1.

This reference for a preliminary ruling seeks to clarify whether an environmental impact assessment pursuant to Directive 2011/92 ( 2 ) can be carried out after the project concerned has already been realised. Uncertainties have arisen concerning the permissibility of that approach since an assessment of that kind can only achieve its full purpose before consent is given and the project implemented. However, it must also be asked what alternatives exist, in the case of procedural errors of such severe gravity, to the carrying out of an assessment after construction.

2.

Article 6 of the Convention on access to information, public participation in decision-making and access to justice in environmental matters ( 3 ) (‘the Aarhus Convention’) provides for public participation in decisions on activities which may have a significant effect on the environment. Article 6(4) establishes the timing of that participation.

‘Each Party shall provide for early public participation, when all options are open and effective public participation can take place.’

3.

Recital 2 of Directive 2011/92 emphasises the fundamental principles on which the Directive is based.

‘Pursuant to Article 191 of the Treaty on the Functioning of the European Union, Union policy on the environment is 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. Effects on the environment should be taken into account at the earliest possible stage in all the technical planning and decision-making processes.’

4.

Article 1(2)(c) of Directive 2011/92 defines the term ‘development consent’ as follows:

‘the decision of the competent authority or authorities which entitles the developer to proceed with the project.’

5.

Article 2(1) of Directive 2011/92 governs the relationship between giving consent and the assessment of the environmental effects.

‘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 …’

6.

Article 3 of Directive 2011/92 establishes the basic requirements for the substantive assessment.

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case and in accordance with Articles 4 to 12, the direct and indirect effects of a project on the following factors:

7.

Pursuant to Article 5 of Directive 2011/92, the developer must supply the information necessary for the assessment. Articles 6 and 7 govern the participation of official bodies and the public.

8.

Pursuant to Article 8 of Directive 2011/92, ‘the results of consultations and the information gathered pursuant to Articles 5, 6 and 7 shall be taken into account in the development consent procedure’.

9.

According to the referring court, Italian law does not make any provision for an environment impact assessment to be carried out retrospectively after the construction of a plant.

10.

In respect of plants which have already been authorised, Article 29(1) of Legislative Decree No 152/2006 simply provides that the consent or approval measures adopted without a prior environmental impact assessment may be annulled for breach of law, as occurred in the present case.

11.

Where a plant is constructed without it being verified beforehand whether it must be subject to an environmental impact assessment screening or without an environmental impact assessment as such being carried out, Article 29(4) of Legislative Decree No 152/2006 provides that the competent authorities, after assessing the extent of environmental damage caused and the damage which remains following the application of penalties, must order the work on the project to be suspended and may order that the construction be demolished and that the site and the environmental position be restored to its former state at the expense of the person responsible or, where that person fails to comply, may arrange for the demolition and restoration to be carried out.

12.

Article 29(5) of Legislative Decree No 152/2006 provides that ‘where an authorisation or consent issued following an environmental impact assessment has been annulled by the courts or withdrawn by a public authority exercising its power to review its own measures, or where an assessment that a project is environmentally compatible is annulled, the powers referred to in paragraph 4 shall be exercised subject to a new environmental impact assessment’.

13.

The request for a preliminary ruling concerns two plants for the generation of electricity on the basis of biogas obtained from the anaerobic digestion of biomass each with a nominal electrical power output of 999kW constructed by VBio1 Società Agricola Srl. (‘VBio1’) in the municipality of Corridonia (Case C‑196/16) and VBio2 Società Agricola Srl. (‘VBio2’) in the municipality of Loro Piceno (Case C‑197/16).

14.

The Marche Region gave its consent for the plant in Corridonia on 5 June 2012 in response to applications made in October 2011 and for the plant in Loro Piceno on 29 June 2012 in response to applications made in December 2011.

15.

