Keywords

Summary



Keywords

1. Environment – Assessment of the effects of certain projects on the environment – Directive 85/337

(Council Directive 85/337, as amended by Directive 97/11, Arts 1(2), 2(1) and 4(1) and (2), and Annexes I and II)

2. Environment – Assessment of the effects of certain projects on the environment – Directive 85/337

(Council Directive 85/337, as amended by Directive 97/11, Arts 2(1) and 4(1) and (2))

3. Environment – Assessment of the effects of certain projects on the environment – Directive 85/337

(Council Directive 85/337, Arts 2, 4 and 5 to 10 and Annex II, points 2(a) and (c), and 10(d))

4. Environment – Assessment of the effects of certain projects on the environment – Directive 85/337

(Council Directive 85/337, as amended by Directive 97/11, Arts 2, 4 and 5 to 10 and Annexes II, points 3(i), and 13, and III)

Summary

1. Given that the wording regarding the developer’s acquisition of entitlement to proceed with the project, further to the obtaining of development consent from the competent authority under Article 1(2) of Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 97/11, is entirely unambiguous, Article 2(1) of that directive must necessarily be understood as meaning that, unless the applicant has applied for and obtained the required development consent and has first carried out the environmental impact assessment when it is required, he cannot commence the works relating to the project in question, if the requirements of the directive are not to be disregarded.

That analysis is valid for all projects within the scope of that directive, whether they fall under Annex I and must therefore systematically be subject to an assessment pursuant to Articles 2(1) and 4(1), or whether they fall under Annex II of that directive and as such, and in accordance with Article 4(2), are subject to an impact assessment only if, in the light of thresholds or criteria set by the Member State and/or on the basis of a case‑by‑case examination, they are likely to have significant effects on the environment.

A literal analysis of that kind of Article 2(1) is moreover consonant with the objective pursued by that directive, set out in particular in recital 5 of the preamble to Directive 97/11, according to which ‘projects for which an assessment is required should be subject to a requirement for development consent [and] the assessment should be carried out before such consent is granted’.

(see paras 50-53)

2. A Member State fails to fulfil its obligations under Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 97/11, which after the event gives to retention permission, which can be issued even where no exceptional circumstances are proved, the same effects as those attached to a planning permission preceding the carrying out of works and development, when, pursuant to Articles 2(1) and 4(1) and (2) of that directive, projects for which an environmental impact assessment is required must be identified and then – before the grant of development consent and, therefore, necessarily before they are carried out – must be subject to an application for development consent and to such an assessment.

While Community law cannot preclude the applicable national rules from allowing, in certain cases, the regularisation of operations or measures which are unlawful in the light of Community law, such a possibility should be subject to the condition that it does not offer the persons concerned the opportunity to circumvent the Community rules or to dispense with applying them, and that it should remain the exception.

A system of after-the-event regularisation may have the effect of encouraging developers to forgo ascertaining whether intended projects satisfy the criteria of Article 2(1) of that directive, and consequently, not to undertake the action required for identification of the effects of those projects on the environment and for their prior assessment. The first recital of the preamble to Directive 85/337, however, states that it is necessary 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 subsequently trying to counteract their effects.

(see paras 57-58, 61)

3. A Member State fails to fulfil its obligations under Articles 2, 4 and 5 to 10 of Directive 85/337 on the assessment of the effects of certain public and private projects on the environment if it has failed to take all measures necessary to ensure that the grant of development consents relating to the first two phases of construction of a wind farm was preceded by an environmental impact assessment in conformity with Articles 5 to 10 of Directive 85/337 and which merely attached to the applications for consent environmental impact statements which did not satisfy those requirements.

In that regard, while installations for the harnessing of wind power for energy production are not listed in either Annex I or Annex II to Directive 85/337, the first two phases of construction of the wind farm required a number of works, including the extraction of peat and of minerals other than metalliferous and energy-producing minerals, and also road construction, which works are listed in Annex II to that directive, respectively in point 2(a) and (c) and in point 10(d). The fact that the projects falling under Annex II to that directive may be of secondary importance vis-à-vis the wind farm construction project taken as a whole does not mean that, by virtue of that fact alone, those projects are not likely to have significant effects on the environment. The purpose of carrying out an environmental impact assessment in conformity with the requirements of Directive 85/337 is to identify, describe and assess in an appropriate manner the direct and indirect effects of a project on factors such as fauna and flora, soil and water and the interaction of those factors.

(see paras 96, 101, 104-105, 112, operative part)

4. A Member State fails to fulfil its obligations under Articles 2, 4 and 5 to 10 of Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 97/11, if it has failed to take all measures necessary to ensure that the grant of the amending consents and the consent relating to the third phase of construction of a wind farm was preceded by an assessment of their effects on the environment, and which merely attached to the applications for consent environmental impact statements which did not satisfy those requirements.

Point 3(i) of Annex II to that directive refers to installations for the harnessing of wind power for energy production (wind farms) and point 13 of that annex refers to any change or extension of projects listed in Annex II, already authorised, executed or in the process of being executed, which may have significant adverse effects on the environment.

In addition, the relevant selection criteria in Annex III to that directive, which are applicable to the projects listed in Annex II to that directive and are referred to in Article 4(3) of that directive, include the risk of accidents having regard inter alia to the technologies used. Noteworthy among those criteria is the environmental sensitivity of the geographical area, which must be considered having regard, inter alia, to ‘the absorption capacity of the natural environment’, paying particular attention to mountain and forest areas.

(see paras 108-109, 111-112, operative part)