Associazione Italia Nostra Onlus (Advocate Generals opinion) [2016] EUECJ C-444/15_O (08 September 2016)

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URL: http://www.bailii.org/eu/cases/EUECJ/2016/C44415_O.html
Cite as: [2016] EUECJ C-444/15_O, ECLI:EU:C:2016:665, EU:C:2016:665

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KOKOTT

delivered on 8 September 2016  (2)

Case C‑444/15

Associazione Italia Nostra Onlus

v

Comune di Venezia and Others

(Request for a preliminary ruling from the Tribunale amministrativo regionale per il Veneto (Regional Administrative Court, Veneto, Italy))

(Environment — Effects of certain plans and programmes on the environment — High level of environmental protection under Article 191 TFEU and Article 37 of the Charter of Fundamental Rights — Need for an environmental assessment under Directive 2001/42/EC in cases calling for an implications assessment under Directive 92/43/EEC — Interpretation of the expression ‘small areas at local level’)

I –  Introduction

1.       The present request for a preliminary ruling seeks a clearer definition of the scope of the directive on the assessment of the effects of certain plans and programmes on the environment  (3) (Strategic Environmental Assessment Directive (‘the SEA Directive’)). It also provides the Court with an opportunity to comment once again, after quite a long interval, on the European Union’s objective of striving for a high level of protection in the field of environmental policy.

2.       The dispute in the main proceedings concerns a construction project in the Venetian Lagoon. While an appropriate assessment of its implications was carried out as provided for in the Habitats Directive,  (4) the Italian authorities decided in the course of a preliminary examination that a strategic environmental assessment under the SEA Directive was not required because the project affected only a small area at local level and was unlikely to have significant environmental effects. The SEA Directive provides that there is no need for a strategic environmental assessment in such cases.

3.       The referring court asks first of all whether that exception to the obligation to carry out a strategic environmental assessment is compatible with the high level of environmental protection required by EU law, which raises interesting questions as regards, in particular, whether that EU policy objective is amenable to judicial review.

4.       In the alternative, the referring court asks the Court for an interpretation of the conditions under which certain plans and programmes, although requiring an assessment under the Habitats Directive, may be exempt from the obligation to carry out a comprehensive strategic environmental assessment under the SEA Directive. The primary issue here is the meaning to be given to the expression ‘small areas at local level’.

II –  Legal context

A – EU law

1.     Primary law

5.       Article 191(2) of the Treaty on the Functioning of the European Union  (5) (‘TFEU’) establishes the principles of the European Union’s policy on the environment:

‘Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.’

6.       The second sentence of Article 3(2) of the Treaty on European Union  (6) (‘TEU’) sets out a similar aim in respect of environmental protection:

‘[The Union] shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment.’

7.       Article 37 of the Charter of Fundamental Rights of the European Union  (7) (‘the Charter’) also provides, in relation to environmental policy:

‘A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.’

2.     The Habitats Directive

8.       Article 6(3) of the Habitats Directive provides for an assessment of the effects of certain plans and projects on European areas of conservation:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

3.     The SEA Directive

9.       Recital 10 of the SEA Directive refers to the relationship between that directive and the Habitats Directive:

‘All plans and programmes … which have been determined to require assessment pursuant to [the Habitats Directive] are likely to have significant effects on the environment, and should as a rule be made subject to systematic environmental assessment. When they determine the use of small areas at local level or are minor modifications to the above plans or programmes, they should be assessed only where Member States determine that they are likely to have significant effects on the environment’.

10.     According to Article 1 thereof, the SEA Directive is intended to ensure that (certain) plans and programmes which are likely to have significant effects on the environment are subjected to an environmental assessment as part of their preparation and adoption. It lays down minimum requirements in respect of the preparation of the environmental report, the carrying out of consultations, the taking into account of the results of the environmental report and the provision of information on the decision made on completion of the assessment.

11.     On the basis of recital 10, Article 3 of the SEA Directive defines the scope of the strategic environmental assessment:

‘1. An environmental assessment, in accordance with Articles 4 to 9, shall be carried out for plans and programmes referred to in paragraphs 2 to 4 which are likely to have significant environmental effects.

