Provisional text
OPINION OF ADVOCATE GENERAL
KOKOTT
delivered on 21 May 2026 (1)
Case C‑189/25
Umweltorganisation VIRUS – Verein Projektwerkstatt für Umwelt und Soziales and Others
(Request for a preliminary ruling from the Bundesverwaltungsgericht (Federal Administrative Court, Austria))
( Request for a preliminary ruling – Environment – Directive 2001/42/EC – Assessment of the effects of certain plans and programmes on the environment – Scope – Plan or programme in the field of transport – Framework for the future development consent of projects – First formal preparatory act – Development consent of a road construction project in several stages – Consequences of the lack of an environmental assessment of the plan or programme for subsequent development consents – Schedule of federal roads – S
1 Vienna Outer Ring )
I.      Introduction
1.        Shortly after the time limit for transposition of the SEA
Directive (SEA is short for strategic environmental assessment) (2) had expired, Austria modified the waypoints of a planned express road forming the eastern bypass of Vienna. In the course of a legal dispute over consent under water law for a section of that bypass, the question arose as to whether the modification of the waypoints should have been subject to an environmental assessment. The Bundesverwaltungsgericht (Federal Administrative Court, Austria) therefore asks the Court of Justice
–        whether that modification, as such, required an environmental assessment,
–        whether that obligation was applicable at the time, and
–        whether a breach of the obligation to carry out an assessment would have consequences for the lawfulness of the consent under water law.
2.        The final question, in particular, can have significant practical implications as it concerns the issue of whether the failure to carry out an environmental assessment can, even after a long time, still call into question the validity of subsequent decisions.
II.    Legal framework
3.        The objectives of the SEA Directive are set out in particular in Article 1:
‘The objective of this Directive is to provide for a high level of protection of the environment and to contribute to the integration of environmental considerations into the preparation and adoption of plans and programmes with a view to promoting sustainable development, by ensuring that, in accordance with this Directive, an environmental assessment is carried out of certain plans and programmes which are likely to have significant effects on the environment.’
4.        Plans and programmes are defined in Article 2(a) of the SEA
Directive:
‘For the purposes of this Directive
(a)      “plans and programmes” shall mean plans and programmes, including those co-financed by the European Community, as well as any modifications to them:
–        which are subject to preparation and/or adoption by an authority at national, regional or local level or which are prepared by an authority for adoption, through a legislative procedure by Parliament or Government, and
–        which are required by legislative, regulatory or administrative provisions’.
5.        The obligation to carry out a strategic environmental assessment is governed by Article 3 of the SEA
Directive:
‘1.      An environmental assessment, in accordance with Articles 4 to 9, shall be carried out for plans and programmes referred to in paragraphs 2 to 4 which are likely to have significant environmental effects.
2.      Subject to paragraph 3, an environmental assessment shall be carried out for all plans and programmes,
(a)      which are prepared for agriculture, forestry, fisheries, energy, industry, transport, waste management, water management, telecommunications, tourism, town and country planning or land use and which set the framework for future development consent of projects listed in Annexes I and II to [the EIA
Directive (3)] or
(b)      …’
6.        Pursuant to Article 4(1) and Annex I, point 7(b) of the EIA
Directive, the ‘construction of motorways and express roads’ are subject to an assessment of the environmental effects.
7.        Article 4 of the SEA
Directive lays down general obligations in the context of an environmental assessment:
‘1. The environmental assessment referred to in Article 3 shall be carried out during the preparation of a plan or programme and before its adoption or submission to the legislative procedure.
2.      …
3. Where plans and programmes form part of a hierarchy, Member States shall, with a view to avoiding duplication of the assessment, take into account the fact that the assessment will be carried out, in accordance with this Directive, at different levels of the hierarchy. For the purpose of, inter alia, avoiding duplication of assessment, Member States shall apply Article 5(2) and (3).’
8.        Article 13(1) and (3) of the SEA
Directive set out when those provisions shall become effective:
‘1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before 21 July 2004. They shall forthwith inform the Commission thereof.
2.      …
3.      The obligation referred to in Article 4(1) shall apply to the plans and programmes of which the first formal preparatory act is subsequent to the date referred to in paragraph 1. Plans and programmes of which the first formal preparatory act is before that date and which are adopted or submitted to the legislative procedure more than 24 months thereafter, shall be made subject to the obligation referred to in Article 4(1) unless Member States decide on a case by case basis that this is not feasible and inform the public of their decision.’
