Judgment of the Court of 9 August 1994. - Bund Naturschutz in Bayern e.V. and Richard Stahnsdorf and others v Freistaat Bayern, Stadt Vilsbiburg and Landkreis Landshut. - Reference for a preliminary ruling: Bayerischer Verwaltungsgerichtshof - Germany. - Council Directive 85/337/EEC - National transitional rules. - Case C-396/92.



European Court reports 1994 Page I-03717



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

++++

Environment ° Assessment of the effects of certain projects on the environment ° Directive 85/337 ° Belated national implementing measures waiving the obligation to carry out an assessment in respect of consent procedures initiated before the measures came into force but after the expiry of the deadline for transposition ° Not permissible

(Council Directive 85/337, Art. 12(1))

Summary

Article 12(1) of Directive 85/337 on the assessment of the effects of certain public and private projects on the environment must be interpreted as not permitting a Member State which has transposed the directive into national law after 3 July 1988, the deadline for transposition, to waive, by a transitional provision, for projects in respect of which the consent procedure was already initiated before the entry into force of the national law transposing the directive, but after 3 July 1988, the obligations concerning the environmental impact assessment required by the directive.

Parties

In Case C-396/92,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Bayerischer Verwaltungsgerichtshof for a preliminary ruling in the proceedings pending before that court between

Bund Naturschutz in Bayern eV,

Richard Stahnsdorf and 40 Others

and

Freistaat Bayern,

Interveners:

Stadt Vilsbiburg,

Landkreis Landshut

on the interpretation of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40),

THE COURT,

composed of: O. Due, President, G.F. Mancini, J.C. Moitinho de Almeida, M. Diez de Velasco and D.A.O. Edward (Presidents of Chambers), C.N. Kakouris (Rapporteur), R. Joliet, F.A. Schockweiler, G.C. Rodríguez Iglesias, F. Grévisse, M. Zuleeg, P.J.G. Kapteyn and J.L. Murray, Judges,

Advocate General: C. Gulmann,

Registrar: H.A. Ruehl, Principal Administrator,

after considering the written observations submitted on behalf of:

° Bund Naturschutz in Bayern eV, by U. Kaltenegger, Rechtsanwalt, Landshut,

° plaintiffs 5 to 41 in the main proceedings, J. Birnkammer and Others, by E. Schoenefelder, Rechtsanwalt, Munich,

° Freistaat Bayern, by M.A. Dauses, Professor at the University of Bamberg,

° Stadt Vilsbiburg, by P. Barteit, Mayor,

° the Federal Republic of Germany, by E. Roeder, Ministerialrat at the Federal Ministry of the Economy, and Claus-Dieter Quassowski, Regierungsdirektor at the same Ministry, acting as Agents,

° the Kingdom of the Netherlands, by A. Bos, Legal Adviser at the Ministry of Foreign Affairs, acting as Agent,

° the United Kingdom, by S. Cochrane, Treasury Solicitor, acting as Agent, and Derrick Wyatt, Barrister,

° the Commission of the European Communities, by R. Waegenbaur, Principal Legal Adviser, acting as Agent, and A. Boehlke, of the Brussels Bar,

having regard to the Report for the Hearing,

after hearing the oral observations of Bund Naturschutz in Bayern eV, J. Birnkammer and Others, Freistaat Bayern, Stadt Vilsbiburg, represented by P. Barteit and G. Nord, Deputy Mayor, the German Government and the United Kingdom, represented by S.L. Hudson, Assistant Treasury Solicitor, and D. Wyatt QC, and the Commission at the hearing on 22 March 1994,

after hearing the Opinion of the Advocate General at the sitting on 3 May 1994,

gives the following

Judgment

Grounds

1 By order of 5 November 1992, received at the Court Registry on 18 November 1992, the Bayerischer Verwaltungsgerichtshof (Bavarian Higher Regional Administrative Court) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty three questions on the interpretation of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40, hereinafter "the directive").