2. Subject to paragraph 3, an environmental assessment shall be carried out for all plans and programmes,

(a) …

(b)     which, in view of the likely effect on sites, have been determined to require an assessment pursuant to Article 6 or 7 of the [Habitats Directive].

3. Plans and programmes referred to in paragraph 2 which determine the use of small areas at local level … shall require an environmental assessment only where the Member States determine that they are likely to have significant environmental effects.

4. …

5. Member States shall determine whether plans or programmes referred to in paragraphs 3 and 4 are likely to have significant environmental effects either through case-by-case examination or by specifying types of plans and programmes or by combining both approaches. For this purpose Member States shall in all cases take into account relevant criteria set out in Annex II, in order to ensure that plans and programmes with likely significant effects on the environment are covered by this Directive.

6. …’.

12.     Annex II sets out criteria for determining the likely significance of effects referred to in Article 3(5) of the SEA Directive.

B – National law

13.     The Republic of Italy transposed the SEA Directive into national law by Legislative Decree No 152 of 3 April 2006. The national provision follows the wording of the directive. In particular, it too contains no definition of the expression ‘small areas at local level’. To make up for that omission, national case-law has established thresholds based on the size of the project’s footprint, that is to say 40 hectares in the case of urban-area development projects but 10 hectares in the case of projects within existing urban areas.

III –  Main proceedings and request for a preliminary ruling

14.     The main proceedings are concerned with a construction project on the southern tip of the island of Pellestrina, known as ‘Ca’ Roman’, in the Venetian Lagoon, where ‘Società Ca’ Roman Srl’ is planning to build a total of 42 residential buildings over an area of approximately three hectares. The site is immediately adjacent to conservation areas which, as designated Special Protection Areas (SPAs) for the conservation of wild birds within the meaning of the Birds Directive or as Sites of Community Importance (SCIs) for the protection of natural habitats and wild flora and fauna within the meaning of the Habitats Directive, form part of the European Natura 2000 ecological network.

15.     An assessment of the plan’s implications carried out in accordance with the national provisions transposing the Habitats Directive, although culminating in a positive result, called at the same time for numerous restrictions to protect the European conservation areas affected.

16.     The competent administrative authority also examined whether a strategic environmental assessment under the national provisions corresponding to the SEA Directive should be carried out. It concluded that this was not necessary. It was true that the construction project affected SPAs and SCIs and was therefore subject to an implications assessment under the Habitats Directive. According to the principles of Italian case-law, however, the project affected only ‘small areas at local level’. Projects in such areas, it stated, required a strategic environmental assessment only if they had significant environmental effects. According to the referring court’s findings, the competent authorities took the view that that criterion was not satisfied.

17.     The environmental organisation Associazione Italia Nostra Onlus (Italia Nostra) challenged that course of action before the Tribunale amministrativo regionale del Veneto (Regional Administrative Court, Veneto). That court subsequently referred the following questions to the Court of Justice pursuant to Article 267(3) TFEU:

1.      Is Article 3(3) of [the SEA Directive], in so far as it also concerns the situation referred to in Article 3(2)(b), valid, in the light of the environmental rules laid down by the Treaty on the Functioning of the European Union and the Charter of Fundamental Rights, to the extent that it removes the systematic requirement to perform a Strategic Environmental Assessment in respect of plans and programmes which were deemed to require an implications assessment pursuant to Articles 6 and 7 of the Habitats Directive?

2.      In the event that the Court finds that the above measure is valid, must Article 3(2) and (3) of [the SEA Directive], read in conjunction with recital 10 of that Directive, which states that ‘all plans and programmes which have been determined to require assessment pursuant to [the Habitats Directive] are likely to have significant effects on the environment, and should as a rule be made subject to systematic environmental assessment’ be interpreted as precluding legislation, such as the national legislation in question, which, in defining ‘small areas at local level’ in Article 3(3) of [the SEA Directive], only refers to quantitative criteria?

