Dimos Kropias Attikis v Ypourgos Perivallontos, Energeias kai Klimatikis Allagis.
Date: 2015-09-10
27. It observes that the position of the majority of its members is that the AMP established by Law No 1515/1985, which is an existing plan of higher ranking than the contested decree, lays down sufficiently precise rules governing land use, so that an ‘environmental assessment’, within the meaning of Directive 2001/42, was not required prior to the adoption of that decree, which gives more specific expression to and implements that master plan.
36. According to the majority opinion expressed within the referring court, that question would fall to be answered in the negative since although the contested decree is intended to protect the Mount Hymettus area and lays down rules more favourable to the environment, it nevertheless preserves, in all the zones [established therein], existing activities and land uses the environmental effects of which have never been assessed and, furthermore, permits existing lawful installations, such as radio-television antennae, schools, retirement homes and cemeteries, to be maintained.
44. However, by contrast with repealing measures, Directive 2001/42, and in particular Article 2(a) thereof, expressly includes within its scope measures modifying plans and programmes, such as the contested decree in this instance, as indeed the Court noted in paragraph 36 of the judgment in Inter-Environnement Bruxelles and Others (C‑567/10, EU:C:2012:159).
46. Furthermore, it is common ground that the plans and programmes that the contested decree contains in principle fall within the scope of Article 3(2)(a) of Directive 2001/42 since they concern, in essence, town and country planning and land use.
47. Moreover, it follows from a reading of that provision in conjunction with Article 3(1) of Directive 2001/42 that the directive must be interpreted as meaning that the obligation to make a particular plan or programme subject to an environmental assessment is conditional on the plan or programme being likely to have significant environmental effects or, in other words, to have a significant effect on the site concerned. The examination to be carried out in order to determine whether that condition is satisfied is necessarily limited to the question of whether it can be excluded, on the basis of objective information, that that plan or project will have a significant effect on the site concerned (see, by analogy, judgment in Sillogos Ellinon Poleodomon kai Khorotakton , C‑177/11, EU:C:2012:378).
50. Given the objective of Directive 2001/42, which consists in providing for a high level of protection of the environment, the provisions which delimit the directive’s scope, in particular those setting out the definitions of the measures envisaged by the directive, must be interpreted broadly (judgment in Inter-Environnement Bruxelles and Others , C‑567/10, EU:C:2012:159, paragraph 37). Any exceptions to or limitations of those provisions must, consequently, be interpreted strictly.
51. Moreover, measures modifying plans and programmes necessarily result in a modification of the legal reference framework and are therefore likely to have effects on the environment, in some circumstances, significant ones, which have not yet been the subject of an ‘environmental assessment’ within the meaning of Directive 2001/42 (see, to that effect, judgment in Inter-Environnement Bruxelles and Others , C‑567/10, EU:C:2012:159, paragraph 39).
53. Indeed, an interpretation to that effect would be incompatible with the objectives of Directive 2001/42 and would undermine its effectiveness, since it would mean that a potentially broad category of measures modifying plans and programmes likely to give rise to significant environmental effects is, on principle, excluded from the scope of that directive even though those measures are expressly covered by the terms of Articles 2(a) and 3(2)(a) of that directive.
54. That is particularly true as regards a measure such as the contested decree, since it is common ground that the modifications made by it are substantive in nature and that the master plan at issue in the main proceedings, namely the AMP relating to the greater Athens area, even if it could be regarded as laying down sufficiently precise rules governing land use, has not in any event been the subject of an environmental assessment within the meaning of Directive 2001/42.
55. The rationale for the limitation of the scope of Directive 2001/42 to which the Court referred in paragraph 42 of the judgment in Inter-Environnement Bruxelles and Others  (C‑567/10, EU:C:2012:159) is to avoid the same plan being subject to several environmental assessments covering all the requirements of that directive.
58. Lastly, even if the plans and programmes that the contested decree modifies have already been subject to an assessment of their environmental effects under Directive 85/337 or ‘any other Community law requirements’ as provided for in Article 11(1) of Directive 2001/42 — a point which it is not possible to establish from the documents before the Court — it is, in any event, for the referring court to determine whether such an assessment may be regarded as being the result of a coordinated or joint procedure within the meaning of Article 11(2) of Directive 2001/42 and whether it already complies with all the requirements of Directive 2001/42, in which case there would no longer be an obligation to carry out a new assessment for the purposes of that directive (judgment in Valčiukienė and Others , C‑295/10, EU:C:2011:608, paragraph 62).
61. In those circumstances, there is no need to answer the third and fourth questions.
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