Development — Effect upon environment — Public consultation — Member state requiring payment of fees prior to participating in consultation process — European Commission seeking declaration that imposition of fees contrary to Community law — Whether member state failing to fulfil Community obligations — Application dismissed
Under Council Directive 85/337, development consent for public and private projects that were likely to have significant effects upon the environment were to be granted only after the prior assessment of the likely significant environmental effects had been carried out. The assessment had to be conducted on the basis of appropriate information supplied by the developer, which could be supplemented by the authorities and others that might be affected by the proposals.
By article 6 of the Directive, member states were required to ensure that the authorities likely to be affected by the project by reason of their specific environmental responsibilities were given an opportunity to express their opinion. To that end, member states had to designate the authorities to be consulted, either generally or on a case-by-case basis. Further, any information had to be made available to the public within a reasonable time in order to give them the chance to express an opinion before consent was granted.
The detailed arrangements for such information and consultation were the responsibility of the member states, which, depending upon the particular characteristics of the projects or sites concerned, might, inter alia: (i) determine the public concerned; (ii) specify the places where the information could be consulted; and (iii) determine how the public was to be consulted, for example, by written submissions or by public enquiry.
Following two complaints about proposed Irish legislation on planning and development (subsequently enacted as the Planning and Development Act 2000), the European Commission took the view that by charging a fee for members of the public to have their views taken into consideration in development consent procedures, Ireland had failed to ensure that the opinions of members of the public who were unable to pay the participation fees were taken into account when considering projects that were likely to have significant effects on the environment, contrary to article 6.
Held: The application was dismissed.
In principle, member states were free to impose a reasonable participation fee in respect of consultation procedures provided that it did not constitute an obstacle to the exercise of rights of participation conferred by article 6 of Directive 85/337. The charging of a reasonable administration fee was not incompatible with the guarantee of access to information and the Commission had failed to establish that the level of the fees was unjustified in the light of the administrative costs involved in processing the observations received from persons concerned.
Member states had an obligation, when transposing a directive, to ensure that it was effective. However, they retained a broad discretion as to the choice of methods. The fact that other directives concerning public access to environmental information provided for the charging of fees did not raise a general presumption that the Community legislature wished to allow fees only when the legislation so provided.
X Lewis, acting as agent, appeared for the applicant Commission; D O’Hagan, acting as agent, B Murray, senior council, and G Simons, barrister-at-Law, appeared for the defendant government.
Eileen O’Grady, barrister
