Bijlage zienswijze 11 InterpretationEIA-I-II T reduce uncertainty interpretation-scope geelgehigh

Its footnote (1) indicates that, for the purposes of the Directive, airport ‘means an airport which complies with the definition in the 1944 Chicago Convention setting up the International Civil Aviation Organisation (Annex 14)’. According to that Convention, the term aerodrome (airport) is ‘a defined area on land or water (including any buildings, installations and equipment) intended to be used either wholly or in part for the arrival, departure and surface movement of aircraft’. In Case C-2/07, Abraham and Others, the Court considered a question whether works relating to infrastructure of an existing airport whose runway is already more than 2 100 metres in length fall within the scope of Annex II(12), read in conjunction with 41

Case C-227/01, Commission v Spain, paragraph 59: ‘Moreover, it is indisputable that a project of this type is such as to create significant new nuisances, even if only as the result of the adaptation of the railway line with a view to traffic which can attain a speed of 220 km/h’.

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Annex I (7)(a)

Annex I(7), to the EIA Directive (in its original version). Annex I(7) to the Directive referred to the ‘construction […] of airports with a basic runway length of 2 100 m or more’. However, the Directive does not lay down any provisions concerning the extension of an airport, particularly where such an extension does not alter the size of the runway. In that connection, the proposed project was for the modification of the airport’s infrastructure, the construction of a control tower, new runway exits and aprons, and work to restructure and widen the runways without altering their length. Taking into account that such a project would have serious effects on the environment and that the requirement to carry out an EIA would be circumvented on the pretext that there was no alteration of the length of the runway, the Court, with an overall assessment criterion and with a view to ensuring the effectiveness of Directive 85/337/EEC, held that ‘works to modify an airport with a runway length of 2 100 metres or more thus comprise not only works to extend the runway, but all works relating to the buildings, installations or equipment of that airport where they may be regarded, in particular because of their nature, extent and characteristics, as a modification of the airport itself.

That is the case in particular for works aimed at significantly increasing the activity of the airport and air traffic’ (paragraph 36). The Court concluded that the competent authorities had to take account of the projected increase in the activity of an airport when examining the environmental effect of modification made to its infrastructure with a view to accommodating that increase in activity. This approach has been confirmed in subsequent judgments, noting that the relevant provisions of Annex II to the EIA Directive, read in conjunction with those of Annex I thereto, also encompass works to change the infrastructure of an existing airport (Case C-275/09, Brussels Hoofdstedelijk Gewest and Others, and Case C-244/12, Salzburger Flughafen). The case law shows the interpretation given by the Court to the provision of point 7(a) of Annex I with regard to ‘construction’. The Court has construed the expression ‘construction of airports’ broadly, taking into account works and physical interventions. The Court has stated that, in addition to works relating to airport runways, that concept encompasses ‘all works relating to the buildings, installations or equipment of an airport’ (Case C-2/07, Abraham and Others, paragraph 36).

However, the renewal of an existing permit to operate an airport cannot, in the absence of any works or interventions involving alterations to the physical aspects of the site, be classified as a ‘project’ or ‘construction’, respectively, within the meaning of those provisions (Case C-275/09, Brussels Hoofdstedelijk Gewest and Others). (b) Construction of motorways and express roads;

Annex I (7)(b)

A clear definition is provided in the EIA Directive for ‘express roads’. Footnote (2) indicates that for the purposes of that Directive, ‘express road’ means a road that complies with the definition in the European Agreement on Main International Traffic Arteries of 15 November 1975. According to that agreement, ‘an express road is a road reserved for motor traffic accessible only from interchanges or controlled 25

