ADVOCATE GENERAL’s OPINION IN MELLOR v SS CLG ]
22 January 2009
OPINION OF ADVOCATE GENERAL
1delivered on 22 January 2009 (1)
Secretary of State for Communities and Local Government
(Reference for a preliminary ruling from the Court of Appeal (United Kingdom)) (Directive 85/337/EEC – Environmental impact assessment – Reasons for a decision
not to carry out an environmental impact assessment of a project)
I – Introduction
1. In the present case the Court is once again concerned with the interpretation of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (2) (‘the EIA Directive’). This
case relates, however, to that directive as amended by Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC, (3) which the Court has not as
yet had to consider very often.
2. The specific issue is whether reasons must be stated for a decision not to carry out an environmental impact assessment and, if so, what should be included in the statement of reasons.
II – Legal context
3. Article 2(1) of the EIA Directive defines its purpose:
‘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. These projects are defined in Article 4.’
4. Article 3 describes the subject-matter of the environmental impact 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 11, the direct and indirect effects of a project on the following factors: – human beings, fauna and flora;
– soil, water, air, climate and the landscape;
– material assets and the cultural heritage;
– the interaction between the factors mentioned in the first, second and third indents.’
5. Article 4 determines essentially which projects are to be assessed: ‘1. Subject to Article 2(3), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.
2. Subject to Article 2(3), for projects listed in Annex II, the Member States shall determine through:
(a) a case-by-case examination,
(b) thresholds or criteria set by the Member State,
whether the project shall be made subject to an assessment in accordance with Articles 5 to 10.
Member States may decide to apply both procedures referred to in (a) and (b). 3. When a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account.
4. Member States shall ensure that the determination made by the competent authorities under paragraph 2 is made available to the public.’
6. Annex II, point 10(b), refers to urban development projects. 7. Annex III states as criteria for deciding whether an environmental impact assessment is necessary various characteristics of the project, its location and its potential impact.
III – Facts and reference for a preliminary ruling
8. The main proceedings concern the planned development of a former naval base which is located in an area of outstanding natural beauty. A hospital is to be installed there. The planning consent originally granted was successfully challenged, since the need for an environmental impact assessment had not been examined.
9. In the subsequent administrative proceedings the council of the competent local authority issued an opinion on the need for an environmental impact assessment. It said that there was no need for such an assessment, as no significant impact on the environment was to be expected.
10. Mr Mellor, the applicant in the main proceedings, disagreed. He said that among other things a bat roost would be destroyed. The local authority thereupon revised its opinion.
11. The United Kingdom Secretary of State then, however, by letter of 4 December 2006, notified a decision that an environmental impact assessment was not required. Her reason was that the project would not be likely to have significant effects on the environment by virtue of factors such as its nature, size or location. More detailed reasons were not stated.
12. Mr Mellor brought an action against that decision. The Court of Appeal is hearing the case as appellate court, and has referred the following questions to the Court for a preliminary ruling:
1. Whether under Article 4 of Council Directive 85/337/EEC as amended by Directives 97/11/EC and 2003/35/EC Member States must make available to the public reasons for a determination that in respect of an Annex II project there is no requirement to subject the project to assessment in accordance with Articles 5 to 10 of the Directive?
2. If the answer to Question 1 is in the affirmative whether that requirement was satisfied by the content of the letter dated 4 December 2006 from the Secretary of State?
3. If the answer to Question 2 is in the negative, what is the extent of the requirement to give reasons in this context?
IV – Legal assessment
A – Legislative context of the reference for a preliminary ruling
13. The main proceedings concern the preliminary screening of whether a particular project requires an environmental impact assessment.
14. In accordance with Article 4(2) of and point 10(b) of Annex II to the EIA Directive, the Member States must determine by a case-to-case examination or on the basis of thresholds or criteria set by them whether the environmental impact of urban development projects is to be assessed. It is settled case-law that Article 4(2) of the
EIA Directive confers a measure of discretion on Member States. That discretion is limited, however, by the obligation set out in Article 2(1) that projects likely to have significant effects on the environment are to be subject to an assessment with regard to their effects. (4)
15. The Member States must in particular take the nature, size and location of the project into consideration in order to decide whether significant effects on the environment are likely. (5) In that regard the EIA Directive seeks an overall
assessment of the environmental impact of projects or of their modification. (6) In
detail, both the direct effects of the planned works themselves and the environmental impact liable to result from the use and exploitation of the end product of those works must be taken into account. (7)
16. In the present case the competent authorities reached the conclusion, on the basis of a case-by-case examination, that it was not likely that there would be significant effects on the environment by virtue of factors such as the nature, size or location of the project. An environmental impact assessment was not therefore required.
