C-396/92

Development consent was given after the time-limit for implementing the directive had expired and without an assessment of the projects' effects on the environment having 2. The basic rule of the directive is to be taken place in compliance with the directive. found in Article 2, which provides that cer­ tain specified construction works and other projects likely to have significant effects on the environment 'before consent is given ... are to be made subject to an assessment with regard to their effects'. In short, what will be called an environmental impact assessment is to be undertaken. An environmental impact In omitting an environmental impact assess­ assessment is to be undertaken in connec­ ment, the planning authorities referred to a tion, inter alia with the construction of transitional provision in the German Law motorways or express roads. implementing the directive. Under that pro­ vision the environmental impact assessment is only to take place in respect of projects * Original language: Danish. which were not publicly notified before the 1 — OJ 1985 L 175, p. 40. Law came into force.

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OPINION OF MR GULMANN — CASE C-396/92

The plaintiffs in the main proceedings have of which the development consent procedure inter alia claimed that an environmental had already been initiated by that date. impact assessment should have been under­ taken because development consent for the projects was given after the date by which the directive was to be implemented.

5. The question is of considerable signifi­ cance, because development consent pro­ cedures for the projects covered by the directive can be very prolonged and environmental impact assessments, which The court which has submitted the reference entail extensive obligations for the develop­ has doubts whether the transitional provi­ ers and authorities involved, will also nor­ sion is in accordance with the directive and mally be time-consuming. in order to decide that point has referred questions to the Court.

— The basic substantive obligation on The Bund Naturschutz in Bayern eV and a Member States is, according to Article 2, number of the private plaintiffs in the main to ensure that, before consent is given, action, the Netherlands Government and the projects likely to have significant effects Commission claim that, according to the on the environment by virtue inter alia of directive, an environmental impact assess­ their nature, size or location are made ment is to be undertaken for all projects not subject to an assessment with regard to yet approved by the deadline for the direc­ their effects. tive's implementation, whereas Freistaat Bayern, the Municipality of Vilsbiburg, the German Government and the UK take the view that the directive cannot be interpreted in that way.

— Under Article 3, the environmental impact assessment is to identify, describe and assess in an appropriate manner, the direct and indirect effects of the project The directive on the assessment of the concerned on a long list of factors, effects of certain public and private projects namely human beings, fauna and flora; on the environment (the EIA Directive) soil, water, air, climate and the landscape, the inter-action between those factors, material assets and the cultural heritage.

7. Directive 85/337/EEC was adopted by the Council on 27 June 1985 on the basis of Articles 100 and 235 of the EEC Treaty. — The type of projects which are to be According to its preamble, the aim of the made subject to an environmental impact directive is to promote an environmental assessment are laid down in Article 4, in policy whereby the creation of pollution and conjunction with Annex I and II, and nuisances is prevented at source, rather than cover, on the one hand, projects where an by subsequently trying to counteract their assessment is always to be carried out effects, so that the effects on the environment (inter alia motorways and express roads) are to be taken into account at the earliest and, on the other hand, where it is left to possible stage in all technical planning and the Member States to decide whether an decision processes. assessment should be carried out.

Article 1 of that transposition law sets out 2 — Article 5(1) and (2) is worded as follows: '1.In the case of projects which, pursuant to Article 4, must the Gesetz über die Umweltverträglichkeits­ be subjected to an environmental impact assessment in accor­ prüfung (Law on the Environmental Impact dance with Articles 5 to 10, Member States shall adopt the necessary measures to ensure that the developer supplies in Assessment), hereinafter referred to as the an appropriate form the information specified in Annex HI inasmuch as: 'UVPG'. Paragraph 22 contains the above- (a) the Member States consider that the information is rele­ mentioned transitional rules, under which vant to a given stage of the consent procedure and to the specific characteristics of a particular project or type of project and of the environmental features likely to be affected; (b) the Member States consider that a developer may reason­ ably be required to compile this information having 3 — Article 6(1) and (2) is worded as follows: regard inter alia to current knowledge and methods of 1.Member States shall take the measures necessary to ensure assessment. that the authorities likely to be concerned by the project by 2.The information to be provided by the developer in accor­ reason of their specific environmental responsibilities are dance with paragraph 1 shall include at least: given an opportunity to express their opinion on the request — a description of the project comprising information on for development consent. Member States shall designate the the site, design and size of the project, authorities to be consulted for this purpose in general terms — a description of the measures envisaged in order to avoid, or in each case when the request for consent is made ... reduce and, if possible, remedy significant adverse effects, 2. Member States shall ensure that: — the data required to identify and assess the main effects — any request for development consent and any information which the project is likely to have on the environment, gathered pursuant to Article 5 are made available to the — a non-technical summary of the information mentioned public, in indents 1 to 3.' — the public concerned is given the opportunity to express an opinion before the project is initiated.

