JUDGMENT OF THE COURT (Sixth Chamber)

16 September 1999 (1)

(Environment — Directive 85/337/EEC — Assessment of the effects of certainpublic and private projects)

In Case C-435/97,

REFERENCE to the Court under Article 177 of the EC Treaty (now Article 234EC) by the Verwaltungsgericht, Autonome Sektion für die Provinz Bozen, Italy, fora preliminary ruling in the proceedings pending before that court between

World Wildlife Fund (WWF) and Others

and

Autonome Provinz Bozen and Others

on the interpretation of Council Directive 85/337/EEC of 27 June 1985 on theassessment of the effects of certain public and private projects on the environment(OJ 1985 L 175, p. 40),

THE COURT (Sixth Chamber),

composed of: P.J.G. Kapteyn, President of the Chamber, M. Murray andH. Ragnemalm (Rapporteur), Judges,

Advocate General: J. Mischo,

Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

—    the World Wildlife Fund (WWF) and Others, by W. Wielander, of theBolzano Bar,

—     Autonome Provinz Bozen, by H. Heiss and R. von Guggenberg, of theBolzano Bar,

—     Südtiroler Transportstrukturen AG, by C. Baur, of the Bolzano Bar, andS. Weber, Rechtsanwalt, Vienna,

—     Airport Bolzano-Bozen AG, by P. Platter, of the Bolzano Bar,

—     the Italian Government, by Professor U. Leanza, Head of the LegalDepartment of the Ministry of Foreign Affairs, acting as Agent, assisted byP.G. Ferri, Avvocato dello Stato,

—     the Netherlands Government, by M.A. Fierstra, Deputy Legal Adviser in theMinistry of Foreign Affairs, acting as Agent,

—     the United Kingdom Government, by J.E. Collins, Assistant TreasurySolicitor, acting as Agent, and D. Wyatt QC, and

—     the Commission of the European Communities, by G. zur Hausen, LegalAdviser, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of the World Wildlife Fund (WWF) and otherapplicants, Autonome Provinz Bozen, Südtiroler Transportstrukturen AG, AirportBolzano-Bozen AG, the Italian Government, the United Kingdom Government andthe Commission at the hearing on 18 March 1999,

after hearing the Opinion of the Advocate General at the sitting on 29 April 1999,

gives the following

Judgment

1.

    By order of 3 December 1997, received at the Court on 24 December 1997, theVerwaltungsgericht, Autonome Sektion für die Provinz Bozen (Administrative

Court, Autonomous Division for the Province of Bolzano) referred to the Court fora preliminary ruling under Article 177 of the EC Treaty (now Article 234 EC) sixquestions on the interpretation of Council Directive 85/337/EEC of 27 June 1985on the assessment of the effects of certain public and private projects on theenvironment (OJ 1985 L 175, p. 40; hereinafter 'the Directive‘).

2.

    Those questions have been raised in proceedings brought before the national courtby the applicants, who are persons claiming to live near Bolzano-St Jacob Airportand two environmental associations, to have Decision No 1230 of 27 March 1997of the Government of the Autonomous Province of Bolzano and a letter of theLandeshauptmann (Regional Prime Minister) of 11 April 1997, which approved aproject for the restructuring of that airport, set aside.

3.

    It is apparent from the order for reference that the purpose of the project is totransform an airfield, which since 1925/26 has been used for military purposes, forprivate flying and, during a certain period and to a limited extent, also for civilpurposes, into an airport which can be used commercially, with the aim of havingregular scheduled flights as well as charter and cargo flights.

4.

    The works and alterations envisaged are essentially the following: renewal of theexisting runway, construction of access roads and car parks, construction of acontrol tower with air traffic control installations, construction of a departurebuilding and of a hangar, the carrying out of the necessary connections anddiversions and so forth, and extension of the runway from 1 040 to 1 400 metres. It is not in dispute that, at the date of the order for reference, the extension hadnot yet been approved because the local development plan had to be altered first.

5.

    This restructuring of Bolzano Airport was provided for in the regional developmentplan approved by Law No 3 of the Autonomous Province of Bolzano of 18 January1995 (hereinafter 'Law No 3/95‘), which required, in particular, that anenvironmental impact study be carried out. That study, which the developer,Südtiroler Transportstrukturen AG, entrusted to a team of experts, was drawn upin June 1996. In addition, various bodies, including the agency responsible for theenvironment, were consulted, the municipalities concerned were informed andopinions were sought.

6.

