Opinion of the Advocate General — ECLI:EU:C:2014:2279
Date: 2014-10-09
Language of the case: German
Subject matter: Environment;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary — Judgment of the Court (Second Chamber), 11 February 2015 1. EU law — Interpretation — Provision making no express reference to the law of the Member States — Independent and uniform interpretation 2. Environment — Assessment of the effects of certain projects on the environment — Directive 85/337 — Annex I — Competent authorities obliged to carry out the assessment before they issue authorisation — Scope — Project for the extraction of petroleum and natural gas for commercial purposes — Concept — Exploratory drilling — Not included (Council Directive 85/337, as amended by Directive 2009/31, Art. 4(1) and Annex I, No 14) 3. Environment — Assessment of the effects of certain projects on the environment — Directive 85/337 — Making the projects listed in Annex II to the Directive subject to assessment — Deep drilling projects — Definition — Exploratory drillings — Included (Council Directive 85/337, as amended by Directive 2009/31, Art. 4(2) and Annex II, No 2(d)) 4. Questions referred for a preliminary ruling — Jurisdiction of the Court — Identification of the relevant points of EU law — Reformulation of the questions (Art. 267 TFEU) 5. Environment — Assessment of the effects of certain projects on the environment –Directive 85/337 — Making the projects listed in Annex II to the Directive subject to assessment — Deep drilling projects — Member States’ discretion — Limits —Cumulative effect of a project with other projects taken into consideration — Obligation — Municipal boundaries — No effect (Council Directive 85/337, as amended by Directive 2009/31, Art. 4(2) and Annexes II, No 2(d) and III) 1. See the text of the decision. (see para. 21) 2. Annex I, No 14, to Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2009/31, must be interpreted as meaning that exploratory drilling, in the context of which a trial production of natural gas and petroleum is envisaged in order to determine the commercial feasibility of a deposit, does not come within the scope of that provision. Whilst exploratory drilling is, by definition, an operation carried out for commercial purposes, it follows from the context and objective of Annex I, No 14, to Directive 85/337 that the scope of that provision does not extend to exploratory drillings. In fact, that provision aims at projects of a certain duration which enable relatively large-scale quantities of hydrocarbons to be extracted. A wholesale application of the criteria laid down in Annex I, No 14, to Directive 85/337 to exploratory drillings does not make much sense, as the thresholds laid down in that provision are fixed quantities per day, whereas the limit assigned to an exploratory drilling operation is unrelated to such thresholds. Moreover, prior to an exploratory drilling operation, the actual presence of hydrocarbons cannot be determined with certainty. It is only on the basis of an exploratory drilling operation that the quantity of hydrocarbons that can be extracted per day can be determined. Moreover, the quantity of hydrocarbons earmarked for extraction in such a trial, as well as its duration, are restricted to the technical needs arising from the objective of establishing the feasibility of a deposit. This interpretation is corroborated by the overall scheme of Directive 85/337. Annex II, No 2(d), to that directive is liable to apply to exploratory drillings, with the result that not all exploratory drillings fall outside the scope of the directive. (see paras 22-26, 32, operative part 1) 3. Regarding the scope of Annex II, No 2(d), to Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2009/31 as it applies to deep drillings, that provision does not contain an exhaustive enumeration of the different types of drilling it covers; rather, it covers all types of deep drillings, with the exception of drillings for investigating the stability of the soil. Thus, since exploratory drillings are a form of deep drilling, they fall within the scope of Annex II, No 2(d), to Directive 85/337. (see paras 29, 30) 4. See the text of the decision. (see paras 37, 38) 5. Article 4(2) of Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2009/31, read in conjunction with Annex II, No 2(d), to that directive, must be interpreted as meaning that it may give rise to an obligation to conduct an environmental impact assessment of a deep drilling operation such as exploratory drilling. The competent national authorities must accordingly carry out a specific evaluation as to whether, taking account of the criteria set out in Annex III to that directive, an environmental impact assessment must be carried out. In so doing, they must examine inter alia whether the environmental impact of the exploratory drillings could, due to the impact of other projects, be greater than what it would be without the presence of those other projects. That assessment must not be confined to municipal boundaries. (see para. 47, operative part 2)