The transposition law contains in addition, in Articles 2 to 12, provisions on the amend­ ment of various special laws, including Arti­ cle 7 on the amendment of Paragraphs 16 and 17 of the Bundesfernstrassengesetz (Fed­ eral Law on Trunk-Roads). Under that amendment, an environmental impact assess­ ment is to be undertaken both before the The two roads were to relieve the municipal­ Minister for Transport adopts provisions on ity of Vilsbiburg of through traffic on the routes of trunk-roads and before an indi­ Bundesstrasse 299. The first-mentioned vidual trunk-road project is authorized. project constitutes, moreover, a section of a planned 130 km long new motorway link between Rosenheim and Regensburg, herein­ after referred to as 'the new B 15'. It is to be separate from the existing B 15 and serve as a supplementary north-south link for through The facts of the case traffic. Planning for the new B 15 had already begun in the early 1970s. In 1977 and 1978 the necessary planning and route decisions were adopted in respect of the sec­ tion from Landshut to Rosenheim, which is where the disputed section of road is situ­ ated. In 1985 the Bundestag presented the 10. In an application of September 1988, link in the annex to the Law on Trunk-roads which was amplified in November 1989, the and stated that traffic requirements made the building of the new B 15 between Rosen­ heim and Regensburg necessary.

12. The plaintiffs are, for the most part, farmers who will have to relinquish land if the projects are implemented. The other plaintiffs are contesting the projects because In the consent decisions it was stated that, in of the nuisance that will be caused by the case of the two projects, under Para­ through traffic in the future and so forth. graph 22 of the UVPG relating to projects which had already been publicly notified, it had not been necessary to carry out an envi­ ronmental impact assessment.

As stated, the plaintiffs seek to have consent for the two projects withdrawn, inter alia because no environmental impact assessment was carried out before consent was given.

11. It is thus clear that no environmental impact assessment was carried out and that with regard to the projects

13. The Bayerischer Verwaltungsgerichtshof has doubts whether the transitional provi­ sion in Paragraph 22 of the UVPG complies with the EIA Directive and assumes that — the consent procedures were initiated consent for the projects was unlawful if after the expiry of the deadline for imple­ Paragraph 22 is in breach of the directive. In menting the directive, and order to reach a decision on the plaintiffs'

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It is, however, indisputable that it makes sense to reply to the first question as well. If it is answered to the effect that an environ­ The third question, which is only raised in mental impact assessment should be carried the event that the second question is out for all projects which were not yet answered in the affirmative, concerns the approved by the deadline for transposition, a concept of 'project' in connection with roads reply to the second question is superfluous. (whether an environmental impact assess­ In addition, the first question in any case ment should be carried out for the entire raises a question of practical importance, as road link planned or only for the sections in is clear not least from the observations of the respect of which consent is sought). United Kingdom.

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OPINION OF MR GULMANN — CASE C-396/92

Question 1 17. Article 12 of the directive provides that 'Member States shall take the measures nec­ essary to comply with this Directive within three years of its notification'.

16. The first question is worded as follows:

The unconditional obligation of the Member States to comply with the periods laid down for transposition in directives has consis­ 'Is Article 12 of the directive to be inter­ tently been emphasized by the Court, which preted as meaning that in this connection has stated inter alia that national implementing arrangements may not lead to an extension of the period pre­ 5 scribed for implementation in a directive.

