Provisional text
OPINION OF ADVOCATE GENERAL
PIKAMÄE
delivered on 3 February 2022 (1)
Case C‑121/21
Czech Republic
v
Republic of Poland
( Failure of a Member State to fulfil obligations – Article 259 TFUE – Extension of a concession to operate the Turów mine in Poland close to the Czech border – Dispute between the Czech Republic and the Republic of Poland concerning effects on the environment in the Czech Republic – Directive 2011/92/EU – Environmental impact assessment (EIA) of certain projects – Non-conformity with EU law of the national legislation, the EIA decision and the mining concession )
I.      Introduction
1.        By application lodged under Article 259 TFEU, the Czech Republic, supported by the European Commission, requests the Court to find that the Republic of Poland has infringed a number of EU environmental protection rules by adopting measures in the administrative proceedings to extend the mining concession for the Turów (Poland) lignite mine until 2026.
2.        The dispute in the main proceedings concerns the transboundary effects resulting from mining activities of the Polish operator of the abovementioned mine and is a matter of contention between the two Member States. The Czech Republic states that its citizens close to the border are wrongfully suffering the environmental consequences of the mining, that is to say, a significant decrease in the groundwater level and land subsidence. The Republic of Poland, for its part, argues that closing the mine would lead to heavy economic losses in terms of both energy supply and employment.
3.        Since this is the first interstate dispute relating entirely to EU environmental law to be brought before the Court, its judgment in this case can make a significant contribution to the case-law of the international courts. (2) In that context, it is to be hoped that the findings that the Court will make in that judgment will both ensure full compliance with EU law and form a basis on which the two Member States can reach an amicable agreement reconciling the interests of each in a spirit of good neighbourliness.
II.    Legal context
A.      European Union law
1.      Directive 2000/60/EC
4.        Article 4(1), (4) and (5) of Directive 2000/60/EC (3) provides:
‘1.      In making operational the programmes of measures specified in the river basin management plans:
(a)      for surface waters
…
(ii)      Member States shall protect, enhance and restore all bodies of surface water, subject to the application of subparagraph
(iii) for artificial and heavily modified bodies of water, with the aim of achieving good surface water status at the latest 15 years after the date of entry into force of this Directive, in accordance with the provisions laid down in Annex V, subject to the application of extensions determined in accordance with paragraph 4 and to the application of paragraphs 5, 6 and 7 without prejudice to paragraph 8;
…
(b)      for groundwater
…
(ii)      Member States shall protect, enhance and restore all bodies of groundwater, ensure a balance between abstraction and recharge of groundwater, with the aim of achieving good groundwater status at the latest 15 years after the date of entry into force of this Directive, in accordance with the provisions laid down in Annex V, subject to the application of extensions determined in accordance with paragraph 4 and to the application of paragraphs 5, 6 and 7 without prejudice to paragraph 8 of this Article
and subject to the application of Article 11(3)(j);
…
4.      The deadlines established under paragraph 1 may be extended for the purposes of phased achievement of the objectives for bodies of water, provided that no further deterioration occurs in the status of the affected body of water when all of the following conditions are met:
(a)      Member States determine that all necessary improvements in the status of bodies of water cannot reasonably be achieved within the timescales set out in that paragraph for at least one of the following reasons:
(i)      the scale of improvements required can only be achieved in phases exceeding the timescale, for reasons of technical feasibility;
(ii)      completing the improvements within the timescale would be disproportionately expensive;
(iii)      natural conditions do not allow timely improvement in the status of the body of water.
(b)      Extension of the deadline, and the reasons for it, are specifically set out and explained in the river basin management plan required under Article 13.
(c)      Extensions shall be limited to a maximum of two further updates of the river basin management plan except in cases where the natural conditions are such that the objectives cannot be achieved within this period.
(d)      A summary of the measures required under Article 11 which are envisaged as necessary to bring the bodies of water progressively to the required status by the extended deadline, the reasons for any significant delay in making these measures operational, and the expected timetable for their implementation are set out in the river basin management plan. A review of the implementation of these measures and a summary of any additional measures shall be included in updates of the river basin management plan.
5.      Member States may aim to achieve less stringent environmental objectives than those required under paragraph 1 for specific bodies of water when they are so affected by human activity, as determined in accordance with Article 5(1), or their natural condition is such that the achievement of these objectives would be infeasible or disproportionately expensive, and all the following conditions are met:
(a)      the environmental and socioeconomic needs served by such human activity cannot be achieved by other means, which are a significantly better environmental option not entailing disproportionate costs;
(b)      Member States ensure,
–        for surface water, the highest ecological and chemical status possible is achieved, given impacts that could not reasonably have been avoided due to the nature of the human activity or pollution,
–        for groundwater, the least possible changes to good groundwater status, given impacts that could not reasonably have been avoided due to the nature of the human activity or pollution;
(c)      no further deterioration occurs in the status of the affected body of water;
(d)      the establishment of less stringent environmental objectives, and the reasons for it, are specifically mentioned in the river basin management plan required under Article 13 and those objectives are reviewed every six years.’
2.      Directive 2003/4/EC
5.        Under Article 7(1) and (2) of Directive 2003/4/EC: (4)
‘1.      Member States shall take the necessary measures to ensure that public authorities organise the environmental information which is relevant to their functions and which is held by or for them, with a view to its active and systematic dissemination to the public, in particular by means of computer telecommunication and/or electronic technology, where available.
…
2.      The information to be made available and disseminated shall be updated as appropriate and shall include at least:
…
(f)      authorisations with a significant impact on the environment and environmental agreements or a reference to the place where such information can be requested or found in the framework of Article 3;
…’
3.      The EIA Directive
6.        Article 1 of Directive 2011/92/EU (5) provides:
‘1.      This Directive shall apply to the assessment of the environmental effects of those public and private projects which are likely to have significant effects on the environment.
2.      For the purposes of this Directive, the following definitions shall apply:
(a)      “project” means:
–        the execution of construction works or of other installations or schemes,
–        other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources;
…
(c)      “development consent” means the decision of the competent authority or authorities which entitles the developer to proceed with the project;
…’
7.        Article 2(1) and (2) of that directive provides:
‘1.      Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.
2.      The environmental impact assessment may be integrated into the existing procedures for consent to projects in the Member States, or, failing this, into other procedures or into procedures to be established to comply with the aims of this Directive.’
8.      Under Article 3(1)(c) of that directive, the environmental impact assessment is to identify, describe and assess in an appropriate manner, in the light of each individual case, the significant indirect effects of a project on, inter alia, water.
9.        Article 4 of the directive reads as follows:
‘1.      Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.
2.      Subject to Article 2(4), for projects listed in Annex II, Member States shall determine whether the project shall be made subject to an assessment in accordance with Articles 5 to 10. Member States shall make that determination through:
(a)      a case-by-case examination;
or
(b)      thresholds or criteria set by the Member State.
Member States may decide to apply both procedures referred to in points
(a) and (b).
…
4.      Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.
5.      The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall be made available to the public and:
(a)      where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or
(b)      where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.
6.      Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’
10.      Article 5(1) and (2) of the EIA Directive is worded as follows:
‘1.      Where an environmental impact assessment is required, the developer shall prepare and submit an environmental impact assessment report. The information to be provided by the developer shall include at least:
…
2.      Where requested by the developer, the competent authority, taking into account the information provided by the developer in particular on the specific characteristics of the project, including its location and technical capacity, and its likely impact on the environment, shall issue an opinion on the scope and level of detail of the information to be included by the developer in the environmental impact assessment report in accordance with paragraph 1 of this Article. The competent authority shall consult the authorities referred to in Article 6(1) before it gives its opinion.
Member States may also require the competent authorities to give an opinion as referred to in the first subparagraph, irrespective of whether the developer so requests.’
11.      Article 6 of that directive states:
‘1.      Member States shall take the measures necessary to ensure that the authorities likely to be concerned by the project by reason of their specific environmental responsibilities or local and regional competences are given an opportunity to express their opinion on the information supplied by the developer and on the request for development consent, taking into account, where appropriate, the cases referred to in Article 8a(3). To that end, Member States shall designate the authorities to be consulted, either in general terms or on a case-by-case basis. The information gathered pursuant to Article 5 shall be forwarded to those authorities. Detailed arrangements for consultation shall be laid down by the Member States.
2.      In order to ensure the effective participation of the public concerned in the decision-making procedures, the public shall be informed electronically and by public notices or by other appropriate means, of the following matters early in the environmental decision-making procedures referred to in Article 2(2) and, at the latest, as soon as information can reasonably be provided:
…
3.      Member States shall ensure that, within reasonable time-frames, the following is made available to the public concerned:
…
(c)      in accordance with the provisions of [Directive 2003/4], information other than that referred to in paragraph 2 of this Article
which is relevant for the decision in accordance with Article 8 of this Directive and which only becomes available after the time the public concerned was informed in accordance with paragraph 2 of this Article.
4.      The public concerned shall be given early and effective opportunities to participate in the environmental decision-making procedures referred to in Article 2(2) and shall, for that purpose, be entitled to express comments and opinions when all options are open to the competent authority or authorities before the decision on the request for development consent is taken.
5.      The detailed arrangements for informing the public, for example by bill posting within a certain radius or publication in local newspapers, and for consulting the public concerned, for example by written submissions or by way of a public inquiry, shall be determined by the Member States. Member States shall take the necessary measures to ensure that the relevant information is electronically accessible to the public, through at least a central portal or easily accessible points of access, at the appropriate administrative level.
6.      Reasonable time-frames for the different phases shall be provided for, allowing sufficient time for:
(a)      informing the authorities referred to in paragraph 1 and the public; and
(b)      the authorities referred to in paragraph 1 and the public concerned to prepare and participate effectively in the environmental decision-making, subject to the provisions of this Article.
7.      The time-frames for consulting the public concerned on the environmental impact assessment report referred to in Article 5(1) shall not be shorter than 30 days.’
12.      Article 7 of that directive provides:
‘1.      Where a Member State is aware that a project is likely to have significant effects on the environment in another Member State or where a Member State likely to be significantly affected so requests, the Member State in whose territory the project is intended to be carried out shall send to the affected Member State as soon as possible and no later than when informing its own public, inter alia:
(a)      a description of the project, together with any available information on its possible transboundary impact;
(b)      information on the nature of the decision which may be taken.
The Member State in whose territory the project is intended to be carried out shall give the other Member State a reasonable time in which to indicate whether it wishes to participate in the environmental decision-making procedures referred to in Article 2(2), and may include the information referred to in paragraph 2 of this Article.
2.      If a Member State which receives information pursuant to paragraph 1 indicates that it intends to participate in the environmental decision-making procedures referred to in Article 2(2), the Member State in whose territory the project is intended to be carried out shall, if it has not already done so, send to the affected Member State the information required to be given pursuant to Article 6(2) and made available pursuant to points
(a) and (b) of Article 6(3).
…
5.      The detailed arrangements for implementing paragraphs 1 to 4 of this Article, including the establishment of time-frames for consultations, shall be determined by the Member States concerned, on the basis of the arrangements and time-frames referred to in Article 6(5) to (7), and shall be such as to enable the public concerned in the territory of the affected Member State to participate effectively in the environmental decision-making procedures referred to in Article 2(2) for the project.’
13.      Article 8 of that directive provides:
‘The results of consultations and the information gathered pursuant to Articles 5 to 7 shall be duly taken into account in the development consent procedure.’
14.      According to Article 8a of the EIA Directive:
‘1.      The decision to grant development consent shall incorporate at least the following information:
…
(b)      any environmental conditions attached to the decision, a description of any features of the project and/or measures envisaged to avoid, prevent or reduce and, if possible, offset significant adverse effects on the environment as well as, where appropriate, monitoring measures.
…
3.      In the event Member States make use of the procedures referred to in Article 2(2) other than the procedures for development consent, the requirements of paragraphs 1 and 2 of this Article, as appropriate, shall be deemed to be fulfilled when any decision issued in the context of those procedures contains the information referred to in
those paragraphs
and there are mechanisms in place which enable the fulfilment of the requirements of paragraph 6 of this Article.
…’
15.      Article 9 of that directive is worded as follows:
‘1.      When a decision to grant or refuse development consent has been taken, the competent authority or authorities shall promptly inform the public and the authorities referred to in Article 6(1) thereof, in accordance with the national procedures, and shall ensure that the following information is available to the public and to the authorities referred to in Article 6(1), taking into account, where appropriate, the cases referred to in Article 8a(3):
(a)      the content of the decision and any conditions attached thereto as referred to in Article 8a(1) and (2);
(b)      the main reasons and considerations on which the decision is based, including information about the public participation process. This also includes the summary of the results of the consultations and the information gathered pursuant to Articles 5 to 7 and how those results have been incorporated or otherwise addressed, in particular the comments received from the affected Member State referred to in Article 7.
2.      The competent authority or authorities shall inform any Member State which has been consulted pursuant to Article 7, forwarding to it the information referred to in paragraph 1 of this Article.
The consulted Member States shall ensure that that information is made available in an appropriate manner to the public concerned in their own territory.’
16.      Article 11(1) and (2) of that directive provides:
‘1.      Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned:
(a)      having a sufficient interest, or alternatively;
(b)      maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a precondition;
have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive.
2.      Member States shall determine at what stage the decisions, acts or omissions may be challenged.’
17.      Annex I to the EIA Directive, entitled ‘Projects referred to in Article 4(1)’, refers, in point 19, to ‘quarries and open-cast mining where the surface of the site exceeds 25
hectares, or peat extraction, where the surface of the site exceeds 150 hectares’, and in point 24, to ‘any change to or extension of projects listed in this Annex
where such a change or extension in itself meets the thresholds, if any, set out in this Annex’.
18.      Annex II to that directive, entitled ‘Projects referred to in Article 4(2)’, refers, in point 2(a), to ‘quarries, open-cast mining and peat extraction (projects not included in Annex I)’, in point 2(e), to ‘surface industrial installations for the extraction of coal, petroleum, natural gas and ores, as well as bituminous shale’, and, in point 13(a), to ‘any change or extension of projects listed in Annex I or this Annex, already authorised, executed or in the process of being executed, which may have significant adverse effects on the environment (change or extension not included in Annex I)’.
B.      Polish law
1.      Law on environmental information
19.      Article 72(1) and (2) of the ustawa o udostępnianiu informacji o środowisku i jego ochronie, udziale społeczeństwa w ochronie środowiska oraz o ocenach oddziaływania na środowisko (Law on the availability of information relating to the environment and its protection, on public participation in the protection of the environment and on environmental-impact assessments) of 3 October 2008 (Dz.
U.
No 199, item 1227) (‘the Law on environmental information’), provides:
‘1.      Decisions on environmental conditions shall be adopted before the grant of:
…
(4)      … a concession to extract minerals from deposits …;
…
2.      The requirement for a decision on environmental conditions does not apply to amendments to:
…
(2)      a concession or decision referred to in paragraph 1(4) and (5) including:
…
(k)      a single extension of up to six years of the validity of a lignite mining concession if the extension of the concession is motivated by rational management of the deposit and does not extend the scope of the concession;
…’
2.      Mining code
20.      Article 33 of the ustawa Prawo geologiczne i górnicze (Law establishing the geological and mining codes) of 9 June 2011 (Dz. U. No 163, item
981) (‘the mining code’) provides:
‘… Where, before a concession is granted, a decision laying down environmental protection conditions has been adopted, pursuant to a procedure involving public participation, the provisions on participation by public bodies shall not apply to the procedure for the grant of a concession.’
3.      Law on administrative procedure
21.      According to Article 50(1) of the ustawa Prawo o postępowaniu przed sądami administracyjnymi (Law on proceedings before the administrative courts) of 30 August 2002 (Dz. U. No 153, item
1270):
‘Any person who has an interest in the proceedings, the public prosecutor, the ombudsman, the children’s ombudsman and any public body in the context of its lawful activities shall have standing to bring proceedings in cases concerning the interests of third parties if they have participated in the administrative procedure.’
22.      In its defence, the Republic of Poland refers to a number of amendments to the Polish legislation referred to in the preceding points, resulting from the Law of 30 March 2021 amending the Law on environmental information. It asserts that those amendments are intended to facilitate the exercise by the public concerned of the rights under Article 11 of the EIA Directive. The public concerned can now obtain information about the adoption of certain decisions without having to bring the matter before the body which adopted the decision. The public has been given new remedies against consent granted following a procedure and a decision on environmental conditions, where it has participated in that procedure and that decision-making. Article 33 of the mining code has been amended so that the new rights arising from the Law on environmental information also apply to a procedure to grant consent conducted under that code which has been preceded by a decision on environmental conditions.
