Order;Information — ECLI:EU:C:2023:518
Date: 2023-06-27
Language of the case: Portuguese
Court formation: Seventh Chamber
Subject matter: Environment
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Portugal

Summary C-24/23 – 1 
Case C-24/23 
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: 
18 January 2023 
Referring court: 
Supremo Tribunal Administrativo (Portugal) 
Date of the decision to refer: 
15 December 2022 
Appellant: 
Finalgarve – Sociedade de Promoção Imobiliária e Turística, S.A. 
Respondent: 
Ministério do Planeamento e das Infraestruturas 
  
Subject matter of the main proceedings 
The leapfrog appeal on a point of law being heard by the Supremo Tribunal 
Administrativo (Supreme Administrative Court, Portugal) concerns whether, as 
the respondent submits, the consequences of the implied administrative approval 
established in the Portuguese environmental legislation should be annulled on the 
grounds that they infringe the provisions of EU law. Principle of prevention – 
Rule that procedures must be speeded up and simplified – Principle of the 
protection of legitimate expectations 
Subject matter and legal basis of the request for a preliminary ruling 
Interpretation of EU environmental legislation and the principle of the protection 
of legitimate expectations – Article 267 TFEU 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-24/23 
 
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Questions referred for a preliminary ruling 
Is a solution such as that provided for in Article 21(7) of the legal rules governing 
environmental impact assessments (‘RJAIA’ (regime jurídico da avaliação de 
impacte ambiental)) in conformity with EU environmental legislation, in so far as 
it provides that, where the competent authority does not issue an express decision 
within 50 (working) days from the submission of the environmental compliance 
report for the final design (‘RECAPE’ (Relatório de Conformidade Ambiental do 
Projeto de Execução)), implied administrative approval in the form of a decision 
on the environmental compliance of the final design (‘DECAPE’ (Decisão sobre a 
Conformidade Ambiental do Projeto de Execução)) is deemed to have been 
issued? 
If the answer to the preceding question is in the affirmative, in accordance with 
the principle of the protection of legitimate expectations, a general principle of EU 
law, must the implied administrative approval be found to give rise to a legitimate 
legal expectation on the part of the applicant that the project will be executed in 
accordance with the RECAPE submitted, and that the contents thereof may only 
be amended subsequently subject to the State paying compensation for the rights 
sacrificed? 
Provisions of EU law relied on 
The principle of the protection of legitimate expectations as a general principle of 
EU law, the principle of prevention and the rule that procedures must be speeded 
up and simplified 
Provisions of national law relied on 
Decreto-Lei n.º 151-B/2013 que estabelece o regime jurídico da avaliação de 
impacte ambiental (AIA) dos projetos públicos e privados suscetíveis de 
produzirem efeitos significativos no ambiente, transpondo a Diretiva n.º 
2011/92/UE, do Parlamento Europeu e do Conselho, de 13 de dezembro, relativa à 
avaliação dos efeitos de determinados projetos públicos e privados no ambiente 
(Legislative Decree 151-B/2013 establishing the legal rules governing 
environmental impact assessments for public and private projects likely to have 
significant effects on the environment, transposing 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) of 
31 October 2013 (legal rules governing environmental impact assessments) 
(‘RJAIA’): in particular, Articles 2(f), 20(1) and 21(7) 
FINALGARVE 
 
