Council Directive 85/337/EEC of 27 June 1985 on the
assessment of the impact 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; ‘Directive 85/337’).

2        The reference was made in the course of proceedings between Salvatore Aiello and Others and the Comune di Milano (Municipality
of Milan) and Others concerning the construction of a road linking certain districts in the north of Milan.

**Legal context**

3        Article 1(2) of Directive 85/337 states:

‘For the purposes of this Directive:

...

“development consent” means:

the decision of the competent authority or authorities which entitles the developer to proceed with the project.’

4        Article 1(4) of Directive 85/337 provides:

‘Projects serving national defence purposes are not covered by this Directive.’

5        Article 1(5) of Directive 85/337 states:

‘This Directive shall not apply to projects the details of which are adopted by a specific act of national legislation, since
the objectives of this Directive, including that of supplying information, are achieved through the legislative process.’

6        Article 2(1) of Directive 85/337 provides:

‘Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant
effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for
development consent and an assessment with regard to their effects. These projects are defined in Article 4.’

7        Article 2(3) of Directive 85/337 provides:

‘Without prejudice to Article 7, Member States may, in exceptional cases, exempt a specific project in whole or in part from
the provisions laid down in this Directive.’

8        Article 4 of Directive 85/337 provides:

‘1.      Subject to Article 2(3), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to
10.

2.       Subject to Article 2(3), for projects listed in Annex II, the Member States shall determine through:

(a)      a case-by-case examination,

or

(b)      thresholds or criteria set by the Member State,

whether the project shall be made subject to an assessment in accordance with Articles 5 to 10.

Member States may decide to apply both procedures referred to in (a) and (b).

3.       When a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant
selection criteria set out in Annex III shall be taken into account.

4.       Member States shall ensure that the determination made by the competent authorities under paragraph 2 is made available to
the public.’

9        Paragraph 7(c) of Annex I to Directive 85/337 refers to:

‘Construction 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.’

10      Paragraph 10(e) of Annex II to Directive 85/337 refers to:

‘Construction of roads, ...’

11      Annex III to Directive 85/337 states:

‘1.       Characteristics of projects

The characteristics of projects must be considered having regard, in particular, to:

–        ...

–        the cumulation with other projects,

...’

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

12      By a decree of 15 November 2001, the Prime Minister of the Italian Republic declared a state of emergency in the city of Milan
on account of the pollution resulting from car traffic and the inadequacy of the existing road network. By order of 28 December
2001, the Minister of the Interior appointed the Mayor of Milan as the Commissioner responsible for the implementation of
the necessary measures to deal with that situation.

13      In his capacity as Commissioner for traffic and mobility issues in Milan, the Mayor of that city approved a programme of works,
which included the construction project for a road linking certain districts in the north of Milan, of a length of 1 600m.
On 29 October 2002, he approved the final project for that road.

14      Mr Aiello and other residents in the area affected challenged that decision before the Tribunale amministrativo regionale
per la Lombardia (Lombardy Regional Administrative Court). They claimed, inter alia, that the procedure followed did not comply
with Community law because no environmental impact assessment of the project had been carried out.

15      That court dismissed the action as unfounded, and Mr Aiello and Others lodged an appeal against that judgment before the Consiglio
di Stato (Council of State).

16      The Consiglio di Stato ordered measures of inquiry from which it is apparent that, although the 1953 General Regulatory Plan
for the municipality of Milan envisaged the construction of a road permitting a rapid connection between districts of the
city more than 10 kilometres apart, that objective had finally been abandoned in favour of a different project, concerning
the construction of a number of separate roads. Two roads are planned, the first of which is at the origin of the main proceedings
and the second of which is a different road of a length of 1 300m.

17      The Consiglio di Stato considers, therefore, that the project at issue in the main proceedings does not fall within the context
of the construction of a single road of more than 10 kilometres for the purposes of Annex I to Directive 85/337, which lists
the projects for which an environmental impact assessment is obligatory, but within that of Annex II to that legislation,
which refers merely to the construction of roads.

18      However, the Consiglio di Stato enquires whether the project being challenged should not be subject to such an assessment
in accordance with, inter alia, Article 4 of Annex II read in conjunction with Annex III to Directive 85/337, on the ground
that that project forms part of a larger operation for the restructuring of all the roads of the districts concerned, so that
the competent authority should have taken into consideration the ‘cumulation’ of the separate projects, a factor expressly
set out by Annex III. Accordingly, it decided to stay the proceedings and refer the following questions to the Court for a
preliminary ruling:

‘1.      Must Article 2 of Council Directive [85/337], in so far as it states that projects likely to have significant effects on the
environment are to be made subject to an environmental impact assessment, and that such projects are defined in Article 4
[thereof], be interpreted as meaning:

–      that any project with a significant effect on the environment must, even if it is not listed in Annexes I or II to the Directive,
be made subject to an environmental impact assessment;

–      or, conversely, that only projects of a kind listed in Annexes I and II to the Directive must be made subject to an environmental
impact assessment?