junctions and on which, in particular, stopping and parking are prohibited on the running carriageway(s)’.42 It does not follow from that definition that roads sited in urban areas would a priori be excluded. The above agreement also defines the concept of ‘motorway’ as inter alia a road specially designed and built for motor traffic, which does not serve properties bordering on it, does not cross at level with any road, railway or tramway track, or footpath, and is specially signposted as a motorway. In Case C-142/07, Ecologistas en Acción-CODA, the Court noted that since not all the Member States are parties to that agreement, this reference concerns the version of the agreement in force when Directive 85/337/EEC was adopted, that is the agreement of 15 November 1975 (paragraph 30). Following the case law and the objective of the EIA Directive, ‘urban’ road projects must be regarded as falling within the scope of the EIA Directive (Case C-142/07 Ecologistas en Acción-CODA, paragraph 31 to 37). Furthermore, in its judgment the Court has given a broad interpretation of the concept ‘construction’, accepting that works for the refurbishment of an existing road may be equivalent, due to their size and in the manner in which they are carried out, to the construction of a new road (Case C-142/07, Ecologistas en Acción-CODA paragraph 36).

(c) Construction of a new road of four or more lanes, or realignment and/or widening of an existing road of two lanes or less so as to provide four or more lanes, where such new road or realigned and/or widened section of road would be 10 km or more in continuous length. Annex I (8) (a) Inland waterways and ports for inland waterway traffic which permit the passage of vessels of over 1350 tonnes Annex I (8) (b) Trading ports, piers for loading and unloading connected to land and outside ports (excluding ferry piers) which can take vessels of over 1 350 tonnes.

42

According to this agreement, ‘motorway’ means a road specially designed and built for motor traffic, which does not serve properties bordering on it, and which: (i) is provided, except at special points or temporarily, with separate carriageways for the two directions of traffic, separated from each other by a dividing strip not intended for traffic or, exceptionally, by other means; (ii) does not cross at level with any road, railway or tramway track, or footpath; and (iii) is specially signposted as a motorway.

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Practice shows that Member States tend to include both inland and maritime ports under this project category. With regard to the capacity parameter (vessels of over 1350 tonnes) used in this definition, this could be taken as deadweight tonnage. This is the maximum weight a ship can carry, including goods, passengers, fuel, etc. shown by a line on the ship’s side that the water must not go past when it is floating in the water. Annex I (9)

Annex I (9)

Waste disposal installations for the incineration, chemical treatment (as defined in Annex I to Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste43 under heading D9), or landfill of hazardous waste, as defined in point 2 of Article 3 of that Directive. The Waste Framework Directive (Directive 2008/98/EC, WFD) aims ‘to protect the environment and human health by preventing or reducing the adverse impacts of the generation and management of waste and by reducing overall impacts of resource use and improving the efficiency of such use’ (Article 1). Directive 2008/98/EC repeals the previous Directive 2006/12 on waste and Directives 75/439/EEC and 91/689/EEC regarding waste oils and hazardous waste, respectively. The WFD applies from 12 December 2010 and introduces new provisions in order to boost waste prevention, re-use and recycling in line with the waste hierarchy (Article 4) and clarifies key concepts namely, the definitions of waste (Article 3(1)), recovery and disposal. It also lays down the appropriate procedures applicable to by-products (Article 5) and to waste that ceases to be waste (Article 6). A guidance document44 on key requirements of the WFD is available. The WFD defines ‘waste’ as ‘any substance or object which the holder discards or intends or is required to discard’ (Article 3(1)).

The WFD broadens the terms ‘recovery’ and ‘disposal’ so that they no longer rely simply on operations listed in an annex. ‘Recovery’ is defined in Article 3(15) as ‘any operation the principal result of which is waste serving a useful purpose by replacing other materials which would otherwise have been used to fulfil a particular function, or waste being prepared to fulfil that function, in the plant or in the wider economy’. Annex II to the WFD sets out a non-exhaustive list of recovery operations. This concept of recovery has been described as an ‘umbrella concept’ encompassing preparation for re-use, recycling and other recovery, e.g. energy recovery.

43

OJ L 312, 22.11.2008, p. 3.

44

http://ec.europa.eu/environment/waste/framework/pdf/guidance_doc.pdf.