    In particular, following one of those requests for an opinion, the project wasconsidered by the Amtsdirektorenkonferenz (Regional Directors' Conference)which issued an opinion under the procedure referred to by the national court as'simplified environmental assessment‘, provided for by Articles 11, 12 and 13 ofLaw No 27 of the Autonomous Province of Bolzano of 7 July 1992 introducing anenvironmental impact assessment procedure (B.V. Ordinary Supplement,28 July 1992, No 31; hereinafter 'Law No 27/92‘). However, it is common groundthat the procedure under which the contested measures were adopted, with the

exception of the extension of the runway which remained unapproved, was not thatlaid down by the Directive.

Legislation

The Directive

7.

    The Directive, as provided in Article 1(1) thereof, applies to the assessment of theenvironmental effects of public and private projects which are likely to havesignificant effects on the environment.

8.

    Article 1(2) defines 'project‘ as:

'—    the execution of construction works or of other installations or schemes,

—    other interventions in the natural surroundings and landscape includingthose involving the extraction of mineral resources‘.

9.

    Article 1(4) and (5) respectively provide that the Directive does not cover 'projectsserving national defence purposes‘ and that it is not to apply 'to projects thedetails of which are adopted by a specific act of national legislation, since theobjectives of [the] Directive, including that of supplying information, are achievedthrough the legislative process‘.

10.

    Article 2(1) of the Directive provides: 'Member States shall adopt all measuresnecessary to ensure that, before consent is given, projects likely to have significanteffects on the environment by virtue, inter alia, of their nature, size or location aremade subject to an assessment with regard to their effects. These projects aredefined in Article 4.‘

11.

    Article 4 distinguishes between two types of projects.

12.

    Article 4(1) provides that, subject to Article 2(3), projects of the classes listed inAnnex I are to be made subject to an assessment in accordance with Articles 5to 10. The projects covered by Article 4(1) include the 'construction of ... airportswith a basic runway length of 2 100 m or more‘, referred to in point 7 of Annex I.

13.

    So far as concerns other types of projects, Article 4(2) states:

'Projects of the classes listed in Annex II shall be made subject to an assessment,in accordance with Articles 5 to 10, where Member States consider that theircharacteristics so require.

To this end Member States may inter alia specify certain types of projects as beingsubject to an assessment or may establish the criteria and/or thresholds necessary

to determine which of the projects of the classes listed in Annex II are to besubject to an assessment in accordance with Articles 5 to 10.‘

14.

    As for the projects caught by Article 4(2), point 10(d) of Annex II refers to'Construction of ... airfields (projects not listed in Annex I)‘ and point 12 of AnnexII refers to modifications to development projects in Annex I.

15.

    Articles 5 to 9 of the Directive, to which Article 4 refers, essentially provide asfollows: Article 5 specifies the minimum information to be provided by thedeveloper, Article 6 imposes, in particular, an obligation on the developer to informthe authorities and the public, Article 8 requires the competent authorities to takeinto consideration the information gathered in the course of the assessmentprocedure and Article 9 imposes a duty on the competent authorities to inform thepublic of the decision adopted and any conditions attached to it.

Law No 27/92

16.

    Law No 27/92 contains two annexes, Annex I and Annex II, which list variousprojects and, in conjunction with the main body of the Law, lay down the conditionsin which those projects are subject to the environmental impact assessmentprocedure.

17.

    As regards airports, paragraph 11(e) of Annex II to Law No 27/92 makes allprojects for the new construction of airports subject to such assessment.

18.

    On the other hand, the extension or alteration of existing airports, like all otherprojects comprising extensions or alterations, falls within Article 2(2) of LawNo 27/92, which requires an environmental impact assessment for projectsexceeding the thresholds referred to in Annex II by more than 20% and forprojects required to be assessed under Annex I of that Law.

19.

    Annex II of Law No 27/92 does not set a threshold for airport projects while, underAnnex I, an assessment is required only for airports with a runway length of 2 100metres or more.

Proceedings before the national court

20.

    The applicants in the main proceedings have challenged before the national courtthe legality of the contested measures on the ground that the procedure followedfor approving the project is not in conformity with the requirements of theDirective. According to them, since the project is likely, by virtue of its nature, sizeand location, to have significant effects on the environment, it falls withinArticle 2(1) of the Directive and should have been made subject to the assessment

procedure under Article 4(2) thereof in conjunction with Annex II and not to amere 'environmental impact study‘ followed by an examination of the project bythe Amtsdirektorenkonferenz, which do not meet the Directive requirements.

21.

    According to the respondents in the main proceedings, on the other hand, theDirective is inapplicable to the project at issue for three fundamental reasons.

