The influence of the European Union Court of Justice

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The European Union (EU) has a large influence on the Environment, Health and Safety (EHS) legislation in Member States. Regulations are directly applicable and Directives need to be implemented by the Member States into their national legislation. However, Member States have some freedom when implementing Directives, which can lead to the wrong implementation of a Directive. That is where the Court of Justice of the EU can play a role in ensuring that  a Member State in question amends its legislation in order to align it with the Directive.

A good example of the influence of the EU’s Court of Justice can be seen in judgement C-255/08 on the European Commission against the Netherlands of 15 October 2009. In that judgement, the European Commission started proceedings against the Netherlands for wrongly implementing Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment. Directive 85/337/EEC contains a system for the prior assessment of the possible effects that certain public and private projects (e.g. construction work, chemical plants, infrastructure installations, etc.) can have on the environment. The Netherlands implemented Directive 85/337/EEC in the Decision on Environmental Impact Assessment of 1994 (Besluit Milieueffectrapportage 1994).

One of the provisions of Directive 85/337/EEC that requires implementation is that Member States have to determine through either a case-by-case examination, thresholds or criteria whether an environmental impact assessment (EIA) needs to be carried out for a project. The Netherlands had interpreted and implemented this by saying that a project needs to meet certain thresholds/criteria (see Annex part D of the Decision on Environmental Impact Assessment 1994), e.g. an EIA for the construction, modification or extension of a surface storage of fossil fuels needs to be carried out when the activity concerns a surface of more than 50 hectares (point 25.4 of Annex part D of Decision on Environmental Impact Assessment).

However, the Netherlands did not implement all the selection criteria as laid out in Annex III of Directive 85/337/EEC that also need to be taken into account when assessing whether an EIA needs to be carried out. The Netherlands only took the size of the project into account, but the Directive requires that the following be considered: the cumulative effect of any environmental impact, other projects, the use of natural resources, the production of waste, pollution and nuisances, the risk of accidents, the environmental sensitivity of geographical areas likely to be affected, etc.

The aforementioned judgements led to an amendment of the Decision on Environmental Impact Assessment of 1994. The amendment ensured that the Decision on Environmental Impact Assessment 1994 was aligned with the Directive 85/337/EEC, by amending the Annex parts C and D of the Decision. Annex part C addresses when an EIA must be carried out. For example, to build motorways, roads, railways; to install pipe systems for the transport of oil, gas or chemicals; to create new industrial sites; for water abstraction or infiltration involving quantities in excess of 3 million m3/year; and for waste management facilities. Annex part D to the Decision on Environmental Impact Assessment of 1994 lists activities for which the competent authorities must decide, according to the particular circumstances, whether an EIA is required. For example, for the establishment of an installation; for the production or enrichment of fissile materials.

Following the amending Decision, the threshold values laid down in Annex part D are indicative, meaning that if an activity does not meet the threshold value, an EIA is most probably not required, but the competent authority needs to check whether the requirements laid down in Annex III of the Directive 85/337/EEC are met, and an EIA needs to be made. This requirement is laid down in Article 2 of the Decision on Environmental Impact Assessment of 1994.

The consequence of the amendment (and judgment) is that the competent authority (e.g. provincial authorities (Gedeputeerde Staten or Provinciale Staten)), when assessing whether or not an EIA needs to be carried out for a project, not only needs to take the requirements laid down in Annex part D of Decision on Environmental Impact Assessment 1994 (size of the project) into account, but also the aforementioned additional criteria (see Annex III of Directive 85/337/EEC). This can mean that projects that did not require an EIA in the past will now need one.

This example makes it evident  that even though Member States have some freedom to implement (interpret) EU legislation, their freedom is not that vast. When done incorrectly and not aligned directly with EU legislation, the Court of Justice will step in (when the European Commission starts proceedings) and ensure everything is implemented correctly.

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