III. Facts and request for a preliminary ruling
9.        The Austrian national federal road network is made up of sections of road described in Schedules 1 (motorways) and 2 (express roads) of the Bundesstraßengesetz 1971 (1971
Law on Federal Roads; ‘the BStG’). They are described therein in the form of topographical fixed points, known as waypoints, between which the federal road establishes a connection. Those two Schedules pursuant to the BStG constitute a transport-related plan that must be adopted.
10.      Before expiry of the time limit for transposition of the SEA
Directive, on 29 March 2002, the S
1 Vienna Outer Ring Express Road was included in Schedule
2 of the BStG 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).’
11.      After expiry of the time limit for transposition of the SEA
Directive, on 9 May 2006, the description of the route of the S
1 Vienna Outer Ring Express Road was modified in Schedule
2 of the BStG to the following: ‘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)’. Neither an environmental assessment nor a screening, that is to say, a preliminary assessment of the need for an environmental assessment, were carried out with regard to those modifications to the BStG.
12.      On 26 March 2009, the project applicant, the Autobahnen- und Schnellstraßen-Finanzierungs-Aktiengesellschaft (ASFINAG) submitted an application to the (then) Federal Minister for Transport, Innovation and Technology for the ‘S1 Vienna Outer Ring Express Road, Section Schwechat – Süßenbrunn’ in the Provinces of Vienna and Lower Austria. The Minister for Transport, Innovation and Technology carried out an environmental impact assessment (EIA) and a consent procedure in relation to that project. In a decision of 26 March 2015, he granted consent in accordance with the Umweltverträglichkeitsprüfungsgesetz 2000 (Law on environmental impact assessment of 2000; ‘the 2000 Law on EIA’) and the Forstgesetz 1975 (1975
Law on Forestry). In his decision he determined the route pursuant to the BStG, consented to the preliminary tunnel design under the Straßentunnel-Sicherheitsgesetz (Law on road tunnel safety), and granted a permit under the Luftfahrtgesetz (Law on Aviation) (‘EIA consent’).
13.      On 18 May 2018, the Bundesverwaltungsgericht (Federal Administrative Court) modified the EIA consent and laid down new ancillary provisions or revised existing ones. The question of whether the modifications to the route made on 9 May 2006 should have been subject to a strategic environmental assessment or a screening under the SEA
Directive, and, if so, whether that would have had an impact on the consent, was answered in the negative by the court in the decision on the EIA consent on the grounds that the modifications were merely editorial and did not constitute network changes within the meaning of the SEA
Directive. The EIA consent is legally binding.
14.      Subsequently, further consents were obtained under water law and nature conservation law for the first implementation section from Süßenbrunn to Groß-Enzersdorf. Those consents are also legally binding.
15.      The Landeshauptmann von Wien (Governor of Vienna) and the Landeshauptfrau von Niederösterreich (Governor of Lower Austria) granted the development consents under water law contested in the main proceedings for the second implementation section Schwechat to Groß-Enzersdorf.
16.      Several environmental organisations and individuals (the applicants) have brought an action against those consents in the main proceedings.
17.      Among other things, the applicants challenge the entry of S
1 in Schedule
2 to the BStG, as amended, on which the consent of the project is based. They claim that it is wrong that neither a strategic environmental assessment nor screening under the SEA
Directive was carried out for that plan.
18.      ASFINAG, on the other hand, takes the view that the first formal preparatory act regarding the modifications to the entry for the S
1 was taken before the time limit for transposition of the SEA
Directive had expired, and that the Directive was therefore not applicable. Those modifications had, in fact, been discussed at numerous expert hearings since 31 March 2003 and were adopted at a meeting of the relevant provincial governments with a ‘Council of Experts’ on 8 March 2004. The minutes of that meeting explicitly stated that there would be no Ölhafen Junction. At that meeting, following consultation with the authorities and experts, it was also decided that the tunnel option should be pursued further, without a junction to the A
22. In addition, ASFINAG refers to the legally binding EIA consent, as amended by the Bundesverwaltungsgericht (Federal Administrative Court).