22.

    First, it is merely a small-scale project to improve an airport, which does not havea significant effect on the environment because it is designed to improve air trafficand remedy the environmental harm caused by that traffic; furthermore, theextension of the runway from 1 040 to 1 400 metres remained unapproved.

23.

    Next, the project is not subject to environmental impact assessment under theDirective because, as is apparent from the provisions of Law No 27/92, it fallswithin the projects included in Annex II to the Directive which, in accordance withArticle 4(2) thereof, are to be made subject to the assessment procedure underArticles 5 to 10 where Member States consider that their characteristics so require;it follows that Law No 27/92, which was adopted within the limits of the discretionallowed to the Member States by Article 4(2) of the Directive, is in conformity withthe latter provision.

24.

    Finally, since the project serves both civil and military purposes and Law No 3/95,approving the regional development plan, makes provision for it, the exceptionsrespectively set out in Article 1(4) and (5) of the Directive apply.

25.

    The applicants in the main proceedings have challenged those arguments. Theycontend that, by allowing the national authorities not to subject to an impactassessment a project likely to have significant effects on the environment, Law No27/92 is not in conformity with the Directive and should be disapplied in favour ofthe relevant provisions of the latter.

26.

    In its order for reference, the national court found that, inasmuch as the project atissue related to an airport with a runway shorter than 2 100 metres, it fell withinthe projects set out in Annex II to the Directive and was covered by Article 4(2);also, by virtue of Article 2(2) of Law No 27/92, the extension or restructuring ofairports with a runway shorter than 2 100 metres was not made subject to anenvironmental impact assessment by that Law since no threshold was set for airportprojects. Nevertheless, the project at issue, by reason of its nature and size, andprobably also by reason of its location in a hollow in the immediate vicinity of anindustrial and a residential area, could have a significant effect on the environment.

27.

    Having regard to its findings of fact and the conclusions which it drew therefrom,to the arguments of the parties and to the relevant Community and nationallegislation, the Verwaltungsgericht, Autonome Sektion für die Provinz Bozen, wasuncertain as to the interpretation of the Directive. It therefore decided to stayproceedings and to submit the following questions for a preliminary ruling:

'(1)    Is Article 4(2) of Directive 85/337/EEC to be interpreted as meaning:

    (a)    that certain classes of the projects listed in Annex II may from theoutset, in the absolute discretion of the Member States, be excludedin their entirety from the obligation to carry out an environmentalassessment; or

    (b)    that the margin of discretion enjoyed by the Member States is limitedby the obligation laid down in Article 2(1) of the Directive to subjectto an environmental assessment in any event those projects likely tohave significant effects on the environment, by virtue inter alia of theirnature, size or location?

    (c)    Does Article 4(2) of the Directive, in conjunction with Article 2(1)thereof, allow a Member State to specify (or not to specify) types ofproject or criteria and/or thresholds so that the restructuring of anairport with a runway shorter than 2 100 metres is excluded fromenvironmental assessment from the outset although it isenvironmentally significant, or is the margin of discretion which theMember State enjoys under Article 4(2) of the Directive (if (b) isanswered in the affirmative) thereby exceeded?

(2)    Is Article 4(2) of the Directive, in conjunction with Article 2(1), to beinterpreted as meaning that the obligation to carry out an environmentalassessment also applies to the extension and restructuring of the projects inAnnex II if significant effects on the environment are likely, or doArticles 4(2) and 2(1) allow environmentally significant projects comprisingrestructuring to be excluded, expressly or impliedly (for example, by ruleswhich are not applicable to airports), from environmental assessment fromthe outset?

(3)    To what extent does Article 2(1) of the Directive, also in conjunction withArticle 2(2), allow the Member States to introduce (or use) alternativeassessment procedures to that of an ordinary environmental assessment andif a positive answer is given to this question:

    (a)    what essential requirements or minimum requirements must such anassessment satisfy in order to accord with the objectives of theDirective and, in particular,

    (b)    is the participation of the public within the meaning of Article 6 ofthe Directive an essential requirement of an environmentalassessment?

(4)    May Article 1(5) of Directive 85/337 be interpreted as also covering projectswhich, while provided for in a legislative provision which sets out aprogramme, are approved under a separate administrative procedure?

    What minimum environmental requirements must the ”legislative process”contain in order to achieve the ”objectives ... including that of supplyinginformation” pursued by the Directive?

(5)    Is the exclusion of projects from the scope of the Directive pursuant toArticle 1(4) to be applied to an airfield used for both civil and militarypurposes?

