C-201/02

2. Conygar Quarry, consent for the work- ing of which was granted in 1947, had not been operational for a number of years 4. Directive 85/337 falls within the frame- when Mrs Wells purchased her house in work of the action programmes of the 1984. In 1997 and 1999 the competent European Communities on the environ- authorities established the conditions under ment, according to which the correct which the quarry could be worked again. approach is to prevent the creation of However, they did not first carry out an pollution or nuisances at source, rather environmental impact assessment in respect than subsequently trying to counteract their of the proposed operations, as provided for effects. 3It has the objective of ensuring in Directive 85/337. that development consent for public and private projects which are likely to have significant effects on the environment is 1 — Original language: French. 2 — Directive or 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40). 3 — First recital in the preamble.

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granted only after prior assessment of those 7. Article 4(1) provides that the projects effects. 4A further aim is that the assess- specified in Annex I must systematically be ment be conducted on the basis of infor- the subject of an environmental impact mation supplied by the developer and by assessment. 6Article 4(2) states that pro- the authorities and the people concerned by jects referred to in Annex II are to be the project. 5 assessed only 'where Member States con- sider that their characteristics so require'. The extraction of construction materials is included in Annex II.

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B — Natiotial law application, of the conditions to which that permission is subject. The permission like- wise definitively ceases to have effect if this requirement is not observed.

9. In order to meet construction needs after the Second World War, Interim Develop- ment Orders (IDOs) were adopted in the United Kingdom from 1946 expressly auth- orising mineral extraction operations. 7 12. The 1991 Act draws a distinction between what are termed 'active' and 'dormant' permissions. Permissions are dormant if no development was carried out to any substantial extent in the period of two years ending on 1 May 1991. In the case of active permissions, operations may 10. In 1991 the Planning and Compen- continue and are subject to new conditions sation Act 1991 8entered into force. Sec- once they have been approved. In the case tion 22 of the Act laid down a special set of of dormant permissions, no operations may rules for old mining permissions granted resume until the conditions have been under an IDO. finally determined.

14. If the conditions differ from those set 16. In accordance with the 1991 Act, the out in the application, the applicant may operators of Conygar Quarry had their old appeal to the Secretary of State for Trans- mining permission registered on 24 August p o r t , Local Government and the 1992. The permission was classified as Regions. 12 The decision of the Secretary dormant, because no operations had taken of State may be challenged within a time- place in the two years preceding 1 May limit of six weeks. 13 Also, permissions 1991. The operators also applied to the granted under an IDO for which new MPA for it to determine the conditions of conditions have been determined pursuant the permission. By determination made on to the 1991 Act may be modified or 22 December 1994, the MPA imposed on revoked before the operations authorised them conditions more stringent than those by the permission have been completed. 14 proposed in their application. 16

I I — Facts 17. The operators exercised their right of appeal to the Secretary of State. On 25 June 1997 he issued his decision letter in which he imposed 54 conditions on the planning permission. He also left some issues to be decided by the MPA, such as the monitor- ing of noise and of blasting on the site. Those matters were approved by the MPA A — Background to the dispute on 8 July 1999. 17

planning conditions under the 1991 Act. 18 revoke or modify the planning permission However, on 11 February 1999 the House in question or to order discontinuance of of Lords held, in R v North Yorkshire any mineral operations. The reasons given County Council ex parte Brown [2000] 1 by him for that decision included that A.C. 397, that the determination of such Community law did not allow him to take conditions was a grant of development action directly against the quarry operators consent for the purposes of Article 1(2) of and to remove their development rights. He Directive 85/337. 19 As a result of that also stated that the appropriate procedure decision, United Kingdom legislation was would have been for Mrs Wells to contest amended in order to make the deter- the new planning conditions in 1997. He mination of new planning conditions under added that, given the time that had passed, the 1991 Act subject to environmental it would run counter to the principle of impact assessment in accordance with the legal certainty and be disproportionate to directive. That amendment entered into call those conditions into question. force on 15 December 2000.

