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 respec