19. Despite the question's practical impor­ tance, there is nothing in the directive to say whether an environmental impact assessment should be undertaken for all projects not yet approved or only for projects in respect of which the consent procedure has not yet 23. Reference is made to the fact that it is been initiated. expressly laid down that an environmental impact assessment is to be undertaken for every project before consent is given for its execution; furthermore, the purpose of the directive points towards the obligation extending to all projects which have not been approved by the date when the deadline for implementation of the directive expired. 20. The answer to the question must there­ Moreover, the three-year implementation fore be sought in the specific provisions of period, which is longer than normal in envi­ the directive concerning the content of the ronmental matters, is sufficient to enable the obligation to carry out an environmental Member States to resolve any transitional impact assessment in the light of the direc­ problems and it appears from other environ­ tive's purpose. ment directives that the Council is expressly giving the Member States the opportunity to resolve transitional problems if there is such a need.

21. In that respect it appears most appropri­ ate to start with Article 2 of the directive, according to which the Member States are to 24. May I say right away that those argu­ adopt the measures necessary to ensure that ments are not strong enough to convince me 'before consent is given, projects likely to that that interpretation is correct. That is not have significant effects on the environment primarily because some of the arguments are by virtue inter alia of their nature, size or less than convincing, but because there are location are made subject to an assessment important practical grounds and grounds of with regard to their effects.' legal certainty which — when the nature of

Report, which is dated November 1992, emphasizes the fact that the directive is a framework directive. The Report sets out the many questions of detail which under the directive are left to the Member States to decide, and it states that the broad scope of the directive means that the directive affects many different governmental bodies, public 27. It further appears from the Report that authorities and consent procedures. The at least in the majority of Member States

6 — See COM(93) 28. 7 — See Paragraph 2.1 of the Report.

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BUND NATURSCHUTZ IN BAYERN v FREISTAAT BAYERN

29. Nor can much weight be attached to the Commission's conclusion a contrario from Despite substantially greater progress, the express transitional provisions in other between mid-1988 and mid-1991, the process directives. The directives in question contain of achieving formal compliance was not provisions which in certain specified circum­ complete by July 1991. As ... illustrates, there stances enable the Member States to post­ were a considerable number of additional pone compliance with the directives' require­ legal measures still in the process of formu­ ments with regard to the quality of water, air, lation and approval at that date. Addition­ etc. The requirements of the EIA Directive ally, there are some differences are different in character and, as already stated, in the present case the issue is not whether the Member States are entitled to postpone compliance with the requirement of an environmental impact assessment, but rather of the extent to which the requirement in interpretation ... about the extent to which is applicable to projects where the consent the combination of existing and proposed procedure was under way when the deadline measures are likely to be sufficient to achieve for implementing the directive expired. satisfactory formal compliance.

Failures to achieve satisfactory compliance, six years after the directive was approved, are 8 an obvious major source of concern.' 30. The purpose of the EIA Directive is to ensure that the consent procedure for projects which might have a significant effect 8 — See Paragraph 3.2 of the Report. on the environment is supplemented by

34. Such an interpretation would lead to arbitrary results, in particular to results which could considerably delay the execu­ That is also mentioned in the Commission's tion of projects beneficial to the community Report and is illustrated most clearly in a and result in major inconveniences for devel­ diagram in the Report (2.1) illustrating the opers and the community. EIA process and its relationship to the appraisal, authorization and implementation of projects. The diagram is included as an annex to this Opinion. It shows inter alia that an environmental impact assessment places certain significant obligations on the developer and that in order for the purpose 35. That interpretation would mean that the of the directive to be achieved it is important EIA process would potentially also have to that the developer initiates the EIA before he be carried out in full for projects which per­ submits an application for consent to the haps needed merely formal consent, having project. already undergone a long, thorough and complicated consent procedure (in which the

9 — That is emphasized in the Commission's Report, where the term EIA describes the total environmental impact assess- ment process (see Footnote I to the Report). 10 — See the Commission's Report, Point 2.2, third paragraph.

