Projects under the EIA Directive
The definition of “project”
For example, in Case C-575/21, WertInvest Hotelbetrieb, the CJEU concluded that the EIA Directive prevents national (in this case Austrian) legislation which provides that urban development projects are subject to an environmental impact assessment only when they occupy at least 15 hectares and have a gross floor area above 150 000 m², without taking account of their location, thereby excluding a case-by-case examination of the need to carry out environmental impact assessments of urban development projects in sites of historical, cultural or archaeological significance, such as UNESCO World Heritage Sites. This means that a Member State that establishes criteria or thresholds limited to the size of projects only, without considering their nature and location, exceeds the limits of its discretion in the transposition of the EIA Directive.
The CJEU added that in the context of a case-by-case examination as to whether a project is likely to have significant effects on the environment, the competent authority must examine the project concerned with regard to all the selection criteria listed in Annex III of the EIA Directive, in order to determine the relevant criteria in the particular case and must then apply those relevant criteria to the particular situation. Furthermore, affected members of the public must be able to challenge a decision that there is no need for an environmental impact assessment.
Larger projects are likely to fall under the requirements of multiple directives. In particular, the CJEU held that if an activity falls within the definition of a project under the EIA Directive, it is all the more likely to fall within the Habitats Directive. See Case C-127/02, Waddenvereniging and Vogelbeschermingsvereniging, paras 26–27: “Such a definition of ‘project’ is relevant to defining the concept of plan or project as provided for in the Habitats Directive, which, as is clear from the foregoing, seeks, as does Directive 85/337, to prevent activities which are likely to damage the environment from being authorised without prior assessment of their impact on the environment. Therefore, an activity such as mechanical cockle fishing is covered by the concept of plan or project set out in Article 6(3) of the Habitats Directive.”
However, this may not always be the case. As the CJEU held in Case C-293/17, Coöperatie Mobilisation for the Environment and Others, “if an activity is regarded as a ‘project’ within the meaning of the EIA Directive, it may constitute a ‘project’ within the meaning of the Habitats Directive. However, the mere fact that an activity may not be classified as a ‘project’ within the meaning of the EIA Directive does not suffice, in itself, to infer therefrom that the activity may not be covered by the concept of ‘project’ within the meaning of the Habitats Directive.”
The decisive factor is, therefore, the possible negative effect on the natural area, so that, according to the same judgment, grazing of cattle or application of manure to land can also be a project within the meaning of the Habitats Directive. Thus, a project that is not listed in Annexes I and II of the EIA Directive may still present a project within the meaning of the Habitats Directive.
The EU legislation is neutral towards dividing projects into smaller parts. However, it prohibits a practice that leads to circumvention of the EIA process by deliberately dividing projects into smaller units excluded from the scope of the EIA regulations – the so-called salami slicing method. The prohibition of the salami slicing method follows the crucial requirement for a comprehensive assessment embodied in the EIA Directive. As regards associated or ancillary works, a centre of gravity test should be carried out to determine whether these works present and integral part of the project.