Judgment;Summary — ECLI:EU:C:2020:580
Date: 2020-07-16
Language of the case: Italian
Court formation: Sixth Chamber
Subject matter: Environment
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-411/19 - 1 
Case C-411/19 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
27 May 2019 
Referring court:  
Tribunale Amministrativo Regionale per il Lazio (Italy) 
Date of the decision to refer:  
16 January 2019 
Applicants:  
WWF Italia o.n.l.u.s. and Others 
Defendants:  
Presidenza del Consiglio dei Ministri 
Azienda Nazionale Autonoma Strade SpA (ANAS) 
      
Subject matter of the main proceedings 
Action brought before the Tribunale Amministrativo Regionale per il Lazio 
(Regional Administrative Court for the Lazio Region; ‘the referring court’) for 
annulment of the acts by which the Italian authorities declared that the preliminary 
project for a road was compatible with the environment. 
Subject matter and legal background to the reference for a preliminary 
ruling 
The reference for a preliminary ruling, under Article 267 TFEU, concerns the 
possible incompatibility with EU law of the Italian legislation and administrative 
provisions which, in the present case, have enabled the preliminary project for a 
road to be approved as being environmentally compatible, in respect of which a 
different administrative authority, previously called upon to decide on 
environmental compatibility, had by contrast expressed a negative opinion.  
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING - CASE C-411/19 
 
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Questions referred 
(1) Does Article 6 of Directive 1992/43/EEC, in conjunction with Directive 
2009/47/EC where applicable to the present case, preclude national primary 
legislation and the related secondary implementing legislation, as set out above, 
which allow the body ‘with final responsibility’ — competent to adopt the 
environmental compatibility measure for the preliminary project for works in the 
event of the reasoned objection of the Italian Ministry for the Environment and 
Protection of Land and Sea [(‘MATTM’)] — to provide approval, thereby 
allowing the procedure to continue, relying on the existence of an overriding 
public interest, whereas the State body responsible for environmental protection 
has stated that it is impossible to prepare any mitigation requirements and 
measures for the version of the project under approval, in respect of which a 
negative opinion regarding environmental impact assessment [(‘EIA’)] had 
already been expressed? 
(2) Do the abovementioned directives preclude a solution such as that adopted 
which, for the purposes of approving the preliminary project for works subject to 
the EIA procedure, has the ‘overriding public interest’ referred to take precedence 
over the environmental interest — even though that overriding interest is based 
exclusively on the more economical nature of the works, their compliance 
additionally with landscaping, historical, cultural and socio-economic protection 
and the need to complete a trans-European road network, in the present case the 
TEN-[T] network defined as ‘Comprehensive’, as by Regulation (EU) No 
1315/2013 of the European Parliament and of the Council of 11 December 2013 
— despite the fact that there is an existing alternative solution already approved 
from an environmental perspective? 
(3) Is a solution such as that adopted, whereby it was considered possible to 
postpone to the stage of the definitive project further assessment and studies of the 
environmental significance of the route not approved in terms of EIA – including 
the Assessment of Environmental Implications – instead of requiring the 
proponent of the works to carry out further assessment and studies to mitigate the 
economic and landscaping effects on the alternative route already approved, on 
the other hand, from an environmental perspective, compatible with the 
abovementioned Community legislation?  
(4) In such circumstances and if the answer to the first, second and third questions 
is that there is compatibility [with EU law], do the abovementioned directives 
preclude a solution such as that adopted, which does not consider binding a 
negative opinion indicating environmental incompatibility, issued by the 
competent body in the course of the approval procedure for the preliminary 
project for the works, postponing to the stage of the definitive project more in-
depth assessment of the impact thereof on the territory’s landscaping and 
environmental aspects, with specific reference to the assessment of environmental 
implications and the consequent provision of sufficient measures for the 
compensation and mitigation of impacts? 
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(5) Do the abovementioned directives preclude a solution such as that adopted, 
where the proponent of the works is requested at the stage of drafting the 
definitive project for the works to take into account the requirements, observations 
and recommendations in relation to landscaping and the environment set out in the 
course of the interdepartmental conference held with regard to the preliminary 
project, even if in that regard the body responsible for environmental protection 
has found that it is impossible to develop any mitigation requirements and 
measures for the project under approval? 
