The Queen, on the application of Christopher Mellor v Secretary of State for Communities and Local Government.

• Jurisdiction: European Union
• Celex Number: 62008CJ0075
• ECLI: ECLI:EU:C:2009:279
• Date: 30 April 2009
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-75/08

Case C-75/08

The Queen, on the application of

Christopher Mellor

v

Secretary of State for Communities and Local Government

(Reference for a preliminary ruling from the Court of Appeal (England and Wales) (Civil Division))

(Directive 85/337/EEC – Assessment of the effects of projects on the environment – Obligation to make public the reasons for a determination not to make a project subject to an assessment)

Summary of the Judgment

Environment – Assessment of the effects of certain projects on the environment – Directive 85/337

(Council Directive 85/337, as amended by Directive 2003/35, Art. 4 and Annex II)

Article 4 of Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2003/35, must be interpreted as not requiring that a determination, that it is unnecessary to subject a project falling within Annex II to that directive to an environmental impact assessment, should itself contain the reasons for the competent authority’s decision that the latter was unnecessary. However, if an interested party so requests, the competent administrative authority is obliged to communicate to him the reasons for the determination or the relevant information and documents in response to the request made.

If a determination of a Member State not to subject a project falling within Annex II to Directive 85/337 to an environmental impact assessment in accordance with Articles 5 to 10 of that directive states the reasons on which it is based, that determination is sufficiently reasoned where the reasons which it contains, added to factors which have already been brought to the attention of interested parties, and supplemented by any necessary additional information that the competent national administration is required to provide to those interested parties at their request, can enable them to decide whether to appeal against that decision.

(see paras 61, 66, operative part 1-2)

JUDGMENT OF THE COURT (Second Chamber)

30 April 2009 (*)

(Directive 85/337/EEC – Assessment of the effects of projects on the environment – Obligation to make public the reasons for a determination not to make a project subject to an assessment)

In Case C‑75/08,

REFERENCE for a preliminary ruling under Article 234 EC from the Court of Appeal (England & Wales) (Civil Division) (United Kingdom), made by decision of 8 February 2008, received at the Court on 21 February 2008, in the proceedings

The Queen, on the application of

Christopher Mellor

v

Secretary of State for Communities and Local Government,

THE COURT (Second Chamber),

composed of C.W.A. Timmermans, President of the Chamber, J.‑C. Bonichot (Rapporteur), K. Schiemann, P. Kūris and L. Bay Larsen, Judges,

Advocate General: J. Kokott,

Registrar: R. Grass,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– Mr C. Mellor, by R. Harwood, Barrister and R. Buxton, Solicitor,

– the United Kingdom Government, by L. Seeboruth, acting as Agent,

– the Commission of the European Communities, by P. Oliver and J.-B. Laignelot, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 22 January 2009,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of Article 4 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), as amended by Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 (OJ 2003 L 156, p. 17) (‘Directive 85/337’).

2 The reference has been made in the course of proceedings between Mr Mellor and the Secretary of State for Communities and Local Government (‘the Secretary of State’), relating to whether or not it is necessary to give reasons for the determination made by the competent national authority not to proceed to an environmental impact assessment (‘EIA’) when evaluating a request for development consent to build a hospital, a project falling within Annex II to Directive 85/337.

Legal context

Community legislation

3 Article 2(1) of Directive 85/337 provides:

‘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.’

4 Article 4 of Directive 85/337 states:

‘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,

or

(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.’

5 Article 6 of Directive 85/337 provides:

‘1. Member States shall take the measures necessary to ensure that the authorities likely to be concerned by the project by reason of their specific environmental responsibilities are given an opportunity to express their opinion on the request for development consent. Member States shall designate the authorities to be consulted for this purpose in general terms or on a case-by-case basis. The information gathered pursuant to Article 5 shall be forwarded to these authorities. Detailed arrangements for consultation shall be laid down by the Member States.

2. The public shall be informed, whether by public notices or other appropriate means such as electronic media where available, of the following matters early in the environmental decision-making procedures referred to in Article 2(2) and, at the latest, as soon as information can reasonably be provided:

(a) the request for development consent;

(b) the fact that the project is subject to an environmental impact assessment procedure …;

…

(d) the nature of possible decisions or, where there is one, the draft decision;

…

(f) an indication of the times and places where and means by which the relevant information will be made available;

(g) details of the arrangements for public participation made pursuant to paragraph 5 of this Article.

3. Member States shall ensure that, within reasonable time-frames, the following is made available to the public concerned:

(a) any information gathered pursuant to Article 5;

(b) in accordance with national legislation, the main reports and advice issued to the competent authority or authorities at the time when the public concerned is informed in accordance with paragraph 2 of this Article;

(c) in accordance with the provisions of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information …, information other than that referred to in paragraph 2 of this Article which is relevant for the decision in accordance with Article 8 and which only becomes available after the time the public concerned was informed in accordance with paragraph 2 of this Article.

4. The public concerned shall be given early and effective opportunities to participate in the environmental decision-making procedures referred to in Article 2(2) and shall, for that purpose, be entitled to express comments and opinions when all options are open to the competent authority or authorities before the decision on the request for development consent is taken.

5. The detailed arrangements for informing the public (for example by bill posting within a certain radius or publication in local newspapers) and for consulting the public concerned (for example by written submissions or by way of a public inquiry) shall be determined by the Member States.

6. Reasonable time-frames for the different phases shall be provided, allowing sufficient time for informing the public and for the public concerned to prepare and participate effectively in environmental...