19.      The Bundesverwaltungsgericht (Federal Administrative Court) therefore addresses the following questions to the Court of Justice:
‘1.      Must European Union law, in particular Articles 2(a) and 3(2)(a) of [the 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 [the 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?’
20.      VIRUS, ASFINAG, the Republic of Austria and the European Commission have submitted their observations in the written procedure before the Court of Justice. Two further associations have provided written submissions in which they have endorsed the arguments put forward by VIRUS without offering their own substantive comments. In accordance with Article 76(2) of the Rules of Procedure, the Court of Justice decided not to hold a hearing as it considers that it has sufficient information to give a ruling.
IV.    Legal assessment
21.      The questions referred for a preliminary ruling concern whether the designation of waypoints falls within the material scope of the assessment requirement under the EIA
Directive, in that it sets a framework for future development consents of projects (see point
A below), and, if so, whether the obligation to carry out an assessment was also applicable in terms of its temporal scope (see point
B below). If there was an obligation to carry out an assessment, the follow-up question is whether the failure to do so precludes further consents in connection with the project in question (see point
C below).
A.      First question: The need for a strategic environmental assessment of the designation of waypoints
22.      With its first question, the Bundesverwaltungsgericht (Federal Administrative Court) seeks to ascertain whether the modification of the waypoints of 9 May 2006 fell within the material scope of the obligation to carry out a strategic environmental assessment.
23.      Under Article 2(a) of the SEA
Directive, the concept ‘plans and programmes’ includes modifications to them prepared by an authority for adoption through a legislative procedure by Parliament, and which are required by legislative, regulatory or administrative provisions.
24.      Consequently, modifications to plans and programmes may require an environmental assessment. (4) The other conditions set out in this provision are also met. The modification of the waypoints was prepared by an authority for adoption through a legislative procedure by Parliament. Although there is no obligation to carry out the modification, it is sufficient, in accordance with the case-law of the Court of Justice, that their adoption is regulated by national legislative or regulatory provisions, which determine the authorities competent to adopt them and the procedure for preparing them. (5) That was also the case with the modification in dispute.
25.      Under Article 3(2)(a) of the SEA
Directive, an environmental assessment must be carried out for all plans and programmes which are prepared inter alia for transport and which set the framework for future development consent of projects listed in Annexes I and II to the EIA
Directive.
26.      There is no dispute that the express road in question falls within the field of transport and constitutes a project within the meaning of Annex I, point 7(b) of the EIA
Directive.
27.      The doubts of the Bundesverwaltungsgericht (Federal Administrative Court) rather relate to whether the definition of those waypoints, taken in isolation, already contains sufficiently detailed provisions regarding the content, preparation and implementation of such a project in order to be regarded as a framework.
28.      The Court of Justice has clarified the conditions under which a legal act establishes a framework for the future development consent of projects. To that end, a legal act must define rules and procedures for scrutiny applicable to the sector concerned and thereby establish a significant body of criteria and detailed rules for the grant and implementation of one or more projects that are likely to have significant effects on the environment. (6) That interpretation is intended to ensure that environmental assessments are carried out for requirements that are likely to have significant effects on the environment. (7) Accordingly, the concept of ‘a significant body of criteria and detailed rules’ must be construed qualitatively and not quantitatively. (8) What matters, therefore, is not how many requirements there are, but what effects they might have on the environment.
29.      The Court of Justice has derived from that that a framework must be regarded as met where the measure particularly establishes criteria and detailed rules with regard to the location, nature, size and operating conditions of such projects, or the allocation of resources connected with those projects. (9)
30.      However, in the Court’s view, the conservation objective of a protected area under national law set out in general terms – which essentially corresponded to a statutory conservation provision – did not meet this threshold because it may only have a certain influence on the location of projects, by making it harder to implement them within the conservation area and, by contrast, easier to do so outside that area. (10)
31.      In light of those latter findings regarding the designation of a protected area, the Bundesverwaltungsgericht (Federal Administrative Court) questions whether the establishment of waypoints for an express road constitutes a sufficiently comprehensive set of criteria and detailed rules for development consent and implementation of the project. The waypoints do not yet entail any specific requirements regarding development consent and implementation of the road project.
32.      However, according to the request for a preliminary ruling, the waypoints define a corridor within which the road is to run. That is a key requirement regarding the location. Further specifics regarding the project must take place within that framework and be geared towards the realisation of the overall project as defined by the waypoints.