III. Background to the dispute and the pre-litigation procedure
23.      The Turów open-cast lignite mine is located on Polish territory, close to the borders of the Czech Republic and the Federal Republic of Germany.
24.      On 27 April 1994, by development consent No 65/94, the competent Polish authorities granted PGE Elektrownia Bełchatów S.A., now PGE Górnictwo i Energetyka Konwencjonalna S.A. (‘the operator’), a concession to operate the mine for a period of 26 years, that is to say, until 30 April 2020.
25.      On 2 March 2015, the operator applied to the Regional Director for Environmental Protection of Wrocław (Poland)
for a decision on environmental conditions with a view to implementing a project defined as the extension of mining of the Turów lignite seam until 2044. Both the Czech Republic and the Federal Republic of Germany participated in the consultation procedure triggered by that application.
26.      On 24 October 2019, the operator submitted an application to extend that concession for six years, pursuant to Article 72(2)(2)(k) of the Law on environmental information.
27.      On 21 January 2020, the Regional Director for Environmental Protection of Wrocław adopted the decision on the
environmental impact assessment (EIA) of certain projects
(‘EIA decision’) and, on 23 January 2020, declared that decision immediately enforceable. On 24 January 2020, the operator attached the EIA decision to its application to extend the mining concession submitted on 24 October 2019.
28.      By decision of 20 March 2020, the Minister for Climate of the Republic of Poland granted development consent for the extraction of lignite until 2026 (‘the 2026 decision’).
29.      A number of Czech entities, including non-governmental organisations, lodged administrative complaints and actions against the decisions referred to in the preceding two paragraphs.
30.      Taking the view that the Republic of Poland had infringed EU law in several respects by granting that development consent, on 30 September 2020 the Czech Republic referred the matter to the Commission under Article 259 TFEU.
31.      On 30 October 2020, the Republic of Poland submitted its comments. On 13 November 2020, both those Member States presented oral argument at a hearing organised by the Commission.
32.      On 17 December 2020, the Commission delivered a reasoned opinion in which it criticised the Republic of Poland for several infringements of EU law. In particular, the Commission considered that, by adopting Article 72(2)(2)(k) of the Law on environmental information, allowing development consent for lignite mining to be extended for up to six years without carrying out an environmental impact assessment, that Member State infringed Article 4(1) and (2) of the EIA Directive.
33.      On 28 April 2021 a decision was adopted to extend the validity of development consent No 65/94 to 2044 (‘the 2044 decision’).
IV.    Procedure before the Court and forms of order sought by the parties
34.      On 26 February 2021, the Czech Republic brought this action for failure to fulfil obligations. The Republic of Poland contends that the Court should dismiss the action and order the Czech Republic to pay the costs.
35.      Hearing an application for interim measures brought by the Czech Republic, by order of 21 May 2021, (6) the Vice-President of the Court ordered the Republic of Poland to cease lignite mining activities at the Turów mine immediately pending delivery of the judgment closing the proceedings in Case C‑121/21.
36.      By decision of 1 July 2021, the President of the Court granted the Commission leave to intervene in support of the forms of order sought by the Czech Republic.
37.      By decision of 14 July 2021, the President of the Court granted the request of the Republic of Poland to determine this action pursuant to the expedited procedure under Article 133 of the Rules of Procedure of the Court.
38.      By letters of 20 July 2021 from the Court Registry, in the context of the measures of organisation of procedure under Article 62(1) of the Rules of Procedure, the Republic of Poland was invited to state a position on the Commission’s reasoned opinion and the Commission was requested to produce that opinion in the language of the case, Polish, and to state a position on certain conclusions in the application. The recipients of those requests duly responded to them.
39.      Hearing an application for interim measures brought by the Czech Republic, by order of 20 September 2021 (7) the Vice-President of the Court ordered the Republic of Poland to pay the Commission a penalty of EUR 500 000 per day, from the date of notification of that order to the Republic of Poland until that Member State complied with the order of the Vice-President of the Court of 21 May 2021. By the same decision, the Vice-President dismissed the Republic of Poland’s application for cancellation of that order under Article 163 of the Rules of Procedure.
40.      A hearing was held on 9 November 2021, at which the Czech Republic, the Republic of Poland and the Commission were present, duly represented.
41.      When asked at the hearing, the Czech Republic stated that it maintained its application for cessation of the alleged failures to fulfil obligations.
V.      Legal analysis
A.      Preliminary observations
42.      Before entering into examination of the individual pleas invoked by the Czech Republic, I believe it is necessary to recall the common procedural rules governing actions for failure to fulfil obligations under Articles 258 and 259 TFEU designed to obtain a declaration that the conduct of a Member State is in breach of EU law and to terminate that conduct. (8) It is important to note that, notwithstanding specific procedural differences depending on whether the applicant bringing the action for failure to fulfil obligations is the Commission or a Member State, there are common rules to which all parties are subject without exception, which include rules on the burden of proof and on the reference date for determining whether there has been a failure to fulfil obligations in a particular case.
43.      It seems to me particularly pertinent to refer to those rules in this analysis, given the factual complexity of this case and because the failures alleged by the Czech Republic concern many different aspects of the Polish legal system, that is to say, the adoption of not only legislative acts but administrative decisions, both of which have been amended over time. Those common rules are intended to ensure precise and consistent examination of whether those national acts comply with EU law, whose primacy all Member States are required to respect. (9)
1.      Rules relating to the burden of proof in an action for failure to fulfil obligations
44.      Since proceedings before the Court in an action for failure to fulfil obligations under Articles 258 and 259 TFEU are adversarial, it is for the applicant to establish the alleged failure by providing the Court with the material needed to determine that the Member State has failed to fulfil its obligations. The two types of case established in the Treaties therefore cannot be treated differently in procedural terms. (10)
45.      Furthermore, it follows from Article 120(c) of the Rules of Procedure of the Court of Justice and from the case-law relating to that provision that the application initiating proceedings must state the subject matter of the dispute and a summary of the pleas in law, and that that statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application. It is therefore necessary that the essential points of law and fact on which a case is based are indicated coherently and intelligibly in the application itself and that the form of order sought is set out unambiguously so that the Court does not rule ultra petita or indeed fail to rule on a plea. (11) In contrast, it is incumbent on the defendant Member State to challenge in substance and in detail the information produced and the consequences flowing therefrom. (12)
46.      The arguments presented by the parties in this case will therefore undergo a rigorous examination in the light of the rules on the evidential burden set out in the preceding point.
2.      The reference date for determining the existence of a failure to fulfil obligations
47.      Another key aspect to consider in the examination is the reference date for determining whether there has been a failure to fulfil obligations. It can be seen from the Court’s settled
case-law that for the purposes of the procedure under Article 258 TFEU the reference date is the expiry date of the period laid down in the reasoned opinion delivered by the Commission under that article. The need to use such a reference date in order to determine whether there has been a failure to fulfil obligations is particularly obvious in situations where the circumstances of the case have changed during the proceedings, very often following intervention by the infringing Member State itself, for example where national legislation found to be contrary to EU law has been amended.
48.      A reference date must be set at a specific stage of the proceedings to prevent such a change of circumstances rendering an action for failure to fulfil obligations devoid of purpose. The need clearly to determine the subject matter of the dispute is obvious if one bears in mind the purpose of an action for failure to fulfil obligations, that is to say, to enable
the Court to establish whether a Member State has infringed
EU law. That approach has the further advantage of ensuring that the Member States’ procedural rights are upheld where the Commission acts to bring such an infringement
of EU law to an end, which would be difficult if the Member States were obliged, as part of their defence, to adopt a position on every modification of the subject matter of the dispute
caused by changes in circumstances.
49.      Obviously that case-law cannot be applied directly to the proceedings under Article 259 TFEU, since it is the Member State itself – rather than the Commission – which initiates the proceedings. It is therefore necessary to ascertain the reference date for determining whether there has been a failure to fulfil obligations in such proceedings. It should be borne in mind that the requirement to bring the matter before the Commission, under the second paragraph of Article 259, is a procedural prerequisite for subsequently bringing an action before the Court. The importance of that stage of the procedure must not be overlooked, in view of its legal consequences, that is to say, an obligation on the Commission to hear both parties, which must present their observations orally and in writing, and commencement of the three-month period on expiry of which the Member State may bring the matter before the Court if the Commission has not delivered its reasoned opinion.
50.      It seems to me that in order to comply with the adversarial principle which, as the third paragraph of Article 259 expressly indicates, applies to that stage of the procedure, the applicant Member State, in its letter bringing the matter before the Commission, must have already presented all the pleas in law based on an alleged infringement
of EU law and all the related evidence. In addition, those pleas and that evidence must make it clearly apparent that the applicant Member State is considering bringing an action under Article 259 TFEU and not merely requesting the Commission to commence the procedure under Article 258 TFEU. It can be seen from the foregoing that this is the stage of the procedure at which the subject matter of the dispute is defined. (13)
51.      Since the applicant Member State, first, is not bound by the findings made by the Commission in its reasoned opinion and, secondly – unlike the Commission in the context of an action for failure to fulfil obligations under Article 258 TFEU – is not obliged to pass through other stages of the procedure, it seems reasonable to set the date on which the applicant Member State brings the matter before the Commission as the reference date for determining whether there is a failure to fulfil obligations for the purposes of procedural law. (14) I believe it is all the more appropriate to apply the Court’s case-law, by analogy, albeit having regard to the particularities of the procedure under Article 259 TFEU, since the same procedural considerations that are referred to in Article 258 TFEU and mentioned in the preceding points call for that approach, that is to say, the need to identify the subject matter of the dispute with sufficient precision independently of any changes in circumstances, and the obligation to uphold the procedural rights of the Member States.
52.      For the foregoing reasons, I believe that the subject matter of this dispute must, prima facie, be confined to the legislative and administrative situation at the time the Czech Republic brought the matter before the Commission. Certain facts subsequent to that date may nevertheless also be considered relevant. However, I would note that, according to the Court’s case-law, subsequent facts may only exceptionally be taken into consideration, that is to say, where those facts are of the same kind as the alleged conduct or do not substantially alter the substance of the circumstance complained of. (15) That case-law is based on the premiss that a Member State cannot evade an action for infringement of EU law by means of a formal ruse, that is to say, by amending legislation or adopting a new decision which, nevertheless, still contains the same features that infringe EU law.
B.      First plea in law, alleging infringement of Article 4(1), (2), (4) and (6), Article 5(1) and (2) and Articles 6 to 9 of the EIA Directive (six-year extension of development consent for the mining of lignite without carrying out an environmental impact assessment)
1.      Arguments of the parties
53.      By its first plea, the Czech Republic argues that, by not requiring an environmental impact assessment for a single six-year extension of a mining concession, Article 72(2)(2)(k) of the Law on environmental information infringes Article 4(1) and (2) of the EIA Directive because it allows such an extension to be granted where neither the full environmental impact assessment nor the ‘screening’ procedure laid down in that article has been carried out. The absence of such an assessment also has the effect of excluding the public concerned and any neighbouring Member States whose territory may be affected by the project from participating in the procedures established in Article 4(4) to (6) and Articles 5 to 9 of that directive.
54.      According to the Czech Republic, that provision of Polish law has manifestly been used to extend the lignite mining concessions granted in two other mines in Poland. It has in reality served as the basis for the development consent to mine lignite at Turów until 2026.
55.      The Republic of Poland asserts that the plea became devoid of meaning once the 2044 decision was adopted on 28 April 2021. On account of its period of validity, that decision could not have been made under Article 72(2)(2)(k) of the Law on environmental information. Moreover, the 2044 decision was adopted under the EIA decision, which the operator attached to its application.
56.      According to the defendant Member State, that plea is furthermore manifestly unfounded. As a preliminary consideration, that Member State asserts that it is clear from the forms of order sought in the application that the scope of the action is limited to determining whether the development consent for lignite mining until 2026 is valid, and therefore has a bearing on whether Polish law is compatible with the EIA Directive only in so far as that law was specifically applied in the context of that consent.
57.      The Republic of Poland states that Article 72(2)(2)(k) of the Law on environmental information was not applied when that consent was granted, since, for the purposes of that grant, as that authority explained in the reasons for the consent itself, the granting authority was required to take account of the EIA decision because there was a possibility that the project concerned would have a substantial environmental impact.
58.      The Republic of Poland maintains
in that respect that in Polish law, granting ‘development consent’ within the meaning of Article 1(2)(c) of the EIA Directive is a procedure in several stages, one of which is the decision-making on the environmental conditions. The decision on environmental conditions is binding on the bodies making subsequent investment decisions. It is also directly binding on the operator, as is the development consent itself, and therefore, contrary to the premiss on which the Czech Republic relies, does not need to be incorporated into that consent.
59.      In the present case, according to the Republic of Poland, the EIA decision, for which the operator had applied in order to proceed with the project defined as the mining of the lignite seam at the Turów mine until 2044, was adopted on 21 January 2020, on completion of the consultations and with the public participation laid down by the EIA Directive. On 24 January 2020, it was attached to the application for a six-year extension of the mining concession. Under Polish law the grant of development consent for a period shorter than that under the EIA decision is permitted and is moreover in keeping with the principle a maiori ad minus. Grant of the development consent for the extraction of lignite until 2026 was therefore preceded by an environmental impact assessment and, therefore, did not entail an infringement of the provisions of the EIA Directive relied upon in the first plea.
2.      Assessment
(a)    Infringement of Article 4(1) and (2) of the EIA Directive
60.      By its first plea, the Czech Republic alleges, in particular, that Article 4(1) and (2) of the EIA Directive have been infringed inasmuch as Article 72(2)(2)(k) of the Law on environmental information does not require an environmental impact assessment for a single six-year extension of a mining concession.
61.      It should be noted at the outset that the plea concerns the adoption of a legislative act rather than an administrative practice. Therefore, contrary to what the Republic of Poland is suggesting, the question is not whether or not the legal basis referred to in the preceding point was applied to a specific case. The Republic of Poland’s argument that the plea is manifestly unfounded because the national provision referred to was not applied when development consent was granted for the extraction of lignite at Turów until 2026 is therefore in my view irrelevant.
62.      Examination of the plea turns instead on whether a Member State may, by legislative means, authorise the competent authorities to abstain from taking a series of administrative measures in connection with development consent for mining projects. In order to answer that question, it is necessary to determine, first, whether under EU law – here, the EIA Directive – the Member State is obliged to adopt those administrative measures. If it is, the Member State has undoubtedly failed to fulfil its obligations.
63.      It should be recalled in that respect that, before consent is granted for any ‘project’ within the meaning of Article 1(2)(a) of the EIA Directive, the project must undergo an environmental impact assessment pursuant to Article 2(1) of that directive if it is likely to have significant effects on the environment by virtue of its nature, size or location. The requirement imposed by Article 2(1) of the EIA Directive is not in fact that all projects likely to have a significant effect on the environment be made subject to the assessment procedure provided for in that directive, but instead only those mentioned in Article 4 of that directive, which refers to the projects listed in Annexes I and II to the directive.
64.      Accordingly, Article 2(1) and Article 4(1) of the EIA Directive, read together, indicate that projects covered by Annex I to that directive present an inherent risk of significant effects on the environment and must therefore undergo an environmental impact assessment. In that context, it should be noted, first, that Article 1(2)(c) of that directive refers to ‘development consent’ which it defines as ‘the decision of the competent authority or authorities which entitles the developer to proceed with the project’. Secondly, attention should be drawn to the fact that point 19 of Annex I refers to ‘quarries and open-cast mining where the surface of the site exceeds 25 hectares’, that is to say, mines with a surface similar to that of the Turów mine. Point 24 of that annex is relevant to this examination since it provides that ‘any change to or extension of projects listed in this Annex
where such a change or extension in itself meets the thresholds, if any, set out in this Annex’ (emphasis added) must undergo the assessment procedure referred to above. In other words, the EIA Directive does not merely lay down a requirement to carry out an environmental impact assessment at the time initial development consent is given for a project, but apply also at the time of certain decisions relating to that consent.