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BUND NATURSCHUTZ IN BAYERN v FREISTAAT BAYERN

environmental aspects had already, presum­ impact assessment. The principles can, how­ ably, to a large extent been taken into con­ ever, without difficulty be cited as significant sideration). support for an interpretation of the directive to the effect that the Member States may omit the environmental impact assessment for projects in respect of which the consent procedure was initiated before 3 July 1988.

40. There are thus good grounds for, and only weak grounds against, interpreting the 38. It would not necessarily mean that those EIA Directive as meaning that the Member principles would entail the invalidity of an States were not bound to make the projects express provision in the directive to the effect covered by the directive which were not that all projects not approved by 3 July 1988 approved by 3 July 1988 subject to an envi­ should be subject to an environmental ronmental impact assessment, but could restrict the obligation to projects for which the consent procedure had not yet been ini­ 11— See Annex I to the EIA Directive. tiated.

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OPINION OF MR GULMANN — CASE C-396/92

41. It is evident that that interpretation takes made to the project, or the consent proce­ the initiation of the consent procedure as the dure for the project is postponed for such determinant date. It is that date too which is long periods, that it might be right, in order mentioned as one of the two possible deter­ to ensure compliance with the directive, to minant dates in the question referred to the hold that a new consent procedure should be Court. It is at that point that projects come initiated, accompanied by an obligation to to the attention of the authorities and at that carry out an environmental impact assess­ point that the directive enables the authori­ ment. ties to lay down requirements to be fulfilled by the developer with regard to the content and so forth of the information to be pro­ vided.

43. There is no reason in the present case to examine those questions in detail. The issue will possibly have to be clarified in a later case. That interpretation has the disadvantage of using a concept — the 'initiation' of the con­ sent procedure — which in a specific case could well be difficult to apply in practice.

— There is an unconditional obligation to or transpose directives under the case-law of the Court.

(b) the Member States may in the case of transitional provisions take as the relevant — The obligation to carry out an environ­ date that of the later entry into force of mental impact assessment applies to all their national measures for the transposi­ projects for which a consent application tion of the directive?' is submitted or consent procedure is ini­ tiated in any other way after expiry of the period prescribed for implementa­ tion.

45. It follows from answer to the first ques­ tion that a position must be taken on the sec­ ond question. Nothing in the directive can be adduced in support of the Member States' being allowed, when implementing directives, to exempt from the environmental impact assessment obligation projects in respect of which the consent procedure is initiated after expiry of the deadline for transposition.

46. It appears from the above that:

— Under Article 12 of the directive the 47. It makes no difference that projects are Member States were to have adopted the involved which, like the one in point, have

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reached a point in the planning procedure projects in respect of which the consent pro­ where the necessary decisions on traffic cedure was initiated after 3 July 1988. requirements, federal and Land regional planning and routing have been adopted. As mentioned above, the determinant date must, in view of the directive's purpose and con­ tent, necessarily be the date on which the consent procedure for the project in question was initiated. 49. It is worth mentioning, not least in con­ nection with the present case, that in Arti­ cle 2(3) of the directive Member States are given the opportunity in exceptional cases and under certain conditions to 'exempt a specific project in whole or in part from' the 12 48. It is correct, as the German Government directive. and Freistaat Bayern have pointed out, that the transitional provisions in the UVPG arose from the same considerations as those supporting the suggested interpretation of the directive in answer to the first question, namely consideration for the interests of the developers and the community purposes 50. That provision, which certainly cannot underlying the execution of the projects. be relied upon either to support the lawful­ ness of a transitional provision such as that in point or the application of the require­ ment of an environmental impact assessment to every project not yet approved by 3 July 1988, shows that the Community leg­ islature was aware that there could be cases Undoubtedly the delay in Germany's trans­ where there were such pressing reasons that position of the directive may well create seri­ exemption from the environmental impact ous problems, but that circumstance cannot assessment as prescribed in the directive was justify and make lawful a transitional rule necessary and justifiable. The possibility of which does not take account of the fact that exemption applies to all projects and is thus the directive should have been transposed by 3 July 1988 at the latest, and an obligation should therefore have been laid down that all projects covered by consent procedures initi­ 12 — Article 2(3) provides: ated after that date were to be subject to an 'Member States may, in exceptional cases, exempt a specific project in whole or in part from the provisions laid down in environmental impact assessment. this Directive. In this event, the Member States shall: (a) consider whether another form of assessment would be appropriate and whether the information thus collected should be made available to the public; (b) make available to the public concerned the information relating to the exemption and the reasons for granting it; (c) inform the Commission, prior to granting consent, of the reasons justifying the exemption granted, and pro­ vide it with the information made available, where appropriate, to their own nationals. The UVPG's transitional rule is in breach of The Commission shall immediately forward the documents received to the other Member States. the directive inasmuch as it exempts from the The Commission shall report annually to the Council on obligatory environmental impact assessment the application of this paragraph.'