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Annex I (9)

‘Disposal’ is defined in Article 3(19) of the WFD as ‘any operation which is not recovery even where the operation has as a secondary consequence the reclamation of substances or energy’. Annex I to the WFD sets out a non-exhaustive list of disposal operations. The concept of ‘treatment’ is also defined in Article 3(14) of the WFD as ‘recovery or disposal operations, including preparation prior to recovery or disposal’. One of the key aims of the WFD is to promote the better use of resources by encouraging the use of waste for beneficial purposes. To this end, in line with the waste hierarchy, recovery operations that result in waste being used in place of primary resources are to be encouraged over disposal operations that are intended to simply get rid of the waste safely. When deciding whether individual projects fall within this project category, reference can be made to definitions laid down in EU waste legislation provided that they are also explicitly referred to in the text of the EIA Directive (such as in the case of the terms ‘chemical treatment’ and ‘hazardous waste’). The general objective of the EIA Directive, i.e. that projects likely to have significant effects on the environment are made subject to an assessment of their effects, should be taken as a guiding principle to this effect.

It must be noted that for the purposes of the EIA Directive, the term ‘disposal’ is interpreted to include ‘recovery’. This was confirmed by the Court in Case C-486/04, Commission v Italy, where the Court ruled that ‘it must be held that the concept of waste disposal for the purpose of Directive 85/337 is an independent concept which must be given a meaning which fully satisfies the objective pursued by that measure […]. Accordingly, that concept, which is not equivalent to that of waste disposal for the purpose of Directive 75/442, must be construed in the wider sense as covering all operations leading either to waste disposal, in the strict sense of the term, or to waste recovery’ (paragraph 44). As a consequence, (a) installations for the incineration, and (b) installations for chemical treatment, as defined in D9 of Annex I to the WFD, are included in this project category even when they result in waste recovery. The WFD uses the term ‘incineration’ but does not define it.

Article 3(40) of the IED defines ‘waste incineration plant’ as ‘any stationary or mobile technical unit and equipment dedicated to the thermal treatment of waste, with or without recovery of the combustion heat generated, through the incineration by oxidation of waste as well as other thermal treatment processes such as pyrolysis, gasification or plasma processes, if the substances resulting from the treatment are subsequently incinerated’. Co-incineration is a type of incineration taking part in particular installations and thus it could be considered covered by the scope of the EIA Directive.

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Annex I (9)

As regards ‘chemical treatment’, the EIA Directive explicitly refers to the definition in Annex I to Directive 2008/98/EC on waste, under heading D9, i.e.: ‘Physico-chemical treatment not specified elsewhere in this Annex which results in final compounds or mixtures which are discarded by means of any of the operations numbered D1 to D12 (e.g. evaporation, drying, calcination, etc.)’. The Waste Framework Directive uses the term ‘landfill’ but does not define it. However, landfill is defined in Article 2(g) of Directive 1999/31/EC as ‘a waste disposal site for the deposit of waste onto or into land (i.e. underground), including: - internal waste disposal sites (i.e. landfill where a producer of waste is carrying out its own waste disposal at the place of production), and - a permanent site (i.e. more than one year) which is used for temporary storage of waste, but excluding: - facilities where waste is unloaded in order to permit its preparation for further transport for recovery, treatment or disposal elsewhere, and - storage of waste prior to recovery or treatment for a period less than three years as a general rule, or - storage of waste prior to disposal for a period less than one year’.

In defining hazardous waste, the EIA Directive refers to Article 3, point 2 of the Waste Framework Directive, providing that ‘hazardous waste’ means ‘waste which displays one or more of the hazardous properties listed in Annex III’ to the Waste Framework Directive. Annex I (10)

Annex I (10)

Waste disposal installations for the incineration or chemical treatment (as defined in Annex I to Directive 2008/98/EC under heading D9) of non-hazardous waste with a capacity exceeding 100 tonnes per day. For definitions of disposal, waste, chemical treatment and incineration, see the above section for Annex I (9). Annex I (11) Groundwater abstraction or artificial groundwater recharge schemes where the annual volume of water abstracted or recharged is equivalent to or exceeds 10 million cubic metres.

