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Judgment of the Court 21 December 2016, C-444-15 – Directive 2001/42/EC: Meaning of use of “small areas at local level”

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26/01/2017

Article 3, paragraph 3, of Directive 2001/42 concerning the assessment of the effects of certain plans and programmes on the environment which determine the use of small areas at local level and minor modifications to plans and programmes shall require an environmental assessment only where the Member States determine that they are likely to have significant environmental effects.

With the Judgment of the Court of Justice 21 December 2016, in Case C-444-15 concerning the request for a preliminary ruling under Article 267 TFEU from the TAR Veneto, the Court clarified that “the validity of Article 3, paragraph 3, of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment” is not affected “in the light of the provisions of the TFEU and the Charter of Fundamental Rights of the European Union” and that “Article 3, paragraph 3, of Directive 2001/42, read in conjunction with recital 10 of that directive, must be interpreted to the effect that the term ‘small areas at local level’ in paragraph 3 must be defined with reference to the size of the area concerned where the following conditions are fulfilled:

  • the plan or programme is prepared and/or adopted by a local authority, as opposed to a regional or national authority, and
  • that area inside the territorial jurisdiction of the local authority is small in size relative to that territorial jurisdiction.”

In summary, by its first question, TAR Veneto asked the Court of Justice to clarify whether Article 3, paragraph 3, of Directive 2001/42 is valid in the light of the provisions of the TFEU and of the Charter of Fundamental Rights of the European Union and, by its second and third questions, whether Article 3, paragraph 3, of Directive 2001/42, read in conjunction with recital 10 of that directive, must be interpreted to the effect that the term “small areas at local level” in paragraph 3 may be defined with reference solely to the size of the area concerned.

With reference to the first question, the Court of Justice assessed the level of protection provided by Article 191, paragraph 2, TFEU, revealing no factor of such a kind as to affect the validity of Article 3, paragraph 3, of Directive 2001/42/EC.

With reference to the second and third questions, the Court of Justice first stated that, in the light of the wording of Article 3, paragraph 3 of Directive 2001/42, “a plan or programme must fulfil two cumulative conditions. First, that plan or programme must determine the use of a ‘small area’ and secondly, that area must be «at local level»”.

As the Advocate General stated in her Opinion, “from the similarity of the terms used in the first indent of Article 2(a) and in Article 3, paragraph 3, of Directive 2001/42, and from the broad logic of the directive that the expression ‘local level’ has the same meaning for both those provisions, that is to say, it refers to an administrative level within the Member State concerned”. As a consequence, in order to qualify a plan or programme “as a measure which determines the use of a small area «at local level», for the purposes of the provision de qua, “that plan or programme must be prepared and/or adopted by a local authority, as opposed to a regional or national authority”.

As regards the term “small area”, the Court noted that reference should be made to the concept of extension of the area and, therefore, the size of the area concerned by the plan or programme referred to in Article 3, paragraph 3, of Directive 2001/42, irrespective of the effects on the environment.

In conclusion, the Court of Justice clarified the ratio of the provision that has led the European Union legislator to the use of the wording “small areas at local level” that is, first, to take “as a reference the territorial jurisdiction of the local authority which prepared and/or adopted the plan or programme concerned” and “secondly, since the criterion of the use of ‘small areas’ must be met in addition to the criterion of determination at local level, the area concerned must be small in size relative to that territorial jurisdiction”.

Link to the Judgement