33.      The choice of route for the express road, however,
is the aspect of the project that entails the greatest potential for (adverse) environmental effects. Although those effects will be specified in more detail at a later stage, what is far more important is the type of road in question, where the road runs, and where its environmental effects therefore arise.
34.      As the Bundesverwaltungsgericht (Federal Administrative Court) itself notes, the project will affect, amongst other things, biodiversity, the soil and land use along the route. Furthermore, roads cause noise and air pollution in the surrounding area. As this is an express road – in other words, a major project involving a significant volume of traffic – significant adverse effects on the environment are to be expected.
35.      As Austria also acknowledges, the establishment of specific waypoints for a road construction project – which provides a binding basis for submitting an application to determine the route of the road as part of a specific project to be submitted for development consent in the future – therefore sets the framework for future development consent of projects within the meaning of Article 3(2)(a) of the SEA
Directive.
36.      However, according to the arguments put forward by Austria and ASFINAG, the modifications of the waypoints in March
2006 were so minor compared with their original specification that they did not require an environmental assessment.
37.      In that regard, it should first be noted that that question is not the subject of the request for a preliminary ruling. The Court is therefore free to decide whether to address it in order to provide the referring court with a useful answer. (11)
38.      Austria argues convincingly that modifications also require an environmental assessment only if they establish, in qualitative terms, a sufficiently comprehensive set of criteria and detailed rules that are likely to have significant environmental effects. (12) This also follows, a contrario, from Article 3(3) of the SEA
Directive. (13)
39.      However, it is not clear from the request for a preliminary ruling whether the modified waypoints could have significant effects on the environment. On the one hand, according to Austria and ASFINAG, they are merely editorial modifications. According to the request for a preliminary ruling, an earlier decision by the referring court reached a similar conclusion. (14) On the other hand, not only waypoints but also junctions – that is to say points where roads intersect – have been added. Above all, however, the waypoint ‘Vienna [Albern – Lobau/Ölhafen (A
22)]’, which, according to the request for a preliminary ruling, has been removed, affects a particularly sensitive aspect of the road. That is where the road project crosses the Danube and the Donau-Auen National Park. It appears that the removal of that waypoint is linked to significant changes to the planning of that crossing. Consequently, the referring court must assess whether the modifications are likely to have significant effects on the environment.
40.      It should be noted, as an aside, that, prima facie, that particular Danube crossing, situated in the corridor between the waypoints ‘Schwechat Junction (A
4) – Raasdorf Junction (A
23)’ could have a significant impact on Natura
2000 areas. As mentioned, that is where the Donau-Auen National Park (Vienna section) (AT1301000) is located, and the Donau-Auen area east of Vienna (AT1204000 and AT1204V00) may also be affected. If the modification of the waypoints had affected the impact of that crossing, it would consequently have required an assessment of its compatibility with the conservation objectives established for those sites, in accordance with Article 6(3) of the Habitats Directive. (15) In that case, pursuant to Article 3(2)(b) of the SEA Directive, an environmental assessment would have been mandatory when the waypoints were modified.
B.      Second question: first formal preparatory act
41.      Since the determination of the waypoints may fall within the material scope of the obligation to carry out an environmental assessment, the second question must be addressed. It concerns the temporal scope of the obligation to carry out an environmental assessment.
42.      The modifications to the determination of the waypoints were adopted on 9 May 2006, that is to say, after the time limit for transposition of the SEA
Directive had expired on 21 July 2004.
43.      However, ASFINAG points out that those modifications of the waypoints had already been discussed at numerous expert consultations since a project kick-off meeting on 31 March 2003. In particular, certain decisions were taken at a meeting of the relevant provincial governments with a ‘Council of Experts’ on 8 March 2004.
44.      That argument could preclude an obligation to carry out an environmental assessment, as it does not apply to all plans and programmes adopted after the time limit for transposition had expired. Rather, in accordance with Article 13(3) of the SEA
Directive, an environmental assessment is required for plans and programmes of which the first formal preparatory act took place after the time limit for transposition had expired. If the first formal preparatory act had taken place prior to that date, the measure was subject to the obligation only if it was adopted or introduced into the legislative process more than 24 months thereafter. However, that is not the case here, as the modifications were already made on 9 May 2006, that is to say within 24 months of the expiry of the transposition date.