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Annex I (11)

When dealing with this project category, it may be useful to refer to the Water Framework Directive,45 which contains in its Article 2(2) a definition of ‘groundwater’ as meaning ‘all water which is below the surface of the ground in the saturation zone and in direct contact with the ground or subsoil’. Annex I (12) (a) Works for the transfer of water resources between river basins where this transfer aims at preventing possible shortages of water and where the amount of water transferred exceeds 100 million cubic metres/year; (b) In all other cases, works for the transfer of water resources between river basins where the multiannual average flow of the basin of abstraction exceeds 2 000 million cubic metres/year and where the amount of water transferred exceeds 5 % of this flow. In both cases, transfers of piped drinking water are excluded.

Annex I (12)

Article 2(13) of the Water Framework Directive defines the term ‘river basin’ as ‘the area of land from which all surface run-off flows through a sequence of streams, rivers and, possibly, lakes into the sea at a single river mouth, estuary or delta’. For the purposes of interpreting the term ‘river basin’, a strict reference to the definition provided in the Water Framework Directive would limit the scope and purpose of the EIA Directive in the light of relevant projects (Annex I, point 12, and Annex II, point 10 (m)). For instance, transfer of water resources other than river basins, e.g. sub-basins, could have significant effects on environment and thus be made subject to an assessment with regard to its effects. Annex I (13)

Annex I (13)

Wastewater treatment plants with a capacity exceeding 150 000 population equivalent as defined in Article 2, point (6) of Directive 91/271/EEC of 21 May 1991 concerning urban wastewater treatment Annex I (13) to the EIA Directive explicitly refers to the Urban Wastewater Treatment Directive46 as regards the definition of the threshold set by ‘population equivalents’ for wastewater treatment plants. According to Article 2(6) of the latter Directive, ‘population equivalent’ means ‘the organic biodegradable load having a five-day biochemical oxygen demand (BOD5) of 60 g of oxygen per day’.

45

Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, OJ L 327, 22.12.2000, p. 1. 46 Council Directive 91/271/EEC of 21 May 1991 concerning urban wastewater treatment, OJ L 135, 30.5.1991, p. 40.

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Annex I (14) Extraction of petroleum and natural gas for commercial purposes where the amount extracted exceeds 500 tonnes/day in the case of petroleum and 500 000 cubic metres/day in the case of gas.

Annex I (14)

Annex I, point 14 applies both to conventional and unconventional gas,47 inter alia shale gas activities, which exceed the relevant threshold. An EIA would be mandatory for projects falling within Annex I, point 14 that exceed the threshold. Projects that are below this threshold are listed in the EIA Directive under Annex II, point 2 (d) and (e). In Case C-531/13, Kornhuber and Others (paragraph 23-25) the Court concluded that it follows from the context and objective of Annex I, point 14, that the scope of that provision does not extend to exploratory drillings. In fact, that provision links the obligation to conduct an environmental impact assessment to the quantities of petroleum and natural gas earmarked for extraction. To that end, it provides for thresholds which must be exceeded on a daily basis, which indicates that it aims at projects of certain duration and which enable relatively large-scale quantities of hydrocarbons to be extracted. In addition, the Convention on the Environmental Impact Assessment in a Transboundary Context48 (Espoo Convention) lists, in its Appendix I, point 15, offshore hydrocarbon production. The Espoo Convention does not envisage any threshold for this project category.

Hence, if the offshore hydrocarbon production is likely to cause significant adverse transboundary impact, a transboundary environmental impact assessment shall be carried out. Annex I (15) Dams and other installations designed for the holding back or permanent storage of water, where a new or additional amount of water held back or stored exceeds 10 million cubic metres.

47

The term ‘unconventional’ refers primarily to the characteristics of the geological reservoirs or rock formations containing the hydrocarbons, which differ from conventional reservoirs. These unconventional formations often stretch over very large areas, are characterised by low energy content per rock volume and by low or very low permeability. The main types of unconventional fossil fuels are: tight gas, shale gas, coal bed methane, methane hydrates, tight oil, shale oil, oil shale and oil sands. [Source: Commission Staff Working Document Impact Assessment (SWD/2014/021 final) http://ec.europa.eu/environment/integration/energy/pdf/swd_2014_22_en.pdf]. 48 Council Decision of 27 June 1997 on the conclusion, on behalf of the Community, of the Convention on environmental impact assessment in a transboundary context (ESPOO Convention) (proposal OJ C 104, 24.4.1992, p. 5; decision not published).

