Consultant: CMDC Joint Venture EIA appeals EU legislation and jurisprudence Jan Veeken.

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Presentation transcript:

Consultant: CMDC Joint Venture EIA appeals EU legislation and jurisprudence Jan Veeken

Consultant: CMDC Joint Venture 2 Contents - Place of Directives in national legislation - Types of legal questions - Steps towards the European Court of Justice - Applicants at the European Court of Justice - Jurisprudence of the European Court of Justice

Consultant: CMDC Joint Venture 3 Place of Directives in national legislation EIA Directives obligatorily transposed in national legislation, but: Member States can specify… Consequence: national differences in the obligation to follow EIA, ‘legal risks’ Therefore: -EU and national legislation have to be placed side by side -In case of doubt or inconsistencies EU Directives have priority -Jurisprudence relating to the Directives develops at the European Court of Justice, not by national courts

Consultant: CMDC Joint Venture 4 Types of legal questions European court cases are about: -transposing Directives timely -transposing Directives correctly -obligation for following EIA in specific cases The European court will judge: -as a court in the first instance (directly) -answering pre-judicial questions (interpretation questions) from national judges

Consultant: CMDC Joint Venture 5 Steps towards the European Court of Justice When the Court judges as a court in first instance, previous steps in the procedure can be: -appeal to the competent authority -appeal at a regional court of justice -appeal at a higher, national court of justice

Consultant: CMDC Joint Venture 6 Applicants at the European Court of Justice - European Commission - Member States, authorities - National judges Private entities cannot appeal to the European Court

Consultant: CMDC Joint Venture 7 Register of Complaints Everybody can complain and is getting a letter back (if complaint is concrete and verification is possible) Not a formal procedure but getting formalized Complaints: 50% nature, 25% evaluation of impacts, 10% waste and 10% air and water After complaint some research, not inspection, by EU, informing involved country Now mainly looking to the principles of directives and horizontal issues

Consultant: CMDC Joint Venture 8 Jurisprudence of the European Court of Justice Transposing Directives timely: - The obligation for EIA does not depend on transposing in national legislation of a Member State Case: Bund Naturschutz against Freistaat Bayern - Germany

Consultant: CMDC Joint Venture 9 Jurisprudence of the European Court of Justice Transposing Directives correctly: - Annex I of Council Directive 85/337/EEC has to be transposed in full into national law - Not only size and capacity provide the necessity of an EIA-procedure, but also the location of a project Cases: European Commission against Belgium, European Commission against Ireland

Consultant: CMDC Joint Venture 10 Jurisprudence of the European Court of Justice Transposing Directives correctly: - Projects in Annex II of CD 85/337/EEC have to be broadly interpreted - For projects in Annex II a preliminary environmental assessment is obligatory before excluding a project from the EIA procedure Cases: Kraaijeveld against Provincie Zuid Holland - Netherlands, World Wildlife Fund against Autonome Provinz Bozen - Italy

Consultant: CMDC Joint Venture 11 Jurisprudence of the European Court of Justice Scope: - Council Directive 85/337/EEC can extend over projects already permitted and/or started before the commencement of the Directive but not yet finished and/or continuous - CD 85/337/EEC also extends over projects that are cut in parts and phased in the future Cases: Wells against the Secretary of State for Transport – UK, European Commission against Spain

Consultant: CMDC Joint Venture 12 Newest Jurisprudence Verdict of September 16 th 2004 Railway Valencia-Tarrogona (Spain) (complain of may 1999, appeal of 7 june 2001) Not considered as an Annex II activity (pre-assessment procedure) by Spain Verdict by the Court: should follow the pre-assessment procedure