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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Wells (Environment and consumers) [2004] EUECJ C-201/02 (07 January 2004) URL: http://www.bailii.org/eu/cases/EUECJ/2004/C20102.html Cite as: [2004] NPC 1, [2004] EUECJ C-201/2, ECLI:EU:C:2004:12, [2004] 1 CMLR 31, [2004] Env LR 27, [2004] ECR I-723, [2005] All ER (EC) 323, EU:C:2004:12, [2004] EUECJ C-201/02 |
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JUDGMENT OF THE COURT (Fifth Chamber)
7 January 2004 (1)
(Directive 85/337/EEC - Assessment of the effects of certain projects on the environment - National measure granting consent for mining operations without an environmental impact assessment being carried out - Direct effect of directives - Triangular situation)
In Case C-201/02,
REFERENCE to the Court under Article 234 EC by the High Court of Justice of England and Wales, Queen's Bench Division (Administrative Court), for a preliminary ruling in the proceedings pending before that court between
The Queen on the application of Delena Wells
and
Secretary of State for Transport, Local Government and the Regions,
on the interpretation 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,
THE COURT (Fifth Chamber),
composed of: P. Jann (Rapporteur), acting for the President of the Fifth Chamber, D.A.O. Edward and A. La Pergola, Judges,
Advocate General: P. Léger,
Registrar: L. Hewlett, Principal Administrator,
after considering the written observations submitted on behalf of:
- Mrs Wells, by R. Gordon QC and J. Pereira, barrister, instructed by R. Buxton, solicitor,
- the United Kingdom Government, by P. Ormond, acting as Agent, D. Elvin QC and J. Maurici, barrister,
- the Commission of the European Communities, by X. Lewis, acting as Agent, and N. Khan, barrister,
having regard to the Report for the Hearing,
after hearing the oral observations of Mrs Wells, represented by R. Gordon and J. Pereira, instructed by S. Ring, solicitor; the United Kingdom Government, represented by R. Caudwell, acting as Agent, and D. Elvin; and the Commission, represented by X. Lewis and N. Khan, at the hearing on 12 June 2003,
after hearing the Opinion of the Advocate General at the sitting on 25 September 2003,
gives the following
Legal context
Community legislation
Member States shall adopt all measures 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 location are made subject to an assessment with regard to their effects.
These projects are defined in Article 4.
Projects of the classes listed in Annex II shall be made subject to an assessment, in accordance with Articles 5 to 10, where Member States consider that their characteristics so require.
To this end Member States may inter alia specify certain types of projects as being subject to an assessment or may establish 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 Articles 5 to 10.
National legislation
The main proceedings and the questions referred for a preliminary ruling
[1.] Whether an approval of a new set of conditions on an existing permission granted by an Interim Development Order (old mining permission) pursuant to section 22 and Schedule 2 of the Planning and Compensation Act 1991 is a development consent for the purposes of the EIA [Environmental Impact Assessment] Directive.
[2.] Whether, following the approval of a new scheme of conditions on an IDO old mining permission under the Planning and Compensation Act 1991, the approval of further matters required under the new scheme of conditions is itself capable of being a development consent for the purposes of the EIA Directive.
[3.] If the answer to [1.] is yes but [2.] is no, is the Member State nevertheless under a continuing duty to remedy its failure to require EIA, and if so, how?
[4.] Whether (i) it is open to individual citizens to challenge the State's failure to require EIA, or whether (ii) that may be prohibited under the limitations imposed by the Court on the doctrine of direct effect e.g. by horizontal direct effect or by the imposition of burdens or obligations on individuals by an emanation of the State.
[5.] If the answer to [4.](ii) is yes what are the limits of such prohibitions on direct effect in the present circumstances and what steps may the UK lawfully take consistent with the EIA Directive?
Consideration of the questions referred for a preliminary ruling
The first and second questions: the obligation to carry out an environmental impact assessment
Classification as a development consent
- Admissibility
- Substance
The time at which the environmental impact assessment must be carried out
In a consent procedure comprising several stages, that assessment must, in principle, be carried out as soon as it is possible to identify and assess all the effects which the project may have on the environment.
The fourth and fifth questions: the ability of individuals to invoke the provisions of Directive 85/337
The direct effect of Article 2(1) of Directive 85/337, read in conjunction with Articles 1(2) and 4(2)
The period that elapsed between the decision determining new conditions and Mrs Wells's request that the situation be remedied
The third question: the obligation to remedy the failure to carry out an environmental impact assessment
The detailed procedural rules applicable in that context are a matter for the domestic legal order of each Member State, under the principle of procedural autonomy of the Member States, provided that they are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the Community legal order (principle of effectiveness).
In that regard, it is for the national court to determine whether it is possible under domestic law for a consent already granted to be revoked or suspended in order to subject the project to an assessment of its environmental effects, in accordance with the requirements of Directive 85/337, or alternatively, if the individual so agrees, whether it is possible for the latter to claim compensation for the harm suffered.
Costs
71. The costs incurred by the United Kingdom Government and the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court.
On those grounds,
THE COURT (Fifth Chamber),
in answer to the questions referred to it by the High Court of Justice of England and Wales, Queen's Bench Division (Administrative Court), by order of 12 February 2002, hereby rules:
1. Article 2(1) 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, read in conjunction with Article 4(2) thereof, is to be interpreted as meaning that, in the context of applying provisions such as section 22 of the Planning and Compensation Act 1991 and Schedule 2 to that Act, the decisions adopted by the competent authorities, whose effect is to permit the resumption of mining operations, comprise, as a whole, a development consent within the meaning of Article 1(2) of that directive, so that the competent authorities are obliged, where appropriate, to carry out an assessment of the environmental effects of such operations.
In a consent procedure comprising several stages, that assessment must, in principle, be carried out as soon as it is possible to identify and assess all the effects which the project may have on the environment.
2. In circumstances such as those of the main proceedings, an individual may, where appropriate, rely on Article 2(1) of Directive 85/337, read in conjunction with Articles 1(2) and 4(2) thereof.
3. Under Article 10 EC the competent authorities are obliged to take, within the sphere of their competence, all general or particular measures for remedying the failure to carry out an assessment of the environmental effects of a project as provided for in Article 2(1) of Directive 85/337.
The detailed procedural rules applicable in that context are a matter for the domestic legal order of each Member State, under the principle of procedural autonomy of the Member States, provided that they are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the Community legal order (principle of effectiveness).
In that regard, it is for the national court to determine whether it is possible under domestic law for a consent already granted to be revoked or suspended in order to subject the project to an assessment of its environmental effects, in accordance with the requirements of Directive 85/337, or alternatively, if the individual so agrees, whether it is possible for the latter to claim compensation for the harm suffered.
Jann
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Delivered in open court in Luxembourg on 7 January 2004.
R. Grass V. Skouris
Registrar President
1: Language of the case: English.