European Commission v Federal Republic of Germany.
Date: 2015-10-15
47. As regards the first part of the second complaint concerning the restriction of the review by the courts of administrative decisions to those situations alone where there is a total absence of the mandatory environmental impact assessment or pre-assessment, it must be noted that the Court recalled, in paragraph 36 of the judgment in Gemeinde Altrip and Others (C‑72/12, EU:C:2013:712), that it had already ruled, in paragraph 37 of its judgment in Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen (C‑115/09, EU:C:2011:289), that Article 11 of Directive 2011/92 has in no way restricted the pleas that may be put forward in support of the actions covered by that provision.
48. Furthermore, in paragraph 37 of that judgment, the Court held that the provisions of national law transposing Article 11 of Directive 2011/92 may not limit their applicability solely to cases in which the legality of a decision is challenged on the ground that no environmental impact assessment has been carried out. Excluding that applicability in cases in which, having been carried out, an environmental impact assessment is found to be vitiated by defects — even serious defects — would render largely nugatory the provisions of Directive 2011/92 relating to public participation. Such exclusion would therefore run counter to the objective of ensuring wide access to courts of law as mentioned in Article 11 of that directive.
49. It is apparent from paragraph 38 of that judgment that Article 11 of Directive 2011/92 precludes the Member States from limiting the applicability of the provisions transposing that article to cases in which the legality of a decision is challenged on the ground that no environmental impact assessment was carried out, while not extending that applicability to cases in which such an assessment was carried out but was irregular.
51. With regard to the argument put forward by the Federal Republic of Germany concerning Paragraph 46 of the VwVfG that, where an environmental impact assessment or pre-assessment has been carried out but is vitiated by a procedural defect, it is possible to bring legal proceedings on the conditions laid down in that paragraph, it should be recalled, on the one hand, that provisions of a directive must be implemented with unquestionable binding force and with the specificity, precision and clarity necessary to satisfy the requirements of legal certainty (judgments in Dillenkofer and Others , C‑178/94, C‑179/94 and C‑188/94 to C‑190/94, EU:C:1996:375, paragraph 48, and Commission  v Portugal , C‑277/13, EU:C:2014:2208, paragraph 43), which is not the situation in the present case.
55. The Court has previously held, in that regard, in essence, that it was not the intention of the EU legislature to make the possibility of invoking a procedural defect conditional upon that defect’s having an effect on the purport of the contested final decision. Moreover, given that one of the objectives of Directive 2011/92 is, in particular, to put in place procedural guarantees to ensure the public is better informed of, and more able to participate in, environmental impact assessments relating to public and private projects likely to have a significant effect on the environment, it is particularly important to ascertain whether the procedural rules governing that area have been complied with. Therefore, as a matter of principle, in accordance with the aim of giving the public concerned wide access to justice, that public must be able to invoke any procedural defect in support of an action challenging the legality of decisions covered by that directive (see, to that effect, judgment in Gemeinde Altrip and Others , C‑72/12, EU:C:2013:712, paragraphs 47 and 48).
59. Furthermore, the Court has also held that, with regard to the interpretation of the concept of ‘impairment of a right’ within the meaning of Article 11 of Directive 2011/92, and more particularly the requirement, laid down in the national law, that such impairment of a right can exist only if the contested decision would have been different without the procedural defect invoked, the shifting of the burden of proof onto the person bringing the action, in accordance with national law, for the application of the condition of causality, is capable of making the exercise of the rights conferred on that person by that directive excessively difficult, especially having regard to the complexity of the procedures in question and the technical nature of environmental impact assessments (see, to that effect, judgment in Gemeinde Altrip and Others , C‑72/12, EU:C:2013:712, paragraph 52).
60. It follows therefrom that the impairment of a right, for the purposes of Article 11 of Directive 2011/92 cannot be excluded unless the court of law or body covered by that article is in a position to take the view, without in any way making the burden of proof of causality fall on the applicant, but by relying, where appropriate, on the evidence provided by the developer or the competent authorities and, more generally, on the case-file documents submitted to that court or body, that the contested decision would not have been different without the procedural defect invoked by that applicant (see, to that effect, judgment in Gemeinde Altrip and Others , C‑72/12, EU:C:2013:712, paragraph 53).
77. The Court has previously held that Article 11(1) of Directive 2011/92, pursuant to which the decisions, acts or omissions covered by that article must be subject to a review procedure before a court of law or another independent and impartial body established by law to challenge their substantive or procedural legality, lays down no restriction whatsoever on the pleas which may be relied on in support of such a review (see, to that effect, judgment in Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen , C‑115/09, EU:C:2011:289, paragraph 37). That consideration meets the objective pursued by that provision of ensuring broad access to justice in the area of environmental protection.
90. It must be borne in mind that, pursuant to Article 11(3) of Directive 2011/92 and Article 25(3) of Directive 2010/75, environmental protection organisations are deemed to have either a sufficient interest or rights which may be impaired, depending on which of those conditions governing the admissibility of actions is adopted by the national legislation (see, to that effect, judgment in Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen , C‑115/09, EU:C:2011:289, paragraph 40).
91. Although the national legislature is entitled to confine to individual public-law rights the rights whose infringement may be relied on by an individual in legal proceedings contesting one of the decisions, acts or omissions referred to in Article 11 of Directive 2011/92, such a limitation cannot be applied as such to environmental protection organisations without disregarding the objectives of that provision (see, to that effect, judgment in Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen , C‑115/09, EU:C:2011:289, paragraph 45).
92. Consequently, in judicial proceedings, those organisations must necessarily be able to rely on the rules of national law implementing EU environment law and the rules of EU environment law having direct effect (see, to that effect, judgment in Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen , C‑115/09, EU:C:2011:289, paragraph 48).
95. It follows, however, from the case-law of the Court that Article 11 of Directive 2011/92 must be interpreted as meaning that the provisions adopted by the legislature in order to transpose that article into the national legal order must also apply to administrative development consent procedures initiated before 25 June 2005 when they resulted in the granting of development consent after that date (see, to that effect, judgment in Gemeinde Altrip and Others , C‑72/12, EU:C:2013:712, paragraph 31).
96. With regard to the principle of res judicata  relied upon by the Federal Republic of Germany, it is true that the Court has recognised the importance, both in the legal order of the European Union and in national legal systems, of that principle. In order to ensure both stability of the law and legal relations and the sound administration of justice, it is important that judicial decisions which have become definitive after all rights of appeal have been exhausted or after expiry of the time-limits provided for in that connection can no longer be called into question (see judgment in Fallimento Olimpiclub , C‑2/08, EU:C:2009:506, paragraph 22 and the case-law).
98. Moreover, the fact that, following the late transposition into German law of Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 (OJ 2003 L 156, p. 17), which amended Directive 85/337 as regards public participation and access to justice, itself codified by Directive 2011/92, the Federal Republic of Germany restricted the temporal scope of the national provisions implementing the latter directive amounts to allowing that Member State to grant itself a new transposition period (see, by analogy, judgment in Commission  v Portugal , C‑277/13, EU:C:2014:2208, paragraph 45).