Marie-Noëlle Solvay and Others v Région wallonne.
Date: 2012-02-16
27. While the Aarhus Convention Implementation Guide may thus be regarded as an explanatory document, capable of being taken into consideration if appropriate among other relevant material for the purpose of interpreting the Convention, the observations in the Guide have no binding force and do not have the normative effect of the provisions of the Aarhus Convention.
28. The answer to Question 1 is therefore that, for the interpretation of Articles 2(2) and 9(4) of the Aarhus Convention, it is permissible to take the Aarhus Convention Implementation Guide into consideration, but that Guide has no binding force and does not have the normative effect of the provisions of the Aarhus Convention.
Question 2
30. It follows from Article 1(5) of Directive 85/337 that, where the objectives of that directive, including that of supplying information, are achieved through a legislative process, the directive does not apply to the project in question (see Case C‑287/98 Linster  [2000] ECR I‑6917, paragraph 51, and Boxus and Others , paragraph 36).
31. That provision lays down two conditions for the exclusion of a project from the scope of Directive 85/337. The first requires the details of the project to be adopted by a specific act of legislation. Under the second, the objectives of the directive, including that of supplying information, must be achieved through the legislative process (see Case C‑435/97 WWF and Others  [1999] ECR I‑5613, paragraph 57, and Boxus and Others , paragraph 37).
32. As regards the first condition, it entails, first, the adoption of the project by a specific act of legislation. It should be observed here that the terms ‘project’ and ‘consent’ are defined in Article 1(2) of Directive 85/337. A legislative act adopting a project must therefore, if it is to come within the scope of Article 1(5) of the directive, be specific and display the same characteristics as a consent of that kind. In particular, it must grant the developer the right to carry out the project (see WWF and Others , paragraph 58, and Boxus and Others , paragraph 38).
33. The project must also be adopted in detail, that is to say, in a sufficiently precise and definitive manner, so that the legislative act adopting the project must include, like a development consent, following their consideration by the legislature, all the elements of the project relevant to the environmental impact assessment (see WWF and Others , paragraph 59, and Boxus and Others , paragraph 39). The legislative act must therefore demonstrate that the objectives of Directive 85/337 have been achieved as regards the project in question (see Linster , paragraph 56, and Boxus and Others , paragraph 39).
34. It follows that the details of a project cannot be considered to be adopted by a legislative act within the meaning of Article 1(5) of Directive 85/337 if that act does not include the elements necessary to assess the environmental impact of the project or if the adoption of other measures is needed in order for the developer to be entitled to carry out the project (see WWF and Others , paragraph 62; Linster , paragraph 57; and Boxus and Others , paragraph 41).
35. As regards the second condition, Article 2(1) of Directive 85/337 shows that the essential objective of the directive is to ensure that 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 of their effects on the environment before consent is given (see Linster , paragraph 52, and Boxus and Others , paragraph 41).
36. In addition, the sixth recital in the preamble to Directive 85/337 states that the assessment must be conducted on the basis of the appropriate information supplied by the developer, which may be supplemented by the authorities and by the people who may be concerned by the project in question (see WWF and Others , paragraph 61; Linster , paragraph 53; and Boxus and Others , paragraph 42).
37. Consequently, the legislature must have sufficient information at its disposal at the time when the project is adopted. It is apparent from Article 5(3) of and Annex IV to Directive 85/337 that the minimum information to be supplied by the developer is to include a description of the project comprising information on the site, design and size of the project, a description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects, and the data required to identify and assess the main effects which the project is likely to have on the environment (see Linster , paragraph 55, and Boxus and Others , paragraph 43).
38. Having regard to the characteristics of procedures for the approval of a plan in more than one phase, Directive 85/337 does not preclude a single project from being approved by two acts of national law which are considered, as a whole, to be a development consent within the meaning of Article 1(2) of the directive (see, to that effect, Case C‑508/03 Commission v United Kingdom [2006] ECR I‑3969, paragraph 102). Consequently, the legislature can, when adopting the final act authorising a project, take advantage of the information gathered during a prior administrative procedure (see Boxus and Others , paragraph 44).
39. The existence of such an administrative procedure cannot, however, have the effect of enabling a project to be regarded as a project the details of which are adopted by a specific legislative act in accordance with Article 1(5) of Directive 85/337 if that legislative act does not fulfil the two conditions set out in paragraph 31 above. As the Court held in Boxus and Others , paragraph 45, a legislative act which does no more than simply ‘ratify’ a pre-existing administrative act, by merely referring to overriding reasons in the public interest without a substantive legislative process enabling those conditions to be fulfilled having first been commenced, cannot be regarded as a specific legislative act within the meaning of that provision and is not therefore sufficient to exclude a project from the scope of Directive 85/337.