45.      According to ASFINAG, the project kick-off meeting, the subsequent expert consultations and the meeting of 8 March 2004 all prepared the modifications of the waypoints.
46.      It is doubtful, however, whether they constituted ‘formal preparatory acts’. The applicants in the main proceedings argue that only the 2005 ministerial draft amending the waypoints constituted such an act.
47.      ASFINAG bases its view on a Commission’s guidance document. According to the guidance document, the word ‘formal’ does not necessarily mean that the preparation of 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. (16)
48.      Although not binding, such guidance may be taken into account when interpreting the SEA
Directive. (17)
49.      The Commission’s statements referred to above are to be endorsed in so far as legal certainty is of crucial importance when interpreting the concept of the ‘first formal preparatory act’. (18) That is evident from the legislative history of Article 13(3) of the SEA
Directive, the use of the term ‘formal’, and the context in which that term is used.
50.      Article 13(3) of the SEA
Directive draws on the case-law of the Court of Justice, in which it interpreted a similar transitional provision into the original EIA
Directive. (19) At that time, the Court of Justice ruled that there is no obligation to carry out an environmental impact assessment as part of a consent procedure if the date of the formal application falls before the expiry of the transposition period. (20) The Court of Justice argued that the reason for that is that the directive is primarily designed to cover large-scale projects which will most often require a long time to complete. The relevant procedures are already complex at national level. It would not be appropriate for them to be made more cumbersome and time-consuming by the specific requirements imposed by the directive if they were formally initiated before the deadline for transposing the directive. In that case, the application of the EIA
Directive could adversely affect situations already established. (21) Consequently, the legislature has incorporated similar transitional provisions in some, (22) but not all, (23) subsequent amendments to the EIA
Directive.
51.      However, the Court of Justice has refused to recognise informal contacts and meetings between the competent authority and the developer prior to the expiry of the time limit for transposition as the start of an application for consent. Such contacts cannot be treated for the purposes of applying the directive as a definite indication of the date on which the procedure was initiated. Even if they do relate to the content and proposal to lodge an application for consent of a project, the date when the application for consent was formally lodged 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. (24)
52.      Given that Article 13(3) of the SEA
Directive is clearly inspired by that case-law, a formal preparatory act within the meaning of that provision must be of a comparable quality to a formal application that initiates a consent procedure. For reasons of legal certainty and to prevent circumvention, clear criteria must also apply with regard to the point at which the obligation to carry out an environmental assessment comes into effect.
53.      The other criteria relevant to the application of Article 13(3) of the SEA
Directive – namely the end of the transposition period, the 24-month period following that, and the adoption of the plan or programme or its submission to the legislative process – possess that quality. They are clearly identifiable dates, which are usually announced publicly. It would therefore be inconsistent to accept less stringent requirements for the final criterion – the preparatory act – which must explicitly be of a ‘formal’ nature.
54.      That is also supported by the second indent of Article 2(a) of the SEA
Directive. According to that provision, plans or programmes that are subject to an assessment are drawn up on the basis of legislative, regulatory or administrative provisions. Consequently, the adoption of the measure is governed by national legislative, regulatory or administrative provisions which determine the competent authorities for adopting them and the procedure for preparing them. (25) In the absence of such a provision, there is no plan or programme that would require an assessment. (26) However, once the procedure for preparing them has been established, there must also be a preparatory act that formally initiates that procedure.
55.      Consequently, the first formal preparatory act must form part of a ‘formal’ procedure. Such a procedure comprises specific steps that are defined in their form, in particular a first step that clearly marks the start of the procedure.
56.      It is for the referring court to determine whether any of the preparatory acts referred to in the second question are to be regarded as formal preparatory acts in accordance with those criteria.
57.      In particular, it must examine whether, under the applicable national law, those actions form part of a formal procedure for drawing up modifications of the waypoints of a road construction project.
58.      For such a procedure, it is not sufficient that the entities involved have a legal basis and that the preparatory steps fall, in principle, within their remit. That is because even entities established by law may act informally in the performance of their duties.
59.      The fact that the modification of the waypoints was laid down in a legislative procedure suggests that the introduction of the legislative proposal should be regarded as the first formal preparatory act, provided that domestic law does not provide for any earlier formal preparatory acts in relation to such modification.
