Case C‑117/17

Comune di Castelbellino

v

Regione Marche and Others

(Request for a preliminary ruling from the Tribunale amministrativo regionale per le Marche)

(Reference for a preliminary ruling — Environment — Directive 2011/92/EU — Article 4(2) and (3) and Annexes I to III — Environmental impact assessment — Authorisation to carry out work in a plant for the production of electricity from biogas without preliminary examination of the need for an environmental impact assessment — Annulment — Regularisation after the event of the authorisation on the basis of new provisions of national law without preliminary examination of the need for an environmental impact assessment)

Summary — Judgment of the Court (Sixth Chamber), 28 February 2018

1. Environment—Assessment of the effects of certain projects on the environment—Directive 2011/92—Making the projects listed in Annex II to the directive subject to assessment—Discretion of the Member States—Limits—Taking into account the selection criteria set out in Annex III

   (European Parliament and Council Directive 2011/92, Arts 2(1), 4(2) and (3) and Annexes I, point 2, and III)

2. Environment—Assessment of the effects of certain projects on the environment—Directive 2011/92—Obligation for the competent authorities to carry out the assessment before granting authorisation—Failure to make a preliminary examination of the need for an assessment—Obligation for the authorities to remedy that failure—Scope—Regularisation after the event of the authorisation on the basis of new provisions of national law—Lawfulness—Conditions

   (European Parliament and Council Directive 2011/92, Arts 2(1), 4(2) and (3) and Annexes II and III)

1.  See the text of the decision.

   (see paras 37, 38, 40-42)

2.  Where a project to increase the capacity of a plant for the production of electricity, such as the project at issue in the main proceedings, has not been subject to a preliminary examination of the need to carry out an environmental impact assessment pursuant to national legislative provisions subsequently declared incompatible with 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 in that regard, EU law requires Member States to nullify the unlawful consequences of that breach and does not preclude that plant from being subject, after completion of the project, to a new assessment by the competent authorities for the purpose of verifying whether it complies with that directive and, where appropriate, to an environmental impact assessment, on condition that the national rules allowing for that regularisation do not provide the parties concerned with an opportunity to circumvent the rules of EU law or to dispense with applying them. The environmental impact of the project from the time of its completion must also be taken into account. Those authorities are entitled to take the view, on the basis of national provisions in force at the time they are required to give a decision, that such an environmental impact assessment is not required, in so far as those provisions are compatible with that directive.

   (see para. 42, operative part)