C-435/97

WWF AND OTHERS V AUTONOME PROVINZ BOZEN AND OTHERS

OPINION OF ADVOCATE GENERAL MISCHO delivered on 29 April 1999 *

1. The Verwaltungsgericht, Autonome Sek- airfield which since 1925/26 has been used tion für die Provinz Bozen (Administrative for military purposes, for private flying, Court, Autonomous Division for the Pro- and, to a limited extent and for a short vince of Bolzano), Italy, informs the Court time, also for civil purposes, into an airport that a project for the 'restructuring of which can be used commercially, with the Bolzano St Jakob Airport' was approved aim of having regular scheduled flights, and in 1997 by Decision No 1230 of 27 March also charter and cargo flights. 1997 of the Regional Government of the Autonomous Province of Bolzano-South - Tyrol and by letter of 11 April 1997 from the Landeshauptmann (Regional Prime Minister).

9. As regards airports, paragraph 11(e) of Annex II provides that an environmental 6. The project was also considered by the assessment is required for all projects for Regional Amtsdirektorenkonferenz (Con- the new construction of airports. ference of Directors) and an opinion was issued under the 'simplified environmental assessment' procedure provided for in Arti- cles 11 to 13 of Law No 27 of the Province of Bolzano of 7 July 1992 concerning the introduction of environmental impact assessments (hereinafter 'Law No 27/92'). 10. The respondents contend that the pro- ject at issue is accordingly not covered by that provision because it does not involve the construction of a new airport but the alteration of an existing airfield.

7. According to the referring court, the national rules are as follows:

11. Under the second paragraph of Arti- cle 2 of Law 27/92, projects comprising An environmental assessment is required extensions and alterations are to be subject for the projects listed in Annex I to Law to an environmental assessment. No 27/92.

8. An environmental assessment is also 12. Firstly, this obligation applies if the required for the projects set out in Annex II projects exceed by more than 20% the to Law No 27/92. That obligation is, thresholds for separate projects specified in

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19. Article 1(5) provides: Member States consider that their charac- teristics so require.

'This Directive shall not apply to projects the details of which are adopted by a specific act of national legislation, since To this end Member States may inter alia the objectives of this Directive, including specify certain types of projects as being that of supplying information, are achieved subject to an assessment or may establish through the legislative process.' the criteria and/or thresholds necessary to determine which of the projects of the classes listed in Annex II are to be subject to an assessment in accordance with Arti- cles 5 to 10.' 20. According to Article 2(1) of the Direc- tive, 'Member States shall adopt all mea- sures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue inter alia, of their nature, size or 22. Among the projects referred to in location are made subject to an assessment Article 4(1) of the Directive, paragraph 7 with regard to their effects. These projects of Annex I mentions 'Construction of... are defined in Article 4.' airports with a basic runway length of 2 100 m or more.'

21. Article 4 provides:

23. As regards the projects referred to in Article 4(2) of the Directive, they include, in point 10(d) of Annex II, 'Construction ' 1 . Subject to Article 2(3), projects of the of... airfields (projects not listed in classes listed in Annex I shall be made Annex I)'. subject to an assessment in accordance with Articles 5 to 10.

(2) Is Article 4(2) of the Directive, in (b) that the margin of discretion conjunction with Article 2(1), to be enjoyed by the Member States is interpreted as meaning that the obliga- limited by the obligation laid down tion to carry out an environmental in Article 2(1) of the Directive to assessment also applies to the extension subject to an environmental assess- and restructuring of the projects in ment in any event those projects Annex II if significant effects on the likely to have significant effects on environment are likely, or do Arti-

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cles 4(2) and 2(1) allow environmen- which, while provided for in a legisla- tally significant projects comprising tive provision which sets out a pro- restructuring to be excluded, expressly gramme, are approved under a separate or impliedly (for example, by rules administrative procedure ? which are not applicable to airports), from environmental assessment from the outset?

What minimum environmental require- ments must the "legislative process" (3) To what extent does Article 2(1) of the contain in order to achieve the "objec- Directive, also in conjunction with tives... including that of supplying Article 2(2), allow the Member States information" pursued by the Directive? to introduce (or use) alternative assess- ment procedures to that of an ordinary environmental assessment and if a positive answer is given to this ques- tion:

(5) Is the exclusion of projects from the scope of the Directive pursuant to Article 1(4) to be applied to an airfield used for both civil and military pur- (a) what essential requirements or poses? minimum requirements must such an assessment satisfy in order to accord with the objectives of the Directive and, in particular,

26. A few preliminary observations are called for. The first and second questions

30. These two questions should be dealt 27. The appellants in the main proceedings with together because they relate essentially are asking the Court to rule on what the to the same issue, namely the extent of the practical consequences of its decision might discretion left to Member States by the be, particularly in view of the fact that the abovementioned Article 4(2) of the Direc- work at issue appears to be already well tive. advanced.