    Could the applicable criterion be the predominant use or is it sufficient forthe exclusion to apply that the airfield is also used for military purposes?

(6)    If the Directive has been incorrectly transposed, is Article 4(2) thereof, inconjunction with Article 2(1), vertically directly effective (self-executing) inthe sense that the authorities of the Member State are required to subjectthe projects at issue to an environmental assessment?‘

Preliminary issues

28.

    In their observations to the Court, the applicants in the main proceedings state thatthe national court, by a further order determining their ancillary application forinterim measures, suspended the project at issue on the ground that noenvironmental impact assessment had been carried out; that order was contestedin an action brought by the respondents and quashed by the Consiglio di Stato(Council of State) by judgment No 1411/97 of 29 August 1997, with the result thatthe works at issue have been pursued since then. The applicants ask the Court torule, first, on the question whether the suspension of operation of the contestedmeasure on which, according to them, the national court had validly decided in thepresent case, should have been upheld by the Consiglio di Stato and, second,should the Court consider that an environmental impact assessment was necessary,on the practical consequences of its own decision.

29.

    In response to those requests it is sufficient to state that the national court has notsubmitted any question in that regard and that there is therefore no need toconsider them (see Case 5/72 Grassi v Italian Finance Administration [1972] ECR443, paragraph 4, and Case C-196/89 Nespoli and Crippa [1990] ECR I-3647,paragraph 23).

30.

    One of the respondents in the main proceedings, Airport Bolzano-Bozen AG,disputes a number of facts set out by the national court in its order for reference. Relying on national law, it also challenges the jurisdiction of that court to

adjudicate on the merits of the case, on the ground that its jurisdiction is limitedto questions of law.

31.

    So far as concerns the contesting of certain facts by Airport Bolzano-Bozen AG,it should be remembered that Article 177 of the Treaty is based on a clearseparation of functions between the national courts and the Court of Justice, sothat, when ruling on the interpretation or validity of Community provisions, thelatter is empowered to do so only on the basis of the facts which the national courtputs before it (see Case C-30/93 AC-ATEL Electronics Vertriebs v HauptzollamtMünchen-Mitte [1994] ECR I-2305, paragraph 16, and Case C-326/96 Levez v T.H.Jennings (Harlow Pools) [1998] ECR I-7835, paragraph 25).

32.

    It is not for the Court of Justice but for the national court to ascertain the factswhich have given rise to the dispute and to establish the consequences which theyhave for the judgment which it is required to deliver (see Case 17/81 Pabst &Richarz v Hauptzollamt Oldenburg [1982] ECR 1331, paragraph 12, AC-ATELElectronics Vertriebs, cited above, paragraph 17, and Levez, cited above, paragraph26).

33.

    As regards the challenge to the jurisdiction of the referring court made on the basisof national law, it is not for the Court of Justice, in view of the distribution offunctions between itself and the national courts, to determine whether the decisionwhereby a matter is brought before it has been taken in accordance with the rulesof national law governing the organisation of the courts and their procedure (seeJoined Cases C-332/92, C-333/92 and C-335/92 Eurico Italia and Others v EnteNazional Risi [1994] ECR I-711, paragraph 13).

The first and second questions

34.

    By its first and second questions, which should be considered together, the nationalcourt essentially raises two issues.

35.

    The first is whether Articles 4(2) and 2(1) of the Directive are to be interpreted asconferring on a Member State the power to exclude, from the outset and in theirentirety, from the environmental impact assessment procedure established by theDirective certain classes of projects falling within Annex II to the Directive,including modifications to those projects, such as projects for the restructuring ofan airport whose runway is shorter than 2 100 metres, even if they have significanteffects on the environment.

36.

    In that regard, the second subparagraph of Article 4(2) of the Directive confers onMember States a measure of discretion to specify certain types of projects whichwill be subject to an assessment or to establish the criteria or thresholds applicable. However, the limits of that discretion are to be found in the obligation set out in

Article 2(1) that projects likely, by virtue inter alia of their nature, size or location,to have significant effects on the environment are to be subject to an impactassessment (see Case C-72/95 Kraaijeveld and Others v Gedeputeerde Staten vanZuid-Holland [1996] ECR I-5403, paragraph 50, and Case C-301/95 Commission vGermany [1998] ECR I-6135, paragraph 45).

37.

