Keywords

Summary



Keywords

1. Environment - Assessment of the effects of certain projects on the environment - Directive 85/337 - Assessment requirement in respect of projects in the classes listed in Annex II - Discretion of Member States - Limits - Failure to take into account the criteria and/or thresholds relating to the size and nature of projects - Failure to fulfil obligations

(Council Directive 85/337, Arts 2(1) and 4(2))

2. Actions for failure to fulfil obligations - Proof of infringement - Burden of proof on the Commission - Answer to the charge by the Member State - Presentation of a table at the hearing - Court not obliged to enquire into implementing provisions

(Art. 10 EC)

Summary

$$1. Article 4(2) of Directive 85/337 on the assessment of effects of certain public and private projects on the environment does not empower the Member States to exclude generally and definitively from the obligation of assessment one or more classes of projects mentioned in Annex II, since the concept of classes of projects must be understood to mean not the 12 main categories in Annex II, but the subdivisions of those categories, each preceded by a letter of the alphabet. By contrast, Member States may establish the criteria and/or thresholds necessary to determine which of the projects covered by Annex II are to be subject to an assessment. When establishing those thresholds and/or criteria, Member States must take account not only of the size of projects, but also of their nature and location. More generally, national provisions of a general or sectoral nature which require the assessment of the environmental impact of certain types of projects must satisfy the requirements set out in Article 3 of the Directive, as well as the procedural rules in Articles 5 to 9 of the Directive which concern, inter alia, public information.

The choice of such a criterion, under a national provision, based on the location of the projects within limited and, moreover, essentially rural areas of the national territory, has the effect of relieving of the obligation of assessment a considerable number of projects situated outside those areas which are likely to have significant effects on the environment. Such a choice, which precludes generally the taking into account of criteria and/or thresholds relating to the size and nature of projects, exceeds the limits of the Member States' discretion under Articles 2(1) and 4(2) of the Directive.

( see paras 30-32, 36 )

2. In order to facilitate consideration of the state of transposition of Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, at the hearing the Government of the Member State in question communicated to the Commission and the Court a table which indicates, in respect of each autonomous community and each class of projects listed in Annex II, whether the transposition of the Directive has already been carried out or remains to be achieved. However, that table does not refer to any of the provisions which, in respect of each autonomous community and each class of projects, transpose the Directive. An inquiry into those provisions, which the Commission was unable to undertake in due time, given the late communication of the relevant document in disregard of the provisions of Article 10 EC, cannot be carried out by the Court within the framework of an action for failure to fulfil obligations.

( see paras 42-44 )