Comune di Corridonia and Others v Provincia di Macerata and Provincia di Macerata Settore 10 – Ambiente.

• Jurisdiction: European Union
• Celex Number: 62016CJ0196
• ECLI: ECLI:EU:C:2017:589
• Docket Number: C-197/16,C-196/16
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 26 July 2017

JUDGMENT OF THE COURT (First Chamber)

26 July 2017 ( *1 )

(Reference for a preliminary ruling — Environment — Directive 85/337/EEC — Directive 2011/92/EU — Possibility of carrying out, a posteriori, an environmental impact assessment of an operational plant for the production of energy from biogas with a view to obtaining a new consent)

In Joined Cases C‑196/16 and C‑197/16,

REQUESTS for a preliminary ruling under Article 267 TFEU from the Tribunale amministrativo regionale per le Marche (Administrative Court for the Marche Region, Italy), made by decisions of 22 March 2016, received at the Court on, respectively, 7 and 8 April 2016, in the proceedings

Comune di Corridonia (C‑196/16),

Comune di Loro Piceno (C‑197/16),

Marcello Bartolini (C‑197/16),

Filippo Bruè (C‑197/16),

Sergio Forti (C‑197/16),

Stefano Piatti (C‑197/16),

Gaetano Silvetti (C‑197/16),

Gianfranco Silvetti (C‑197/16),

Rocco Tirabasso (C‑197/16),

Sante Vagni (C‑197/16),

Albergo Ristorante Le Grazie Sas di Forti Sergio & Co. (C‑197/16),

Suolificio Elefante Srl (C‑197/16),

Suolificio Roxy Srl (C‑197/16),

Aldo Alessandrini (C‑197/16)

v

Provincia di Macerata,

Provincia di Macerata Settore 10 — Ambiente,

intervening parties:

VBIO1 Società Agricola Srl (C‑196/16),

Regione Marche,

Agenzia Regionale per la Protezione Ambientale delle Marche — (ARPAM) — Dipartimento Provinciale di Macerata,

ARPAM,

VBIO2 Società Agricola Srl (C‑197/16),

Azienda Sanitaria Unica Regionale — Marche (ASUR Marche) (C‑197/16),

ASUR Marche — Area Vasta 3 (C‑197/16),

Comune di Colmurano (C‑197/16),

Comune di Loro Piceno (C‑197/16),

THE COURT (First Chamber),

composed of R. Silva de Lapuerta, President of the Chamber, E. Regan, J.‑C. Bonichot (Rapporteur), C.G. Fernlund and S. Rodin, Judges,

Advocate General: J. Kokott,

Registrar: Registrar: R. Schiano, Administrator,

having regard to the written procedure and further to the hearing on 8 March 2017,

after considering the observations submitted on behalf of:

– the Comune di Corridonia, by L. Forte, avvocato,

– the Comune di Loro Piceno, by L. Forte and A. Alessandrini, avvocati,

– Mr Bartolini and Others, by A. Alessandrini and G. Contaldi, avvocati,

– the Provincia di Macerata, by S. Sopranzi and F. Gentili, avvocati,

– VBIO1 Società Agricola Srl, by A. Piccinini and A. Santarelli, avvocati,

– the Regione Marche, by P. De Bellis, avvocato,

– VBIO2 Società Agricola Srl, by A. Piccinini, avvocatessa,

– the Italian Government, by G. Palmieri, acting as Agent, assisted by G. Palatiello, avvocato dello Stato,

– the European Commission, by C. Zadra and L. Pignataro-Nolin, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 30 March 2017,

gives the following

Judgment

1 The present requests for a preliminary ruling concern the interpretation of Article 191 TFEU and Article 2 of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1).