3 
Succinct presentation of the facts and the main proceedings 
1 In October 2013, a favourable environmental impact declaration (Declaração de 
Impacte Ambiental (DIA)) was issued for the project in Silves submitted by 
Finalgarve – Sociedade de Promoção Imobiliária e Turística, S.A. (‘the 
appellant’). It was based on an environmental impact study and was subject to the 
information to be delivered in the phase of the environmental compliance report 
for the final design (Relatório de Conformidade Ambiental do Projeto de 
Execução) (‘RECAPE’)) complying with a series of requirements. 
2 On 11 September 2014, Sociedade Portuguesa de Botânica sent an opinion to the 
Secretário de Estado do Ambiente (Secretary of State for the Environment) in 
which it confirmed the presence of the botanical species Linaria algarviana in a 
very large area, which would be affected, and requested that the foregoing 
information be taken into account and the DIA that had been approved 
accordingly be annulled. Subsequently, on 22 June 2015, an amendment of the 
DIA was granted, on which the appellant had been given an opportunity to be 
heard, and a mitigation measure was added in point 15-A of the DIA. 
3 The appellant accepted that amendment and arranged for surveys of Linaria 
algarviana to be carried out in 2015, 2016 and 2017. The Instituto da 
Conservação da Natureza e Florestas (Institute for the Conservation of Nature and 
Forests, Portugal) (‘ICNF’) also carried out surveys in the area in 2016 and 2017. 
4 On 29 September 2017, the appellant submitted the RECAPE and the Comissão 
de Coordenação e Desenvolvimento Regional do Algarve (Algarve Coordination 
and Regional Development Commission, Portugal) (‘CCDRA’) examined the 
matter. On 17 November 2017, the ICNF issued an unfavourable opinion which 
was notified to the appellant on 18 December 2017 as the proposed grounds for 
adopting the contested unfavourable decision on the environmental compliance of 
the final design (Decisão sobre a Conformidade Ambiental do Projeto de 
Execução (‘DECAPE’)). 
5 On 3 April 2018, the appellant proposed a series of measures to the CCDRA with 
a view to reducing the environmental repercussions on Linaria algarviana that 
had been identified. On 20 June 2018, the appellant requested that a favourable 
DECAPE be issued incorporating the compensatory measures proposed in April 
2018. On 9 July 2018, the ICNF forwarded its unfavourable opinion which led to 
the CCDRA issuing an unfavourable DECAPE on 13 July 2018. 
6 The appellant brought judicial review proceedings against the Ministério do 
Planeamento e das Infraestruturas (Ministry of Planning and Infrastructure, 
Portugal) before the Tribunal Administrativo e Fiscal de Sintra (Administrative 
and Tax Court, Sintra, Portugal) (‘TAF’). In those proceedings, it sought: (a) 
annulment of the unfavourable DECAPE expressly adopted by the CCDRA on 
13 July 2018; (b) recognition of its substantive legal position deriving from the 
favourable DECAPE deemed to have been issued as a result of the failure to issue 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-24/23 
 
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an express decision on expiry of 50 working days, which constitutes a measure 
conferring rights; and (c) an order prohibiting the CCDRA from revoking or 
annulling the favourable implied DECAPE or, in the alternative, an order 
prohibiting the CCDRA from revoking or annulling the favourable implied 
DECAPE on the basis of non-compliance with mitigation measure 15-A in the 
DIA or non-compliance with the permit conditions. 
7 The proceedings were dismissed as unfounded by a judgment of 14 May 2021, 
which held that the unfavourable express DECAPE was valid. The TAF took the 
view, first, that that decision was valid in the light of the contents of the ICNF 
opinion and, secondly, that approval of the original DIA did not create a 
legitimate expectation that other favourable decisions would be adopted. 
8 Dissatisfied with that judgment, the appellant appealed to the Supremo Tribunal 
Administrativo (Supreme Administrative Court). It argued that the judgment was 
vitiated by defects giving rise to nullity and errors of assessment. It submitted that, 
by terminating or eliminating the effects of a measure conferring rights (the 
favourable implied DECAPE) which could not be revoked other than in the 
situations laid down by law, the unfavourable express DECAPE was unlawful and 
could therefore be annulled. 
9 The appellant has applied for the judgment under appeal to be set aside and 
replaced by a decision upholding its three claims. 
The essential arguments of the parties in the main proceedings 
The appellant’s position 
10 The appellant is of the view that it has complied with point 15-A of the DIA and 
that the favourable implied DECAPE is therefore not invalid. 
11 It maintains also that the unfavourable DECAPE infringes the principle enshrined 
in the Constitution that the rights and interests of citizens safeguarded by law must 
be upheld. Specifically, it infringes rights and interests safeguarded by law that the 
appellant derives from the DIA. 
12 The appellant’s fundamental premiss is that a measure was adopted on the basis of 
implied administrative approval and was subsequently revoked by the 
unfavourable DECAPE. That circumstance entailed revoking a measure that has 
conferred rights on the appellant and which therefore cannot be revoked. 
13 The appellant asserts that the unfavourable DECAPE also infringes Articles 2(f) 
(definition of the concept of a DECAPE) and 20(1) (which provides that the final 
design is subject to being found to be environmentally compliant with the DIA) of 
the RJAIA. 
FINALGARVE 
 
