C-81/96

HAARLEMMERLIEDE EN SPAARNWOUDE AND OTHERS v GEDEPUTEERDE STATEN VAN NOORD-HOLLAND

OPINION OF ADVOCATE GENERAL MISCHO delivered on 5 March 1998 *

1. The Municipal Council of Haarlemmer- within the scope of national regulations liede en Spaarnwoude adopted the 'Ruigoord requiring an environmental impact assess­ 1992' zoning plan on 29 September 1992, and ment, but that none was required in this the provincial councillors of North Holland case, as those regulations specify that that is approved it by a decision of 18 May 1993. not compulsory for plans with the same con­ The plan authorises the construction of a tent as earlier plans. It is common ground port and an industrial zone over an area of that works envisaged under the 'Ruigoord 2 some 6.5 km extending the western port 1992' zoning plan are taken from the 'Lan­ area of Amsterdam to the east of the site in delijk gebied 1968' zoning plan and the question. 'Amsterdam-Noordzeekanaalgebied 1979' and 'Amsterdam-Noordzeekanaalgebied 1987' regional plans, the implementation of which extended no further than raising part of the boundaries with sand at the end of the 1960s. 2. The 'Ruigoord 1992' zoning plan replaces the 'Landelijk gebied 1968' zoning plan and their object is the same. The legality of the decision of 18 May 1993 was contested in an action brought by a number of persons before the Netherlands Raad van State (Council of State) (Administrative Section) on the grounds that there was no prior assessment of the environmental conse­ quences of the construction works autho­ 4. The Raad van State had doubts as to rised by this plan, contrary to the provisions whether those regulations were compatible of Council Directive 85/337/EEC of 27 June with the directive and therefore ordered a 1985 on the assessment of the effects of cer­ stay of proceedings on 12 March 1996, refer­ tain public and private projects on the envi­ ring the following question to the Court of 1 ronment. Justice for a preliminary ruling:

6. Article 4(1) provides that '... projects of the classes listed in Annex I shall be made 9. Finally, without going into detail it may subject to assessment in accordance with be noted that the texts transposing the direc­ Articles 5 to 10', subject to the option tive into Netherlands law include the Besluit accorded to Member States by Article 2(3) of Milieu-effectrapportage (Order on Environ­ granting total or partial exemption from the mental Impact Assessment) of 20 May 1987, directive for specific projects in exceptional which came into force on 1 September of the cases. Annex I, point 8, covers 'trading ports same year. The order requires an environ­ and also inland waterways and ports for mental impact study to be made prior to any

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decision to build a port of the type covered 12. Consequently we are dealing with an by point 8 of Annex I to the directive. action in which the facts are clear. The deve­ lopment provided for in the 'Ruigoord 1992' zoning plan requires an environmental impact assessment both under the directive and under national legislation.

10. However, Article 9(2) of the Order also specifies that an environmental impact study is not compulsory if an 'activity' within the meaning of the Order is already included in 13. However, that assessment was not con­ a current structural or zoning plan or if its ducted, and under national regulations was site is substantially maintained when such not required, as the projects were already plans are revised or a new structural or zon­ included in an earlier plan which was not ing plan is drawn up; it is that point which preceded by an environmental impact study has given rise to the case before us. and which was adopted before the deadline for transposition of the directive.

15. However, the Austrian Government and and the Commission 'to explain in writing the Commission do not share this view. The the legal consequences under Netherlands Austrian Government argues that the direc­ legislation of approval by the regional depu­ tive does not apply to land development tation of a structural plan, particularly schemes, so there is no need for the Court to whether the decision granting approval spe­ give a preliminary ruling. In support of that cifically appoints a developer, whether it view, it argues that it is precisely because includes a development consent within the such plans are outside the scope of the direc­ meaning of Article 1 of Council Directive tive that the Commission is trying at present 85/337 authorising the developer to carry to draft a directive on 'a concept of the out the structural plan concerned and, in this assessment of environmental consequences', case, whether such a development consent to provide an environmental study pro­ remains valid for the whole period of the cedure applicable to both actual and pre- approval of the plan concerned'. development plans.

18. From the submissions to the Court it appears that the difference between the two 16. The Commission has analysed the Neth­ contentions is not as clear as one might have erlands legislation and is of the opinion that thought at first. a development plan can in no case be regarded as a development consent involving a compulsory environmental impact study; this obligation arises at a later stage, when the contractor, as developer, is authorised to carry out the plan.

meets all the development plan's require­ correct application. Among the cases which ments, so that it has powers of assessment have led the Court to analyse the obligations regarding environmental considerations only arising from the directive, two seem to me to during the procedure for approving that be relevant to the present question, these plan. being Bund Naturschutz in Bayern 2 and 3 Commission v Germany. These cases dem­ onstrate that whilst the Community legisla­ tor gave the Member States three years in which to comply with the directive, it refrained from laying down the provisions necessary to settle the problems which 20. In view of that information, and taking would certainly arise in due course in apply­ account of the fact that the Netherlands ing the directive. authorities, and the courts of the Nether­ lands, are certainly best placed to interpret Netherlands legislation, I am of the opinion that the Court should reply to the question, and, like the Raad van State, I regard it as established that the Netherlands decisions adopting development plans such as the 'Landelijk gebied 1968' and 'Ruigoord 1992' zoning plans are development consents within the meaning of Article 1(2) of the 23. Nevertheless, it was easy to foresee that directive. a project within the scope of the directive might have been considered during the trans­ position period and the consent procedure be still unfinished when that period expired. Did such projects require an environmental impact study, even though this was not com­ pulsory when the consent procedure com­ 21. If the national court has asked us for a menced, or could they be exempt? ruling it is obviously because it can find no direct and explicit answer in the text of the directive, which has not foreseen the case of a development consent replacing an earlier consent with no change in its object and scope.