65.      Article 72(2)(2)(k) of the Law on environmental information, the subject matter of the first plea, can fall within point 24 of Annex I to the EIA Directive, since that national provision concerns the extension of a mining concession. It is therefore necessary to determine whether a ‘renewal of consent’ of that nature can be understood as an ‘extension of a project’ for the purposes of the EIA Directive. In principle, on a straightforward literal interpretation, the word ‘extension’ can be understood as meaning both an ‘increase in the territorial scope’ of a particular project and its ‘prolongation in time’.
66.      In my view the answer to that question is clearly in the affirmative. As the Court held in the judgment in
Inter-Environnement Wallonie and Bond Beter Leefmilieu Vlaanderen, (16) measures which have the effect of prolonging the duration of the development consent for a project already referred to in Annex I to the EIA Directive are covered by point 24 of that annex. It emerges from that judgment that the rule set out in Article 4(1) of the EIA Directive applies even where the development consent at issue is extended by a duration not exceeding 10 years, (17) which is precisely the situation covered by the Polish legislation at issue. It follows that a single six-year extension of a mining concession is a project requiring an environmental impact assessment under Article 4(1) of the EIA Directive.
67.      In the light of the foregoing, the national provision, Article 72(2)(2)(k) of the Law on environmental information, must be found not to comply with EU law since it establishes precisely the opposite of what is required by Article 4(1) of the EIA Directive.
68.      It is appropriate next to examine whether Article 4(2) of the EIA Directive
has also been infringed.
69.      It is important to note, first, that that article contains a reference to Annex II, which, in point 2(a), includes ‘quarries’ and ‘open-cast mining’ among the projects liable to undergo an environmental impact assessment, provided they are ‘projects not included in Annex I’. As indicated above, mines with a surface similar to that of the Turów mine are already covered by Annex I.
That type of mine therefore already falls within the scope of Article 4(1) of the EIA Directive with the effect that, at least as regards that category of mine, Article 4(2) of that directive cannot be invoked.
70.      Nevertheless, I believe that Article 4(2) of the EIA Directive is relevant in relation to mines below the threshold laid down in point 19 of Annex I, that is to say, those with a surface of less than 25 hectares. It in fact seems to me that the Polish legislation at issue is also intended to govern the approach to projects with a smaller surface. In that context it will be observed that Article 72(2)(2)(k) of the Law on environmental information, first, is drafted rather generally as regards the type of projects exempt from the obligation to undergo an environmental impact assessment and, secondly, unlike the EIA Directive does not draw any distinction between projects which must undergo an environmental impact assessment and those which may be subject to one. It should therefore be found at this stage of the examination that the scope of the national provision is very broad.
71.      Secondly, it should be noted that under Article 4(2) of the EIA Directive, the Member States are expressly authorised to determine themselves whether the project at issue must be subject to an environmental impact assessment. (18) According to recital 9 of that directive, ‘projects of other types’, that is to say, the projects listed in Annex II, ‘may not have significant effects on the environment in every case’, and are therefore only subject to an assessment ‘where the Member States consider that they are likely to have significant effects on the environment’
(emphasis added). As can be seen from Article 4(2) of that directive, the Member States are to make that determination through a case-by-case examination or through thresholds or criteria set by the Member State. Member States may decide to apply both the procedures referred to. Under Article 4(3), the relevant selection criteria set out in Annex III are to be taken into account in the case-by-case examination or to set the thresholds or criteria. It is clear from the foregoing that the Member States have a significant margin of discretion when transposing that provision into national law.
72.      Nevertheless, it should not be forgotten in the present context that, although Article 4(2) of the EIA Directive gives the competent authority a degree of freedom to determine whether or not a particular project must undergo an assessment, it is apparent from the Court’s consistent case-law (19) that the limits of that discretion are to be found in the obligation set out in Article 2(1) of the EIA Directive to ensure that projects are subject to an ‘impact assessment’ before development consent is granted, where they are likely, by virtue inter alia of their nature, size or location, to have significant effects on the environment. Accordingly, a Member State exceeds its discretion if it establishes criteria or thresholds without taking into consideration the location of projects or establishes them at a level which, in practice, means that the whole of a particular type of project is exempted in advance from the obligation to conduct an impact assessment.
73.      According to the Court, the fact that the Member State has that discretion is not in itself sufficient to exclude a given project from the assessment procedure under the EIA Directive. If that were not the case, the discretion accorded to the Member States by Article 4(2) of that directive could be used by them to take a particular project outside the assessment obligation when, by virtue of its nature, size or location, it could have significant environmental effects. Consequently, whatever the method adopted by a Member State to determine whether or not a specific project needs to be assessed, be it by legislative designation or following an individual examination of the project, the method adopted must not undermine the objective of the EIA Directive, which is that no project likely to have significant effects on the environment, within the meaning of the directive, should be exempt from assessment, unless the specific project excluded could, on the basis of a comprehensive assessment, be regarded as not being likely to have such effects. (20)
74.      Those considerations are even truer of national measures that cover whole classes of project. Specifically, the Court has found that Article 4(2) of the EIA Directive does not empower the Member States to ‘exclude generally and definitively’ from possible assessment one or more classes mentioned in that article, since the criteria and/or the thresholds at issue are not designed to exempt in advance from the assessment obligation certain whole classes of projects listed in Annex II which it may be envisaged will be implemented on the territory of a Member State, but only to facilitate the examination of the actual characteristics of a project in order to determine whether it is subject to that obligation. (21)
75.      The question that arises in this context is therefore whether the Polish legislation at issue requires an ‘impact assessment’ to be carried out, as established in the Court’s case-law, where that approach appears to be justified in the light of the characteristics of certain projects, namely by virtue of their nature, size or location. In my view that question must be answered clearly in the negative, since Article 72(2)(2)(k) of the Law on environmental information applies indiscriminately to all mining operations. Since that national provision has the effect of exempting all mining globally and definitively from the obligation to undergo such an ‘impact assessment’, without due account being taken of the inherent characteristics of each project which are likely to have significant effects on the environment, it must be found to be incompatible with the combined requirements of Article 4(2) and Article 2(1) of the EIA Directive as interpreted in the case-law.
76.      That finding also holds true in respect of the fact that it is apparently impossible to subject mining operations belonging to projects of ‘other types’ within the meaning of recital 9 of the EIA Directive either to a case-by-case examination or to an assessment using appropriate selection thresholds or criteria, as required by Article 4(2)(a) and (b) of that directive, in order to determine whether the projects referred to in Annex II should undergo an environmental impact assessment. I would emphasise that although the Polish provision referred to above has the effect of relieving the competent authorities of the obligation to make such a determination in relation to all mining operations, it does not enable them to take the specific characteristics of each case into account. An inflexible approach of that nature that is insufficiently aware of the environmental challenges that any mine will involve therefore clearly cannot be a proper transposition of Article 4(2) of the EIA Directive into Polish law.
77.      It must therefore be found that the Republic of Poland has exceeded the margin of discretion available to it as a result of Article 4(2) in conjunction with Article 2(1) of the EIA Directive because its national legislation is not in line with the procedures laid down for assessing the environmental impact of a mine falling within Annex II to that directive.
78.      For the reasons set out in the preceding points, I find that the Republic of Poland also infringed Article 4(2) of the EIA Directive when it adopted Article 72(2)(2)(k) of the Law on environmental information.
(b)    Infringement of the procedural requirements relating to environmental impact assessments
79.      Since it has been found in this examination that Article 4(1) and (2) of the EIA Directive has been infringed, the question inevitably arises of how to address the plea in law from a legal perspective, given that it also alleges infringement of Article 5(1) and (2) and Articles 6 to 9 of that directive. It should be recalled that those provisions specify the procedural rules to be complied with by Member States when they submit the projects listed in Annex I to an environmental impact assessment. Specifically, those rules include the obligation on the developer to prepare and present an assessment report, the obligation to consult the authorities likely to be concerned by the project and to ensure public access to information related to it, including to the decision-making process.
80.      In common with the Commission, I believe that a finding of a failure to fulfil the obligation, under Article 4(1) of the EIA Directive, to subject a project to an environmental impact assessment logically covers a failure to comply with the specific procedural requirements which that assessment must meet. That conclusion also seems to emerge from a careful reading of the Czech Republic’s application, in which the provisions stipulating the procedural requirements for such an assessment are apparently mentioned merely for the sake of completeness.
81.      Moreover, I would note that Article 72(2)(2)(k) of the Law on environmental information confines itself to exempting, in general terms, certain mining activities from the obligation under EU law to carry out an environmental impact assessment, but makes no reference to any specific obligations, relating to the assessment procedure and set out in Article 5(1) and (2) and Articles 6 to 9 of the EIA Directive, which might have warranted a separate examination of conformity, in the light of each of those provisions. That approach appears unnecessary in the present case, since the requirements for such an individual examination of conformity are clearly not satisfied.
82.      Under those circumstances, since the provisions invoked by the Czech Republic in essence contain procedural requirements to be complied with in relation to an environmental impact assessment, it must be found that an infringement of Article 4(1) and (2) of the EIA Directive necessarily gives rise to an infringement of those procedural requirements.
(c)    Legislative amendments after the action was brought
83.      For the sake of completeness, I would draw attention to the recent amendments to the Polish legislation, in particular the deletion of Article 72(2)(2)(k) of the Law on environmental information. As the Commission states in its observations of 13 August 2021, it appears that in the future a single six-year extension of a concession to extract lignite will not be possible under the Polish legislation unless a prior environmental impact assessment has been conducted. According to the information provided by the Commission, it is currently examining whether that legislative amendment is such as to put an end to the situations in which the EIA Directive is incorrectly implemented as a result of applying Article 72(2)(2)(k) of the law referred to above.
84.      It is sufficient to note that, because the legislative amendments were adopted in July 2021, that is to say, after the Czech Republic brought the matter before the Commission, they cannot be taken into account in these proceedings without unduly altering the subject matter of the dispute. (22) I am therefore of the view that the Court cannot take those subsequent legislative amendments into account when determining any infringement by the Republic of Poland.
C.      Second plea in law, alleging infringement of Article 6(2) to (7), Article 7(5), Articles 8 and 9 and Article 11(1) of the EIA Directive (exclusion of the public concerned from the procedure for the grant of the mining concession)
1.      Arguments of the parties
85.      The Czech Republic contends that the obligations laid down by those provisions of the EIA Directive, on public participation in the procedures under that directive and review of the resulting decisions, apply to all the stages of those procedures, including the final stage, that is to say, the procedure for granting development consent for the project and the outcome of that procedure.
86.      In its view, that premiss follows, first, from the fact that certain provisions, in particular Article 6(2)(a), (c) and (d) of the EIA Directive, mention either the ‘development consent’ within the meaning of Article 1(2)(c) of that directive, or all the decisions made in the context of the consent procedure. Secondly, according to the Czech Republic, that directive contains no exception to the obligations it imposes for situations where those obligations were discharged at an earlier stage of the procedure. Thirdly, public participation in the procedure for the grant of development consent for the extraction of lignite until 2026 has a different purpose from public participation in the EIA procedure, since participation in the procedure for the grant of development consent is intended to determine whether the results of the environmental impact assessment were properly integrated in the final consent. Moreover, the possibility of a review procedure, established in Article 11 of the EIA Directive, would become of no practical effect if that integration could not be reviewed.
87.      The Czech Republic is therefore of the view that Article 33 of the mining code, under which the public concerned is excluded from the procedure to grant development consent for a project and from judicial review of that procedure, where an EIA decision was issued for that project on conclusion of an environmental impact assessment procedure conducted with public participation, is contrary to the provisions of the EIA Directive referred to above.
88.      The Republic of Poland replies that, in the light of Article 2(2) of the EIA Directive, under which an integrated procedure can be used to grant development consent for a project, the Member States have power to determine the procedures for ensuring public participation in the consent adoption stage, at which questions relating to the environmental impact of the planned projects are examined. It is however not necessary to ensure public participation in the subsequent stages of the grant procedure, at which other aspects of the operation of the planned project are examined.
89.      In Poland the procedure for the grant of development consent for a project comprises various stages and it is only once an operator has obtained a decision on environmental conditions that it can be granted development consent, for which the decision on environmental conditions is binding. According to the Court’s case-law, where national law establishes a consent procedure in several stages and one of those stages is a principal decision and another an implementing decision which cannot extend beyond the parameters set by the principal decision, the effects which a project may have on the environment must be identified and assessed at the time of the procedure relating to the principal decision.
90.      According to the Republic of Poland, in the procedure for the grant of development consent for the extraction of lignite until 2026 there was no requirement once again to ensure public participation or once again to conduct transboundary consultations, because the related obligations were discharged in the procedure concluded by the EIA decision. The Commission endorsed
that approach in its reasoned opinion by finding that the relevant provisions of the EIA Directive had not been infringed.
91.      As regards the assertion by the applicant Member State that under Article 11(1) of the EIA Directive there must be an opportunity for the courts to review whether the results of the environmental impact assessment were taken into account in the procedure for the grant of development consent, the Republic of Poland submits, first, that Polish law does, in principle, ensure that the public concerned can have access to that review procedure. Organisations such as Greenpeace ČR have brought actions against the development consent for the extraction of lignite until 2026, in which, according to the Republic of Poland, the question of suspending that consent was examined on the merits.
92.      Secondly, according to the Republic of Poland, it follows from Article 11(2), under which the Member States are to determine at what stage decisions may be challenged, that they are free to provide an opportunity to seek a review solely at the stage of the decision relating to the environmental conditions, provided there is no possibility of the decision on development consent failing to take the first decision into consideration. That is the situation in Poland, according to the defendant, since Article 86 of the Law on environmental information provides that the decision on environmental conditions is binding on the authorities adopting a decision under Article 72(1) of that law. Since the EIA decision is directly applicable, to guarantee that non-governmental organisations have an opportunity to contest the decision granting development consent for the extraction of lignite until 2026 would be unjustified and devoid of purpose.
93.      The Republic of Poland adds that, in any event, the allegation that it infringed Article 11(1) of the EIA Directive has become devoid of purpose since Article 33 of the mining code has been amended and now enables interested parties to seek a review against an investment decision in order to review whether that decision is compatible with the decision on environmental conditions.
2.      Assessment
94.      By its second plea in law, the Czech Republic claims that Article 33 of the mining code, which provides in essence that there is no participation by public organisations in the procedure for the grant of development consent where those organisations participated in the environmental impact assessment procedure, infringes several provisions of the EIA Directive. That plea likewise concerns a legislative act rather than a specific administrative practice.
95.      The obligations laid down in Article 6(2) to (7), Article 7(5), Articles 8 and 9 and Article 11(1) of the EIA Directive relate to participation, by the public concerned and other Member States on whose territory the project may have a significant impact, in the procedures established by the EIA Directive, including in review of the decisions resulting from those procedures. Those obligations relate to the conduct and outcome of the ‘decision-making procedure’ for the purposes of Article 2(2) of the EIA Directive, the aim of which is the grant of ‘development consent’. By virtue of Article 1(2)(c) of the EIA Directive, that expression includes the decision entitling the developer to proceed with the project.
(a)    Infringement of the right of access of the public and other Member States to the procedure for adopting development consent
96.      I would emphasise first of all that I am not persuaded by the interpretation advanced by the Czech Republic to the effect that Articles 6 to 9 of the EIA Directive are intended to ensure that the public and other Member States have an absolute and unlimited right of access to all stages of the procedure for adopting development consent. That position needs to be qualified by calling to mind that the EIA Directive recognises the procedural autonomy of the Member States. As the Republic of Poland correctly states, under Article 2(2) of the EIA Directive a Member State can integrate the environmental impact assessment into the existing procedures for granting consent for projects or, where there are none, into other procedures or into procedures to be established to comply with the aims of that directive.
97.      In other words, the provisions of EU law do not standardise the procedures preceding the grant of development consent for projects. The Member States in fact have freedom to choose the form and means they consider will contribute to the objectives of the EIA Directive. The national rules of the various Member States may therefore differ substantially as regards how they organise the administrative decision-making procedures for granting consent for projects likely to cause substantial environmental impact.
98.      According to the information provided by the Republic of Poland, its domestic law establishes a consent procedure in several phases, commencing with assessment of the environmental impact of a project. The Republic of Poland explains that, for projects consisting of extracting ore from a seam, the undertaking intending to carry on that type of activity must obtain a decision on the environmental conditions applicable to implementation of that project and, only then, development consent to extract ore from the seam. The Republic of Poland emphasises that the decision on environmental conditions is binding on the administrative authority that grants the development consent to extract ore from a seam.
