Opinion of the Advocate General — ECLI:EU:C:2026:427
Date: 2026-05-21
Language of the case: German

Summary C-189/25 – 1 
Case C-189/25 
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: 
7 March 2025 
Referring court: 
Bundesverwaltungsgericht (Austria) 
Date of the decision to refer: 
5 March 2025 
Applicants: 
Umweltorganisation VIRUS – Verein Projektwerkstatt für Umwelt 
und Soziales 
Umweltschutzorganisation Global 2000 
Bürgerinitiative ‘Marchfeld-Groß Enzersdorf’ 
Bürgerinitiative ‘Rettet die Lobau – Natur statt Beton’ 
Bürgerinitiative ‘Lebenswertes Neu Essling’ 
Agrargemeinschaft Mannswörth 
C. K. and Others 
Defendant authorities: 
Landeshauptmann von Wien 
Landeshauptfrau von Niederösterreich 
Project applicant: 
Autobahnen- und Schnellstraßen-Finanzierungs-AG (ASFINAG) 
  
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-189/25 
 
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Subject matter of the main proceedings 
Proceedings before the Bundesverwaltungsgericht (Federal Administrative Court) 
against decisions of the Governors of the Provinces of Vienna and Lower Austria 
granting consent under the law governing water-related matters for the 
construction of a new express road 
Nature and subject matter of the request 
Interpretation of EU law (Article 267 TFEU), specifically Articles 2(a), 3(2)(a) 
and 13(3) of Directive 2001/42/EC (Strategic Environmental Impact Assessment 
Directive; ‘SEA Directive’) 
Questions referred for a preliminary ruling 
1. Must European Union law, in particular Articles 2(a) and 3(2)(a) of 
Directive 2001/42/EC of the European Parliament and of the Council of 27 June 
2001 on the assessment of the effects of certain plans and programmes on the 
environment (SEA Directive), be interpreted as meaning that an annex to a 
provision of national law (schedule), which declares sections of road to be ‘federal 
roads’ by determining certain geographical points (start, intermediate [way] and 
end points), that definition establishing, in a binding manner, the entitlement to 
submit an application for determination of the line of the road within the 
framework of a specific project to be submitted for consent in the future and the 
competence of the authority issuing consent, sets a ‘framework for future 
development consent’ of projects listed in Annexes I and II to Directive 
2011/92/EU (EIA Directive), even if that provision of law lays down specific 
conditions for consent for the project, including in particular road safety, 
functional purpose or environmental impact, but those conditions make no further 
reference to the determination of the course of the road by geographical points? 
If the answer to Question 1 is in the affirmative: 
2. Must Article 13(3) of the SEA Directive be interpreted as meaning that a 
first formal preparatory act within the meaning of that provision has occurred 
where documents, which are to be drawn up under relevant specific law applicable 
in the Member State prior to an amendment of a plan, were in preparation and, 
during their preparation, were also repeatedly presented to the local authorities, 
host municipalities and authorities issuing consent involved and discussed by a 
committee of experts? 
3. Must Article 3(2)(a) of the SEA Directive be interpreted as meaning that, 
where a specific project is consented in several stages under the EIA Directive, a 
plan whose criteria and detailed rules directly form the basis only for the first 
consent also sets a framework for all further development consents necessary for 
the implementation of the project? 
VIRUS II 
 
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Provisions of European Union law relied on 
Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of 
certain public and private projects on the environment (OJ 1985 L 175, p. 40): 
Article 12 
Directive 2001/42/EC of the European Parliament and of the Council of 27 June 
2001 on the assessment of the effects of certain plans and programmes on the 
environment (SEA Directive) (OJ 2001 L 197, p. 30): Articles 2(a), 3(1) to (3) and 
(5) to (7), and 13(3) 
Directive 2011/92/EU of the European Parliament and of the Council of 
13 December 2011 on the assessment of the effects of certain public and private 
projects on the environment (EIA Directive) (OJ 2012 L 26, p. 1): Article 1(2)(c), 
Annex I, No 7(b) 
Provisions of national law relied on 
Bundes-Verfassungsgesetz (Federal Constitutional Law, BGBl. No 1/1930 in the 
version contained in BGBl. I No 89/2024: Article 10(1)(9) 
Bundesstraßengesetz 1971 (1971 Law on federal roads), BGBl. No 286/1971 in 
the version contained in BGBl. I No 143/2023 (‘Law on federal roads’): 
‘Declaration and declassification of sections of road as federal roads 
Paragraph 1. (1) The sections of road listed in the schedules forming part of this 
Federal Law shall be declared federal roads. The Federal Minister for Climate 
Action, Environment, Energy, Mobility, Innovation and Technology shall set out 
by regulation the more detailed description of the route of the federal roads 
contained in the schedule, in so far as they are already open to traffic. That 
regulation shall contain a reference to planning documents which are available for 
viewing at the Federal Ministry of Climate Action, Environment, Energy, 
Mobility, Innovation and Technology and at the Office of the Provincial 
Government of the relevant province. 
