Case C-182/10

Marie-Noëlle Solvay and Others

v

Région wallonne

(Reference for a preliminary ruling from the Cour constitutionnelle (Belgium))

‛Assessment of the effects of projects on the environment — Concept of legislative act — Force and effect of the guidance in the Aarhus Convention Implementation Guide — Consent for a project given without an appropriate assessment of its effects on the environment — Access to justice in environmental matters — Extent of the right to a review procedure — Habitats Directive — Plan or project affecting the integrity of the site — Imperative reason of overriding public interest’

Summary of the Judgment

1. International agreements — Agreements concluded by the Community — Convention on access to information, public participation in decision-making and access to justice in environmental matters (Aarhus Convention) — Aarhus Convention Implementation Guide — No binding force

   (Aarhus Convention, Arts 2(2) and 9(4); Council Decision 2005/370)

2. Environment — Assessment of the effects of certain projects on the environment — Directive 85/337 and Convention on access to information, public participation in decision-making and access to justice in environmental matters (Aarhus Convention) — Scope — Projects adopted in detail by a specific act of national legislation — Not included

   (Aarhus Convention, Art. 2(2); Council Directive 85/337, as amended by Directive 2003/35, Art. 1(5); Council Decision 2005/370)

3. Environment — Assessment of the effects of certain projects on the environment — Directive 85/337 and Convention on access to information, public participation in decision-making and access to justice in environmental matters (Aarhus Convention) — Project adopted by an act of national legislation falling within the scope of the directive — Right to review of that act — Extent

   (Aarhus Convention, Arts 3(9) and 9(2) to (4); Council Directive 85/337, as amended by Directive 2003/35, Arts 1(5) and 10a; Council Decision 2005/370)

4. Environment — Assessment of the effects of certain projects on the environment — Directive 85/337 and Convention on access to information, public participation in decision-making and access to justice in environmental matters (Aarhus Convention) — Decision to grant or refuse authorisation for a project — Obligation to state reasons — Extent

   (Aarhus Convention, Art. 6(9); Council Directive 85/337, as amended by Directive 2003/35, Art. 9(1); Council Decision 2005/370)

5. Environment — Conservation of natural habitats and of wild fauna and flora — Directive 92/43 — Authorisation for a plan or project on a protected site — Conditions

   (Council Directive 92/43, Art. 6(3))

6. Environment — Conservation of natural habitats and of wild fauna and flora — Directive 92/43 — Authorisation for a plan or project on a protected site for imperative reasons of overriding public interest — Condition

   (Council Directive 92/43, Art. 6(3) and (4))

1.  While, for the interpretation of Articles 2(2) and 9(4) of the Convention on access to information, public participation in decision-making and access to justice in environmental matters (Aarhus Convention), it is permissible to take the Implementation Guide for that Convention into consideration, the guide has no binding force and does not have the normative effect of the provisions of the Aarhus Convention.

   (see para. 28, operative part 1)

2.  Article 2(2) of the Convention on access to information, public participation in decision-making and access to justice in environmental matters (Aarhus Convention) and Article 1(5) of Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2003/35, must be interpreted as meaning that only projects the details of which have been adopted by a specific legislative act, in such a way that the objectives of the Convention and the directive have been achieved by the legislative process, are excluded from the scope of those instruments. It is for the national court to verify that those two conditions have been satisfied, taking account both of the content of the legislative act adopted and of the entire legislative process which led to its adoption, in particular the preparatory documents and parliamentary debates. In that regard, a legislative act which does no more than simply ‘ratify’ a pre-existing administrative act, by merely referring to overriding reasons in the public interest without a substantive legislative process enabling those conditions to be fulfilled having first been commenced, cannot be regarded as a specific act of legislation within the meaning of Article 1(5) of Directive 85/337 and is therefore not sufficient to exclude a project from the scope of the Convention and that directive, as amended.

   (see para. 43, operative part 2)

3.  Articles 3(9) and 9(2) to (4) of the Convention on access to information, public participation in decision-making and access to justice in environmental matters (Aarhus Convention) and Article 10a of Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2003/35, must be interpreted as meaning that:

   —

   when a project falling within the scope of those provisions is adopted by a legislative act, the question whether that legislative act satisfies the conditions laid down in Article 1(5) of that directive must be capable of being submitted, under the national procedural rules, to a court of law or an independent and impartial body established by law, and

   —

   if no review procedure of the nature and scope set out above were available in respect of such an act, any national court before which an action falling within its jurisdiction is brought would have the task of carrying out the review described in the previous indent and, as the case may be, drawing the necessary conclusions by disapplying that legislative act. (see para. 52, operative part 3)

4.  Article 4 of Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2003/35, must be interpreted as not requiring that a decision not to subject a project falling within Annex II to that directive to an assessment should itself contain the reasons for the competent authority’s decision that an assessment was unnecessary; if, however, an interested party so requests, the competent administrative authority is obliged to communicate to him the reasons for the decision or the relevant information and documents in response to the request made. That interpretation can be applied to Article 9(1) of Directive 85/337 and to Article 6(9) of the Convention on access to information, public participation in decision-making and access to justice in environmental matters (Aarhus Convention), which has substantially the same content as Article 9(1) of Directive 85/337.

