Antoine Boxus and Willy Roua (C-128/09), Guido Durlet and Others (C-129/09), Paul Fastrez and Henriette Fastrez (C-130/09), Philippe Daras (C-131/09), Association des riverains et habitants des communes proches de l’aéroport BSCA (Brussels South Charleroi Airport) (ARACh) (C-134/09 and C-135/09), Bernard Page (C-134/09) and Léon L’Hoir and Nadine Dartois (C-135/09) v Région wallonne.
Date: 2011-10-18
22. In that regard, it must be recalled that it is for the national court before which the dispute has been brought, which alone has direct knowledge of the facts giving rise to the dispute and must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of European Union law, the Court of Justice is bound, in principle, to give a ruling (see, inter alia, Case C‑415/93 Bosman [1995] ECR I‑4921, paragraph 59).
23. However, it is clear from the settled case-law of the Court that the need to provide an interpretation of European Union law which will be of use to the national court makes it necessary for the national court to define the factual and legislative context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based (see, inter alia, Joined Cases C‑320/90 to C‑322/90 Telemarsicabruzzo and Others  [1993] ECR I‑393, paragraph 6).
24. The information provided in orders for reference serves not only to enable the Court to give helpful answers but also to enable the governments of the Member States and the other interested parties to submit observations in accordance with Article 23 of the Statute of the Court of Justice of the European Union. It is the Court’s duty to ensure that the opportunity to submit observations is safeguarded, having regard to the fact that, by virtue of that provision, only the orders for reference are notified to the interested parties, accompanied by a translation in the official language or languages of each Member State (See Joined Cases 141/81 to 143/81 Holdijk and Others  [1982] ECR 1299, paragraph 6).
31. It must be recalled in that regard that a court or tribunal against whose decisions there is no judicial remedy under national law is required, where a question of European Union law is raised before it, to comply with its obligation to bring the matter before the Court of Justice, unless it has established that the question raised is irrelevant or that the provision of European Union law in question has already been interpreted by the Court or that the correct application of European Union law is so obvious as to leave no scope for any reasonable doubt (see, in particular, Case 283/81 Cilfit and Others  [1982] ECR 3415, paragraph 21).
32. However, it follows from settled case-law that national courts and tribunals remain, in any event, entirely at liberty to bring a matter before the Court of Justice if they consider it appropriate to do so (see, in particular, Cilfit and Others , paragraph 15) and the fact that the provisions whose interpretation is sought have already been interpreted by the Court or can be regarded as leaving no scope for any reasonable doubt does not deprive the Court of jurisdiction to give a ruling (see, to that effect, in particular, Case C‑260/07 Pedro IV Servicios  [2009] ECR I‑2437, paragraph 31).
36. It follows from that provision that, where the objectives of Directive 85/337, including that of supplying information, are achieved through a legislative process, the directive does not apply to the project in question (see Case C‑287/98 Linster  [2000] ECR I‑6917, paragraph 51).
37. The provision lays down two conditions for the exclusion of a project from the ambit of Directive 85/337. 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 (see Case C‑435/97 WWF and Others  [1999] ECR I‑5613, paragraph 57).
38. The first condition entails, first of all, adoption of the project by a specific legislative act. It should be pointed out in this regard that the terms ‘project’ and ‘consent’ are defined in Article 1(2) of Directive 85/337. Thus, a legislative act adopting a project must, if it is to come within the ambit of Article 1(5) of the directive, be specific and display the same characteristics as a consent of that kind. It must in particular grant the developer the right to carry out the project (see WWF and Others , paragraph 58).
39. The project must also be adopted in detail, that is to say, in a sufficiently precise and definitive manner, so that the legislative act adopting the project must include, like a development consent, following their consideration by the legislature, all the elements of the project relevant to the environmental impact assessment (see WWF and Others , paragraph 59). The legislative act must therefore demonstrate that the objectives of Directive 85/337 have been achieved as regards the project in question (see Linster , paragraph 56).
40. It follows that the details of a project cannot be considered to be adopted by a legislative act, for the purposes of Article 1(5) of Directive 85/337, if that act does not include the elements necessary to assess the environmental impact of the project or if the adoption of other measures is needed in order for the developer to be entitled to proceed with the project (see WWF and Others , paragraph 62, and Linster , paragraph 57).
41. As regards the second condition, it is clear from Article 2(1) of Directive 85/337 that the fundamental objective of the directive is to ensure that projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to an assessment with regard to their environmental effects before consent is given (see Linster , paragraph 52).
42. In addition, the sixth recital in the preamble to Directive 85/337 states that the 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 in question (see WWF and Others , paragraph 61, and Linster , paragraph 53).
