Stadt Wiener Neustadt v Niederösterreichische Landesregierung.
Date: 2016-11-17
26


With regard to the first aspect of the question referred, it follows from the settled case-law of the Court that Article 1(5) of Directive 85/337 makes the exclusion of a project from the scope of that directive subject to two conditions. Firstly, the details of the project must be adopted by a specific act of legislation. Secondly, the objectives of the directive, including that of supplying information, must be achieved through the legislative process (judgments of 16 September 1999, WWF and Others, C‑435/97, EU:C:1999:418, paragraph 57, and of 18 October 2011, Boxus and Others, C‑128/09 to C‑131/09, C‑134/09 and C‑135/09, EU:C:2011:667, paragraph 37).
27


The first condition means that the legislative act displays the same characteristics as a consent within the meaning of Article 1(2) of Directive 85/337. It must, in particular, grant the developer the right to carry out the project and 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, to that effect, judgments of 16 September 1999, WWF and Others, C‑435/97, EU:C:1999:418, paragraphs 58 and 59, and of 18 October 2011, Boxus and Others, C‑128/09 to C‑131/09, C‑134/09 and C‑135/09, EU:C:2011:667, paragraphs 38 and 39). The legislative act must therefore demonstrate that the objectives of Directive 85/337 have been achieved as regards the project in question (see, to that effect, judgment of 18 October 2011, Boxus and Others, C‑128/09 to C‑131/09, C‑134/09 and C‑135/09, EU:C:2011:667, paragraph 39 and the case-law cited).
28


That is not the case where the act does not include the elements necessary to assess the environmental impact of the project (see, to that effect, judgments of 16 September 1999, WWF and Others, C‑435/97, EU:C:1999:418, paragraph 62, and of 18 October 2011, Boxus and Others, C‑128/09 to C‑131/09, C‑134/09 and C‑135/09, EU:C:2011:667, paragraph 40).
29


The second condition means that the objectives of Directive 85/337 are achieved through the legislative process. It follows from Article 2(1) of that directive 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 judgment of 18 October 2011, Boxus and Others, C‑128/09 to C‑131/09, C‑134/09 and C‑135/09, EU:C:2011:667, paragraph 41 and the case-law cited).
30


Consequently, the legislature must have sufficient information at its disposal at the time when the project is adopted. In that regard, 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 judgment of 18 October 2011, Boxus and Others, C‑128/09 to C‑131/09, C‑134/09 and C‑135/09, EU:C:2011:667, paragraph 43).
31


Although it is for the national court to ascertain whether those conditions have been satisfied, taking 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 (see judgment of 18 October 2011, Boxus and Others, C‑128/09 to C‑131/09, C‑134/09 and C‑135/09, EU:C:2011:667, paragraph 47), it appears, nonetheless, that a legislative provision such as Paragraph 46(20)(4) of the UVP-G 2000 does not meet those requirements.
36


EU law does not preclude national legislation which, in certain cases, permits the regularisation of operations or measures which are unlawful in the light of EU law. However, such a possibility is subject to the condition that it does not offer the persons concerned the opportunity to circumvent EU law or dispense with applying it, and that it should remain the exception (see judgment of 3 July 2008, Commission v Ireland, C‑215/06, EU:C:2008:380, point 57).
37


Accordingly the Court held that legislation which gives regularisation permission, which can be issued even where no exceptional circumstances are proved, the same effects as those attached to a planning consent disregards the requirements of Directive 85/337. Projects for which an environmental impact assessment is required must, by virtue of Article 2(1) of that directive, be identified and then — before the grant of development consent and, therefore, necessarily before they are carried out — must be subject to an application for development consent and to such an assessment (judgment of 3 July 2008, Commission v Ireland, C‑215/06, EU:C:2008:380, paragraph 61).
38


The same is true of a legislative measure, such as Paragraph 46(20)(4) of the UVP-G 2000, which appears to allow, which it is for the referring court to ascertain, without even requiring a later assessment and even where no exceptional circumstances are proved, a project which ought to have been subject to an environmental impact assessment, within the meaning of Article 2(1) of Directive 85/337, to be deemed to have been subject to such an assessment.
40


Nevertheless, that fact alone cannot alter the above conclusion. It is indeed settled case-law of the Court that, in the absence of EU rules in the field, it is for the national legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law, provided that such rules are not less favourable than those governing similar national actions (principle of equivalence) and that they do not render practically impossible or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness).
41


The Court also considers that it is compatible with EU law to lay down reasonable time limits for bringing proceedings in the interests of legal certainty, which protects both the individual and the administrative authority concerned. In particular, it finds that such time limits are not liable to make it in practice impossible or excessively difficult to exercise the rights conferred by EU law (see, to that effect, judgments of 15 April 2010, Barth, C‑542/08, EU:C:2010:193, paragraph 28, and of 16 January 2014, Pohl, C‑429/12, EU:C:2014:12, paragraph 29).
43


However, a national provision under which projects in respect of which the consent can no longer be subject to challenge before the courts, because of the expiry of the time limit for bringing proceedings laid down in national legislation, are purely and simply deemed to be lawfully authorised as regards the obligation to assess their effects on the environment, which it is for the referring court to ascertain, is not compatible with that directive
44


As the Advocate General noted, in essence, in points 42 to 44 of her Opinion, Directive 85/337 already precludes, as such, a provision of that nature, if only because that provision has the legal effect of relieving the competent authorities of the obligation to have regard to the fact that a project within the meaning of that directive has been carried out without its effects on the environment having been assessed and to ensure that such an assessment is made, where works or physical interventions connected with that project require subsequent consent (see, to that effect, judgment of 17 March 2011, Brussels Hoofdstedelijk Gewest and Others, C‑275/09, EU:C:2011:154, paragraph 37).
45


Furthermore, it is the Court’s settled case-law that the Member State is likewise required to make good any harm caused by the failure to carry out an environmental impact assessment (judgment of 7 January 2004, Wells, C‑201/02, EU:C:2004:12, paragraph 66).
46


To that end, the competent authorities are obliged to take all general or particular measures for remedying the failure to carry out such an assessment (judgment of 7 January 2004, Wells, C‑201/02, EU:C:2004:12, paragraph 68).