Comune di Corridonia and Others v Provincia di Macerata and Provincia di Macerata Settore 10 – Ambiente.
Date: 2017-07-26
29


As a preliminary point, it is necessary to note that Article 191 TFEU, paragraph 2 of which fixes general objectives in environmental matters (see, to that effect, judgment of 4 March 2015, Fipa Group and Others, C‑534/13, EU:C:2015:140, paragraph 39 and the case-law cited), is irrelevant for the purposes of answering the questions posed.
32


As to whether it is possible to regularise a posteriori the failure to carry out an environmental impact assessment of a project as required under Directive 85/337, in circumstances such as those at issue in the main proceedings, it should be remembered that Article 2(1) of that directive provides that projects that may have a significant impact on the environment, within the meaning of Article 4 of that directive, read in conjunction with Annex I or II to that directive, must be subject to that assessment before consent is granted (judgment of 7 January 2004, Wells, C‑201/02, EU:C:2004:12, paragraph 42).
33


As the Court has also emphasised, the prior nature of such an assessment is justified by the fact it is necessary for the competent authority to take effects on the environment into account at the earliest possible stage in all the technical planning and decision-making processes, the objective being to prevent the creation of pollution or nuisances at source rather than subsequently trying to counteract their effects (judgment of 3 July 2008, Commission v Ireland, C‑215/06, EU:C:2008:380, paragraph 58).
34


However, neither Directive 85/337 nor Directive 2011/92 contains provisions relating to the consequences of a breach of that obligation to carry out a prior assessment.
35


Under the principle of cooperation in good faith laid down in Article 4 TEU, Member States are nevertheless required to nullify the unlawful consequences of that breach of EU law. The competent national authorities are therefore under an obligation to take all measures necessary, within the sphere of their competence, to remedy the failure to carry out an environmental impact assessment, for example by revoking or suspending consent already granted in order to carry out such an assessment (see, to that effect, judgments of 7 January 2004, Wells, C‑201/02, EU:C:2004:12, paragraphs 64 and 65; of 3 July 2008, Commission v Ireland, C‑215/06, EU:C:2008:380, paragraph 59; and of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne, C‑41/11, EU:C:2012:103, paragraphs 42, 43 and 46).
36


The Member State concerned is likewise required to make good any harm caused by the failure to carry out an environmental impact assessment (judgment of 7 January 2004, Wells, C‑201/02, EU:C:2004:12, paragraph 66).
37


The Court has, however, held that EU law does not preclude national rules which, in certain cases, permit the regularisation of operations or measures which are unlawful in the light of EU law (judgments of 3 July 2008, Commission v Ireland, C‑215/06, EU:C:2008:380, paragraph 57; of 15 January 2013, Križan and Others, C‑416/10, EU:C:2013:8, paragraph 87; and of 17 November 2016, Stadt Wiener Neustadt, C‑348/15, EU:C:2016:882, paragraph 36).
38


The Court has made it clear that such a possible regularisation would have to be subject to the condition that it does not offer the persons concerned the opportunity to circumvent the rules of EU law or to dispense with their application, and that it should remain the exception (judgments of 3 July 2008, Commission v Ireland, C‑215/06, EU:C:2008:380, paragraph 57; of 15 January 2013, Križan and Others, C‑416/10, EU:C:2013:8, paragraph 87; and of 17 November 2016, Stadt WienerNeustadt, C‑348/15, EU:C:2016:882, paragraph 36).
39


Consequently, the Court has held that legislation which attaches the same effects to regularisation permission, which can be issued even where no exceptional circumstances are proved, as those attached to prior planning consent fails to have regard for the requirements of Directive 85/337 (see, to that effect, judgments of 3 July 2008, Commission v Ireland, C‑215/06, EU:C:2008:380, paragraph 61, and of 17 November 2016, Stadt Wiener Neustadt, C‑348/15, EU:C:2016:882, paragraph 37).
40


The same is also true of a legislative measure which could allow, without even requiring a later assessment and even where there are no specific exceptional circumstances, a project which ought to have been subject to an environmental impact assessment, by virtue of Article 2(1) of Directive 85/337, to be deemed to have been subject to such an assessment, even if such a measure were applicable only to projects in respect of which consent was no longer subject to a possibility of being directly challenged before the courts because of the expiry of the time limit for bringing proceedings laid down in national legislation (see, to that effect, judgment of 17 November 2016, Stadt Wiener Neustadt, C‑348/15, EU:C:2016:882, paragraphs 38 and 43).
41


Furthermore, an assessment carried out after a plant has been constructed and has entered into operation cannot be confined to its future impact on the environment, but must also take into account its environmental impact from the time of its completion.
42


It is for the referring court to assess whether the legislation at issue in the main proceedings satisfies those requirements. It is, however, appropriate to mention to the referring court that the facts that the undertakings concerned took the necessary steps to arrange for, if need be, an assessment of the environmental impact of their projects to be carried out, that the refusal of the competent authorities to accede to those requests was based on national rules, the incompatibility of which with EU law was only subsequently established by a ruling of the Corte costituzionale (Constitutional Court), and that the activities of the plants concerned were suspended appear rather to indicate that the regularisations carried out were not permitted under national law in conditions similar to those in the case leading to the judgment of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380, paragraph 61), and did not attempt to circumvent rules of EU law.
43


In the light of all of the foregoing considerations, the answer to the question posed is that, in the event of failure to carry out an environmental impact assessment required under Directive 85/337, EU law, on the one hand, requires Member States to nullify the unlawful consequences of that failure and, on the other hand, does not preclude regularisation through the conducting of an impact assessment, after the plant concerned has been constructed and has entered into operation, on condition that:





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national rules allowing for that regularisation do not provide the parties concerned with an opportunity to circumvent the rules of EU law or to dispense with applying them, and








–


an assessment carried out for regularisation purposes is not conducted solely in respect of the plant’s future environmental impact, but must also take into account its environmental impact from the time of its completion.