   Consequently, Article 6(9) of the Aarhus Convention and Article 9(1) of Directive 85/337 must be interpreted as not requiring that the decision to grant or refuse authorisation for a project should itself contain the reasons for the competent authority’s decision that it was necessary. However, if an interested party so requests, the competent authority is obliged to communicate to him the reasons for that decision or the relevant information and documents in response to the request made.

   (see paras 54, 55, 63, 64, operative part 4)

5.  Article 6(3) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora must be interpreted as not allowing a national authority, even if it is a legislative authority, to authorise a plan or project without having ascertained that it will not adversely affect the integrity of the site concerned.

   A plan or project may be authorised only on condition that the competent authorities are certain that it will not have adverse effects on the integrity of the site concerned. That is so where no reasonable scientific doubt remains as to the absence of such effects. Moreover, it is at the time of adoption of the decision authorising implementation of the project that there must be no reasonable scientific doubt remaining as to the absence of adverse effects on the integrity of the site in question.

   (see paras 67, 70, operative part 5)

6.  Article 6(4) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora must, as an exception to the criterion for authorisation laid down in the second sentence of Article 6(3), be interpreted strictly. Moreover, it can apply only after the implications of a plan or project have been studied in accordance with Article 6(3) of that directive. Knowledge of those implications in the light of the conservation objectives relating to the site in question is a necessary prerequisite for the application of Article 6(4), since, in the absence of those elements, no condition for the application of that derogating provision can be assessed. The assessment of any imperative reasons of overriding public interest and that of the existence of less harmful alternatives require a weighing up against the damage caused to the site by the plan or project under consideration. In addition, in order to determine the nature of any compensatory measures, the damage to the site must be precisely identified.

   Works intended for the location or expansion of an undertaking satisfy those conditions only in exceptional circumstances.

   Article 6(4) of Directive 92/43 must therefore be interpreted as meaning that the creation of infrastructure intended to accommodate a management centre cannot be regarded as an imperative reason of overriding public interest, such reasons including those of a social or economic nature, within the meaning of that provision, capable of justifying the implementation of a plan or project that will adversely affect the integrity of the site concerned.

   (see paras 73, 74, 76, 79, operative part 6)

Case C-182/10

Marie-Noëlle Solvay and Others

v

Région wallonne

(Reference for a preliminary ruling from the Cour constitutionnelle (Belgium))

‛Assessment of the effects of projects on the environment — Concept of legislative act — Force and effect of the guidance in the Aarhus Convention Implementation Guide — Consent for a project given without an appropriate assessment of its effects on the environment — Access to justice in environmental matters — Extent of the right to a review procedure — Habitats Directive — Plan or project affecting the integrity of the site — Imperative reason of overriding public interest’

Summary of the Judgment

1. International agreements — Agreements concluded by the Community — Convention on access to information, public participation in decision-making and access to justice in environmental matters (Aarhus Convention) — Aarhus Convention Implementation Guide — No binding force

   (Aarhus Convention, Arts 2(2) and 9(4); Council Decision 2005/370)

2. Environment — Assessment of the effects of certain projects on the environment — Directive 85/337 and Convention on access to information, public participation in decision-making and access to justice in environmental matters (Aarhus Convention) — Scope — Projects adopted in detail by a specific act of national legislation — Not included

   (Aarhus Convention, Art. 2(2); Council Directive 85/337, as amended by Directive 2003/35, Art. 1(5); Council Decision 2005/370)

3. Environment — Assessment of the effects of certain projects on the environment — Directive 85/337 and Convention on access to information, public participation in decision-making and access to justice in environmental matters (Aarhus Convention) — Project adopted by an act of national legislation falling within the scope of the directive — Right to review of that act — Extent

   (Aarhus Convention, Arts 3(9) and 9(2) to (4); Council Directive 85/337, as amended by Directive 2003/35, Arts 1(5) and 10a; Council Decision 2005/370)

4. Environment — Assessment of the effects of certain projects on the environment — Directive 85/337 and Convention on access to information, public participation in decision-making and access to justice in environmental matters (Aarhus Convention) — Decision to grant or refuse authorisation for a project — Obligation to state reasons — Extent

   (Aarhus Convention, Art. 6(9); Council Directive 85/337, as amended by Directive 2003/35, Art. 9(1); Council Decision 2005/370)

5. Environment — Conservation of natural habitats and of wild fauna and flora — Directive 92/43 — Authorisation for a plan or project on a protected site — Conditions

   (Council Directive 92/43, Art. 6(3))

6. Environment — Conservation of natural habitats and of wild fauna and flora — Directive 92/43 — Authorisation for a plan or project on a protected site for imperative reasons of overriding public interest — Condition

   (Council Directive 92/43, Art. 6(3) and (4))

1.  While, for the interpretation of Articles 2(2) and 9(4) of the Convention on access to information, public participation in decision-making and access to justice in environmental matters (Aarhus Convention), it is permissible to take the Implementation Guide for that Convention into consideration, the guide has no binding force and does not have the normative effect of the provisions of the Aarhus Convention.

