Environmental Impact Assessment

The EIA Directive gives a dual definition of “project” in point (a) of Article 1(2):

This definition was subject to a number of cases at the European Court of Justice (CJEU). In its case-law, the CJEU has given a broad interpretation of the concept of “construction” – when assessing the need for an EIA in the case of road refurbishment, it accepted that works for the refurbishment of an already existing road may be equivalent, due to their size and the manner in which they are carried out, to the construction of a new road and hence an EIA would be justified in such a case (see Case C-142/07, Ecologistas en Acción-CODA, para. 36).

Furthermore, the CJEU has also found that it would be contrary to the very objective of the EIA Directive to exclude works to improve or extend the infrastructure of an existing airport from the scope of Annex II on the grounds that Annex I covers the ‘construction of airports’ and not ‘airports’ as such. According to the CJEU, such an interpretation would indeed allow all works to modify a pre-existing airport, regardless of their extent, to fall outside the obligations resulting from the Directive and would, in that regard, thus deprive Annex II of all its effects (see Case C-2/07 Abraham and Others, para. 32).

In another case, however, the CJEU has concluded, based on its judgments in the above two cases, that physical works are essential for classifying the project as meeting the definition of “project” under the EIA Directive. According to the CJEU, a purposive interpretation of the Directive cannot, in any event, disregard the clearly expressed intention of the legislature of the European Union, from which it follows that, in any event, the renewal of an existing consent to operate an airport cannot, in the absence of any works or interventions involving alterations to the physical aspect of the site, be classified as a “construction” within the meaning of point 7(a) of Annex I to the EIA Directive (see Case C-275/09, Brussels Hoofdstedelijk Gewest, paras 28-30).

Regarding smaller projects, the EIA Directive suggests that the decisive factors in determining whether a project requires the EIA are its nature, location, and size [Art. 2(1), Art. 4(6), Art. 5(2), Art. 8a(4)]. Some types of projects may not have significant effects on the environment in every case. For these projects, Member States may set thresholds or criteria for the purpose of determining projects of types which should be subject to assessment on the basis of the significance of their environmental effects. The thresholds should reflect the relevant selection criteria set out in Annex III (characteristics, location, potential impact). Member States should not be required to examine projects below those thresholds or outside those criteria on a case-by-case basis.

In practice, however, the Member States often set thresholds in a similar way as the EIA Directive sets limits for Annex I or Annex II projects based on the capacity or size of the projects, not their location. Such practice has been criticised by the CJEU, which held that a Member State that establishes thresholds or criteria that take account only of the dimension of the projects, without taking into consideration the criteria in Annex III of the EIA Directive, exceeds its margin of discretion under Article 2(1) and Article 4(2) of that Directive (see Case C-435/09, Commission v Belgium, para. 55). The Member States, therefore, cannot exclude expressly or impliedly one or more of the criteria in Annex III, in so far as any of those criteria may, depending on which project in the categories listed in Annex II is concerned, be relevant for ascertaining whether an environmental impact assessment procedure must be organised.