Action brought on 7 May 2010 — European Commission v Republic of Estonia

(Case C-227/10)

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2010/C 209/24

Language of the case: Estonian

Parties

Applicant: European Commission (represented by P. Oliver and J.-B. Laignelot, acting as Agents, and A. Salumets, vandeadvokaat)

Defendant: Republic of Estonia

Form of order sought

Pleas in law and main arguments

Incomplete transposition of the first indent of Article 2(a) of the directive

The Commission's view is that, although the definition in Paragraph 31 of the Estonian Law on environmental impact assessment and environment management (Keskkonnamõju hindamise ja keskkonnajuhtimise seadus, KeHJS) is broader than that of the directive in relation to the second indent of Article 2(a) of the directive, it is none the less narrower in relation to the first indent, since it excludes plans and programmes (with possible effects on the environment) which are subject to preparation by an authority but have not been laid down by a legal act. It is therefore possible under the Estonian national law for plans and programmes which are required by legislative or administrative provisions (although this condition of the directive is not laid down in the Estonian law) not to come under an environmental impact assessment.

Defects in the transposition of Article 6(1) of the directive

The Commission's view is that the requirement in Paragraph 37(2)(3) of the KeHJS to make public either the draft plan/programme or only the terms of reference is not consistent with the directive. The Commission submits that in general the terms of reference of a strategic planning document are too general and do not make it possible to ascertain and evaluate all the effects on the environment and the health of humans.

Incomplete transposition of Article 6(3) of the directive

Article 6(3) of the directive lays down a clear obligation to designate the authorities which are likely to be concerned by the environmental effects of implementing plans and programmes. That provision is also referred to in Articles 3(6), 5(4) and 6(1) and (2) of the directive. Paragraphs 36(3) and 35(4) of the KeHJS both list the same authorities which must be consulted (the Ministry of Social Affairs, the Ministry of Culture, the Ministry of the Environment, the environment service or a local authority body), but there is no requirement in the Estonian law to consult any other authority. That means, however, that there is no general requirement to consult all the authorities which by reason of their specific environmental responsibilities are likely to be concerned by the environmental effects of implementing plans and programmes. It is also not clear, on the basis of those paragraphs of the KeHJS, which authorities must be consulted in addition to the authorities listed. In the Commission's view, the Estonian law is unclear and the freedom of choice in designating authorities in accordance with Article 6(3) of the directive is too great. It is possible that there may be other authorities which are likely to be concerned by the environmental effects of plans or programmes. While the Estonian law provides for other authorities to be consulted where appropriate, it is possible that they may not be consulted even if they are likely to be concerned by the environmental effects of plans and programmes, because consultation is not obligatory in such a case.

(1)  OJ 2001 L 197, p. 30.