The Queen, on the application of Delena Wells v Secretary of State for Transport, Local Government and the Regions.
Date: 2004-01-07
35. As to that, a question referred by a national court for a preliminary ruling is inadmissible only if it is quite obvious that the question does not concern the interpretation of Community law or that it is hypothetical (see, inter alia, Case C-83/91  Meilicke  [1992] ECR I-4871, paragraphs 25 and 32, Case C-62/93  BP Supergas  [1995] ECR I-1883, paragraph 10, and Case C-143/94  Furlanis  [1995] ECR I-3633, paragraph 12).
37. The question whether the decision determining new conditions and the decision approving matters reserved by the new conditions constitute development consent within the meaning of Article 1(2) of Directive 85/337 is a question concerning the interpretation of Community law. The Court has consistently held that, in light of both the principle that Community law should be applied uniformly and the principle of equality, the terms of a provision of Community law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope is normally to be given throughout the Community an autonomous and uniform interpretation which must take into account the context of the provision and the purpose of the legislation in question (Case 327/82  Ekro  [1984] ECR 107, paragraph 11, and  Linster , cited above, paragraph 43).
42. As to those submissions, under Article 2(1) of Directive 85/337 projects likely to have significant effects on the environment, as referred to in Article 4 of the directive read in conjunction with Annexes I and II thereto, must be made subject to an assessment with regard to such effects before consent is given.
43. This does not apply only where consent was granted before 3 July 1988 (an old consent), that is to say before the time-limit laid down for implementation of Directive 85/337, or where consent was granted after 3 July 1988 but the consent procedure was initiated before that date ( " pipeline"  projects) (see, to this effect, Case C-431/92  Commission  v  Germany  [1995] ECR I-2189, paragraph 32, and  Gedeputeerde Staten van Noord-Holland , cited above, paragraph 23). The directive thus requires an assessment of the environmental effects of the project in question in the case of new consents.
52. Accordingly, where national law provides that the consent procedure is to be carried out in several stages, one involving a principal decision and the other involving an implementing decision which cannot extend beyond the parameters set by the principal decision, the effects which the project may have on the environment must be identified and assessed at the time of the procedure relating to the principal decision. It is only if those effects are not identifiable until the time of the procedure relating to the implementing decision that the assessment should be carried out in the course of that procedure.
53. The answer to the first two questions must therefore be that Article 2(1) of Directive 85/337, read in conjunction with Article 4(2) thereof, is to be interpreted as meaning that, in the context of applying provisions such as section 22 of the Planning and Compensation Act 1991 and Schedule 2 to that Act, the decisions adopted by the competent authorities, whose effect is to permit the resumption of mining operations, comprise, as a whole, a   " development consent"  within the meaning of Article 1(2) of that directive, so that the competent authorities are obliged, where appropriate, to carry out an assessment of the environmental effects of such operations.
In a consent procedure comprising several stages, that assessment 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.
The fourth and fifth questions: the ability of individuals to invoke the provisions of Directive 85/337
56. As to that submission, the principle of legal certainty prevents directives from creating obligations for individuals. For them, the provisions of a directive can only create rights (see Case 152/84  Marshall  [1986] ECR 723, paragraph 48). Consequently, an individual may not rely on a directive against a Member State where it is a matter of a State obligation directly linked to the performance of another obligation falling, pursuant to that directive, on a third party (see, to this effect, Case C-221/88  Busseni  [1990] ECR I-495, paragraphs 23 to 26, and Case C-97/96  Daihatsu Deutschland  [1997] ECR I-6843, paragraphs 24 and 26).
57. On the other hand, mere adverse repercussions on the rights of third parties, even if the repercussions are certain, do not justify preventing an individual from invoking the provisions of a directive against the Member State concerned (see to this effect, in particular, Case 103/88  Fratelli Costanzo  [1989] ECR 1839, paragraphs 28 to 33,  WWF and Others , cited above, paragraphs 69 and 71, Case C-194/94  CIA Security International  [1996] ECR I-2201, paragraphs 40 to 55, Case C-201/94  Smith & Nephew and Primecrown  [1996] ECR I-5819, paragraphs 33 to 39, and Case C-443/98  Unilever  [2000] ECR I-7535, paragraphs 45 to 52).
61. Accordingly, the answer to the fourth and fifth questions must be that, in circumstances such as those of the main proceedings, an individual may, where appropriate, rely on Article 2(1) of Directive 85/337, read in conjunction with Articles 1(2) and 4(2) thereof.
The third question: the obligation to remedy the failure to carry out an environmental impact assessment
64. As to that submission, it is clear from settled case-law that under the principle of cooperation in good faith laid down in Article 10 EC the Member States are required to nullify the unlawful consequences of a breach of Community law (see, in particular, Case 6/60  Humblet  [1960] ECR 559, at 569, and Joined Cases C-6/90 and C-9/90  Francovich and Others  [1991] ECR I-5357, paragraph 36). Such an obligation is owed, within the sphere of its competence, by every organ of the Member State concerned (see, to this effect, Case C-8/88  Germany  v  Commission  [1990] ECR I-2321, paragraph 13).
65. Thus, it is for the competent authorities of a Member State to take, within the sphere of their competence, all the general or particular measures necessary to ensure that projects are examined in order to determine whether they are likely to have significant effects on the environment and, if so, to ensure that they are subject to an impact assessment (see, to this effect, Case C-72/95  Kraaijeveld and Others  [1996] ECR I-5403, paragraph 61, and  WWF and Others , cited above, paragraph 70). Such particular measures include, subject to the limits laid down by the principle of procedural autonomy of the Member States, the revocation or suspension of a consent already granted, in order to carry out an assessment of the environmental effects of the project in question as provided for by Directive 85/337.
66. The Member State is likewise required to make good any harm caused by the failure to carry out an environmental impact assessment.
67. The detailed procedural rules applicable are a matter for the domestic legal order of each Member State, under the principle of procedural autonomy of the Member States, provided that they are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the Community legal order (principle of effectiveness) (see to this effect, inter alia, Case C-312/93  Peterbroeck  [1995] ECR I-4599, paragraph 12, and Case C-78/98  Preston and Others  [2000] ECR I-3201, paragraph 31).
68. So far as the main proceedings are concerned, if the working of Conygar Quarry should have been subject to an assessment of its environmental effects in accordance with the requirements of Directive 85/337, the competent authorities are obliged to take all general or particular measures for remedying the failure to carry out such an assessment.
69. In that regard, it is for the national court to determine whether it is possible under domestic law for a consent already granted to be revoked or suspended in order to subject the project in question to an assessment of its environmental effects, in accordance with the requirements of Directive 85/337, or alternatively, if the individual so agrees, whether it is possible for the latter to claim compensation for the harm suffered.