1. This reference for a preliminary ruling concerns the interpretation of Article 6 of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (OJ 2001 L 197, p. 30).
2. The reference has been made in proceedings between, on the one hand, the Department of the Environment for Northern Ireland (‘the Department of the Environment’) and, on the other, Seaport (NI) Ltd (‘Seaport’) and Magherafelt District Council, F P McCann (Developments) Ltd, Younger Homes Ltd, Heron Brothers Ltd, G Small Contracts and Creagh Concrete Products Ltd, concerning the validity of the draft plans for Northern Ireland entitled ‘Draft Northern Area Plan 2016’ and ‘Draft Magherafelt Area Plan 2015’. Legal context Directive 2001/42
3. Recitals 14, 15, 17 and 18 in the preamble to Directive 2001/42 read as follows: ‘(14)\tWhere an assessment is required by this Directive, an environmental report should be prepared containing relevant information as set out in this Directive, identifying, describing and evaluating the likely significant environmental effects of implementing the plan or programme, and reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme; … (15) In order to contribute to more transparent decision making and with the aim of ensuring that the information supplied for the assessment is comprehensive and reliable, it is necessary to provide that authorities with relevant environmental responsibilities and the public are to be consulted during the assessment of plans and programmes, and that appropriate time frames are set, allowing sufficient time for consultations, including the expression of opinion. … (17) The environmental report and the opinions expressed by the relevant authorities and the public, as well as the results of any transboundary consultation, should be taken into account during the preparation of the plan or programme and before its adoption or submission to the legislative procedure. (18) Member States should ensure that, when a plan or programme is adopted, the relevant authorities and the public are informed and relevant information is made available to them.’
4. It follows from Article 1 of the directive that one of its fundamental objectives is to require, where plans and programmes are likely to have significant effects on the environment, that an environmental assessment of those plans and programmes be carried out during their preparation and before their adoption.
5. Article 2(a) of Directive 2001/42 provides: ‘For the purposes of this Directive: (a) “plans and programmes” shall mean plans and programmes, including those co-financed by the European Community, as well as any modifications to them: - which are subject to preparation and/or adoption by an authority at national, regional or local level or which are prepared by an authority for adoption, through a legislative procedure by Parliament or Government, and - which are required by legislative, regulatory or administrative provisions’.
6. Article 5 of that directive, entitled ‘Environmental report’, states: ‘1. Where an environmental assessment is required under Article 3(1), an environmental report shall be prepared in which the likely significant effects on the environment of implementing the plan or programme, and reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme, are identified, described and evaluated. The information to be given for this purpose is referred to in Annex I. 2. The environmental report prepared pursuant to paragraph 1 shall include the information that may reasonably be required taking into account current knowledge and methods of assessment, the contents and level of detail in the plan or programme, its stage in the decision-making process and the extent to which certain matters are more appropriately assessed at different levels in that process in order to avoid duplication of the assessment. 3. Relevant information available on environmental effects of the plans and programmes and obtained at other levels of decision-making or through other Community legislation may be used for providing the information referred to in Annex I. 4. The authorities referred to in Article 6(3) shall be consulted when deciding on the scope and level of detail of the information which must be included in the environmental report.’
7. Article 6 of Directive 2001/42, entitled ‘Consultations’, provides: ‘1. The draft plan or programme and the environmental report prepared in accordance with Article 5 shall be made available to the authorities referred to in paragraph 3 of this Article and the public. 2. The authorities referred to in paragraph 3 and the public referred to in paragraph 4 shall be given an early and effective opportunity within appropriate time frames to express their opinion on the draft plan or programme and the accompanying environmental report before the adoption of the plan or programme or its submission to the legislative procedure. 3. Member States shall designate the authorities to be consulted which, by reason of their specific environmental responsibilities, are likely to be concerned by the environmental effects of implementing plans and programmes. 4. Member States shall identify the public for the purposes of paragraph 2, including the public affected or likely to be affected by, or having an interest in, the decision-making subject to this Directive, including relevant non-governmental organisations, such as those promoting environmental protection and other organisations concerned. 5. The detailed arrangements for the information and consultation of the authorities and the public shall be determined by the Member States.’
