Opinion of the Advocate General — ECLI:EU:C:2013:422
Date: 2013-06-20
Language of the case: German
Subject matter: Environment;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (Second Chamber), 7 November 2013 1. Environment — Assessment of the effects of certain projects on the environment — Directive 85/337 — Right to challenge a development consent decision — Temporal application — Immediate application to development consents issued after the period prescribed for transposing Directive 2003/35 expired (Council Directive 85/337, as amended by Directive 2003/35, Art. 10a) 2. Environment — Assessment of the effects of certain projects on the environment — Directive 85/337 — Right to challenge a development consent decision — National legislation restricting that right to challenges based on a failure to carry out an environmental impact assessment and excluding that right in cases in which such an assessment was carried out but was irregular — Not compatible (Council Directive 85/337, as amended by Directive 2003/35, Art. 10a) 3. Environment — Assessment of the effects of certain projects on the environment — Directive 85/337 — Right to challenge a development consent decision — Conditions of admissibility — Impairment of a right — Criteria — Member States’ discretion — Scope — Limits (Council Directive 85/337, as amended by Directive 2003/35, Art. 10a) 4. Environment — Assessment of the effects of certain projects on the environment — Directive 85/337 — Right to challenge a development consent decision — Conditions of admissibility — Impairment of a right — National legislation requiring a causal link between the procedural defect invoked and the content of the final contested decision — Lawfulness — Conditions (Council Directive 85/337, as amended by Directive 2003/35, Art. 10a(b)) 1. In providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment, Directive 2003/35, which inserted Article 10a into Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, a provision which extended the rights of members of the public concerned to challenge the decisions, acts or omissions referred to in that directive, must, since it provides that it is to be transposed into national law by 25 June 2005 at the latest, be interpreted as meaning that the rules of national law adopted for the purposes of transposing that article into national law are intended also to apply to administrative development consent procedures initiated before 25 June 2005 when the latter have resulted in the granting of consent after that date. (see paras 24, 31, operative part 1) 2. Article 10a of Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2003/35, which provides that that the decisions, acts or omissions referred to therein must be actionable before a court of law through a review procedure to challenge their substantive or procedural legality, must be interpreted as precluding the Member States from limiting the applicability of the provisions transposing that article to cases in which the legality of a decision is challenged on the ground that no environmental impact assessment was carried out, while not extending that applicability to cases in which such an assessment was carried out but was irregular. (see paras 36, 38, operative part 2) 3. See the text of the decision. (see paras 43-46) 4. Subparagraph (b) of Article 10a of Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2003/35, must be interpreted as not precluding national courts from refusing to recognise impairment of a right within the meaning of that article if it is established that it is conceivable, having regard to the circumstances of the case, that the contested decision would not have been different without the procedural defect invoked by the applicant. None the less, that will be the case only if the court of law or body hearing the action does not in any way make the burden of proof fall on the applicant and makes its ruling, where appropriate, on the basis of the evidence provided by the developer or the competent authorities and, more generally, on the basis of all the documents submitted to it, taking into account, inter alia, the seriousness of the defect invoked and ascertaining, in particular, whether that defect has deprived the public concerned of one of the guarantees introduced with a view to allowing that public to have access to information and to be empowered to participate in decision-making, in accordance with the objectives of Directive 85/337. (see paras 51, 53, 54, 57, operative part 3)