Burgemeester en wethouders van Haarlemmerliede en Spaarnwoude and Others v Gedeputeerde Staten van Noord-Holland.
Date: 1998-06-18
20 It should be noted, as a preliminary, that it is for the national court to determine in each case and on the basis of the applicable national law whether approval of the development plan constitutes consent within the meaning of Article 1(2), that is to say a decision of the competent authority which entitles the developer to proceed with the project.
22 In order to reply to the question raised by the national court, it must be noted that it is settled case-law that there is nothing in the directive which could be construed as authorising the Member States to exempt projects in respect of which the consent procedures were initiated after the deadline of 3 July 1988 from the obligation to carry out an environmental impact assessment (Case C-396/92 Bund Naturschutz in Bayern and Others [1994] ECR I-3717, paragraph 18).  Accordingly, in the case of such projects the principle stated in Article 2(1) of the directive applies, according to which projects likely to have significant effects on the environment are subject to an environmental assessment.
23 However, since the directive does not make provision for transitional rules covering projects in respect of which the consent procedure was initiated before 3 July 1988 and which were still in progress on that date, the Court has held that that principle does not apply where the application for consent for a project was formally lodged before 3 July 1988.  It has stated that that formal criterion is the only one which accords with the principle of legal certainty and enables the effectiveness of the directive to be safeguarded (Case C-431/92 Commission v Germany [1995] ECR I-2189, paragraph 32).
24 The reason for that is that the directive is primarily designed to cover large-scale projects which will most often require a long time to complete.  It would therefore not be appropriate for the relevant procedures, which are already complex at national level and which were formally initiated prior to the date of the expiry of the period for transposing the directive, to be made more cumbersome and time-consuming by the specific requirements imposed by the directive, and for situations already established to be affected by it.
25 However, the circumstances of this case do not concern a consent procedure for a project which is subject to an assessment, which was formally initiated before 3 July 1988, and which was still in progress on that date.  On the contrary, it concerns an application made after 3 July 1988 seeking fresh consent for a project listed in Annex I of the directive and incorporating the development provided for in a project for which consent was obtained years or even decades previously, without any environmental assessment being made in accordance with the requirements of the directive.  Despite that, scarcely any progress was made in implementing the project, the developer for which is a public authority.
26 In such a case, the considerations which led the Court to hold that the requirement of an environmental assessment need not apply in Commission v Germany, cited above, cannot apply in this case, particularly as national legal remedies are available in respect of the new consent procedure.
27 Accordingly, where, as in the main proceedings, for reasons inherent in the applicable national rules, a fresh procedure is formally initiated after 3 July 1988, that procedure is subject to the obligations regarding environmental assessments imposed by the directive.  Any other solution would run counter to the principle that an environmental assessment must be made of certain major projects, set out in Article 2 of the directive, and would compromise its effectiveness.
28 Consequently, the reply to the national court must be that the directive is to be interpreted as not permitting Member States to waive the obligations regarding environmental assessments in the case of projects listed in Annex I of the directive where
- the projects have already been the subject of a consent granted prior to 3 July 1988, the date by which the directive was to have been transposed into national law,
- the consent was not preceded by an environmental assessment in accordance with the requirements of the directive and no use was made of it, and
- a fresh consent procedure was formally initiated after 3 July 1988. Costs