2.      Does Article 4 of Council Directive [85/337], in so far as it gives Member States the possibility of providing for environmental
impact assessments to be carried out for projects in the classes listed in Annex II [thereto] on the basis of case-by-case
assessments or predetermined criteria – account also being taken of the criteria set out in Annex III [thereto] – create a
specific obligation or merely an option for the Member States to take account of all the criteria listed in Annex III ?

3.      Does Article 1 of the Presidential Decree of 12 April 1996 constitute due transposition into national law of Article 4 of
Directive [85/337] and Annex III thereto by the Italian legislature, given that it does not provide, as a criterion for making
projects in the classes listed in Annex II to the Directive subject to an environmental impact assessment, for the criterion
of cumulation with other projects, as referred to in Annex III to the Directive?’

**The questions referred**

19      Under Article 104(3) of the Rules of Procedure, inter alia, where the answer to a question referred may be clearly deduced
from its existing case-law or where the answer to that question leaves no scope for any reasonable doubt, the Court may, after
hearing the Advocate General, give its decision by reasoned order.

*Admissibility*

20      The Comune di Milano (Municipality of Milan) submits that the questions raised by the Consiglio di Stato are inadmissible
because the two projects for the construction of roads to which the latter refers in the order for reference are distinct
projects and are not, moreover, such as to have a cumulative impact on the environment.

21      In accordance with settled case-law, in the context of the cooperation between the Court of Justice and the national courts
under Article 234 EC, it is solely for the national court, before which the dispute has been brought and which must assume
responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case
both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which
it submits to the Court. Consequently, where the questions submitted for a preliminary ruling concern the interpretation of
Community law, the Court is, in principle, bound to give a ruling (see, inter alia, Joined Cases C-223/99 and C‐260/99 *Agorà* *and* *Excelsior* [2001] ECR I-3605, paragraph 18).

22      In the present case, the referring court has clearly stated that it requires the interpretation of several of the provisions
of Directive 85/337 in order to ascertain whether the road construction project at issue in the main proceedings should be
subject to an environmental impact assessment.

23      In addition, the Court may not decline to give a ruling on a question referred to it by a national court unless it is quite
obvious that the interpretation of Community law sought by that court bears no relation to the actual facts of the main action
or its purpose or where the problem is hypothetical, or where the Court does not have before it the factual or legal material
necessary to give a useful answer to the questions submitted to it (see, inter alia, *Agorà and Excelsior*, paragraph 20).

24      In the present case, none of those conditions are met.

25      Accordingly, the reference for a preliminary ruling is admissible.

*Substance*

26      Taking the view that the answer to the three questions referred leaves no scope for any reasonable doubt, the Court, pursuant
to the second paragraph of Article 104(3) of its Rules of Procedure, informed the referring court that it proposed to give
its decision by reasoned order and called on the interested parties referred to in Article 23 of the Statute of the Court
of Justice to submit any observations they might have in that regard.

27      Aeillo and Others and the Commission of the European Communities replied to the Court’s request. The Commission in its reply
stated that it had no objection to the Court giving its decision by way of reasoned order. Aiello and Others submitted arguments
similar to those raised in their written observations and requested that a hearing be held. However, those factors have not
persuaded the Court to depart from the procedural approach envisaged.

– The first question

28      By its first question, the referring court is essentially asking whether Article 2(1) of Directive 85/337 must be interpreted
as meaning that projects likely to have significant effects on the environment, but which are not referred to in Annexes I
and II to that directive, must nevertheless be subject to an environmental impact assessment which complies with the assessment
set out in that directive.

29      Article 2(1) of Directive 85/337 provides that projects likely to have significant effects on the environment by virtue, inter
alia, of their nature, size or location and which must, therefore, be subject to an assessment with regard to those effects,
are defined in Article 4 of that directive.

30      Article 4 provides, in paragraph 1 thereof, that the projects listed in Annex I shall be made subject to an environmental
impact assessment and, in paragraph 2 thereof, that, with regard to projects listed in Annex II to that directive, it is for
the Member States to determine whether they should be subject to such an assessment on the basis of certain thresholds or
certain criteria.