    Thus, ruling on legislation of a Member State under which certain entire classes ofprojects listed in Annex II to the Directive were excluded from the assessmentobligation, the Court held, in Case C-133/94 Commission v Belgium [1996] ECRI-2323, at paragraph 42, that the criteria and/or thresholds mentioned inArticle 4(2) of the Directive are designed to facilitate examination of the actualcharacteristics of any given project in order to determine whether it is subject tothe requirement to carry out an assessment, and not to exempt in advance fromthat obligation certain whole classes of projects listed in Annex II which may beenvisaged on the territory of a Member State.

38.

    The Court also held in paragraph 53 of its judgment in Kraaijeveld, cited above,that a Member State which established criteria or thresholds at a level such that,in practice, an entire class of projects would be exempted in advance from therequirement of an impact assessment would exceed the limits of its discretion underArticles 2(1) and 4(2) of the Directive unless all projects excluded could, whenviewed as a whole, be regarded as not being likely to have significant effects on theenvironment.

39.

    As regards modifications to such projects, the Court found in paragraph 40 of itsjudgment in Kraaijeveld that the mere fact that the Directive did not expressly referto modifications to projects included in Annex II, as opposed to modifications toprojects included in Annex I, did not justify the conclusion that they were notcovered by the Directive.

40.

    Thus, observing that the scope of the Directive was wide and its purpose verybroad, the Court held that the Directive covered 'modifications to developmentprojects‘ even in relation to projects falling within Annex II, on the ground that itspurpose would be undermined if 'modifications to development projects‘ were soconstrued as to enable certain works to escape the requirement of an impactassessment when, by reason of their nature, size or location, they were likely tohave significant effects on the environment (Kraaijeveld, paragraph 39).

41.

    The second issue raised by the national court is whether, taking into account thefact that an airport is the only airport in the region in which it is located that canbe restructured, Articles 4(2) and 2(1) of the Directive nevertheless confer on aMember State the power to exclude from the assessment procedure established bythe Directive a specific project such as that in issue in the main proceedings as notbeing likely to have significant effects on the environment, either under nationallegislation, in the present case Law No 27/92, or on the basis of an individualexamination of the project.

42.

    The second subparagraph of Article 4(2) of the Directive provides that '... MemberStates may inter alia specify certain types of projects as being subject to anassessment or may establish the criteria and/or thresholds necessary to determinewhich of the projects of the classes listed in Annex II are to be subject to anassessment in accordance with Articles 5 to 10‘. That provision thus mentions, byway of indication, methods to which the Member States may have recourse whendetermining which of the projects falling within Annex II are to be subject to anassessment within the meaning of the Directive.

43.

    Consequently, the Directive confers a measure of discretion on the Member Statesand does not therefore prevent them from using other methods to specify theprojects requiring an environmental impact assessment under the Directive. Sothe Directive in no way excludes the method consisting in the designation, on thebasis of an individual examination of each project concerned or pursuant tonational legislation, of a particular project falling within Annex II to the Directiveas not being subject to the procedure for assessing its environmental effects.

44.

    However, the fact that the Member State has the discretion referred to in theprevious paragraph is not in itself sufficient to exclude a given project from theassessment procedure under the Directive. If that were not the case, the discretionaccorded to the Member States by Article 4(2) of the Directive could be used bythem to take a particular project outside the assessment obligation when, by virtueof its nature, size or location, it could have significant environmental effects.

45.

    Consequently, whatever the method adopted by a Member State to determinewhether or not a specific project needs to be assessed, be it by legislativedesignation or following an individual examination of the project, the methodadopted must not undermine the objective of the Directive, which is that no projectlikely to have significant effects on the environment, within the meaning of theDirective, should be exempt from assessment, unless the specific project excludedcould, on the basis of a comprehensive assessment, be regarded as not being likelyto have such effects.

46.

    It should be added, with regard to the exclusion of the project at issue in the mainproceedings from the assessment procedure under Law No 27/92, that, even if thatproject concerns the only airport in the province which can be restructured and ithas actually been specified by the legislature, the latter cannot in any event exemptthe project from the assessment obligation unless, on the date when Law No 27/92was adopted, it was able to assess precisely the overall environmental impact whichall the works entailed by the project were likely to have.

47.

    As for the exclusion of the project on the basis of an individual examination carriedout by the national authorities, the file shows that the contested measures werepreceded by an environmental impact study carried out by a team of experts, thatinformation was communicated to the municipalities concerned and that the public

was informed by press notices. In addition, the environmental agency and theAmtsdirektorenkonferenz were consulted.

48.

    It is for the national court to review whether, on the basis of the individualexamination carried out by the competent authorities which resulted in theexclusion of the specific project at issue in the main proceedings from theassessment procedure established by the Directive, those authorities correctlyassessed, in accordance with the Directive, the significance of the effects of thatproject on the environment.