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Annex I (16) Pipelines with a diameter of more than 800 mm and a length of more than 40 km: (a)

Annex I (16)

for the transport of gas, oil, chemicals;

(b) for the transport of carbon dioxide (CO2) streams for the purposes of geological storage, including associated booster stations. There are two thresholds set in this project category, i.e. diameter and length. The application of Annex I and consequently compulsory environmental impact assessment would be required when both are cumulatively met. Otherwise, Annex II (10) (i) would apply. Annex I (17) Installations for the intensive rearing of poultry or pigs with more than: (a)

85 000 places for broilers, 60 000 places for hens;

(b)

3 000 places for production pigs (over 30 kg); or

(c)

900 places for sows.

The EIA Directive does not define the terms used in Annex I (17). According to settled case law,49 the meaning and scope of terms for which European Union law provides no definition must be determined by considering their usual meaning in everyday language, while also taking into account the context in which they occur and the purposes of the rules of which they are part (see Case C-585/10, Møller, paragraph 25). Meanwhile, some of these terms have been defined in other EU Directives (e.g. IED50), and interpreted in several Court rulings referring to them. Annex I (17)

In Case C-585/10, Møller, the Court was asked whether the expression ‘places for sows’, within the context of Council Directive 96/61/EC of 24 September 1996 concerning Integrated Pollution Prevention and Control (the IPPC Directive, repealed by the IED), includes places for ‘gilts’ (female pigs which have already been serviced, but have not yet farrowed). The IPPC Directive contained no definition of sows; instead, these definitions were provided by another Directive51, which provided separate definitions for sows and gilts. The Court noted that, with regard to the usual 49

Case C-72/95 Kraaijeveld and Others, paragraph 38; Case C-549/07 Wallentin-Hermann, paragraph 17; and Case C-473/07 Association nationale pour la protection des eaux et rivières and OABA, paragraphs 23 and 24; Case C-585/10 Møller, paragraph 25. 50 Article 3(24) of the IED defines ‘poultry’ by referring to Article 2(1) of Council Directive 90/539/EEC of 15 October 1990 on animal health conditions governing intra-Community trade in, and imports from third countries of, poultry and hatching eggs, OJ L 303, 31.10.1990, p. 6. 51 Council Directive 91/630/EEC of 19 November 1991 laying down minimum standards for the protection of pigs (OJ 1991 L 340, p. 33).

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meaning of the term ‘sow’, it must be pointed out that this generally designates a female pig. To this end and regardless that some terms are defined in different directives, this cannot be regarded as allowing the usual meaning of that term to be undermined. Therefore the Court concluded that the expression ‘places for sows’, for the purpose of the IPPC Directive, and taking into account its broad purpose, must be interpreted as meaning that it includes places for gilts. The same reasoning could apply, mutatis mutandis, when interpreting the expression ‘places for sows’ in Annex I(17)(c) of the EIA Directive. In Case C-473/07, the Court ruled on the notion of ‘places’, under subheading 6.6(a) of Annex I to the IPPC Directive 96/61/EC.52 The Court acknowledged that the term ‘place’ is not defined by Directive 96/61/EC under subheading 2 of the introduction to Annex I to that Directive (same applies now under the IED, and subheading 1 of the introduction to Annex I of the IED). The Court states in its judgment that ‘[t]he threshold values given below generally refer to production capacities or outputs’ (paragraph 39). Indeed, the establishment of the authorisation threshold in accordance with a system of ‘animal equivalents’ is acceptable only if it is consistent with the objective of the IPPC Directive, i.e. prevention/reduction of pollution from certain installations.

Annex I (18) Industrial plants for the production of: (a)

pulp from timber or similar fibrous materials;

(b) paper and board with a production capacity exceeding 200 tonnes per day. Annex I (19) Quarries and opencast mining where the surface of the site exceeds 25 hectares, or peat extraction, where the surface of the site exceeds 150 hectares. Annex I (20) Construction of overhead electrical power lines with a voltage of 220 kV or more and a length of more than 15 km This project category refers to projects which thresholds' criteria have to be cumulatively met (i.e. 220 kV or more and a length of more than 15 km). Practice shows that certain project categories can fulfil only one of the two criteria, but not the other. In such circumstances, those projects would be considered under Annex II (3) (b) of the EIA Directive. 52

Now heading 6.6 Annex I of the IED.

