Opinion of the Advocate General — ECLI:EU:C:2009:32
Date: 2009-01-22
Language of the case: English
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

summary, the conclusion must be that the Member States must make accessible their reasons for a decision to refuse a right conferred by Community law. Possible infringement of a right 35. It must therefore be examined whether the failure to carry out an environmental impact assessment can be regarded as the denial of a right conferred by Community law. 36. Denial of a right cannot be understood in this context as meaning that the right to an environmental impact assessment must actually exist here. In that case the obligation to state reasons would be meaningless in practice, since it is unlawful to deny an actually existing right, irrespective of any statement of reasons. 37. The giving of reasons is intended rather to make it possible to review any decision finding that a right conferred in principle by Community law does not exist in the particular case. The administration must therefore give reasons for a decision if the Community has conferred legal positions on the individual which could be infringed by that decision. 38. In the main proceedings, no rights of the developer were infringed. He applied for the planning consent procedure to be carried out without an environmental impact assessment. With respect to him, the decision does not therefore need a statement of reasons. 39. However, the rights of third parties are also relevant to the obligation to state reasons. In connection with Community procedures, the requirement to state reasons must also be assessed with reference to the interest which other persons to whom the measure is of direct and individual concern may have in obtaining explanations. (21) Accordingly, a statement of reasons is needed if the Commission, in competition law cases, raises no objections to a concentration (22) or an aid. (23) 40. Those criteria must apply also to decisions taken by authorities of the Member States in the implementation of Community law. A decision not to carry out an environmental impact assessment necessarily affects not only the developer but also third parties, at any rate where they can in principle demand an assessment. 41. That third parties may be entitled to have an environmental impact assessment carried out has already been decided by the Court. If the legislative or administrative authorities of a Member State have exceeded the discretion conferred on them by Articles 4(2) and 2(1) of the EIA Directive, individuals may rely on those provisions before a court of that Member State against the national authorities. In such a case it is for the authorities of the Member State to take, according to their relevant powers, all the general or particular measures necessary to ensure that projects are examined in order to determine whether they are likely to have significant effects on the environment and, if so, to ensure that they are subject to an impact assessment. (24) 42. In addition, Article 10a of the EIA Directive now provides that members of the public concerned or non-governmental organisations can on certain conditions require review by a court of decisions to which the provisions of the EIA Directive on public participation apply. That right would be jeopardised if those applicants could not also challenge a decision not to apply the provisions on public participation. 43. By Articles 4(2), 2(1) and 10a of the EIA Directive the Community has thus conferred a right on individuals. Since the decision to dispense with an environmental impact assessment may impair that right, it requires a statement of reasons. Legal consequences of inadequate statements of reasons 44. It should be pointed out that the principle of effectiveness does not require the legal consequences of inadequate statements of reasons to be harmonised in the various legal systems of the Member States. In particular, the Member States do not have to take over the rules which apply to the inadequate giving of reasons by the institutions. 45. In the Community system the statement of reasons for a measure must in principle be communicated to the person concerned at the same time as the measure that adversely affects him. The absence of a statement of reasons, or a manifestly inadequate statement of reasons, cannot (in principle) be cured by the fact that the person concerned learns the reasons for the measure during the procedure before the Community judicature. (25) That, however, corresponds to the strict factual and legal delimitation of the subject-matter of the case by the system of application and defence. Since an applicant may not in general enlarge his claim, (26) procedural equality of arms would be endangered if the defendant institution were able simply (27) to amplify its statement of reasons during the proceedings. 46. It would not be impossible, however, to take a more generous attitude to the curing of defective statements of reasons in the context of a procedural law with a different structure. That is conceivable in particular where the subject-matter of the application is open as regards means of legal challenge, that is, legal objections to the contested decision, or where extensions of a claim are permitted in the course of the judicial procedure. These are questions of national procedural law, however. Answer to the first question 47. The Member States must therefore, under Article 4 of the EIA Directive, make available to the public the reasons for a decision that, in respect of an Annex II project, it is not necessary to subject the project to an assessment in accordance with Articles 5 to 10 of the directive. C – The second and third questions 48. Since the Court cannot examine whether the Secretary of State gave adequate reasons for her decision, the second and third questions are to be understood as asking what requirements are to be set for the statement of reasons for a decision not to carry out an environmental impact assessment, and in particular whether it suffices merely to state the criteria with respect to which no significant environmental effects are likely. 