certainty and in the light of the principle of 27. It is clear that our interpretation of the proportionality; however, he recognised that directive must be guided by the need to that would not resolve all the problems, as in make it effective, and there should therefore some cases it could be difficult to determine be no question of giving Member States an whether or not the consent procedure had opportunity to postpone the systematic and been commenced before the deadline for effective implementation of an environmental transposition. The Court was able to give a impact study in cases specified in the direc­ preliminary ruling on the case without tive. The legislature certainly intended that expressing a view on this point, which was environmental considerations should effec­ only settled in the second case along the lines tively be taken into account by means of an recommended by Advocate General Gul- appropriate assessment once the three-year mann, whose viewpoint Advocate General period specified by the directive had expired. Elmer adopted in his own Opinion.

28. However, we must also recognise that the directive does not exclude the possibility of using a development consent granted without an environmental impact study before the deadline of 3 July 1988 to carry 25. In substance the Court decided that out subsequent work which would entail a Member States could exempt projects from preliminary study today. the environmental impact assessment if a for­ mal consent application had been lodged before 3 July 1988.

29. In other words, previous development consents are not null and void if the project was not completed by 3 July 1988.

32. I will refrain from giving an opinion on whether in doing so the Netherlands Gov­ ernment has transposed the directive cor­ rectly, and will only stress that we are deal­ ing with the environment, a field in which certainties become obsolete particularly rap­ 36. In the question referred, the Netherlands idly. Who cannot call to mind some grandi­ Raad van State mentions 'a consent' which ose project drawn up ten years ago, or even 'relates to a project for which consent had more recently, in the name of economic been granted before 3 July 1988'. development (sacrosanct) or simply of progress, unopposed at the time but not implemented for lack of funds, and which no-one would dare to recommend today because of the foreseeable impact on the environment?

37. The fact that this means a new consent is equally clear in the light of the facts on which the main action is based.

33. Despite this the directive is also silent on the period of validity of consents granted 38. It should be recalled that the Haarlem- under its rules, yet again relying on the merliede en Spaarnwoude Municipal Council Member States to act in the spirit of the initially adopted in 1968 a development plan directive and in accordance with their gen­ including the construction of a port and an eral obligations under Article 5 of the Treaty. industrial zone ('Landelijk gebied 1968').

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OPINION OF MR MISCHO — CASE C-81/96

42. The Raad van State is therefore seeking in fact a ruling on a consent relating to a new plan. That being so, and if this is a new plan calling for a new development consent, there must also be a new application procedure. The fact that the 'Ruigoord 1992' plan has been the subject of a domestic action makes this plain. 45. It is perhaps this argument which implic­ itly underlies the transitional provisions in the Netherlands legislation, according to which an environmental impact assessment report is not compulsory, inter alia where an activity is pursued under a current structural 43. What are the legal consequences of such or zoning plan, or where these plans have a situation in the light of the directive? In

5 — Judgment cited earlier, paragraph 18. 4 — Reference, p. 4, third to last paragraph (English version). 6 — Judgment cited earlier, paragraph 32.

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been reviewed or a new structural or zoning 49. In circumstances such as these it seems plan adopted, provided that the location of to me impossible to argue that this is a single the activity is substantially maintained and procedure commencing with a formal appli­ does not conflict with a regional plan in cation in 1968. 7 force.

50. Consequently, I believe that, to ensure 46. It must be noted, however, that the that the directive is effective, the Court must directive lays emphasis on the developer. find as follows: if a procedure leading to a Under Article 1(2) this term covers either the development consent, within the meaning of applicant for a development consent for a the directive, to carry out works covered by private project or the public authority which Annex I to the directive was commenced by initiates a project. the formal introduction of a new application after 3 July 1988, this consent must be pre­ ceded by an environmental impact assess­ ment meeting the conditions laid down in Articles 5 to 10 of the directive, regardless of whether the consent involves something new as compared with a previous consent, valid or void.

54. Thirdly, it may claim to be based both on good sense and on the principles gener­ ally followed in resolving problems relating to the effect of earlier legal rules, as it deter­ 57. At the hearing the Netherlands represen­ mines that present-day decisions must apply tative asked if the Court could limit the the procedural rules in force at present. scope in time of its preliminary ruling if it was not in line with his Government's sug­ gestion. In view of the Court's consistent case-law it seems to me difficult to comply with this request, as the necessary conditions are not met. Even if there were a risk of seri­ ous economic repercussions, due in particu­ lar to the many legal relationships created in 55. Fourthly, it seems to me to respect the good faith on the basis of national regula­ requirements of legal certainty, as we may tions considered to be valid, I find it hard to assume that the decision of national authori­ believe that individuals and national authori­ ties to substitute one consent for another, ties have been encouraged to take action depriving it of validity, has been taken to contrary to Community regulations because meet these requirements, which are familiar of an objective and significant uncertainty in Member States' national laws. Finally, this regarding their scope, to which uncertainty seems to be the only solution which upholds the conduct of other Member States or of the the credibility of the Community's environ­ Commission might possibly have contrib­ mental policy. uted.

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HAARLEMMERLIEDE EN SPAARNWOUDE AND OTHERS v GEDEPUTEERDE STATEN VAN NOORD-HOLLAND