It is for the national court to review whether the competent authorities correctly assessed, in accordance with the Directive, the significance of the effects of the project on the environment.
The aim of the Bolzano-St Jacob Airport restructuring project is to transform an airport, used since 1925/1926 for military purposes and for some private flying, into an airport which can be used commercially (for regular scheduled flights as well as for charter and cargo flights). The works and alterations envisaged are as follows: renewal of the existing runway, construction of access roads and car parks, construction of a control tower with air traffic control installations, construction of a departure building and of a hangar, the carrying out of the necessary connections and diversions and so forth, and extension of the runway (from 1 040 to 1 400 metres).
This restructuring of Bolzano Airport is part of the development plan approved by a Law of the Autonomous Province of Bolzano (Italy) which requires in particular that an environmental impact study be carried out. That study, which the developer entrusted to a team of experts, was drawn up in June 1996. In addition, various bodies including the agency responsible for the environment, were consulted, the municipalities concerned were informed and opinions were sought.
On that basis, the project was granted consent by a decision of the Government of the Autonomous Province of Bolzano dated 27 March 1997 and by a letter of the Landeshauptmann (Regional Prime Minister) of 11 April 1997. Citizens claiming to live near the airport, the World Wildlife Fund (WWF) and another environmental protection association have brought before the competent national court an action to have those two decisions set aside as illegal on the ground that the procedure followed to grant consent for the project was not in conformity with the requirements of the Community Directive on the assessment of the effects on the environment of certain public and private projects likely to have significant effects on the environment.
The procedure under which the contested measures were adopted, with the exception of the extension of the runway which remained unapproved, was not in fact that laid down by the Directive.
According to the local authorities, the Directive was not applicable to the project at issue.
The national court before which the matter was brought (Verwaltungsgericht, Autonome Sektion für die Provinz Bozen) considered that, by reason of its nature and size, and probably also by reason of its location in a hollow in the immediate vicinity of an industrial and a residential error, the project at issue could have a significant effect on the environment. Having doubts about the interpretation of the Community directive concerned, the national court decided to stay proceedings and to refer questions to the Court of Justice for a preliminary ruling.
In their observations the private individuals and the associations concerned explained that the Italian court referring the matter had, by another order, provisionally suspended the project on the ground that no environmental impact assessment had been carried out. That order was contested in an action brought by the local authorities and quashed by the Consiglio di Stato (Council of State) by judgment of 29 August 1997. The works at issue have been pursued since then.
The Court of Justice is bound by the questions referred to it by the national court. It cannot therefore respond to other requests made by the individuals and the associations concerned seeking to ascertain whether the Consiglio di Stato should or should not have upheld suspension of the works or to the questions concerning the practical consequences of any decision in that regard.
(1)Exclusion of certain classes of projects from the outset and in their entirety:
The national court considered that Law No 27/92 of the Autonomous Province of Bolzano did not subject the extension and restructuring of airports whose runway is shorter than 2 100 metres to an environmental impact assessment since no threshold was set for airport projects. That court was not sure whether the Community Directive confers on a Member State the power to exclude, from the outset and in their entirety, from the environmental impact assessment procedure certain classes of projects, including modifications to them (such as projects for the restructuring of an airport whose runway is shorter than 2 100 metres), even if they have significant effects on the environment.
In its judgment, the Court observes that the Directive confers on the Member States a measure of discretion to specify certain types of projects which will 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 that projects likely, by virtue inter alia of their nature, size or location, to have significant effects on the environment must be made subject to an impact assessment.
Since the scope of the Directive is wide and its purpose very broad, the Court held that the Directive also covered "modifications to development projects".
(2)Exclusion of a specific project:
The second issue raised by the national court was whether, taking into account the fact that an airport is the only airport in the local region that can be restructured, the Directive nevertheless confers on a Member State the power to exclude from the assessment procedure a specific project as not being likely to have significant effects on the environment, either under national legislation or on the basis of an individual examination of the project.
In its judgment the Court observes that, given the measure of discretion left to the Member States, the Directive does not lay down the methods to which the Member States may have recourse in order to determine which of the projects are to be subject to an assessment within the meaning of the Directive. However, whatever the method adopted, the method must not undermine the objective of the Directive, which is that no project likely to have significant effects on the environment should be exempt from assessment.
The Court explains that it is for the national court to review whether, on the basis of the individual examination carried out by the competent authorities which resulted in the exclusion of the specific project in question from the assessment procedure established by the Directive, those authorities correctly assessed the significance of the effects of that project on the environment.
(3)Use of an alternative assessment procedure:
The national court had doubts as to whether the consent procedure laid down in Italian Law No 27/92 was appropriate for fully identifying the effects of the project on the environment. It stated that neither noise nor the effects on the atmosphere were investigated, as the Directive requires, and that the public did not participate in that procedure, contrary to the provisions of the Directive. The national court asked whether, in the case of a project requiring assessment under the Directive, the Directive allows a Member State to use an assessment procedure other than the procedure introduced by the Directive.
In answer to that question the Court has replied that the Directive allows a Member State to use an assessment procedure other than the procedure it introduces where that alternative procedure is incorporated in a national procedure which exists or is to be established. However, an alternative procedure of that kind must satisfy the requirements of the Directive, including public participation.
(4)Exclusion of projects adopted in detail by a specific national legislative act:
The Directive provides that it is not to apply "to projects the details of which are adopted by a specific act of national legislation, since the objectives of the Directive, including that of supplying information, are achieved through the legislative process". The national court asked whether the Directive also applied to a project, such as that in question, which, while provided for by a legislative provision setting out a programme, had received development consent under a separate administrative procedure.
In its judgment the Court explains that the details of a project cannot be considered to be adopted by a Law, for the purposes of the Directive, if the Law does not include the elements necessary to assess the environmental impact of the project but refers to a study to be carried out in the future and if the adoption of the measures are needed in order for the developer to be entitled to proceed with the project. Consequently a project such as that in question, does fall within the scope of the Directive.
(5)Exclusion of projects for national defence purposes:
The Directive provides that it does not cover projects serving national defence purposes. The national court asked whether that provision of the Directive was to be interpreted as meaning that an airport which may simultaneously serve both civil and military purposes, but whose main use is commercial, falls within the scope of the Directive.
This exception to the general rule laid down by the Directive that environmental effects are to be assessed in advance must, according to the Court, be interpreted restrictively. Consequently, only projects which mainly serve national defence purposes may be excluded from the assessment obligation.
(6)Consequences of a Member State's authorities' exceeding the discretion conferred by the Directive
The national court asked whether, where the discretion conferred by the Directive had been exceeded by the legislative or administrative authorities of a Member State, individuals may rely on the Directive before a court of that Member State against the national authorities and thus obtain from the latter the setting aside of the national rules or measures incompatible with the Directive.
In answer to that question the Court, in its judgment, replies that the Directive is to be interpreted as meaning that, where the discretion conferred by the Directive has been exceeded by the legislative or administrative authorities of a Member State, individuals may rely on the Directive before a court of that Member State against the national authorities and thus obtain from the latter the setting aside of the national rules or measures incompatible with the Directive. In such a case, it is for the authorities of the Member State to take, according to their relevant powers, all the general or particular measures necessary to ensure that projects 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 to an impact assessment.
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