Environmental Impact Assessment

Development consent is defined by the EIA Directive as the final green light by the competent authority or authorities to the project. At the same time, especially when it comes to complex projects involving several permits or other administrative acts, the question arises as to what the specific action from the competent authority that shall be considered as development consent is. The definition of development consent is also of high importance for public participation in decision-making as it determines the proceedings that should be open to the public concerned.

The definition of a project and a development consent are closely related. Reading them together shows that it is irrelevant whether the project is carried out by one or more developers, how the private legal relations between the developers are regulated, whether the project is authorised in one or more authorisation procedures, or whether these procedures coincide. The definitions are not tied to a single procedure or a single notifier. Indeed, it would be contrary to the spirit and purpose of the legislation if a developer could escape the obligation to carry out an EIA by transferring part of the project to another person or splitting it up.

As the development consent entitles the developer to proceed with the project, it is, in principle, a decision on activities that are physical works. There is an exception, though. A development consent can also be a decision on activities that are not physical works, but the final decision on the project permit is conditional on its implementation. Such an interpretation is, however, not entirely intuitive because, as mentioned, the EIA Directive contains provisions on the coordination of authorisation procedures, which suggest that it is not necessary to decide on all the environmental effects of a project in a single process.

For example, the authorisation to derogate from the requirements of species protection concerning the project could fall under the definition of a development consent and must be challengeable based on the environmental impact assessment per Art. 11 of the EIA Directive. The CJEU held in Case C-463/20, Namur-Est Environment, para. 44: “Admittedly, the said [textual] elements [of Art. 1(2)(c) of the EIA Directive] define the concept of ‘development consent’ by referring to a decision different in nature from the derogation decision and they exclude, consequently, that latter decision from being regarded, in isolation and as such, as amounting to a ‘development consent’, within the meaning of Article 1(2)(c) of Directive 2011/92, for the project to which it relates. Nevertheless, those elements do not preclude such a decision from being regarded, when taken together with the subsequent decision on the developer’s entitlement to proceed with the project, as forming part of the development consent for that project or, as the case may be, of the refusal of development consent for it.”

The CJEU gave preference to the interpretation of the definition, which reflects objectives pursued by the EIA Directive and concluded that “the development consent decision is meant to be taken upon the conclusion of the entire process for the assessment” (para. 46) which means that the competent authority can take complete account of the effects of the project. Otherwise, it would be possible to argue that it is sufficient to involve the authorities in charge of various environmental matters in the EIA based on requirement in Art. 6(1) of the EIA Directive. However, the process for the environmental impact assessment and the approval issued on that basis need not include all permits relevant to the project or even all permits under environmental legislation, as is evident, in particular, from Art. 2(3) of the EIA Directive.

That clause enables Member States to establish a single procedure to satisfy the requirements of both the IED and the EIA Directive. Contrarily, it follows that using distinct processes to implement the two directives and granting separate authorisations are equally permitted under that clause. This is supported by Art. 2(2) of the EIA Directive, which states that “The environmental impact assessment may be integrated into the existing procedures for development consent to projects in the Member States, or, failing this, into other procedures or into procedures to be established to comply with the aims of this Directive.” It should be noted that the new version of Art. 2(3) of the EIA Directive introduced by the 2014 amendment makes no changes to this at all and only calls for coordination concerning impact assessments related to protected areas under the Habitats Directive and the Birds Directive.

The CJEU’s expansive interpretation of the definition of development consent appears to overcome two shortcomings: first, the Habitats Directive requires only an assessment of the project’s impact on the protected site. Second, both the EIA and Habitats Directives lack comprehensive provisions for their relationship. The CJEU made clear that the Habitats Directive is independent in scope from the EIA Directive and applies without prejudice to the environmental impact assessment obligation. However, the findings of the CJEU imply, inter alia, that the authorities in the Member States cannot decide on a derogatory regime under Art. 16 of the Habitats Directive without the EIA if the assessment is required, as the EIA must precede the adoption of the development consent. Consequently, the Member States must adjust their administrative procedural rules accordingly and tie the EIA and the permitting procedure. Moreover, the conclusions of the CJEU seem applicable per analogiam to decision-making concerning derogatory regime under Art. 9 of the Birds Directive.