Direct effect of the directive 54. It is not excluded that the Commission and the Netherlands Government are right in saying that the Court, if necessary, could hold that the obligation under the directive to carry out an environmental impact assess­ ment may be relied on in an action brought 51. Freistaat Bayern, the UK and the Ger­ by members of the public before a national man Government have claimed that the court for a declaration that a planning directive does not have direct effect because authority has not complied with its obliga­ its provisions do not appear unconditional tion to carry out an environmental impact and sufficiently precise and that the plaintiffs assessment of projects where the public in the main action cannot therefore rely on it authority is itself the developer. It is possi­ before the national court. ble, on the basis of sufficiently precise and unconditional provisions in the directive, to hold that an environmental impact assess­ ment should be undertaken and to determine the content of the assessment, and on that basis to decide whether that obligation has been complied with by the Member State in 52. The different views concerning the direc­ question. tive's direct effect expressed in the present case demonstrate that it is not a simple ques­ tion to answer.

55. Having regard to the nature of the claim in reliance upon the directive, it can scarcely be a conclusive argument against direct effect 53. The Commission and the Netherlands in the context of the present case that the Government state that there is a sufficiently directive — as Freistaat Bayern, the German

Government and the UK Government 57. The Bayerischer Verwaltungsgerichtshof rightly point out — on many important did not raise a question on that point. It con­ points leaves it to the Member States to lay fined itself to requesting an interpretation of down the detailed rules governing the carry­ the directive with regard to whether the dis­ ing out of the environmental impact assess­ puted transitional provisions in the UVPG ment. Inter alia it may be noted that under are in breach of the directive. Article 2(2) it is left to the Member States to decide whether the environmental impact assessment should be integrated into the existing procedures or those established to comply with the aims of the directive, that under Article 5 the Member States are to adopt the necessary measures to ensure that In the order for reference, the Verwaltungs­ the developer supplies information at the gerichtshof points out that the UVPG came right time and with the appropriate content into force before the consent procedure was and that under Article 6 detailed arrange­ completed and it states in that connection: ments for consultation with the appropriate environmental authorities and the public concerned are to be laid down. That circum­ stance will, of course, be of decisive signifi­ cance in other connections, where members of the public rely on the directive before national courts, for instance in relation to claims that the environmental impact assess­ 'Should the first sentence of Paragraph 22(1) ment has not been carried out properly. 13 of the UVPG be in breach of the directive and therefore invalid, this would not have the effect of rendering the UVPG invalid in its entirety (concept underlying Para­ graph 139 of the Civil Code). By means of the Law of 12 February 1990 the legislature plainly intended to comply with its duty to transpose the directive into national law, quite regardless of the question whether the directive gives the Member States (also) the 56. It is, however, questionable whether in possibility to enact transitional provisions; the present case there is cause for the Court there is nothing whatever to suggest that the to decide the issue of the directive's direct legislature intended anything to the con­ effect. 14 15 trary.'

