On 9 September 2020 the Court of Justice (CJEU) rendered judgment on a preliminary reference from the Irish High Court in a case brought by an environmental NGO, Friends of the Irish Environment. The judgement, which follows the Advocate General’s opinion (see our analysis here), clarified the obligations of Member State authorities under Article 6(3) of the Habitats Directive (92/43) in regard to temporal extensions of construction permits.
The case concerned the temporal extension of a permit granted by the Irish Planning Board, An Bord Pleanála, for the construction of a gas terminal in the vicinity of two Natura 2000 sites. The original permit was granted in 2008 for ten years, pursuant to national legislation which did not transpose the Habitats Directive properly. Moreover, the original permit was not preceded by an assessment of its implications for the site in accordance with Article 6(3) of the Habitats Directive. Since the works had not started by the time of the expiration of the original permit, in 2018 An Bord adopted a second decision extending the permit by a further five-year period. However, this permit was issued again without carrying out an appropriate assessment under Article 6(3) of the Habitats Directive. As a result, Friends of the Irish Environment challenged the extension permit before the Irish High Court, which referred several questions to the CJEU.
Two stages of the assessment procedure
Article 6(3) of the Habitats Directive states that, ”any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.”
As the CJEU has noted, the abovementioned assessment procedure consists of two stages:
- The appropriate assessment – the first stage requires Member States to carry out an appropriate assessment of the implications of a plan or project for a protected site when there is a likelihood that there will be a significant effect on the site.
- ”Agreement” to the plan or project – the second stage happens only if the appropriate assessment results in a conclusion that it will not adversely affect the integrity of the site concerned.
In order to determine whether the assessment procedure required by Article 6(3) of the Habitats Directive should have been conducted in this case, the Court assessed whether a decision extending the period set in the original construction permit relates to a “project” within the meaning of Article 6 (3) of the Habitats Directive.
Subsequently, it examined whether the decision on temporal extension of the permit can be considered as a decision to achieve a so-called “single operation” which would not trigger the assessment procedure under Article 6(3).
Finally, the Court assessed whether the decision to extend a period originally set in the construction permit constitutes an “agreement” within the meaning of Article 6(3).
Is a decision to temporarily extend the permit a “project” under Article 6(3) of the Habitats Directive?
Since the definition of a “project” under Article 6(3) of the Habitat Directive is not very precise, the Court referred to the definition of the term under the EIA Directive. According to the CJEU case law, the term “project” in Article 1(2)(a) of the EIA Directive refers to work or interventions involving alterations to the physical aspect of the site.
The decision to extend a period originally set for the construction of a liquefied natural gas regasification terminal, for which works have not started, falls under this definition and must therefore be regarded as relating to a ‘project’ within the meaning of the EIA Directive.
Furthermore, since the definition of the concept of ‘project’ under the EIA Directive is more restrictive than that under the Habitats Directive, the Court held that, if an activity is regarded as a ‘project’ within the meaning of the EIA Directive, it may constitute a ‘project’ within the meaning of the Habitats Directive. The decision on temporal extension of the construction permit must therefore also be regarded as relating to a ‘project’ within the meaning of Article 6(3) of the Habitats Directive and as such it triggers the appropriate assessment procedure.
The CJEU also followed the Advocate General Opinion on whether the extension of the permit might be considered as a “single operation”, which describes a situation when certain activities fall within one and the same project for the purposes of Article 6(3) and therefore are exempt from a new assessment procedure. The CJEU confirmed that this was not the case here as the decision on extension of the permit was not a renewal of the permit for a recurrent activity, but it allowed the execution of a project to start. Therefore, the Court found that the question of whether the original permit was subject to the requirements of Article 6(3) of the Habitats Directive was irrelevant, as the decision on temporal extension requires its own assessment procedure.
Is a decision to temporarily extend the permit an “agreement” under Article 6(3) of the Habitats Directive?
Although the Habitats Directive does not define how the authorities “agree” to a given project under Article 6(3), the Court held that the term “development consent” defined in Article 1(2)(c) of the EIA Directive, is relevant. Since the original permit granted had expired, any new decision extending the permit for another period was in fact a new permit and constituted a new “development consent” under the EIA Directive. Consequently, it also constituted an “agreement” under Article 6(3) of the Habitats Directive, which at the same time means it should have been preceded by the first stage of the appropriate assessment procedure required by Article 6(3) (the screening exercise).
The standard of the appropriate assessment
Answering the question of the Irish High Court about the scope of the screening exercise (i.e. the decision as to whether an appropriate assessment is required because the plan or project is likely to have a significant effect on the site), the Court repeated the opinion of the Advocate General on this matter.
The Court held that it is for the national authority to decide whether an appropriate assessment must be carried out and whether it should relate to the entire project or part thereof. However, the CJEU has set out specific criteria, which significantly limits its margin of discretion.
In this regard the Court recalled its previous case law stating that an appropriate assessment of a project’s implications must be carried out where it cannot be ruled out, having regard to the best scientific knowledge in the field, that the plan or project might affect the conservation objectives of the site.
An appropriate assessment must identify all of the aspects of the plan or project which can affect the conservation objectives of that site and the national authority can only authorise it if there is no reasonable doubt from a scientific point of view as to the absence of such effects.
In the context of a temporal extension, this means that a previous assessment, carried out before the original consent for the project was granted, cannot rule out that risk unless a) it contains full, precise and definitive conclusions capable of removing all reasonable scientific doubt as to the effects of the works; and b) there are no changes in the relevant environmental and scientific data, no changes to the project and no other plans or projects.
The judgment confirms that Article 6(3) of the Habitats Directive can be triggered by a temporal extension to a construction permit and clarifies the Member States’ obligations, not only on national authorities issuing decisions, but also on national courts reviewing such decisions. The assessment procedure which emerges from the judgment is particularly useful for the following reasons.
First, the Court’s clarification that a national authority must assess whether the original permit (and not a subsequent temporal extension to it) refers to a “project” within a meaning of the EIA directive may have a positive impact in jurisdictions where the authorities are prone to skipping the appropriate assessment on the basis that a temporal extension does not relate to a “project” within the meaning of the Habitats Directive.
Second, the judgment confirms that the obligation to conduct an appropriate assessment procedure under Article 6(3) of the Habitats Directive does not apply to activities that can be considered as a “single operation”. In this case it was crucial that the construction works had not started before the permit expired and the liquefied natural gas regasification terminal was not yet in operation. This is a welcome clarification that will hopefully avoid such claims by public authorities and investors in future.
Finally, the judgment formulates specific criteria for the screen exercise and the appropriate assessment itself, which may significantly improve the procedural situation of the public concerned. Currently, when a national authority refuses to carry out an appropriate assessment, the burden of proof is often on the public concerned to show that the permit extension in question is likely to significantly affect the protected site. The CJEU judgment ensures that the burden of proof is on the national authority to show that it carried out a screening exercise capable of demonstrating that the appropriate assessment was not required.