99.      It is worth noting in that context that the Court has expressly held that a Member State is free to establish a development consent procedure in several stages. According to the Court’s case-law, where national law provides for a consent procedure comprising more than one stage, one involving a principal decision and the other involving an implementing decision which cannot extend beyond the parameters set by the principal decision, the effects which a project may have on the environment must be identified and assessed at the time of the procedure relating to the principal decision. (23) It is only if those effects are only identifiable until the time of the procedure relating to the implementing decision that the assessment should be carried out in the course of that procedure. (24) The Court has clarified that the environmental impact assessment in respect of a project must, in principle, be carried out as soon as it is possible to identify and assess all the effects which the project may have on the environment. (25) The requirement that such an assessment should precede consent is justified by the fact that it is necessary, in the decision-making process, for the competent authority to take effects on the environment into account at the earliest possible stage in all the technical planning and decision-making processes, the objective being to prevent the creation of pollution or nuisances at source rather than to counteract their effects subsequently. (26)
100. It seems to me that the consent procedure established in national law, as described by the Republic of Poland, satisfies the requirements of the Court’s case-law cited in the preceding point. Specifically, the Republic of Poland cannot be criticised for establishing a consent procedure in several stages, in particular in view of the Member States’ procedural autonomy under the EIA Directive. From that perspective, the Republic of Poland appears to have taken the measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment, in accordance with its obligation under Article 2(1) of the EIA Directive.
101. To my mind, the logical corollary of that finding is that, where the environmental impact of a project has already been assessed, in compliance with the procedural requirements laid down by the EIA Directive, at a stage of the administrative procedure before the grant of development consent, there is no objective justification for requiring a Member State to repeat that stage in the consent phase. Such a requirement would effectively disregard the Member States’ autonomy to establish administrative procedures and would be a pointless formality likely to create disproportionate obstacles to the implementation of a project. I therefore concur with the view expressed by the Commission that, where the public and, if applicable, other Member States have been able to participate in the environmental impact assessment procedure, it does not appear necessary for that participation to be repeated at the development consent stage. In the procedure to extend the development consent for operation of the Turów mine until 2026 it was therefore not necessary once again to ensure public participation or once again to conduct transboundary consultations, because the obligations in that field had already been discharged in the procedure concluded by the EIA decision.
102. The arguments put forward by the Czech Republic suggesting that Article 33 of the mining code is incompatible with the EIA Directive are not in my view compelling because they are based on a purely literal interpretation of Article 6(2) of the EIA Directive, which supposedly refers to the final ‘development consent’, but do not explain precisely and in detail why the administrative procedure in several stages established in Polish law does not comply with the requirements of the EIA Directive. To uphold that thesis would amount to saying that it is completely impossible to establish an administrative procedure in several stages in order to assess the environmental impact of a project, thereby clearly contradicting what the Court has held in its case-law. Those arguments should therefore be rejected.
(b)    Infringement of the right to bring an action before a court
103. As regards the alleged infringement of Article 11(1) of the EIA Directive, on the right to bring a review procedure before a court, it should be noted first of all that it appears not to be Article 33 of the mining code itself that precludes an action being brought against a decision granting consent where the person concerned has not participated in the procedure leading to grant of that consent, but rather, as the Czech Republic itself indicates in relation to its seventh plea, Article 50(1) of the Law on administrative procedure.
104. It should also be borne in mind that, according to the judgment in Flausch, (27) while actions against only decisions granting consent do not in principle concern questions of public participation in decision-making, the same is not true if, in particular, any defects concerning public participation must be raised in the action against the final decision granting consent.
105. The logical corollary of the foregoing is that, where national law establishes a procedure in several stages, comprising an environmental impact assessment stage and a stage relating to the development consent for a project, as Polish law does, the Member States can properly establish that defects relating to public participation must be raised at the first stage.
106. As can be seen clearly from Article 11(2) of the EIA Directive, the Member States are to determine at what stage decisions, acts or omissions may be challenged. In other words, in contrast to the Czech Republic’s assertion, a Member State is not obliged to ensure that any defects relating to public participation may be challenged, again, at the development consent stage.
107. Lastly, as regards the risk alleged by the Czech Republic that the results of the environmental impact assessment procedure will not be taken into account subsequently, I believe that neither Article 11(1) of the EIA Directive nor any other provision of EU law conferring an equivalent right precludes the adoption of a national procedure and national provisions according to which an opportunity to bring an action is only guaranteed at the stage of the decision relating to environmental conditions, provided that there is no possibility that the decision granting consent will fail to take account of the results of the environmental impact assessment procedure.
108. It should be noted here that, according to information provided by the Republic of Poland, (28) its domestic law does in principle ensure an opportunity for the public concerned to bring actions in the context of an administrative procedure and to challenge decisions granting consent before the administrative courts, in particular so that they can review whether those decisions are compatible with the conditions defined in earlier decisions on environmental conditions.
109. Since there are no specific indications supporting the thesis that it is not possible under Polish law to seek judicial review of a decision granting consent for a project on the ground that it failed to take into account the results of the environmental impact assessment procedure, that argument should be rejected.
110. In the light of the foregoing, I propose that the second plea should be rejected as unfounded.
D.      Third plea in law, alleging infringement of Article 11(1) of the EIA Directive (declaration that the EIA decision was immediately enforceable)
1.      Arguments of the parties
111. By its third plea in law, the Czech Republic alleges that the declaration that the EIA decision was immediately enforceable infringes Article 11(1) of the EIA Directive by depriving it of its effectiveness. That Member State submits that, even though under Polish law that decision might be subject to judicial review, the fact that it is immediately enforceable means that consent for the project concerned can be granted and the project then implemented before any court decision on the legality of the EIA decision could be adopted, and that the problem is exacerbated, first, because the public has no opportunity to apply to a court for interim measures against that immediate enforceability and, secondly, because consent for the project becomes irrevocable on expiry of one year from commencement of the activities.
112. In that context, the Czech Republic states that the actions brought against the EIA decision and its immediate enforceability are still in their administrative phase, while the extraction activities at the Turów mine are continuing. It also claims that groundwater levels are falling considerably more quickly than in the assumptions on which that decision was based and that, contrary to the indications in that decision, significant subsidence has occurred on inhabited land in the territory of the Czech Republic.
113. The Republic of Poland states that, under Polish law, a non-final decision may be declared immediately enforceable where it proves necessary to do so in order to protect human health or life, to prevent significant loss to the national economy or on grounds of another public interest or an interest of exceptional importance to a party. However, if a decision is declared immediately enforceable in a separate act, that act may be the subject of a complaint and thereafter of a court action. Furthermore, under Article 135 of the Code of Administrative Procedure, the body hearing the matter at second instance may suspend the direct enforceability of a decision, either of its own motion or at the request of the parties to the proceedings.
114. That Member State submits that, in the present case, first, no application was made under Article 135. Secondly, the procedure relating to the EIA decision lasted nearly five years until 21 January 2020, most of that time having been given over to the transboundary impact, as a result of the intervention by the Czech authorities and public, with the effect that the period in which the operator could obtain the development consent was considerably reduced, a factor which, according to the Republic of Poland, influenced the decision to declare the EIA decision immediately enforceable. Thirdly, that latter decision has indeed been the subject matter of complaints and, subsequently, of actions which are pending before the administrative court.
115. The Republic of Poland further asserts that the third plea is devoid of purpose since, as a result of the amendment of the legislative framework on 30 March 2021, a number of rights conferred on the public have remedied the alleged lack of effective judicial review resulting from the declaration that the EIA decision was immediately enforceable. A second instance body can now, on application and when justified, suspend the immediate enforceability in proceedings brought against that decision.
2.      Assessment
116. By its third plea in law, which is levelled against the declaration of immediate enforceability of the EIA decision, the Czech Republic alleges an infringement of Article 11(1) of the EIA Directive claiming that the judicial procedures laid down in Polish law for challenging such a declaration are ineffective, because the declaration can lead to the project being implemented quickly notwithstanding the fact that actions have been brought against the EIA decision, a problem which is exacerbated because there is no opportunity to apply for interim measures against that implementation. That plea, in common with the first two pleas, is to my mind directed against national law rather than against that declaration as such.
117. It seems necessary in that respect to recall at the outset the Court’s case-law from which it is apparent that the Member States have a duty to ensure the effectiveness of remedies against national administrative decisions likely to have irreversible harmful effects on the environment. The Court has found that the effectiveness of remedies depends in particular on members of the public concerned having an opportunity to ask the national court hearing a dispute covered by EU law to order interim measures such as temporarily to suspend the application of a development consent pending the final decision. (29) The need to ensure effective judicial protection becomes particularly important where a decision, such as the EIA decision, is declared to be immediately enforceable. In order to examine that plea alleging that the judicial procedures laid down in Polish law are ineffective, I believe it is necessary to assess both the national legal framework and the current state of the pending proceedings.
(a)    National legal framework
118. As regards the national legal framework, the Republic of Poland explains that according to the provisions of Polish law, a non-final decision may be declared immediately enforceable in specific situations, that is to say, where it is necessary to do so in order to protect human health or life or to prevent significant loss to the national economy, and also on grounds of another public interest or an interest of exceptional importance to a party. A first instance body may declare its decision to be directly enforceable in the text of that decision or after it has been adopted. In the latter scenario, the decision is declared immediately enforceable by an order, against which the parties can bring a complaint and thereafter an action before an administrative court. The Republic of Poland states that Polish law contains another means of challenging direct enforceability: under Article 135 of the Code of Administrative Procedure, the second instance body may of its own motion suspend the direct enforceability of a decision. That body may also do so after hearing an application by the parties to the proceedings.
(b)    Current state of the pending proceedings
119. As regards the current state of proceedings, the Czech Republic states that a number of Czech entities have brought an action against the EIA decision and a complaint against the decision of 23 January 2020 on the immediate enforceability of the EIA decision. The Republic of Poland has corroborated that information, explaining that a number of environmental organisations lodged an action with the Director-General for the Protection of the Environment against the EIA decision of 21 January 2020 issued by the Regional Director for Environmental Protection of Wrocław. According to the Republic of Poland’s explanations, once the Director-General for the Protection of the Environment has delivered his decision at second instance, the organisations concerned will be entitled to bring an action before the Wojewódzki Sąd Administracyjny w Warszawie (Regional Administrative Court, Warsaw, Poland).
120. In relation specifically to the decision on the immediate enforceability of the EIA decision, the Republic of Poland asserts that on 14 April 2021, the Regional Director for Environmental Protection of Wrocław, after hearing the arguments advanced by the Czech party in the complaint proceedings, upheld that decision. The Republic of Poland draws attention to the fact that, to date, a number of environmental organisations have brought an action against that decision before the Wojewódzki Sąd Administracyjny w Warszawie
(Regional Administrative Court, Warsaw). In that context, I would point out that the Czech Republic informed the Court, at the hearing, that those proceedings are currently pending and that the hearing is likely to be held towards the end of 2021.
121. Having assessed the arguments put forward by both parties, I find that Polish law does contain remedies making it possible to obtain a review of the legality of administrative decisions, including the EIA decision, by the administrative authorities and the courts. In particular, interested parties have an opportunity to suspend the direct enforceability of a decision. Since there is no solid evidence, I cannot share the Czech Republic’s doubts as to the effectiveness of the existing remedies. The fact that the aforementioned environmental organisations have not been successful in their actions is not, in itself, sufficient evidence that the remedies are ineffective, especially since they have not yet been exhausted.
122. In the light of the foregoing, I am minded to reject the third plea as unfounded.
E.      Fourth plea in law, alleging infringement of Article 4(1)(a)(ii) and (b)(ii) of Directive 2000/60 (failure to include in the EIA decision a potential procedure to be followed in the event that exemptions are not granted for the bodies of water concerned)
1.      Arguments of the parties
123. According to the Czech Republic, the EIA decision does not ensure compliance with the obligations under Article 4(1)(a)(ii) and (b)(ii) of Directive 2000/60 in respect of the surface water and groundwater affected by the extraction activity at the Turów mine for the entire expected duration of that activity, until 2044, and, for that reason, infringes those provisions.
124. That Member State notes that Article 4(4) and (5) of Directive 2000/60 establishes exemptions from the requirement to achieve those objectives, valid until no later than 2021 or 2027, and that, in particular, the extension, under paragraph 4, of the duration of the exemptions established in paragraph 5 is envisaged without taking into account the possibility that such an extension may be refused as a result of failure to satisfy the conditions necessary for those exemptions to be granted, referred to in paragraph 5.
125. However, although the Republic of Poland acknowledges, in the EIA documentation, that it will not be possible to achieve good status for the bodies of water concerned before mining of the Turów deposit ends in 2044, the EIA decision does not make it clear how that Member State would envisage achieving compliance with EU law if those exemptions were not granted. In particular, the decision contains no prohibition on continuing to operate the mine in that situation.
126. The Republic of Poland denies the alleged infringement of Article 4(1)(a)(ii) and (b)(ii) of Directive 2000/60. It emphasises that the exemptions under Article 4(4) and (5) of that directive are assessed and applied not by means of specific investment permits, but in the context of updating specific river basin management plans under Article 13 of that directive. Those updates will be carried out for the river basins in respect of the period 2021 to 2027, including for the Oder River basin. It is in the framework of that updating of the plans that decisions are taken, in the light of the existing situation, to maintain, convert or cancel those exemptions.
127. That Member State, referring also to the Commission’s reasoned opinion, takes the view that under Directive 2000/60 a decision granting development consent for a project within the meaning of the EIA Directive is not required to define the obligations arising from any future decisions on exemptions from the environmental objectives relating to specific bodies of water. In its view, that position is not undermined by the case-law cited by the Czech Republic, which merely indicates that the documentation made available to the public for the purposes of consultation before consent is granted must contain the data necessary to assess the impact of the project on water in the light of Article 4(1) of Directive 2000/60. That case-law, conversely, does not indicate that a decision granting consent for a project must contain a binding determination as to whether the project can proceed depending on future decisions on whether or not to grant those exemptions.
128. The Republic of Poland also rejects the Czech Republic’s claim that compliance with the obligations under that provision is not ensured in any other way. It states that Polish law contains mechanisms relating to three aspects of activities likely to have an impact on groundwater and surface waters which ensure compliance with Article 4(1) of Directive 2000/60 in the event of a refusal to grant the exemptions at issue. Those mechanisms relate, first, to the procedures for obtaining a decision permitting the carrying on of the activity; secondly, to verification of the impact on water of the activity carried on; and thirdly, to the penalties for adverse effects on water caused by persons carrying on an activity under a decision obtained previously. In addition, the development consent can be withdrawn without compensation if the operator infringes the environmental protection conditions.
129. The Republic of Poland also notes, first, that the fourth plea concerns the content of the EIA decision. Since that decision is the subject matter of an administrative complaint which may be followed by an action before an administrative court, and those procedures may give rise to annulment of the decision, the Court’s judgment on whether the EIA decision is compatible with Directive 2000/60 would be contrary to the division of roles between the Court and the national courts.
130. Furthermore, according to the Republic of Poland, it is apparent from the wording of Article 259 TFEU that an application lodged under that article must demonstrate that the Member State concerned has already failed to fulfil an obligation incumbent on it under EU law, not that a hypothetical failure to fulfil such an obligation may arise in the future. In its view the fourth plea is therefore inadmissible.
2.      Assessment
131. By its fourth plea in law, the Czech Republic asserts in essence that the EIA decision infringes Article 4(1)(a)(ii) and (b)(ii) of Directive 2000/60, on the environmental objectives to be achieved for surface waters and groundwater, because the decision does not define any measures to be taken in the event that the exemptions from those provisions, currently applicable under Article 4(4) and (5) of that directive, are not renewed in the course of the duration of the project. That plea differs from the pleas examined above since it concerns a specific administrative act rather than a legislative act.
132. Contrary to the assertions of the Republic of Poland, I do not find that plea to be inadmissible on the ground that it relates to a hypothetical future failure to fulfil obligations. It seems to me that the failure alleged by the Czech Republic is indeed current and is sufficiently real, since that Member State is criticising the Polish authorities, in essence, for failing to comply with their obligations under Directive 2000/60, that is to say, to do everything necessary to achieve the environmental objectives laid down by that directive within the prescribed timescales, and relying instead on exemptions even though it is not certain that those exemptions will be granted.