8. Article 8 of that directive, entitled ‘Decision making’, provides: ‘The environmental report prepared pursuant to Article 5, the opinions expressed pursuant to Article 6 and the results of any transboundary consultations entered into pursuant to Article 7 shall be taken into account during the preparation of the plan or programme and before its adoption or submission to the legislative procedure.’
9. Under Article 9(1) of that directive, when a plan or programme is adopted, the authorities referred to in Article 6(3) and, in particular, the public, must be informed of it and, in particular, the plan or programme as adopted must be made available to them, as well as a statement summarising how environmental considerations have been integrated into it. Under Article 10(1), the Member States are to monitor the significant environmental effects of the implementation of plans or programmes in order to identify at an early stage unforeseen adverse effects and, if required, to undertake appropriate remedial action.
10. Under Article 13(1) of Directive 2001/42, Member States were to bring into force the laws, regulations and administrative provisions necessary to comply with the directive before 21 July 2004. National law
11. The directive was transposed into the law of Northern Ireland by the Environmental Assessment of Plans and Programmes (Northern Ireland) Regulations 2004 (‘the 2004 Regulations’).
12. Article 6(3) of Directive 2001/42 was transposed by Regulation 4 of the 2004 Regulations. The part of Regulation 4 relevant to the main proceedings provides: ‘Consultation body (1) Subject to paragraph (2), for the purposes of these Regulations, the Department of the Environment shall be the consultation body. (2) Where the Department of the Environment is at any time the responsible authority as regards a plan or programme, it shall not at that time exercise the functions under [the 2004] Regulations of the consultation body in relation to that plan or programme; and references to the consultation body in the following provisions of these Regulations shall be construed accordingly.’
13. Regulation 11(1) and (5) of the 2004 Regulations provide that where an environmental assessment is required the ‘responsible authority’ shall prepare, or secure the preparation of, an environmental report and that ‘[w]hen deciding on the scope and level of the information that must be included in the report, the responsible authority shall consult the consultation body’.
14. Article 6(2) of Directive 2001/42 was transposed by Regulation 12 of the 2004 Regulations. That regulation provides: ‘(1) Every draft plan or programme for which an environmental report has been prepared in accordance with regulation 11 and its accompanying environmental report (“the relevant documents”) shall be made available to the consultation body and to the public in accordance with the following provisions of this regulation. (2) As soon as reasonably practicable after their preparation, the responsible authority shall send a copy of the relevant documents to the consultation body and invite it to express its opinion on the relevant documents within a specified period. (3) The responsible authority shall also - (a) within 14 days of the preparation of the relevant documents, publish in accordance with paragraph (5), or secure the publication of, a notice - (i) stating the title of the plan, programme or modification; (ii) stating the address (which may include a website) at which a copy of the relevant documents may be inspected or from which a copy may be obtained; (iii) inviting expressions of opinion on the relevant documents; (iv) stating the address to which, and the period within which, opinions must be sent; and (b) keep a copy of the relevant documents available at its principal office for inspection by the public at all reasonable times and free of charge; and (c) publish a copy of the relevant documents on the authority’s website. (4) The periods referred to in paragraphs (2) and (3)(a)(iv) must be of such length as will ensure that those to whom the invitation is extended are given an early and effective opportunity to express their opinion on the relevant documents. (5) Publication of a notice under paragraph (3)(a) shall be by such means as will ensure that the contents of the notice are likely to come to the attention of the public affected by, or likely to be affected by, or having an interest in, the draft plan or the program. …’ The dispute in the main proceedings and the questions referred for a preliminary ruling
15. At the time of the facts in the main proceedings, the Department of the Environment comprised four executive agencies which formed part of the Department and were subject to its control and responsible for the exercise of some of its statutory powers and functions. None of the four agencies had a separate legal identity but each had its own staff, administrative resources and premises. Those agencies were the Planning Service, the Environment and Heritage Service (‘the EHS’, now called ‘The Northern Ireland Environment Agency’ (NIEA)), the Driver and Vehicle Testing Agency and Driver and Vehicle Licensing Northern Ireland.