(6) Do the abovementioned directives preclude a solution such as that adopted 
where the proponent has also been requested to develop the environmental impact 
study for the works, including the so-called ‘appropriate assessment’, duly drafted 
in accordance with the legal requirements in force, which would serve as the basis 
for the assessment of implications in question? 
(7) Do the abovementioned directives preclude a solution such as that adopted, 
where a third party (the Lazio Region) has been identified, different from the body 
ordinarily responsible (the [Environmental Impact Assessment – Strategic 
Environmental Assessment] EIA-SEA Committee of the MATTM), to verify the 
environmental impact study annexed to the definitive project for the works, in 
order also to identify any subsequent mitigation and compensation measures 
necessary to protect and safeguard the environmental and landscaping aspects of 
the territory concerned, leaving to the MATTM’s EIA-SEA Committee, in 
accordance with and for the purposes of Article 185(4) and (5) of Legislative 
Decree No  163/06, only the ex post formulation of its own opinion as to whether 
the definitive project for the construction of the route in question complies with 
the landscaping and environmental requirements, after the abovementioned 
verification?  
Provisions of EU law and case-law of the Court of Justice relied on 
Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural 
habitats and of wild fauna and flora (‘the Habitats Directive’). In particular, 
recitals 1, 7 and 10, and Article 2(3), Article 3(1) , Article 4(5) and Article 6. 
Directive 2009/147/EC of the European Parliament and of the Council of 
30 November 2009 on the conservation of wild birds. In particular, recitals 6 and 
12, and Article 2, Article 3(2)(b) and Article 4(4). 
The referring court also makes the following references to the case-law of the 
Court of Justice: judgments of 21 July 2016, Orleans and Others, C-387/15 and 
C-388/15, EU:C:2016:583, paragraphs 32, 35, 36, 39, 40, 43 to 48, 52 to 54, 57 to 
64; of 3 April 2014, Cascina Tre Pini, C-301/12, EU:C:2014:214; of 16 February 
2012, Solvay and Others, C-182/10, EU:C:2012:82, paragraphs 68 to 77; of 
21 July 2011, Azienda Agro-Zootecnica Franchini and Eolica di Altamura, C-
2/10, EU:C:2011:502; of 24 November 2011, Commission v Spain, C-404/09, 
EU:C:2011:768; of 14 January 2010, Stadt Papenburg, C-226/08, EU:C:2010:10; 
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of 20 September 2007, Commission v Italy, C-304/05, EU:C:2007:532; of 11 July 
1996, Royal Society for the Protection of Birds, C-44/95, EU:C:1996:297. 
Provisions of national law relied on 
Decreto legislativo del 12 aprile 2006, n. 163 - Codice dei contratti pubblici 
relativi a lavori, servizi e forniture in attuazione delle direttive 2004/17/CE e 
2004/18/CE (Legislative Decree No 163 of 12 April 2006, Code on public works 
contracts, public service contracts and public supply contracts implementing 
Directives 2004/17/EC and 2004/18/EC; ‘Legislative Decree No 163/06’). In 
particular: 
– Article 165(3) which regulates the content of the preliminary project for 
infrastructure, providing, inter alia, that if a work is subject to an environmental 
impact assessment, the preliminary project must also be accompanied by the 
environmental impact study; 
– Article 182(1) and (2) in which the environmental impact assessment procedure 
is made mandatory; 
– Article 183(6) which provides that the Consiglio dei ministri (Italian Council of 
Ministers) is the competent body to adopt the environmental compatibility 
measure in the event of the reasoned objection of the Ministero dell’ambiente e 
della tutela del territorio e del mare (Ministry for the Environment and 
Protection of Land and Sea (‘MATTM’); 
– Article 185(4) and (5) under which the Committee for the Verification of the 
Environmental Impact (or ‘the EIA-SEA committee’) is to express its own 
opinion on whether the definitive project complies with the requirements of the 
environmental compatibility measure. 
