Associazione "Verdi Ambiente e Società - Aps Onlus" (VAS) and “Movimento Legge Rifiuti Zero per l'Economia Circolare” Aps v Presidente del Consiglio dei Ministri and Others.
Date: 2019-05-08
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That provision, which sets out the waste hierarchy as it should be applied in waste prevention and management legislation and policy, does not support the inference that priority must be accorded to a system which permits waste producers to dispose of that waste independently. Indeed, waste disposal is placed last in that order of precedence (see, to that effect, judgment of 18 December 2014, SETAR, C‑551/13, EU:C:2014:2467, paragraph 44).
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In that regard, the Court has already ruled that, whilst Article 13 does not specify the actual content of the measures which must be taken in order to ensure that waste is thus managed without endangering human health and without harming the environment, it is nonetheless true that that article is binding on the Member States as to the objective to be achieved, whilst leaving them a margin of discretion in assessing the need for such measures (judgment of 6 April 2017, Commission v Slovenia, C‑153/16, not published, EU:C:2017:275, paragraph 61 and the case-law cited).
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The Court has interpreted that provision to mean that plans and programmes whose adoption is regulated by national legislative or regulatory provisions, which determine the competent authorities for adopting them and the procedure for preparing them, must be regarded as ‘required’ within the meaning, and for the application, of the SEA Directive and, accordingly, be subject to an assessment of their environmental effects in the circumstances which it lays down (judgment of 7 June 2018, Inter-Environnement Bruxelles and Others, C‑671/16, EU:C:2018:403, paragraph 37 and the case-law cited).
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It must be added that, pursuant to Article 3(2)(a) of the SEA Directive, a systematic environmental assessment must be carried out for all plans and programmes which are prepared for certain sectors and which set the framework for future development consent of projects listed in Annexes I and II to Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1, ‘the EIA Directive’).
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As to whether national legislation, such as that at issue in the main proceedings, sets the framework for future development consent of projects, it must be noted that, according to settled case-law, the notion of ‘plans and programmes’ relates to any measure which establishes, by defining rules and procedures for scrutiny applicable to the sector concerned, a significant body of criteria and detailed rules for the grant and implementation of one or more projects likely to have significant effects on the environment (judgments of 27 October 2016, D’Oultremont and Others, C‑290/15, EU:C:2016:816, paragraph 49; of 7 June 2018, Inter-Environnement Bruxelles and Others, C‑671/16, EU:C:2018:403, paragraph 53; and of 7 June 2018, Thybaut and Others, C‑160/17, EU:C:2018:401, paragraph 54).
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In that regard, the words ‘a significant body of criteria and detailed rules’ must be understood qualitatively. It is necessary to avoid strategies which may be designed to circumvent the obligations laid down in the SEA Directive by splitting measures, thereby reducing the practical effect of that directive (judgments of 7 June 2018, Inter-Environnement Bruxelles and Others, C‑671/16, EU:C:2018:403, paragraph 55, and of 7 June 2018, Thybaut and Others, C‑160/17, EU:C:2018:401, paragraph 55).
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Such an interpretation of the notion of ‘plans and programmes’, which not only includes their preparation but also their modification, is intended to ensure that provisions which are likely to have significant environmental effects are subject to an environmental assessment (see, to that effect, judgment of 7 June 2018, Inter-Environnement Bruxelles and Others, C‑671/16, EU:C:2018:403, paragraphs 54 and 58).
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In addition, the fact that an environmental assessment for the purposes of the SEA Directive will be carried out subsequently, when planning at regional level is undertaken, has no bearing on the applicability of the provisions relating to such an assessment. An assessment of the effects on the environment carried out under the EIA Directive cannot lead to an exemption from the obligation to carry out the environmental assessment required by the SEA Directive for the purposes of addressing the environmental aspects particular to the SEA Directive. An environmental impact assessment report completed under the EIA Directive cannot be used to circumvent the obligation to carry out the environmental assessment required under the SEA Directive in order to address environmental aspects specific to that directive (judgment of 7 June 2018, Thybaut and Others, C‑160/17, EU:C:2018:401, paragraph 64).
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Furthermore, and in any event, the objection raised by the Italian Government that the second condition set out in Article 3(2)(a) of the SEA Directive is not satisfied since the national legislation at issue in the main proceedings does not constitute a framework of reference must be rejected. The fact that national legislation expresses some abstract ideas, and pursues an objective of transforming the existing framework is illustrative of its planning and programming aspect and does not prevent it from being included in the notion of ‘plans and programmes’ (see, to that effect, judgment of 7 June 2018, Inter-Environnement Bruxelles and Others, C‑671/16, EU:C:2018:403, paragraph 60 and the case-law cited).
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Such an interpretation is supported, first, by the requirements stemming from Article 6 of the SEA Directive, read in the light of recitals 15 to 18 thereof, to the extent that that directive not only aims to contribute to environmental protection, but also to enable the public to take part in the decision-making process. Second, as is apparent from Article 4(1) of that directive, ‘the environmental assessment … shall be carried out during the preparation of a plan or programme and before its adoption or submission to the legislative procedure’. Similarly, it is apparent from Article 6(2) of that directive that the environmental assessment is supposed to be carried out as soon as possible so that its conclusions may still have an influence on any potential decision-making. Indeed, it is at that stage that the various options may be analysed and strategic choices may be made (see, to that effect, judgments of 20 October 2011, Seaport (NI) and Others, C‑474/10, EU:C:2011:681, paragraph 45, and of 7 June 2018, Inter-Environnement Bruxelles and Others, C‑671/16, EU:C:2018:403, paragraph 63).