Brussels, 22/03/2013 (Agence Europe) - In case C244.12 on 21 March 2013, the European Court of Justice ruled that the Austrian law on the environmental impact of public contracts, a law transposing EU Directive 85/337/EEC does not comply with EU rules. For changes to airports, this law requires an envirinmental assessment only for projects likely to increase the number of air traffic movements by at least 20,000 per year, but the EU directive requires such an assessment of any project likely to have an impact on the environment.
The Court of Justice was asked by the Supreme Austrian Administrative Court, to which a dispute had been sent, between the operator of Salzburg Airport, Salzburger Flughafen, which wanted to extend a new terminal in 2004 after the terminal was completed in 2002 without any prior environmental impact assessment, and Umweltsenat, the body responsible in Austria for environmental matters. The administrative court said that neither of the projects individually would have led to an increase in the number of air traffic movements by 20,000 a year as set by the Austrian rules, but that together, they were likely to have a considerable impact on the environment, thus making an assessment necessary. Salzburger Flughafen took the matter to the administrative court, which asked the Court of Justice whether the Austrian law complied with the EU directive.
In its ruling, the Court of Justice points out that, under the EU directive, the member states are required to make all projects which could have significant effects on the environment subject to an environmental impact assessment. However, the member states retain their discretion as regards carrying out an environmental assessment of a change or extension to a project already authorised. Their decision in that regard must nonetheless be based on a case-by-case examination or on thresholds or criteria which they have established.
The threshold set in the Austrian law is incompatible with the general obligation laid down in the EU directive because, in practice, it removes the obligation for an environmental impact assessment for small and medium-sized airports that are likely to have a considerable impact on the environment. Moreover, by setting such a threshold, the Austrian law only takes account of quantitative aspects of a project, ignoring the other criteria laid down by the directive, like population density in the area (the airport is close to the city of Salzburg).
The Court also notes that, in accordance with the case-law, it can be necessary to take account of the cumulative effect of a number of projects in order to avoid a circumvention of the objective of the EU legislation by the splitting of projects which, taken together, are likely to have significant effects on the environment.
The Court of Justice ruled finally that when a member state sets a threshold likely to exempt entire types of projects from the assessment requirement, the country's government should decide for each individuul case whether an impact assessment is required, and if so, it must arrange the assessment. (FG/transl.fl)