3.      If the above question is answered in the negative, must Article 3(2) and (3) of [the SEA Directive], read in conjunction with recital 10 of that directive, which states that ‘all plans and programmes which have been determined to require assessment pursuant to [the Habitats Directive] are likely to have significant effects on the environment, and should as a rule be made subject to systematic environmental assessment’, be interpreted as precluding legislation, such as the national legislation in question, which removes the automatic and compulsory requirement for all new and expansion-related development projects in urban areas covering up to 40 hectares or urban-area regeneration or development projects in existing urban areas covering up to 10 hectares to undergo the Strategic Environmental Assessment procedure, even where, in view of the potential effects on the sites, they had formerly been deemed to require an implications assessment pursuant to Articles 6 and 7 of the Habitats Directive?

18.     Written observations on this request for a preliminary ruling have been submitted by the European Commission, the European Council, the European Parliament, the Comune di Venezia (municipality of Venice), the Italian Republic, Società Ca’ Roman Srl and Italia Nostra. No application for a hearing was submitted and the Court did not hold one.

IV –  Legal assessment

19.     The admissibility of the request for a preliminary ruling must be considered first (see in this regard Section A) before the question of the validity of Article 3(3) of the SEA Directive can be discussed (see in this regard Section B). It will then be necessary to examine the questions relating to interpretation (see in this regard Section C).

A – Admissibility of the request for a preliminary ruling

20.     The Comune di Venezia and Società Ca’ Roman consider the request for a preliminary ruling to be inadmissible. They take the view that the questions referred are not relevant to the decision to be given, since the area affected by the project in question lies outside the areas protected under the Habitats Directive and there was thus no need for an assessment under Article 6 or Article 7 of that directive. For that reason, they submit, Article 3(2)(b) and (3) of the SEA Directive does not apply to the dispute from the outset.

21.     It should be noted in this regard, however, that, according to settled case-law of the Court, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it.  (8)

22.     Those conditions are not present here. In particular, it does not seem improbable that the project at issue, even though it directly affects only a site located outside the conservation area, would have required an implications assessment under the Habitats Directive, as described by the referring court, since even projects located outside conservation areas are capable of adversely affecting those areas. Furthermore, the interpretation sought of the relevant primary law and the SEA Directive relates to the purpose of the main action, the problem is not hypothetical and the referring court has provided all of the material necessary for a useful answer to the questions submitted. The request for a preliminary ruling is therefore admissible.

B – The first question

23.     By the first question, the referring court seeks to ascertain, in essence, whether the fact that not all plans in respect of which an implications assessment under Articles 6 and 7 of the Habitats Directive is carried out are automatically subject to a mandatory strategic environmental assessment under the SEA Directive is compatible with the high level of environmental protection provided for in EU primary law and the Charter of Fundamental Rights.

1.     Review of the level of environmental protection required under EU law

24.     Article 191(2) TFEU requires the EU legislature, when formulating environmental policy, to aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. That objective is also laid down in Article 37 of the Charter and the second sentence of Article 3(3) TEU. 

25.     Those provisions are not to be interpreted or examined independently of each other. On the contrary, they give expression to the common principle of a high level of environmental protection,  (9) to which particular importance must be attached given the number of provisions of EU law in which it is enshrined.

26.     The criterion against which the compatibility of an individual act of EU legislation with the level of environmental protection required under Article 191(2) TFEU must be reviewed was defined by the Court in the judgments in Safety Hi-Tech  (10) and Bettati,  (11) concerning bans on the use of substances harmful to the ozone layer.

27.     In those judgments, the Court held that Article 191 TFEU sets a series of objectives, principles and criteria which the Community legislature must respect in implementing environmental policy. In view of the need, in so doing, to strike a balance between certain objectives and principles and of the complexity of the implementation of those criteria, review by the Court must necessarily be limited to the question whether a manifest error of appraisal regarding those conditions has been committed.  (12)

28.     With regard to the objective of ensuring a high level of protection that is pursued by the European Union’s policy on the environment as defined in Article 191(2) TFEU, the Court has also rightly held that the high level of protection that must be ensured does not necessarily have to be the highest that is technically possible.  (13) This follows not only from the wording of the provision itself (only a ‘high’ level of protection) but also from the fact that Article 193 TFEU permits the Member States to maintain or introduce more stringent protective measures.