16. The Planning Service exercised the Department of the Environment’s statutory functions in relation to the preparation of area development plans and the determination of individual planning applications. The EHS, for its part, was the agency with responsibility for exercising most of the Department’s statutory powers regarding the regulation of the environment, other than planning, and its staff had knowledge of, and expertise in, environmental matters.
17. The Planning Service commenced, in accordance with the national procedures in force at the time, the process, which was conducted prior to the date by which Member States were required to transpose Directive 2001/42, of preparing the Draft Northern Area Plan 2016 and the Draft Magherafelt Area Plan 2015. However, the two draft plans were ultimately published after that date.
18. During the preparation of each of the draft area plans, the Planning Service worked very closely with the EHS in gathering relevant environmental information and seeking advice upon the proposed contents of the plans.
19. On 11 May 2005, the Draft Northern Area Plan 2016 was published by the Planning Service together with the accompanying environmental report. At the time of its publication, the Department of the Environment invited comments and representations from the public. It also sent the draft plan and environmental report to the EHS and other public authorities for consultation purposes and invited comments and representations. It requested that all responses reach it within a period of eight weeks. The Department received a total of 5 250 representations on the draft plan from members of the public and four representations on the environmental report. Seaport made 49 of those representations, one of which related to the content of the environmental report and the conduct of the environmental assessment.
20. The Department of the Environment published the Draft Magherafelt Area Plan 2015 on 24 April 2004 along with an environmental appraisal which had been prepared in accordance with the requirements of national law then in force. The Department subsequently conducted an environmental assessment of the draft area plan and, on 24 May 2005, published an environmental report which it believed at that date was in accordance with the requirements of Directive 2001/42. Copies of the environmental report were sent to the EHS and other interested bodies. The Department invited all those bodies to express their opinions upon the report within a period of six weeks. It received approximately 5 300 representations on that draft plan from members of the public and five representations on the new environmental report.
21. During November 2005, Seaport commenced proceedings before the Queen’s Bench Division of the High Court of Justice in Northern Ireland (United Kingdom), challenging the validity of the Department of the Environment’s actions in publishing the Draft Northern Area Plan 2016. It claimed, in essence, that Directive 2001/42 had not been properly transposed into national law and that the environmental assessment and the environmental report by the Department of the Environment were not in accordance with the requirements of that directive.
22. On 13 December 2005, Magherafelt District Council, F P McCann (Developments) Ltd, Younger Homes Ltd, Heron Brothers Ltd, G Small Contracts and Creagh Concrete Products Ltd commenced proceedings before the same court challenging the publication of the Draft Magherafelt Area Plan 2015, the conduct of the environmental assessment and the content of the environmental report. The grounds of challenge in those proceedings were similar to those raised by Seaport in support of its action.
23. Seaport subsequently commenced further proceedings challenging the non-feasibility declaration in respect of the Draft Northern Area Plan 2016. However, Seaport withdrew those proceedings, and the reference for a preliminary ruling from the Queen’s Bench Division of the High Court of Justice in Northern Ireland was rescinded by order of that court of 23 April 2010 so that, by order of 3 June 2010 of the President of the First Chamber of the Court of Justice in Case C‑182/09 Seaport v Department of the Environment for Northern Ireland , that case was removed from the Court’s register.