Assessment of the projects’ environmental impact was the responsibility of the Province of Macerata which, however, took no decision on the matter as, under the law of the Marche Region, an assessment of that kind was unnecessary for plants of that size. Later, however, that provision of regional law was annulled by Italy’s Constitutional Court. As a result, actions brought by both municipalities and other applicants challenging the consents were successful. However, by then, VBio1 and VBio2 had already constructed their plants and commenced operations.

16.

Following the annulment of the consents, the competent authorities of the Province of Macerata determined, first, that both plants needed to be assessed with regard to their environmental impact and, subsequently, issued on 7 July 2014 (Corridonia) and on 10 February 2015 (Loro Piceno) a positive assessment with regard to the compatibility of each plant with environmental law provisions. It is those latter decisions that the actions in the main proceedings seek to challenge.

17.

Consequently, the Tribunale Amministrativo Regionale per le Marche (Marche Regional Administrative Court, Italy) has referred the following question to the Court:

‘On a constructive interpretation of Article 191 TFEU and Article 2 of Directive 2011/92/EU, is it compatible with EU law to proceed with the verification of whether an environmental impact assessment needs to be undertaken (and possibly thereafter to carry out an environmental impact assessment) after the construction of the plant where the consent has been annulled by the national court due to a failure to verify whether the environmental impact assessment was needed, because such a verification had been excluded on the basis of a national law which was contrary to EU law?’

18.

Written observations have been submitted by the municipalities of Corridonia and Loro Piceno and by Alessandrini and Others, as applicants, by the Province of Macerata and the Marche Region, as defendants, by VBio1 and VBio2, as interveners, and by the Italian Republic and the European Commission. Apart from Alessandrini and Others, they also participated in the hearing on 8 March 2017.

19.

The Regional Administrative Court wishes to establish whether an environmental impact assessment that was unlawfully omitted can be carried out later, following the construction of the plant in question on the basis of a consent that was later successfully challenged.

20.

I wish, first, in Section A to identify more closely what is at issue in these proceedings, then in Section B to examine the provisions of Directive 2011/92 concerning the timing of an environmental impact assessment and, finally, in Section C to consider the consequences of an omitted assessment in the case of projects that have already been realised.

21.

First, it must be observed that Article 191 TFEU, to which the Regional Administrative Court refers, cannot of itself be a yardstick for assessing Member State measures. As the Commission correctly argues, that provision is directed at the Union. However, it may become relevant in the interpretation of secondary law. ( 4 )

22.

Therefore, the request for a preliminary ruling is correct to refer to the environmental impact assessment provisions as laid down in Directive 2011/92. Although the first applications in the respective consent procedures were submitted on 4 October 2011 ( 5 ) and 16 December 2011, ( 6 ) whereas Directive 2011/92 did not enter into force until February 2012, a new rule of law applies, in principle, in particular in the context of ongoing procedures, from the entry into force of the act introducing it. ( 7 ) That principle can be departed from only in exceptional cases where an application of that kind would result in a disproportionate burden. ( 8 ) In the present case, however, there is no reason for a departure of that kind since the rules that were previously in force and the rules of Directive 2011/92 are in essence identical. ( 9 ) For that reason, the consents issued for both plants in June 2012 must be measured against Directive 2011/92

23.

In addition, it must be clarified that the Court is not required to determine whether, in fact, the biogas plants in question must be subjected to an environmental impact assessment or to identify the criteria to be used in reaching a determination of that kind. Thus, the arguments of VBio1 and VBio2 concerning the current Italian legislation, which precludes a mandatory assessment, are irrelevant. And, hence, nor is it necessary in the present case to examine whether, in the light of the environmental risks associated with biogas plants, for example, the risk of explosion, methane and formaldehyde emissions and nitrate levels resulting from the use of digestate as a fertilizer, the new legislation is compatible with Directive 2011/92.

24.

Article 3 of Directive 2011/92 provides that the environmental impact assessment shall identify, describe and assess the direct and indirect effects of a project on the environment. It is to be based, inter alia, on the participation of the public in accordance with Article 6. Pursuant to Article 2(1) and Article 1(2)(c), this must take place before the consent is given entitling the developer to proceed with the project.