17. In Mr Mellor’s view, that decision should be set aside, since no reasons, or at least no adequate reasons, were given for it.
B – The first question
18. By its first question the national court wishes to find out whether reasons must be given for a decision not to carry out an environmental impact assessment. 19. The EIA Directive lays down in Article 9 that, where consent is granted for a project following an environmental impact assessment, extensive information must be made available to the public. By contrast, if it is decided to dispense with an environmental impact assessment, Article 4(4) requires only the publication of that decision.
20. As the United Kingdom points out, the EIA Directive does not therefore expressly require reasons to be given for a decision to dispense with an environmental impact assessment. In fact, the directive expressly lays down an obligation to state reasons for other decisions.
The judgment in Case C-87/02
21. The Court has already held, however, that a decision of the competent national authority that a project’s characteristics do not require it to be subjected to an environmental impact assessment must contain or be accompanied by all the information that makes it possible to check that it is based on adequate screening carried out in accordance with the requirements of the EIA Directive. (8)
22. The United Kingdom rightly objects that that finding is a mere obiter dictum.
The subject-matter of those proceedings for failure to fulfil obligations was not a possibly inadequate statement of the reasons for a decision not to carry out an
environmental impact assessment. The Commission’s complaint was in fact that the
need for an environmental impact assessment had not been considered. 23. The parties to that case accordingly made no submissions on a possible obligation to state reasons, and there was also no occasion for other Member States –
such as the United Kingdom – to take part in the proceedings in order to argue against such an obligation. It is therefore necessary, despite the judgment in Commission v
Italy, to examine whether a statement of reasons is required.
The obligation to state reasons in primary law
24. Article 253 EC requires reasons to be given for decisions. As Mr Mellor in particular submits, under the third indent of Article 41(2) of the Charter of Fundamental Rights of the European Union, (9) the right to good administration
includes the obligation of the administration to give reasons for its decisions. It is true that, as the Treaty of Lisbon has not yet been ratified, the Charter does not as such have binding legal force comparable to primary law. However, as a source of legal guidance, it does shed light on the fundamental rights (10) which must be taken into
account in interpreting Community law. (11)
25. But it follows from the very wording of Article 41(1) of the Charter, just as from Article 253 EC, that the obligation to give reasons mentioned there applies only to institutions of the Community. It therefore cannot simply be transposed without more ado to bodies of the Member States, even when they are implementing Community law. (12)
The principles of effectiveness and equivalence
26. The Member States in principle regulate the procedure for implementation of Community law, unless Community law contains specific requirements. There are indeed rules on the giving of reasons for decisions of Member States pursuant to certain Community law obligations, (13) some in the field of environmental law, (14)
but there is no special rule on the giving of reasons for screening decisions. 27. The Member States are not altogether free, however, when enacting procedural rules with a view to the application of Community law. Procedural rules must be no less favourable than those governing similar domestic situations (principle of equivalence) and must not render impossible in practice or excessively difficult the exercise of rights conferred by the Community legal order (principle of effectiveness). (15)
28. There is no sign of any disadvantage in comparison with purely domestic situations as a result of dispensing with the obligation to state reasons. It is doubtful, however, whether the limits of the principle of effectiveness are respected. A specific expression of the principle of effectiveness is the principle of effective legal protection. That principle requires that rights conferred by Community law must be enforceable judicially. In particular, the courts must be able to review a decision of the authorities to refuse such a right. Review must extend also to the reasons given for the decision. (16)
29. This is the context in which the findings of the judgment in Case C-87/02, on the obligation to give reasons, should be seen. The Court stressed that, in that case, without the information sought it would have not been possible to verify whether a screening of the need for an environmental impact assessment had taken place. (17)
30. That is convincing. If a decision lacks the corresponding information, it is at the least very difficult subsequently to ascertain whether the body that took the decision took account at all of the possible environmental effects of a project. Doubts would frequently remain as to whether a subsequent justification was merely being provided in court for a decision taken on other grounds.
31. Furthermore, an obligation to state reasons places the individual in a position in which he can decide in full knowledge of the circumstances whether it is worthwhile for him to bring proceedings. (18) In the present case a statement of reasons could
show which risks to the environment had been taken into account. An action could be brought to challenge the incorrect assessment of those risks or the failure to take account of other relevant risks.
32. The giving of reasons is not exclusively in the interest of the citizen, moreover: it also effects an initial self-check on the part of the administration and can pacify relations with the citizen, since if the reasons are convincing they put an end to existing conflicts and prevent superfluous legal disputes.