Decreto legislativo del 29 dicembre 2011, n. 228 - Attuazione dell’articolo 30, 
comma 9, lettere a), b), c) e d) della legge 31 dicembre 2009, n. 196, in materia di 
valutazione degli investimenti relativi ad opere pubbliche (Legislative Decree 
No 228 of 29 December 2011 – Implementation of Article 30(9)(a), (b), (c) and 
(d) of Law No 196 of 31 December 2009 on the assessment of public works 
investments; (‘Legislative Decree No 228/11’). In particular: 
– Article 1(1), which provides: ‘Ministers shall be required to carry out the ex 
ante and ex post assessment referred to in this decree for the purposes of 
ensuring the rationalisation, transparency, efficiency and effectiveness of the 
expenditure … allocated to carrying out public works and works of public 
utility …’; 
– Article 4, which provides that ministers are to develop feasibility studies in 
order to identify the optimal design solutions for achieving the objectives 
identified in the ex ante assessment. For works having an estimated cost of over 
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EUR 10 million, ministers are also to submit, in annex to the feasibility studies, 
the risk analysis; 
– Article 8(1) to (3), under which ministers are to prepare guidelines for the 
assessment of public works investments in the sectors for which they are 
responsible. 
Decreto del Presidente del Consiglio dei ministri del 3 agosto 2012 - attuazione 
dell’articolo 8, comma 3, del [decreto legislativo n. 228/11] (Decree of the 
President of the Council of Ministers of 3 August 2012 – implementation of 
Article 8(3) [of Legislative Decree No 228/11]). In particular, Article 2(1)(b), in 
accordance with which: ‘the “ex ante assessment of individual works” is the 
assessment activity, referred to in Article 4 of Legislative Decree No 228/2011, 
carried out as a rule by means of cost-benefit analysis techniques, designed to 
identify the optimal design solutions for achieving the objectives identified in the 
assessment of infrastructure needs’. 
Decreto del Presidente della Repubblica dell’8 settembre 1997, n. 357 - 
Regolamento recante attuazione della direttiva 92/43/CEE relativa alla 
conservazione degli habitat natuali e seminaturali, nonché della flora e della fauna 
selvatiche (Decree of the President of the Republic No 357 of 8 September 1997 - 
Regulation implementing Directive 92/43/EEC on the conservation of natural 
habitats and of wild fauna and flora (‘DPR No 357/97’)). In particular: 
– Article 5, entitled ‘Assessment of Implications’, which provides as follows: ‘… 
The proponents of territorial plans … shall prepare … a study to identify and 
assess the effects which the plan may have on the site, taking into account its 
conservation objectives. … 
– 3. The proponents of action not directly connected with or necessary to 
maintaining a favourable conservation status for the species and habitats 
present on the site, but which may have a significant effect on the site itself, 
either on its own or in conjunction with other action, shall submit, for the 
purposes of the assessment of implications, a study designed to identify and 
assess … the main effects which that action may have on the … site of 
Community importance or on the special area of conservation, taking into 
account their conservation objectives. 
– 4. For projects subject to the environmental impact assessment procedure … 
which concern … sites of Community importance or the special areas of 
conservation, as defined in the present regulation, the assessment of 
implications shall be included within the scope of the abovementioned 
procedure which, in such a case, shall also consider the projects’ direct and 
indirect effects on the habitats and species on account of which those sites and 
areas were identified. To that end, the environmental impact study prepared by 
the proponent must include the factors relating to whether the project is 
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compatible with the conservation aims provided for by the present regulation 
…. 
– … 
– 9. If, in spite of a negative assessment of the implications for the site and in the 
absence of alternative solutions, a plan or action must nevertheless be carried 
out for imperative reasons of overriding public interest, including those of a 
social or economic nature, the competent authorities shall take all 
compensatory measures necessary to ensure that the overall coherence of the 
Natura 2000 network is protected and it shall inform the Minister for the 
Environment and Protection of Land of those measures. 
– 10. Where the sites concerned host priority natural habitat types and priority 
species, the plan or action which has been assessed as having a negative impact 
on the site of Community importance, may be carried out only by reference to 
requirements relating to human health or public safety, to requirements of 
primary importance for the environment or, further to an opinion from the 
European Commission, for other imperative reasons of overriding public 
interest’. 
– Article 6, entitled ‘Special protection areas’, according to which: ‘1. The 
“Natura 2000” network shall include the special protection areas provided for 
by Directive 79/409/EEC …. 