2 These requests have been made in the context of proceedings between, on the one hand, the Comune di Corridonia (municipality of Corridonia, Italy), the Comune di Loro Piceno (municipality of Loro Piceno, Italy) and Mr Marcello Bartolini and other individuals (‘Mr Bartolini and Others’) and, on the other hand, the Provincia di Macerata (Province of Macerata, Italy), concerning decisions by which that province found that plants for the generation of electrical energy from biogas belonging to VBIO1 Società Agricola Srl (‘VBIO1’) and VBIO2 Società Agricola Srl (‘VBIO2’) were compliant with environmental standards, following the completion of assessment procedures carried out after the construction and entry into operation of those plants and following the annulment of an initial consent.

Legal context

EU law

3 The sixth recital 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 2009/31/EC of the European Parliament and of the Council of 23 April 2009 (OJ 2009 L 140, p. 114), (‘Directive 85/337’) is worded as follows: ‘… development consent for public and private projects which are likely to have significant effects on the environment should be granted only after prior assessment of the likely significant environmental effects of these projects has been carried out …’

4 Article 2(1) of Directive 85/337 provides as follows: ‘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.’

5 Article 4(1) to (3) of Directive 85/337 provides: ‘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.’

6 Directive 2011/92, which replaced Directive 85/337, contains provisions which are essentially identical to those cited in the previous paragraphs.

Italian law

7 Article 29 of decreto legislativo n. 152 — Norme in materia ambientale (Legislative Decree No 152 on environmental standards) of 3 April 2006 (ordinary supplement to GURI No 88 of 14 April 2006) provides: ‘1. An environmental impact assessment, for the projects of works or interventions to which the provisions of the present decree apply, is a prior condition or an integral part of the consent or approval procedure. Decisions concerning consent or approval taken without a prior environmental impact assessment, when such an EIA is required, may be annulled for breach of law. … 4. Where works and interventions have been carried out without the project having been subject beforehand to a preliminary verification or an assessment, in breach of the provisions referred to in Title III of the present decree, and in the case of irregularities of application as provided for in the final decisions, the competent authorities shall assess the extent of environmental damage caused and the damage resulting from the application of a penalty, and is then to order that works on the project be suspended and may order that the construction be demolished and the site restored to its former state and environmental position at the expense of the person responsible, the time limits and conditions of which it shall determine. If the person responsible fails to comply, the competent authorities shall order that demolition and restoration of their own motion at the expense of that person who has failed to comply. Those expenses shall be reimbursed according to the procedures provided for in, and the effects of, the single text of the rules relating to State capital revenue collection approved by Royal Decree No 639 of 14 April 1910 concerning State capital revenue collection. 5. Where an authorisation or consent issued following an environmental impact assessment has been annulled by the courts or withdrawn by a public authority, or where an assessment that a project is environmentally compatible is annulled, the powers referred to in paragraph 4 shall be exercised only after a new environmental impact assessment has been carried out. …’

The disputes in the main proceedings and the question referred for a preliminary ruling

Case C‑196/16

8 On 19 October 2011, VBIO1 sought consent from the Regione Marche (Marche Region, Italy) to build and operate a plant for the generation of electrical energy from biogas obtained from the anaerobic fermentation of biomass within the territory of the municipality of Corridonia.

9 Pursuant to the legge Regione Marche No 7/2004 (Law No 7/2004 of the Marche Region), VBIO1 had also submitted that project to the Provincia di Macerata (Province of Macerata, Italy) on 4 October 2011 for a preliminary examination as to the need for an environmental assessment.

10 That procedure was, however, closed on 26 January 2012, after Law No 7/2004 of the Marche Region had been amended by the legge Regione Marche No 20/2011 (Law No 20/2011 of the Marche Region), which entered into force on 9 November 2011 and by virtue of which 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.

11 Consequently, the Marche Region consented, by decision of 5 June 2012, to the construction and operation of that plant in the municipality of Corridonia, which challenged that decision by bringing an action before the Tribunale amministrativo regionale per le Marche (Administrative Court for the Marche Region, Italy).

12 By judgment of 10 October 2013, that court annulled...