60.      A first formal preparatory act within the meaning of Article 13(3) of the SEA
Directive must therefore, in accordance with national legislative, regulatory and administrative provisions, initiate the procedure for drawing up the relevant plan or programme as provided for in those provisions.
C.      Third question: Consequences of the lack of an environmental assessment
61.      By posing the third question, the Bundesverwaltungsgericht (Federal Administrative Court) seeks to ascertain whether, under Article 3(2)(a) of the SEA
Directive, a plan whose criteria and detailed rules form the basis solely for the initial development consent of a project – consent for which is obtained in several stages under the EIA
Directive – also establishes a framework for all further consents necessary for the implementation of the project.
62.      The question is intended to clarify whether errors in the application of the SEA
Directive with regard to the modification of the waypoints also affect the legality of the consents under water law at issue in the main proceedings.
63.      Those consents are the final stage in a series of decisions, all of which are necessary to enable the road to be built. First, the Austrian Parliament laid down or modified the waypoints in a law; subsequently, the Austrian Minister for Transport specified, in particular, the exact route by way of the EIA
consent of 26 March 2015, as amended by the Bundesverwaltungsgericht (Federal Administrative Court) on 18 May 2018; as a final step, two Austrian provinces granted consent under water law for the project.
64.      The question referred therefore seeks to ascertain whether an action brought against those most recent consents on the grounds of an error at the first stage could trigger a ‘domino effect’ that would prevent the implementation of all decisions previously granted to advance the project.
65.      The starting point for answering that question is the principle of sincere cooperation laid down in Article 4(3) TEU. According to that principle, Member States must remedy the consequences of any breach of EU law. (27) If the SEA
Directive has been breached because a plan or programme has not been subject to the required strategic environmental assessment, the plan or programme must therefore be suspended or revoked (28) to allow the assessment to be carried out. (29)
66.      On that basis, the Court of Justice ruled that national courts must adopt the measures, provided for by their national law, that are appropriate for preventing such a plan or programme, including projects to be realised under that programme, from being implemented in the absence of an environmental assessment. (30) It concluded that a national court is generally obliged to revoke or suspend consent granted on the basis of a plan or programme which, in turn, was adopted in breach of the obligation to carry out an environmental assessment. (31)
67.      The Bundesverwaltungsgericht (Federal Administrative Court) states that, under Austrian law, consents under water law are not directly based on the determination of waypoints. The latter are merely the basis for the EIA
consent. The consents under water law could not alter the legally binding decision.
68.      ASFINAG’s argument also runs along these lines, namely that, in its judgment on the project to construct wind turbines in Aalter and Nevele, the Court of Justice merely required the annulment of a consent that had been issued on the basis of the relevant plan or programme. (32) However, the reasoning in that judgment is explained by the underlying facts of the case, which did in fact concern a consent granted on the basis of the relevant plan or programme.
69.      However, the Court of Justice’s approach goes much further. It does not focus strictly on whether the plan or programme adopted in breach of the SEA
Directive constitutes, under national law, the legal basis for the decision enabling the implementation of the plan or programme. Rather, the Court of Justice requires that the courts must take measures that are appropriate for preventing such a plan or programme from being implemented. (33)
70.      That is intended to ensure effectively that the consequences of the error in the adoption of the plan or programme are actually rectified. Either the competent authorities are prevented from implementing the plan or programme, or they rectify the error before implementation by carrying out the environmental assessment retrospectively. (34)
71.      The consents under water law at issue in the main proceedings are necessary in order to implement the plan defined by the waypoints, that is, to build the express road. In fact, that is their sole purpose. Consequently, an error in the adoption of the plan causes the underlying basis of the consents under water law to fall away. At the same time, revoking or suspending the consents would be an effective way of preventing the plan from being implemented.
72.      Decisions which, although falling within the scope of the plan or programme, are not intended to implement it might be assessed differently. However, the present case does not require an answer to that question.
73.      Contrary to ASFINAG’s contention, the fact that the EIA
consent has become legally binding does not preclude an obligation to revoke or suspend the consents under water law. The reason being that the latter have not yet become legally binding, whereas the legally binding EIA
consent would not be directly affected by the revocation or suspension.
