Comune di Castelbellino v Regione Marche and Others.
Date: 2018-02-28
24


It should be recalled that Article 2(1) of Directive 2011/92 requires that projects likely to have significant effects on the environment, for the purpose of Article 4 of that directive, read in conjunction with Annexes I or II thereto, must be subject to such an assessment before consent is granted (see, to that effect, judgments of 7 January 2004, Wells, C‑201/02, EU:C:2004:12, paragraph 42, and of 26 July 2017, Comune di Corridonia and Others, C‑196/16 and C‑197/16, EU:C:2017:589, paragraph 32).
25


As the Court has previously held, the requirement for such an assessment to be carried out as a preliminary step is justified by the fact it is necessary for the competent authority to take into account effects on the environment 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 (see, to that effect, judgments of 3 July 2008, Commission v Ireland, C‑215/06, EU:C:2008:380, paragraph 58, and of 26 July 2017, Comune di Corridonia and Others, C‑196/16 and C‑197/16, EU:C:2017:589, paragraph 33).
30


Nevertheless, it should be borne in mind that the Court has previously held, in paragraph 43 of the judgment of 26 July 2017, Comune di Corridonia and Others (C‑196/16 and C‑197/16, EU:C:2017:589), that, in the event of failure to carry out an EIA required by EU law, Member States must nullify the unlawful consequences of that failure, and that EU law does not preclude regularisation through the conducting of an impact assessment after the plant concerned has been constructed and has entered into operation, subject to the twofold condition that, first, 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 second, an assessment carried out for regularisation purposes is not conducted solely in respect of the plant’s future environmental impact, but also takes into account its environmental impact from the time of its completion.
31


In paragraph 42 of the judgment of 26 July 2017, Comune di Corridonia and Others (C‑196/16 and C‑197/16, EU:C:2017:589), the Court also noted that the facts — first, that the undertakings in question in the case giving rise to that judgment took the necessary steps to arrange for an EIA to be carried out, if necessary, second, 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, and, third, that the activities of the plants at issue in that case were suspended — appeared to indicate that the regularisations carried out in that case 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.
37


Next, it follows from the settled case-law of the Court that, where Member States have decided to have recourse to the establishment of thresholds or criteria in accordance with Article 4(2) of Directive 2011/92, the limits of the measure of discretion which is thus conferred upon them are to be found in the obligation set out in Article 2(1) of that directive for projects likely, by virtue inter alia of their nature, size or location, to have significant effects on the environment, to be subject to an impact assessment before consent is given (see, to that effect, judgment of 20 November 2008, Commission v Ireland, C‑66/06, not published, EU:C:2008:637, paragraph 61 and the case-law cited).
38


Pursuant to Article 4(3) of Directive 2011/92, the Member States are under an obligation to take into account, when establishing those criteria or thresholds, the relevant selection criteria set out in Annex III to that directive (see, to that effect, judgment of 20 November 2008, Commission v Ireland, C‑66/06, not published, EU:C:2008:637, paragraph 62).
39


Furthermore, a Member State which established those thresholds or criteria at a level such that, in practice, all projects of a certain type would be exempted in advance from the requirement to carry out an assessment, would exceed the limits of that discretion unless all the projects excluded could, when viewed as a whole, be regarded as not likely to have significant effects on the environment (judgment of 20 November 2008, Commission v Ireland, C‑66/06, not published, EU:C:2008:637, paragraph 65 and the case-law cited).