By / March 26, 2013

Environmental assessment: not only numbers count!

In its ruling of 21 March 2013, the Court of Justice decided that  national legislation is contrary to EU law…

Fotolia © Vitas
Fotolia © Vitas
Fotolia © Vitas

In its ruling of 21 March 2013, the Court of Justice decided that  national legislation is contrary to EU law in that, when an airport is modified, it provides for an environmental assessment only for projects likely to increase the number of air traffic movements by at least 20 000 per year.

Projects likely to have significant effects on the environment must, in accordance with Council Directive 85/337/EEC, be made subject to an assessment of their impact. However, the Member States retain their discretion as regards carrying out an environmental assessment of a change or extension to a project already authorised. Their decision in that regard must nonetheless be based on a case-by-case examination or on thresholds or criteria which they have established.

Environmental assessment

Environmental assessment is a procedure that ensures that the environmental implications of decisions are taken into account before the decisions are made. Environmental assessment can be undertaken for individual projects, such as a dam, motorway, airport or factory or for public plans or programmes. Consultation with the public is a key feature of environmental assessment procedures.

Extending and expanding…

In 2002, the undertaking, which operates Salzburg airport, applied for a permit to build an additional terminal. Its application was granted and that project was completed without having been subject to an environmental assessment. In 2004, the undertaking made new applications to expand the airport area in order to build, inter alia, hangars, warehouses and parking areas.

The Umweltsenat (Environmental Tribunal) examined those projects concerning the need to make them subject to an environmental assessment. The Umweltsenat found that both the construction of a new terminal and the expansion of the airport, looked at together, required an environmental impact assessment. Although neither of the two projects caused the threshold established by the Austrian legislation to be exceeded, their cumulative effects were, nevertheless, likely to have significant effects on the environment.

The Austrian Supreme Administrative Court asked the Court of Justice whether the directive precludes the Austrian legislation, which does not require an environment impact assessment for large projects comprising several stages of work, none of which causes an increase of at least 20 000 air traffic movements per year.

National discretion is limited

The Court states that the discretion of Member States as regards establishing the thresholds or criteria necessary to ascertain whether the modification or extension of a project already authorised must be made subject to an environmental impact assessment, is limited by the obligation to make projects likely to have significant effects on the environment subject to an impact assessment.

The Court points out that a Member State which establishes criteria or thresholds at a level such that, in practice, an entire class of projects would be exempted in advance from the requirement of an impact assessment would exceed the limits of its discretion under the directive.

According to the Court, the establishment of such high thresholds means that changes to the infrastructure of small or medium-sized airports can never, in practice, give rise to an environmental impact assessment, despite the fact that it cannot be excluded that such works may have significant effects on the environment.

Quality of life also counts

The Austrian legislation takes into consideration only the quantitative aspect of the consequences of a project, without taking account of the other selection criteria laid down in the directive, such as the population density of the area affected by the project. The airport whose infrastructure is affected by the changes at issue is located near to the city of Salzburg.

Splitting and adding

The Court notes that it can be necessary to take account of the cumulative effect of a number of projects in order to avoid a circumvention of the objective of the EU legislation by the splitting of projects which, taken together, are likely to have significant effects on the environment.

Further reading

The full text of the judgmentis published on the CURIA website on the day of delivery.

Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40), as amended by Council Directive 97/11/EC of 3 March 1997 (OJ 1997 L 73, p. 5). The EIA Directive of 1985 has been amended three times, in 1997, in 2003 and in 2009. Codified version of the EIA Directive

European commission, portal on Environmental Assessment

Report from the Commission on the application and effectiveness of the EIA Directive (Directive 85/337/EEC, as amended by Directives 97/11/EC and 2003/35/EC), COM/2009/0378

Le droit de l’accès à l’information prime le secret d’affaires / Geert Plas

Drinking water and irrigation override ecological arguments by Geert Plas

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