49.

    In view of the foregoing considerations, the answer to the first and secondquestions must be that Articles 4(2) and 2(1) of the Directive are to be interpretedas not conferring on a Member State the power either to exclude, from the outsetand in their entirety, from the environmental impact assessment procedureestablished by the Directive certain classes of projects falling within Annex II to theDirective, including modifications to those projects, or to exempt from such aprocedure a specific project, such as the project of restructuring an airport with arunway shorter than 2 100 metres, either under national legislation or on the basisof an individual examination of that project, unless those classes of projects in theirentirety or the specific project could be regarded, on the basis of a comprehensiveassessment, as not being likely to have significant effects on the environment. Itis for the national court to review whether, on the basis of the individualexamination carried out by the national authorities which resulted in the exclusionof the specific project at issue from the assessment procedure established by theDirective, those authorities correctly assessed, in accordance with the Directive, thesignificance of the effects of that project on the environment.

The third question

50.

    By its third question, the national court asks essentially whether, in the case of aproject requiring assessment under the Directive, Article 2(1) and (2) thereof areto be interpreted as allowing a Member State to use an assessment procedure otherthan the procedure introduced by the Directive and whether, where that alternativeprocedure is incorporated in a national procedure which exists or is to beestablished within the meaning of Article 2(2), it must satisfy the requirements ofArticles 3 and 5 to 10 of the Directive, including public participation as providedfor in Article 6.

51.

    In its order for reference the national court explains that it has doubts as towhether the consent procedure laid down in Articles 11, 12 and 13 of Law No27/92 is appropriate for fully identifying the effects of the project on theenvironment. It states that neither noise nor the effects on the atmosphere wereinvestigated, as Article 3 of the Directive requires, and that the public did notparticipate in that procedure, contrary to Article 6 of the Directive.

52.

    In that regard, Article 2(2) of the Directive provides: 'The environmental impactassessment may be integrated into the existing procedures for consent to projectsin the Member States, or, failing this, into other procedures or into procedures tobe established to comply with the aims of [the] Directive.‘ It is therefore clearfrom that provision that the Directive does not prevent the assessment procedurewhich it introduces from being incorporated in a national procedure which existsor is to be established, provided that the aims of the Directive are met.

53.

    However, where a project requires assessment within the meaning of the Directive,a Member State cannot, without undermining the Directive's objective, use analternative procedure, even one incorporated in a national procedure which existsor is to be established, to exempt that project from the requirements laid down inArticles 3 and 5 to 10 of the Directive.

54.

    The answer to third question must therefore be that, in the case of a projectrequiring assessment under the Directive, Article 2(1) and (2) thereof are to beinterpreted as allowing a Member State to use an assessment procedure other thanthe procedure introduced by the Directive where that alternative procedure isincorporated in a national procedure which exists or is to be established within themeaning of Article 2(2). However, an alternative procedure of that kind mustsatisfy the requirements of Articles 3 and 5 to 10 of the Directive, including publicparticipation as provided for in Article 6.

The fourth question

55.

    By its fourth question, the national court asks essentially whether Article 1(5) of theDirective is to be interpreted as also applying to a project, such as that at issue inthe main proceedings, which, while provided for by a legislative provision settingout a programme, has received development consent under a separateadministrative procedure and, if so, what requirements such a provision and theprocess under which it has been adopted must satisfy in order that the objectivesof the Directive, including that of supplying information, can be regarded asachieved.

56.

    Article 1(5) provides that the Directive is not to apply 'to projects the details ofwhich are adopted by a specific act of national legislation, since the objectives of[the] Directive, including that of supplying information, are achieved through thelegislative process‘.

57.

    That provision accordingly exempts projects envisaged by the Directive from theassessment procedure subject to two conditions. The first requires the details ofthe project to be adopted by a specific legislative act; under the second, theobjectives of the Directive, including that of supplying information, must beachieved through the legislative process.

58.

    With regard to the first condition, it is to be observed that Article 1(2) of theDirective refers not to legislative acts but to development consent, which it definesas 'the decision of the competent authority or authorities which entitles thedeveloper to proceed with the project‘. Therefore, if it is a legislative act, insteadof a decision of the competent authorities, which grants the developer the right tocarry out the project, that act must be specific and display the same characteristicsas the development consent specified in Article 1(2) of the Directive.

59.