2 The questions were raised in the course of proceedings between the Bund Naturschutz in Bayern eV, an ecological organization, with 41 other plaintiffs, mainly farmers, and Freistaat Bayern (Federal State of Bavaria) concerning the conformity with the requirements laid down in the directive of the consent procedure for construction plans for two sections of the new B 15 federal highway in Bavaria.

3 The directive was adopted on the basis of Articles 100 and 235 of the EEC Treaty. According to the first recital in its preamble, action programmes of the European Communities on the environment "... affirm the need to take effects on the environment into account at the earliest possible stage in all the technical planning and decision-making processes ..." and, according to the eighth recital, "... projects belonging to certain types have significant effects on the environment and ... must as a rule be subject to systematic assessment".

4 Article 1 of the directive states:

"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:

' 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;

° ..."

5 Article 2(1) of the directive provides that "Member States shall adopt all measures necessary to ensure that, before 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 an assessment with regard to their effects. Those projects are defined in Article 4."

6 Under Article 2(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" and, pursuant to Article 2(3), "Member States may, in exceptional cases, exempt a specific project in whole or in part from the provisions laid down in this Directive". In such cases the Member States must, however, under the same article, consider whether another form of assessment would be appropriate and inform the Commission of the reasons justifying the exemption granted.

7 Article 4(1) of the directive provides: "Subject to Article 2(3), projects of the classes listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10". Annex I refers in Point 7 inter alia to the construction of motorways and express roads.

8 Articles 5 to 10 concern in particular the necessary measures to be adopted by the Member States to ensure that the developer supplies certain information, that the national authorities and also other Member States likely to be concerned by the project in question are consulted and that the public is kept informed. In that last respect, Article 6(2) provides more particularly that the Member States are to ensure that any request for development consent and the information supplied by the developer are made available to the public, who must be given the possibility of expressing an opinion.

9 In accordance with Article 12(1) of the directive, the Member States are to take the measures necessary to comply therewith within three years of its notification. Since the directive was notified to the Member States on 3 July 1985, that time-limit expired on 3 July 1988.

10 The file shows that in the Federal Republic of Germany the directive was belatedly transposed by a Law of 12 February 1990, which came into force on 1 August 1990 (BGBl 1990 I, p. 205). Article 1 of that transposition law contains the Gesetz ueber die Umweltvertraeglichkeitspruefung (Environmental Impact Assessment Law, the "UVPG"). Paragraph 22(1) of the UVPG laid down transitional rules under which procedures already initiated were to be completed in accordance with the provisions of the UVPG where the project had not yet been notified to the public when the UVPG came into force.

11 Provision was thus made for exemptions from the requirements laid down in the directive for pending consent procedures for which the relevant project had already been notified to the public when the UVPG came into force on 1 August 1990.

12 The dispute in the main proceedings concerns the construction of two sections of the new B 15 federal highway in Bavaria, a road of some 130 km, the plans and routing for which were decided many years ago. The first section at issue is from Geisenhausen to Haarbach and is 6.9 km in length; the second, known as the "Vilstal link" and approximately 3 km in length, is to join the new B 15 highway to the B 388 by-passing Vilsbiburg.

13 It appears from the order for reference that the Bavarian Highways Department, the developer of the road construction project, lodged consent applications for the plans of the two sections on 7 September 1988 and 9 November 1989, that is to say after 3 July 1988, the deadline for transposition of the directive, and prior to 1 August 1990, the date on which the transposition law came into force. The plans were made available to the public at the end of 1989. By two decisions of 16 December 1991 the Government of Lower Bavaria approved the projects. Pursuant to Paragraph 22(1) of the UVPG no environmental impact assessment was carried out as required by the directive.

14 The Bund Naturschutz in Bayern eV and 41 other plaintiffs brought actions for the annulment of the two consent decisions referred to above before the Bayerischer Verwaltungsgerichtshof. The plaintiffs maintained that the directive, which was transposed belatedly in the Federal Republic of Germany, did not permit the adoption of national transitional rules such as those in Paragraph 22(1) of the UVPG.