40. In particular, a legislative act adopted without the members of the legislative body having had available to them the information mentioned in paragraph 37 above cannot fall within the scope of Article 1(5) of Directive 85/337 (see Boxus and Others , paragraph 46).
41. It is for the national court to determine whether those conditions have been satisfied. For that purpose, it must take account both of the content of the legislative act adopted and of the entire legislative process which led to its adoption, in particular the preparatory documents and parliamentary debates (see Boxus and Others , paragraph 47).
45. It follows from Article 2(2) of the Aarhus Convention, read together with Articles 6 and 9 of the Convention, and from Article 1(5) of Directive 85/337 that neither the Convention nor the directive applies to projects adopted by a legislative act satisfying the conditions set out in paragraph 31 above (see Boxus and Others , paragraph 50).
46. For other projects, that is to say, those adopted either by an act which is not legislative in nature or by a legislative act which does not fulfil those conditions, it follows from the very terms of Article 9(2) of the Aarhus Convention and Article 10a of Directive 85/337 that the Member States must provide for a review procedure before a court of law or another independent and impartial body established by law for challenging the substantive or procedural lawfulness of decisions, acts or omissions subject respectively to Article 6 of the Aarhus Convention or to Directive 85/337 (see Boxus and Others , paragraph 51).
47. The Member States, by virtue of their procedural autonomy and subject to compliance with the principles of equivalence and effectiveness, have a discretion in implementing Article 9(2) of the Aarhus Convention and Article 10a of Directive 85/337. It is for them, in particular, to determine, in so far as the abovementioned provisions are complied with, which court of law or which independent and impartial body established by law is to have jurisdiction in respect of the review procedures referred to in those provisions and what procedural rules are applicable (see Boxus and Others , paragraph 52).
48. Article 9 of the Aarhus Convention and Article 10a of Directive 85/337 would lose all effectiveness, however, if the mere fact that a project is adopted by a legislative act which does not satisfy the conditions set out in paragraph 31 above were to make it immune to any review procedure for challenging its substantive or procedural lawfulness within the meaning of those provisions (see Boxus and Others , paragraph 53).
49. The requirements flowing from Article 9 of the Aarhus Convention and Article 10a of Directive 85/337 presuppose in this regard that, when a project falling within the scope of Article 6 of the Aarhus Convention or of Directive 85/337 is adopted by a legislative act, the question whether that legislative act satisfies the conditions laid down in Article 1(5) of that directive and set out in paragraph 31 above must be amenable to review, under the national procedural rules, by a court of law or an independent and impartial body established by law (see Boxus and Others , paragraph 54).
50. If no review procedure of the nature and scope set out above were available in respect of such an act, any national court before which an action falling within its jurisdiction is brought would have the task of carrying out the review described in the previous paragraph and, as the case may be, drawing the necessary conclusions by disapplying that legislative act (see Boxus and Others , paragraph 55).
51. In the present case, if the referring court finds that the Decree of the Walloon Parliament of 17 July 2008 does not satisfy the conditions laid down in Article 1(5) of Directive 85/337 and set out in paragraph 31 above, and if it turns out that, under the applicable national rules, no court of law or independent and impartial body established by law has jurisdiction to review the substantive or procedural validity of that decree, the decree must then be regarded as incompatible with the requirements flowing from Article 9 of the Aarhus Convention and Article 10a of Directive 85/337. The referring court must then disapply it (see Boxus and Others , paragraph 56).
54. It has been held that Article 4 of Directive 85/337 must be interpreted as not requiring that a decision not to subject a project falling within Annex II to that directive to an assessment should itself contain the reasons for the competent authority’s decision that an assessment was unnecessary; if, however, an interested party so requests, the competent administrative authority is obliged to communicate to him the reasons for the decision or the relevant information and documents in response to the request made (see Case C‑75/08 Mellor  [2009] ECR I‑3799, paragraph 61).
56. Thus, although Article 9(1) of Directive 85/337 requires that the public must be informed, in accordance with the appropriate procedures, of the decision taken by the competent authority and the reasons on which the decision is based, it does not follow that the decision must itself contain the competent authority’s reasons for deciding that it was necessary (see, by analogy, Mellor , paragraph 56).
57. It follows from that provision, however, that third parties, as well as the administrative authorities concerned, must be able to satisfy themselves that the competent authority was aware, in accordance with the rules laid down by national law, that an adequate prior evaluation had been carried out in accordance with the requirements of Directive 85/337 (see Mellor , paragraph 57).