74.      For the sake of completeness, it should be noted that the obligation to revoke or suspend subsequent enforcement decisions may lapse. That presupposes that the error in the adoption of the plan or programme has already been rectified during a subsequent assessment. Such assessment would need to cover all the issues that should have been included in an environmental assessment of the plan or programme – in this case, the modification of the waypoints. (35)
75.      ASFINAG and Austria have informed the Court of Justice that such an assessment has in fact now taken place. In addition, the environmental impact assessment carried out in connection with the EIA
consent of 26 March 2015, as referred to in the request for a preliminary ruling, could be relevant in the present case. (36) Austria also refers to an environmental assessment in accordance with the SEA
Directive carried out voluntarily by the City of Vienna between 2001 and 2003. It is for the referring court to determine whether any of those assessments met the requirements of the SEA
Directive.
76.      Subject to the rectification of the error, the national courts must therefore take the measures provided for under their national law which are appropriate to effectively prevent a plan or programme, including the projects to be developed under those plans or programmes, from being implemented without an environmental assessment of the plan or programme having been carried out as required by the SEA
Directive. To that end, they must, where necessary, revoke or suspend subsequent decisions implementing the plan or programme, even though, strictly speaking, the plan or programme was neither the legal basis nor a prerequisite for the adoption of those decisions.
V.      Conclusion
77.      I therefore propose that the Court of Justice answer the request for a preliminary ruling from the Bundesverwaltungsgericht (Federal Administrative Court, Austria) as follows:
(1)      The establishment of specific waypoints for a road construction project – which provides a binding basis for submitting an application to determine the route of the road as part of a specific project to be submitted for development consent in the future – sets the framework for future development consent of projects within the meaning of Article 3(2)(a) of Directive 2001/42/EC on the Assessment of the Effects of Certain Plans and Programmes on the Environment.
(2)      A first formal preparatory act within the meaning of Article 13(3) of Directive
2001/42 must, in accordance with national legislative, regulatory and administrative provisions, initiate the procedure for drawing up the relevant plan or programme as provided for in those provisions.
(3)      Subject to the rectification of the error, the national courts must take the measures provided for under their national law which are appropriate to effectively prevent a plan or programme, including the projects to be developed under those plans or programmes, from being implemented without an environmental assessment of the plan or programme having been carried out in accordance with Directive
2001/42. To that end, they must, where necessary, revoke or suspend subsequent decisions implementing the plan or programme, even though, strictly speaking, the plan or programme was neither the legal basis nor a prerequisite for the adoption of those decisions.
1      Original language: German.
2      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 (OJ 2001 L 197, p. 30).
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 (OJ 2012 L 26, p. 1), last amended by Directive 2014/52/EU (OJ 2014 L 124, p. 1) (‘the EIA Directive’).
4      Judgments of 22 March 2012, Inter-Environnement Bruxelles and Others (C‑567/10, EU:C:2012:159, paragraphs 36 to 43); of 10 September 2015, Dimos Kropias Attikis (C‑473/14, EU:C:2015:582, paragraph 44); and of 25 June 2020, A and Others (Wind turbines at Aalter and Nevele) (C‑24/19, EU:C:2020:503, paragraph 43).
5      Judgment of 25 June 2020, A and Others (Wind turbines at Aalter and Nevele) (C‑24/19, EU:C:2020:503, paragraph 52).
6      Judgments of 25 June 2020, A and Others (Wind turbines at Aalter and Nevele) (C‑24/19, EU:C:2020:503, paragraphs 67 and 68), and of 22 February 2022, Bund Naturschutz in Bayern (C‑300/20, EU:C:2022:102, paragraph 60).
7      Judgments of 25 June 2020, A and Others (Wind turbines at Aalter and Nevele) (C‑24/19, EU:C:2020:503, paragraph 68), and of 22 February 2022, Bund Naturschutz in Bayern (C‑300/20, EU:C:2022:102, paragraphs 60 and 61).
8      Judgments of 7 June 2018, Inter-Environnement Bruxelles and Others (C‑671/16, EU:C:2018:403, paragraph 55); and Thybaut and Others (C‑160/17, EU:C:2018:401, paragraph 55); and of 25 June 2020, A and Others (Wind turbines at Aalter and Nevele) (C‑24/19, EU:C:2020:503, paragraph 70).
