Marktgemeinde Straßwalchen and Others v Bundesminister für Wirtschaft, Familie und Jugend.
Date: 2015-02-11
17. In the third place, the referring court asks whether, at the time of authorising the exploratory drilling in question, the Austrian authorities were under an obligation to take into account the cumulative effects of all projects ‘of the same kind’. It notes in that regard that there are roughly 30 probes for gas extraction within the area of the Marktgemeinde Straßwalchen which were not taken into consideration by the Bundesminister für Wirtschaft, Familie und Jugend in the contested decision, whereas it is clear from the judgments in Umweltanwalt von Kärnten (C‑205/08, EU:C:2009:767, paragraph 53) and Brussels Hoofdstedelijk Gewest and Others (C‑275/09, EU:C:2011:154, paragraph 36) that the objective of Directive 85/337 cannot be circumvented by the splitting of projects.
20. It should be observed, as a preliminary point, that under Article 4(1) of Directive 85/337, and subject to Article 2(3) thereof, the projects listed in Annex I to that directive are to be subject to an environmental impact assessment. Thus, under Annex I, No 14, to that directive, the extraction of petroleum and natural gas for commercial purposes must be made subject to an environmental impact assessment when the quantities extracted exceed 500 tonnes per day for petroleum and 500 000 m 3  per day for natural gas.
21. It should also be borne in mind that the need for the uniform application of EU law and the principle of equality require that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union, which must take into account the context of that provision and the purpose pursued (see judgment in Edwards and Pallikaropoulos , C‑260/11, EU:C:2013:221, paragraph 29).
31. In the present case, an exploratory drilling operation such as that at issue in the main proceedings, which is aimed at determining the commercial feasibility of a deposit of up to 4 150 metres depth, is a form of deep drilling within the meaning of Annex II, No 2(d), to that directive.
37. Nevertheless, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the questions referred to it. The Court may also find it necessary to consider provisions of EU law which the national court has not referred to in its questions.
40. As regards the establishment of thresholds or criteria, it must be borne in mind that, indeed, Article 4(2)(b) of Directive 85/337 confers a measure of discretion on the Member States in that regard. However, that discretion is limited by the obligation set out in Article 2(1) of the directive to make projects likely, by virtue inter alia of their nature, size or location, to have significant effects on the environment subject to an impact assessment (judgment in Salzburger Flughafen , C‑244/12, EU:C:2013:203, paragraph 29).
41. Thus, the criteria and thresholds referred to in Article 4(2)(b) of Directive 85/337 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 environmental impact assessment (judgment in Salzburger Flughafen , EU:C:2013:203, paragraph 30).
42. It follows that the competen t national authorities, when they receive a request for development consent for an Annex II project, must carry out a specific evaluation as to whether, taking account of the criteria set out in Annex III to that directive, an environmental impact assessment should be carried out (see, to that effect, judgment in Mellor , C‑75/08, EU:C:2009:279, paragraph 51).
43. It follows from Annex III, No 1, that the characteristics of a project must be assessed, inter alia, in relation to its cumulative effects with other projects. Failure to take account of the cumulative effect of one project with other projects must not mean in practice that they all escape the obligation to carry out an assessment when, taken together, they are likely to have significant effects on the environment (see, to that effect, judgment in Brussels Hoofdstedelijk Gewest and Others , EU:C:2011:154, paragraph 36).
45. It follows that a national authority, in ascertaining whether a project must be made subject to an environmental impact assessment, must examine its potential impact jointly with other projects. Moreover, where nothing is specified, that obligation is not restricted only to projects of the same kind. As observed by the Advocate General in point 71 of her Opinion, the preliminary assessment must also consider whether, on account of the effects of other projects, the environmental effects of the exploratory drillings may be greater than they would be in their absence.
46. It should also be borne in mind that the effectiveness of Directive 85/337 would be seriously compromised if the competent authorities of a Member State could, when deciding whether a project must be the subject of an environmental impact assessment, leave out of consideration that part of the project which is located in another Member State (judgment in Umweltanwalt von Kärnten , EU:C:2009:767, paragraph 55). For the same reasons, the assessment of the impact of other projects cannot be confined to municipal boundaries.