24. In its judgment of 7 September 2007, the High Court of Justice in Northern Ireland found that the requirements of Article 6(2) and (3) of Directive 2001/42 had not been correctly transposed by Regulations 4 and 12 of the 2004 Regulations. It found that Regulation 4 had not properly transposed the requirement, under Article 6(3) of the directive, for Member States to designate another consultation authority in circumstances where the Department of the Environment was also the responsible authority for the purposes of preparing the draft plan. It also found that Regulation 12 had not properly transposed the requirements of Article 6(2) of the directive, on the ground that Regulation 12 did not lay down a specific period during which consultation should take place.
25. On 6 November 2007, the Department of the Environment issued the following notice: ‘The Department of the Environment has now conducted a review of its decision to carry out an environmental assessment of the draft plan under the terms of … Directive [2001/42] and the [2004 Regulations] in light of the recent judgment of the High Court. As a result of that review, the Department has now determined that it was not feasible to carry out an environmental assessment of the Draft Northern Area Plan 2016 in accordance with … Directive [2001/42] and the [2004 Regulations] and it hereby gives notice of that determination in accordance with Regulation 6(2) of the [2004 Regulations]’.
26. In a judgment of 13 November 2007, the High Court of Justice in Northern Ireland decided on the measures to be taken to remedy the deficiencies established in its judgment of 7 September 2007. It refused to quash the draft plan but left open the possibility of reconsidering the question once the validity of the determination of 6 November 2007 had been ruled upon.
27. The Department of the Environment appealed to the referring court against the findings of the High Court of Justice in Northern Ireland that the 2004 Regulations had not properly transposed the requirements of Article 6(2) and (3) of Directive 2001/42.
28. In that regard, the Department of the Environment claims, particularly, that, first, where it acts as responsible authority as regards a plan or programme, no duty of consultation arises under Directive 2001/42 because it is fully possessed of relevant expertise and responsibilities; that no other specialised environmental body has such responsibilities; that no other body has been thus designated for Northern Ireland, and that the directive does not impose a duty to create or designate a new body for the Department to consult.
29. Secondly, it submits that ‘contrary to the account in the judgment of the High Court, the Department [of the Environment] did not contend that the [d]irective requires recourse to an internal separation of functions between the Planning Service and the [EHS] when the Department is the responsible body as regards a plan or programme. The Department did however indicate the manner in which in fact the Planning Service and the [EHS] inter-acted as regards the contested draft plans’.
30. The referring court, by decision of 8 September 2008 received at the Court on 16 October 2008, referred to the Court of Justice for a preliminary ruling, questions identical to those in the present case. By order of 20 May 2009 in Case C-454/08 Seaport Investments , that reference was declared manifestly inadmissible on the ground, in particular, that the decision making the reference did not contain any information setting out the legislative and factual context of the main proceedings and did not set out sufficiently clearly and precisely the referring court’s reasons for its uncertainty as to the interpretation of Articles 3, 5 and 6 of Directive 2001/42.
31. It was in those circumstances that the Court of Appeal in Northern Ireland again decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘1. On the proper construction of Directive 2001/42/EC, where a State authority which prepares a plan falling within Article 3 [of that directive] is itself the authority charged with overall environmental responsibility in the Member State, is it open to the Member State to refuse to designate under Article 6(3) [of that directive] any authority to be consulted for the purposes of Articles 5 and 6 [thereof]? 2. On the proper construction of the directive, where the authority preparing a plan falling within Article 3 is itself the authority charged with overall environmental responsibility in the Member State, is the Member State required to ensure that there is a consultation body which will be designated that is separate from that authority? 3. On the proper construction of … [Directive 2001/42], may the requirement in Article 6(2) [of that directive] to the effect that the authorities referred to in Article 6(3) and the public referred to in [Article] 6(4) be given an early and effective opportunity to express their opinion “within appropriate timeframes”, be transposed by rules which provide that the authority responsible for preparing the plan shall authorise the time-limit in each case within which opinions shall be expressed, or must the rules transposing the directive themselves lay down a time-limit, or different time-limits for different circumstances, within which such opinions shall be expressed?’ Consideration of the questions referred The first and second questions
32. By its first two questions, which it is appropriate to consider together, the referring court asks, in essence, whether, in circumstances such as those in the main proceedings, where an authority which has been designated as the authority to be consulted as provided for in Article 6(3) of Directive 2001/42 is itself responsible for the conception of a plan for the purposes of that directive, that provision must be interpreted as requiring that another authority be designated as having particularly to be consulted in connection with the preparation of the environmental report and the adoption of that plan.