33. In this spirit the Court has recently held that national authorities must give reasons for a decision refusing the benefit of a right conferred by Community law. (19)
So Article 41 of the Charter of Fundamental Rights does not just contain rules of good administration by the institutions but documents a general principle of law, which authorities of the Member States too must observe when applying Community law. (20)
34. In summary, the conclusion must be that the Member States must make accessible their reasons for a decision to refuse a right conferred by Community law. Possible infringement of a right
35. It must therefore be examined whether the failure to carry out an environmental impact assessment can be regarded as the denial of a right conferred by Community law.
36. Denial of a right cannot be understood in this context as meaning that the right to an environmental impact assessment must actually exist here. In that case the obligation to state reasons would be meaningless in practice, since it is unlawful to deny an actually existing right, irrespective of any statement of reasons. 37. The giving of reasons is intended rather to make it possible to review any decision finding that a right conferred in principle by Community law does not exist in the particular case. The administration must therefore give reasons for a decision if the Community has conferred legal positions on the individual which could be infringed by that decision.
38. In the main proceedings, no rights of the developer were infringed. He applied for the planning consent procedure to be carried out without an environmental impact assessment. With respect to him, the decision does not therefore need a statement of reasons.
39. However, the rights of third parties are also relevant to the obligation to state reasons. In connection with Community procedures, the requirement to state reasons must also be assessed with reference to the interest which other persons to whom the measure is of direct and individual concern may have in obtaining explanations. (21)
Accordingly, a statement of reasons is needed if the Commission, in competition law cases, raises no objections to a concentration (22) or an aid. (23)
40. Those criteria must apply also to decisions taken by authorities of the Member States in the implementation of Community law. A decision not to carry out an environmental impact assessment necessarily affects not only the developer but also third parties, at any rate where they can in principle demand an assessment. 41. That third parties may be entitled to have an environmental impact assessment carried out has already been decided by the Court. If the legislative or administrative authorities of a Member State have exceeded the discretion conferred on them by Articles 4(2) and 2(1) of the EIA Directive, individuals may rely on those provisions before a court of that Member State against the national authorities. In such a case it is for the authorities of the Member State to take, according to their relevant powers, 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. (24)
42. In addition, Article 10a of the EIA Directive now provides that members of the public concerned or non-governmental organisations can on certain conditions require review by a court of decisions to which the provisions of the EIA Directive on public participation apply. That right would be jeopardised if those applicants could not also challenge a decision not to apply the provisions on public participation. 43. By Articles 4(2), 2(1) and 10a of the EIA Directive the Community has thus conferred a right on individuals. Since the decision to dispense with an environmental impact assessment may impair that right, it requires a statement of reasons. Legal consequences of inadequate statements of reasons
44. It should be pointed out that the principle of effectiveness does not require the legal consequences of inadequate statements of reasons to be harmonised in the various legal systems of the Member States. In particular, the Member States do not have to take over the rules which apply to the inadequate giving of reasons by the institutions.
45. In the Community system the statement of reasons for a measure must in principle be communicated to the person concerned at the same time as the measure that adversely affects him. The absence of a statement of reasons, or a manifestly inadequate statement of reasons, cannot (in principle) be cured by the fact that the person concerned learns the reasons for the measure during the procedure before the
Community judicature. (25) That, however, corresponds to the strict factual and legal delimitation of the subject-matter of the case by the system of application and defence. Since an applicant may not in general enlarge his claim, (26) procedural equality of
arms would be endangered if the defendant institution were able simply (27) to
amplify its statement of reasons during the proceedings.
46. It would not be impossible, however, to take a more generous attitude to the curing of defective statements of reasons in the context of a procedural law with a different structure. That is conceivable in particular where the subject-matter of the application is open as regards means of legal challenge, that is, legal objections to the contested decision, or where extensions of a claim are permitted in the course of the judicial procedure. These are questions of national procedural law, however. Answer to the first question
47. The Member States must therefore, under Article 4 of the EIA Directive, make available to the public the reasons for a decision that, in respect of an Annex II project, it is not necessary to subject the project to an assessment in accordance with Articles 5 to 10 of the directive.
C – The second and third questions
48. Since the Court cannot examine whether the Secretary of State gave adequate reasons for her decision, the second and third questions are to be understood as asking what requirements are to be set for the statement of reasons for a decision not to carry out an environmental impact assessment, and in particular whether it suffices merely to state the criteria with respect to which no significant environmental effects are likely.
49. The content of the statement of reasons must be aligned to the purpose of the obligation to state reasons. The Court held, in the judgment in Case C-87/02 referred to above, that a decision not to carry out an environmental impact assessment must contain or be accompanied by all the information that makes it possible to check that it is based on adequate screening carried out in accordance with the requirements of the EIA Directive. (28) The decisive point is thus whether the reasons given show that an adequate screening took place.
