HAVET & VANHUFFEL – Association d’avocats
By judgment of 1 August 2025 (C 461/24), the Court of Justice of the European Union held that Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on environmental impact assessment does not preclude legislation of a Member State which, in the context of a procedure for assessing the environmental impact of a project, provides for authorities to be consulted at the same time as the public concerned, from not authorising the said public to communicate its observations on the opinions given by those authorities.
On December 22, 2017, a company applied for an administrative permit to construct a wind farm located in the municipality of Mazaricos (Spain). Its application was accompanied by various documents, including an environmental impact assessment of the project in question, as provided for in Article 35 of Law 21/2013.
Once the preliminary reports were completed, the public information phase was opened for a period of 30 days, during which time various comments were submitted.
At the same time, the competent bodies in the fields of forestry, water, natural and cultural heritage, tourism, health, electricity, and aviation safety, among others, submitted their reports in accordance with Article 37 of Law 21/2013. On June 17, 2022, the Dirección Xeral de Calidade Ambiental, Sostibilidade e Cambio Climático (General Directorate of Environmental Quality, Sustainability and Climate Change) of the Autonomous Community of Galicia established the environmental impact statement provided for in Article 41 of Law 21/2013.
The competent authority granted the requested permits on June 30, 2022.
The High Court of Justice of Galicia (Spain), the referring court, is seized of an appeal brought by an association.
In its appeal, the association raises a ground for annulment based on the failure to properly submit the project, which was ultimately authorized, for public information, insofar as the legislation failed to provide for the submission of the reports required by Article 37 of Law 21/2013 to the applicants so that they could submit their comments. In this sense, the procedure allegedly violates the public information requirement set out in Article 6(3) of the EIA Directive.
The referring court considers, however, that the bodies which decide on applications for planning permission for projects with environmental effects are required, under Article 6 of the EIA Directive, to take three preliminary measures. The first two, the chronological order of which is not fixed, consist of giving the general public the opportunity to be heard on the project and collecting reports from the competent bodies in various fields. The third would come later and consist of communicating the main reports and opinions of those bodies to the public concerned so that the latter can submit comments before the final decision is adopted. Indeed, this court considers that the obligation imposed on Member States under Article 6(3) of the EIA Directive is clear, namely that they must ensure that these main reports are made available to the public concerned so that the latter can exercise the right, conferred on it by paragraph 4 of that article, to submit, within a period of at least 30 days, its observations and opinions before the adoption of the decision concerning the assessment of the effects of the project in question on the environment.
The said court considers that the reports referred to in Article 37(2) of Law 21/2013 fall within the expression “the main reports and opinions” in Article 6(3)(b) of the EIA Directive, since the content of those reports has a direct and significant effect on the assessment of the environmental impact of a project, as those reports provide valuable technical information produced by the authorities specialising in the areas referred to in Article 3 of that directive. Essential and relevant information for the purposes of assessing a project likely to have “significant environmental effects”, within the meaning of the EIA Directive, would derive, at the very least, from the content of the reports referred to in Article 37(2)(a) to (g) and (i) of Law 21/2013.
However, Law 21/2013 does not provide for any measure subsequent to the receipt of these reports that would offer the public concerned a genuine opportunity to participate in the assessment process. Article 37(5) of Law 21/2013 does not fill this gap, as it does not clearly identify the information referred to and provides for a mere « making available » of that information and does not provide for a genuine procedure for exercising the « empowerment to submit observations and opinions » granted to the public concerned by Article 6(4) of the EIA Directive.
Consequently, the referring court considers that Articles 36 to 38 of Law 21/2013 and Articles 33 and 34 of Law 8/2009 may not have correctly transposed the requirements of Article 6(3) of the EIA Directive.
In these circumstances, the Tribunal Superior de Justicia de Galicia (High Court of Justice of Galicia), by order of 10 September 2024, decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:
« 1) What is the meaning of the expression ‘main reports and opinions’ in Article 6(3) of the [EIA Directive]?
2) Should the reports referred to in Article 37(2) of Law 21/2013 be considered to be included in the ‘main reports and opinions’ referred to in Article 6(3) of the [EIA Directive]?
3) Do Articles 36 [to] 38 of [Law 21/2013] and Articles 33 and 34 of [Law 8/2009] contravene the requirement imposed by Article 6(3) of the [EIA Directive] to ensure that the main sectoral reports that have been produced are made available to the public concerned, with a view to enabling them to exercise their right under Article 6(4) to submit observations and opinions and to participate, within a period of at least 30 days, in the decision-making process relating to the application for authorisation before the decision in question is adopted?
