Opinion of the Advocate General — ECLI:EU:C:2009:421
Date: 2009-07-02
Language of the case: Swedish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Sweden

Summary of the Judgment 1. Environment – Assessment of the effects of certain projects on the environment –Directive 85/337 – Submission to evaluation of projects included in the classes listed in Annex II – Groundwater abstraction and artificial groundwater recharge projects – Definition – Projects not involving the subsequent use of that water – Included (Council Directive 85/337, as amended by Directive 2003/35, Annex II, point 10(l)) 2. Environment – Assessment of the effects of certain projects on the environment –Directive 85/337 – Right of appeal against an authorisation decision taken by a court of law – Participation by the public concerned in the decision-making process – No effect on the right of appeal (Council Directive 85/337, as amended by Directive 2003/35, Arts 1(2), 2(2), 6(4), and 10a) 3. Environment – Assessment of the effects of certain projects on the environment –Directive 85/337 – Right of appeal against an authorisation decision – National law reserving the right of appeal to environmental protection associations having at least 2 000 members – Not unlawful (Council Directive 85/337, as amended by Directive 2003/35, Arts 1(2) and 10a) 1. The provisions of point 10(l) of Annex II to Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2003/35, must be interpreted as meaning that they cover all groundwater abstraction and artificial groundwater recharge schemes not included in Annex I to that directive, irrespective of their purpose, which means that they also cover schemes which do not involve the subsequent use of that groundwater. Therefore a project concerning abstraction of water leaking into a tunnel which houses electric cables and its recharging into the ground or rock in order to compensate for any reduction in the amount of groundwater, and the construction and maintenance of facilities for the abstraction and recharging, are covered by point 10(l) in Annex II to Council Directive 85/337 irrespective of the ultimate destination of the groundwater and, in particular, of whether or not it is put to a subsequent use. (see paras 30-31, operative part 1) 2. Members of the public concerned within the meaning of Articles 1(2) and 10a of Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2003/35, must be able to have access to a review procedure to challenge the decision by which a body attached to a court of law of a Member State has given a ruling on a request for development consent, regardless of the role they might have played in the examination of that request by taking part in the procedure before that body and by expressing their views. First, the right of access to a review procedure within the meaning of Article 10a of Directive 85/337 does not depend on whether the authority which adopted the decision or act at issue is an administrative body or a court of law. Second, participation in an environmental decision-making procedure on the conditions laid down in Articles 2(2) and 6(4) of that directive is separate and has a different purpose from a legal review, for the latter may, where appropriate, be directed at a decision adopted at the end of that procedure. Therefore, participation in the decision-making procedure has no effect on the conditions for access to the review procedure. (see paras 38-39, operative part 2) 3. Article 10a of Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2003/35, precludes a provision of national law which reserves the right to bring an appeal against a decision on projects which fall within the scope of that directive solely to environmental protection associations which have at least 2 000 members. While it is true that that article, by its reference to Article 1(2) of the directive, leaves to national legislatures the task of determining the conditions which may be required in order for a non‑governmental organisation which promotes environmental protection to have a right of appeal, the national rules must not pose the risk of rendering meaningless the Community provisions which provide that parties who have a sufficient interest to challenge a project and those whose rights it impairs, which include environmental protection associations, are to be entitled to bring actions before the competent courts. (see paras 45, 52, operative part 3)