133. On the substance of the plea submitted by the Czech Republic, it should be recalled, as a preliminary remark, that Directive 2000/60 is a framework directive adopted on the basis of Article 175(1) EC (now Article 192(1) TFEU). It establishes common principles and an overall framework for action in relation to water protection, and coordinates, integrates and, in a longer perspective, develops the overall principles and the structures for protection and sustainable use of water in the European Union. The common principles and overall framework for action which it lays down are to be developed subsequently by the Member States by adopting individual measures within the timescales laid down in the directive. However, the directive does not seek to achieve complete harmonisation of the rules of the Member States concerning water. (30)
134. Under Article 4(1)(a)(ii) and (b)(ii) of Directive 2000/60, Member States shall protect, enhance and restore all bodies of surface waters
and groundwater, subject to the application of subparagraph
(iii) for artificial and heavily modified bodies of water, with the aim of achieving good surface water
and groundwater status. Under Article 3(1)(c) of the EIA Directive, assessment of a project’s effects on water is also part of the environmental impact assessment. The findings made in the EIA procedure – here in the form of the EIA decision – must also cover the obligations under Directive 2000/60, which constitutes special legislation concerning water, for the purposes of the EIA Directive. (31)
135. I would nevertheless point out that, according to Article 4(7) of Directive 2000/60, Member States will not be in breach of that directive when all the conditions laid down in subparagraphs
(a) to (d) of that provision are satisfied. As the Court recently held in the judgment in
Land Nordrhein-Westfalen, when a project is liable to have adverse effects on water, consent for it may be given only if those conditions are satisfied. Without prejudice to the possibility of judicial review, the national authorities which are competent to authorise a project are required to review whether those conditions are satisfied before the grant of such an authorisation. (32) When examining any plea concerning infringement of Directive 2000/60 by a Member State it is therefore necessary, in principle, to determine whether those conditions have been taken into account.
136. However, the plea submitted by the Czech Republic concerns a different aspect which needs clarifying. The applicant Member State is in fact not claiming any failure to fulfil the obligation to take account of the conditions referred to in Article 4(7) of Directive 2000/60. The Czech Republic is criticising the Polish authorities for proceeding on the assumption that the exemptions that the Republic of Poland enjoys under Article 4(4) and (5) of Directive 2000/60 will be maintained.
137. It should be observed in that respect that such an argument disregards the fact that the exemptions under Article 4(4) and (5) of Directive 2000/60 are applied not by means of an environmental impact decision, but in the context of the updating of the specific river basin management plans, under Articles 13 to 15 of Directive 2000/60. (33) Those management plans define the objectives for all bodies of water. For bodies of water that have not yet achieved the environmental objective of ‘good status’ or good potential, the management plans must set the deadline for achieving that status, under Article 4(4) of that directive. Where that objective cannot be achieved for a body of water, a less stringent environmental objective may be pursued, provided the criteria laid down in Article 4(5) of that directive are satisfied. (34)
138. According to the information provided by the Commission and the Republic of Poland, the next
river basin management
plan was to be adopted by 22 December 2021, in accordance with Article 13(7) of Directive 2000/60. The Republic of Poland states that work for that plan is currently ongoing and that all necessary administrative measures had been taken with a view to maintaining the exemptions at issue. The Polish authorities had conducted public consultations about draft plans, in accordance with the requirements of Directive 2000/60.
139. It must therefore be found that, when they adopted the EIA decision, the Polish authorities were not obliged to take into consideration the possibility that the exemptions under Article 4(4) and (5) of Directive 2000/60 would not remain in place. In contrast, they were obliged to assess whether there was any danger of the status of the water bodies deteriorating as a result of the mining activities and whether any such deterioration was not acceptable in the light of the conditions laid down in Article 4(7) of that directive.
140. I also believe it is necessary to highlight the explanations given by the Republic of Poland to the effect that Polish law has established effective mechanisms guaranteeing compatibility with Article 4(1)(a)(ii) and (b)(ii) of Directive 2000/60 in the event that the exemptions at issue are refused. Specifically, the mechanisms allow the Polish authorities to review or withdraw development consent that has been granted. Accordingly, in contrast to the allegations of the Czech Republic, the Polish authorities do appear to have adequate means of ensuring compliance with the obligations under EU law.
141. For the foregoing reasons, I propose that this plea should be rejected as unfounded.
F.      Fifth plea in law, alleging infringement of Article 6(2) to (7), Article 7(1), (2) and (5) and Article 8 of the EIA Directive (exclusion of the public concerned and the Czech Republic from the procedure for the grant of consent to extract lignite until 2026)
1.      Arguments of the parties
142. By its fifth plea in law, the Czech Republic contends that, by excluding the public concerned and that Member State from participating in the procedure for the grant of consent to extract lignite until 2026, the Republic of Poland infringed Article 6(2) to (7), Article 7(1), (2) and (5) and Article 8 of the EIA Directive.
143. As in respect of its second plea, alleging that those provisions are infringed by Article 33 of the mining code, the Czech Republic considers that the procedure leading to that consent is a ‘decision-making procedure’ falling under Article 2(2) of the EIA Directive, and that the obligations under Article 6(2) to (7), Article 7(1), (2) and (5) and Article 8 of that directive therefore apply to that procedure also. In its view the participation of the public concerned and of that Member State should have been necessary in order to determine whether the conditions of the EIA decision were integrated into that consent. However, none of those obligations were complied with in the procedure for the grant of development consent for the extraction of lignite until 2026, which took place without public participation.
144. The Republic of Poland, referring to its arguments in relation to the second plea, considers the fifth plea to be unfounded. It asserts that the obligations referred to in the relevant provisions of the EIA Directive were complied with at the stage of the procedure that gave rise to adoption of the EIA decision.
145. Furthermore, those provisions do not require an opportunity to review whether the decision on investment (development consent) took account of the conditions of the EIA decision since, under Article 6(4) of the EIA Directive, participation by the public and Member State concerned in the procedures to adopt decisions having an impact on the environment consists of expressing comments and opinions to the authorities before the decision on the request for development consent is taken. Since that is the intention, such participation at the stage of the consent procedure would be superfluous, all the more so since the authority which conducted that procedure was bound by the EIA decision.
146. The Republic of Poland submits furthermore that as a result of adoption of the 2044 decision and the amendment of the provisions of Polish law which establish a remedy against decisions granting consent where those decisions are preceded by EIA decisions and the public was able to participate in the EIA decision-making procedure, the fifth plea has been deprived of its purpose.
2.      Assessment
147. The fifth plea in law alleges that the Republic of Poland failed to comply with its obligations under Article 6(2) to (7), Article 7(1), (2) and (5) and Article 8 of the EIA Directive by making it impossible for the public concerned and the Czech Republic to participate in the procedure for the grant of development consent for the extraction of lignite until 2026.
148. First of all, I believe it is necessary to reject the argument advanced by the Republic of Poland to the effect that the fifth plea has become devoid of purpose because the Polish authorities have adopted a new decision prolonging the development consent until 2044. Suffice it to reply that the decision in question was not adopted until 28 April 2021, that is to say, after the reference date for the purposes of determining any failure to fulfil obligations in the context of proceedings under Article 259 TFEU. (35)
149. Since there are similarities with the points of law raised by the Czech Republic in its second plea, I take the liberty of referring to my analysis in point 96 et seq. of this Opinion, in which I explained that the obligations laid down in those articles were complied with at the stage of the environmental impact assessment for the project, which gave rise to the adoption of the EIA decision, and that the EIA Directive does not preclude either a legal structure, such as that established in Polish law, in which those obligations are fulfilled at an early stage of the consent procedure for a project, that is to say, at the stage of the environmental impact assessment, and the final stage, that is to say, the stage at which the decision on the project is adopted, is conducted without participation by the public concerned and the Member State affected.
150. In respect of the Czech Republic’s argument to the effect that there needs to be additional participation at the consent stage in order subsequently to ‘review’ whether the consent for the project took account of the conditions of the EIA decision, it should be clarified that Article 11 of the EIA Directive confers a right to bring a review procedure only in order ‘to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of [that]
Directive’
(emphasis added). (36) That Article 11
does not on the other hand confer a right to require a judicial review of the taking into account of considerations underlying the EIA decision.
151. I would furthermore emphasise that none of the provisions to which the Czech Republic refers in support of its second plea confers any such right. On the contrary, as can be seen from Article 6(4) of the EIA Directive, those provisions are instead intended to entitle the public concerned ‘to express comments and opinions … to the competent authorities’ before a decision on the request for development consent is taken. It can also be seen, from Article 8 of that directive, that ‘the results of consultations and the information gathered pursuant to Articles 5 to 7 shall be
duly taken into account in the development consent procedure’ (emphasis added). However, that obligation on the national authorities does not give rise to a right of the public concerned to ‘review’ a decision, as the Czech Republic implies. It seems to me that the second plea is therefore based
on an incorrect interpretation of the provisions of the EIA Directive.
152. Those findings on the applicability of the EIA Directive hold true without prejudice to the fact that the public concerned has access, which according to the information supplied by the Republic of Poland it does under Polish domestic law, to a review procedure in the context of an administrative procedure and can bring proceedings before the administrative courts against decisions granting consent, in particular in order to review whether those decisions are compatible with the conditions defined in earlier decisions on environmental conditions. (37)
153. In the light of the foregoing, I consider that the fifth plea, alleging that the Republic of Poland failed to comply with the obligations under Article 6(2) to (7), Article 7(1), (2) and (5) and Article 8 of the EIA Directive by making it impossible for the public concerned and the Czech Republic to participate in the procedure for the grant of development consent for the extraction of lignite until 2026, is unfounded.
G.      Sixth plea in law, alleging infringement of Article 9(1) and (2) of the EIA Directive (failure to publish the development consent for the extraction of lignite until 2026 and to communicate it to the Czech Republic in an intelligible form)
1.      Arguments of the parties
154. According to the Czech Republic, in the context of the development consent for the extraction of lignite until 2026, the Republic of Poland failed to comply with its information obligations under Article 9 of the EIA Directive, which aims, inter alia, to ensure that the public concerned has an opportunity to examine whether the conditions in the EIA decision were duly integrated into that consent.
155. As regards Article 9(1)(a) of that directive, the Czech Republic claims that the content of the decision granting consent and the conditions attached to it were not published. According to the Czech Republic, since that consent amended development consent No 65/94, which had already been amended several times, a consolidated version of the consent should have been published in order to satisfy the obligations under that article and should have contained all the information referred to in Article 8a of that directive. However the consent provided to the public contained only, in its operative part, information relating to the extension of the original development consent. The fact that all the decisions amending that consent were subsequently forwarded to the Czech Republic did not enable it clearly to understand which version of the consent was currently in force. The development consent to extract lignite until 2026 does not indicate the current extent of the extraction area and does not, in itself, contain a clear and binding reference to the conditions in the EIA decision.
156. In respect of Article 9(1)(b) of the EIA Directive, although the EIA decision should in all logic be one of the main ‘reasons and considerations on which the decision [granting consent] is based’, the consent contains no assessment of whether the authorised mining activities comply with the EIA decision.
157. In relation to Article 9(2) of the EIA Directive, according to the Czech Republic, given the objective of that directive, the prescribed information must be provided to the Member State concerned as soon as possible. However, the Republic of Poland allegedly only forwarded the development consent to extract lignite until 2026 to the Czech Republic five months after it was granted, and the document forwarded did not satisfy the requirements of Article 9(1) of that directive.
158. The Republic of Poland replies that public notices made available on the online public bulletin board of the municipality concerned and on the website of the granting authority related to all the stages of the procedure to extend development consent No 65/94, thereby giving the public and the Czech Republic access to them.
159. In response to the claim that a consolidated version of that consent should have been forwarded, the mechanism for updating development consent adopted in Poland precludes such a document being forwarded since a consolidated version would constitute a new administrative decision exceeding the scope of the request for amendment, and would therefore contravene Polish administrative law. Against that background, the Republic of Poland considers that Article 9 of the EIA Directive does not require decisions granting development consent to take any particular form.
160. That Member State is of the view that the obligation to provide the public with the information referred to in Article 8a of that directive and the second sentence of Article 9(1)(b) thereof was complied with since both the EIA decision and the order making that decision immediately enforceable were published, including on the official website of the Czech Ministry of the Environment and in Germany.
161. As regards Article 9(2) of the EIA Directive, the Republic of Poland is of the view that the prescribed information was forwarded to the Czech Republic in sufficient time to enable the public concerned to exercise its right to a review by the courts under Article 11(1) of that directive.
162. Lastly, the Republic of Poland is of the view that the sixth plea became devoid of purpose once the 2044 decision was published in accordance with Article 9(1) and (2) of the EIA Directive.
2.      Assessment
163. In the sixth plea, the Czech Republic criticises the Republic of Poland, first, for failing, in breach of Article 9(1) of the EIA Directive, to publish either the content of the decision granting consent for mining activities until 2026 and the conditions annexed to that decision or the reasons or considerations on which that consent was based and, secondly, for forwarding the text of that decision to the Czech Republic at a late stage, in breach of Article 9(2) of the EIA Directive, and because the document forwarded did not comply with the requirements under Article 9(1)(a) and (b) thereof. The plea concerns specific administrative measures, that is to say, measures relating to publicity and the communication of information, imposed on the national authorities by the EIA Directive.
164. First of all, the Court should reject the argument advanced by the Republic of Poland to the effect that the sixth plea has become devoid of purpose because the Polish authorities have adopted a new decision extending the development consent until 2044. As I stated when examining the fifth plea, that decision was adopted only after the reference date for determining the existence of a failure to fulfil obligations. (38)
165. It is apparent from Article 9(1) of the EIA Directive that when a decision to grant or refuse development consent has been taken, the competent authority or authorities are promptly to inform the public and the authorities likely to be concerned by the project by reason of their responsibilities, in accordance with the national procedures, and must ensure that the necessary information is available to the public and to those authorities, that is to say, the content of the decision and any conditions attached thereto, and the main reasons and considerations on which the decision is based, including information about the public participation process. That information also includes the summary of the results of the consultations and the information gathered pursuant to Articles 5 to 7 of the EIA Directive and how those results have been incorporated or otherwise addressed, in particular the comments received from the affected Member State. Under Article 9(2) of that directive, the competent authority or authorities must inform any Member State which has been consulted pursuant to Article 7 of that directive, forwarding to it the information referred to above.
166. The Republic of Poland submits that the information required under the foregoing provisions was published, including on official websites. However, it appears to me that the Czech Republic is in essence criticising the fact that the information published was unintelligible and incomplete. Specifically, according to the Czech Republic, since the development consent in question was the most recent of several amendments of development consent No 65/94, a consolidated version of that consent should have been forwarded to it so that it could identify which of its provisions were in force. It also seems that the earlier decisions amending the consent to extract lignite until 2026 had not been made available to the public.
167. I would point out in that respect that the Republic of Poland is not disputing the content of the information published and forwarded to the Czech Republic. It is in fact merely arguing that it was not necessary to provide a consolidated version in order to satisfy the requirements of Article 9(1) of the EIA Directive. The Republic of Poland contends that how the administrative authorities of the Member States design administrative decisions is not a matter within the competence of the European Union. It explains that in its national administrative practice, the mechanism for updating development consent already granted is similar to the mechanism for amending a legal act, according to which it is the original version of the legal act that is binding, albeit taking into account any subsequent amendments.
168. The Republic of Poland explains that it is a principle of Polish administrative law that, where an administrative decision is adopted amending a decision adopted previously, the administrative authority competent to adopt an amending decision is not only not obliged to repeat the whole of the amended decision in the decision it adopts but in fact may not do so. The amending decision must indicate precisely the elements of the amended decision that have been amended. Although the remainder of the amended decision remains in force, the authority adopting the amending decision may not repeat in its decision any elements that have not been amended. Otherwise, notwithstanding the limited scope of a request to amend an earlier decision, a new administrative decision would in fact be adopted.
169. The administrative practice of the Republic of Poland described in the preceding point is confirmed when one reads the decision at issue extending the duration of the development consent to extract lignite until 2026. Indeed, only the paragraph stipulating the duration of that consent appears to have been amended in order to reflect the extension of the consent. Nevertheless, it seems to me that the Republic of Poland’s observations are irrelevant in the present context, since there is no question of contesting a particular national administrative practice. Examination of the sixth plea turns rather on the exact content of the information that must be made available to the public and forwarded to a Member State that has participated in the consultations under Article 7 of the EIA Directive.