9      Judgment of 22 February 2022, Bund Naturschutz in Bayern (C‑300/20, EU:C:2022:102, paragraph 62).
10      Judgment of 22 February 2022, Bund Naturschutz in Bayern (C‑300/20, EU:C:2022:102, paragraphs 66 to 69).
11      See judgments of 12 December 1990, SARPP (C‑241/89, EU:C:1990:459, paragraph 8); of 18 December 2014, ABDIDA (C‑562/13, EU:C:2014:2453, paragraph 37); and of 16 April 2026, Nitrogénművek (C‑519/24, EU:C:2026:297, paragraph 20).
12      Judgments of 8 May 2019, Associazione ‘Verdi Ambiente e Società – Aps Onlus’ and Others (C‑305/18, EU:C:2019:384, paragraph 52), and of 12 June 2019, CFE (C‑43/18, EU:C:2019:483, paragraph 71).
13      Judgment of 9 March 2023, An Bord Pleanála and Others (Site of St Teresa’s Gardens) (C‑9/22, EU:C:2023:176, paragraph 40).
14      As stated in paragraph 9 of the request for a preliminary ruling, it concerns the ruling of the Bundesverwaltungsgericht (Federal Administrative Court) of 18 May 2018.
15      Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7).
16      Implementation of Directive 2001/42/EC on the Assessment of the Effects of Certain Plans and Programmes on the Environment, paragraph 3.65.
17      See judgment of 22 February 2024, Moesgaard Meat 2012 (C‑311/22, EU:C:2024:145, paragraph 55).
18      See my Opinion in Nomarchiaki Aftodioikisi Aitoloakarnanias and Others (C‑43/10, EU:C:2011:651, point 162).
19      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).
20      Judgment of 18 June 1998, Gedeputeerde Staten van Noord-Holland (C‑81/96, EU:C:1998:305, paragraph 23).
21      Judgment of 18 June 1998, Gedeputeerde Staten van Noord-Holland, C‑81/96, EU:C:1998:305, paragraph 24).
22      Article 3(2) of Council Directive 97/11/EC of 3 March 1997 (OJ 1997 L 73, p. 5) and Article 3 of Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1).
23      On that, see judgment of 7 November 2013, Gemeinde Altrip and Others (C‑72/12, EU:C:2013:712, paragraphs 21 to 31).
24      Judgment of 11 August 1995, Commission v Germany (C‑431/92, EU:C:1995:260, paragraph 32).
25      Judgments of 22 March 2012, Inter-Environnement Bruxelles and Others (C‑567/10, EU:C:2012:159, paragraph 31), and of 25 June 2020, A and Others (Wind turbines at Aalter and Nevele) (C‑24/19, EU:C:2020:503, paragraph 52).
26      Judgment of 4 October 2024, Friends of the Irish Environment (Project Ireland 2040) (C‑727/22, EU:C:2024:825, paragraphs 29 and 32).
27      Judgments of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne (C‑41/11, EU:C:2012:103, paragraph 43), and of 25 June 2020, A and Others (Wind turbines at Aalter and Nevele) (C‑24/19, EU:C:2020:503, paragraph 83).
28      Judgment of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne (C‑41/11, EU:C:2012:103, paragraph 46).
29      Judgment of 25 June 2020, A and Others (Wind turbines at Aalter and Nevele) (C‑24/19, EU:C:2020:503, paragraph 83).
30      Judgment of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne (C‑41/11, EU:C:2012:103, paragraph 47).
31      Judgment of 25 June 2020, A and Others (Wind turbines at Aalter and Nevele) (C‑24/19, EU:C:2020:503, paragraphs 83, 88 and 89).
32      Judgment of 25 June 2020, A and Others (Wind turbines at Aalter and Nevele) (C‑24/19, EU:C:2020:503, paragraph 88).
33      Judgment of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne (C‑41/11, EU:C:2012:103, paragraph 47).
34      See judgment of 25 June 2020, A and Others (Wind turbines at Aalter and Nevele) (C‑24/19, EU:C:2020:503, paragraph 83).
35      Judgments of 22 September 2011, Valčiukienė and Others (C‑295/10, EU:C:2011:608, paragraph 62), and of 10 September 2015, Dimos Kropias Attikis (C‑473/14, EU:C:2015:582, paragraph 58).
36      See point 12 of the present Opinion.