Eu:C:2018:640 1 Judgment of 7
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Report s of C ases JUDGMENT OF THE COURT (Eighth Chamber) 7 August 2018 * (Reference for a preliminary ruling — Environment — Directive 2011/92/EU — Assessment of the effects of certain projects on the environment — Annex II — Point 1(d) — Concept of ‘deforestation for the purposes of conversion to another type of land use’ — Clearance of a path in a forest in connection with the construction and operation of an overhead electrical power line) In Case C-329/17, REQUEST for a preliminary ruling under Article 267 TFEU from the Verwaltungsgerichtshof (Supreme Administrative Court, Austria), made by decision of 19 May 2017, received at the Court on 1 June 2017, in the proceedings Gerhard Prenninger, Karl Helmberger, Franziska Zimmer, Franz Scharinger, Norbert Pühringer, Agrargemeinschaft Pettenbach, Marktgemeinde Vorchdorf, Marktgemeinde Pettenbach, Gemeinde Steinbach am Ziehberg v Oberösterreichische Landesregierung, intervener: Netz Oberösterreich GmbH, THE COURT (Eighth Chamber), composed of J. Malenovský, President of the Chamber, M. Safjan and D. Šváby (Rapporteur), Judges, * Language of the case: German. EN ECLI:EU:C:2018:640 1 JUDGMENT OF 7. 8. 2018 — CASE C-329/17 PRENNINGER AND OTHERS Advocate General: P. Mengozzi, Registrar: A. Calot Escobar, having regard to the written procedure, after considering the observations submitted on behalf of: – Mr Prenninger and Others, by W. List, Rechtsanwalt, – Netz Oberösterreich GmbH, by H. Kraemmer and M. Mendel, Rechtsanwälte, – the Austrian Government, by G. Eberhard, acting as Agent, – the European Commission, by A.C. Becker and C. Zadra, acting as Agents, having decided, after hearing the Advocate General, to proceed to judgment without an Opinion, gives the following Judgment 1 This request for a preliminary ruling concerns the interpretation of Article 4(2) of and Annex II to 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 (OJ 2012 L 26, p. 1) (‘the EIA Directive’). 2 The request has been made in proceedings between Mr Gerhard Prenninger and eight other applicants, on the one hand, and the Oberösterreichische Landesregierung (Government of the Province of Upper Austria), on the other, concerning the question whether the project for the construction of the ‘110 kV-Leitung Vorchdorf-Steinfeld-Kirchdorf’ overhead electrical power line should be subject to a prior assessment of its effects on the environment. Legal context EU law 3 Recitals 3, 7, 9 and 11 of the EIA Directive are worded as follows: ‘(3) The principles of the assessment of environmental effects should be harmonised, in particular with reference to the projects which should be subject to assessment, the main obligations of the developers and the content of the assessment. The Member States may lay down stricter rules to protect the environment. … (7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. That assessment should be conducted on the basis of the appropriate information supplied by the developer, which may be supplemented by the authorities and by the public likely to be concerned by the project in question. 2 ECLI:EU:C:2018:640 JUDGMENT OF 7. 8. 2018 — CASE C-329/17 PRENNINGER AND OTHERS … (9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment. … (11) When setting such thresholds or criteria or examining projects on a case-by-case basis, for the purpose of determining which projects should be subject to assessment on the basis of their significant environmental effects, Member States should take account of the relevant selection criteria set out in this Directive. In accordance with the subsidiarity principle, the Member States are in the best position to apply those criteria in specific instances.’ 4 Article 1(1) of the EIA Directive provides: ‘This Directive shall apply to the assessment of the environmental effects of those public and private projects which are likely to have significant effects on the environment.’ 5 Article 2(1) of the EIA Directive states: ‘Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects. These projects are defined in Article 4.’ 6 Article 4(2) of the EIA Directive provides: ‘Subject to Article 2(4), for projects listed in Annex II, Member States shall determine whether the project shall be made subject to an assessment in accordance with Articles 5 to 10. Member States shall make that determination through: (a) a case-by-case examination; or (b) thresholds or criteria set by the Member State. Member States may decide to apply both procedures referred to in (a) and (b).’ 