   (see para. 28, operative part 1)

2.  Article 2(2) of the Convention on access to information, public participation in decision-making and access to justice in environmental matters (Aarhus Convention) and Article 1(5) of Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2003/35, must be interpreted as meaning that only projects the details of which have been adopted by a specific legislative act, in such a way that the objectives of the Convention and the directive have been achieved by the legislative process, are excluded from the scope of those instruments. It is for the national court to verify that those two conditions have been satisfied, taking account both of the content of the legislative act adopted and of the entire legislative process which led to its adoption, in particular the preparatory documents and parliamentary debates. In that regard, a legislative act which does no more than simply ‘ratify’ a pre-existing administrative act, by merely referring to overriding reasons in the public interest without a substantive legislative process enabling those conditions to be fulfilled having first been commenced, cannot be regarded as a specific act of legislation within the meaning of Article 1(5) of Directive 85/337 and is therefore not sufficient to exclude a project from the scope of the Convention and that directive, as amended.

   (see para. 43, operative part 2)

3.  Articles 3(9) and 9(2) to (4) of the Convention on access to information, public participation in decision-making and access to justice in environmental matters (Aarhus Convention) and Article 10a of Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2003/35, must be interpreted as meaning that:

   —

   when a project falling within the scope of those provisions is adopted by a legislative act, the question whether that legislative act satisfies the conditions laid down in Article 1(5) of that directive must be capable of being submitted, under the national procedural rules, to a court of law or an independent and impartial body established by law, and

   —

   if no review procedure of the nature and scope set out above were available in respect of such an act, any national court before which an action falling within its jurisdiction is brought would have the task of carrying out the review described in the previous indent and, as the case may be, drawing the necessary conclusions by disapplying that legislative act. (see para. 52, operative part 3)

4.  Article 4 of Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2003/35, must be interpreted as not requiring that a decision not to subject a project falling within Annex II to that directive to an assessment should itself contain the reasons for the competent authority’s decision that an assessment was unnecessary; if, however, an interested party so requests, the competent administrative authority is obliged to communicate to him the reasons for the decision or the relevant information and documents in response to the request made. That interpretation can be applied to Article 9(1) of Directive 85/337 and to Article 6(9) of the Convention on access to information, public participation in decision-making and access to justice in environmental matters (Aarhus Convention), which has substantially the same content as Article 9(1) of Directive 85/337.

   Consequently, Article 6(9) of the Aarhus Convention and Article 9(1) of Directive 85/337 must be interpreted as not requiring that the decision to grant or refuse authorisation for a project should itself contain the reasons for the competent authority’s decision that it was necessary. However, if an interested party so requests, the competent authority is obliged to communicate to him the reasons for that decision or the relevant information and documents in response to the request made.

   (see paras 54, 55, 63, 64, operative part 4)

5.  Article 6(3) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora must be interpreted as not allowing a national authority, even if it is a legislative authority, to authorise a plan or project without having ascertained that it will not adversely affect the integrity of the site concerned.

   A plan or project may be authorised only on condition that the competent authorities are certain that it will not have adverse effects on the integrity of the site concerned. That is so where no reasonable scientific doubt remains as to the absence of such effects. Moreover, it is at the time of adoption of the decision authorising implementation of the project that there must be no reasonable scientific doubt remaining as to the absence of adverse effects on the integrity of the site in question.

   (see paras 67, 70, operative part 5)

6.  Article 6(4) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora must, as an exception to the criterion for authorisation laid down in the second sentence of Article 6(3), be interpreted strictly. Moreover, it can apply only after the implications of a plan or project have been studied in accordance with Article 6(3) of that directive. Knowledge of those implications in the light of the conservation objectives relating to the site in question is a necessary prerequisite for the application of Article 6(4), since, in the absence of those elements, no condition for the application of that derogating provision can be assessed. The assessment of any imperative reasons of overriding public interest and that of the existence of less harmful alternatives require a weighing up against the damage caused to the site by the plan or project under consideration. In addition, in order to determine the nature of any compensatory measures, the damage to the site must be precisely identified.

   Works intended for the location or expansion of an undertaking satisfy those conditions only in exceptional circumstances.

   Article 6(4) of Directive 92/43 must therefore be interpreted as meaning that the creation of infrastructure intended to accommodate a management centre cannot be regarded as an imperative reason of overriding public interest, such reasons including those of a social or economic nature, within the meaning of that provision, capable of justifying the implementation of a plan or project that will adversely affect the integrity of the site concerned.

   (see paras 73, 74, 76, 79, operative part 6)