25.

Moreover, recital 2 of Directive 2011/92 states that effects on the environment should be taken into account at the earliest possible stage in all the technical planning and decision-making processes. As is further stated in that recital, that approach is commensurate with the precautionary principle and 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 which, pursuant to Article 191(2) TFEU, are the basic principles of Union policy on the environment. The Court has interpreted this to mean that the objective of an environmental impact assessment is to prevent the creation of pollution or nuisances at source rather than subsequently trying to counteract their effects. ( 10 )

26.

In addition, reference must be had to Article 6 of the Aarhus Convention, which is implemented by Directive 2011/92. ( 11 ) The public participation in decisions that may have a significant effect on the environment provided for therein must take place at an early stage, when all options are still open and effective public participation can take place. ( 12 ) That formulation illustrates the purpose of early participation. It is more effective when it can be taken into account in full in the realisation of the project. In particular, it can demonstrate how — without avoidable additional efforts — a plant must be constructed in order to reduce the environmental effects to a minimum.

27.

However, if the plant has already been constructed, as a rule, not all options are still open. It is usually more expensive to modify an existing plant than to incorporate the relevant measures in the project from the outset.

28.

Thus, if an environmental impact assessment is not carried out until after the plant has been constructed, it can only be effective to the extent that it identifies environmental requirements entailing mandatory modifications to the plant, results in a modification of discretionary decisions or provides indications of how remaining options can be exercised in an environmentally friendly manner.

29.

However, if the assessment indicates how the plant could have been better designed in order to minimise negative effects on the environment, Directive 2011/92, at the very least, does not require such modifications to be imposed on developers. Namely, it does not lay down substantive rules in relation to the balancing of the environmental effects with other factors or prohibit the completion of projects which are liable to have negative effects on the environment. ( 13 )

30.

Moreover, the practical difficulties involved in correctly identifying the environmental effects militates against the carrying out of an environmental impact assessment only after the construction of a plant. That plant has already modified the local environmental conditions without it being possible to identify with certainty afterwards the changes that have taken place. For example, if an undiscovered population of a strictly protected species, for example, bats or certain types of lizard, was destroyed, there is no guarantee that this can be identified after the event.

31.

Those inevitable practical disadvantages of an assessment carried out after construction can be offset only to a limited extent by the fact that an assessment of that kind can actually take account of the identifiable effects on the environment resulting from the plant’s operation whereas a proper assessment would only have predicted such effects.

32.

It must be concluded, therefore, that the effects of a project on the environment must definitely be assessed before consent is given and that an environmental impact assessment carried out after a plant has been constructed cannot fully compensate for the original omission of an assessment of that kind. ( 14 )

33.

That conclusion underlines, moreover, the necessity of effective interim relief in the case of disputes concerning the assessment of the effects of a project on the environment. If interim relief is denied, success in the action does not ensure an effective remedy. It would therefore be particularly regrettable if, as VBio1 and VBio2 have stated, the competent courts did in fact refuse a suspension of the consent and thus facilitated the premature construction of the plants.

34.

What should be done, however, if it is recognised only after a project has been realised that its effects on the environment ought to have been assessed? The arguments of Corridonia and Loro Piceno as well as Alessandrini and Others are premised perhaps on the tacit expectation that consent should no longer be given to the projects in question and that, therefore, the plants must be dismantled and removed.

35.

Although that legal consequence is — at least in theory — possible, as a rule, it is unlikely to come into consideration. Following the realisation of the project, admittedly, the error of procedure can no longer be fully rectified (see section 1), however, the consequences of that error can still be mitigated to a considerable extent (see section 2).

36.