31      It must also be noted that that article renders both situations referred to in the preceding paragraph subject to the application
of Article 2(3) of Directive 85/337, which allows Member States, in exceptional cases, to exempt a specific project in whole
or in part from the requirement to make an assessment.

32      Furthermore, Article 1 of Directive 85/337 provides, in paragraph 4 thereof, that the directive does not cover projects serving
national defence purposes and, in paragraph 5 thereof, that it does not apply to projects the details of which are adopted
by a specific act of national legislation, since the objectives of that directive are deemed to be achieved through the legislative
process.

33      In any event, it must also be pointed out that the scope of Directive 85/337 is wide and its purpose very broad (see Case
C‐72/95 *Kraaijeveld and Others* [1996] ECR I-5403, paragraph 31, and Case C-227/01 *Commission* v *Spain* [2004] ECR I‐8253, paragraph 46), and it must be implemented in that spirit.

34      Consequently, having regard to paragraphs 29 to 32 of this order, the answer to the first question referred must be that Article
2(1) of Directive 85/337 must be interpreted as not requiring that any project likely to have a significant effect on the
environment be made subject to the environmental impact assessment provided for in that directive, but only those referred
to in Annexes I and II to that directive, under the conditions set out in Article 4 thereof and subject to Articles 1(4) and
(5) and 2(3) thereof.

– The second question

35      By its second question, the referring court essentially asks whether Member States are required to take account of the selection
criteria listed in Annex III to Directive 85/337 when they determine, pursuant to Article 4(2) of that directive, in respect
of the projects in the classes listed in Annex II thereto and on the basis of case-by-case assessments, or thresholds or criteria
fixed by the Member State, whether those projects must be subject to the environmental impact assessment procedure.

36      In this connection, the Court has already held that, although Member States may establish the criteria and/or thresholds necessary
to determine which of the projects in the classes listed in Annex II to Directive 85/337, in its original version, are to
be subject to an assessment, their discretion is limited by the obligation, set out in Article 2(1) of that directive, to
subject projects likely to have significant effects on the environment, particularly by virtue of their nature, size or location,
to an assessment with regard to their impact (see, inter alia, Case C-486/04 *Commission* v *Italy* [2006] ECR I-11025, paragraph 53).

37      Under Article 4(2) of Directive 85/337, it is for the Member States to determine themselves in which cases the projects in
the classes listed in Annex II to that directive must be made subject to an environmental impact assessment, whereas the projects
in Annex I thereto must always be subject to such a procedure.

38      That provision leaves the Member States two options. The first is to decide on a case-by-case basis whether a project covered
by Annex II must be made subject to the assessment. The second is to determine, in a general and abstract manner and according
to thresholds or criteria, the projects in that annex which must be made subject to the assessment.

39      It stems from the actual wording of Article 4(3) of Directive 85/337 that that Directive requires Member States, in both cases,
to take into account the relevant selection criteria set out in Annex III to that directive, that is to say, those of the
criteria which must be applied in the light of the characteristics of the project concerned.

40      Therefore, the answer to the second question referred is that Directive 85/337 does require the Member States to take account
of the relevant selection criteria listed in Annex III to Directive 85/337 when they determine, in respect of the projects
in the classes listed in Annex II thereto, either on the basis of case‐by‐case assessments, or on the basis of thresholds
or criteria fixed by the Member State, whether the projects concerned must be subject to the environmental impact assessment
procedure.

– The third question

41      By its third question, the referring court is essentially requesting the Court to specify whether the Italian legislation
at issue in the main proceedings constitutes due transposition into national law of Article 4 of Directive 85/337, given that
that secondary legislation does not set out the criterion of cumulation with other projects, which is none the less referred
to in Annex III to that directive, as a selection criterion to be taken into account when the competent national authority
determines whether projects in the classes listed in Annex II to that directive must be made subject to an environmental impact
assessment.

42      It is settled case-law that the Court has no jurisdiction, in proceedings brought on the basis of Article 234 EC, to rule
on the compatibility of national rules with Community law. On the other hand, the Court does have jurisdiction to provide
the national court with all the guidance as to the interpretation of Community law necessary to enable that court to rule
on the compatibility of those national rules with Community law (see Joined Cases C-338/04, C-359/04 and C-360/04 *Placanica and Others*[2007] ECR I-1891, paragraph 36 and the case-law cited).

43      In the present case, it is apparent from the order for reference that the national court wishes to establish whether the Member
States, in the transposition of the Directive into their domestic legal order, are required to adopt a provision drawing attention
to the obligation to apply the criteria of the cumulation of the project concerned with other projects, referred to in Annex
III to that directive, when an assessment is made of whether a project in the classes listed in Annex II thereto must be
made subject to the environmental impact assessment provided for in that directive.