– 2. The obligations under Articles 4 and 5 shall also apply to the special 
protection areas referred to in paragraph 1.’ 
Succinct presentation of the facts and the proceedings 
1 In 2015, the Azienda Nazionale Autonoma Stradale SpA (‘ANAS’) requested that 
the ‘environmental impact assessment’ (‘EIA’) procedure be initiated with regard 
to the preliminary project to complete a section of the Strada Statale n. 675 (State 
road No 675;‘SS 675’) linking the port of Civitavecchia with the Orte intermodal 
node. That request concerned a new road route (‘the green route’) which, 
according to ANAS, had lower construction costs than another route (‘the violet 
route’), already approved from an environmental impact perspective. 
2 In 2016, Committee for the Verification of the Environmental Impact (‘the EIA-
SEA Committee’) at the MATTM raised some critical points concerning the 
‘green route’ from an environmental perspective, emphasising in particular that 
that route is to be developed for 14.4 km within a special protection area and 
extends to less than 1 km from a site of Community importance.  
3 On 20 January 2017, the EIA-SEA Committee, on the basis of the considerations 
referred to in the preceding paragraph, expressed a negative opinion on the 
preliminary project for the ‘green route’, also noting that the problems concerning 
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the high costs of the (previously approved) ‘violet route’ could be resolved by 
subdividing that route into two sections. 
4 Following that negative opinion, the Presidenza del Consiglio dei Ministri (the 
Presidency of the Council of Ministers, ‘the PCM’), which in accordance with 
Article 183(6) of Legislative Decree No 163/06 had become the competent 
authority for adopting the environmental compatibility measure, requested the 
MATTM to provide environmental impact assessments indicating any mitigation 
and compensation measures. By opinion of 7 July 2017, the EIA-SEA Committee 
adopted a new negative opinion on the ‘green route’, stressing that it was 
impossible to develop any mitigation and compensation measures, as requested by 
the PCM. 
5 Notwithstanding that further negative opinion, the PCM, by decision of 1 
December 2017, adopted the environmental compatibility measure for the ‘green 
route’, basing that decision on the ‘overriding public interest’ which made it 
necessary to complete strategic connecting routes between the various highways 
coming within the TEN-T trans-European network, which constitutes a 
‘comprehensive’ network under Regulation (EU) No 1315/2013. That decision 
likewise provided that ANAS would carry out, when drawing up the definitive 
project, the environmental impact study of the route in question, including the so-
called ‘appropriate assessment’, which would serve as the basis for the subsequent 
‘Assessment of Environmental Implications’ by the competent authority, in 
compliance with the requirements, observations and recommendations in relation 
to landscaping set out in the course of the interdepartmental conference called by 
the Ministero delle infrastrutture e dei trasporti (the Ministry of Infrastructure and 
Transport; ‘the MIT’).  
6 A number of environmental associations and natural persons (‘the applicants’) 
brought an action before the referring court for the annulment of that decision. 
7 In the meantime, by decision of 28 February 2018, the Comitato interministeriale 
per la programmazione economica (the Interministerial Economic Planning 
Committee, ‘the CIPE’) approved the preliminary project for the ‘green route’ and 
named the Regione Lazio (Lazio Region) as the body responsible for verifying the 
environmental impact study to be annexed to definitive project for the route in 
question.  
8 That decision has been challenged by the applicants by means of additional 
grounds to the action referred to in paragraph 6.  
The essential arguments of the parties to the main proceedings 
9 In support of the action brought before the referring court, the applicants submit 
that the decision of 1 December 2017, by which the PCM adopted the 
environmental compatibility measure for the ‘green route’, infringes Article 6(4) 
of Directive 92/43/EEC, transposed into national law by Article 5 of DPR 357/97. 
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According to that provision, ‘imperative reasons of overriding public interest’ 
may be privileged over environmental-protection grounds only where two 
conditions are met: the ‘absence of alternative solutions’ and the taking of ‘all 
compensatory measures necessary’. Neither condition is met in the present case 
and, in particular, as regards the absence of alternative solutions, the applicants 
emphasise that the ‘violet route’, approved moreover in terms of environmental 
impact by the MATTM and the CIPE, constitutes an alternative to the ‘green 
route’ capable of serving both the public interest in protecting the environment 
and that relating to the need to carry out the works.  