In my view there is nothing in the directive or, moreover, in Community law to prevent the Verwaltungsgerichtshof from giving the said legal effect to a finding of objective con­ — secondly, that it is clear that no assess­ flict between the directive and the German ment was carried out (it is expressly transitional rules. pointed out in the order that the assess­ ment actually undertaken of the projects' effects on the environment fell well short, even in the defendant's view, of the UPVG 's requirements of an environ­ mental impact assessment);

In particular it should be mentioned that the directive is also aimed at protecting the inter­ ests of members of the public in guarding against environmental nuisances by means of an environmental impact assessment, at all — thirdly, that in any event the plaintiffs, events to the extent that it is shown that the for whom implementation of the projects members of the public in question will be will have an expropriatory effect, are directly affected by execution of the projects entitled under German law to rely on the (on which see Article 6(2)). omission of an environmental impact assessment as a basis for a claim that con­ sent given without a prior environmental impact assessment is unlawful.

59. In the light of the foregoing I do not consider that there are grounds for the Court 58. On the basis of German law, the Verwal­ to express its view on the direct effect of the tungsgerichtshof is already in a position to directive in the present case.

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16 — The definition is worded as follows: 'the execution of construction works or of other installa­ tions or schemes' and 'other interventions in the natural (b)in addition to the area covered by that surroundings and landscape including those involving the section, for the road link as a whole?' extraction of mineral resources'.

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BUND NATURSCHUTZ IN BAYERN v FREISTAAT BAYERN

With reference to the above the Verwal­ 63. Even though, given the fact that the pre­ tungsgerichtshof states that: condition for the question is not satisfied, I would suggest that the Court should not give a reply, I nevertheless believe that this is the place to make some comments on the problems it raises.

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OPINION OF MR GULMANN — CASE C-396/92

which have already been constructed are to mandatory for anything other than the spe­ be linked up by section B, the planning cific projects submitted by developers to the approval for the construction of sections A competent authorities in order to obtain and C will mean that the feasibility of the authorization to carry out construction or planning authority's selecting an alternative other works —· even if the actual application route for section B is severely restricted. relates to only one part of a longer road link which, as normally happens in practice, is to be constructed in stages.

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BUND NATURSCHUTZ IN BAYERN v FREISTAAT BAYERN

70. It is, however, undoubtedly correct that, directive, which is, at the earliest possible as the United Kingdom points out, the pur­ stage in all the technical planning and pose of the directive should not be lost by decision-making processes, to obtain an the projects which should be subject to an overview of the effects of the projects on the environmental impact assessment being given environment and to have projects designed a form which renders an environmental in such a way that they have the least possi­ impact assessment meaningless. The Member ble effect on the environment, That purpose States must ensure that the obligation to entails that as far as practically possible carry out an environmental impact assess­ account should also be taken in the environ­ ment is not circumvented by a definition that mental impact assessment of any current is over-strict or otherwise inappropriate, in plans to extend the specific project in hand. the light of the purpose of the directive, of the projects in respect of which application must be made.

72. For instance, the environmental impact assessment of a project concerning the con­ struction of the first part of a power station 71. The important question in the present should, accordingly, involve the plans to connection is not, however, which projects extend the station's capacity fourfold, when are to be subject to an environmental impact the question of whether the power station's assessment. site is appropriate is being assessed.

Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment should be interpreted as meaning that national rules exempting projects in respect of which the consent pro­ cedure has been initiated after 3 July 1988 from the obligation to undergo an assess­ ment of their effects on the environment are in breach of the directive.

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BUND NATURSCHUTZ IN BAYERN v FREISTAAT BAYERN

Annexe to the Opinion in Case C-396/92 Figure 2.1. A simplifield flow chart of the EIA process and its relationship to project appraisal, authorization and implementation EIA Process Project development process

Developer reviews the likely effects of Developer reviews and evaluates alter native alternatives and uses this infor mation when ways of achieving his corporate planning choosing between them. objectives. (Very limited provision for this in the Directive - see Annexe III.)

Developer deter mines whether the scheme is Developer chooses his preferred scheme, likely to need an EIA (the screening stage). If so, he then deter mines the scope of the plans and designs its development, and assessment. Mitigating measures are devised, identifies, evaluates and chooses between where appropriate, and are integrated into different variants of the scheme. the scheme. (Some provision in the Directive - see Articles 2-4 and Annexes I-III.)

Project implemented. Consequences of implementation and compliance with consent conditions are monitored. In certain circumstances this may lead to project modifications. (No provision for this in the Directive.)

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