On the question of how to rectify the omission of an environmental impact assessment, there has been considerable debate amongst the parties on how a judgment handed down against Ireland should be interpreted. It was held in that case that the regularisation of operations or measures which are unlawful in the light of EU law is only permissible if it does not offer the persons concerned the opportunity to circumvent EU rules or to dispense with applying them and remains the exception. ( 15 )

37.

However, the parties have failed to notice that in a later case the Court, relying on that judgment, clarified the conditions under which the omission of public participation under the rules on integrated pollution prevention and control ( 16 ) may be rectified. Namely, at the date the procedure for public participation is carried out all options and solutions must remain possible and rectification at that stage must still allow the public concerned effectively to influence the outcome of the decision-making process. ( 17 ) Those considerations must also apply in relation to an environmental impact assessment.

38.

However, since not all options and solutions remain open after a project has been realised and, consequently, the effectiveness of the public participation is restricted, the omission of an environment impact assessment can at that stage no longer be fully rectified. Consequently, the project cannot be treated as if its consent had been granted in compliance with the requirement to assess the effects of the project on the environment.

39.

However, that finding does not fully clarify how to deal with the consequences of the error of procedure. In that regard, I consider that pragmatic solutions are called for which do not result, however, in an incentive to circumvent the rules of Directive 2011/92.

40.

The Court has already emphasised that, under the principle of cooperation in good faith laid down in Article 4(3) TEU, Member States are required to nullify the unlawful consequences of a breach of EU law. Such an obligation is owed, within the sphere of its competence, by every organ of the Member State concerned. Thus, it is for the competent authorities of a Member State to take, within the sphere of their competence, all the general or particular measures necessary to ensure that projects are examined in order to determine whether they are likely to have significant effects on the environment and, if so, to ensure that they are subject to an impact assessment. Such particular measures include, subject to the limits laid down by the principle of procedural autonomy of the Member States, the revocation or suspension of a consent already granted, in order to carry out an assessment of the environmental effects of the project in question as provided for by Directive 2011/92. ( 18 )

41.

Where a consent is revoked or suspended, it will, as a rule, in addition, be appropriate, as is the case in the main proceedings, to halt the operations of the plant concerned. ( 19 ) Namely, according to Article 1(2)(c) and Article 2(1) of Directive 2011/92, that consent is a requirement to proceed with the project, in other words, to operate the plant. In addition, that approach is consistent with the precautionary principle and the principle that preventive action should be taken. If an environmental impact assessment had been necessary, it is, in fact, doubtful whether, in the absence of that assessment, the consent has taken account of all the applicable environmental protection standards. Moreover, the risk of operations being halted provides a strong incentive when applying for a consent for a project of that kind to ensure that the requirements of Directive 2011/92 are observed.

42.

If, on the other hand, the possibility to revoke or suspend the consent is precluded because it has already become final, the Member States must take account of the omission of an environmental impact assessment at the very least at the stage of granting a subsequent consent in connection with the project and ensure the practical effectiveness of that directive by ensuring that such an assessment is carried out at the very least at that stage of the procedure. ( 20 )

43.

In contrast, protection of the legitimate expectations of the developer and the notion of legal certainty, on which VBio1 and VBio2 rely, cannot be of relevance in the main proceedings.

44.

As long as a consent has not become final, it cannot, in fact, give rise to legitimate expectations. If a developer realises his project in spite of an action challenging the consent, he bears the risk that the consent later transpires to have been unlawful. Otherwise, this would compromise an effective legal protection for third parties as required by Article 47 of the Charter of Fundamental Rights and in environmental procedures by Article 9(4) of the Aarhus Convention.

45.

If the legitimate expectations of the developer are based on national provisions that are in breach of EU law, at most a right to reparation in damages against the responsible national authorities is conceivable. ( 21 )

46.

As for the principle of legal certainty, this prevents directives from creating obligations for individuals. The provisions of a directive can only create rights for individuals. Consequently, an individual may not rely on a directive against a Member State where it is a matter of a State obligation directly linked to the performance of another obligation falling, pursuant to that directive, on a third party. On the other hand, mere adverse repercussions on the rights of third parties, even if the repercussions are certain, do not justify preventing the individual from invoking the provisions of a directive against the Member State concerned. ( 22 )

47.