50. As regards the extent of an adequate screening, it must be remembered that the EIA Directive is concerned with an overall assessment of the effects of projects and the Member States must take account in particular of the nature, size and location of the project in order to determine whether significant effects on the environment are likely. (29)
51. If it is obvious that there are no significant effects on the environment, such a screening can be sufficiently documented by a single sentence. If, on the other hand, certain possible environmental effects have already been raised, more extensive statements are needed to show that those effects have been properly considered. The case-law on the obligation to state reasons under primary law offers guidance here. According to that case-law, there must be a sufficient demonstration of the reasons why legal and factual aspects which have already been raised in the procedure do not
show that there is a possibility of significant effects on the environment. There is no need, however, to define a position on matters which are clearly irrelevant or of no importance or plainly secondary importance, or to anticipate potential objections. (30)
52. In this respect the main proceedings raise two points in particular, namely the location of the project in an area of outstanding natural beauty recognised under national law and the possible effect on a bat roost referred to by Mr Mellor in the administrative procedure. Both aspects refer to the location of the project. The ecological sensitivity of that geographical area must be considered, under Article 4(3) of the EIA Directive and point 2 of Annex III. Certain points specifically mentioned must be considered in particular.
53. The natural beauty of the location, in other words an aesthetic aspect, is covered only marginally by the concept of ecological sensitivity: point 2(h) of Annex III mentions landscapes of historical, cultural or archaeological significance. Where none of those characteristics is relevant, aesthetics is less an ecological criterion than a question of human taste. In that case the possible effect on the landscape is not a compelling indication of possible significant effects on the environment. That factor would then be of secondary importance, so that it would not have to be addressed. 54. By contrast, the possible effect on a bat roost is a question of the absorption capacity of the natural environment within the meaning of the third indent of point 2 of Annex III to the EIA Directive. It is true that those roosts are specifically covered, under point 2(e), only if they form part of protected areas, in particular areas designated under the Habitats Directive. (31) But the Member States must, under
Article 12(1)(d) of and Annex IV to the Habitats Directive, ensure strict protection of all bat roosts, since these are breeding sites and/or resting places of species under strict protection. (32) Only under certain narrowly defined conditions would it be
permitted to harm bat roosts. (33) The harming of bat roosts is therefore in principle a
significant impact on the environment, requiring an environmental impact assessment. (34)
55. A decision not to carry out an environmental impact assessment must therefore contain or be accompanied by all the information that makes it possible to check that it is based on adequate screening carried out in accordance with the requirements of the EIA Directive. In particular, there must be a sufficient demonstration of the reasons why legal and factual aspects which have already been raised in the procedure do not show that there is a possibility of significant effects on the environment. V – Conclusion
56. I therefore propose that the Court should give the following answer to the national court’s questions:
1. The Member States must, under Article 4 of Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2003/35/EC of the European Parliament and of the Council providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC,
make available to the public the reasons for a decision that, in respect of an Annex II project, it is not necessary to subject the project to an assessment in accordance with Articles 5 to 10 of the directive.
2. That decision must contain or be accompanied by all the information that makes it possible to check that it is based on adequate screening carried out in accordance with the requirements of the Directive 85/337. In particular, there must be a sufficient demonstration of the reasons why legal and factual aspects which have already been raised in the procedure do not show that there is a possibility of significant effects on the environment.
1 – Original language: German.
2 – OJ 1985 L 175, p. 40.
3 – OJ 2003 L 156, p. 17.
4 – See, in relation to the earlier versions of the directive, Case C-72/95 Kraaijeveld
and Others  ECR I-5403, paragraph 50; Case C-392/96 Commission v Ireland
 ECR I-5901, paragraph 64; Case C-117/02 Commission v Portugal 
ECR I-5517, paragraph 82; Case C-83/03 Commission v Italy  ECR I-4747,
paragraph 19; Case C-121/03 Commission v Spain  ECR I-7569, paragraph 87;
Case C-332/04 Commission v Spain  ECR I-40, paragraph 76; Case C-2/07
Abraham and Others  ECR I-1197, paragraphs 37 and 42; and Case C-142/07
Ecologistas en Acción-CODA  ECR I-0000, paragraph 38.
5 – Case C-332/04 Commission v Spain, cited in footnote 4, paragraph 76, and
Abraham and Others, paragraph 38.
6 – Abraham and Others, cited in footnote 4, paragraph 42.
7 – Abraham and Others, cited in footnote 4, paragraph 43.
8 – Case C-87/02 Commission v Italy  ECR I-5975, paragraph 49.