(2) … 
… 
Classification of federal roads 
Paragraph 2. (1) The federal road network shall consist of A federal roads (federal 
motorways, Schedule 1) and S federal roads (federal express roads, Schedule 2). 
The federal roads shall be suitable for express traffic within the meaning of traffic 
regulations and shall not intersect with other road infrastructure or used for local 
development. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-189/25 
 
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… 
Determination of the line of the road, improvement and closure of road sections 
Paragraph 4. (1) Prior to the construction of a new federal road or sections thereof 
or prior to the addition of a second carriageway or prior to other types of 
improvement measures on federal roads, the Federal Minister for Climate Action, 
Environment, Energy, Mobility, Innovation and Technology shall, upon 
application by the Federal Government (Federal Roads Administration) and 
having regard to Paragraphs 7 and 7a, the environmental impact and traffic 
requirements and also the functional purpose of the road, and also having regard 
to the results of the consultation (subparagraph 5), determine, by decision, the line 
of the road within the framework of the schedules, by establishing the road axis 
or, in the case of an improvement, by description, both on the basis of a specific 
project. In this regard, the necessary requirements, conditions and time limits may 
be laid down in the decision. … 
… 
Schedule 2 
S Federal roads (Federal express roads) 
[Description of project, see paragraph 4 below]’ 
ASFINAG-Gesetz (ASFINAG Law), BGBl. No 591/1982 in the version contained 
in BGBl. I No 142/2023: Article II (Legal basis for establishing the ASFINAG) 
Bundesgesetz über die strategische Prüfung im Verkehrsbereich (Federal Law on 
strategic assessment in the field of traffic; ‘Law on strategic traffic assessment’), 
BGBl. I No 96/2005, in the version contained in BGBl. No 25/2014: Paragraphs 1, 
2(1) and (2), point 3, and 3 
Bundesgesetz über die Prüfung der Umweltverträglichkeit (Federal Law on 
environmental impact assessment; ‘2000 Law on EIA’), BGBl. No 697/1993 in 
the version contained in BGBl. I No 26/2023: 
‘Scope in respect of federal roads 
Paragraph 23a. (1) An environmental impact assessment (Paragraph 1) must be 
carried out in accordance with this Section in respect of the following federal road 
projects: 
1. New construction of federal roads or sections thereof, with the exception of 
additional junctions, 
… 
Decision 
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Paragraph 24f. (1) Consents (subparagraph 6) may only be granted if, with a view 
to effective environmental protection, the following requirements are met in 
addition to the applicable administrative provisions: 
[rules relating to pollutants, emissions, waste, etc.] 
… 
Entry into force, expiry, transitional provisions 
Paragraph 46. … 
(23) … The provisions of Paragraph 24(1), (3), (3a) and (7), Paragraph 24a(3) and 
Paragraph 24f(6) and (7) in the version prior to the entry into force of this 
amendment shall apply to projects in respect of which a consent procedure under 
the third subparagraph was initiated prior to the entry into force of Federal Law 
BGBl. I No 77/2012. …’ 
Bundesgesetz über die Prüfung der Umweltverträglichkeit (Federal Law on 
environmental impact assessment; 2000 Law on EIA), BGBl. No 697/1993, in the 
version prior to the entry into force of the 2012 Law amending the Federal Law on 
environmental impact assessment, BGBl. I No 77/2012: 
‘Procedure, authority 
Paragraph 24. (1) If a project is to be subject to an environmental impact 
assessment pursuant to Paragraph 23a or 23b, the Federal Minister for Transport, 
Innovation and Technology shall carry out the environmental impact assessment 
and a partially consolidated consent procedure. … The provincial governor may 
be entrusted with the implementation of the environmental impact assessment and 
the partially consolidated consent procedure in whole or in part where this is in the 
interests of expediency, speed, simplicity and cost savings. 
