World Wildlife Fund (WWF) and Others v Autonome Provinz Bozen and Others.
Date: 1999-09-16
29 In response to those requests it is sufficient to state that the national court has not submitted any question in that regard and that there is therefore no need to consider them (see Case 5/72 Grassi v Italian Finance Administration [1972] ECR 443, paragraph 4, and Case C-196/89 Nespoli and Crippa [1990] ECR I-3647, paragraph 23).
31 So far as concerns the contesting of certain facts by Airport Bolzano-Bozen AG, it should be remembered that Article 177 of the Treaty is based on a clear separation of functions between the national courts and the Court of Justice, so that, when ruling on the interpretation or validity of Community provisions, the latter is empowered to do so only on the basis of the facts which the national court puts before it (see Case C-30/93 AC-ATEL Electronics Vertriebs v Hauptzollamt München-Mitte [1994] ECR I-2305, paragraph 16, and Case C-326/96 Levez v T.H. Jennings (Harlow Pools) [1998] ECR I-7835, paragraph 25).
32 It is not for the Court of Justice but for the national court to ascertain the facts which have given rise to the dispute and to establish the consequences which they have for the judgment which it is required to deliver (see Case 17/81 Pabst & Richarz v Hauptzollamt Oldenburg [1982] ECR 1331, paragraph 12, AC-ATEL Electronics Vertriebs, cited above, paragraph 17, and Levez, cited above, paragraph 26).
33 As regards the challenge to the jurisdiction of the referring court made on the basis of national law, it is not for the Court of Justice, in view of the distribution of functions between itself and the national courts, to determine whether the decision whereby a matter is brought before it has been taken in accordance with the rules of national law governing the organisation of the courts and their procedure (see Joined Cases C-332/92, C-333/92 and C-335/92 Eurico Italia and Others v Ente Nazional Risi [1994] ECR I-711, paragraph 13).
The first and second questions
36 In that regard, the second subparagraph of Article 4(2) of the Directive confers on Member States a measure of discretion to specify certain types of projects which will be subject to an assessment or to establish the criteria or thresholds applicable.  However, the limits of that discretion are to be found in the obligation set out in Article 2(1) that projects likely, by virtue inter alia of their nature, size or location, to have significant effects on the environment are to be subject to an impact assessment (see Case C-72/95 Kraaijeveld and Others v Gedeputeerde Staten van Zuid-Holland [1996] ECR I-5403, paragraph 50, and Case C-301/95 Commission v Germany [1998] ECR I-6135, paragraph 45).
37 Thus, ruling on legislation of a Member State under which certain entire classes of projects listed in Annex II to the Directive were excluded from the assessment obligation, the Court held, in Case C-133/94 Commission v Belgium [1996] ECR I-2323, at paragraph 42, that the criteria and/or thresholds mentioned in Article 4(2) of the Directive are designed to facilitate examination of the actual characteristics of any given project in order to determine whether it is subject to the requirement to carry out an assessment, and not to exempt in advance from that obligation certain whole classes of projects listed in Annex II which may be envisaged on the territory of a Member State.
38 The Court also held in paragraph 53 of its judgment in Kraaijeveld, cited above, that a Member State which established criteria or thresholds at a level such that, in practice, an entire class of projects would be exempted in advance from the requirement of an impact assessment would exceed the limits of its discretion under Articles 2(1) and 4(2) of the Directive unless all projects excluded could, when viewed as a whole, be regarded as not being likely to have significant effects on the environment.
39 As regards modifications to such projects, the Court found in paragraph 40 of its judgment in Kraaijeveld that the mere fact that the Directive did not expressly refer to modifications to projects included in Annex II, as opposed to modifications to projects included in Annex I, did not justify the conclusion that they were not covered by the Directive.
40 Thus, observing that the scope of the Directive was wide and its purpose very broad, the Court held that the Directive covered `modifications to development projects' even in relation to projects falling within Annex II, on the ground that its purpose would be undermined if `modifications to development projects' were so construed as to enable certain works to escape the requirement of an impact assessment when, by reason of their nature, size or location, they were likely to have significant effects on the environment (Kraaijeveld, paragraph 39).
