Case C‑244/12

Salzburger Flughafen GmbH

v

Umweltsenat

(Request for a preliminary ruling from the Verwaltungsgerichtshof)

(Assessment of the effects of certain projects on the environment — Directive 85/337/EEC — Articles 2(1) and 4(2) — Projects listed in Annex II — Extension works to the infrastructure of an airport — Examination on the basis of thresholds or criteria — Article 4(3) — Selection criteria — Annex III, point 2(g) — Densely populated areas)

Summary — Judgment of the Court (Fifth Chamber), 21 March 2013

1.        Environment — Assessment of the effects of certain projects on the environment — Directive 85/337– Discretionary power of the Member States as regards the carrying out of an environment assessment of any change or extension of projects already authorised, executed or in the process of being executed relating to airports — Scope and limits — Works to modify the infrastructure of an existing airport, without extension of the runway and without affecting the existing structure — Within the scope — Establishing criteria and thresholds at a level which, in practice, exempts an entire class of projects from the obligation of an environmental impact assessment — Incompatibility with the directive

(Council Directive 85/337, as amended by Directive 97/11, Arts 2(1) and 4(2)(b) and (3), and Annexes II and III, para. 2(g))

2.        Environment — Assessment of the effects of certain projects on the environment — Directive 85/337 — Change or extension of projects already authorised, executed or in the process of being executed relating to airports — Taking into consideration of the effects of the project cumulatively with those of projects already authorised and executed, with a view to an overall assessment of the effects on the environment of the projects at issue — Determination by the national court

(Council Directive 85/337, as amended by Directive 97/11, Arts 2(1) and 4(2), and (3), and Annexes II and III)

3.        Environment — Assessment of the effects of certain projects on the environment — Directive 85/337 — Works to modify the infrastructure of an existing airport — Establishment of a threshold likely to exempt entire types of projects from an environmental assessment — Incompatibility with the directive — Obligation on national authorities to carry out the assessment before authorisation — Direct effect — Repercussions on the rights of third parties — No effect

(Council Directive 85/337, as amended by Directive 97/11, Arts 2(1) and 4(2)(a) and (b) and (3), and Annexes II and III)

1.        Articles 2(1) and 4(2)(b) and (3) of Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directive 97/11, preclude national legislation which makes projects which change the infrastructure of an airport and fall within the scope of Annex II to that directive subject to an environmental impact assessment only if those projects are likely to increase the number of aircraft movements by at least 20 000 per year.

A Member State which establishes criteria and/or thresholds at a level such that, in practice, all projects (relating to a particular class) would be exempted in advance from the requirement of an impact assessment exceeds the limits of its discretion under Articles 2(1) and 4(2) of Directive 85/337, unless all projects excluded could, when viewed on the basis of a global assessment, be regarded as not being likely to have significant effects on the environment.

By establishing such a threshold, the national legislation concerned takes into consideration only the quantitative aspect of the consequences of a project, without taking account of the other selection criteria in Annex III to that directive, particularly that laid down in point 2(g) of that annex, namely the population density of the area affected by the project.

(see paras 27-35, 38, operative part 1)

2.        See the text of the decision.

(see paras 36, 37)

3.        When a Member State, pursuant to Article 4(2)(b) of Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directive 97/11, with regard to projects falling within the scope of Annex II thereto, establishes a threshold which is incompatible with the obligations laid down in Articles 2(1) and 4(3) of that directive, the provisions of Articles 2(1) and 4(2)(a) and (3) of the directive have direct effect, which means that the competent national authorities must ensure that it is first examined whether the projects concerned are likely to have significant effects on the environment and, if so, that an assessment of those effects is then undertaken.

(see paras 43-48, operative part 2)