Download - EIA appeals EU legislation and jurisprudence

Consultant: CMDC Joint Venture

EIA appeals EU legislation and jurisprudence

Jan Veeken


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Contents

-Place of Directives in national legislation-Types of legal questions-Steps towards the European Court of Justice-Applicants at the European Court of Justice-Jurisprudence of the European Court of Justice


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Place of Directives in national legislation

EIA Directives obligatorily transposed in national legislation, but:

Member States can specify…

Consequence: national differences in the obligation to follow EIA, ‘legal risks’

Therefore:-EU and national legislation have to be placed side by side-In case of doubt or inconsistencies EU Directives have priority-Jurisprudence relating to the Directives develops at the European Court of Justice, not by national courts


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Types of legal questions

European court cases are about:-transposing Directives timely-transposing Directives correctly-obligation for following EIA in specific cases

The European court will judge:-as a court in the first instance (directly)-answering pre-judicial questions (interpretation questions) from national judges


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Steps towards the European Court of JusticeWhen the Court judges as a court in first instance, previous steps in the procedure can be:

-appeal to the competent authority

-appeal at a regional court of justice

-appeal at a higher, national court of justice


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Applicants at the European Court of Justice

-European Commission-Member States, authorities-National judges

Private entities cannot appeal to the European Court


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Register of Complaints

•Everybody can complain and is getting a letter back (if complaint is concrete and verification is possible)•Not a formal procedure but getting formalized•Complaints: 50% nature, 25% evaluation of impacts, 10% waste and 10% air and water•After complaint some research, not inspection, by EU, informing involved country•Now mainly looking to the principles of directives and horizontal issues


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Jurisprudence of the European Court of Justice

Transposing Directives timely:

-The obligation for EIA does not depend on transposing in national legislation of a Member State

Case: Bund Naturschutz against Freistaat Bayern - Germany


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Transposing Directives correctly:

-Annex I of Council Directive 85/337/EEC has to be transposed in full into national law

-Not only size and capacity provide the necessity of an EIA-procedure, but also the location of a project

Cases: European Commission against Belgium, European Commission against Ireland


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Transposing Directives correctly:

-Projects in Annex II of CD 85/337/EEC have to be broadly interpreted

-For projects in Annex II a preliminary environmental assessment is obligatory before excluding a project from the EIA procedure

Cases: Kraaijeveld against Provincie Zuid Holland - Netherlands, World Wildlife Fund against Autonome Provinz Bozen - Italy


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Scope:

-Council Directive 85/337/EEC can extend over projects already permitted and/or started before the commencement of the Directive but not yet finished and/or continuous

-CD 85/337/EEC also extends over projects that are cut in parts and phased in the future

Cases: Wells against the Secretary of State for Transport – UK, European Commission against Spain


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Newest Jurisprudence

•Verdict of September 16th 2004•Railway Valencia-Tarrogona (Spain)•(complain of may 1999, appeal of 7 june 2001)•Not considered as an Annex II activity (pre-assessment procedure) by Spain•Verdict by the Court: should follow the pre-assessment procedure