21. Mrs Wells requested the High Court to quash that decision.

B — The main proceedings

19. By letter of 10 June 1999, Mrs Wells III — The questions referred for a prelimi- requested the Secretary of State to take nary ruling action to remedy the lack of an environ- mental impact assessment in respect of the resumption of operations at Conygar Quarry. Mrs Wells received no reply to 22. The High Court decided to stay pro- her request. She then brought proceedings ceedings and refer the following questions in the High Court. to the Court of Justice for a preliminary ruling:

23. Before considering the questions referred for a preliminary ruling, it appears to me that it is necessary to make two observations. The first relates to whether the working of Conygar Quarry constitutes a project subject to prior assessment of its (4) Whether (i) it is open to individual environmental effects under Directive citizens to challenge the State's failure 85/337. As indicated above, under to require EIA, or whether (ii) that may Article 4(2) of the directive and Annex II be prohibited under the limitations thereto projects for the extraction of con- imposed by the Court on the doctrine struction materials are subject to prior of direct effect e.g. by "horizontal assessment of their environmental effects direct effect" or by the imposition of only where Member States consider that burdens or obligations on individuals their characteristics so require. Accord- by an emanation of the State. ingly, Member States have a discretion as to whether such projects must be assessed. 20

20 — Their discretion is not unlimited. In Case C-435/97 WWF and Others [1999] ECR I-5613, the Court held that the limits of that discretion are to be found in the obligation, set out in Article 2(1) of Directive 85/337, that projects likely, by virtue inter alia of their nature, size or location, to have significant effects on the environment are to be subject to an impact assessment. It also indicated that it is (5) If the answer to [(4)](ii) is "yes" what for the national court to assess whether, having regard to are the limits of such prohibitions on the project in question, the competent authorities exceeded their discretion by excluding the project from the assess- direct effect in the present circum- ment procedure.

25. The second observation relates to the admissibility of the first two questions referred for a preliminary ruling. The Commission calls their admissibility into question on the ground that they are not relevant for disposing of the main proceed- ings. It states, first, that the main proceed- 27. That is not so here. It is apparent from ings relate to the Secretary of State's refusal the grounds of the order for reference that to revoke or modify the planning per- the first question referred for a preliminary mission for Conygar Quarry, which implies ruling is intended to enable it to be that development consent has indeed been established whether the determination of granted at some point or another. Second, the planning conditions for Conygar those questions are posited on the assump- Quarry pursuant to the 1991 Act is to be tion that identifying the precise stage at regarded as a development consent within which development consent has been the meaning of Article 1(2) of Directive granted is a question of Community law 85/337. The answer to that question deter- whereas the Court stated in Gedeputeerde mines whether the directive is applicable in Stateti van Noord-Holland, 21at para- the main proceedings and, consequently, graphs 20 and 21, that it is a question of whether the competent authorities in the national law.

22 — For a recent application, see Case C-473/00 Cofidis [2002| 21 — Case C-81/96 [1998] ECR I-3923. ECR I-10875, paragraph 20 and the case-law cited.

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32. By its first question, the national court essentially asks whether Article 1(2) of 30. As to the argument that the concept of Directive 85/337 is to be interpreted as development consent as defined in Direc- meaning that the determination of planning I-734

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conditions attaching to an old mining per- from which the developer is granted the mission constitutes a development consent right to proceed with the project in ques- within the meaning of that provision where tion. It is thus national law that determines the old mining permission was deprived of the procedural rules and the conditions for effect in 1991 and operations cannot obtaining development consent. However, resume until those planning conditions that renvoi to national law cannot, in my have been finally determined. view, be interpreted as requiring that the scope of 'development consent' also be left to the discretion of each Member State. Directive 85/337 is designed to remove the disparities between the laws in force in the various Member States with regard to the assessment of the environmental effects of public and private projects. 23 The directive also explains that it is necessary to harmon- 33. It is to be remembered that the term ise 'the principles of the assessment of 'development consent' is defined in environmental effects... in particular with Article 1(2) of Directive 85/337 as 'the reference to the projects which should be decision of the competent authority or subject to assessment'. 24 It would therefore authorities which entitles the developer to be clearly contrary to the objectives of proceed with the project' in question. Directive 85/337 and to the principle of uniform application of Community law to accept that the Member States may, by defining the concept of development con- sent very restrictively, take outside the directive projects likely to have significant effects on the environment.

mental impact assessments in the case of 38. Moreover, the Court has already pro- projects listed in Annex I where (i) the vided criteria for interpreting the concept projects have already been the subject of a of development consent, thereby confirm- consent granted prior to 3 July 1988, the ing indirectly that it must have a Commu- date by which the directive was to have nity meaning. Thus, in WWF and Others, been transposed into national law; (ii) the cited above, the Court found it necessary to consent was not preceded by an environ- specify the conditions that had to be met in mental assessment in accordance with the order to fall within the derogation provided requirements of the directive; and (iii) a for in Article 1(5) of the directive, accord- fresh consent procedure was formally initi- ing to which the directive does not 'apply to ated after 3 July 1988. projects the details of which are adopted by a specific act of national legislation'. The Court held, in particular, that the legis- lative act in question must display the same characteristics as a development consent as defined by Article 1(2) of Directive 85/337. It specified that the act must lay down the project in detail, that is to say in a sufficiently precise and detailed manner so as to include, 'like development consent, following their consideration by the legis- lature, all the elements of the project relevant to the environmental impact assessment'. 25