49. The content of the statement of reasons must be aligned to the purpose of the obligation to state reasons. The Court held, in the judgment in Case C‑87/02 referred to above, that a decision not to carry out an environmental impact assessment must contain or be accompanied by all the information that makes it possible to check that it is based on adequate screening carried out in accordance with the requirements of the EIA Directive. (28) The decisive point is thus whether the reasons given show that an adequate screening took place. 50. As regards the extent of an adequate screening, it must be remembered that the EIA Directive is concerned with an overall assessment of the effects of projects and the Member States must take account in particular of the nature, size and location of the project in order to determine whether significant effects on the environment are likely. (29) 51. If it is obvious that there are no significant effects on the environment, such a screening can be sufficiently documented by a single sentence. If, on the other hand, certain possible environmental effects have already been raised, more extensive statements are needed to show that those effects have been properly considered. The case-law on the obligation to state reasons under primary law offers guidance here. According to that case-law, there must be a sufficient demonstration of the reasons why legal and factual aspects which have already been raised in the procedure do not show that there is a possibility of significant effects on the environment. There is no need, however, to define a position on matters which are clearly irrelevant or of no importance or plainly secondary importance, or to anticipate potential objections. (30) 52. In this respect the main proceedings raise two points in particular, namely the location of the project in an area of outstanding natural beauty recognised under national law and the possible effect on a bat roost referred to by Mr Mellor in the administrative procedure. Both aspects refer to the location of the project. The ecological sensitivity of that geographical area must be considered, under Article 4(3) of the EIA Directive and point 2 of Annex III. Certain points specifically mentioned must be considered in particular. 53. The natural beauty of the location, in other words an aesthetic aspect, is covered only marginally by the concept of ecological sensitivity: point 2(h) of Annex III mentions landscapes of historical, cultural or archaeological significance. Where none of those characteristics is relevant, aesthetics is less an ecological criterion than a question of human taste. In that case the possible effect on the landscape is not a compelling indication of possible significant effects on the environment. That factor would then be of secondary importance, so that it would not have to be addressed. 54. By contrast, the possible effect on a bat roost is a question of the absorption capacity of the natural environment within the meaning of the third indent of point 2 of Annex III to the EIA Directive. It is true that those roosts are specifically covered, under point 2(e), only if they form part of protected areas, in particular areas designated under the Habitats Directive. (31) But the Member States must, under Article 12(1)(d) of and Annex IV to the Habitats Directive, ensure strict protection of all bat roosts, since these are breeding sites and/or resting places of species under strict protection. (32) Only under certain narrowly defined conditions would it be permitted to harm bat roosts. (33) The harming of bat roosts is therefore in principle a significant impact on the environment, requiring an environmental impact assessment. (34) 55. A decision not to carry out an environmental impact assessment must therefore contain or be accompanied by all the information that makes it possible to check that it is based on adequate screening carried out in accordance with the requirements of the EIA Directive. In particular, there must be a sufficient demonstration of the reasons why legal and factual aspects which have already been raised in the procedure do not show that there is a possibility of significant effects on the environment. V – Conclusion 56. I therefore propose that the Court should give the following answer to the national court’s questions: 1. The Member States must, under Article 4 of Council Directive 85/337/EEC 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 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, make available to the public the reasons for a decision that, in respect of an Annex II project, it is not necessary to subject the project to an assessment in accordance with Articles 5 to 10 of the directive. 2. That decision must contain or be accompanied by all the information that makes it possible to check that it is based on adequate screening carried out in accordance with the requirements of the Directive 85/337. In particular, there must be a sufficient demonstration of the reasons why legal and factual aspects which have already been raised in the procedure do not show that there is a possibility of significant effects on the environment. 1 – Original language: German. 2 – OJ 1985 L 175, p. 40. 3 – OJ 2003 L 156, p. 17. 