15 Since it had doubts as to whether the transitional rules in question complied with the requirements of the directive, the national court suspended proceedings and referred the following questions to the Court for a preliminary ruling:

"1. Is Article 12 of the directive to be interpreted as meaning that

(a) the Member States were under an obligation to take by 3 July 1988 the measures necessary to ensure that all public projects which fell within the ambit of the directive and for which development consent was granted for the first time after that date were in accordance with the requirements of the directive,

or

(b) the Member States had to adopt the necessary measures by 3 July 1988 but were not prevented from enacting transitional provisions for development consent procedures already initiated?

2. If Question 1 is to be answered as indicated under (b) above:

Is Article 12 of the directive to be interpreted as meaning that

(a) the relevant date for transitional provisions must be 3 July 1988,

or

(b) the Member States may in the case of transitional provisions take as the relevant date that of the later entry into force of their national measures for the transposition of the directive?

3. If Question 2 is to be answered as indicated under 2(b) above:

Is the concept of 'project' in Articles 1, 3 and 4 of and Annex I, point 7, to the directive to be understood as meaning, in its application to motorways and express roads, that the environmental impact

(a) is to be assessed solely for the section of a road link for which development consent has been sought,

or

(b) in addition to the area covered by that section, for the road link as a whole?"

Questions 1 and 2

16 As indicated in paragraph 13 above, it is clear from the order for reference that the procedure which resulted in the two consent decisions at issue in the main proceedings was initiated after 3 July 1988, the deadline for transposition of the directive. The first two questions must therefore be examined in the light of that fact.

17 The national court is asking essentially whether Article 12(1) of the directive should be interpreted as permitting a Member State which has transposed the directive into national law after 3 July 1988, the deadline for transposition, to waive, by a transitional provision, for projects in respect of which the consent procedure was initiated before the entry into force of the national law transposing the directive, but after 3 July 1988, the obligations concerning environmental impact assessment required under the directive.

18 It must be pointed out in this connection that there is nothing in the directive which could be construed as authorizing the Member States to exempt projects in respect of which the consent procedures were initiated after the deadline of 3 July 1988 from the obligation to carry out an environmental impact assessment. On the contrary, all the provisions in the directive were formulated on the basis that it was to be transposed into the legal systems of the Member States by 3 July 1988 at the latest.

19 Accordingly, regardless whether the directive permits a Member State to introduce transitional rules for consent procedures already initiated and in progress before the deadline of 3 July 1988, the directive in any case precludes the introduction in respect of procedures initiated after that date of rules such as those at issue in the main proceedings by a national law which, in breach of the directive, transposes it belatedly into the domestic legal system. Such an interpretation would result in an extension of the deadline of 3 July 1988 and would be contrary to the obligations under the directive.

20 The reply to the first two questions referred to the Court must therefore be that Article 12(1) of the directive must be interpreted as not permitting a Member State which has transposed the directive into national law after 3 July 1988, the deadline for transposition, to waive, by a transitional provision, for projects in respect of which the consent procedure was already initiated before the entry into force of the national law transposing the directive, but after 3 July 1988, the obligations concerning the environmental impact assessment required by the directive.

Question 3

21 The third question was asked solely in case the reply to the first two questions was contrary to that given above. Since the Court did not so reply, there is no need to answer the third question.

Decision on costs

Costs

22 The costs incurred by the United Kingdom, the Governments of the Federal Republic of Germany and the Netherlands and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

Operative part

On those grounds,

THE COURT,

in answer to the questions referred to it by the Bayerischer Verwaltungsgerichtshof, by order of 5 November 1992, hereby rules:

Article 12(1) of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment must be interpreted as not permitting a Member State which has transposed the directive into national law after 3 July 1988, the deadline for transposition, to waive, by a transitional provision, for projects in respect of which the consent procedure was already initiated before the entry into force of the national law transposing the directive, but after 3 July 1988, the obligations concerning the environmental impact assessment required by the directive.