29.     On the assumption, presumably, that one level can be ‘high’ only by comparison with another, the Court, when ensuring that the level of environmental protection provided is high, has in the past also taken into account the extent to which acts of EU legislation exceed the European Union’s obligations under international environmental law.  (14)

30.     There is evidence to support the finding that a level of protection exceeding that required under the European Union’s international obligations is present in this case too. After all, the relevant text, the Kiev Protocol on Strategic Environmental Assessment  (15) to the Espoo Convention on Environmental Impact Assessment in a Transboundary Context,  (16) does not contain any specific rules applicable to projects requiring special assessment for reasons linked to nature conservation.

31.     As a criterion, an external comparison of this kind is, however, of only limited value. To be consistent, that approach would have to be based on a more comprehensive selection of reference groups and answer the question whether those international obligations themselves establish a high, average or low level of environmental protection.

32.     Most importantly, however, the objective laid down in Article 191(2) TFEU does not stop at exceeding external standards. Rather, it requires continuous efforts to be made to increase and improve environmental protection, even if there is no higher level of protection available internationally. After all, a level of protection ceases to be high in any event if an even higher level is readily achievable — a fact which must not, of course, be confused with the requirement to achieve the highest level of environmental protection technically possible, whatever the circumstances.

33.     The foregoing imposes on the EU legislature the requirement, when formulating environmental legislation, to improve environmental protection at least in areas where this can be accomplished with a reasonable degree of effort and is not precluded by any legitimate interests.

34.     When viewed in conjunction with the considerations set out in point 27 of this Opinion, in particular the variety of objectives which the EU legislature may legitimately pursue when making provision for environmental protection, the principle of a high level of protection laid down in Article 191(2) TFEU is therefore clearly infringed where there is nothing to indicate the existence of legitimate interests precluding a higher level of protection. It should be noted in this regard that, in accordance with the general EU-law principle of proportionality, ‘precluding’ interests include those the weight of which is disproportionate to any potential improvement in the level of protection.

35.     In the following submissions, I shall first examine whether the level of protection provided for in the SEA Directive and, in particular, the scope of that directive as set out in Article 3(1) thereof satisfy that requirement (see in this regard Section 2), before turning to address the question of whether it is reasonable, in the circumstances provided for in the SEA Directive, to refrain on an exceptional basis from subjecting plans and programmes requiring an assessment under the Habitats Directive to a strategic environmental assessment (see in this regard Section 3).

2.     Level of protection provided for in the SEA Directive in general

36.     The first point to be made about the SEA Directive is that it seeks to protect the environment not by means of substantive rules applicable to plans and programmes but by laying down requirements with respect to the procedures to be followed by the Member States when identifying, recording and assessing environmental effects.  (17)

37.     Article 191(2) TFEU authorises the adoption of measures relating solely to certain specified aspects of the environment, provided that such measures contribute to the preservation, protection and improvement of the quality of the environment.  (18) Measures relating to certain specified aspects also include provisions concerned only with laying down procedural requirements aimed at contributing to environmental protection by providing for supervision by the public authorities.

38.     Of course, those procedural requirements are capable of enhancing environmental protection only to the extent that plans and programmes actually have effects on the environment in the first place. In that connection, Article 3(1) of the SEA Directive determines the scope of that directive and thus the level of protection it affords, providing that an environmental assessment must be carried out (only) for plans and programmes which are likely to have significant environmental effects.

39.     What is more, in the light of the principle that a high level of protection must be achieved, there seems to be no reason why there should not be a requirement that the likely environmental effects exhibit a certain degree of significance. In this regard, there is a legitimate interest in avoiding the additional effort that would be involved in performing a strategic environmental assessment for every single plan and programme capable of having only a negligible impact on the environment. Moreover, that interest is not manifestly disproportionate to the minor improvement in environmental protection which a strategic environmental assessment of plans and programmes not likely to have significant effects on the environment would bring.