    Consequently, in order for a legislative act to display the same characteristics asdevelopment consent, as defined by Article 1 of the Directive, the act must laydown the project in detail, that is to say in a sufficiently precise and definitivemanner so as to include, like development consent, following their considerationby the legislature, all the elements of the project relevant to the environmentalimpact assessment.

60.

    It is only by complying with such requirements that the objectives referred to in thesecond condition laid down by Article 1(5) can be achieved through the legislativeprocess. If the specific legislative act by which a particular project is adopted, andtherefore authorised, does not include the elements of the specific project whichmay be relevant to the assessment of its impact on the environment, the objectivesof the Directive would be undermined, because a project could be granted consentwithout prior assessment of its environmental effects even though they might besignificant.

61.

    That interpretation is borne out by the sixth recital in the preamble to theDirective, which states that development consent for public and private projectswhich are likely to have significant effects on the environment should be grantedonly after prior assessment of the likely significant environmental effects of thoseprojects, and that this assessment must be conducted on the basis of theappropriate information supplied by the developer, which may be supplemented bythe authorities and by the people who may be concerned by the project.

62.

    It follows that the details of a project cannot be considered to be adopted by aLaw, for the purposes of Article 1(5) of the Directive, if the Law does not includethe elements necessary to assess the environmental impact of the project but, onthe contrary, requires a study to be carried out for that purpose, which must bedrawn up subsequently, and if the adoption of other measures are needed in orderfor the developer to be entitled to proceed with the project.

63.

    The answer to the fourth question must therefore be that Article 1(5) of theDirective is to be interpreted as not applying to a project, such as that at issue inthe main proceedings, which, while provided for by a legislative provision settingout a programme, has received development consent under a separateadministrative procedure. The requirements which such a provision and theprocess under which it has been adopted must satisfy in order that the objectivesof the Directive, including that of supplying information, can be regarded as

achieved consist in the adoption of the project by a specific legislative act whichincludes all the elements which may be relevant to the assessment of the impact ofthe project on the environment.

The fifth question

64.

    By its fifth question, the national court asks whether Article 1(4) of the Directiveis to be interpreted as meaning that an airport which may simultaneously serveboth civil and military purposes, but whose main use is commercial, falls within thescope of the Directive.

65.

    The Directive, as stated in Article 1(4), does not cover 'projects serving nationaldefence purposes‘. That provision thus excludes from the Directive's scope and,therefore, from the assessment procedure for which it provides, projects intendedto safeguard national defence. Such an exclusion introduces an exception to thegeneral rule laid down by the Directive that environmental effects are to beassessed in advance and it must accordingly be interpreted restrictively. Onlyprojects which mainly serve national defence purposes may therefore be excludedfrom the assessment obligation.

66.

    It follows that the Directive covers projects, such as that at issue in the mainproceedings which, as the file shows, has the principal objective of restructuring anairport in order for it to be capable of commercial use, even though it may also beused for military purposes.

67.

    Accordingly, the answer to the fifth question must be that Article 1(4) of theDirective is to be interpreted as meaning that an airport which may simultaneouslyserve both civil and military purposes, but whose main use is commercial, fallswithin the scope of the Directive.

The sixth question

68.

    By its sixth question, the national court is essentially asking whether Articles 4(2)and 2(1) of the Directive are to be interpreted as meaning that, where thediscretion conferred by those provisions has been exceeded by the legislative oradministrative authorities of a Member State, individuals may rely on thoseprovisions before a court of that Member State against the national authorities andthus obtain from the latter the setting aside of the national rules or measuresincompatible with those provisions. In such a case, the national court is askingwhether it is for the authorities of the Member State to take, according to theirrelevant powers, all the general or particular measures necessary to ensure thatprojects are examined in order to determine whether they are likely to have

significant effects on the environment and, if so, to ensure that they are subject toan impact assessment.

69.

    As regards the right of individuals to rely on a directive and of the national courtto take it into consideration, the Court has already held that it would beincompatible with the binding effect conferred on directives by Article 189 of theEC Treaty (now Article 249 EC) for the possibility for those concerned to rely onthe obligation which directives impose to be excluded in principle. Particularlywhere the Community authorities have, by directive, imposed on Member Statesthe obligation to pursue a particular course of conduct, the effectiveness of such anact would be diminished if individuals were prevented from relying on it in legalproceedings and if national courts were prevented from taking it into considerationas a matter of Community law in determining whether the national legislature, inexercising its choice as to the form and methods for implementing the directive,had kept within the limits of its discretion set out in the directive (Case 51/76Verbond van Nederlandse Ondernemingen v Inspecteur der Invoerrechten en Accijnzen[1977] ECR 113, paragraphs 22, 23 and 24, and Kraaijeveld, cited above,paragraph 56).