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14 It also argues that the unfavourable DECAPE is invalid because it infringes the 
law, in particular because it violates the principles of proportionality, cooperation 
and procedural good faith. 
15 Lastly, the appellant is of the view that the CCDRA was not entitled to base the 
unfavourable DECAPE on the ICNF opinion because it adopted the decision not 
on the grounds of any incompatibility with the DIA but on a ground not 
permissible according to the RJAIA. 
The respondent’s position 
16 The respondent contends that the TAF’s judgment is not open to criticism. In its 
view no favourable implied DECAPE existed prior to the unfavourable DECAPE. 
17 According to the respondent, the requirements for an implied measure to arise 
were not satisfied, because the time limit for adopting the final decision in the 
procedure was suspended during the phase of hearing the persons concerned. 
18 The favourable DIA subject to conditions is not a measure conferring rights on the 
appellant. For an advantage to be created, that advantage must arise definitively, 
so that it can be said that the beneficiary of the measure can legitimately expect 
that the advantage to it will exist. However, first, that decision remains an 
inherently unfavourable decision that highlights a significant risk of harm to 
legally protected environmental interests and poses an obstacle to the (intended) 
project proceeding on the terms in question. Secondly, it is uncertain whether the 
DIA is legally effective. 
19 Even were it found that the 50-day time limit to trigger implied administrative 
approval had expired, no approval could be implied because the provision of the 
RJAIA permitting implied approval – the last part of Article 21(7) – was not 
applicable. That finding is necessary in the light of the principle of the primacy of 
EU law, since a provision allowing implied administrative approval in relation to 
environmental permits conflicts with the case-law of the Court, which has held 
that a system of implied authorisation is incompatible with the requirements of the 
directives adopted in that field. 
20 The respondent asserts that some Portuguese academic authorities take the view 
that the current environmental law regimes under which administrative approval 
can be implied are contrary to EU law. 
21 Even assuming that the purported implied DECAPE did arise, that implied 
measure was validly annulled by the unfavourable express DECAPE. The 
appellant did not in fact comply with point 15-A of the DIA since the 
environmental compensatory measures it submitted were inappropriate. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-24/23 
 
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Succinct presentation of the grounds of the request for a preliminary ruling 
22 The referring court begins by finding that all the defects allegedly vitiating the 
judgment appealed from are unfounded and then analyses the errors of assessment 
relied on by the appellant. 
23 That court states that this case concerns a procedure governed by Articles 20 and 
21 of the RJAIA for verifying the environmental compliance of a final design, and 
that the first matter to be determined is whether the requirements are satisfied for 
Article 21(7) of the RJAIA to apply. 
24 According to the appellant, given that it submitted the RECAPE on 29 September 
2017, the time limit of 50 working days expired long before the unfavourable 
DECAPE was adopted, meaning that the consequences of implied administrative 
approval provided for in Article 21(7) of the RJAIA were triggered, and that the 
unfavourable DECAPE, since it amounts to a measure revoking a measure 
conferring rights, is therefore unlawful. 
25 The respondent, in contrast, is of the view that no administrative approval can be 
implied because, when it was notified of the proposed unfavourable DECAPE on 
18 December 2017, the appellant accepted the grounds of that proposed decision. 
Furthermore, also at that time the 50-day time limit for adoption of an express 
decision had expired. The appellant did not plead that circumstance, whereas it did 
propose new measures to reduce the environmental impact. It must therefore be 
found that the procedure was suspended and that no administrative approval could 
therefore be implied. 
26 According to the referring court, the respondent appears to be in error because, 
even if it is found that, for the purposes of implying administrative approval, time 
only began to run once the proposed mitigating measures were submitted in April 
2018, it is nevertheless true that, between that date and notification of the 
unfavourable DECAPE on 13 July 2018, more than the 50-day period under 
Article 21(7) of the RJAIA had elapsed. 
27 Nevertheless, another issue is whether the implied administrative approval 
solution in the Portuguese environmental legislation is in conformity with EU law, 
in particular with the principle of prevention and the rule that procedures must be 
speeded up and simplified. 
28 Since there is no record that the Court of Justice has ruled expressly on the matter, 
the referring court has decided to stay the proceedings and refer the questions set 
out above to the Court for a preliminary ruling under Article 267 TFEU.