Kingdom submits that the approval of new transitional provisions for such projects. In conditions attaching to an existing consent addition, the directive is primarily designed granted under an IDO does not constitute a to cover large-scale projects which will development consent for the purposes of most often require a long time to complete. Directive 85/337. It contends that the The Court held that it would therefore not situation in the present case may be be appropriate for procedures which were equated to that of 'pipeline' projects, that already complex at national level and is to say projects in respect of which the which were formally initiated prior to consent procedure was initiated before 3 July 1988 to be made more cumbersome 3 July 1988, the date by which the directive and time-consuming by reason of the was to have been transposed into national specific requirements of the directive, and law, and was still in progress on that date. for situations already established to be It points out that the Court has accepted affected. 27 that the directive does not apply to such projects.

27 — Gedeputeerde Staten van Noord-Holland, paragraphs 23 26 — Case C-431/92 [1995] ECR I-2189, paragraph 32. and 24.

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conditions governing them had been finally sonant with the Court's case-law seeking to determined. 28 give the directive a broad scope. Thus, in Kraaijeveld and Others 30 the Court held that the mere fact that Directive 85/337 does not expressly refer to modifications to projects included in Annex II, as opposed to modifications to projects included in Annex I, does not justify the conclusion 44. Also, it is apparent from the facts and that they are not covered by the directive. It law at issue in the main proceedings that stated that the concept of modifications to after 3 July 1988 the operators of Conygar projects is covered by the directive, even in Quarry engaged in the necessary pro- relation to projects included in Annex II, on cedures with the competent national auth- the ground that the directive's purpose orities in order to be permitted once again would be undermined if 'modifications to to extract materials from that site. It is also development projects' were so construed as apparent that it was the decisions made by to enable certain works to escape the the Secretary of State on 25 June 1997 and requirement of an impact assessment by the MPA on 8 July 1999 that allowed although, by reason of their nature, size them to resume operations and that those or location, such works were likely to have decisions set out in a precise and detailed significant effects on the environment. 31 manner the conditions under which the operations could be carried out. Fur- thermore, those decisions could be chal- lenged. I deduce therefrom that the oper- ators of Conygar Quarry did obtain a fresh decision from the competent authorities entitling them to proceed with their project for the extraction of materials, as envisaged by the definition of development consent set out in Article 1(2) of Directive 85/337. 29

49. It is apparent from the Court's case-law that the fact that the working of Conygar Quarry could not resume without the C — The second question referred for a MPA's determining the matters reserved preliminary ruling for its approval is not the decisive criterion for deciding whether or not the deter- mination of those matters constitutes deve- lopment consent within the meaning of Directive 85/337. The decisive factor, where the administrative procedure appli- cable to the implementation of a project 47. In its second question, the national covered by Directive 85/337 involves sev- court seeks to ascertain, should the first eral stages, concerns when, in the course of question be answered in the affirmative, that procedure, the objectives of the direc- whether, if the planning conditions attach- tive may be regarded as having been ing to an old mining permission have been achieved. imposed in two stages, determination of the detailed conditions at the second stage is capable of constituting development con- sent within the meaning of Article 1(2) of Directive 85/337.

route. The Court ruled that that term cedure is in two stages, one involving covers such a law 'where the legislative determination of the principal planning process has enabled the objectives pursued conditions and the other involving deter- by Directive 85/337, including that of mination of some detailed conditions, the supplying information, to be achieved, environmental impact assessment is to take and the information available to the par- place at the first stage. In light of the view liament at the time when the details of the taken by the Court in Linster, cited above, project were adopted was equivalent to it is also possible to accept that develop- that which would have been submitted to ment consent within the meaning of the competent authority in an ordinary Article 1(2) of Directive 85/337 is granted procedure for granting consent for a pro- on determination of the principal con- ject'. 34 The Court considered that, even if ditions if the directive's objectives have the route of the planned motorway was not been achieved. That implies that all the laid down by the legislative act in question, elements of the project in question which it was possible, for example where several are likely to have environmental effects alternative routes were studied in detail on must have been subject to prior assessment the basis of information supplied by the under the conditions laid down by the developer and by the authorities and directive. 36 members of the public concerned, for those alternatives to have been recognised by the legislature as having an equivalent environ- mental impact. 35

identify and assess the main effects which national court could take the view that the the project is likely to have on the environ- objectives of the directive were achieved on ment. 37 It is also apparent from Articles 6 the adoption by the Secretary of State of the and 8 that that information must be made decision of 25 June 1997. Consequently, if available to the public concerned, that the the conditions determined by the MPA in public concerned must have been given the its decision of 8 July 1999 were likely to opportunity to express an opinion and that have significant effects on the environ- all those matters must be taken into ment, 39 the MPA, pursuant to the direc- account by the competent authority in the tive, was required to have a prior assess- consent procedure for the project. ment of those effects carried out. It will be for the national court to appraise whether the conditions determined by the MPA on 8 July 1999 were likely to have significant effects on the environment.