33. In that regard, the United Kingdom and Danish Governments and the European Commission submit that, in such circumstances, Article 6(3) of Directive 2001/42 does not require Member States to designate, or to create for that purpose, another authority which must undertake the responsibilities and have the powers usually conferred on the authority which has been designated as having usually to be consulted. They argue, in particular, that the designation and/or creation of such an authority would be superfluous since, by definition, authorities with environmental responsibilities and, consequently, knowledge of, and expertise in, environmental matters are precisely those which should be and, accordingly, are designated by the Member States as consultation authorities for the purposes of that directive.
34. As a preliminary point, the Court notes that under Article 6(3) of that directive the Member States must designate the authorities to be consulted, in particular, for the purposes of the preparation of the environmental report and the adoption of a plan or programme as provided for in that directive. That choice must involve bodies with specific environmental responsibilities and proven skills in that regard.
35. As stated in recital 15 in the preamble to Directive 2001/42, the requirement, under Article 6(3) of that directive, to designate such authorities for the purposes of their consultation in connection with the adoption of a plan or programme likely to have environmental effects within the meaning of that directive is intended to contribute to more transparent decision making and seeks, particularly, to ensure that where an authority, which does not necessarily have environmental expertise or responsibilities, envisages adopting such a plan or programme, the report on its environmental effects, which must accompany that plan or that programme, and that plan or programme take due account of such effects and that reasonable alternatives to that plan or programme are objectively considered.
36. Thus, the authority designated under Article 6(3) of that directive contributes, each time it has to be consulted or informed at the various stages of the process of preparation, adoption and implementation of the plan or programme, to the authority which prepares that plan or programme properly perceiving the environmental effects of that plan or programme on the basis of reliable and comprehensive information.
37. It is clear that a public authority such as, in the main proceedings, a ministry responsible for the environment in a part of a Member State has specific environmental responsibilities and may thus be ‘concerned’ by the environmental effects of implementing plans or programmes within the meaning of Directive 2001/42, since it has environmental expertise in that part of the Member State.
38. Consequently, in circumstances such as those in the main proceedings, where a public authority at ministerial level is responsible for matters connected with the environment, if such an authority, because of the specific responsibilities conferred on it in environmental matters and its expertise therein, has been designated pursuant to Article 6(3) of that directive, it is, as a rule, concerned and in a position to perceive the environmental effects of a plan or programme.
39. The provisions of Directive 2001/42 would, however, be deprived of practical effect if, in circumstances where the authority designated pursuant to Article 6(3) of that directive is itself also required to prepare or adopt a plan or programme, there were, in the administrative structure of the Member State in question, no other body empowered to carry out that function of consultation.
40. In that regard, the information provided in its written observations by the United Kingdom Government shows that, unlike the situations in England, Scotland and Wales, where, under the legislative provisions transposing Directive 2001/42, several authorities have been designated as consultation authorities as provided for in Article 6(3) of that directive, the situation in Northern Ireland is remarkable for the fact that only one authority has been designated, in this case the Department of the Environment, and that it comprises four executive agencies. In addition, it is clear from that information that that department has local powers of its own, corresponding to the devolution of powers in environmental matters in the political organisation of the United Kingdom of Great Britain and Northern Ireland and that, within the framework of that organisation, there is no provision for an authority designated in another part of that Member State to be consulted on plans or programmes concerning Northern Ireland.