4 – See, in relation to the earlier versions of the directive, Case C‑72/95 Kraaijeveld and Others [1996] ECR I‑5403, paragraph 50; Case C‑392/96 Commission v Ireland [1999] ECR I‑5901, paragraph 64; Case C‑117/02 Commission v Portugal [2004] ECR I‑5517, paragraph 82; Case C‑83/03 Commission v Italy [2005] ECR I‑4747, paragraph 19; Case C‑121/03 Commission v Spain [2005] ECR I‑7569, paragraph 87; Case C‑332/04 Commission v Spain [2006] ECR I‑40, paragraph 76; Case C‑2/07 Abraham and Others [2008] ECR I‑1197, paragraphs 37 and 42; and Case C‑142/07 Ecologistas en Acción-CODA [2008] ECR I‑0000, paragraph 38. 5 – Case C‑332/04 Commission v Spain, cited in footnote 4, paragraph 76, and Abraham and Others, paragraph 38. 6 – Abraham and Others, cited in footnote 4, paragraph 42. 7 – Abraham and Others, cited in footnote 4, paragraph 43. 8 – Case C‑87/02 Commission v Italy [2004] ECR I‑5975, paragraph 49. 9 – The Charter was solemnly proclaimed first in Nice on 7 December 2000 (OJ 2000 C 364, p. 1) and again in Strasbourg on 12 December 2007 (OJ 2007 C 303, p. 1). 10 – See also on this point Case C‑540/03 Parliament v Council (Family reunification) [2006] ECR I‑5769, paragraph 38, and Case C‑432/05 Unibet [2007] ECR I‑2271, paragraph 37. 11 – Case C‑2/92 Bostock [1994] ECR I‑955, paragraph 16; Case C‑107/97 Rombi and Arkopharma [2000] ECR I‑3367, paragraph 65; Case C‑101/01 Lindqvist [2003] ECR I‑12971, paragraph 87; and Familyreunification, cited in footnote 10, paragraph 105. See also Article 52(5) of the Charter of Fundamental Rights. 12 – See to that effect Case C‑233/00 Commission v France [2003] ECR I‑6625, paragraph 109. 13 – See for example, on the expulsion of Union citizens, Article 30(2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77). 14 – See for example, on the refusal to disclose environmental information, the second sentence of Article (4)5 of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (OJ 2003 L 41, p. 26) or, on the grant of consent for projects after environmental impact assessments, the second indent of Article 9(1) of the EIA Directive. 15 – Case C‑147/01 Weber’s Wine World and Others [2003] ECR I‑11365, paragraph 103; Case C‑201/02 Wells [2004] ECR I‑723, paragraph 67; Joined Cases C‑392/04 and C‑422/04 i-21 Germany and Arcor [2006] ECR I‑8559, paragraph 57; and Case C‑35/05 Reemtsma [2007] ECR I‑2425, paragraph 37. 16 – Case 222/86 Heylens and Others [1987] ECR 4097, paragraph 15, and Case C‑239/05 BVBA Management, Training en Consultancy [2007] ECR I‑1455, paragraph 36. 17 – Commission v Italy, cited in footnote 8. 18 – Heylens, cited in footnote 16, and my Opinion in Case C‑186/04 Housieaux [2005] ECR I‑3299, point 32. 19 – BVBA Management, Training en Consultancy, cited in footnote 16, paragraph 36, concerning trade mark law. See also the Opinion of Advocate General Poiares Maduro in Case C‑426/05 Tele2 Telecommunication [2008] ECR I‑0000, point 49, the Opinion of Advocate General Sharpston in BVBA Management, Training en Consultancy, point 40, and my Opinion in Housieaux, cited in footnote 18. 20 – See, on other requirements of good administration when Community law is applied by the Member States, Case C‑428/05 Laub [2007] ECR I‑5069, paragraph 25, and the Opinion of Advocate General Ruiz-Jarabo Colomer in Joined Cases C‑147/06 and C‑148/06 SECAP [2008] ECR I‑0000, point 49 et seq. 21 – Case C‑413/06 P Bertelsmann and Sony Corporation of America v Impala [2008] ECR I‑0000, paragraph 166 with further references. 22 – Bertelsmann and Sony Corporation of America v Impala, cited in footnote 21, paragraph 171 et seq. 23 – Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 64, and Joined Cases C‑341/06 P and C‑342/06 P Chronopost v UFEX and Others [2008] ECR I‑0000, paragraph 89. 24 – Case C‑435/97 WWF and Others [1999] ECR I‑5613, paragraph 71. 25 – Case 195/80 Michel v Parliament [1981] ECR 2861, paragraph 22; Case C‑351/98 Spain v Commission [2002] ECR I‑8031, paragraph 84; Case C‑353/01 P Mattila v Council and Commission [2004] ECR I‑1073, paragraph 32; Joined Cases C‑199/01 P and C‑200/01 P IPK-München v Commission [2004] ECR I‑4627, paragraph 66; Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraph 463; Case T‑228/02 Organisation des Modjahedines du peuple d’Iran v Council [2006] ECR II‑4665, paragraph 139; and Case T‑256/07 People’s Mojahedin Organization of Iran v Council [2008] ECR II‑0000, paragraph 182. 26 – See Article 42(2) of the Rules of Procedure of the Court of Justice, and Case 108/81 Amylum v Council [1982] ECR 3107, paragraph 24 et seq.; also – with reference to proceedings for failure to fulfil obligations – my Opinion in Case C‑350/02 Commission v Netherlands [2004] ECR I‑6213, point 31 et seq. 27 – In Joined Cases C‑402/05 P and C‑415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I‑0000, paragraph 350, however, possibilities of curing a defect in exceptional circumstances were left open. 28 – Cited in footnote 8. 29 – See point 15 above. 30 – See, to that effect, besides Commission v Sytraval and Brink’s France and Chronopost v UFEX and Others, cited in footnote 23, Joined Cases C‑465/02 and C‑466/02 Germany and Denmark v Commission [2005] ECR I‑9115, paragraph 106, and Bertelsmann and Sony Corporation of America v Impala, cited in footnote 21, paragraph 167. 31 – Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7). 32 – See Case C‑6/04 Commission v United Kingdom [2005] ECR I‑9017, paragraph 79; Case C‑98/03 Commission v Germany [2006] ECR I‑53, paragraph 55; and Case C‑183/05 Commission v Ireland [2007] ECR I‑137, paragraph 47. 33 – See, on the exceptions to the system of protection relating to the hunting of wolves, Case C‑342/05 Commission v Finland [2007] ECR I‑4713, paragraph 25 et seq. 34 – See Commission v Ireland, cited in footnote 32, paragraph 34 et seq.