7 Annex II to the directive lists the ‘Projects subject to Article 4(2)’. Point 1 of that annex, which relates to projects in the field of agriculture, silviculture and aquaculture, includes under subheading (d) projects concerning ‘Initial afforestation and deforestation for the purposes of conversion to another type of land use’. National law 8 Paragraph 3 of the Umweltverträglichkeitsprüfungsgesetz 2000 — UVP-G 2000 (Federal Law on environmental impact assessments 2000 — UPV-G 2000) (BGBl. 697/1993), as published in BGBl. I, 4/2016 concerns the subject matter of the environmental impact assessment. It establishes the principle that the projects listed in Annex 1 to that law are to be made subject to that assessment and sets out the procedure and the conditions to be complied with in that regard. ECLI:EU:C:2018:640 3 JUDGMENT OF 7. 8. 2018 — CASE C-329/17 PRENNINGER AND OTHERS 9 Annex 1 to that law is worded as follows: ‘This Annex contains the projects which, pursuant to Paragraph 3, shall be subject to an [environmental impact assessment]. Columns 1 and 2 show projects which shall be subject in all cases to an [environmental impact assessment] and in respect of which [such an assessment procedure] (column 1) or a simplified procedure (column 2) must be carried out. … Column 3 contains those projects that must be subject to an [environmental impact assessment] only if certain specific conditions are met. Above the minimum threshold indicated, those projects must be subject to a case-by-case examination. If that examination gives rise to an obligation [to carry out an environmental impact assessment], the simplified procedure should then be carried out. Point 46 (a) conversion to arable land … l4a) over an area of at least 20 ha; … 10 The Forstgesetz 1975 (Federal Law on forestry) of 3 July 1975 (BGBl. 440/1975), as published in BGBl. I, 56/2016, includes Paragraph 13, entitled ‘Reforestation’, which provides: ‘… (10) In so far as the existence of a power line precludes along its route the full development of height growth and in so far as an exceptional authorisation has been granted pursuant to Paragraph 81(1)(b), the proprietor of the power line must ensure the reforestation of the area of the route in good time after each felling.’ 11 Paragraph 17 of that law, entitled ‘Conversion to arable land’, states: ‘(1) Use of the forest floor for purposes other than forestry (conversion to arable land) is prohibited. …’ 12 Section VI of that law, relating to ‘use of forests’, contains Paragraph 81, entitled ‘Exceptional authorisation’, which provides: ‘(1) Upon request, the authority shall grant derogations from the prohibition referred to in Paragraph 80(1), where … (b) the clearance of a path is necessary for the purpose of the construction of a power supply system and for the duration of its lawful existence, …’ 4 ECLI:EU:C:2018:640 JUDGMENT OF 7. 8. 2018 — CASE C-329/17 PRENNINGER AND OTHERS The dispute in the main proceedings and the question referred for a preliminary ruling 13 By letter of 29 March 2016, the electricity grid operator Netz Oberösterreich GmbH requested the Government of the Province of Upper Austria to determine whether the project for the construction of the ‘110 kV-Leitung Vorchdorf-Steinfeld-Kirchdorf’ overhead electrical power line presented by it should be subject to an environmental impact assessment. 14 By decision of 14 June 2016, that government decided that there was no need to carry out an environmental impact assessment for that project. 15 Mr Prenninger and eight other applicants appealed against that decision to the Bundesverwaltungsgericht (Federal Administrative Court, Austria), which dismissed that appeal as unfounded. 16 That court found, first, that the project at issue consisted in the construction of an electrical power line with a total length of 23.482 km, the construction of a new electrical substation and the expansion of an existing electrical substation. 17 Secondly, it distinguished the area of the forest to be ‘converted to arable land’ covering an area of 0.4362 ha from the area in which the clearance of the path should take place — that is to say, the area on which trees that lie beneath power lines would have to be felled in order to guarantee a minimum safe distance from electrical cables — covering an area of 17.82 ha. 18 Thirdly, the Bundesverwaltungsgericht (Federal Administrative Court) considered that such a clearance could not be classified as ‘conversion to arable land’ within the meaning of national law, on the ground that that classification presupposes that the forest floor concerned ceases to be used for the purposes of forestry.