Project to develop military airfield as commercial airport – Project approved by national legislation – Environmental impact assessed according to national procedures – Whether procedures complied with Directive 85/337/EEC
At all material times there was no commercial airport serving the needs of the north Italian Autonomous Province of Bolzano, but the province did possess a large airfield which was mainly used for military purposes. In 1992 the relevant legislature enacted Law No 27/92, which provided for an environmental impact assessment to be obtained before certain categories of project were approved. By the same law certain projects, including the construction of new airports having a runway length of 2,100m or more, were designated as projects for which such an assessment was mandatory. For other projects, including the extension or alteration of existing airports, such an assessment was only required where certain thresholds were exceeded; however no threshold, in terms of runway length or otherwise, was laid down for airport alterations.
In January 1995 the same assembly enacted Law No 3/95, which approved, subject to the carrying out of an environmental impact study, the restructuring of the airfield as a fully functional commercial airport, such restructuring to include the enlargement of the runway from 1,040 to 1,400m. An environmental study in accordance with Law 27/92 was carried out in 1996.
A group of objectors, comprising local residents and members of two environmental associations, took proceedings in the Bolzano administrative court (Verwaltungsgericht) complaining that the procedure followed for approving the project had failed to conform with the requirements of Council Directive 85/337/EEC as to the obtaining of environmental assessments. Various points (most of which were common ground) were established, notably: (i) the Bolzano airport project did not fall within the mandatory provisions contained in Article 4(1) of the Directive as the runway length was less than the 2,100m laid down in Annex I; (ii) the project did fall within the discretionary provisions of Article 4(2), which, under Annex II, were applicable, inter alia, to “construction of… Airfields… not listed in Annex 1”; (iii) the project accordingly lay within the power conferred by Article 4(2) on member states to specify such a project, if they considered that the characteristics so required, as one requiring an environmental assessment before approval; (iv) the project was capable
of having a significant effect on the environment; and (v) the “simplified assessment” carried out in accordance with Law No 27/92 was not that laid down by the Directive. The Verwaltungsgericht referred a number of questions on the interpretation of the Directive to the European Court for a preliminary ruling.
Held
1. Articles 4(2) and 2(1) of the Directive could not be interpreted as conferring on a member state the power to exclude, from the outset and in their entirety, certain classes of projects falling within Annex II to the Directive from the environmental assessment procedure unless those classes of projects in their entirety could be regarded, on the basis of a comprehensive assessment, as not likely to have significant effects on the environment: see Kraaijeveld v Gedeputeerde Staten van Zuid-Holland [1996] ECR I-5403; Commission v Germany [1998] ECR I-6135; Commission v Belgium [1996] ECR I-2323.
2. Subject to the same proviso, there was no power to exempt a specific project from such a procedure, such as the project of restructuring an airport with a runway shorter than 2,100m.
3. A member state could prescribe an assessment procedure other than that provided by the Directive, where the alternative procedure was or would be incorporated in a national procedure, provided that the alternative procedure satisfied the requirements of Article 3 and Articles 5 to 10 of the Directive, including public participation as provided for in Article 6.
4. Article 1(5) (which excludes projects the details of which are adopted by a specific act of national legislation) did not apply to a project, like the project in issue, which had been provided for by a programme set out in legislation, but which had received development consent under a separate administrative procedure. The specific act that adopted the project had to include all the elements that might be relevant to the assessment of the impact of the project on the environment.
5. Where the discretion conferred by Articles 4(2) and 2(1) had been exceeded by a relevant legislative or administrative authority, individuals could rely on those provisions before a court of the member state against such authority with a view to having the offending rule or measure set aside.
Derrick Wyatt QC (instructed by the Treasury Solicitor) appeared for the United Kingdom government.
Alan Cooklin, barrister