3.     Article 3(3) of the SEA Directive in particular

40.     On the basis of that conclusion, it is not too difficult to examine whether the fact that plans and programmes requiring an assessment under the Habitats Directive do not have to be subjected to a strategic environmental assessment provided that they meet the conditions set out in Article 3(3) of the SEA Directive, namely that they determine the use of only small areas at local level and are not likely to have significant environmental effects, falls below the level of protection required by Article 191(2) TFEU.

41.     It must be noted first in this regard that Article 3(3) of the SEA Directive maintains, unchanged, the level of protection established in Article 3(1). For, under the latter provision too, plans and programmes which are subject to an implications assessment under Article 6(3) of the Habitats Directive but which determine the use of small areas at local level require a strategic environmental assessment if the Member States determine that they are likely to have significant environmental effects.

42.     More specifically, no particular importance can be attached in this regard to the inclusion in Article 3(3) of the SEA Directive of the additional statement that ‘Member States [must] determine’ that plans and programmes have such effects, since that statement is simply an expression of the fact, inherent in the nature of that directive, that it is the Member States that will be implementing the provision in practice. In any event, the discretion which the Member States purportedly enjoy is reduced to the extent that they are required to subject the plans likely to have significant effects on the environment to environmental assessment, in particular on account of their characteristics, their effects and the areas likely to be affected.  (19) In order to determine whether significant environmental effects are likely, they must take into account the criteria set out in Annex II, as Article 3(5) of the SEA Directive provides.  (20)

43.     Herein lies the difference between this case and the case-law cited in the order for reference, in which the Court takes issue with the transposition of provisions similar to those of the SEA Directive  (21) on the ground that the transposed legislation is based exclusively on thresholds or the location of urban development projects outside built-up areas.  (22) In those cases, there was no examination of whether the projects not covered by the legislation were nevertheless capable of having significant effects on the environment.

44.     Furthermore, the Council rightly submits that Article 3(3) of the SEA Directive does not call into question the level of protection provided for in the Habitats Directive either. The obligations under Article 6(3) and (4) of the Habitats Directive are unaffected by Article 3(3) of the SEA Directive.

45.     Since, therefore, Article 3(3) of the SEA Directive does not further reduce the level of protection established by Article 3(1), there is no reason, further to the conclusion reached in Section 2, to be in any doubt that the high level of protection required by Article 191(2) TFEU is being ensured.

46.     Italia Nostra, on the other hand, submits in essence that the fact that, pursuant to Article 3(3) of the SEA Directive, plans and programmes which already require an implications assessment under the Habitats Directive can be exempt from a strategic environmental assessment is not consistent with the level of protection required.

47.     It is true that the foregoing seems contradictory at first sight, since the likelihood of significant effects on a European conservation area that constitutes the condition governing an obligation to carry out an implications assessment under Article 6(3) of the Habitats Directive generally corresponds to the likelihood of significant effects within the meaning of Article 3(3) of the SEA Directive.  (23)

48.     It therefore made sense for Article 3(2)(b) of the SEA Directive to lay down an irrebuttable presumption that plans and programmes requiring an implications assessment under Article 6(3) of the Habitats Directive are also subject to an environmental assessment under the SEA Directive.

49.     There may nonetheless be cases where any remaining reasonable doubt as to the innocuousness of a measure may very easily be allayed by a limited assessment under Article 6(3) of the Habitats Directive, in which event that specific assessment will leave no further doubt that would necessitate an environmental assessment under the SEA Directive. In such cases, it is justifiable to dispense with a comprehensive environmental assessment under the SEA Directive. For, even with that limitation, plans and programmes capable of having significant effects on the environment are still subject to an assessment as required by Article 3(1) of the SEA Directive. To this extent, therefore, for the reasons set out in point 39 of this Opinion, even Article 3(3) of the SEA Directive ensures the level of protection required by Article 191(2) TFEU.