Consequently, the Court has already held that the obligation on the Member State concerned to ensure that the competent authorities carry out an environmental impact assessment is not directly linked to the performance of any obligation which would fall, pursuant to Directive 2011/92, on the developer. The fact that operations must be halted to await the results of the assessment is admittedly the consequence of the belated performance of that State’s obligations. Such a consequence cannot, however, be regarded as the indirect imposition of obligations on the developer by the provisions of the directive. ( 23 )

48.

It is therefore clear that the omission of an environmental impact assessment must be remedied at a later stage if this is still in fact possible. The realisation of the project concerned, in the main proceedings the construction of the biogas plants, cannot constitute an obstacle in that regard.

49.

An assessment carried out at a later stage is also worthwhile as it can, at least in part, still achieve the objectives of Directive 2011/92 mentioned in point 25.

50.

The assessment can in particular still identify many or, depending on the circumstances, possibly all the effects of a project on the environment. It thus provides a basis for reviewing the legality of the project. If it is shown that the project is in breach of mandatory legal requirements, the project must be modified accordingly or possibly even terminated. The fact that the project has already been realised cannot have any decisive bearing on this re-evaluation ( 24 ) in order to avoid any incentive to realise a project unlawfully in the absence of an assessment. ( 25 )

51.

An assessment at a later stage is also particularly important with regard to any discretion granted to the authority which issues the consent. Namely, when exercising that discretion, it must have regard to the outcome of the environmental impact assessment. Consequently, following an assessment carried out at a later stage, discretionary decisions taken must be reviewed in the light of the assessment’s outcome and, where necessary, amended. However, in relation to a discretionary decision of that kind, the fundamental rights of the developer will also be of relevance. ( 26 )

52.

In addition, the assessment is a means of informing the public concerned, the competent authorities and the developer of those effects and the possible risks. ( 27 )

53.

The example of biogas plants illustrates the importance of providing such information to the developer. If those plants are operated, as is often the case, as a secondary activity, the persons responsible do not necessarily have specific training and relevant experience in that area such that it can be presumed, even in the absence of an environmental impact assessment, that they are capable, in the daily operation of the plant, of minimising the adverse effects and risks resulting from it.

54.

In addition, it may be asked whether the circumstance whereby, in the absence of an environmental impact assessment, possibly not all the options to reduce the negative effects on the environment could be included voluntarily in the project implementation must be remedied. Although a remedy of that kind is commensurate with the obligation to remedy the consequences of a breach of EU law, Directive 2011/92 does not oblige a developer, even where the assessment of the effects on the environment is carried out at the proper time, to implement his project in the most environmentally friendly manner.

55.

Ultimately, however, the Court is not required in the present case to provide an answer to this last question as there is nothing to suggest that it is relevant for a ruling to be given in the legal dispute before the national court.

56.

Consequently, although it is permissible to carry out an environmental impact assessment after the relevant plant has been constructed, this cannot entail — unlike a full rectification of the error of procedure — that the plant and its effects are treated as having a consent which is legally untainted. The omission of an environmental impact assessment can entail, in addition to the risk of operations being halted, claims for reparation in damages against the authority which issued the consent and possibly also for an order to refrain from disturbances, in particular if the assessment could not realise (at the proper time) its warning function. ( 28 )

57.

I therefore propose that the Court rule as follows:

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, interpreted in the light of Article 191 TFEU, entails the obligation to verify whether an environmental impact assessment needs to be undertaken, and, where this is the case, to carry out the assessment itself before consent is given and the relevant project realised. If this obligation is infringed, the competent authorities must carry out these procedures at a later stage and draw the appropriate consequences from their outcome. However, this cannot result in the project being treated as if its consent had been given in full compliance with Directive 2011/92.