Order — ECLI:EU:C:2008:398
Date: 2008-07-10
Language of the case: Italian
Court formation: Sixth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment
Concepts: Environment
Procedure: Reference for a preliminary ruling
Origin: Italy

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)