10 In its supplementary grounds, the applicants dispute the legality of the CIPE’s 
decision of 28 February 2018, which approved the preliminary project for the 
‘green route’, in so far as that decision identifies the Lazio Region as the body 
responsible for verifying the environmental impact study, including the 
Assessment of Environmental Implications, which ANAS must submit alongside 
the definitive project, and for identifying any subsequent mitigation and 
compensation measures. In that regard, the applicants submitted that the 
Assessment of Environmental Implications cannot be verified by the Lazio Region 
since it comes within the EIA-SEA Committee’s competence, with that committee 
having already expressed its views on that point. In addition, the applicants state 
that since the Assessment of Environmental Implications has already been 
examined by that committee, it cannot be submitted again at the stage of the 
definitive project. 
11 The defendants emphasise, in their defences, the following factors: (a) that the 
contested measures are justified on public-interest grounds; (b) that the PCM used 
the power conferred on it by law as the body ‘with final responsibility’ in the 
present case; (c) that in the preliminary project for the ‘green route’ a cost-benefit 
analysis was performed in respect of the works to be carried out; (d) that the 
‘violet route’ had undergone an unsustainable costs increase, so that it was no 
longer feasible; and (e) that ANAS has used an innovative and revolutionary 
approach in the area of environmental impact assessment, capable of objectively 
measuring the impact of new works on the various environmental, landscaping, 
historical, cultural and socio-economic components.  
Succinct presentation of the reasons for the reference for a preliminary 
ruling 
12 The referring court is uncertain whether the environmental impact assessment 
procedure for the ‘green route’ complies with the EU legislation referred to. 
13 In that regard, the referring court points out that the environmental compatibility 
measure and the subsequent approval of the preliminary project for the route in 
question were adopted: 
14 taking the view that the overriding public interest stemming from the lower cost of 
the works and the completion of the strategic connecting routes between the 
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highways coming within the TEN-T trans-European network took precedence 
over the environmental aspect; 
15 without taking into consideration the fact that the competent State body (the EIA-
SEA Committee) had expressed an extremely negative view, stressing that it was 
impossible to prepare any mitigation requirements and measures for the version 
comprising the ‘green route’ and noting that there was an alternative, composed of 
the ‘violet route’, already approved from an environmental perspective, the cost of 
which could be reduced by being subdivided into two sections; 
16 by allowing the procedure for the design and construction of the road in question 
to continue and postponing more in-depth assessments of the environmental 
impact of the works to the drafting of the definitive project, with specific 
reference being made to the Assessment of Environmental Implications and the 
consequent provision of measures (solely) for the mitigation and compensation of 
impacts; 
17 by naming, in accordance with Article 5(2) of DPR No 357/97, the Lazio Region 
as the competent body to verify the environmental impact study annexed to the 
definitive project for the works, for the purposes also of identifying any 
subsequent mitigation and compensation measures necessary to protect and 
safeguard the environmental and landscaping components of the territory 
concerned and leaving to the MATTM’s EIA-SEA Committee, in accordance with 
Article 185(4) and (5) of Legislative Decree No  163/06, only the formulation of 
its own opinion in the matter, in the definitive project, on the abovementioned 
landscaping and environmental requirements; 
18 providing that, at the stage of drawing up the definitive project for the works, 
ANAS is to take into account the requirements, observations and 
recommendations in relation to landscaping and the environment set out in the 
course of the interdepartmental conference held with reference to the preliminary 
project, developing moreover the environmental impact study for the works in 
question, on the basis of which to carry out the Assessment of Environmental 
Implications.  
19 The referring court also makes reference to the defendants’ main arguments and, 
in particular, the circumstance referred to in point (e) of paragraph 11 above, 
namely that in the present case ANAS is claimed to have used an innovative and 
revolutionary approach in the area of environmental impact assessment. In the 
light of such an innovative approach, and in the absence of specific case-law on 
the point, the referring court considers it necessary to refer to the Court of Justice 
the questions set out in the present reference for a preliminary ruling.