44      First of all, it should be observed that each of the Member States to which a directive is addressed is obliged to adopt,
within the framework of its national legal system, all the measures necessary to ensure that the directive is fully effective,
in accordance with the objective it pursues (Case C-32/05 *Commission* v *Luxembourg* [2006] ECR I-11323, paragraph 32).

45      The Court has also held that the provisions of a directive must be implemented with unquestionable binding force and with
the specificity, precision and clarity necessary to satisfy the need for legal certainty, which requires that, in the case
of a directive intended to confer rights on individuals, the persons concerned must be enabled to ascertain the full extent
of their rights (Case C-207/96 *Commission* v *Italy* [1997] ECR I-6869, paragraph 26).

46      In the present case, Article 4 of Directive 85/337 must be interpreted as requiring the competent authority to take into account
the relevant selection criteria set out in Annex III to that directive when an assessment is made of whether a project in
the classes listed in Annex II thereto must be subject to an environmental impact assessment, both when that assessment is
made on the basis of a case‐by-case examination and when the Member State concerned has opted for general rules.

47      Where a Member State chooses to determine in a general and abstract manner, as it is permitted to do by Directive 85/337,
the projects in the classes listed in Annex II to that directive which must be made subject to an environmental impact assessment,
it bears responsibility for drawing up the list of those projects by applying one or more of the relevant criteria in Annex
III, as appropriate. The criterion of cumulation can therefore, where relevant, be used to make one type of project subject
to such an assessment, having regard to the completion of that project with other projects and if necessary taking into consideration
the completion of all those projects during a specific period of time.

48      Where a Member State opts, on the contrary, wholly or partially, to determine on a case-by-case basis the projects in the
classes listed in Annex II to Directive 85/337 which must be made subject to an environmental impact assessment, it bears
responsibility for ensuring that the competent national authorities have regard to the various criteria listed in Annex III
to that directive in so far as those criteria are relevant having regard to the characteristics of the project concerned.

49      For that purpose, the Member State may refer, in its national legislation, to the criteria in Annex III. It can also integrate
those criteria into its legislation, by expressly providing that the competent authorities must refer to them for the purpose
of determining, on a case-by-case basis, whether a project in the classes listed in Annex II to Directive 85/337 must be made
subject to an environmental impact assessment.

50      In any event, where a Member State chooses to proceed by that route it cannot, without failing to fulfil its Community obligations,
exclude expressly or impliedly one or more of the criteria in Annex III to Directive 85/337, in so far as any of those criteria
may, depending on which project in the classes listed in Annex II is concerned, be relevant for the purposes of ascertaining
whether an environmental impact procedure must be organised. Depending on the characteristics of the national legal order
in question, such an exclusion might dissuade or even prevent the competent national authority from taking into account the
criterion or criteria in question.

51      The answer to the third question referred is therefore that, where a Member State opts for determining on a case-by-case basis
those of the projects in the classes listed in Annex II to Directive 85/337 which must be made subject to an environmental
impact assessment, it must, either by referring in its national rules to Annex III to that directive or by reproducing in
its national rules the criteria listed there, ensure that all of those criteria can in fact be taken into account where one
or more of them is relevant for the purposes of the project concerned, and cannot expressly or impliedly exclude them.

**Costs**

52      Since 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.

On those grounds, the Court (Sixth Chamber) hereby rules:

1.      **Article 2(1) 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 Council Directive 97/11/EC of 3 March 1997, must be interpreted as not requiring
that any project likely to have a significant effect on the environment be made subject to the environmental impact assessment
provided for in that directive, but only those referred to in Annexes I and II to that directive, under the conditions set
out in Article 4 thereof and subject to Articles 1(4) and (5) and 2(3) of that directive.**

2.      **Member States are required to take into account the relevant selection criteria listed in Annex III to Directive 85/337, as
amended by Directive 97/11, when they determine, in respect of the projects in the classes listed in Annex II thereto, either
on the basis of case-by-case assessments or on the basis of thresholds or criteria fixed by the Member State, whether those
projects must be subject to the environmental impact assessment procedure.**

3.      **Where a Member State opts for determining on a case-by-case basis those of the projects in the classes listed in Annex II
to Directive 85/337, as amended by Directive 97/11, which must be made subject to an environmental impact assessment, it must,
either by referring in its national rules to Annex III to that directive or by reproducing in its national rules the criteria
listed there, ensure that all of those criteria can in fact be taken into account where one or more of them is relevant for
the purposes of the project concerned, and cannot expressly or impliedly exclude them.**

[Signatures]

---

- Language of the case: Italian.