EIA Directive not easily sidestepped by legislative acts
Joint Cases C-128/09 to C-131/09, C-134/09 and 135/09, Boxus and others v. Region Wallone, 18 October 2011
This reference for a preliminary ruling concerns the question whether obligations under the Environmental Impact Assessment (EIA) Directive 85/337 may be excluded through a formal act of a legislative authority. Under Article 1(5) of that directive, projects adopted trough a specific act of national legislation fall outside of the scope of the Directive, if certain conditions are met. The references have been made in the course of proceedings brought by persons living near two Belgian Airports and a railway line against the Walloon Region regarding consents for works granted on those installations. The Parliament of the region adopted a Decree in which it ratified several of the administrative planning consents, effectively transforming the administrative decisions into specific acts of national legislation. Thereby the projects were possibly excluded from the EIA Directive by virtue of Art. 1(5). The Conseil d’État referred the matter to the ECJ.
The Court considered that a specific legislative act adopting a project must, if it is to come within the scope of Art. 1(5), be specific and display the same characteristics as a consent of that kind. The project must also be adopted in detail and include all the elements of the project relevant to the environmental impact assessment. Also, the legislative acts are only excluded from the scope of that directive when the legislative body has substantively fulfilled the objectives of the Directive. Accordingly, the Court is of the opinion that it is necessary to consider the wording of the act concerned as well as the substance of the legislative procedure involved. This requirement is to ensure that the safeguards of the Directive are kept in place. Thus, the national court has to verify that those conditions have been satisfied, taking into account both the content as well as the procedure of the act adopted.
Conversely, a legislative act which ‘only’ ‘ratifies’ a pre-existing administrative act without a substantive legislative process, cannot be regarded as an act sufficient to exclude a project from the scope of the EIA Directive. In its ruling, the Court followed the opinion of AG Sharpston.
The ruling of the Court limits the possibility of Member States to exclude EIA obligations by transforming local administrative measures to a specific act of national legislation, as happened in this case, and thereby circumventing the safeguards put in place by the EIA Directive.
Other cases recently decided dealing with the issue of impact assessments and consultations include Case C-53/10 as well as Case C-474/10.
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