Opinion of the Advocate General — ECLI:EU:C:2008:254
Date: 2008-04-30
Language of the case: Spanish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment
Procedure: Reference for a preliminary ruling
Origin: Spain

summary, it must be stated that urban road construction projects fall within the scope of the EIA Directive. It must therefore be examined specifically whether the environmental impact of the contested projects should have been assessed. 2. Road construction projects under point 7(b) and (c) of Annex I to the EIA Directive 39. Under Article 4(1) and point 7 of Annex I to the EIA Directive, an environmental impact assessment must be carried out where a motorway or an express road is constructed (letter b) and in the case of the construction of a new road of four or more lanes, or realignment and/or widening of an existing road of two lanes or less so as to provide four or more lanes, where such new road, or realigned and/or widened section of road would be 10 km or more in a continuous length (letter c). 40. As has already been stated, the definition of motorway and express road can be found in the European Agreement on Main International Traffic Arteries. Roads within the meaning of point 7(c) of Annex I to the EIA Directive are defined sufficiently there, in particular if it is taken into account that a general exclusion of urban roads from the environmental impact assessment is unlawful. The application of the rules on roads under point 7(b) and (c) of Annex I to the EIA Directive therefore depends neither on their specific effects on the environment nor on their location, their budget or their combined effects with other projects. 41. It cannot therefore be ruled out that the contested projects concern roads which fall within the scope of one of the definitions laid down in point 7(b) or (c) of Annex I to the EIA Directive. However, the requirement to carry out an environmental impact assessment under Article 4(1) exists only where the projects are to be regarded as construction of the road in question. 42. Whilst the present case does concern the improvement and widening of existing roads, such measures can also be treated as equivalent to the construction of roads. In the case of point 7(c) of Annex I to the EIA Directive, this follows directly from the definition, which includes the widening of certain roads. 43. The widening of motorways and express roads within the meaning of point 7(b) of Annex I to the EIA Directive is possibly also to be regarded as construction, however. In a judgment on a Spanish railway project, the Court found that the doubling of an already existing railway track could not be considered a mere modification to an earlier project within the meaning of point 12 of Annex II to the EIA Directive but the construction of a line for long-distance railway traffic under point 7 of Annex I. (16) It relied on the likely significant environmental effects of that project. 44. As the Commission also argues, this idea may be applied in principle to road construction projects. However, a distinction must also be drawn vis-à-vis changes to road construction projects under the first indent of point 13 of Annex II. Works in connection with existing roads can therefore be regarded as construction only where they are equivalent to the construction of a new road in terms of their effects on the environment. (17) The construction of a new road could in particular be treated as equivalent to the widening of a single-carriageway road into one of the roads referred to in point 7(b) and (c) of Annex I to the EIA Directive. 3. Other road construction projects 45. If, on the basis of the above criteria, the contested projects do not fall within the scope of Annex I to the EIA Directive, it may nevertheless be necessary to assess their environmental impact. Under Article 4(2) and point 10(e) of Annex II to the EIA Directive, the Member States must determine through a case-by-case examination or thresholds or criteria set by them whether the environmental impact of the construction of roads not included in Annex I must be assessed. The same applies to changes to road construction projects under the first indent of point 13 of Annex II in conjunction with point 7(b) and (c) of Annex I and point 10(e) of Annex II. 46. It is settled case-law that Article 4(2) of the EIA Directive confers on Member States a measure of discretion, the limits of which are to be found in the obligation set out in Article 2(1), to specify that projects likely, by virtue inter alia of their nature, size or location, to have significant effects on the environment are to be subject to an impact assessment. (18) In this connection, the characteristics of the projects mentioned by the referring court are significant. 47. The Member States must take into consideration the nature, size and location of the project in order to determine whether significant effects on the environment are likely. (19) In that regard, the EIA Directive seeks an overall assessment of the environmental impact of projects or of their modification. (20) Specifically, both the direct effects of the works envisaged themselves and the environmental impact liable to result from the use and exploitation of the end product of those works must be taken into account. (21) Consideration would thus have to be given, for instance, to an increased volume of transport. 48. Furthermore, a high density of population and the historical, cultural or archaeological significance of locations are among the criteria which the Member States must take into account under Article 4(3) of the EIA Directive in the case-by-case examination or the setting of thresholds or criteria for the purpose of Article 4(2). Precisely the same considerations apply in this respect to road construction projects as to urban development projects, which were the subject of the judgment in Case C‑332/04. (22) 49. Whilst the budget of a project is possibly an indicator of its size, it appears unlikely that its mere scale allows inferences to be drawn as to its environmental effects. If the budget contains information on environmental effects or the reduction of those effects, other planning documents generally exist which describe those effects or their reduction much better. It therefore appears rather strange to use the budget of a project as a criterion for determining whether an environmental impact assessment is necessary. 