70.

    Consequently, if that discretion has been exceeded and the national provisions musttherefore be set aside on that account, it is for the authorities of the Member State,according to their relevant powers, to take all the general or particular measuresnecessary to ensure that projects are examined in order to determine whether theyare likely to have significant effects on the environment and, if so, to ensure thatthey are subject to an impact assessment (see Kraaijeveld, paragraph 61).

71.

    The answer to the sixth question must therefore be that Articles 4(2) and 2(1) ofthe Directive are to be interpreted as meaning that, where the discretion conferredby those provisions has been exceeded by the legislative or administrativeauthorities of a Member State, individuals may rely on those provisions before acourt of that Member State against the national authorities and thus obtain fromthe latter the setting aside of the national rules or measures incompatible withthose provisions. In such a case, it is for the authorities of the Member State totake, according to their relevant powers, all the general or particular measuresnecessary to ensure that projects are examined in order to determine whether theyare likely to have significant effects on the environment and, if so, to ensure thatthey are subject to an impact assessment.

Costs

72.

    The costs incurred by the Italian, Netherlands and United Kingdom Governmentsand by the Commission, which have submitted observations to the Court, are notrecoverable. Since these proceedings are, for the parties to the main proceedings,a step in the action pending before the national court, the decision on costs is amatter for that court.

On those grounds,

THE COURT (Sixth Chamber),

in answer to the questions referred to it by the Verwaltungsgericht, AutonomeSektion für die Provinz Bozen, by order of 3 December 1997, hereby rules:

1.    Articles 4(2) and 2(1) of Council Directive 85/337/EEC of 27 June 1985 onthe assessment of the effects of certain public and private projects on theenvironment are to be interpreted as not conferring on a Member State thepower either to exclude, from the outset and in their entirety, from theenvironmental impact assessment procedure established by the Directivecertain classes of projects falling within Annex II to the Directive, includingmodifications to those projects, or to exempt from such a procedure aspecific project, such as the project of restructuring an airport with arunway shorter than 2 100 metres, either under national legislation or onthe basis of an individual examination of that project, unless those classesof projects in their entirety or the specific project could be regarded, on thebasis of a comprehensive assessment, as not being likely to have significanteffects on the environment. It is for the national court to review whether,on the basis of the individual examination carried out by the nationalauthorities which resulted in the exclusion of the specific project at issuefrom the assessment procedure established by the Directive, thoseauthorities correctly assessed, in accordance with the Directive, thesignificance of the effects of that project on the environment.

2.    In the case of a project requiring assessment under Directive 85/337,Article 2(1) and (2) thereof are to be interpreted as allowing a MemberState to use an assessment procedure other than the procedure introducedby the Directive where that alternative procedure is incorporated in anational procedure which exists or is to be established within the meaningof Article 2(2) of the Directive. However, an alternative procedure of thatkind must satisfy the requirements of Article 3 and Articles 5 to 10 of theDirective, including public participation as provided for in Article 6.

3.    Article 1(5) of Directive 85/337 is to be interpreted as not applying to aproject, such as that at issue in the main proceedings, which, whileprovided for by a legislative provision setting out a programme, hasreceived development consent under a separate administrative procedure. The requirements which such a provision and the process under which ithas been adopted must satisfy in order that the objectives of the Directive,including that of supplying information, can be regarded as achievedconsist in the adoption of the project by a specific legislative act which

includes all the elements which may be relevant to the assessment of theimpact of the project on the environment.

4.    Article 1(4) of Directive 85/337 is to be interpreted as meaning that anairport which may simultaneously serve both civil and military purposes,but whose main use is commercial, falls within the scope of the Directive.

5.    Articles 4(2) and 2(1) of Directive 85/337 are to be interpreted as meaningthat, where the discretion conferred by those provisions has been exceededby the legislative or administrative authorities of a Member State,individuals may rely on those provisions before a court of that MemberState against the national authorities and thus obtain from the latter thesetting aside of the national rules or measures incompatible with thoseprovisions. In such a case, it is for the authorities of the Member State totake, according to their relevant powers, all the general or particularmeasures necessary to ensure that projects are examined in order todetermine whether they are likely to have significant effects on theenvironment and, if so, to ensure that they are subject to an impactassessment.

KapteynMurray Ragnemalm

Delivered in open court in Luxembourg on 16 September 1999.

R. Grass

P.J.G. Kapteyn

Registrar

President of the Sixth Chamber

1: Language of the case: German.