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D — The third question referred for a consequences for the operators of Conygar preliminary ruling Quarry. According to the Secretary of State, that would run counter to the limits laid down by the Court on the direct effect of directives. He points out that the Court 57. The national court has asked the third stated in Marshall 40 that a directive may question referred for a preliminary ruling not of itself impose obligations on an only in the event that the first question is individual. He also observes that it held in answered in the affirmative and the second Kolpinghuis Nijmegen 41 that a national question is answered in the negative. In authority may not rely, as against an view of the answer which I propose to give individual, upon a provision of a directive to the second question, I consider that there whose necessary implementation in is no need to answer the third question. national law has not yet taken place.

E — The fourth question referred for a preliminary ruling 60. Like the claimant and the Commission, I consider that the Secretary of State's line of argument cannot be followed and that 58. By this question, the national court the first part of the fourth question should asks, in essence, whether Articles 1(2) and be answered in the affirmative. I found that 2(1) of Directive 85/337 are to be inter- assessment on the following matters. preted as meaning that, where their provi- sions have not been complied with, indi- viduals may rely on them before the court of a Member State against national auth- orities or whether the limits imposed by the Court on the direct effect of directives preclude decisions incompatible with those provisions from being set aside or modified.

Member State before national courts. 42 It 63. The corollary of that entitlement con- is also settled case-law that where the ferred on individuals is the duty of the directive in question confers a genuine Member States, laid down by Article 10 discretion on the Member States, individ- EC, to take all appropriate measures, uals may request the national courts to whether general or particular, to ensure review whether the Member States have fulfilment of the obligations on them under exceeded it. That last possibility has been Community law. Among these is the obli- recognised by the Court, in particular, in gation to nullify the unlawful consequences the context of interpretation of Directive of a breach of Community law. 43 That law 85/337, in its judgments in Kraaijeveld and is binding on all the authorities of the Others, WWF and Others and Linster, all Member States, including judicial auth- cited above. orities. It has been consistently held that the national courts, whose task it is to apply the provisions of Community law in areas within their jurisdiction, must ensure that those rules take full effect and must protect the rights which they confer on individuals. 44 The national court must therefore set aside any measure of national law preventing Community rules from having full force and effect. 45 That obli- gation is owed in light of the principles of direct effect and of precedence of Commu- 62. In the present case, it is not in dispute nity law. 46 that Mrs Wells is entitled to invoke the provisions of Directive 85/337. Mrs Wells' ability to do so may be deduced from the abovementioned judgments in that she, like the applicants in the cases which gave rise to those judgments, is asking the national court to review whether a measure of domestic law is consistent with Directive 85/337, a review which is capable of resulting in that measure being declared invalid. Such an ability could also follow, 64. It follows that, where the provisions of in my view, from the fact that the provi- Directive 85/337 have not been complied sions of Directive 85/337 requiring the with, the national courts and national Member States to make consent for pro- administrative authorities have the task, jects likely to have significant effects on the as the Court held in Kraaijeveld and Others environment subject to a prior assessment and WWF and Others, of taking all the of those effects in the context of which the persons concerned must have the oppor- tunity to express their opinion are suffi- 43 — Joined Cases C-6/90 and C-9/90 francomch and Others ciently precise. 11991] ECR I-5357, paragraph 36. 44 — Case 106/77 Simmenthal [1978] ECR 629, paragraph 16, and Francovich and Others, cited above, paragraph 32. 45 — Simmenthal, cited above, paragraph 22, and Case C-213/89 Factortame and Others [1990] ECR I-2433, 42 — C a s e 8/81 Becker [1982) ECR 53 and Joined Cases paragraph 20. C-253/96 to C-258/96 Hampelmann and Others [1997| ECR I-6907, paragraph 37. For a recent example, sec Case 46 — Simmenthal, paragraphs 14 to 18, and Factortame and C-276/01 Steffensen [2003] ECR I-3735, paragraph 38. Others, paragraph 18.