44 However, the fact that the Member State has the discretion referred to in the previous paragraph is not in itself sufficient to exclude a given project from the assessment procedure under the Directive.  If that were not the case, the discretion accorded to the Member States by Article 4(2) of the Directive could be used by them to take a particular project outside the assessment obligation when, by virtue of its nature, size or location, it could have significant environmental effects.
45 Consequently, whatever the method adopted by a Member State to determine whether or not a specific project needs to be assessed, be it by legislative designation or following an individual examination of the project, the method adopted must not undermine the objective of the Directive, which is that no project likely to have significant effects on the environment, within the meaning of the Directive, should be exempt from assessment, unless the specific project excluded could, on the basis of a comprehensive assessment, be regarded as not being likely to have such effects.
57 That provision accordingly exempts projects envisaged by the Directive from the assessment procedure subject to two conditions.  The first requires the details of the project to be adopted by a specific legislative act; under the second, the objectives of the Directive, including that of supplying information, must be achieved through the legislative process.
58 With regard to the first condition, it is to be observed that Article 1(2) of the Directive refers not to legislative acts but to development consent, which it defines as `the decision of the competent authority or authorities which entitles the developer to proceed with the project'.  Therefore, if it is a legislative act, instead of a decision of the competent authorities, which grants the developer the right to carry out the project, that act must be specific and display the same characteristics as the development consent specified in Article 1(2) of the Directive.
59 Consequently, in order for a legislative act to display the same characteristics as development consent, as defined by Article 1 of the Directive, the act must lay down the project in detail, that is to say in a sufficiently precise and definitive manner so as to include, like development consent, following their consideration by the legislature, all the elements of the project relevant to the environmental impact assessment.
61 That interpretation is borne out by the sixth recital in the preamble to the Directive, which states that development consent for public and private projects which are likely to have significant effects on the environment should be granted only after prior assessment of the likely significant environmental effects of those projects, and that this assessment must be conducted on the basis of the appropriate information supplied by the developer, which may be supplemented by the authorities and by the people who may be concerned by the project.
62 It follows that the details of a project cannot be considered to be adopted by a Law, for the purposes of Article 1(5) of the Directive, if the Law does not include the elements necessary to assess the environmental impact of the project but, on the contrary, requires a study to be carried out for that purpose, which must be drawn up subsequently, and if the adoption of other measures are needed in order for the developer to be entitled to proceed with the project.
69 As regards the right of individuals to rely on a directive and of the national court to take it into consideration, the Court has already held that it would be incompatible with the binding effect conferred on directives by Article 189 of the EC Treaty (now Article 249 EC) for the possibility for those concerned to rely on the obligation which directives impose to be excluded in principle.  Particularly where the Community authorities have, by directive, imposed on Member States the obligation to pursue a particular course of conduct, the effectiveness of such an act would be diminished if individuals were prevented from relying on it in legal proceedings and if national courts were prevented from taking it into consideration as a matter of Community law in determining whether the national legislature, in exercising its choice as to the form and methods for implementing the directive, had kept within the limits of its discretion set out in the directive (Case 51/76 Verbond van Nederlandse Ondernemingen v Inspecteur der Invoerrechten en Accijnzen [1977] ECR 113, paragraphs 22, 23 and 24, and Kraaijeveld, cited above, paragraph 56).
70 Consequently, if that discretion has been exceeded and the national provisions must therefore be set aside on that account, it is for the authorities of the Member State, according to their relevant powers, to take 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 Kraaijeveld, paragraph 61).
71 The answer to the sixth question must therefore be that Articles 4(2) and 2(1) of the Directive are to be interpreted as meaning that, where the discretion conferred by those provisions has been exceeded by the legislative or administrative authorities of a Member State, individuals may rely on those provisions before a court of that Member State against the national authorities and thus obtain from the latter the setting aside of the national rules or measures incompatible with those provisions.  In such a case, it is for the authorities of the Member State to take, according to their relevant powers, 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.