(2) … 
(3) The provincial governor shall carry out a partially consolidated consent 
procedure in which he or she shall apply the other consent provisions required for 
the implementation of the project under the administrative provisions laid down in 
federal law, also in so far as they are to be implemented within the municipality’s 
own jurisdiction. … 
…’ 
Gesetz des Landes Wien über Einrichtungen zum Schutz der Umwelt (Law of the 
Province of Vienna on institutions for the protection of the environment; ‘Vienna 
Environmental Protection Law’), LGBl. No 25/1993: 
‘Council of Experts on Environmental Issues 
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Paragraph 9. (1) A Council of Experts on Environmental Matters (Council) shall 
be established to provide expert advice to the City Councillor for the Environment 
and the Environment Ombudsman in the interest of protecting the environment in 
the implementation of provincial laws. 
(2) The Council may make recommendations on important or fundamental 
issues of environmental protection. 
(3) The Council shall issue an opinion on the environmental report of the City 
Council.’ 
Case-law of the Court of Justice relied on 
11 August 1995, Commission v Germany, C-431/92, EU:C:1995:260 
16 March 2006, Commission v Spain, C-332/04, EU:C:2006:180 
4 May 2006, Barker, C-290/03, EU:C:2006:286 
28 February 2012, Inter Environnement Wallonie and Terre Wallonne, C-41/11, 
EU:C:2012:103 
15 January 2013, Križan and Others, C-416/10, EU:C:2013:8 
10 September 2015, Dimos Kropias Attikis, C-473/14, EU:C:2015:582 
27 October 2016, D’Oultremont and Others, C-290/15, EU:C:2016:816 
7 June 2018, Inter-Environnement Bruxelles and Others, C-671/16, 
EU:C:2018:403 
25 June 2020, A and Others, C-24/19, EU:C:2020:503 
22 February 2022, Bund Naturschutz in Bayern, C-300/20, EU:C:2022:102 
9 March 2023, NJ and Others, C-9/22, EU:C:2023:176 
The judgments are cited below using their abbreviated names. 
Succinct presentation of the facts and procedure in the main proceedings 
1 The dispute concerns the decisions on partially consolidated consent 
1. of the Governor of Vienna of 13 August 2021, ref. no: MA 58-1020187-
2018-382, by which Autobahnen- und Schnellstraßen-Finanzierungs-
Aktiengesellschaft (ASFINAG), represented by ASFINAG Baumanagement 
GmbH, was granted consent pursuant to the Wasserrechtsgesetz (Law governing 
water-related matters), in conjunction with Paragraphs 24(3) and 24f of the 2000 
VIRUS II 
 
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Law on EIA, for the project ‘S 1 Vienna Outer Ring Express Road, Section 
Schwechat – Süßenbrunnn’, Second Implementation Section Schwechat – Groß-
Enzersdorf (km 16.2 + 17.00 – km 25.6 + 00.00, project length = 9 383.00 m), and 
2. of the Governor of Lower Austria of 13 August 2021, ref. no: WST1-U-
879/036-2021, by which ASFINAG was granted the authorisations under the law 
governing water-related matters, in conjunction with the 2000 Law on EIA, for the 
same project. 
2 Specifically, it concerns whether the consent under the law governing water-
related matters for the construction of a new express road can also be granted 
where the plan, which formed the basis for the decision on the route, was not 
subject to a strategic environmental assessment and screening, contrary to the 
requirements of Article 3 of the SEA Directive. 
3 By Amending Law BGBl. I No 50/2002 of 29 March 2002, the S1 Vienna Outer 
Ring Express Road was included in Schedule 2 of the Law on federal roads) with 
the following description of the route: ‘Vösendorf Junction (A 2, A 21) – 
Schwechat Junction (A 4) – Vienna [Albern – Lobau/Ölhafen (Oil Terminal)) (A 
22)] – Großebersdorf (A 5) – Korneuburg (A 22).’ 