67. In my view, neither of those principles in the case-law constitutes an obstacle to the adoption by the competent national authorities of the measures sought by Mrs Wells such as revocation of the planning 66. In Marshall, cited above, the Court permission or modification of the con- indicated that a directive's binding nature, ditions established in 1997 and 1999. apparent from Article 249 EC, exists only in relation to each Member State to which the directive is addressed. It deduced there- from that 'a directive may not of itself impose obligations on an individual and that a provision of a directive may not be relied upon as such against such a per- son'. 4 7 The case-law has drawn two infer- ences from this statement that a directive can have only 'ascending' vertical effect. 68. First, the principle that directives do First, directives do not have 'horizontal' not have horizontal direct effect does not direct effect, that is to say they cannot be amount to an obstacle because the main invoked as such by an individual in pro- proceedings are not between Mrs Wells and ceedings against another individual. the operators of Conygar Quarry but According to the Court, the effect of extending the case-law on the possibility of relying on directives against public 48 —Case C-91/92 Faccini Dori [1994] ECR I-3325, authorities to the sphere of relations paragraph 24. See also Case C-192/94 El Corte Inglés [1996] ECR I-1281, paragraph 20, and Case C-343/98 Collino and Chiappero [2000] ECR I-6659, paragraph 20. 49 —Case 14/86 Pretore di Salò [1987] ECR 2545, paragraph 19, and Kolpinghuis Nijmegen, cited above, 47 — Paragraph 48. paragraph 10.

between her and a State entity. 50 A classic considered that a business could plead the case of 'vertical' direct effect of directives is provisions of a directive in order to chal- therefore involved. In such a case, it is lenge the validity of a marketing auth- perfectly conceivable that the judicial orisation for a medicinal product granted decision which, following the judgment to a competitor. interpreting Community law pronounced by the Court of Justice, must be delivered by the court having jurisdiction, and then any decision adopted pursuant to the national judgment by the competent administrative authorities, will have reper- cussions on the rights of individuals.

The principle is Smith & Nephew and Primecrown 53 it thus intended to prevent the State in ques- tion from deriving an advantage from its own failure to act. 54 However, it cannot constitute an obstacle to performance, by the national authorities, of their obligation to nullify the consequences of breach of a directive's provisions, first, by setting aside 50 — The Court has extended the scope of the 'vertical' direct effect of directives by holding that their provisions are the national measures incompatible with enforceable not only against the Member State as such, but also against organisations or bodies which are subject to those provisions and, second, by taking the the authority or control of the State or have special powers measures necessary in order for the require- beyond those which result from the normal rules appli- cable to relations between individuals, such as local or ments contained therein to be imple- regional authorities or other bodies which, irrespective of their legal form, have been given responsibility, by the

Very logically, the Court held that 'it would. . . 54 — The Court has inferred therefrom, in particular, that a be contradictory to rule that an individual may rely upon directive cannot, of itself and independently of a national the provisions of a directive. . . in proceedings. . . seeking an law adopted by a Member State for its implementation, order against the administrative authorities, and yet to have the effect of determining or aggravating the liability hold that those authorities are under no obligation to apply in criminal law of persons who act in contravention of the the provisions of the directive and refrain from applying provisions of that directive [Pretore di Salò, cited above, provisions of national law which conflict with them' paragraph 20, Kolpingbuis Nijmegen, cited above, para- (paragraph 311. graph 13, and Case C-168/95 Arcaro (19961 ECR I-4705, 53 — Case C-201/94 [1996] ECR I-5819. paragraph 37).

71. It follows that the limits laid down by the Court on the direct effect of directives F — The fifth question referred for a do not constitute obstacles preventing preliminary ruling Mrs Wells from relying on the provisions of Directive 85/337 before national courts or the State judicial and administrative authorities from taking all appropriate measures to nullify the unlawful con- sequences of the breach of that directive 73. The national court has asked this and to ensure that its requirements are question only if the answer to the preceding observed so far as concerns the working of question were to be that the limits imposed Conygar Quarry. In the absence of Com- by the Court on the direct effect of direc- munity rules concerning the conditions tives preclude decisions incompatible with under which that obligation is to be the provisions of Directive 85/337 from performed, it will be for those authorities being set aside or modified. In view of the to fulfil it in accordance with the rules of answer which I have proposed that the national law, within the limits, resulting Court give to that question, I consider it from the principles of equivalence and unnecessary to answer the fifth question.

56 — Case C-78/98 Preston and Others [2000] ECR I-3201, 55 — Case 6/64 [1964] ECR 585, at p. 594. paragraph 31.

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V — Conclusion

74. In view of the foregoing considerations, I propose that the Court should answer as follows the questions asked by the national court: