Brussels Hoofdstedelijk Gewest and Others v Vlaamse Gewest.
Date: 2011-03-17
20. As the Court observed at paragraph 23 of its judgment in Case C‑2/07 Abraham and Others [2008] ECR I‑1197, it  is apparent from the very wording of Article 1(2) of Directive 85/337 that the term ‘project’ refers to works or physical interventions.
22. However, some of the applicants in the main proceedings have argued that the concept of physical intervention must be broadly construed as encompassing any intervention in the natural surroundings. They rely on paragraphs 24 and 25 of the judgment in Case C‑127/02 Waddenvereniging and Vogelbeschermingsvereniging  [2004] ECR I‑7405, in which the Court held that an activity such as mechanical cockle fishing is within the concept of ‘project’ as defined in the second indent of Article 1(2) of Directive 85/337.
24. It follows that the renewal of an existing permit to operate an airport cannot, in the absence of any works or interventions involving alterations to the physical aspect of the site, be classified as a ‘project’ within the meaning of the second indent of Article 1(2) of Directive 85/337.
25. It should be added that Article 2(1) of Directive 85/337 does not, in any event, require that any project likely to have a significant effect on the environment be made subject to the environmental impact assessment provided for in that directive, but only those referred to in Annexes I and II to that directive (order in Case C‑156/07 Aiello and Others  [2008] ECR I‑5215, paragraph 34).
26. It should be noted in that connection, as pointed out by the Advocate General at point 26 of his Opinion, that the term ‘construction’ used at point 7(a) of Annex I to D irective 85/337 is not in any way ambiguous and is to be understood as having its normal meaning, namely as referring to the carrying out of works not previously existing or of physical alterations to existing installations.
27. It is true that, in its case‑law, the Court has given a broad interpretation of the concept of ‘construction’, accepting that works for the refurbishment of an existing road may be equivalent, due to their size and the manner in which they are carried out, to the construction of a new road (Case C‑142/07 Ecologistas en Acción-CODA  [2008] ECR I‑6097, paragraph 36). Similarly, the Court has interpreted point 13 of Annex II, read in conjunction with point 7 of Annex I, to Directive 85/337 as also encompassing works to alter the infrastructure of an existing airport, without extension of the runway, where they may be regarded, in particular because of their nature, extent and characteristics, as an alteration of the airport itself ( Abraham and Others , paragraph 40).
29. As the Advocate General points out at point 28 of his Opinion, while it is established case‑law that the scope of Directive 85/337 is wide and its purpose very broad (see, inter alia, Abraham and Others , paragraph 32, and Ecologistas en Acción-CODA , paragraph 28), a purposive interpretation of the directive cannot, in any event, disregard the clearly expressed intention of the legislature of the European Union.
32. In that context, it should be noted that, according to the established case‑law of the Court, in a case involving a permit, such as that at issue in the main proceedings, which does not formally concern an activity subject to an environmental impact assessment for the purposes of Annexes I and II to Directive 85/337, it may nevertheless be necessary for such an assessment to be carried out where that measure constitutes a stage in a procedure the ultimate purpose of which is to grant the right to proceed with an activity which constitutes a project within the meaning of Article 2(1) of the directive (see, to that effect, Abraham and Others , paragraph 25).
33. According to that same line of authority, where national law provides that the consent procedure is to be carried out in several stages, the environmental impact assessment in respect of a project must, in principle, be carried out as soon as it is possible to identify and assess all the effects which the project may have on the environment (see Case C-201/02 Wells  [2004] ECR I‑723, paragraph 53, and Abraham and Others , paragraph 26). It has also been held that a national measure which provides that an environmental impact assessment may be carried out only at the initial stage of the consent procedure, and not at a later stage in the procedure, would be incompatible with Directive 85/337 (see, to that effect, Case C‑508/03 Commission  v United Kingdom  [2006] ECR I‑3969, paragraphs 105 and 106).
35. For the purposes of examining the facts, it is appropriate to remind the national court that the Court has already held that works to alter the infrastructure of an existing airport, without extension of the runway, are covered by point 13 of Annex II, read in conjunction with point 7 of Annex I, to Directive 85/337, where they may be regarded, in particular because of their nature, extent and characteristics, as an alteration of the airport itself ( Abraham and Others, paragraph 40).
36. The Court has also stated that the objective of the European Union legislation cannot be circumvented by the splitting of projects and that failure to take account of their cumulative effect must not mean in practice that they all escape the obligation to carry out an assessment when, taken together, they are likely to have significant effects on the environment within the meaning of Article 2(1) of Directive 85/377 ( Abraham and Others , paragraph 27).
37. If it should prove to be the case that, since the entry into force of Directive 85/337, works or physical interventions which are to be regarded as a project within the meaning of the directive were carried out on the airport site without any assessment of their effects on the environment having been carried out at an earlier stage in the consent procedure, the national court would have to take account of the stage at which the operating permit was granted and ensure that the directive was effective by satisfying itself that such an assessment was carried out at the very least at that stage of the procedure.
38. The answer to the questions referred is, therefore, that the second indent of Article 1(2) of Directive 85/337 and point 7 of Annex I to the directive are to be interpreted as meaning that:
– the renewal of an existing permit to operate an airport cannot, in the absence of any works or interventions involving alterations to the physical aspect of the site, be classified as a ‘project’ or ‘construction’, respectively, within the meaning of those provisions;
– however, it is for the national court to determine, on the basis of the national legislation applicable and taking account, where appropriate, of the cumulative effect of a number of works or interventions carried out since the entry into force of the directive, whether that permit forms part of a consent procedure carried out in several stages, the ultimate purpose of which is to enable activities which constitute a project within the meaning of the first indent of point 13 of Annex II, read in conjunction with point 7 of Annex I, to the directive to be carried out. If no assessment of the environmental effects of such works or interventions was carried out at the earlier stage of the consent procedure, it would be for the national court to ensure that the directive was effective by satisfying itself that such an assessment was carried out at the very least at the stage at which the operating permit was to be granted.
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