The Queen, on the application of Delena Wells v Secretary of State for Transport, Local Government and the Regions.

• Jurisdiction: European Union
• Celex Number: 62002CJ0201
• ECLI: ECLI:EU:C:2004:12
• Docket Number: C-201/02
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 07 January 2004

Case C-201/02


The Queen on the application of Delena Wells
v
Secretary of State for Transport, Local Government and the Regions


(Reference for a preliminary ruling from the High Court of Justice of England and Wales, Queen's Bench Division (Administrative Court))

«(Directive 85/337/EEC – Assessment of the effects of certain projects on the environment – National measure granting consent for mining operations without an environmental impact assessment being carried out – Direct effect of directives – Triangular situation)»

Opinion of Advocate General Léger delivered on 25 September 2003

Judgment of the Court (Fifth Chamber), 7 January 2004

Summary of the Judgment

1..

Environment – Assessment of the environmental effects of certain projects – Directive 85/337 – Obligation on the competent authorities to carry out an assessment before consent is granted – Meaning of consent for the purposes of Article 1(2) – Decision laying down new conditions for a project to resume mining operations – Included

(Council Directive 85/337, Arts 1(2), 2(1) and 4(2))

2..

Environment – Assessment of the environmental effects of certain projects – Directive 85/337 – Obligation on the competent authorities to carry out an assessment before consent is granted – Obligation not being directly linked to the performance of another obligation falling, pursuant to the directive, on a third party – Ability of an individual to rely on the directive

(Council Directive 85/337, Arts 1(2), 2(1) and 4(2))

3..

Environment – Assessment of the environmental effects of certain projects – Directive 85/337 – Obligation on the competent authorities to carry out an assessment before consent is granted – Failure to carry out the assessment – Obligation on the authorities to remedy the failure – Scope – Application of the detailed procedural rules under national law

(Art. 10 EC; Council Directive 85/337, Art. 2(1))

1.

Article 2(1) of Directive 85/337 on the assessment of the effects of certain public and private projects on the environment ─ which provides that Member States are to adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment are made subject to an assessment with regard to their effects ─ read in conjunction with Article 4(2) of that directive, is to be interpreted as meaning that, in the context of applying provisions such as section 22 of the Planning and Compensation Act 1991 and Schedule 2 to that Act, which lay down a special set of rules for old mining permissions, the decisions adopted by the competent authorities, whose effect is to permit the resumption of mining operations, comprise, as a whole, a development consent within the meaning of Article 1(2) of the directive, so that the competent authorities are obliged, where appropriate, to carry out an environmental impact assessment. In a consent procedure comprising several stages, that assessment must, in principle, be carried out as soon as it is possible to identify and assess all the effects which the project may have on the environment. see paras 42, 53, operative part 1

2.

Where there is an obligation on the Member State concerned to ensure that the competent authorities carry out an assessment of the environmental effects of the working of a quarry, which is not directly linked to the performance of any obligation which would fall, pursuant to Directive 85/337, on the quarry owners, the fact that the latter must, because of the belated performance of that obligation by the State, suffer the halting of those mining operations in order to await the outcome of the assessment cannot prevent an individual from relying on Article 2(1) of that directive, read in conjunction with Articles 1(2) and 4(2) thereof. Mere adverse repercussions on the rights of third parties, even if the repercussions are certain, do not justify preventing an individual from invoking the provisions of a directive against the Member State concerned. see paras 57-58, 61, operative part 2

3.

Under Article 10 EC, the competent authorities of a Member State are obliged to take, within the sphere of their competence, all general or particular measures for remedying the failure to carry out an assessment of the environmental effects of a project as provided for in Article 2(1) of Directive 85/337. The detailed procedural rules applicable in that context are a matter for the domestic legal order of each Member State, under the principle of procedural autonomy of the Member States, provided that they are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the Community legal order (principle of effectiveness). In that regard, it is for the national court to determine whether it is possible under national law for a consent already granted to be revoked or suspended in order to subject the project to an assessment of its environmental effects, in accordance with the requirements of that directive, or alternatively, if the individual so agrees, whether it is possible for the latter to claim compensation for the harm suffered. see para. 70, operative part 3

JUDGMENT OF THE COURT (Fifth Chamber)
7 January 2004 (1)

((Directive 85/337/EEC – Assessment of the effects of certain projects on the environment – National measure granting consent for mining operations without an environmental impact assessment being carried out – Direct effect of directives – Triangular situation))

In Case C-201/02, REFERENCE to the Court under Article 234 EC by the High Court of Justice of England and Wales, Queen's Bench Division (Administrative Court), for a preliminary ruling in the proceedings pending before that court between The Queen on the application of Delena Wells

and

Secretary of State for Transport, Local Government and the Regions, on 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,

THE COURT (Fifth Chamber),,

composed of: P. Jann (Rapporteur), acting for the President of the Fifth Chamber, D.A.O. Edward and A. La Pergola, Judges, Advocate General: P. Léger,
Registrar: L. Hewlett, Principal Administrator,

after considering the written observations submitted on behalf of:

─

Mrs Wells, by R. Gordon QC and J. Pereira, barrister, instructed by R. Buxton, solicitor,

─

the United Kingdom Government, by P. Ormond, acting as Agent, D. Elvin QC and J. Maurici, barrister,

─

the Commission of the European Communities, by X. Lewis, acting as Agent, and N. Khan, barrister,

having regard to the Report for the Hearing,

after hearing the oral observations of Mrs Wells, represented by R. Gordon and J. Pereira, instructed by S. Ring, solicitor; the United Kingdom Government, represented by R. Caudwell, acting as Agent, and D. Elvin; and the Commission, represented by X. Lewis and N. Khan, at the hearing on 12 June 2003,

after hearing the Opinion of the Advocate General at the sitting on 25 September 2003,

gives the following

Judgment

1

By order of 12 February 2002, received at the Court on 6 May 2002, the High Court of Justice of England and Wales, Queen's Bench Division (Administrative Court), referred to the Court for a preliminary ruling under Article 234 EC five questions on 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 (OJ 1985 L 175, p. 40).

2

Those questions were raised in proceedings between Mrs Wells and the Secretary of State for Transport, Local Government and the Regions (hereinafter the Secretary of State) concerning the grant of a new consent for mining operations at Conygar Quarry without an environmental impact assessment having first been carried out.

Legal context

Community legislation

3

As stated in the fifth recital in its preamble, Directive 85/337 is intended to introduce general principles for the assessment of environmental effects with a view to supplementing and coordinating development consent procedures for public and private projects likely to have a major effect on the environment.

4

Article 1(2) of the directive defines development consent as the decision of the competent authority or authorities which entitles the developer to proceed with the project.

5

Article 2(1) of the directive states: 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 an assessment with regard to their effects.These projects are defined in Article 4.

6

In Article 4, the directive divides projects into two wide categories: those likely by their nature to give rise to significant effects on the environment and those which will not necessarily do so in all cases. Article 4(2) thus provides: Projects of the classes listed in Annex II shall be made subject to an assessment, in accordance with Articles 5 to 10, where Member States consider that their characteristics so require.To this end Member States may inter alia specify certain types of projects as being subject to an assessment or may establish the criteria and/or thresholds necessary to determine which of the projects of the classes listed in Annex II are to be subject to an assessment in accordance with Articles 5 to 10.

7

Point 2(c) of Annex II to the...