4 By Amending Law BGBl. I No 58/2006 of 9 May 2006, the route of the S1 
Vienna Outer Ring Express Road was re-described in Schedule 2 of the Law on 
federal roads as follows: ‘Vösendorf Junction (A 2, A 21) – Rothneusiedl Junction 
(A 24) – Rustenfeld Junction – Schwechat Junction (A 4) – Junction near 
Raasdorf (A 23) – Junction near Raasdorf (S 8) – Vienna/Süßenbrunn Junction (S 
2) – Eibesbrunn Junction (A 5) – Korneuburg/West Junction (A 22), including 
Rustenfeld – Leopoldsdorf Junction (B 16)’. 
5 Neither a strategic environmental assessment nor screening was carried out for the 
amendments to the Law on federal roads referred to in paragraph 4. 
6 On 26 March 2009, the project applicant submitted an application to the 
competent federal minister for the ‘S 1 Vienna Outer Ring Expressway, Section 
Schwechat – Süßenbrunn’ project in the Provinces of Vienna and Lower Austria. 
In that regard, the minister carried out an environmental impact assessment 
(‘EIA’) and a partially consolidated consent procedure in accordance with Section 
3 of the 2000 Law on EIA and granted consent in accordance with the 2000 Law 
on EIA in a decision of 26 March 2015, whereby the route was also determined in 
accordance with the Law on federal roads (‘EIA consent’). That consent was 
amended in 2018 in the course of different proceedings before the Federal 
Administrative Court and is now final. 
7 In respect of the first implementation section from Süßenbrunn to Groß 
Enzersdorf, further consents were subsequently granted under the law governing 
matters relating to water and nature conservation, which are also final. 
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8 In respect of the second implementation section from Schwechat to Groß 
Enzersdorf, the consent decisions mentioned in paragraph 1 above were granted at 
the request of the project applicant on 28 November 2018. The actions brought by 
the applicants are directed against those decisions. 
The essential arguments of the parties in the main proceedings 
9 The applicants submit that the entry in the Law on federal roads relating to S1 
Schwechat Süßenbrunn must be disregarded due to it being contrary to EU law 
and therefore be treated as if the project were not part of the federal road network. 
The reason was that neither a strategic environmental assessment nor screening 
had been carried out in respect of the amendments to that entry after the end of the 
implementation period for the SEA Directive. ‘Due to the lack of a basis’, it was 
therefore not possible to grant authorisation in consent procedures such as that 
under the law governing water-related matters. 
10 The project applicant argues in that regard that there was no obligation to carry 
out a strategic environmental assessment in respect of the amendments set out in 
the 2006 Law amending the Law on federal roads because the first formal 
preparatory act occurred before 21 July 2004 and the amendment to the plan was 
adopted no later than 24 months after 21 July 2004, that is to say by 21 July 2006. 
The 2006 Law amending the Law on federal roads was passed by the National 
Council on 29 March 2006 and therefore fell within that two-year transitional 
period. The government bill was submitted on 24 February 2006 and the 
ministerial draft on 22 September 2005. The go-ahead for the preliminary project 
was given on 31 March 2003. In response to the court’s question at the hearing as 
to what the project applicant specifically considers to constitute the formal 
preparatory act, its representative clarified that the first formal preparatory act was 
‘the 2005 preliminary project, which was initiated at the beginning of 2003 and in 
which most of the meetings took place in 2004’. If the project launch meeting of 
31 March 2003 were not to be taken as the basis, then the meeting of 8 March 
2004 at the very latest was decisive since the minutes of that meeting expressly 
state that there would be Ölhafen Junction. The outcome of the planning process 
was also presented at the meeting of the steering group on 29 March 2004, which 
was attended by the project applicant, the competent ministry and the provinces 
concerned. The plans were subsequently consolidated and supplemented by a 
precise traffic assessment to estimate the effects of the omission of the junction at 
Ölhafen and presented to the steering group on 22 June 2004. Subsequently, the 
Council of Experts on Environmental Issues (‘the Council of Experts’) issued an 
opinion in June 2004. 
11 The applicants replied, arguing that not just any meeting and not just any step that 
is decisive for the decision-making on the part of the project applicant can be 
subsumed under ‘formal preparatory act’. Such an act occurred at the earliest after 
the cut-off date of 21 July 2004 laid down in the SEA Directive. 
VIRUS II 
 
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Succinct presentation of the reasoning in the request for a preliminary ruling 
Background 
12 The Austrian national federal road network is made up of the sections of road 
described in Schedules 1 (motorways) and 2 (express roads) of the Law on federal 
roads. They are described therein in the form of topographical fixed points 
between which the federal road establishes a connection. 