50.     The question whether significant environmental effects have been correctly ruled out in the main proceedings does not have to be decided here; neither, according to the order for reference, does it have to be decided by the national court, since no complaints to that effect appear to have been raised. The fact that numerous restrictions were imposed on the project at issue in order to protect the European conservation areas concerned nonetheless raises doubts as to whether the possibility of significant environmental effects within the meaning of Article 3(3) of the SEA Directive could be ruled out on the basis of the assessment under Article 6(3) of the Habitats Directive. The specifications for the project, which were established as part of the preliminary examination to determine whether an environmental assessment was necessary, point in the same direction.

51.     The answer to the referring court’s first question must therefore be that its examination has not disclosed anything such as to call into question the validity of Article 3(3) of the SEA Directive.

C – The second and third questions

52.     The second and third questions are concerned with the interpretation of Article 3(3) of the SEA Directive, that is to say the provision the compatibility of which with primary law was the subject of the first question.  (24) The Court is asked to clarify the meaning of the wording to the effect that plans and programmes which, although requiring an assessment under the Habitats Directive, merely ‘determine the use of small areas at local level’ are not subject to a strategic environmental assessment if Member States determine that they are not likely to have significant environmental effects.

53.     By the second question, the referring court seeks, in essence, to ascertain whether, for the purposes of assessing whether a plan or programme determines the use of a small area at local level, it is permissible to take into account only the project’s surface area. If so, the referring court asks, by the third question, whether the surface-area-based thresholds (40 or 10 hectares) specifically applied in Italy are compatible with the directive. The two questions can be answered together.

54.     It must be noted first in this regard that the classification of a plan or programme as a measure which determines the use of a small area at local level is subject to two conditions: on the one hand, the use of a small area; and, on the other, determination at local level. In the following submissions, I shall examine the second criterion, relating to determination at local level, first.

1.     Determination at local level

55.     The criterion of determination at local level appears again elsewhere in the SEA Directive, namely in the first indent of Article 2(a), as part of the definition and classification of plans and programmes which fall within the scope of that directive. The reference to the local level, like the references to the regional and national levels, is used to describe the potentially competent planning and approval authorities.

56.     It is true that Article 3(3) of the SEA Directive does not contain an express indication that ‘local level’ refers here too to a level of administration. The otherwise identical wording and the schematic link between those two provisions suggest, however, that the term used in Article 3(3) has the same meaning as that used in the first indent of Article 2(a) of the directive. The classification of a plan or programme as a measure using an area at local level thus requires that that measure fall within the competence of the local — as distinct from the regional and national — planning and approval authorities.

57.     The foregoing itself supports the conclusion, in answer to the referring court’s second question, that legislation which, for the purposes of defining plans and programmes that ‘determine the use of small areas at local level’, takes into account only the plan’s footprint is not consistent with Article 3(3) of the SEA Directive. However, given that, according to the order for reference, the measure contested in the main proceedings was adopted by the Comune di Venezia, it is not inconceivable that that measure constitutes a measure adopted at local level.

2.     Use of a small area

58.     If it is established that competence lies with the local authority, it must further be examined, for the purposes of applying Article 3(3) of the SEA Directive, whether the plan determines the use of only a small area.

59.     So far as concerns the referring court’s second question, it should be noted first in this regard that the criterion for determining the size of the area can only be the footprint of the site directly affected by the plan, irrespective of the environmental effects of the project. This follows not least from the natural literal meaning of the term ‘area’. From a schematic point of view, too, it is apparent that Article 3(3) takes into account only the area the use of which the plan determines, thus adopting a form of words that is more restrictive than that used in other provisions of the directive, all of which take into account the areas (likely) to be affected by the project or its effects.  (25) This too indicates that the only relevant criterion is the footprint of the site directly affected by the plan.

