Opinion of the Advocate General — ECLI:EU:C:2022:64
Date: 2022-01-27
Language of the case: Czech
Subject matter: Environment;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Czechia

summary of data from the application pursuant to Paragraph 8. 
[13] Paragraph 19a of the Integrated Prevention Law regulates proceedings 
concerning changes in integrated permits. If a change to an installation is not 
substantial, the parties to the proceedings shall be, pursuant to Paragraph 19(4) of 
the Law, only the parties identified in Paragraph 7(1)(a) and (b), [OR 4], i.e., the 
installation operator and owner. The decision concerning the issuance and change 
of an integrated permit is made by a regional authority, in Prague the City Hall. 
The Ministry of the Environment (the Defendant) is competent to decide on 
appeals against their decisions. 
[14] Pursuant to Paragraph 3 of Zákon č. 100/2001 Sb., o posuzování vlivů na 
životní prostředí (Law No 100/2001 on environmental impact assessment), the 
following terms and definitions shall apply for the purpose of the Law: 
c) territory concerned is the territory whose environment and population 
could be subject to a significant effect in the event of the execution of the 
project or plan;  
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d) the self-governing territorial unit concerned is the self-governing 
territorial unit whose administrative district encompasses at least a part of 
the territory concerned;  
… 
i) the part of public concerned  
… 
2. A legal entity under private law whose line of business is, pursuant to its 
legal deed of establishment, environmental protection or protection of public 
health and whose main line of business is not enterprise or another gainful 
activity, which was established at least 3 years prior to the date of the 
publication of information concerning the follow-up proceedings referred to 
in Paragraph 9b(1) or prior to the date of the issuance of a decision 
pursuant to Paragraph 7(6), or which is supported by the signatures of at 
least 200 persons. 
[15] Pursuant to Paragraph 9c(3) of the Environmental Impact Assessment Law: 
If it reports to the administrative authority conducting the follow-up 
proceedings by a written submission within 30 days of the publication of 
information pursuant to Paragraph 9b(1), the following shall become 
parties to the follow-up proceedings: 
a) the self-governing territorial unit concerned or  
b) the part of the public concerned, as specified in the second subparagraph 
of Paragraph 3(i). 
III. Analysis of the Question Submitted for a Preliminary Ruling 
[16] In the present case, the Supreme Administrative Court examines whether a 
‘substantial change’ of a plant pursuant to Article 3(9) of the Directive on 
Industrial Emissions means an extension of the period of waste disposal at a 
landfill by two years without the maximum approved dimensions or total potential 
capacity of the landfill changing at the same time.  
[17] For the sake of clarity, let us add that, even though the vast majority of the 
Complainant’s argumentation goes in that direction, the Supreme Administrative 
Court did not specifically examine in this case whether the extension of waste 
disposal at the landfill constitutes a ‘project’ as defined by the Environmental 
Impact Assessment Law (and the EIA Directive). Nevertheless, the Court of 
Justice has dealt with extensions of plant operation similar to that concerned in 
this case in terms of environmental impact assessment; by making a request for a 
preliminary ruling, the Supreme Administrative Court intends to clarify whether a 
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similar interpretation can apply even in cases of integrated prevention 
modifications.  
[18] For the reasons presented below, the chamber of the Supreme 
Administrative Court concluded it was necessary to request the Court of Justice 
for a preliminary ruling. 
[19] Court of Justice case-law has yet to examine the term ‘substantial change’ in 
Directive 2010/75/EU (or in directives preceding it). 
[20] In Brussels Hoofdstedelijk Gewest the Court of Justice did, however, 
examine an extension of the operation of an airport that was not linked to any 
other work or intervention involving alterations to the physical aspect of the site, 
from the point of view of Directive 85/337/EEC. It ruled that an extension of the 
validity of the present permit [OR 5] cannot be considered to constitute a ‘project’ 
due to the non-existence of such work or interventions (Brussels Hoofdstedelijk 
Gewest and Others, C-275/09, paragraphs 20, 24, and 38). The Court of Justice 
has not yet departed from that interpretation. In its most recent case-law 
(interpreting 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), however, it emphasises that the interpretation is 
closely linked to the wording of Article 1(2)(a), first indent of the EIA Directive, 
according to which a ‘project’ means the execution of construction works or of 
other installations or schemes (comp. judgment in Friends of the Irish 
Environment Ltd, C-254/19, ECLI:EU:C:2020:680, paragraph 32, or in Inter-
Environnement Wallonie and Bond Beter Leefmilieu Vlaanderen, C-411/17, 
ECLI:EU:C:2019:622, paragraph 62). The requirement of ‘works’ and 
‘interventions’ involving alterations to the physical aspect of the site is therefore 
relevant for evaluating whether an activity constitutes a ‘project’. 
[21] The Court of Justice confirmed the above when interpreting Article 6(3) of 
Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural 
habitats and of wild fauna and flora. The definition of the term ‘project’ [as used 
in Directive 85/337/EEC] is relevant for determining the scope of a similar term 
‘project’ as used in Article 6(3) of the Directive, but only the definition of the 
term ‘project’ [in Directive 85/337/EEC] requires ‘works or interventions 
involving alterations to the aspect of the site’. Hence, the term ‘project’ [in 
Directive 92/43/EEC] (for which it is of the essence primarily whether it may 
have a ‘significant effect’ on the protected site) is broader than the term ‘project’ 
[in Directive 85/337/EEC] (Coöperatie Mobilisation for the Environment and 
Vereniging Leefmilieu, Joined Cases C-293/17 and C-294/17, 
ECLI:EU:C:2018:882, paragraphs 59-66). 
[22] In the case of Directive 2010/75/EU on industrial emissions, an approach 
similar to that taken to Directive 92/43/EEC could be taken. Article 3(9) of 
Directive 2010/75/EU provides a broad definition of the term ‘substantial 
change’ – it can be (any) change in the nature or functioning, or an extension, of 
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an installation, provided that it may have significant negative effects on human 
health or the environment. The definition does not explicitly require the 
‘substantial change’ to be always connected to physical changes in the installation.  
[23] Even though neither the maximum permitted dimensions nor the total 
capacity of the landfill is changing in the present case, waste will be brought in for 
an additional two years due to the extension of waste disposal at the landfill 
(strictly speaking, the landfill will not stay free of any physical changes, they will 
only fall within previously approved limits). The activity in and of itself 
constitutes an environmental intervention. As the City Court has already stated in 
this case, the integrated permit itself reckons with the adverse environmental 
impact of the landfill and sets conditions for its operation in terms of air protection 
(including emission limits) or in terms of ground and surface water protection. 
The environmental intervention will thus continue due to the extension of the time 
of waste disposal at the landfill. 
[24] Furthermore, the objective of Directive 2010/75/EU is, pursuant to recital 12 
and Article 1, to ensure a high level of protection of the environment as a whole. 
Hence, there is no reason why changes consisting merely of an extension of the 
duration of the operation of a plant (i.e., changes that do not concern the 
remaining maximum limits for the operation of the plant) should, a priori, be 
excluded from the definition of a ‘substantial change’ – such changes, too, can 
have a significant negative effects on human health or the environment, which is 
required by the definition set out in Article 3(9) of the directive on industrial 
emissions. 
[OMISSIS]