170. While the Polish authorities are familiar with the specific characteristics of their administrative law, that is not necessarily true of the general public and the authorities of other Member States. As already stated in this Opinion, the national rules of the various Member States may differ substantially as regards how they organise the administrative decision-making procedures for granting consent to projects likely to give rise to substantial environmental impact. (39) I therefore believe it is not only inappropriate but incompatible with the spirit of solidarity, cooperation and mutual support underpinning Article 9 of the EIA Directive to provide incomplete information, requiring the general public and the authorities of neighbouring Member States, which are affected by the environmental impact of a particular project, to carry out their own research into foreign national law in order to obtain the information necessary to exercise their rights under EU law.
171. There is in my view no doubt whatsoever that, since the purpose of the publicity obligations is to enable effective remedies to be sought against the decisions concerned, the information provided to the general public and the authorities of neighbouring Member States affected by the environmental impact of a particular project must be full and intelligible. In other words, in order to ensure effective publicity, the information must be presented in a manner that is sufficiently exact and suited to the specific needs of those to whom it is addressed. I therefore believe that the ‘content of the decision’ granting consent for extractive activities at the Turów mine and which must be communicated to the public and to those national authorities in accordance with Article 9(1)(a) of the EIA Directive cannot consist solely of the extension decision, but must include all the documents constituting the substance of the development consent. Only a measure of that nature is capable of placing the public and the authorities of neighbouring Member States in a position to understand the scope of that administrative decision and, if necessary, to react appropriately and in good time.
172. It is worth adding that, as emerges explicitly from Article 9(1)(b) of the EIA Directive, the information at issue must include ‘the main reasons and considerations on which the decision is based’, and it is not therefore, to my mind, open to a Member State such as the Republic of Poland to decline to provide the public and the authorities of neighbouring Member States with the relevant documentation relating to the development consent and specifying the reasons for its grant and extension, on the ground that its domestic law does not establish an administrative practice of that kind. Since Article 9 of the EIA Directive clearly seeks to establish high standards of transparency and cooperation between the Member States of the European Union in a highly sensitive field such as environmental protection which, as the circumstances of this case indeed show, (40) transcends national borders, I am of the view that a Member State cannot properly rely on its internal rules and administrative customs as an excuse releasing it from its obligations to publish information and communicate it to the public concerned.
173. For the reasons set out above, in my view the Republic of Poland infringed Article 9(1) of the EIA Directive.
174. In relation specifically to the allegation that the Republic of Poland infringed Article 9(2) of the EIA Directive by only forwarding the development consent to the Czech Republic five months after it was adopted and moreover incompletely, I would reiterate what I have said in the preceding points on how important it is for a neighbouring Member State that is affected by the environmental impact of a particular project to have all the necessary information about the development consent for a project so that it can, if necessary, react appropriately and in good time.
175. Achieving the foregoing involves in particular the ability to
exercise the right to an effective judicial remedy under Article 11(1) of the EIA Directive which, in view of the time elapsed and because the time limits laid down by national procedural law must be complied with, may become particularly difficult or even impossible. (41) If an interested party is prevented from asserting its rights before the national courts on the ground that an action is out of time owing to the behaviour of the national authorities, it must in my view be found that Article 9(2) of the EIA Directive has been infringed.
176. That seems to be exactly what occurred in the situation that gave rise to this dispute. The period of five months taken merely to forward the development consent at issue constitutes a considerable delay in the light of, first, the significant interests at stake and, secondly, the fact that the task was purely administrative, merely requiring the forwarding of documents. The situation is all the more serious since the information requested by the Czech Republic was only provided on its insistence and was incomplete. As the Czech Republic states, it still does not have access to a consolidated document enabling it clearly to understand the precise scope and
form
of the project. I would note that the Republic of Poland has not provided any convincing explanation of that delay in providing the information requested.
177. In the light of the foregoing considerations, I believe that Article 9(2) of the EIA Directive
has also been infringed.
178. For the reasons set out above, I propose to find the sixth plea to be well
founded.
H.      Seventh plea in law, alleging infringement of Article 11(1) of the EIA Directive (failing to enable judicial review of the development consent for the extraction of lignite until 2026)
1.      Arguments of the parties
179. The Czech Republic submits that, under Article 11(1) of the EIA Directive, the public concerned must have access to a judicial review procedure against the decision granting consent for the project, whatever the extent to which it participated in the procedure leading to grant of that consent. It claims however that, under Polish law, the public concerned cannot seek review of the consent to extract lignite until 2026 because it did not participate in the procedure for the grant of that consent.
180. Moreover, according to that State, first, the fact that the consent was not published officially also limited its review by the public concerned. Secondly, the actions brought before a Polish court by Czech non-governmental organisations seeking review of that consent have been stayed pending a decision on the legality of the refusal to allow those organisations to participate in the procedure for the grant of consent itself, and it is therefore uncertain whether there will be any ruling on the merits. Furthermore, the prohibition on cancelling development consent after one year deprives Article 11(1) of the EIA Directive of its practical effect.
181. In reply, the Republic of Poland refers to its arguments under the second plea, stating that Article 11(1) of the EIA Directive does not preclude the national procedure from being designed in a manner in which access to a review procedure is only guaranteed at the stage of the decision on environmental conditions.
182. It also asserts that the Czech Republic’s arguments are contradictory: on the one hand, that Member State asserts that the public concerned is not able to challenge the consent to extract lignite until 2026; on the other, it acknowledges that non-governmental organisations have indeed exercised their rights under that article.
183. In that respect, the fact that the actions have been stayed is a manifestation of the freedom of the Polish court concerned to choose how to organise proceedings and has no effect on any terms of limitation of the applicants’ rights.
184. In addition, according to Article 42 of the mining code, the fact that development consent cannot be cancelled after one year relates only to cancellation of the consent following a reopening of the procedure to grant consent, which, according to the Republic of Poland, is one of the extraordinary means by which final decisions can be annulled. It therefore does not relate to the cancellation of a development consent as the result of an ordinary administrative review pursuant to an action brought within the time limit.
185. The Republic of Poland also contends that the seventh plea has become devoid of purpose following a
result of the 2044 decision and amendments to Polish law which enable the public concerned to bring complaints and actions against investment decisions.
2.      Assessment
186. By its seventh plea in law, the Czech Republic submits that the Republic of Poland infringed Article 11(1) of the EIA Directive by preventing judicial review proceedings from being brought against the consent to extract lignite until 2026. That plea concerns both the practice of the authorities and the legal framework in the defendant Member State.
187. Out the outset, the Court should reject the argument advanced by the Republic of Poland to the effect that the seventh plea has become devoid of purpose because the Polish authorities have adopted a new decision prolonging the development consent until 2044. As it has already indicated, that decision was adopted only after the reference date for determining the existence of a failure to fulfil obligations. The same holds true for the legislative amendments enacted after that reference date which, according to the Republic of Poland, now allow the public concerned to bring complaints and actions against investment decisions. (42)
188. Next, in respect of the purpose of Article 11 of the EIA Directive, it should be pointed out that that article has been interpreted in the Court’s case-law as meaning that its scope is limited to the aspects of a dispute which concern the right of the public concerned to participate in decision-making in accordance with the detailed rules laid down by that directive. On the other hand, challenges based on any other rules set out in that directive and, a fortiori, on any other legislation, whether of the European Union or the Member States, do not fall within that article. (43) The basic premiss must therefore be that the Czech Republic’s thesis relates only to the review of legality as regards respect for the right to public participation.
189. As regards how the Member States organise the remedies available, it has already been explained in detail as part of examination of the second plea that neither Article 11(1) of the EIA Directive nor any other provision of EU law conferring an equivalent right precludes the adoption of a national procedure and national provisions establishing that an opportunity to bring proceedings is only guaranteed at the stage of the decision relating to environmental conditions, provided that there is no possibility that the decision granting consent will fail to take account of the results of the environmental impact assessment procedure.
190. Accordingly, where the right to public participation, established in Articles 6 to 9 of the EIA Directive, was upheld in the procedure to adopt the EIA decision, it is only necessary to provide for a remedy relating to that stage. In other words, a Member State is not obliged to ensure that any defects relating to public participation may be challenged, again, at the development consent stage. (44) The arguments set out above are, in my view, sufficient to reject the seventh plea as unfounded.
191. For the sake of completeness, I would note a certain contradiction in the Czech Republic’s line of argument. On the one hand, it states that the public concerned did not have an opportunity to challenge the development consent at issue and, on the other, acknowledges itself that three non-governmental organisations (Greenpeace ČR, Frank Bold and Eko-Unia) have indeed availed themselves of their rights as the public concerned under Article 11(1) of the EIA Directive. Although the Czech Republic indicates that the proceedings have been stayed pending a final ruling on the refusal to allow those organisations to participate in the procedure to grant the mining concession until 2026, it cannot itself rule out the possibility that a judicial review will be completed. Indeed, when the Court questioned it on that point at the hearing, the Czech Republic conceded that the actions by the Czech environmental organisations had not yet been finally dismissed by the Polish courts.
192. In that context, I am particularly assisted by the clarifications provided by the Republic of Poland in its defence on the decisions that would be available to the Wojewódzki Sąd Administracyjny w Warszawie
(Regional Administrative Court, Warsaw) if it decided to uphold or to dismiss the actions brought by those organisations. In contrast to the Czech Republic’s claim in its application, Article 42 of the mining code does not appear to prevent that administrative court from potentially cancelling the development consent at issue. According to the information from the Republic of Poland, that article in fact appears not to establish any limitation on annulling, amending or confirming the invalidity of a decision made in procedures other than the re-examination procedure under Polish law.
193. In the absence of convincing evidence supporting the thesis that the legal system in the Republic of Poland provides no effective remedy ensuring the public’s right to participate in decision-making procedures, in particular in the circumstances of the present case, I find it difficult to follow the arguments put forward by the Czech Republic. In my view, the fact that the aforementioned environmental organisations have not been successful in their actions is not, in itself, sufficient evidence that the remedies are ineffective, especially since the remedies have not yet been exhausted.
194. In the light of the foregoing, I am of the view that the seventh plea should be rejected as unfounded.
I.      Eighth plea in law, alleging infringement of Article 7 of Directive 2003/4 (failure to publish the development consent for the extraction of lignite until 2026)
1.      Arguments of the parties
195. The Czech Republic notes that, under Article 7(2)(f) of Directive 2003/4, a Member State must make authorisations with a significant impact on the environment available to the public. Since the development consent to extract lignite until 2026 is such an authorisation, given that it is required to undergo an environmental impact assessment procedure under Article 4(1) of the EIA Directive, in that State’s view the Republic of Poland infringed Article 7 of Directive 2003/4 because it published neither the consent itself nor the place where it could be requested.
196. The Republic of Poland counters that the Minister for Climate, by his opinion of 20 March 2020, published on the online public bulletin board on his website, displayed in the table of opinions of the Ministry of Climate and published in the usual way by the city and municipality of Bogatynia (Poland), did inform the public that the consent to extract lignite until 2026 had been granted and of the ways in which it could access its content and the related documentation.
197. That Member State is therefore of the view that there was no infringement of Article 7 of Directive 2003/4. It further submits that the eighth plea is devoid of purpose since the 2044 decision was subject to the new rules, in particular those relating to publication, and its content was published on the online portal of the Minister for Climate.
2.      Assessment
198. By its eighth plea in law, the Czech Republic contends that the failure to publish the development consent in question or the place where it could be requested contravenes Article 7 of Directive 2003/4, while the Republic of Poland repeatedly states that the website of the Ministry for Climate did announce the adoption of the consent and how it could be accessed.
199. First, it is necessary to recall that, as found in the context of examining the sixth plea, the Republic of Poland infringed Article 9(1) and (2) of the EIA Directive by failing to publish the development consent for the extraction of lignite until 2026 and to communicate it to the Czech Republic in an intelligible form. (45) That infringement consisted of the fact that the Polish authorities failed to include all the documents constituting the substance of the development consent and instead merely published a document announcing the extension of the duration of the earlier consent, without setting out the details of the concession granted to the operator of the Turów mine.
200. The specific question that arises in the present context is whether that infringement of EU law can also amount to an infringement of the provisions of Directive 2003/4. Under Article 2(1)(c) of that directive, the scope of the directive covers activities affecting or likely to affect the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components. In relation to those activities, a Member State is required, under Article 7 of Directive 2003/4, to make authorisations with a significant impact on the environment available to the public, either directly by publishing them or by indicating the place where the public can request that authorisation.
201. In view of the fact that the extraction activities at the Turów mine fall within the category of activities which, because of their significant environmental impact, are subject to a compulsory environmental impact assessment procedure under Article 4(1) of the EIA Directive, (46) they are beyond doubt activities likely to affect the elements of the environment and therefore fall within the scope of application of Directive 2003/4.
202. The concession for mining until 2026 is the final consent necessary to implement that activity and, as such, is an authorisation with ‘a significant impact on the environment’ within the meaning of Article 7(2)(f) of Directive 2003/4. It is therefore covered by the provisions referred to above, under which the Member State is obliged to make that consent available to the public. Since there are no indications to the contrary, none of the exceptions established in Article 4 of Directive 2003/4, which authorise the Member States in certain circumstances to refuse requests for environmental information, apply to the present case.
203. I am of the view that, in the interests of the coherent interpretation of EU law, Article 9(1) and (2) of the EIA Directive and Article 7(2)(f) of Directive 2003/4 must be interpreted as meaning that they seek to achieve the same objective, that is to say, to guarantee the public’s right to be informed as clearly and fully as possible, in particular where a mining concession is extended.
204. Indeed, it should be noted, first, that Article 7 of Directive 2003/4 protects the public interest and enables each citizen to have access to the environmental information held by the public authorities, independently of any individual interest whatsoever, (47) and, secondly, that according to recital 16 of that directive the right to information means that the disclosure of information should be the general rule. (48) It is obvious that those objectives would be seriously jeopardised if the information referred to in Article 7(2) of Directive 2003/4 was made available to the public only unintelligibly and incompletely. I am therefore of the view that those factors also militate in favour of environmental information being disclosed in a manner that takes duly into account the high standards of transparency and cooperation required under the EIA Directive in a field such as environmental protection, which transcends national borders. (49)
205. From that perspective, I am inclined to conclude, as the Commission does in its reasoned opinion, that an infringement of Article 9(1) and (2) of the EIA Directive entails an infringement of Article 7(2)(f) of Directive 2003/4.
206. By reason of the foregoing, I propose that the eighth plea should be upheld.
J.      Ninth plea in law, alleging infringement of Article 4(3) TEU (failure to provide full information in relation to the procedure for the grant of development consent for the extraction of lignite until 2026)
1.      Arguments of the parties
207. The Czech Republic notes that, under the principle of sincere cooperation provided in Article 4(3) TEU, Member States are required to assist each other in order to achieve the objectives laid down by EU law, including secondary law. Since the development consent to extract lignite until 2026 is covered by the EIA Directive and Directive 2003/4, and in view of the location of the Turów mine, those directives also give rise to a number of obligations on the Czech Republic, in whose fulfilment the Republic of Poland has a duty to assist it.
208. The applicant Member State alleges that, for many months and despite repeated requests, the Republic of Poland refused to provide it with more detailed information about the procedure for granting that consent, including the text of the consent, making it impossible to perform its obligations under those directives to provide information to its own public concerned. It adds that the conduct complained of under the sixth plea, in particular the fact that the development consent was forwarded at a late stage and in the absence of a consolidated version of development consent No 65/94, likewise prevented it from fulfilling its obligations.
209. The Republic of Poland contends that it did reply to the Czech Republic’s request for information about the development consent to extract lignite until 2026, by letters of 13 January 2020, 5 March 2020 and 28 May 2020. On 28 August 2020, it provided that Member State with the documents requested on 17 April 2020 and again on 24 July 2020, that is to say, development consent until 2026 and development consent No 65/94. Bearing in mind the development of the epidemic of COVID-19 from
March 2020, which according to the Republic of Poland made the exchange of correspondence between the parties more difficult, it did act diligently to provide the Czech Republic with the information requested.
210. The defendant Member State also emphasises that the Czech Republic has been participating in environmental impact assessment procedures in respect of the Turów mine and its related power plant since 2009.
211. Lastly, the Republic of Poland is of the view that the ninth plea has become devoid of purpose because the Czech Republic was duly informed of the adoption of the 2044 decision and of other material circumstances relating to its adoption.
