Commission v Italy

Environmental Impact Assessment

The European Court of Justice has found Italy to have failed in a number of its obligations under the Environmental Impact Assessments Directive 85/337/EEC.

The Court held that the concept of ‘disposal of waste’ for the purposes of the Directive was an independent concept, to be given a meaning that fully satisfies the objective pursued by the measure under the Directive that before consent to proceed with development is given, projects likely to have significant effects on the environment by virtue of their nature, size or location should be made subject to an assessment with regard to their effects.

The concept is to be construed in a wide sense as covering all operations that lead either to waste disposal or to waste recovery. As a result, the Massafra waste recovery plant in Italy should have undergone the environmental impact assessment procedure, and in exempting the Massafra installation from this procedure, Italy failed in its obligations under Articles 2 (1) and 4 (1) of the Directive.

In adopting the legislation that allows projects for the recovery of waste with a capacity in excess of 100 tonnes per day covered by Annex I to the Directive to avoid environmental impact assessment procedure provided for in the Directive, Italy failed in its obligations under the Directive.

The Court stated that Member States may establish criteria and thresholds necessary to determine which of the projects covered by Annex II to the Directive are to be subject to an assessment, with the proviso that they must subject projects likely to have significant effects on the environment, particularly by virtue of their size, nature or location, to an assessment.

Article 4 (3) of the Directive states that Member States must take into account, when setting such thresholds and criteria, the relevant selection criteria set out in Annex III to the Directive. This distinguishes the characteristics of projects, the location of projects and the potential significant effects of projects.

By excluding projects for waste recovery installations from the environmental impact assessment, which must take place before the delivery of the decision of the competent authority that entitles the developer to proceed with the project, the Italian legislation was found not to have taken into account all of the selection criteria laid down in Annex III to the Directive.

In adopting this legislation, which lays down criteria that is inappropriate in the sense that it may exclude projects that have a significant effect on the environment from the environmental impact assessment, Italy failed to fulfil its obligations under Articles 2 (1), 4 (2), and (3) of the Directive.

The text of the case is available by following the link.

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