Opinion of Advocate General Kokott delivered on 19 January 2023.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2023:39
• Date: 19 January 2023

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 19 January 2023 (1)

Case C‑721/21

Eco Advocacy CLG

(Request for a preliminary ruling from the High Court (Ireland))

(Request for a preliminary ruling – Procedural autonomy of the Member States – Principle of effectiveness – Requirements governing written pleadings before the national court – Environment – Directive 2011/92/EU – Environmental impact assessment – Screening of the need for an assessment – Statement of reasons – Directive 92/43/EEC – Article 6(3) – Appropriate assessment – Screening of the need for an assessment – Mitigation measures – Dispelling of doubts)

I. Introduction

1. EU law requires a number of assessments of the environmental effects of certain plans and projects. The environmental impact assessment under the EIA Directive (2) and the appropriate (3) assessment under the Habitats Directive (4) are probably the best known examples of these.

2. The present request for a preliminary ruling is primarily concerned with certain formal requirements governing the screening exercise to determine whether the aforementioned assessments are necessary at all. The issue, in the case of both directives, is whether the reasons for the decision not to carry out the assessment itself must be expressly indicated, and whether, in the case of the environmental impact assessment, that statement of reasons must expressly list all of the criteria to be taken into account under the EIA Directive. As regards screening under the Habitats Directive, it must also be considered whether certain mitigation measures may be taken into account and whether the statement of reasons for a decision not to carry out an appropriate assessment must rebut certain objections.

3. In addition, it falls to the Court to rule on the requirements that must be applied to the applicants’ pleadings before the national court. The issue here is similar to that in relation to the statement of reasons for the decision at the screening stage, which is to say whether the applicants have themselves failed to put forward with sufficient clarity the plea alleging that that statement of reasons is not sufficiently clear.

4. I shall submit below that the requirements of EU law on judicial pleadings and the formal framework for the statement of reasons are very limited. It is in essence for the Member States to lay down the rules governing such matters and for the national courts to assess the respective pleadings of the parties and the relevant information contained in the contested decision.

II. Legal framework

A. EIA Directive

5. Article 4 of the EIA Directive lays down how to decide whether an environmental impact assessment is to be carried out:

‘2. Subject to Article 2(4), for projects listed in Annex II, Member States shall determine whether the project shall be made subject to an assessment in accordance with Articles 5 to 10. Member States shall make that determination through:

(a) a case-by-case examination

or

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

3. Where 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. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

4. …

5. The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall be made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.’

6. Annex III to the EIA Directive contains the selection criteria for the decision to be made under Article 4(3):

‘1. Characteristics of projects

The characteristics of projects must be considered, with particular regard to:

(a) the size and design of the whole project;

(b) cumulation with other existing and/or approved projects;

(c) the use of natural resources, in particular land, soil, water and biodiversity;

(d) the production of waste;

(e) pollution and nuisances;

(f) the risk of major accidents and/or disasters which are relevant to the project concerned, including those caused by climate change, in accordance with scientific knowledge;

(g) the risks to human health (for example due to water contamination or air pollution).

2. Location of projects

The environmental sensitivity of geographical areas likely to be affected by projects must be considered, with particular regard to:

(a) the existing and approved land use;

(b) the relative abundance, availability, quality and regenerative capacity of natural resources (including soil, land, water and biodiversity) in the area and its underground;

(c) the absorption capacity of the natural environment, paying particular attention to the following areas:

(i) wetlands, riparian areas, river mouths;

(ii) coastal zones and the marine environment;

(iii) mountain and forest areas;

(iv) nature reserves and parks;

(v) areas classified or protected under national legislation; Natura 2000 areas designated by Member States pursuant to [the Habitats Directive] and [the Birds Directive (5)];

(vi) areas in which there has already been a failure to meet the environmental quality standards, laid down in Union legislation and relevant to the project, or in which it is considered that there is such a failure;

(vii) densely populated areas;

(viii) landscapes and sites of historical, cultural or archaeological significance.

3. Type and characteristics of the potential impact

The likely significant effects of projects on the environment must be considered in relation to criteria set out in points 1 and 2 of this Annex, with regard to the impact of the project on the factors specified in Article 3(1), taking into account:

(a) the magnitude and spatial extent of the impact (for example geographical area and size of the population likely to be affected);

(b) the nature of the impact;

(c) the transboundary nature of the impact;

(d) the intensity and complexity of the impact;

(e) the probability of the impact;

(f) the expected onset, duration, frequency and reversibility of the impact;

(g) the cumulation of the impact with the impact of other existing and/or approved projects;

(h) the possibility of effectively reducing the impact.’

B. Habitats Directive

7. Article 6(3) of the Habitats Directive governs the so-called ‘appropriate assessment’ of the implications of a plan or project:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public’.

III. Facts and request for a preliminary ruling

8. The action is directed at the judicial review of the validity of a permission which was granted by An Bord Pleanála (Irish planning authority, ‘the Board’) for a housing development in Trim, County Meath. The proposal is for the construction of 320 dwellings at Charterschool Land, Manorlands.

9. Following a number of informal contacts, the formal planning application for this development was submitted on 8 July 2020. The design provides for certain provisions to be made for surface water run-off to be treated before being discharged into a stream that is a tributary of the River Boyne.

10. The Boyne itself is approximately 640 metres to the north of the development. It is part of the ‘River Boyne and River Blackwater Special Protection Area’ (IE0004232) under the Birds Directive, for which a qualifying interest is the kingfisher (Alcedo atthis) [A229]. The site falls within the ‘River Boyne and River Blackwater Special Area of Conservation’ (IE0002299) under the Habitats Directive. The habitat types alkaline fens [7230], alluvial forests with Alnus glutinosa and Fraxinus excelsior (Alno-padion, Alnion incanae, Salicion albae) [91E0] and the animal species Lampetra fluviatilis (river lamprey) [1099], Salmo salar (salmon) [1106] and Lutra lutra (otter) [1355] are further qualifying interests.

11. A screening report on the need for an environmental impact assessment and an ecological impact assessment, which together contained a number of proposed mitigation measures, were prepared. A screening report under the Habitats Directive, which concluded that there would be no impact on Natura 2000 sites, was also submitted.

12. An...