Marktgemeinde Straßwalchen and Others v Bundesminister für Wirtschaft, Familie und Jugend.

• Jurisdiction: European Union
• Celex Number: 62013CC0531
• ECLI: ECLI:EU:C:2014:2279
• Date: 09 October 2014
• Docket Number: C-531/13
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 9 October 2014 ( 1 )

Case C‑531/13

Marktgemeinde Straßwalchen and Others

(Request for a preliminary ruling from the Verwaltungsgerichtshof (Austria))

‛Environment — Directive 85/337/EEC — Assessment of the effects of certain public and private projects on the environment — Projects which must be made subject to an assessment — Concept of ‘extraction of … natural gas for commercial purposes’ — Exploratory drilling — Cumulation of projects’

I – Introduction

1. This is not the first time that the EIA Directive ( 2 ) has been the subject of the Court’s attention — quite the contrary. ( 3 ) It none the less constantly throws up new questions.

2. In the present preliminary ruling proceedings, it is necessary to clarify whether the trial production of natural gas in the context of exploratory drilling operations constitutes an ‘extraction of … natural gas for commercial purposes’ for which an environmental impact assessment is mandatory where a particular threshold is reached. It must also be examined how that threshold is to be applied, in particular whether any further drilling operations or other projects must be taken into account and, if so, which.

3. In addition, consideration must be given to the question of how to evaluate whether such exploratory drilling, as a deep drilling operation, requires an assessment because it is likely to have significant effects on the environment.

II – Legal context

A – EU law

4. Article 2(1) of the EIA Directive sets out its objective: ‘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.’

5. More detailed rules on the projects that must be made subject to an environmental impact assessment are laid down in Article 4(1) to (3) of, and Annexes I to III to, the EIA Directive: ‘(1) … 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, 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 points (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. Annex I, No 14, to the EIA Directive concerns the extraction of natural gas: ‘Extraction of petroleum and natural gas for commercial purposes where the amount extracted exceeds 500 tonnes/day in the case of petroleum and 500 000 m3/day in the case of gas.’

7. Annex II, No 2(d) and (e), also refers to types of project that may, potentially, involve the search for natural gas: ‘(d) Deep drillings, in particular: (i) geothermal drilling, (ii) drilling for the storage of nuclear waste material, (iii) drilling for water supplies, with the exception of drillings for investigating the stability of the soil; (e) Surface industrial installations for the extraction of coal, petroleum, natural gas and ores, as well as bituminous shale.’

8. Reference must also be made to Annex II, No 13(b), to the EIA Directive, which concerns development and testing: ‘Projects in Annex I, undertaken exclusively or mainly for the development and testing of new methods or products and not used for more than two years.’

9. Finally, Annex III to the EIA Directive contains the selection criteria, referred to in Article 4(3), for projects in Annex II: ‘1. Characteristics of projects The characteristics of projects must be considered having regard, in particular, to: (a) the size of the project; (b) the cumulation with other projects; … (e) pollution and nuisances; … 2. Location of projects The environmental sensitivity of geographical areas likely to be affected by projects must be considered, having regard, in particular, to: (a) the existing land use; …’

B – Austrian law

10. In Annex 1, column 1, No 29(a), to the Umweltverträglichkeitsprüfungsgesetz (Law on Environmental Impact Assessments) 2000 (2000 UVP Law), Austria established that the thresholds laid down in Annex I, No 14, to the EIA Directive must be satisfied ‘per probe’: ‘Production of petroleum or natural gas with a capacity of 500 tonnes/day or more per probe in the case of petroleum and 500 000 m3/day or more per probe in the case of natural gas.’

11. Paragraph 1, points 1 and 2, of the Mineralrohstoffgesetz (Law on Mineral Resources) 1999 distinguishes between prospecting for raw materials and their extraction: ‘Paragraph 1. For the purposes of this Federal Law: 1. “Prospecting” means any direct or indirect search for mineral resources, including the associated activities preparatory thereto, as well as the development and examination of natural deposits of mineral resources and discarded heaps containing such resources in order to determine their exploitability; 2. “Extraction” means the removal or release (exploitation) of mineral resources and the associated activities preparatory, parallel and subsequent thereto; …’

III – National proceedings and the request for a preliminary ruling

12. In the national proceedings, the Austrian Marktgemeinde Straßwalchen (market municipality of Straßwalchen) and 59 of its inhabitants, including Mr Kornhuber (the ‘Marktgemeinde’ or ‘Marktgemeinde Straßwalchen and others’), object to the fact that, on 29 August 2011, the Austrian Federal Minister for the Economy, Family and Youth authorised the Rohöl-Aufsuchungs AG (‘RAG’) to undertake exploratory drilling within the territory of that municipality.

13. The authorisation granted covers the construction of the drilling site and access to and assembly and dismantling of the rig, the carrying-out of drilling, assembly and dismantling of the test facilities, the carrying-out of test operations, clearance of the land needed for the rig and the completion of recultivation measures if the exploration is unsuccessful, clearance of the land required for the rig to the dimensions of the future well site and measures to recultivate adjoining areas if the exploration is successful. The anticipated drilling depth is approximately 4150 m.

14. If the exploration is successful, the authorisation also includes the trial production of natural gas up to a total quantity of 1000000 m3 in order to prove that drilling is economically viable. For that to be the case, some 150000 to 250 000 m3 per day must be produced. The gas produced will then be flared off on the fringes of the drilling site. No provision has been made for connection to a natural gas high-pressure pipeline. If the exploration is successful, there will also be a trial production (on a much smaller scale) of petroleum and associated gas (no more than 150 m3 and 18 900 m3 per day respectively).

15. An environmental impact assessment was not carried out because, it was claimed, the project did not involve the extraction of natural gas or petroleum and was not connected to other projects.

16. RAG submits that drilling has now been completed and that no petroleum or natural gas was found.

17. In the main proceedings, the Marktgemeinde takes the view, however, that the project should have been the subject of an environmental impact assessment. It argues inter alia that, in its territory alone, more than 30 drillings were carried out and further drillings were authorised. It also submits that a large number of natural gas storage facilities and pipelines were erected in the territory of the municipality and in the surrounding area.

18. The Verwaltungsgerichtshof therefore addresses the following questions to the Court of Justice: 1. Does the trial production of natural gas, for a limited period and in a limited quantity, which is carried out in the context of an exploratory drilling operation designed to establish whether the permanent extraction of natural gas would be economically viable, constitute an ‘extraction of … natural gas for commercial purposes’ within the meaning of Annex I, No 14, to the EIA Directive? If the answer to Question 1 is in the affirmative: 2. Does Annex I, No 14, to the EIA Directive preclude a provision of national law which, with regard to the extraction of natural gas, does not relate the threshold figures in Annex I, No 14, to the EIA Directive to extraction (‘Gewinnung’) as such, but to ‘production per probe’ (‘Förderung pro Sonde’)? 3. Is the IEA Directive to be interpreted as meaning that, in a situation such as that in the main proceedings, in which an application is being made for authorisation for the trial production of natural gas in the context of an exploratory drilling operation, the authority, in order to determine whether there is an obligation to carry out an environmental impact assessment, must examine, as to their cumulative effect, only all projects of the same kind, specifically, all...