13 Those two schedules of the Law on federal roads constitute a mandatory transport 
plan in respect of which the Austrian legislature laid down an obligation to carry 
out a strategic environmental assessment for amendments to those schedules in the 
Law on strategic traffic assessment, pursuant to the SEA Directive. 
14 It is common ground that the first incorporation of S1 in Schedule 2 of the Law on 
federal roads (see paragraph 3 above) does not fall within the temporal scope of 
the SEA Directive as it only applies to those plans of which the first formal 
preparatory act was adopted after 21 July 2004. 
15 However, the fact that the SEA Directive had not yet come into force when the S1 
was newly incorporated is irrelevant in the light of the fact that the directive 
applies to any modifying measure adopted while the directive was in force 
(judgment in Dimos Kropias Attikis, paragraph 56). After the transposition date 
laid down Article 13(1) of the SEA Directive (21 July 2004), amendments were 
made to the description of S1 in Schedule 2 of the Law on federal roads (see 
paragraph 4 above). 
16 In that context, no SEA and no screening was carried out in particular in respect of 
the extension of the A 23 motorway ‘Südosttangente Wien’ (Vienna South-east 
bypass) (‘Junction near Raasdorf [A 23]’) and the realignment of the A 22 
Donauufer (Danube Bank) motorway with the omission of the waypoint ‘Vienna 
[Albern] – Lobau/Ölhafen) (A 22)’, which was linked to tunnelling of the Danube. 
That corresponded to the legal situation under the Law on strategic traffic 
assessment in the version applicable at the time. Amending Law BGBl. I 
No 25/2014 was the first to stipulate that an EIA must also be carried out in such 
cases, thus establishing complete conformity with Article 3(3) to (6) of the SEA 
Directive. 
First question referred 
17 The referring court has doubts as to whether the establishment or amendment of a 
schedule, where appropriate read in conjunction with other provisions, sets a 
framework for future development consents within the meaning of Article 3(2)(a) 
of the SEA Directive. If that were not the case and the schedule of federal roads 
(and thus also amendments to them) were not classified as a ‘plan’ or 
‘programme’ within the meaning of the SEA Directive, possible consequences – 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-189/25 
 
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resulting from the primacy of application of EU law – such as the requirement to 
disapply a plan, would not have to be examined at all. 
18 According to the Court of Justice, what is important in that respect is whether the 
act in question establishes a ‘significant body’ of ‘criteria and detailed rules’ 
(judgment in D'Oultremont and Others, paragraph 49). In connection with the 
interpretation of the concept of ‘plans and programmes’, the Court of Justice has 
specified that the concept of ‘a significant body of criteria and detailed rules’ must 
be construed ‘qualitatively’ and not ‘quantitatively’ (judgment in Inter-
Environnement Bruxelles and Others, paragraph 54 et seq.). 
19 With regard to the definition of the line of a road (corridor) in the schedules in the 
Law on federal roads, it should be noted that it in any event specifies the location, 
even if it does not affect the specific course (that is to say the alignment). The 
creation of a road connection for through traffic between the respective starting 
and end points via specifically defined waypoints is thus created. A project 
submitted by the developer in that regard, which defines the alignment, should 
only be consented pursuant to Paragraph 4 of the Law on federal roads if that road 
project would actually enable the connection for through traffic from the starting 
point to the end point via all the defined waypoints. However, it could be argued 
that – on its own – such a requirement is not sufficient to constitute a significant 
body of criteria and detailed rules for the grant and implementation of a project 
falling under Annex I or II to the EIA Directive. 
20 There are concerns in that regard, particularly in the light of the judgment in Bund 
Naturschutz in Bayern. According to that judgment, such a significant body of 
criteria and detailed rules may consist in particular of requirements regarding the 
location, nature, size and operating conditions of such projects, or the allocation of 
resources connected with those projects (paragraph 62). However, in that decision, 
the Court of Justice specifically held that a regulation defining a geographically 
defined nature conservation area, which laid down a requirement for consent in 
particular for certain projects located in that area, did not (already) contain 
corresponding criteria or detailed rules (paragraph 65). Nor was it sufficient for 
the Court of Justice that the regulation itself laid down a conservation objective to 
be taken into account when granting authorisation (paragraph 68) or that the 
measure in question made it harder to select a location for projects within the 
conservation area (paragraph 69). 