2.      Assessment
212. By its ninth plea in law, the Czech Republic contends that, by failing to provide full information about the procedure by which the decision granting consent for mining activities until 2026 was adopted, the Republic of Poland failed to fulfil its obligations under the principle of sincere cooperation enshrined in Article 4(3) TEU.
213. First of all, the Court should however reject the argument advanced by the Republic of Poland to the effect that the ninth plea has become devoid of purpose because a new decision has been adopted which extends the development consent until 2044, whose content has been disclosed to the Czech Republic. As I have already set out in this Opinion, those events did not take place until after the reference date for the purposes of determining any failure to fulfil obligations in the context of proceedings under Article 259 TFEU. They are therefore irrelevant to the examination of this plea.
214. According to the principle of sincere cooperation enshrined in Article 4(3) TEU, Member States are required to assist each other in order to achieve the objectives of the European Union. As can be seen from the second and third subparagraphs of Article 4(3) TEU, that implies, in particular, an obligation not only to take any general or particular appropriate measure to ensure fulfilment of the obligations arising from secondary law, but also to refrain from any measure which could jeopardise the attainment of the European Union’s objectives.
215. When I examined the sixth plea, (50) I explained that the obligation, established in Article 9(2) of the EIA Directive, on any Member State intending to implement a project likely to have significant effects on the environment and to affect other Member States, to inform those Member States of the decision to grant or refuse development consent, flows from an ideal of solidarity, cooperation and mutual support between the Member States. Moreover, it will be noted that such cooperation begins at an early stage with the obligation, under Article 7 of the EIA Directive, to inform the Member States affected that the project in question is being planned, followed by an obligation to invite them to participate in the environmental decision-making procedures. It is therefore clear that the cooperation between Member States established by secondary law is intended, ultimately, to protect the environment, that is to say, to ensure achievement of that objective of the European Union which is set out, inter alia, in Article 3(3) TEU, Articles 11 and 191 TFEU and Article 39 of the Charter of Fundamental Rights of the European Union.
216. That ideal of solidarity, cooperation and mutual support between Member States in the interests of achieving that important EU objective also underpins the provisions of Directive 2003/4 that ensure public access to environmental information. First, as it was already indicated in the examination of the eighth plea, (51) Article 7(1) and (2) of that directive requires the Member States to take the necessary measures to ensure that the relevant information, including development consent having a significant impact on the environment, is
disseminated to the public. Secondly, under Article 3 of Directive 2003/4 the Member States must ensure that public authorities are required to make environmental information held by or for them available to any applicant at his or her request and without his or her having to state an interest.
217. Since the Member States affected by a particular project are also entitled to request any relevant information – as established in Article 7(2) of Directive 2003/4 – about such a project, they must be regarded as ‘beneficiaries’ of the secondary law provisions referred to in the preceding points. The logical corollary of that finding is that the State subject to those obligations is bound by the principle of sincere cooperation under Article 4(3) TEU where another Member State requests assistance in the form of a request for information.
218. As regards the circumstances of the present case, it is common ground that the Republic of Poland did not forward the decision granting consent for the extraction of lignite until 2026 to the Czech Republic until five months after it was adopted. It must also be found that the requesting Member State had to send a number of requests for information to the Republic of Poland because the information received was incomplete, and that the Republic of Poland did not always respond to those requests. It was only once proceedings under Article 259 TFEU had been brought that the Republic of Poland sent the documents requested to the Czech Republic, that is to say, specifically, the original 1994 application for a mining concession. However, the Czech Republic still does not have access to a consolidated document enabling it clearly to understand the precise scope and form of the project.
219. The fact that the Republic of Poland forwarded the information requested late and incompletely, together with its refusal to respond to requests for assistance from the Czech Republic, falls short of the requirements to act in a spirit of solidarity, cooperation and mutual support between Member States established by EU law with a view to achieving the objective of effectively protecting the environment.
220. I am therefore of the view that such an attitude towards a neighbouring State facing the same environmental risks infringes the principle of sincere cooperation enshrined in Article 4(3) TEU.
221. In the light of the foregoing, I consider the ninth plea to be well founded.
K.      Tenth plea in law, alleging infringement of Article 2(1) of the EIA Directive, read in conjunction with Article 4(1) of that directive (failure to have regard to the EIA decision in the development consent for the extraction of lignite until 2026)
1.      Arguments of the parties
222. The Czech Republic alleges infringement of Article 2(1) of the EIA Directive, read in conjunction with Article 4(1) thereof, in so far as the development consent for the extraction of lignite until 2026 did not take the EIA decision into account.
223. That Member State notes that, under Article 2(1)
of the EIA Directive, the projects defined in Article 4
thereof are subject to ‘a requirement for development consent and an assessment with regard to their effects on the environment’. In its view that means that development consent for those projects must contain or at least take account of that assessment.
224. However, it asserts, from the outset the Polish authorities did not envisage conducting any such assessment for that development consent. Although the EIA decision was attached to the operator’s application, it was not in any way reflected in the procedure to grant that consent or in the consent itself. Furthermore, that application was made under Article 72(2)(2)(k) of the Law on environmental information; although it was not accompanied by an environmental impact assessment, the competent authority found it to be complete; once the EIA decision was subsequently attached to that application, that authority did not consider it necessary to invite the interested parties to supplement their observations; the consent to extract lignite until 2026 does not mention any examination of whether the application complies with the EIA decision; and that consent neither reproduces nor expands upon the conditions established in the EIA decision and contains no clarification of the extent of the extraction area, as that decision requires it should.
225. The Czech Republic infers from the foregoing that the content of the EIA decision was not reflected in the procedure for granting that development consent. The fact that the consent falls within the EIA decision both as regards the period of validity of the consent and the area of the mine does not of itself mean that it is in fact based on the EIA decision. According to the Czech Republic, those two documents are separate decisions.
226. Referring to its replies to the first and second pleas, the Republic of Poland again emphasises that the EIA decision is binding on the operator, which must discharge the obligations it lays down irrespective of whether or not it is transposed in the text of the consent to extract lignite until 2026, and must forward the information and test results relating, in particular, to the concentration of suspended particles, noise nuisance and water quality. That State considers that the Czech Republic is disregarding the obligations under Polish law and making subjective inferences about the attitudes and opinions of the Polish authorities.
227. According to the Republic of Poland, the fact that the operator attached the EIA decision to the application to extend the consent for the Turów mine means that it is obliged to perform the extraction activities in accordance with that decision. It emerges clearly from the circumstances prevailing at the time that the consent to extract lignite until 2026 covers the same project as the EIA decision that preceded it.
228. On the criticism that the development consent makes no mention of the area of the project, the defendant Member State notes that the boundaries of the mining site were defined by the decision of the Minister for Climate of 16 March 2020, before that consent was adopted, and are, therefore, binding, and that it was therefore not necessary to include them in the consent.
229. According to that Member State, that plea, too, is devoid of purpose as a result of the 2044 decision which was based on the EIA decision.
2.      Assessment
230. By its tenth plea in law, the Czech Republic alleges infringement of Article 2(1) of the EIA Directive, read in conjunction with Article 4(1) thereof. Specifically, the Czech Republic disputes that the project under the decision granting consent for mining until 2026 was preceded by an environmental impact assessment, because in its view the EIA decision was not taken into account either in the procedure relating to the application to extend the validity of development consent No 65/94 by six years or in the 2026 decision itself.
231. While I understand the Czech Republic’s interest in having the Court examine this plea, I nevertheless wonder whether jurisdiction to do so lies rather with the Polish courts which, once an action is brought before them by members of the public concerned, will have an opportunity to examine both the formal aspects of the procedure that led to adoption of the decision granting consent for mining until 2026, and the substance of that decision in the light of the obligations arising from the EIA decision. Indeed, on a first analysis it seems to me that the national court is best placed to rule on the questions raised by the Czech Republic, given its knowledge of the factual context and of the national legal framework. For the sake of completeness I will nevertheless examine them below.
232. First of all, the Court should reject the argument advanced by the Republic of Poland to the effect that the tenth plea has become devoid of purpose because a new decision has been adopted, extending the development consent until 2044. Since those events did not take place until after the reference date for the purposes of determining any failure to fulfil obligations in the context of proceedings under Article 259 TFEU, they are irrelevant for the purposes of examining this plea. (52)
233. As regards the provisions allegedly infringed by the Republic of Poland, it should be noted that under Article 2(1) of the EIA Directive, the projects defined in Article 4 of that directive must be subject to ‘a requirement for development consent and an assessment with regard to their effects on the environment’. As the Czech Republic correctly states, that expression must be understood as meaning that development consent for those projects must contain an assessment of their effect on the environment
or at least take account of it.
234. A project such as that for which consent was granted by the decision to extend mining operations until 2026 satisfies the criteria in Article 4(1) of the EIA Directive (mining where the surface exceeds 25
hectares) (point 19 of Annex I to that directive), and the same applies to any change to or extension of the projects concerned where such a change or extension in itself meets the thresholds laid down (point 24 of Annex I to the same directive). (53) Article 2(1) of the EIA Directive does therefore apply to a development consent such as that at issue.
235. In respect of the Czech Republic’s claim that the EIA
decision was not taken account of in the decision granting consent for mining until 2026, I would draw attention to the information in that respect provided by the Republic of Poland, according to which, under the Polish legislation in force, a decision on environmental conditions is binding on, inter alia, both the authorities making a decision to grant consent for mining operations and the undertaking to whom that decision is addressed.
236. As the Republic of Poland explains, the fact that the operator of the Turów mine submitted the EIA decision in the procedure to extend the development consent means that it is obliged to perform the extractive activities at the mine in accordance with that decision. It follows that the EIA decision, like any other administrative decision adopted under Polish law, is binding on its addressee which, on the basis of that decision, is granted rights and is bound by the obligations defined in it. In addition, the Republic of Poland ensures that the operator of the Turów mine does in fact perform its obligations under the EIA decision.
237. In the absence of any indication to the contrary, I have no objective reason to suppose that an administrative decision adopted by the competent authorities, such as the EIA decision, is not binding on an operator who has been granted development consent to carry on mining operations. I would point out that neither is the Czech Republic calling into question the account of the Polish legal framework reproduced in the preceding points of this Opinion.
238. Moreover, as regards the Czech Republic’s claims that there is no link between the EIA decision and the decision granting consent for mining until 2026 because those decisions do not indicate the same project surface area, a number of significant factual aspects, which I will set out below, must be borne in mind.
239. First, it should be noted that the EIA decision was adopted for a mining period of 24 years, whereas the development consent was extended for only 6 years. It therefore makes sense to distinguish between those decisions, since they relate to different time periods. Since the EIA decision relates to a longer period, it brings the development consent for mining within its temporal scope.
240. Secondly, I would point out that, although the decisions at issue are slightly different as regards the area on which mining activities can be carried on (31 014 698 metres squared in the development consent, whereas the decision relates to a surface area of approximately 30.9 kilometres squared), it is common ground that on 12 February 2020 the Polish authorities adopted a corrigendum to the EIA decision, in which they expressly defined the coordinates of the area concerned. Those documents indicate that the location of the project covered by the development consent for an extractive activity is within the geographical limits established by the EIA decision. It follows that the mining activity for which the competent authorities granted consent does not exceed the scope of the EIA decision.
241. It can be seen from those observations that the development consent to which this plea relates does not depart from the stipulations of the EIA decision as regards the mining period envisaged or the geographical area concerned. Accordingly, in the absence of evidence, it cannot properly be said that there is no link between the two administrative decisions. I am therefore of the view that the arguments put forward by the Czech Republic should be rejected.
242. In the light of the foregoing, I have reached the conclusion that the Republic of Poland did not infringe Article 2(1) of the EIA Directive, read in conjunction with Article 4(1) thereof.
243. The tenth plea must therefore be rejected as unfounded.
L.      Eleventh plea in law, alleging infringement of Article 8a(1)(b) of the EIA Directive (failure adequately to establish all the environmental conditions in the development consent for the extraction of lignite until 2026)
1.      Arguments of the parties
244. The Czech Republic claims that Article 8a(1)(b) of the EIA Directive has been infringed because certain environmental conditions referred to in it are not contained in either the consent for the extraction of lignite until 2026 or the EIA decision, as required by Article 8a(1)(b), read in conjunction with Article 8a(3). One of those conditions is the extraction area, which should be regarded as an environmental condition.
245. In addition, according to the Czech Republic, the development consent does not mention the conditions set out in the EIA decision in respect of the project for which it grants consent. Moreover, it can be seen from the EIA decision that certain conditions are to be implemented within a timescale exceeding the validity period of that consent, with the result that
the way in which that implementation is to take place during that period
is not clear.
246. The Republic of Poland asserts, first, that the EIA decision, together with its corrigendum of 12 February 2020, contains the coordinates that define the exact area of the project, and that the mining area envisaged, as specified in the decision of the Minister for Climate of 16 March 2020, is no greater than the area set in the EIA decision.
247. In respect of the Czech Republic’s second claim, the defendant Member State considers that, as its wording indicates, Article 8a(1)(b) of the EIA Directive defines the minimum requirements for the content of development consent for a project. Because the obligations set out in those articles are general, it is difficult to determine in advance what specific information is information that must be included. It cannot be argued that the consent at issue infringes that article because it does not stipulate in concrete terms how it will be possible to apply the particular conditions with respect to a given timescale. The detailed information about the various stages of the works based on the progress of the mining activity will be the subject of subsequent findings, strictly linked to the organisation of the mining operations and the means used to perform them, and will be reflected in the operating plan for the mine, a technical document governed by Articles 108 to 111 of the mining code.
248. For the reasons set out in the replies to other pleas, the Republic of Poland considers the eleventh plea to be devoid of purpose.
2.      Assessment
249. By its eleventh plea in law, the Czech Republic alleges that, by failing to take all the environmental requirements into account in the decision granting consent for mining activities until 2026, the Republic of Poland failed to fulfil its obligations under Article 8a(1) of the EIA Directive.
250. That plea is based on two claims. First, the Czech Republic is of the view that some of the information required in respect of the project covered by that 2026 decision was not examined either in that decision or in the EIA decision, and it categorises the extraction area as an essential environmental condition which fundamentally influences the environmental impact of the project. Secondly, according to the Czech Republic, the EIA decision does not specify in concrete terms how particular conditions, relating to a much larger project, can be applied, in view of the fact that its period of operation is 18 years longer and given its commensurate value and mining area.
251. Article 8a(1) of the EIA Directive lays down the minimum requirements for the content of development consent, primarily as regards the conclusions of the assessment of a project’s environmental impact and the environmental conditions for its implementation. According to Article 8a(3) of the EIA Directive, among other provisions, that required content may also be provided at the time of a different decision adopted as part of what is referred to as a decision-making procedure for the purposes of Article 2(2) of the EIA Directive. Under Article 8a(1)(b) of the EIA Directive, that required content also includes any environmental conditions attached to the decision, a description of any features of the project and/or measures envisaged to avoid, prevent or reduce and, if possible, offset significant adverse effects on the environment as well as, where appropriate, monitoring measures.
252. As regards the first allegation, to the effect that the Polish authorities omitted to define the mining area in the text of the concession for mining until 2026, this is to my mind merely a restatement of the tenth plea. I therefore take the liberty of referring to the observations I made when examining that plea in point 240 of this Opinion. As I have already set out in detail, the development consent, as an administrative decision, does not depart from the stipulations of the EIA decision as regards the mining period envisaged and the geographical area concerned. That claim should therefore be dismissed.
253. In respect of the second claim, alleging that Article 8a(1)(b) of the EIA Directive was applied incorrectly because the concession for mining until 2026 did not specify the conditions set out in the EIA decision in relation to the project for which consent was granted, it should be noted that, although that article lays down minimum (‘at least’) requirements for the information to be provided about the project for which consent is granted, it expresses the obligation to incorporate that information in the consent only in rather general terms (‘the decision to grant development consent shall incorporate’), therefore giving the competent authorities a certain degree of leeway. As can be seen from the actual wording of that article (‘attached’), the obligation to incorporate is also applicable to any environmental conditions underpinning the decision to grant development consent.