50. In principle, favourable environmental effects of a project, as put forward by the municipality of Madrid at the hearing, are not as such significant within the meaning of the EIA Directive. The aims of the directive – preventing the creation of pollution (first recital) and the protection of the environment and the quality of life (third recital) – do not require an assessment to be conducted only because a project can significantly improve the state of the environment. In examining whether an environmental impact assessment is necessary, however, the expectation of favourable environmental effects cannot offset significant adverse environmental effects of a project in such a way that no assessment at all takes place because on balance the project as a whole is beneficial to the environment. 51. Lastly, the objective of the EIA Directive cannot be circumvented by the splitting of projects. (23) Where several projects, taken together, may have significant effects on the environment within the meaning of Article 2(1), their environmental impact should be assessed as a whole. (24) It is necessary to consider projects jointly in particular where they are connected, follow on from one another, or their environmental effects overlap. 52. In the present case, the geographical proximity of the five projects, their similarity, their combined effects in terms of urban traffic management and the fact that they were dealt with together at the hearing and in the development consent procedure would suggest that they should be considered together. Because all the sub-projects affect a limited sector of the urban road network, their environmental effects will in all likelihood overlap and accentuate one another, both in the construction phase and when the improved and widened roads are used. 53. Furthermore, it seems to be common ground that the contested projects form part of the overall project ‘Madrid calle M-30’ to improve and widen urban main roads. It cannot therefore be ruled out that their environmental impact should be assessed having regard to the overall project. 54. In this connection, the municipality of Madrid raises the additional question whether the contested projects are to be regarded as urban development projects within the meaning of point 10(b) of Annex II. However, there is no need to answer that question in the present case because in any event the case concerns changes of road construction projects within the meaning of point 10(e) and the first indent of point 13. The question whether the environmental impact is to be assessed because the projects are likely to have significant environmental effects does not depend on their classification in another category of projects in the same annex. 4. Interim conclusion 55. The procedural requirements relating to environmental impact assessments arising from the EIA Directive are applicable to urban road projects – where they are projects within the meaning of point 7(b) or (c) of Annex I, or – where they are projects within the meaning of point 10(e) or the first indent of point 13 of Annex II which are likely to have significant effects on the environment by virtue of their nature, size or location, or if appropriate their combined effects with other projects. 56. Moreover, neither the information in nor the nature of the present reference for a preliminary ruling allows the Court to examine whether specific characteristics of the contested projects require an environmental impact assessment. It is therefore for the referring court to carry out that examination. B – The fourth question – Alternatives to the environmental impact assessment 57. Lastly, the referring court asks whether the relevant administrative records and, specifically, the studies and reports contained therein, demonstrate that the Spanish authorities have, in practice, complied with the obligations arising from the EIA Directive relating to the environmental assessment of the projects which are the subject-matter of these proceedings, even if the project was not formally made subject to the prescribed environmental assessment procedure set out in the directive. 58. In this respect, it should be stated first of all – in accordance with the view taken by Italy and the Commission – that the Court cannot examine, having regard to the relevant records from the national administrative procedure and, specifically, the studies and reports contained therein, whether the environmental impact of the contested projects was sufficiently assessed. In preliminary ruling proceedings the Court may interpret the relevant provisions of Community law only on the basis of the information contained in the reference made by the national court. It is for the national court to apply that interpretation to the main proceedings. 59. It must also be borne in mind that when ruling on the interpretation of Community provisions, the Court is empowered to do so only on the basis of the facts which the national court puts before it whilst it is for the national court to ascertain the facts which have given rise to the dispute and to establish the consequences which they have for the judgment which it is required to deliver. (25) The information provided in orders for reference must not only be such as to enable the Court to reply usefully but must also enable the Governments of the Member States and other interested parties to submit observations pursuant to Article 23 of the Statute of the Court of Justice. (26) 60. In the present case, the reference for a preliminary ruling does not contain any information on the studies and hearings conducted by the competent authorities. Therefore, despite the relatively detailed submissions of the parties to the main proceedings on this point, it is not possible to discuss the extent to which the Spanish authorities actually complied with the requirements of the EIA Directive. 61. Taking these reservations into account, the Court is nevertheless required to give an answer to the fourth question. 