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The provisions of point 20 of Annex I and section 3(b) of Annex II to the EIA Directive were interpreted in Case C-300/1353 Iberdrola Distribución Eléctrica. The Court held that a project that relates only to the extension of an electrical voltage transformer substation is not, as such, among the projects covered by those provisions, unless that extension is part of the construction of overhead electrical power lines, which it is for the national Court to ascertain.

Annex I (20)

In Case C-205/08, Alpe Adria the Court was asked to interpret Annex I (20) in the context of a transboundary project for construction of overhead electrical power lines with a voltage of 220 kV or more and a length of more than 15 km, where less than 15 km of it is located in the territory of the Member State referring to the Court. In practice, the project concerned the construction of a 220 kV electrical power line with a nominal power rating of 300 MVA and a length of 48.4 km. Thus, it is covered by point 20 of Annex I to the EIA Directive, and therefore subject to an assessment pursuant to Articles 2(1) and 4(1) of the EIA Directive.

Annex I (20)

The Court has held that the purpose of the EIA Directive cannot be circumvented by the splitting of projects. The failure to take account of the cumulative effect of several projects must not mean in practice that they all cease to be covered by the obligation to carry out an assessment, when, taken together, they are likely to have ‘significant effects on the environment’ within the meaning of Article 2(1) of the EIA Directive. In addition, Member States must implement the EIA Directive in a manner that fully corresponds to its requirements, having regard to its fundamental objective which — as is clear from Article 2(1) — is that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location should be the subject of an assessment with regard to their effects (see, to that effect, Ecologistas en Acción-CODA, paragraph 33). The Court concluded in its judgment that the EIA Directive adopts an overall assessment of the effects of projects on the environment irrespective of whether the project might be transboundary in nature.

Therefore, it follows that projects listed in Annex I to Directive 85/337 which extend to the territory of a number of Member States cannot be exempted from the application of the Directive solely on the ground that it does not contain any express provision with regard to them. Such an exemption would seriously interfere with the objective of Directive 85/337. Its effectiveness would be seriously compromised if the competent authorities of a Member State could, when deciding whether a project must be the subject of an environmental impact assessment, leave out of consideration that part of the project that is located in another Member State (see, by analogy, Case C-227/01, Commission v. Spain paragraph 53, and Case C -205/08, Alpe Adria, paragraph 54-55).

53

Case C-300/13, Iberdrola Distribución Eléctrica.

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Annex I (21) Installations for storage of petroleum, petrochemical, or chemical products with a capacity of 200 000 tonnes or more. Annex I (22) Storage sites pursuant to Directive 2009/31/EC of the European Parliament and of the Council of 23 April 2009 on the geological storage of carbon dioxide.54 Annex I (23) Installations for the capture of CO2 streams for the purposes of geological storage, pursuant to Directive 2009/31/EC, from installations covered by this Annex, or where the total yearly capture of CO2 is 1.5 megatonnes or more. Annex I (24) Any change to or extension of projects listed in this Annex where such a change or extension in itself meets the thresholds, if any, set out in this Annex. Annex I (24)

This project category was introduced by Directive 2003/35/EC. Initially, Directive 85/337/EEC did not explicitly cover modifications of existing projects, with the exception of the reference in Annex II (12) to ‘Modifications to development projects included in Annex I and projects in Annex II undertaken exclusively or mainly for the development and testing of new methods or products and not used for more than one year’ (Annex II (12)). Directive 97/11/EC amended Directive 85/337/EEC so as to include modifications of existing Annex I and Annex II projects in Annex II (13): ‘ any change or extension of projects listed in Annex I or Annex II, already authorised, executed or in the process of being executed, which may have adverse effects on the environment’. Directive 2003/35/EC, which amended Directive 85/337/EEC, introduced a new Annex I (22) category, ‘any change to or extension of projects listed in this Annex where such a change or extension in itself meets the thresholds, if any, set out in this Annex’. To this end, changes or extensions to projects listed in Annex I which exceed the threshold should undergo an environmental impact assessment. Changes or extensions of existing projects which are below the thresholds or where there is no threshold fall under Annex II55.

