Skip to main content

Remedying Failures to Conduct Environmental Impact Assessment, Should Not Result in a Game of Snakes and Ladders. Comment on Court of Justice Case C-261/18 of 12 November 2019

Attracta Uí Bhroin

elni Review 2019, pp. 18-25. https://doi.org/10.46850/elni.2019.003

The author of this article comments on a November 2019 CJEU ruling following the ‘Derrybrien case’ concerning EIA in Ireland. According to the author, the judgement has profound implications for several legal questions concerning, i.a., obligations to remedy and state liability.

Access full article

References

  1. Court of Justice of the European Union, 2008, Judgment of the Court (Second Chamber) of 3 July 2008. Commission of the European Communities v Ireland. Failure of a Member State to fulfil obligations - No assessment of the environmental effects of projects within the scope of Directive 85/337/EEC - Regularisation after the event. Case C-215/06.
  2. Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, OJ 1985 L 175/40.
  3. Council Directive 97/11/EC of 3 March 1997 amending Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment, OJ 1997 L 73/5.
  4. Court of Justice of the European Union, 2019, Judgment of the Court (Grand Chamber) of 12 November 2019 European Commission v Ireland Failure of a Member State to fulfil obligations — Judgment of the Court establishing a failure to fulfil obligations — Non-compliance — Directive 85/337/EEC — Consent for, and construction of, a wind farm — Project likely to have significant effects on the environment — Absence of a prior environmental impact assessment — Obligation to regularise — Article 260(2) TFEU — Application for an order to pay a penalty payment and a lump sum Case C-261/18.
  5. Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, Decision 2005/370/EC OJ L 124.
  6. Court of Justice of the European Union, 2011, Judgment of the Court (Grand Chamber) of 8 March 2011. Lesoochranárske zoskupenie VLK v Ministerstvo životného prostredia Slovenskej republiky. Reference for a preliminary ruling: Najvyšší súd Slovenskej republiky - Slovakia. Environment - Aarhus Convention - Public participation in the decision-making process and access to justice in environmental matters - Direct effect. Case C-240/09.
  7. Court of Justice of the European Union, 2004, Judgment of the Court (Fifth Chamber) of 7 January 2004. The Queen, on the application of Delena Wells v Secretary of State for Transport, Local Government and the Regions. Reference for a preliminary ruling: High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court) - United Kingdom. Directive 85/337/EEC - Assessment of the effects of certain projects on the environment - National measure granting consent for mining operations without an environmental impact assessment being carried out - Direct effect of directives - Triangular situation. Case C-201/02.
  8. Court of Justice of the European Union, 2012, Judgment of the Court (Grand Chamber), 28 February 2012, Inter-Environnement Wallonie ASBL and Terre wallonne ASBL v Région wallonne Reference for a preliminary ruling from the Conseil d’État (Belgium) Protection of the environment — Directive 2001/42/EC — Articles 2 and 3 — Assessment of the effects of certain plans and programmes on the environment — Protection of waters against pollution caused by nitrates from agricultural sources — Plan or programme — No prior environmental assessment — Annulment of a plan or programme — Possibility of maintaining the effects of the plan or programme — Conditions, Case C-41/11.
  9. Court of Justice of the European Union, 2017, Judgment of the Court (First Chamber) of 26 July 2017, Comune di Corridonia and Others v Provincia di Macerata and Provincia di Macerata Settore 10 – Ambiente Requests for a preliminary ruling from the Tribunale amministrativo regionale per le Marche References for a preliminary ruling — Environment — Directive 85/337/EEC — Directive 2011/92/EU — Possibility of carrying out, a posteriori, an environmental impact assessment of an operational plant for the production of energy from biogas with a view to obtaining a new consent, Joined Cases C-196/16 and C-197/16.
  10. Court of Justice of the European Union, 2018, Judgment of the Court (Sixth Chamber) of 28 February 2018, Comune di Castelbellino v Regione Marche and Others Request for a preliminary ruling from the Tribunale Amministrativo Regionale per le Marche Reference for a preliminary ruling — Environment — Directive 2011/92/EU — Article 4(2) and (3) and Annexes I to III — Environmental impact assessment — Authorisation to carry out work in a plant for the production of electricity from biogas without preliminary examination of the need for an environmental impact assessment — Annulment — Regularisation after the event of the authorisation on the basis of new provisions of national law without preliminary examination of the need for an environmental impact assessment, Case C-117/17.
  11. Court of Justice of the European Union, 2007, Judgment of the Court (First Chamber) of 14 June 2007. Medipac-Kazantzidis AE v Venizeleio-Pananeio (PE.S.Y. KRITIS). Reference for a preliminary ruling: Symvoulio tis Epikrateias - Greece. Free movement of goods - Directive 93/42/EEC - Hospital purchase of medical devices bearing the CE marking - Protective measures - Public supply contract - Contract falling below the threshold of application of Directive 93/36/EEC - Principle of equal treatment and obligation of transparency. Case C-6/05.
  12. Court of Justice of the European Union, 2016, Judgment of the Court (First Chamber) of 17 November 2016 Stadt Wiener Neustadt v Niederösterreichische Landesregierung Request for a preliminary ruling from the Verwaltungsgerichtshof Reference for a preliminary ruling — Assessment of the effects of certain public and private projects on the environment — Directive 85/337/EEC — Directive 2011/92/EU — Scope — Concept of ‘specific act of national legislation’ — No environmental impact assessment — Definitive authorisation — Legislative regularisation a posteriori of the lack of environmental impact assessment — Principle of cooperation — Article 4 TEU, Case C-348/15.
  13. Court of Justice of the European Union, 2007, Judgment of the Court (First Chamber) of 14 June 2007. Medipac-Kazantzidis AE v Venizeleio-Pananeio (PE.S.Y. KRITIS). Reference for a preliminary ruling: Symvoulio tis Epikrateias - Greece. Free movement of goods - Directive 93/42/EEC - Hospital purchase of medical devices bearing the CE marking - Protective measures - Public supply contract - Contract falling below the threshold of application of Directive 93/36/EEC - Principle of equal treatment and obligation of transparency. Case C-6/05.
  14. Court of Justice of the European Union, 2018, Judgment of the Court, 4 December 2018, Minister for Justice and Equality, Commissioner of An Garda Síochána v workplace Relations Commission EU:C:2018:979, para. 48-52.
  15. Court of Justice of the European Union, 2006, Judgment of the Court (First Chamber) of 4 May 2006. Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland. Failure of a Member State to fulfil obligations - Admissibility - Subject-matter of the case - Jurisdiction of national courts - Action devoid of purpose - Legal certainty and legitimate expectations of developers - Directive 85/337/EEC - Assessment of the effects of certain projects on the environment - White City development project - Crystal Palace development project - Projects falling within Annex II to Directive 85/337 - Obligation to assess projects likely to have significant effects on the environment - Burden of proof - Transposition of Directive 85/337 into national law - Grant of consent comprising more than one stage. Case C-508/03.
  16. Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment, OJ 2014 L 124/1.
  17. General Scheme of Housing and Planning and Development Bill 2019.
  18. Communication From the Commission of 28.4.2017 Commission Notice on Access to Justice in Environmental Matters Brussels, 28.4.2017 C(2017) 2616 final.