31. The national court would like to know, 28. The respondents have also made a firstly, whether, under Article 4(2), Mem- number of criticisms of the order for ber States are entitled from the outset to reference, contesting the statement of the exclude in their entirety certain classes of facts. They also claim that the referring projects listed in Annex II to the Directive court exceeded its powers by taking certain from the obligation to carry out an envir- decisions. onmental assessment or if their discretion in this matter is limited by Article 2(1) of the Directive.

29. Considerations such as those set out above do not fall within the jurisdiction of the Court in the course of preliminary 32. As all the intervening parties make ruling proceedings. The Court is only called clear, the settled case-law of the Court upon to provide the national court, on the points to the second answer.

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38. The first question to be considered is whether, in the light of those principles, the project at issue is covered by the Directive. 35. Those principles should be extended to cover alterations and other restructuring

2 — Case C-72/95 Kraaijeveld and Others [1996] ECR I-5403. See also Case C-133/94 Commission ν Belgium [1996] ECR 39. There is no disagreement between the I-2323. various intervening parties that, as the

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court making the reference also recognises, tive should be interpreted broadly, in order the project at issue cannot fall within not to jeopardise its effectiveness. This is Annex I to the Directive. Point 7 of that why the Court has already ruled, as we saw Annex covers the 'Construction... of air- above, that alterations to projects coming ports with a basic runway length of 2 100 m under Annex II are also covered by that or more', whereas the project at issue Annex, even if they are not explicitly relates to a runway which is to be extended mentioned in it. by 1 040 metres to 1 400 metres.

40. The parties disagree, however, over 44. It will also be seen that the legislature whether the project should be regarded as confirmed that interpretation in the new falling within Annex II, point 10(d) of version of Annex II introduced by Council which relates to the 'Construction... of Directive 97/11/EC of 3 March 1997, airfields (projects not listed in Annex I)'. amending Directive 85/337. 3 Indeed, it includes an additional point 13, which reads:

51. At all events, the question whether, in 47. The present case, however, has certain adopting Law No 27/92 excluding the special aspects. alterations to the airport from the obliga- tion to carry out an impact assessment, the legislature exceeded the margin of discre- tion it enjoyed under Article 4(2) of the Directive, which is what the referring court is asking the Court to rule, is not decisive as 48. Thus, it is claimed by the respondents regards the case in the main proceedings. that the airport in question is the only one in the entire region capable of being restructured. This consideration was clearly in the mind of the regional legislature when it adopted Law No 27/92. 52. It is not disputed between the parties that, in the present case, an examination was carried out into the environmental effects of the specific project concerned. The developer for the proposed work was 49. The regional legislature did not there- asked to carry out a study. Various regional fore, through provisions implicitly exclud- bodies, including the Environment Agency, ing alterations to airports, exclude an entire were subsequently approached. The muni- class of projects within the meaning of the cipalities concerned were informed and case-law of the Court, but, in adopting that numerous opinions were sought. The deci- Law, exercised its right to regard a specific sion to grant consent for the work, apart project, namely the alteration of the only from the extension of the runway which airport capable of alteration, as not being required different procedures, was not likely to have a significant effect on the adopted until all these steps had been environment. taken.

(b) thresholds or criteria set by the Mem- ber State

55. This is clearly an option not an obliga- tion. Even if Member States do not exercise whether the project shall be made subject that option, they are none the less required to an assessment in accordance with Arti- to take in each particular case an ad hoc cles 5 to 10. decision as to whether or not the project concerned should, or should not, be subject to an assessment within the meaning of the Directive. ...’

57. In the present case, the competent 56. This is made even clearer in the new authorities carried out a 'case-by-case version of the Directive, cited above, which examination'. The Directive does not give

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us any explicit details regarding the proce- Directive lists, in Annex III, the criteria to dure to be followed in order to "carryout an be taken into account. examination of this type or its substantive content.

64. Article 2(2) provides: 'The environ- mental impact assessment may be integra- 61. It is appropriate to point out in this ted into the existing procedures for consent connection that the new version of the to projects in the Member States, or, failing

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this, into other procedures or into proce- 68. I myself, however, would prefer to give dures to be established to comply with the an explicit answer which could be along aims of this Directive.' these lines:

'The environmental impact assessment of a project must satisfy the requirements laid 65. In the statement of the grounds of its down in Articles 5 to 10 of the Directive order for reference, the national court even where that assessment is integrated explains that it has doubts as to whether into an existing national consent procedure the impact study which was carried out in within the meaning of Article 2(2) of the this case under an existing national proce- Directive.' dure meets the conditions laid down by the Directive.

69. However, where it appears, in particu- lar at the end of a case-by-case examination carried out under Article 4(2), that obser- vance of the assessment procedure provided 66. Here, a fundamental clarification is for in the Directive is not required, a necessary. As was established above, the Member State is at liberty to establish an competent authorities do not say that they alternative procedure, or not to do so, and followed an 'alternative' assessment proce- to lay down the requirements thereof. dure but rather a case-by-case examination under Article 4(2) of the Directive, follow- ing which, they decided that an assessment within the meaning of the Directive was not necessary. I have already analysed above the conditions which such an examination must meet.

