Environmental Assessments and Authorizations: SEA - EIA - IPPC Permit

With the Judgment of the Court of Justice 26 July 2017, in joined Cases C-196/16 and C-197/16 ruled that in the event of failure to carry out an environmental impact assessment, on the one hand, requires “Member States to nullify the unlawful consequences of that failure and, on the other hand, does not preclude regularisation through the conducting of an impact assessment, after the plant concerned has been constructed and has entered into operation, on condition that:

• national rules allowing for that regularisation do not provide the parties concerned with an opportunity to circumvent the rules of EU law or to dispense with applying them, and
• an assessment carried out for regularisation purposes is not conducted solely in respect of the plant’s future environmental impact, but must also take into account its environmental impact from the time of its completion.”

With this Judgment the Court ruled a case between, on the one hand, the municipalities of Corridonia and of Loro Piceno, on the other hand, the Province of Macerata. In 2012,  Marche Region consented to the construction and operation of two plants for the generation of electrical energy from biogas obtained from the anaerobic fermentation of biomass within the territory of the municipalities of Corridonia and of Loro Piceno without a prior environmental impact assessment of those plants having been carried out, by virtue of the Law No 20/2011 of the Marche Region which established that projects the heating potential of which did not reach a certain threshold were no longer required to undergo an assessment of their impact on the environment.

In Cases C‑196/16 and C‑197/16, the Administrative Court for the Marche Region decided to stay proceedings and to refer the following question to the Court for a preliminary ruling:

“On a constructive interpretation of Article 191 TFEU and Article 2 of Directive [2011/92], is it compatible with EU law to proceed with the verification of whether an environmental impact assessment needs to be undertaken (and possibly thereafter to carry out an environmental impact assessment) after the construction of the plant where the consent has been annulled by the national court due to a failure to verify whether the environmental impact assessment was needed, because such a verification had been excluded on the basis of a national law which was contrary to EU law?”

With the Judgment 26 July 2017, the Court clarified that “Under the principle of cooperation in good faith laid down in Article 4 TEU, Member States are required to nullify the unlawful consequences of that breach of EU law. The competent national authorities are therefore under an obligation to take all measures necessary, within the sphere of their competence, to remedy the failure to carry out an environmental impact assessment, for example by revoking or suspending consent already granted in order to carry out such an assessment (see, to that effect, judgments of 7 January 2004, Wells, C‑201/02, EU:C:2004:12, paragraphs 64 and 65; of 3 July 2008, Commission v Ireland, C‑215/06, EU:C:2008:380, paragraph 59; and of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne, C‑41/11, EU:C:2012:103, paragraphs 42, 43 and 46).”

In the Judgement 26 July 2017 the Court has held that “EU law does not preclude national rules which, in certain cases, permit the regularisation of operations or measures which are unlawful in the light of EU law (judgments of 3 July 2008, Commission v Ireland, C‑215/06, EU:C:2008:380, paragraph 57; of 15 January 2013, Križan and Others, C‑416/10, EU:C:2013:8, paragraph 87; and of 17 November 2016, Stadt Wiener Neustadt, C‑348/15, EU:C:2016:882, paragraph 36).” However, the Court has made it clear that “such a possible regularisation would have to be subject to the condition that it does not offer the persons concerned the opportunity to circumvent the rules of EU law or to dispense with their application, and that it should remain the exception (judgments of 3 July 2008, Commission v Ireland, C‑215/06, EU:C:2008:380, paragraph 57; of 15 January 2013, Križan and Others, C‑416/10, EU:C:2013:8, paragraph 87; and of 17 November 2016, Stadt WienerNeustadt, C‑348/15, EU:C:2016:882, paragraph 36).”

The Court of Justice ruled the possibility of carrying out, a posteriori, an environmental impact assessment on the condition that the parties concerned are not provided with an opportunity to circumvent the rules of EU law or to dispense with applying them and that environmental impact is proper taken into account and evaluated from the time of its completion.

Link to the Judgement