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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Umweltanwalt von Kaernten (Environment & consumers) [2009] EUECJ C-205/08 (10 December 2009) URL: https://www.bailii.org/eu/cases/EUECJ/2009/C20508.html Cite as: [2009] EUECJ C-205/8, [2010] 2 CMLR 19, EU:C:2009:767, [2009] ECR I-11525, [2010] Env LR 15, ECLI:EU:C:2009:767, [2009] EUECJ C-205/08 |
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(Reference for a preliminary hearing Article 234 EC Concept of 'national court or tribunal' Admissibility Directive 85/337/EEC Environmental impact assessment Construction of overhead electrical power lines Length of more than 15 km Transboundary constructions Transboundary power line Total length exceeding the threshold Line mainly situated in the territory of a neighbouring Member State Length of national section below the threshold)
In Case C-205/08,
REFERENCE for a preliminary ruling under Article 234 EC from the Umweltsenat (Austria), made by decision of 2 April 2008, received at the Court on 15 May 2008, in the proceedings
Umweltanwalt von Kärnten
Kärntner Landesregierung,
composed of J.'C. Bonichot, President of the Fourth Chamber, acting for the President of the Second Chamber, C.W.A. Timmermans, K. Schiemann, P. Klūris (Rapporteur) and L. Bay Larsen, Judges,
Advocate General: D. Ruiz-Jarabo Colomer,
Registrar: R. Grass,
having regard to the written procedure,
after considering the observations submitted on behalf of:
the Umweltanwalt von Kärnten, by U. Scheuch, Landesrat,
Alpe Adria Energia SpA, by M. Mendel, Rechtsanwalt,
the European Commission, by J.'B. Laignelot and B. Kotschy, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 25 June 2009,
gives the following
Legal context
Community legislation
'This Directive shall apply to the assessment of the environmental effects of those public and private projects which are likely to have significant effects on the environment.'
'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 a requirement for development consent and an assessment with regard to their effects. These projects are defined in Article 4'.
'... projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10'.
'Where a Member State is aware that a project is likely to have significant effects on the environment in another Member State or where a Member State likely to be significantly affected so requests, the Member State in whose territory the project is intended to be carried out shall send to the affected Member State as soon as possible and no later than when informing its own public, inter alia:
(a) a description of the project, together with any available information on its possible transboundary impact;
(b) information on the nature of the decision which may be taken,
and shall give the other Member State a reasonable time in which to indicate whether it wishes to participate in the environmental decision-making procedures referred to in Article 2(2), and may include the information referred to in paragraph 2 of this Article.'
National legislation
'Where, by means of Federal law or the law of a Province, a collegiate authority comprising at least one member of the judiciary is established to decide matters at last instance and it is provided by law that its decisions may not be annulled or varied by administrative procedure, the other members of the authority are also not bound by any directions in the performance of their duties.'
'(1) An Umweltsenat shall be set up at the Bundesministerium für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft (Federal Ministry of Agriculture, Forestry, the Environment and Water Management).
(2) The Umweltsenat shall consist of 10 judges and a further 32 legally qualified members.
...'
'Members of the Umweltsenat shall carry out their functions independently and are not bound by any directions.'
'The Umweltsenat shall rule on appeals in matters set out in the first and second chapters of the Law on environmental impact assessments 2000 (Umweltverträglichkeitsprüfungsgesetz 2000 (BGBl No 697/1993), last amended by BGBl I 149/2006, 'UVP-G 2000') ...'
'Decisions handed down by the Umweltsenat may not be annulled or varied by administrative action. An application to the Verwaltungsgerichtshof shall be admissible.'
'the construction of an installation or other intervention in the natural surroundings and landscape including all measures connected in geographical and factual terms ...'.
'The projects listed in Annex I ... shall undergo an environmental impact assessment in accordance with the following provisions. The simplified procedure shall be applied to projects that are listed in columns 2 and 3 of Annex I ...'
'On application of the candidate for the project, an authority with which it is cooperating or the environment ombudsman [Umweltanwalt], the authority shall determine whether an environmental impact assessment is to be carried out for a particular project under this federal law and what objective in Annex I or Paragraph 3a(1) to (3) is attained by the project. That finding may also be made of the authority's own motion. The decision shall be adopted by notice within six weeks, both at first and at second instance. The candidate for the project, the cooperating authority, the environment ombudsman and the municipality concerned shall be considered parties. The water planning body shall be heard before the decision is adopted. The essential content of, and grounds for, decisions shall be published by the authority in an adequate fashion or be open to consultation by the public. The municipality concerned may bring an action against the decision before the Verwaltungsgerichtshof. The environment ombudsman and the cooperating authority have no obligation to reimburse expenses.'
The main proceedings and the question referred to the Court
'Is Council Directive 85/337 ... to be interpreted as meaning that a Member State must provide for an obligation to carry out an assessment in the case of types of projects listed in Annex I to the directive, in particular in point 20 (construction of overhead electrical power lines with a voltage of 220 kV or more and a length of more than 15 km), where the proposed scheme is to extend over the territory of two or more Member States, even if the threshold giving rise to the obligation to carry out an assessment (here, a length of 15 km) is not reached or exceeded by the part of the scheme situated on its national territory but is reached or exceeded by adding the parts of the scheme proposed to be situated in a neighbouring State?'
Admissibility of the question referred
The status of the Umweltsenat as a court or tribunal
The question referred
Substance
Costs
On those grounds, the Court (Second Chamber) hereby rules:
Articles 2(1) and 4(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, as amended by Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003, are to be interpreted as meaning that the competent authorities of a Member State must make a project referred to in point 20 of Annex I to the Directive, such as the construction of overhead electrical power lines with a voltage of 220 kV or more and a length of more than 15 km, subject to the environmental impact assessment procedure even where the project is transboundary in nature and less than 15 km of it is situated on the territory of that Member State.
[Signatures]
* Language of the case: German.