60.     The exclusively footprint-based approach suggested here is, at the very least, not precluded by teleological considerations either. In particular, the specific provision to the effect that plans and programmes determining the use of small areas at local level are subject to a strategic environmental assessment only on completion of a preliminary examination to determine whether those plans and programmes are likely to have significant environmental effects, does not have as its primary purpose to ensure the highest possible level of protection. If that were the only purpose of that rule, there would have been no need for the derogation from the provision contained in Article 3(2)(b) that is created by Article 3(3). In that event, all plans and programmes requiring assessment under Article 6(3) of the Habitats Directive would also have been made subject to a strategic assessment and a marginally higher level of protection might have been achieved.

61.     The primary purpose of severing the automatic link between an implications assessment under the Habitats Directive and a strategic environmental assessment in favour of a preliminary examination is, rather, to avoid unnecessary effort and promote procedural efficiency. To that end, footprint size is a suitable criterion for distinguishing between plans which always require an assessment and those in respect of which a preliminary examination is carried out first. Even though there are bound to be plans and programmes which have a small footprint but produce significant environmental effects  (26) (and will, therefore, in accordance with Article 3(3), be subject to a strategic environmental assessment), it can generally be assumed that larger measures will in any event have greater environmental effects than smaller comparable plans and will therefore often not need a preliminary examination. Moreover, since determining the size of the area covered by a project involves no significant additional effort, it may effectively limit effort without in so doing frustrating the achievement of the overall objective pursued by the directive, which is to establish a timely procedure for scrutinising measures likely to have a significant effect on the environment.  (27)

62.     This raises the connected question of how big an area may be and still be considered ‘small’.

63.     It must be noted first in this regard that the EU legislature has refrained from laying down a specific threshold. To this extent, the Member States have some discretion in the determination of such thresholds. That discretion is restricted only by the upper limit of what can still be described as an area that is ‘small’ by conventional definition.

64.     It must also be taken into account that an area can only be classified as small by comparison with a benchmark.

65.     To my mind, there are in principle three areas that might serve as benchmarks for size: the entire territory of the European Union, the use of which would allow for a specific definition of ‘small’ area that would be valid in all Member States; the surface area of the relevant Member State; and, lastly, the surface area of the territory falling within the competence of the relevant administrative authority at local level.

66.     Since the criterion relating to the use of small areas is additional to the requirement of determination at local level, and is therefore intended to refine that requirement further still, it is appropriate to rely as the relevant benchmark on the territory falling within the competence of the corresponding local authority. After all, anything that can be considered small in relation to the area of the entire Member State or even the European Union would probably be larger as a rule than the territory over which an administrative authority at local level exercises competence.

67.     It is true that this means that what constitutes a small area will depend on the distribution of competences and the split between local and (as distinct from local) regional levels of administration in the Member States. This, however, is a necessary, if unintended, consequence of the lack of harmonisation and precision in Article 3(3) of the SEA Directive and the reference in that provision to the local level.

68.     For these purposes, an area of up to 5% of the territory within which the relevant administrative authority at local level exercises competence seems to be an appropriate guideline for determining what can still be considered conventionally ‘small’. In the case of particularly large municipalities, however, it cannot, as a rule, be permissible to accept as ‘small’ the maximum area implied by that guideline.

V –  Conclusion

69.     I therefore propose that the Court’s answer to the request for a preliminary ruling should be as follows:

(1)
The examination of the first question has disclosed nothing such as to call into question the validity of Article 3(3) of Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment.

(2)
The application of Article 3(3) of Directive 2001/42 is subject not only to the condition relating to the use of a small area but also to the condition that the plan or programme must fall within the competence of a local authority. That provision therefore precludes legislation which, for the purposes of determining whether a plan or programme determines the use of a small area at local level, takes into account only the footprint of the site affected by the plan.

(3)
For the purposes of Article 3(3) of Directive 2001/42, a plan or programme no longer determines the use of a small area if the area affected exceeds a guideline value of 5% of the surface area of the territory within which the relevant administrative authority at local level exercises competence.

2 –
Original language: German.

3 –
Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 (OJ 2001 L 197, p. 30).

4 –
Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7).