43. Consequently, the legislature must have sufficient information at its disposal at the time when the project is adopted. It is apparent from Article 5(3) of Directive 85/337 and Annex IV thereto that the minimum information to be supplied by the developer is to include a description of the project comprising information on the site, design and size of the project, a description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects, and the data required to identify and assess the main effects which the project is likely to have on the environment (see Linster , paragraph 55).
44. Having regard to the characteristics of procedures for the approval of a plan in more than one phase, Directive 85/337 does not preclude a single project from being approved by two acts of national law which are considered, as a whole, to be a development consent within the meaning of Article 1(2) thereof (see, to that effect, Case C‑508/03 Commission  v United Kingdom  [2006] ECR I‑3969, paragraph 102). Consequently, the legislature can, when adopting the final act authorising a project, take advantage of the information gathered during a prior administrative procedure.
45. However, the existence of such an administrative procedure cannot have the effect of enabling a project to be regarded as a project the details of which are adopted by a specific legislative act in accordance with Article 1(5) of Directive 85/337 if that legislati ve act does not fulfil the two conditions set out in paragraph 37 of the present judgment. Thus, a legislative act which does no more than simply ‘ratify’ a pre-existing administrative act, by merely referring to overriding reasons in the general interest without a substantive legislative process which enabling those conditions to be fulfilled having first been commenced, cannot be regarded as a specific legislative act for the purposes of that provision and is therefore not sufficient to exclude a project from the ambit of Directive 85/337.
46. In particular, a legislative act adopted without the members of the legislative body having had available to them the information mentioned in paragraph 43 of the present judgment cannot fall within the ambit of Article 1(5) of Directive 85/337.
47. It is for the national court to determine whether those conditions have been satisfied. For that purpose, it must take account both of the content of the legislative act adopted and of the entire legislative process which led to its adoption, in particular the preparatory documents and parliamentary debates.
50. It follows from Article 2(2) of the Aarhus Convention, read together with Articles 6 and 9 thereof, and from Article 1(5) of Directive 85/337 that neither the Convention nor the directive applies to projects adopted by a legislative act satisfying the conditions set out in paragraph 37 of the present judgment.
51. For other projects, that is to say, those adopted either by an act which is not legislative in nature or by a legislative act which does not fulfil those conditions, it follows from the very terms of Article 9(2) of the Aarhus Convention and Article 10a of Directive 85/337 that the Member States must provide for a review procedure before a court of law or another independent and impartial body established by law for challenging the substantive or procedural legality of decisions, acts or omissions subject, respectively, to Article 6 of the Aarhus Convention or Directive 85/337.
52. By virtue of their procedural autonomy, the Member States have discretion in implementing Article 9(2) of the Aarhus Convention and Article 10a of Directive 85/337, subject to observance of the principles of equivalence and effectiveness. It is for them, in particular, to determine, in so far as the abovementioned provisions are complied with, which court of law or which independent and impartial body established by law is to have jurisdiction in respect of the review procedure referred to in those provisions and what procedural rules are applicable.
53. However, Article 9 of the Aarhus Convention and Article 10a of Directive 85/337 would lose all effectiveness if the mere fact that a project is adopted by a legislative act which does not fulfil the conditions set out in paragraph 37 of the present judgment were to make it immune to any review procedure for challenging its substantive or procedural legality within the meaning of those provisions.
54. The requirements flowing from Article 9 of the Aarhus Convention and Article 10a of Directive 85/337 presuppose in this regard that, when a project falling within the ambit of Article 6 of the Aarhus Convention or of Directive 85/337 is adopted by a legislative act, the question whether that legislative act satisfies the conditions laid down in Article 1(5) of that directive and set out in paragraph 37 of the present judgment must be amenable to review, under the national procedural rules, by a court of law or an independent and impartial body established by law.
55. If no review procedure of the nature and scope set out above were available in respect of such an act, any national court before which an action falling within its jurisdiction is brought would have the task of carrying out the review described in the previous paragraph and, as the case may be, drawing the necessary conclusions by disapplying that legislative act.
56. In the present instance, if the referring court finds that the Decree of the Walloon Parliament of 17 July 2008 does not satisfy the conditions laid down in Article 1(5) of Directive 85/337 and recalled in paragraph 37 of the present judgment, and if it turns out that, under the applicable national rules, no court of law or independent and impartial body established by law has jurisdiction to review the substantive or procedural validity of that decree, the decree must then be regarded as incompatible with the requirements flowing from Article 9 of the Aarhus Convention and Article 10a of Directive 85/337. The referring court must then disapply it.