The EIA directive

• Author: Directorate-General for Environment (European Commission)
• Pages: 43-144

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Part II - The EIA Directive

Article 1

Article 1 as amended by Directive 2014/52/EU

1. This Directive shall apply to the assessment of the

environmental effects of those public and private

projects which are likely to have significant effects

on the environment.

2. For the purposes of this Directive:

(a) ‘project’ means:

— the execution of construction works or of other

installations or schemes,

— other interventions in the natural surroundings

and landscape including those involving the

extraction of mineral resources;

(b) ‘developer’ means:

the applicant for authorization for a private project

or the public authority which initiates a project;

(c) ‘development consent’ means:

the decision of the competent authority or authorities

which entitles the developer to proceed with the

project;

(d) ‘public’ means one or more natural or legal

persons and, in accordance with national legislation

or practice, their associations, organisations or

groups;

(e) ‘public concerned’ means the public

affected or likely to be affected by, or having an

interest in, the environmental decision-making

procedures referred to in Article 2(2); for the

purposes of this definition, non -governmental

organisations promoting environmental protection

and meeting any requirements under national law

shall be deemed to have an interest.

(f) 'competent authority or authorities' means

that authority or those authorities which the Member

States designate as responsible for performing the

duties arising from this Directive.

3. Member States may decide, on a case-by-case

basis if so provided under national law, not to apply

this Directive to projects serving national defence

purposes, if they deem that such application would

have an adverse effect on these purposes.

4. This Directive shall not apply to projects the

1. This Directive shall apply to the assessment of the

environmental effects of those public and private

projects which are likely to have significant effects

on the environment.

2. For the purposes of this Directive, the following

definitions shall apply:

(a) ‘project’ means:

— the execution of construction works or of other

installations or schemes,

— other interventions in the natural surroundings

and landscape including those involving the

extraction of mineral resources;

(b) ‘developer’ means the applicant for authorisation

for a private project or the public authority which

initiates a project;

(c) ‘d evelopment consent’ means the decision of the

competent authority or authorities which entitles the

developer to proceed with the project;

(d) ‘public’ means one or more natural or legal

persons and, in accordance with national legislation

or practice, their associations, organisations or

groups;

(e) ‘public concerned’ means the public affected or

likely to be affected by, or having an interest in, the

environmental decision- making procedures referred

to in Article 2(2). For the purposes of this definition,

non-governmental organisations promoting

environmental protection and meeting any

requirements under national law shall be deemed to

have an interest;

(f) ‘competent authority or authorities’ means that

authority or those authorities which the Member

States designate as responsible for performing the

duties arising from this Directive;

(g) ‘environmental impact assessm ent’ means a

process consisting of:

(i) the preparation of an environmental impact

assessment report by the developer, as referred to in

Article 5(1) and (2);

(ii) the carrying out of consultations as referred to in

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details of which are adopted by a specific act of

national legislation, since the objectives of this

Directive, including that of supplying information,

are achieved through the legislative process.1

Article 6 and, where relevant, Article 7;

(iii) the examination by the competent authority of

the information presented in the environmental

impact assessment report and any supplementary

information provided, where necessary, by the

developer in accordance with Article 5(3), and any

relevant information received through the

consultations under Articles 6 and 7;

(iv) the reasoned conclusion by the competent

authority on the significant effects of the project on

the environment, taking into account the results of

the examination referred to in point (iii) and, where

appropriate, its own supplementary examination; and

(v) the integration of the competent authority's

reasoned conclusion into any of the decisions

referred to in Article 8a.

3. Member States may decide, on a case-by-case basis

and if so provided under national law, not to apply

this Directive to projects, or parts of projects, having

defence as their sole purpose, or to projects having

the response to civil emergencies as their sole

purpose, if they deem that such application would

have an adverse effect on those purposes.

According to the case-law of the Court:

Purpose of the EIA Directive

It follows from Article 1(1) of, and from the first, third, fifth and sixth recitals in the preamble

to, Directive 85/337 that the purpose of that directive is an assessment of the effects of

public and private projects on the environment in order to attain one of the

Community’s objectives in the sphere of the protection of the environment and the

quality of life. The information which must be supplied by the developer in accordance with

Article 5(1) of, and Annex IV to, Directive 85/337, as well as the criteria which enable

Member States to determine whether small-scale projects, meeting the characteristics laid

down in Annex III to that directive, require a environmental assessment, also relate to that

purpose.

(Leth, C-420/11, EU:C:2013:166, paragraph 28)

1 Please note that Directive 2014/52/EU removed Art. 1(4) and the exemptions for projects adopted by specific acts of

national legislation are regulated under Art. 2(5).

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Project

The term 'project' refers to works and physical intervetions in Article 1(2) of Directive

85/337.

(Abraham and O thers, C-2/07, EU:C:2008:133;, Brussels Hoofdstedelijk Gewest and Others,

C-275/09, EU:C:2011:154, paragraph 20)

The renewal of an existing permit (to operate an airport) cannot, in the absence of any

works or interventions involving alterations to the physical aspect of the site, be classified as

a ‘project’ within the meaning of the second indent of Article 1(2) of Directive 85/337.

(Brussels Hoofdstedelijk Gewest and Others, C-275/09, EU:C:2011:154, paragraph 24; Pro-

Braine and Others, C-121/11, EU:C:2012:225, paragraph 31; Inter-Environnement Wallonie

ASBL and Bond Beter Leefmilieu Vlaanderen, C-411/17, ECLI:EU:C:2019:622, paragraphs 61-62;

Friends of the Irish Environment, C-254/19, ECLI:EU:C:2020, paragraph 32)

The evidence available to the Court indicates that the measures at issue in the main

proceedings entail major work on the Doel 1 and Doel 2 power stations to upgrade them and

ensure that current safety standards are met, as demonstrated by the EUR 700 million

investment budget earmarked for those power stations.

According to the order for reference, the Agreement of 30 November 2015 makes provision

for a ‘rejuvenation’ investment plan, which describes that work as what is needed in order to

extend the operational life of both power stations and includes, in particular, investment

approved by the AFCN under the LTO plan for the replacement of facilities due to ageing and

the upgrading of other facilities, along with changes to be introduced under the Fourth

Periodical Safety Review and stress tests carried out in the wake of the accident in Fukushima

(Japan).

In particular, the documents provided to the Court indicate that work will focus, in particular,

on upgrading the containment structures of the Doel 1 and Doel 2 power stations, renewal of

the spent fuel pools, building a new pumping station and adaptation of the base to offer better

protection to the power stations against flooding. That work would not be limited to

improvements to existing structures, but would also involve the construction of three

buildings, two to host ventilation systems and a third as a fire protection structure. Work of

that nature is such as to alter the physical aspect of the sites in question, within the

meaning of the Court’s case-law.

In the light of those various factors, measures such as those at issue in the main proceedings

cannot be artificially dissociated from the work to which they are inextricably linked

when assessing, in the present instance, whether they constitute a project within the

meaning of the first indent of Article 1(2)(a) of the EIA Directive. It must therefore be

held that such measures and the upgrading work inextricably linked thereto together

constitute a single project within the meaning of that provision, subject to findings of fact that

are for the referring court to make.