21 However, it could also be argued that the definition of the corridor already creates 
a (binding) requirement for the authority issuing consent which is likely to have 
significant environmental effects and must therefore be subject to an 
environmental assessment. For example, the decision on the start, way and end 
points of a road for through traffic is associated in particular with the allocation of 
natural resources in the corridor, for example in the form of effects on the 
protected asset ‘environment’, or more specifically the protected assets 
‘biodiversity’, ‘soil’ or ‘surface area’. In any event, the determination of the 
course of a road excludes a project which would build such a road between the 
VIRUS II 
 
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two topographically fixed points (start and end points) without passing through 
the defined waypoints. In that respect, it could also be argued that although the 
framework is not comprehensive, it is sufficiently significant for future 
development consent. Nor should the fact be overlooked that the Court of Justice 
has already emphasised on several occasions that the objective of the directive is 
to provide for a high level of protection of the environment and therefore the 
provisions which delimit the directive’s scope, in particular those setting out the 
definitions of the measures envisaged by the directive, must be interpreted broadly 
(see, inter alia, D’Oultremont and Others, paragraph 40). For example, in its 
judgment in NJ and Others the Court of Justice held that acts of a mandatory 
nature, which are capable of limiting the discretion enjoyed by authorities 
(responsible for granting or refusing consent) and thus of excluding certain 
modalities of implementation of projects which might prove to be more 
favourable to the environment, must be subject to an environmental assessment 
under the SEA Directive (paragraph 50). 
Second question referred 
22 In the view of the project applicant, the first formal preparatory act within the 
meaning of Article 13(3) of the SEA Directive occurred before the deadline of 
21 July 2004, namely in the form of the planning steps which it cited, but at the 
latest in the form of the opinion of the Council of Experts of June 2004 (see 
paragraph 10 above). 
23 As regards the Council of Experts, the referring court points out that its members 
are proposed by the Academy of Sciences and appointed by the Government of 
the Province of Vienna. It is not bound by instructions and its members work on a 
voluntary basis. Problems to be dealt with can be named by the provisional 
government or taken up by the Council itself. Neither the Vienna Environmental 
Protection Law nor the Council’s rules of procedure contain a provision 
stipulating that the minutes of meetings must be published, but it can be assumed 
that they are at least available to the City Councillor for the Environment. In its 
opinion of June 2004, the Council of Experts gives its opinion on the route options 
available at that time and makes recommendations for the final choice of route. 
Specifically, it states, as regards the newly proposed form of the Danube crossing 
by means of a tunnel (instead of a bridge as previously planned) with the omission 
of the Ölhafen Junction, that the new alignment meets an essential requirement of 
environmental protection, namely the avoidance of the previously planned above-
ground structures in the immediate vicinity of the national park by omitting the 
enclosed Danube bridge and the Ölhafen/Lobau Junction with its slip roads and all 
the resulting adverse effects on the environment and the Donau-Auen National 
Park. 
24 As regards the question of when a ‘formal administrative act’ within the meaning 
of the transitional provision of Article 13(3) of the SEA Directive occurred, there 
is, as far as can be seen, no case-law of the Court of Justice. However, with regard 
to Article 12 of Directive 85/337/EEC, the Court of Justice has ruled that informal 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-189/25 
 
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contacts and meetings between the competent authority and the developer cannot 
be treated for the purposes of applying the directive as a definite indication of the 
date on which the procedure was initiated. The date when the application for 
consent was formally lodged thus constitutes the sole criterion which may be 
used. Such a criterion accords with the principle of legal certainty and is designed 
to safeguard the effectiveness of the directive (judgment in Commission v 
Germany, paragraphs 28 to 32). 
25 The referring court considers that there are indications that the act must display a 
certain formality, which must also be manifested externally to a broad public. That 
is also expressed in point 3.65 of the Commission’s ‘Guidance on the 
implementation of Directive 2001/42 on the assessment of the effects of certain 
plans and programmes on the environment’. According to that guidance, the word 
‘formal’ does not necessarily mean that the act should be required by national law, 
nor whether it produces legal effects in national law. A judgement should be made 
in each case, taking into account factors such as the nature of the act in question, 
the nature of the steps preceding it, and the apparent aim of the transitional 
provision, namely to pursue legal certainty and good administration. The referring 
court considers that mere informal minutes of a meeting, which are only brought 
to the attention of a very limited specialised public, do not meet those 
requirements. It is also doubtful whether the opinion of an advisory body of one of 
the regional authorities involved, in which recommendations for the future route 
are made, can be regarded as a ‘formal preparatory act’. 