'This Directive shall not apply to projects the details of which are adopted by a 74. This is indeed confirmed by the refer- specific act of national legislation, since ence to the objectives of the Directive in the objectives of this Directive, including Article 1(5). The sixth recital in the pre- that of supplying information, are achieved amble to the Directive states that 'develop- through the legislative process.' ment consent for... projects... should be granted only after prior assessment of the likely significant environmental effects of these projects has been carried out;... this assessment must be conducted on the basis of the appropriate information supplied by the developer, which may be supplemented by the authorities and by the people who 71. The national court states that in the may be concerned by the project in ques- present case the project was certainly tion'. provided for 'in a legislative provision which sets out a programme', but, accord- ing to that court, consent for it was granted under a separate administrative procedure.

75. The national legislation at issue should therefore contain those various items of information in order to comply with Arti- cle 1(5) of the Directive. Otherwise, the 72. It is clear from the actual words used in objectives of the Directive would be jeo- the Directive that the legislation in question pardised since a project could be adopted must take the form of a specific act of without a prior assessment of its environ- legislation which adopts the details of the mental impact. project.

81. The referring court also asks what 78. The requirement that the specific act of minimum requirements, from the point of national legislation concerned must com- view of environmental assessment, must be prise development consent for the project satisfied by the legislative process in order is, moreover, as the United Kingdom Gov- to attain 'the objectives of [the] Directive, ernment points out, also the result of the including that of supplying information'. fact that the purpose of the Directive is, according to the fifth recital in the pre- amble, to coordinate and supplement national development consent procedures, and by the fact that the act of national legislation has the same effect in law as development consent which has taken into account the information specified in the Directive. 82. In view of the foregoing, if an answer must still be given to this question I would say that the Directive does not impose any minimum requirements on the legislative process followed in a Member State. The 79. It follows therefore that legislation objectives of the Directive are deemed to be which only refers in general terms to the protected if a specific act of legislation has project concerned, by stating for example adopted the details of the project con- the need to carry out studies in advance to cerned. The provision is based on the determine its feasibility, and which must be principle that, where those requirements

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are met, all the groups concerned have been continue to serve national defence purposes adequately informed and have been put in a also, and that military units would remain position to make known their reactions. stationed there and use the airport on a permanent and institutionalised basis for national defence purposes, which is the argument put forward by Airport Bolzano- Bozen AG and Südtiroler Transportstruk- turen AG.

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increased civilian use, is not covered by the having general application but also relates exception provided for in Article 1(4) of to a decision taken, after examination, not the Directive. to conduct an environmental impact assess- ment in the case of a specific project.

94. None the less, both situations concern the same issue, namely the extent of the The sixth question margin of discretion which Member States enjoy under Article 4(2) of the Directive, and whether an individual can assert his rights where that margin is exceeded.

91. The referring court asks whether the provisions of Article 4(2) in conjunction with Article 2(1) of the Directive are suffi- ciently precise and unconditional to have 95. I therefore consider that it is necessary direct effect and require the competent to apply here also the principles set out by national authorities to submit a project to the Court in the case of Kraaijeveld and an environmental impact assessment where Others. In that case, it held that the the Directive has been incorrectly trans- national court is under an obligation to posed at national level. monitor whether the legislative or admin- istrative authorities of a Member State remained within the margin of discretion laid down in Article 2(1) and Article 4(2) of the Directive.

92. As all the intervening parties state, the Court in Kraaijeveld and Others, cited above, has already considered the question of the direct effect of those provisions. In 96. The fact that those authorities consid- that case, national rules under which cer- ered that a given project did not require an tain classes of project were excluded from assessment within the meaning of the the obligation to conduct an environmental Directive could not of itself provide proof impact assessment were at issue. that that margin had been exceeded.

The first and second questions

Article 4(2) of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment must be interpreted as meaning that it does not permit a Member State to exclude a particular project from the obligation to conduct an environmental impact assessment until after the project has been examined as a whole, allowing it to be concluded that it is not likely to have significant effects on the environment.

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The third question

An assessment of the effects of a project on the environment must satisfy the requirements laid down in Articles 5 to 10 of Directive 85/337 even where that assessment is integrated into the existing national consent procedure within the meaning of Article 2(2) of the Directive.

OPINION OF MR MISCHO — CASE C-435/97

The sixth question

The provisions of Article 4(2) in conjunction with those of Article 2(1) of Directive 85/337 must be interpreted as meaning that, where the margin of discretion conferred under those provisions has been exceeded by the legislative or administrative authorities of a Member State, the national rules or measures which are incompatible with those provisions must be set aside and the competent authorities must take all the general or particular measures within their powers necessary to ensure that projects are examined in order to determine whether they are likely to have significant effects on the environment and, if so, to ensure that they are subject to an assessment of those effects.

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