62. The Court has recognised in principle that a formal environmental impact assessment may be replaced by equivalent measures. (27) In order to be equivalent, the minimum requirements for an environmental impact assessment under Article 3 and Articles 5 to 10 of the EIA Directive must be met. (28) Measures which were taken only after development consent was given are irrelevant since environmental impact is to be assessed under Article 2(1) of the EIA Directive before consent is given. 63. If the national court concludes that the environmental impact of the contested road construction projects should have been assessed, it will therefore have to examine whether, before consent was given – the environmental effects were sufficiently investigated and described (Article 3 and Article 5), – those findings were made available to the public (Article 6 and Article 7), – the public were able to comment (Article 6 and Article 7), and – the information on the environmental effects and the comments made by the public were taken into consideration (Article 8). 64. Finally, it should be pointed out, on the basis of the submissions made by the municipality of Madrid, that any statements made by the Commission in connection with Treaty infringement proceedings cannot relieve the referring court of its responsibility to examine itself whether the requirements of the EIA Directive were complied with. 65. The answer to the fourth question must therefore be that a formal environmental impact assessment may be replaced by equivalent measures if they meet the minimum requirements laid down in Article 3 and Articles 5 to 10 of the EIA Directive. V – Conclusion 66. I therefore suggest that the Court answers the questions referred for a preliminary ruling as follows: 1. The procedural requirements relating to environmental impact assessments arising from Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directive 97/11/EC of 3 March 1997, are applicable to urban road projects, – where they are projects within the meaning of point 7(b) or (c) of Annex I, or – where they are projects within the meaning of point 10(e) or the first indent of point 13 of Annex II which are likely to have significant effects on the environment by virtue of their nature, size or location, or if appropriate their combined effects with other projects. 2. A formal environmental impact assessment may be replaced by equivalent measures if they meet the minimum requirements laid down in Article 3 and Articles 5 to 10 of Directive 85/337. 1 – Original language: German. 2 – OJ 1985 L 175, p. 40. 3 – OJ 1997 L 73, p. 5. 4 – After amendment that definition now states: ‘An express road is a road reserved for motor traffic accessible from interchanges or controlled junctions only and which, (i) Prohibits stopping and parking on the running carriageway(s) (ii) Does not cross at level with any railway or tramway track, or footpath.’ 5 – Case C‑332/04 Commission v Spain [2006] ECR I‑40. 6 – Cited in footnote 5. 7 – See, for example, Case C‑107/97 RombiandArkopharma [2000] ECR I‑3367, paragraph 29. 8 – With regard to such a reference to the definition of airports, see Case C‑2/07 Abraham and Others [2008] ECR I‑0000, paragraph 35. 9 – Case C‑486/04 Commission v Italy [2006] ECR I‑11025, paragraph 36. With regard to the interpretation of a reference to the definition of airports, see my Opinion in Case C‑2/07 Abraham and Others [2007] ECR I‑0000, point 45. 10 – Case C‑486/04 Commission v Italy (cited in footnote 9, paragraph 36). See also Case C‑287/98 Linster [2000] ECR I‑6917, paragraphs 49 and 52. 11 – With regard to road construction projects, see Case C‑332/04 Commission v Spain (cited in footnote 5, paragraph 81). 12 – Council Decision of 15 October 1996 on the conclusion, on behalf of the Community, of the Convention on environmental impact assessment in a transboundary context; not published. 13 – With regard to the EIA Directive see Case C‑72/95 Kraaijeveld and Others [1996] ECR I‑5403, paragraph 28; and, more generally, Case 29/69 Stauder [1969] ECR 419, paragraph 3; Case C‑300/05 ZVK [2006] ECR I‑11169, paragraph 16; and Case C‑56/06 Euro Tex [2007] ECR I‑4859, paragraph 27. 14 – Case C‑72/95 Kraaijeveld and Others (cited in footnote 13, paragraph 31); Case C‑435/97 WWF and Others [1999] ECR I‑5613, paragraph 40; and Case C‑2/07 Abraham and Others (cited in footnote 8, paragraph 32). 15 – See point 27 et seq. above. 16 – Case C‑227/01 Commission v Spain [2004] ECR I‑8253, paragraph 46 et seq. See Case C‑431/92 Commission v Germany (Großkrotzenburg) [1995] ECR I‑2189, paragraph 35, where the Court considered the enlargement of a power station through the addition of a new block to be a separate project. 17 – See my Opinion in Case C‑2/07 Abraham and Others (cited in footnote 9, point 47). 18 – Case C‑121/03 Commission v Spain [2005] ECR I‑7569, paragraph 87, and Case C‑332/04 Commission v Spain (cited in footnote 5, paragraph 76). With regard to the original version of the EIA Directive, see Case C‑72/95 Kraaijeveld and Others (cited in footnote 13, 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; and Case C‑2/07 Abraham and Others (cited in footnote 8, paragraphs 37 and 42). 19 – Case C‑332/04 Commission v Spain (cited in footnote 5, paragraph 77) and Case C‑2/07 Abraham and Others (cited in footnote 8, paragraph 38). 20 – Case C‑2/07 Abraham and Others (cited in footnote 8, paragraph 42). 21 – Case C‑2/07 Abraham and Others (cited in footnote 8, paragraph 43). 22 – Cited in footnote 5, paragraph 79. 23 – Case C‑392/96 Commission v Ireland (cited in footnote 18, paragraph 76) and Case C‑2/07 Abraham and Others (cited in footnote 8, paragraph 27). 24 – Case C‑392/96 Commission v Ireland (cited in footnote 18, paragraph 76) and Case C‑2/07 Abraham and Others (cited in footnote 8, paragraphs 27 and 28). 25 – Case C‑435/97 WWF and Others (cited in footnote 14, paragraph 31 et seq.). 26 – Case C‑303/05 Advocaten voor de Wereld [2007] ECR I‑3633, paragraph 20, and Case C‑467/05 Dell'Orto [2007] ECR I‑5557, paragraph 42. 27 – Case C‑431/92 Commission v Germany (Großkrotzenburg) (cited in footnote 16, paragraph 41 et seq.) and Case C‑227/01 Commission v Spain (cited in footnote 16, paragraph 56). 28 – With regard to these requirements, see Case C‑287/98 Linster (cited in footnote 10, paragraph 52 et seq.).