For the Court, Article 6 of the EIA Directive provides, first of all, in paragraphs 2 and 3, that a set of information relating to projects subject to an environmental impact assessment must be, as the case may be, communicated to the public « at an early stage of the decision-making procedures […] and at the latest as soon as such information can reasonably be provided » or made available to the public concerned « within a reasonable time ». This article then states, in paragraph 4, that « at an early stage of the procedure, the public concerned shall be given effective opportunities to participate in the decision-making process […] and, to that end, shall be entitled to submit observations and opinions, where all options are open, to the competent authority or authorities before the decision on the application for consent is taken ». Finally, paragraph 7 of the said article provides that the period set for consulting the public concerned on the environmental impact assessment report referred to in Article 5(1) of the EIA Directive may not be less than 30 days.
For the Court, it follows from these provisions, first, that both the communication to the public or the making available to the public concerned of the information serving as a basis for public participation, in the assessment and consent process for projects subject to the EIA Directive, and the opportunity given to the public concerned to submit comments and opinions on that information and, more generally, on the project concerned and its environmental impacts, must take place at an early stage and, in any event, before a decision is taken. Furthermore, that participation must be effective, which implies that the public concerned must be able to express its views not only in a meaningful and comprehensive manner on the project concerned and its environmental impacts, but also at a time when all options are open to consideration.
As for the consultation of the authorities likely to be affected by the project, Article 6(1) of the EIA Directive does not specify at what stage of the assessment and consent process for projects subject to that directive those authorities must be consulted. This provision provides, on the contrary, that the procedures for this consultation are to be set by the Member States.
The timing of such consultation does not derive from any other provision. However, while Article 6(6) of the EIA Directive provides for the consultation of the relevant authorities and the public concerned, it does not indicate the order in which these consultations must take place. Such a clarification is not contained in Article 1 of the EIA Directive, nor, indeed, with regard to consultations to be carried out, where appropriate, in another Member State likely to be significantly affected by a project, in Article 7(3) of that directive.
Furthermore, for the Court, Article 6(2) and (3) of the EIA Directive does not mention, among the information to be communicated to the public or made available to the public concerned, the opinions formulated by the authorities.
Furthermore, Article 6(3), which refers to the making available to the public concerned of the « main reports and opinions addressed to the competent authority or authorities », also does not refer to Article 6(1) of that directive, but rather refers to the law of the Member States.
Finally, Article 6(3) limits the communication to the public of the main existing reports and opinions « to the time when the public concerned is informed ».
The Court concludes that it cannot be inferred from this provision that those opinions must, in all cases, form part of the information serving as a basis for consulting the public concerned, even if national legislation may so provide.
Therefore, the Court considers that it is open to Member States to carry out consultations with the authorities likely to be affected by the project, by reason of their specific environmental responsibilities or their local and regional powers, on the one hand, and with the public concerned, on the other, at the same time and without the public being able to submit its observations and opinions on the opinions to the authority competent to authorise the project.
Furthermore, it follows from recitals 31 to 33 of Directive 2014/52 that, by the amendments made to Article 5 and Annex IV to Directive 2011/92, the EU legislature has ensured that the data and information provided by the developer in that report are complete and of sufficiently high quality and that, to that end, the experts used to draw up environmental impact assessment reports for a project subject to the EIA Directive are qualified and competent.
It follows, for the Court, that, to the extent that the public concerned has, for the purposes of its consultation in the context of the process of assessment and authorisation of projects subject to the EIA Directive, all the information referred to in Article 6(2) and (3) of that directive and, above all, for at least 30 days, the environmental impact assessment report drawn up in accordance with the requirements of Article 5 of that directive and Annex IV thereto, the participation of the public concerned may be regarded as effective. On the other hand, it is not necessary, for that purpose, that the public concerned be, in every event, entitled to express its views, in the context of that consultation, also on the opinions formulated, under Article 6(1) of the EIA Directive, by the authorities referred to in that latter provision.
Finally, the Court considers that a contrary solution could prove excessively burdensome for the national administrations concerned and lengthen the procedure, which would not be compatible with the objective of an efficient decision-making process referred to in recital 36 of Directive 2014/52.
For these reasons, the Court considered that:
Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014, must be interpreted as not precluding legislation of a Member State under which, in the context of an environmental impact assessment procedure for a project subject to that directive, the authorities likely to be affected by that project, by reason of their specific environmental responsibilities or their local and regional powers, are consulted at the same time as the public concerned, without the latter subsequently being entitled to submit to the authority or authorities competent to authorize the project their observations and opinions on the opinions given in that context by the authorities consulted.
To access the Court’s decision, follow the link: https://curia.europa.eu/juris/document/document.jsf?text=&docid=303019&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=6165931.