58. Moreover, interested parties, as well as the other national authorities concerned, must be able to ensure, if necessary through legal action, compliance with that obligation of the competent authority as to an evaluation (see Mellor , paragraph 58).
59. In that regard, effective judicial review, which must be able to extend to the lawfulness of the reasons for the decision being challenged, presupposes in general that the court before which the matter is brought may require the competent authority to communicate those reasons. However, where it is more particularly a question of securing the effective protection of a right conferred by European Union law, interested parties must also be able to defend that right under the best possible conditions and have the possibility of deciding, with a full knowledge of the relevant facts, whether there is any point in applying to the courts. Consequently, in such circumstances, the competent national authority is under a duty to inform them of the reasons on which its decision is based, either in the decision itself or in a subsequent communication made at their request (see Case 222/86 Heylens and Others  [1987] ECR 4097, paragraph 15, and Mellor , paragraph 59).
60. That subsequent communication may take the form not only of an express statement of the reasons but also of the making available of relevant information and documents in response to the request made (see Mellor , paragraph 60).
61. While the reasons need not necessarily be contained in the decision itself, the competent authority may none the less, pursuant to the applicable national legislation or of its own motion, indicate in the decision the reasons on which it is based (see Mellor , paragraph 63).
62. In that case, the decision must enable interested parties to decide whether to make use of a review procedure to contest it, taking into account any factors which might subsequently be brought to their attention (see Mellor , paragraph 64).
66. Article 6(3) of the Habitats Directive establishes an evaluation procedure intended to ensure, by means of a preliminary examination, that a plan or project which is not directly connected with or necessary for the management of the site concerned but likely to have a significant effect on it is authorised only to the extent that it will not adversely affect the integrity of that site (see Case C‑127/02 Waddenvereniging and Vogelbeschermingsvereniging  [2004] ECR I‑7405, paragraph 34).
67. A plan or project may be authorised only on condition that the competent national authorities are certain that it will not have adverse effects on the integrity of the site concerned. That is so where no reasonable scientific doubt remains as to the absence of such effects (see Case C‑239/04 Commission  v Portugal  [2006] ECR I‑10183, paragraph 20). Moreover, it is at the time of adoption of the decision authorising implementation of the project that there must be no reasonable scientific doubt remaining as to the absence of adverse effects on the integrity of the site in question (see Commission  v Portugal , paragraph 24).
68. Furthermore, in the case of sites eligible for identification as sites of Community importance, in particular sites hosting priority natural habitat types, the Member States are, by virtue of the Habitats Directive, required to take protective measures that are appropriate, from the point of view of that directive’s objective of conservation, for safeguarding the ecological interest which those sites have at national level (see Case C‑117/03 Dragaggi and Others  [2005] ECR I‑167, paragraph 30, and Case C‑491/08 Commission  v Italy , paragraph 30).
69. Those obligations are incumbent on the Member States by virtue of the Habitats Directive regardless of the nature of the national authority with competence to authorise the plan or project concerned. Article 6(3) of the Habitats Directive, which refers to the ‘competent national authorities’, does not lay down any special rule for plans or projects approved by a legislative authority. That status consequently has no effect on the extent or scope of the obligations imposed on the Member States by Article 6(3) of the Habitats Directive.
72. Article 6(4) of the Habitats Directive provides that if, in spite of a negative assessment carried out in accordance with the first sentence of Article 6(3) of the directive, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, and there are no alternative solutions, the Member State is to take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected (see Case C‑304/05 Commission  v Italy  [2007] ECR I‑7495, paragraph 81).
73. Article 6(4) of that directive must, as an exception to the criterion for authorisation laid down in the second sentence of Article 6(3), be interpreted strictly (see Case C‑304/05 Commission  v Italy , paragraph 82).
74. Moreover, it can apply only after the implications of a plan or project have been studied in accordance with Article 6(3) of the Habitats Directive. Knowledge of those implications in the light of the conservation objectives relating to the site in question is a necessary prerequisite for the application of Article 6(4), since, in the absence of those elements, no condition for the application of that derogating provision can be assessed. The assessment of any imperative reasons of overriding public interest and that of the existence of less harmful alternatives require a weighing up against the damage caused to the site by the plan or project under consideration. In addition, in order to determine the nature of any compensatory measures, the damage to the site must be precisely identified (see Case C‑304/05 Commission  v Italy , paragraph 83).
75. An interest capable of justifying, within the meaning of Article 6(4) of the Habitats Directive, the implementation of a plan or project must be both ‘public’ and ‘overriding’, which means that it must be of such an importance that it can be weighed up against that directive’s objective of the conservation of natural habitats and wild fauna and flora.