5 –
OJ 2012 C 326, p. 47.

6 –
OJ 2008 C 115, p. 13.

7 –
OJ 2012 C 326, p. 391.

8 –
Judgment of 7 April 2016 in KA Finanz (C‑483/14, EU:C:2016:205, paragraph 41 and case-law cited).

9 –
See Article 37 of the Charter and the Explanations relating to the Charter of Fundamental Rights, OJ 2007 C 303, p. 27.

10 –
Judgment of 14 July 1998 (C‑284/95, EU:C:1998:352).

11 –
Judgment of 14 July 1998 (C‑341/95, EU:C:1998:353).

12 –
See the judgments of 14 July 1998 in Safety Hi-Tech (C‑284/95, EU:C:1998:352, paragraph 36 et seq.) and Bettati (C‑341/95, EU:C:1998:353, paragraph 34 et seq.) and of 15 December 2005 in Greece v Commission (C‑86/03, EU:C:2005:769, paragraph 88).

13 –
See the judgments of 14 July 1998 in Safety Hi-Tech (C‑284/95, EU:C:1998:352, paragraph 49) and Bettati (C‑341/95, EU:C:1998:353, paragraph 47).

14 –
See the judgments of 14 July 1998 in Safety Hi-Tech (C‑284/95, EU:C:1998:352, paragraph 48) and Bettati (C‑341/95, EU:C:1998:353, paragraph 46).

15 –
OJ 2008 L 308 p. 35, adopted by Council Decision 2008/871/EC of 20 October 2008 on the approval, on behalf of the European Community, of the Protocol on Strategic Environmental Assessment to the 1991 UN/ECE Espoo Convention on Environmental Impact Assessment in a Transboundary Context (OJ 2008 L 308, p. 33).

16 –
OJ 1992 C 104, p. 7; according to the Proposal for a Council Decision on the approval, on behalf of the European Community, of the first and the second amendments to the UN/ECE Espoo Convention on Environmental Impact Assessment in a Transboundary Context (COM[2007] 470 final), the Community approved that convention, on 27 June 1997, by way of an unpublished Council Decision which appears to be dated 15 October 1996 (see the proposal for the first Council Decision in OJ 1992 C 104, p. 5).

17 –
See, to that effect, recital 9 of the SEA Directive and the judgment of 14 March 2013 in Leth (C‑420/11, EU:C:2013:166, paragraph 46).

18 –
Judgment of 14 July 1998 in Bettati (C‑341/95, EU:C:1998:353, paragraph 43).

19 –
Judgments of 22 September 2011 in Valčiukienė and Others (C‑295/10, EU:C:2011:608, paragraph 46) and 10 September 2015 in Dimos Kropias Attikis (C‑473/14, EU:C:2015:582, paragraphs 46 and 47). See also the judgment of 18 April 2013 in L (C‑463/11, EU:C:2013:247, paragraph 38).

20 –
See the judgment of 18 April 2013 in L (C‑463/11, EU:C:2013:247, paragraphs 31, 33, 39 and 41).

21 –
Now Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as last amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1).

22 –
The order for reference cites the judgments of 21 September 1999 in Commission v Ireland (C‑392/96, EU:C:1999:431, paragraphs 64 to 67) and 16 March 2006 in Commission v Spain (C‑332/04, EU:C:2006:180, paragraphs 77 to 81).

23 –
See my Opinion in Lesoochranárske zoskupenie VLK (C‑243/15, EU:C:2016:491, point 78) and the case-law concerning the SEA Directive which is cited there, as well as recital 10 of the SEA Directive.

24 –
See Section B above.

25 –
See Article 3(2)(b), Annex I, points c and d and Annex II(2) of the SEA Directive.

26 –
See the judgment of 21 September 1999 in Commission v Ireland (C‑392/96, EU:C:1999:431, paragraph 66 et seq.), concerning the SEA Directive.

27 –
Judgment of 22 March 2012 in Inter-Environnement Bruxelles and Others (C‑567/10, EU:C:2012:159, paragraph 30).

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