41. In such circumstances, where, for part of a Member State’s territory that has decentralised powers, a single authority is designated under Article 6(3) of Directive 2001/42 and that authority is, in a particular case, responsible for the preparation of a plan or programme, that provision does not require that another authority, located in that Member State or in that part of it, be created or designated to undertake the consultations required by that provision.
42. However, in such a situation, Article 6 does require that, within the authority usually responsible for consultation on environmental matters, a functional separation be organised so that an administrative entity internal to it has real autonomy, meaning, in particular, that it is provided with administrative and human resources of its own and is thus in a position to fulfil the tasks entrusted to authorities to be consulted as provided for in that directive, and, in particular, to give an objective opinion on the plan or programme envisaged by the authority to which it is attached, which it is for the referring court to verify.
43. Having regard to the foregoing, the answer to the first and second questions is that, in circumstances such as those in the main proceedings, Article 6(3) of Directive 2001/42 does not require that another authority to be consulted as provided for in that provision be created or designated, provided that, within the authority usually responsible for undertaking consultation on environmental matters and designated as such, a functional separation is organised so that an administrative entity internal to it has real autonomy, meaning, in particular, that it is provided with administrative and human resources of its own and is thus in a position to fulfil the tasks entrusted to authorities to be consulted as provided for in Article 6(3) and, in particular, to give an objective opinion on the plan or programme envisaged by the authority to which it is attached. The third question
44. By its third question, the referring court asks whether Article 6(2) of Directive 2001/42 must be interpreted as requiring that the national legislation transposing the directive lay down precisely the ‘appropriate time-frames’ within which the authorities designated and the public affected or likely to be affected for the purposes of Article 6(3) and (4) should be able to express their opinions on a draft plan or programme and on the environmental report upon such a plan or programme.
45. In that regard, Article 6(2) of that directive requires those authorities and the public affected or likely to be affected to ‘be given an early and effective opportunity’ to express their opinions on the draft plan or programme concerned and on the accompanying environmental report.
46. In order that due account may be taken of those opinions by the authority envisaging the adoption of such a plan or programme, Article 6(2) makes clear, first, that such opinions must be received before the adoption of that plan or that programme and, secondly, that the authorities to be consulted and the public affected or likely to be affected must be given sufficient time to evaluate the envisaged plan or programme and the environmental report upon it and to express their opinions in that regard.
47. In addition, it is important to note that Article 6(5) of Directive 2001/42 provides that the detailed arrangements for the information and consultation of the authorities and the public are to be determined by the Member States.
48. Consequently, Article 6(2) of the directive does not preclude national legislation transposing that provision from requiring an authority envisaging the adoption of a plan or programme likely to have significant effects on the environment to lay down, itself, the period allowed for the consultation authority and relevant public to express their opinions on the relevant documents, provided that, as seems to be the case in the main proceedings, the period actually laid down for each consultation is such as to give them an early and effective opportunity to do so.
49. Nonetheless, laying down the period within which such opinions can be expressed on a case-by-case basis may, in certain circumstances, allow for greater recognition of the complexity of a proposed plan or programme and lead, if appropriate, to the allowance of periods longer than those that might be laid down by law or regulation.
50. Having regard to the foregoing, the answer to the third question is that Article 6(2) of Directive 2001/42 must be interpreted as not requiring that the national legislation transposing the directive lay down precisely the periods within which the authorities designated and the public affected or likely to be affected for the purposes of Article 6(3) and (4) should be able to express their opinions on a particular draft plan or programme and on the environmental report upon it. Consequently, Article 6(2) does not preclude such periods from being laid down on a case-by-case basis by the authority which prepares the plan or programme. However, in that situation, Article 6(2) requires that, for the purposes of consultation of those authorities and the public on a given draft plan or programme, the period actually laid down be sufficient to allow them an effective opportunity to express their opinions in good time on that draft plan or programme and on the environmental report upon it. Costs
51. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.