254. That seems to me to be the right approach given the diversity of the projects that can be covered by the EIA Directive. I therefore believe it makes sense to interpret that article as meaning that there is no requirement whatsoever for the information at issue to appear in a specific document or, a fortiori, in the principal document forming part of the development consent for the project. Since this is generally highly technical information, it may be necessary to set it out in a document specifically for that purpose, to be attached to the consent. All the documents that formed the basis of the administrative decision made by the competent authorities and incorporated as described above therefore comprise the ‘development consent’ within the meaning of Article 8a(1) of the EIA Directive.
255. It seems to me that that is exactly what the Republic of Poland did in the present case. On the one hand, there is the EIA decision, which was attached to the request for development consent and with which, under Polish legislation, the operator of the Turów mine is obliged to comply in relation to its mining activities. The EIA decision precisely defines the project area and sets the conditions for its implementation. On the other hand, there is the operating plan for the mine, to which the Republic of Poland refers, which stipulates the organisation and means to be used to perform the extraction operations. As the Republic of Poland explains, that plan is a technical document which defines in detail the operating arrangements for the mine, including the mining of the seam, and for the project which is necessary, inter alia, to ensure overall safety and protection of
the environment and the rational mining of the seam.
256. The Czech Republic also asserts that owing to the approach taken by the Polish authorities it is impossible to determine how the conditions referred to above will be implemented continuously as part of a project whose implementation period is 18 years shorter. Contrary to the Czech Republic’s contention, I fail to see how the fact that the EIA decision establishes a longer period of implementation than the consent for the project itself conflicts with the requirements of Article 8a(1)(b) of the EIA Directive. That article, which is in fact worded rather generally, does not in my view necessarily create an obligation to submit a plan specifying in the smallest detail how the mining activities will progress and in particular exactly how the environmental conditions defined are to be implemented. In contrast, I am of the view that the progress of the activities can, in principle, be predicted for the period of validity on the basis of the EIA decision since under Polish law the operator is obliged to comply with the environmental conditions imposed on it by that administrative act.
257. Moreover, I confess that I am inclined to agree with the point of view expressed by the Republic of Poland as regards the rather vague allegations made by the Czech Republic under that plea. In the absence of more precise grounds for the alleged infringements, it seems to me that the eleventh plea should be rejected as unfounded.
M.      Summary of the analysis
258. After analysing the action, I have concluded that the first, sixth, eighth and ninth pleas in law should be considered to be well founded. The action should be dismissed as unfounded as to the remainder.
VI.    Costs
259. Pursuant to Article 138(1) of the Rules of Procedure of the Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 138(3) of those rules, where each party succeeds on some and fails on other heads, the parties are to bear their own costs. In the present case, since the Czech Republic and the Republic of Poland have each been unsuccessful in respect of certain pleas in law, they must each bear their own costs.
260. Under Article 140(1) of the Rules of Procedure, according to which the institutions which have intervened in the proceedings are to bear their own costs, the Commission is to bear its own costs.
VII. Conclusions
261. In the light of the foregoing considerations, I propose that the Court should rule as follows:
(1)      By adopting legislation under which the competent administrative authorities may extend the development consent for the extraction of lignite by six years without conducting an environmental impact assessment, the Republic of Poland infringed Article 4(1) and (2) of 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, as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014, read in conjunction with Article 4(4) to (6), Article 5(1) and (2) and Articles 6 to 9 of that directive.
(2)      By failing to publish the content of the decision granting consent for mining activities until 2026 and the conditions annexed to that decision or the reasons or considerations on which that consent was based, and forwarding that consent to the Czech Republic only after five months and moreover incompletely, the Republic of Poland infringed Article 9(1) and (2) of Directive 2011/92, as amended by Directive 2014/52.
(3)      By failing to make public the content of the development consent for mining activities until 2026 or the place where it could be requested, the Republic of Poland infringed Article 7 of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC.
(4)      By failing to provide full information about the procedure for adopting the decision granting consent for mining activities until 2026, the Republic of Poland failed to fulfil its obligations under the principle of sincere cooperation enshrined in Article 4(3) TEU.
(5)      The action is dismissed as to the remainder.
(6)      The Czech Republic, the Republic of Poland and the European Commission are to bear their own costs.
1      Original language: French.
2      International environmental case-law has long been rather sparse. The 1893 Pribilof Islands fur seals case, followed by the 1941 Trail Smelter case, or, as a further example, the Lake Lanoux case in 1956, laid the foundations of international environmental law, in particular in relation to transboundary pollution and shared natural resources. In recent years, in contrast, litigation has increased considerably. In the 1997 case concerning the Gabčikovo-Nagymaros dam on the Danube, the environment for the first time played a key role in a dispute brought before the International Court of Justice in The Hague. That case gave its judges an opportunity to set out a number of fundamental principles of international environmental law, including the principle of the obligation to prevent environmental damage in other States, the principle of cooperation and the need for a developing interpretation of treaty rules. The environment also played a key role in the Pulp Mills on the River Uruguay (Argentina v. Uruguay) case in 2010. The cases Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica) also had a strong environmental component. This quantitative increase in the case-law has arisen primarily from the intensification of States’ environmental obligations.
3      Directive of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (OJ 2000 L 327, p. 1).
4      Directive of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (OJ 2003 L 41, p. 26).
5      Directive 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), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘the EIA Directive’).
6      Order of the Vice-President of the Court of 21 May 2021, Czech Republic v Poland (C‑121/21 R, EU:C:2021:420).
7      Order of the Vice-President of the Court of 20 September 2021, Czech Republic v Poland (C‑121/21 R, EU:C:2021:752).
8      See judgments of 6 December 2007, Commission v Germany (C‑456/05, EU:C:2007:755, paragraph 25), and of 16 October 2012, Hungary v Slovakia (C‑364/10, EU:C:2012:630, paragraph 67), for the two forms of the procedure under Articles 258 and 259 TFEU. See also my Opinion in Slovenia v Croatia (C‑457/18, EU:C:2019:1067, point 99).
9      The principle of the primacy of EU law, which establishes the pre-eminence of EU law over the law of the Member States, requires all Member State bodies to give full effect to the various EU provisions, and the law of the Member States may not undermine the effect accorded to those various provisions in the territory of those States (see, to that effect, judgments of 4 December 2018, Minister for Justice and Equality and Commissioner of An Garda Síochána, C‑378/17, EU:C:2018:979, paragraphs 35 to 38, and of 24 June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraphs 53 and 54).
10      See, to that effect, Butler, G., ‘The Court of Justice as an Inter-State Court’, Yearbook of European Law, Vol. 36. No 1, 2017, p. 189.
11      See judgments of 11 July 2013, Commission v Czech Republic (C‑545/10, EU:C:2013:509, paragraph 108); of 23 February 2016, Commission v Hungary (C‑179/14, EU:C:2016:108, paragraph 141); of 22 September 2016, Commission v Czech Republic (C‑525/14, EU:C:2016:714, paragraph 16); of 19 September 2017, Commission v Ireland (Registration tax) (C‑552/15, EU:C:2017:698, paragraph 38); of 31 October 2019, Commission v Netherlands (C‑395/17, EU:C:2019:918, paragraph 52); and of 28 May 2020, Commission v Bulgaria (Railway investigation body) (C‑33/19, not published, EU:C:2020:405, paragraph 82).
12      See judgments of 26 April 2005, Commission v Ireland (C‑494/01, EU:C:2005:250, paragraph 44); of 28 March 2019, Commission v Ireland (System for collecting and treating waste water) (C‑427/17, not published, EU:C:2019:269, paragraph 39); and of 17 December 2020, Commission v Hungary (Reception of applicants for international protection) (C‑808/18, EU:C:2020:1029, paragraph 112).
13      See, in that regard, Burgi, M., Handbuch des Rechtsschutzes in der Europäischen Union, Rengeling, H.-W, Middeke, A. and Gellermann, M. (eds), Munich, 2014, paragraph 27; Frenz, W., Handbuch Europarecht, Vol. 5, Berlin, 2010, paragraph 2685; Karpenstein, U., ‘Article 259 TFEU’, Das Recht der Europäischen Union, Grabitz, E., Hilf, M. and Nettesheim, M. (eds), Munich, 2019, paragraph 9; Pechstein, M., EU-Prozessrecht, Mohr Siebeck, Tubingue, 2011, paragraph 312; Schwarze, J.,
‘Article 259 TFUE’, EU-Kommentar, Nomos, Baden-Baden, 2019,
paragraph 4; and Thiele, A., Europaïsches
Prozessrecht,
C. H.
Beck, Munich, 2014, § 5, paragraph 29.
14      See, to that effect, Burgi, M., Handbuch des Rechtsschutzes in der Europäischen Union, Rengeling, H.-W, Middeke, A. and Gellermann, M. (eds), Munich, 2014, paragraphs 27 and 28; Frenz, W., Handbuch Europarecht, Vol. 5, Berlin, 2010, paragraph 2684; Kotzur, M., ‘Article 259 TFUE’, EUV/AEUV, Geiger, R., Khan, D.-E, and Kotzur, M. (eds), Munich, paragraph 5; Pechstein, M., EU-Prozessrecht, paragraphs 313 and 314; and Schwarze, J., ‘Article 259 TFUE’, EU-Kommentar, Nomos, Baden-Baden, 2019, paragraph 5.
15      As regards a legislative amendment, see judgment of 4 March 2010, Commission v France (C‑241/08, EU:C:2010:114, paragraphs 12 and 13); for amendment of an administrative act, see judgment of 18 May 2006, Commission v Spain (C‑221/04, EU:C:2006:329, paragraphs 28 and 29).
16      Judgment of 29 July 2019  (C‑411/17, EU:C:2019:622).
17      Judgment of 29 July 2019, Inter-Environnement Wallonie and Bond Beter Leefmilieu Vlaanderen (C‑411/17, EU:C:2019:622, paragraph 79).
18      See, in that regard, Messerschmidt, K., Europäisches Umweltrecht, C.H. Beck, Munich, 2011, p. 535, paragraph 53; Arabadjieva, K., ‘Vagueness and Discretion in the Scope of the EIA Directive’, Journal of Environmental Law, Vol. 29, No 3, 2017, pp. 417 and 425.
19      See judgments of 24 October 1996, Kraaijeveld and Others (C‑72/95, EU:C:1996:404, paragraph 50); of 4 May 2006, Commission v United Kingdom (C‑508/03, EU:C:2006:287, paragraph 88); of 28 February 2008, Abraham and Others (C‑2/07, EU:C:2008:133, paragraph 37); of 20 November 2008, Commission v Ireland (C‑66/06, not published, EU:C:2008:637, paragraph 61); of 21 March 2013, Salzburger Flughafen (C‑244/12, EU:C:2013:203, paragraphs 29 and 30); and of 11 February 2015, Marktgemeinde Straßwalchen and Others (C‑531/13, EU:C:2015:79, paragraphs 40 and 41).
20      See judgment of 16 September 1999, WWF and Others (C‑435/97, EU:C:1999:418, paragraphs 44 and 45).
21      See judgment of 2 May 1996, Commission v Belgium (C‑133/94, EU:C:1996:181, paragraphs 42 and 43).
22      See point 52 of this Opinion.
23      See judgment of 4 May 2006, Barker (C‑290/03, EU:C:2006:286, paragraph 47).
24      See judgment of 4 May 2006, Commission v United Kingdom (C‑508/03, EU:C:2006:287, paragraph 104).
25      See judgment of 28 February 2008, Abraham and Others (C‑2/07, EU:C:2008:133, paragraph 26).
26      Judgment of 29 July 2019, Inter-Environnement Wallonie and Bond Beter Leefmilieu Vlaanderen (C‑411/17, EU:C:2019:622, paragraph 83).
27      Judgment of 7 November 2019, Flausch and Others (C‑280/18, EU:C:2019:928, paragraphs 46 to 49). I would point out that the Court took a more restrictive approach than Advocate General Kokott who, in her Opinion delivered in the same case, stated that ‘restricting the action provided for in Article 11 of the EIA Directive to matters of public participation, without prejudice to the legality of consent, would render it meaningless and ineffective’. (EU:C:2019:449, point 115. Emphasis added). Article 11(1) of the EIA Directive in fact refers explicitly to the opportunity for members of the public concerned to ‘have access to a review procedure … to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive’, and therefore, prima facie, precludes Article 11 of the EIA Directive from being relied upon to seek judicial review of development consent on grounds other than an infringement of the right to public participation (emphasis added).
28      The Republic of Poland refers to Article 31(1) and (3) of the ustawa z dnia 14 czerwca 1960 r. – Kodeks postępowania administracyjnego (Law on the Code of Administrative Procedure), of 14 June 1960 (Dz.
U. of 2020, item 256), as amended (‘Code of Administrative Procedure’), and Article 50(1) of the ustawa z dnia 30 sierpnia 2002 r. – Prawo o postępowaniu przed sądami administracyjnymi (Law on proceedings before administrative courts), of 30 August 2002 (Dz.
U. of 2019, item
2325), as amended.
29      Judgment of 15 January 2013, Križan and Others (C‑416/10, EU:C:2013:8, paragraph 110).
30      See judgments of 1 July 2015, Bund für Umwelt und Naturschutz Deutschland (C‑461/13, EU:C:2015:433, paragraph 34), and of 24 June 2021, Commission v Spain (Deterioration of the Doñana natural area) (C‑559/19, EU:C:2021:512, paragraph 35).
31      See judgment of 28 May 2020, Land Nordrhein-Westfalen (C‑535/18, EU:C:2020:391, paragraphs 81, 84 and 85).
32      Judgment of 28 May 2020 (C‑535/18, EU:C:2020:391, paragraph 75).
33      See, in that respect, Report from the Commission to the European Parliament and the Council on the Implementation of the Water Framework Directive (2000/60/EC) River Basin Management Plans of 14 November 2012, COM(2012)
670 final, p. 7, from which it can be seen that Directive 2000/60 ‘recognises that the achievement of good status might take more time in some water bodies. For this reason, it allows Member States to rely on an exemption on the basis of the natural conditions of the water body, and to extend the deadline up to 2027 or beyond’. According to that report, where exemptions are applied, Directive 2000/60 ‘requires Member States to justify and explain the reasons in the [river basin management plans]. This means explaining on what basis the evaluations of natural conditions, disproportionate costs and/or technical infeasibility have been made and how to move towards the objective of good status. This justification is key for the transparency and accountability of decision making’ (emphasis added).
34      For the various types of exemption under Directive 2000/60 which must be indicated and explained in the river basin management plan, see Quevauviller, P., Protection des eaux souterraines :
législation européenne et avancées scientifiques, Lavoisier, Paris, 2010, p. 63.
35      See point 52 of this Opinion.
36      See judgment of 7 November 2019, Flausch and Others
(C‑280/18, EU:C:2019:928, paragraph 46), in which the Court interpreted Article 11 of the EIA Directive as meaning that ‘its scope is limited to the aspects of a dispute which concern the right of the public concerned to participate in decision-making in accordance with the detailed rules laid down by that directive. On the other hand, challenges based on any other rules set out in that directive and, a fortiori, on any other legislation, whether of the European Union or the Member States, do not fall within that article’ (emphasis added), and point 104 of this Opinion.
37      See point 108 of this Opinion.
38      See point 148 of this Opinion.
39      See point 97 of this Opinion.
40      It can be seen from the EIA decision that the Turów mine has environmental effects on the territory of three Member States: the Republic of Poland, the Czech Republic and the Federal Republic of Germany.
41      Judgment of 7 November 2019, Flausch and Others (C‑280/18, EU:C:2019:928, paragraphs 50 and 51).
42      See point 52 of this Opinion.
43      Judgments of 15 March 2018, North East Pylon Pressure Campaign and Sheehy (C‑470/16, EU:C:2018:185, paragraphs 36 and 39), and of 7 November 2019, Flausch and Others (C‑280/18, EU:C:2019:928, paragraph 46). See also points 104 and 150 of this Opinion.
44      See point 105 of this Opinion.
45      See points 163 to 178 of this Opinion.
46      See point 69 of this Opinion.
47      See, in that respect, Opinion of Advocate General Sharpston in East Sussex County Council (C‑71/14, EU:C:2015:234, point 52).
48      Judgments of 28 July 2011, Office of Communications (C‑71/10, EU:C:2011:525, paragraph 22), and of 20 January 2021, Land Baden-Württemberg (Internal communications) (C‑619/19, EU:C:2021:35, paragraph 33).
49      See point 172 of this Opinion.
50      See point 170 of this Opinion.
51      See point 200 et seq. of this Opinion.
52      See point 52 of this Opinion.
53      See points 62 to 67 of this Opinion.