Third question referred 
26 The third question seeks to establish which consequences a failure to screen the 
amendments to the plan in question in breach of EU law has for the subsequent 
project consent. The Court of Justice has repeatedly held that there is an absence 
of provisions in the SEA Directive on the consequences of infringing the 
procedural provisions which it lays down and it is therefore for the Member States 
to take, within the sphere of their competence, all the general or particular 
measures necessary to ensure that all plans or programmes likely to have 
significant environmental effects within the meaning of the SEA Directive are 
subject to an SEA prior to their adoption in accordance with the procedural 
requirements and the criteria laid down (see, inter alia, judgment in Inter-
Environnement Wallonie and Terre Wallonne, paragraph 42). Consequently, 
courts before which actions are brought in that regard must adopt, on the basis of 
their national law, measures to suspend or annul the plan or programme adopted in 
breach of the obligation to carry out an environmental assessment or revoke or 
suspend consent already granted, in order to carry out such an assessment (see 
judgment in A and Others, paragraph 83). 
27 According to the provisions of the third section of the 2000 Law on EIA 
(Paragraph 24), federal roads are consented in several stages, and thus several 
consents are required, some of which follow on from one another. However, only 
one single consent directly implements the framework set by the schedules in the 
VIRUS II 
 
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Law on federal roads. It is only the consent of the competent federal minister – at 
the beginning of the consent cascade – in accordance with Paragraph 24(1) of the 
2000 Law on EIA, in conjunction with Paragraph 4(1) of the Law on federal 
roads, before the grant of which the environmental impact assessment is also 
carried out, in which the determining factors of ‘whether’ and ‘where’ 
(enshrinement in the network plan and approximate route of road) laid down in 
the network plan (that is to say the schedules of the Law on federal roads) are 
implemented. 
28 In that respect, it could be said that the plan only sets a framework for the decision 
of the federal minister and not for the further subsequent development consents. In 
that case, infringements of EU law in the implementation of the SEA Directive 
would have no effects on the ongoing procedure under the law governing water-
related matters; in particular, the consent under the law governing water-related 
matters would not have to be revoked. 
29 On the other hand, also tenable is the view that the consent of a project should be 
seen as a whole, regardless of how many individual consents have to be granted, 
which ultimately lead to the overall project being consented and possible to 
implement. 
30 In that regard, the referring court refers to the wording of Article 1(2)(c) and 
Article 3(2) of the SEA Directive – in particular the fact that it refers to ‘decision’ 
or ‘consent’ in the singular – and to the relevant judgments in Commission v Spain 
(paragraph 53) and Barker (paragraphs 40 to 46). Of central importance here is the 
judgment in Križan and Others, paragraph 103 of which reads: ‘Finally, it is 
apparent from settled case-law that an authorisation within the meaning of 
Directive 85/337 may be formed by the combination of several distinct decisions 
when the national procedure which allows the developer to be authorised to start 
works to complete his project includes several consecutive steps (see, to that 
effect, Case C-201/02 Wells, EU:C:2004:12, paragraph 52, and Case 
C-508/03 Commission v United Kingdom, EU:C:2006:287, paragraph 102). It 
follows that, in that situation, the date on which the application for a permit for a 
project was formally lodged must be fixed as the day on which the developer 
submitted an application seeking to initiate the first stage of the procedure.’ 
31 From this perspective, it can be argued that the plan is the condition for the totality 
of all consents which render the project permissible. From this point of view, the 
consent under the law governing water-related matters would also be based on the 
plan because, as soon as an official act of consent is attached to it, it sets the 
framework for the ‘consent’ as a whole within the meaning of the EIA Directive. 
In its judgment in A and Others, paragraph 88, for example, the Court of Justice 
states that the referring court would have to annul the consent adopted ‘on the 
basis of the plan’, which was itself adopted in breach of the SEA Directive. It 
would therefore also be necessary to annul the consent under the law governing 
water-related matters if the plan’s infringement of EU law can no longer be 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-189/25 
 
14  
invoked at the level of the ‘authorisation in principle’, in this specific case the EIA 
consent from 2018, because it has become final.