The evolution over time of the wording of the EIA Directive concerning project modifications reflects Court case law on this subject. On a number of occasions, the Court has dealt with the issue of whether a project should be interpreted as a new 54

OJ L 140, 5.6.2009, p. 114. In contrast, this project category cannot serve Annex I projects for which the Directive does not fix thresholds (Annex I — 2b; 3; 4, 6; 7 (a, railways) and (b); 9; 18 (a); and 22). 55

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project or a modification of an existing one, and how the project then relates to the requirements of Articles 4(1) and 4(2) of the Directive.

Annex I (24)

In Case C-431/92, Commission v Germany (the Großkrotzenburg case), the Court concluded that the project in question — the construction of a thermal power station with a heat output of 500 megawatts which had links with an existing construction — could not fall under the category of modifications to development projects included in Annex I, mentioned in paragraph 12 of Annex II (before amendments by Directive 97/11/EC), for which optional assessment is provided. The Court held that Annex I (2), under which projects for thermal power stations with a heat output of 300 megawatts or more must undergo an assessment, must be interpreted as requiring such projects to be assessed irrespective of whether they are separate constructions, are added to a pre-existing construction, or even have close functional links with a pre-existing construction, paragraphs 34-36). In Case C-227/01, Commission v Spain, the Court concluded that point 7 of Annex I to the Directive (regarding lines for long-distance railway traffic) must be understood to include the doubling of an already existing railway track (paragraph 48).

The Court referred to the Directive’s wide scope and broad purpose and to the Directive’s fundamental objective that, before consent is granted, ‘projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location shall be made subject to a mandatory assessment with regard to their effects’ (paragraph 47). It further stated, in paragraph 49 of the ruling: ‘A project of that kind can have a significant effect on the environment within the meaning of that Directive, since it is likely to have lasting effects on, for example, flora and fauna and the composition of soil or even on the landscape and produce significant noise effects, inter alia, so that it must be included in the scope of the Directive. The objective of Directive 85/337 would be seriously undermined if that type of project for the construction of new railway track, even parallel to existing track, could be excluded from the obligation to carry out an assessment of its effects on the environment. Accordingly, a project of that sort cannot be considered a mere modification to an earlier project within the meaning of point 12 of Annex II to the Directive.’ The box below gives an example of an Annex I project category for which a threshold is set and the project is the subject of extension.

The aim of the example is to describe the circumstances in which projects fall under either Annex I (24) or Annex II (13) of the EIA Directive. Box 1

Example

1. An existing airport >2100 m is modified; a new runway >2100 m is added => Annex I.24 => EIA. 2. An existing airport >2100 m is modified; a new runway <2100 m is added and/or the existing runway is enlarged to 2400 m => Annex II.13 => screening. 3. An existing airport <2100 m is modified; a new runway >2100 m is added => Annex I.24 => EIA. 4. An existing airport <2100 m is modified; the existing runway < 2100 m (1000 m) is now enlarged and becomes 3100 m (so there is a 2100 m change) => Annex I.24 => EIA.

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5. An existing airport <2100 m is modified; the existing runway < 2100 m (1800 m) is now enlarged and becomes 2400 m (so there is a 600 m change) => Annex II.13 => screening

3.3 Annex II projects referred to in Article 4(2) of the EIA Directive Box 2. Titles of project categories Titles of categories into which projects of Annex II are grouped do not represent a separate project category and therefore do not contribute to their definition. Therefore they are observed as declaratory titles, with the purpose of logically grouping closely linked projects. The Court recognised this in its ruling in the case C-66/06 (Commission v Ireland) where it stated that ‘… it is worth mentioning that in practice projects falling within point 1(a) to (c) of Annex II of the EIA Directive are closely linked; the drainage of wetland thus often results in the use of semi-natural areas for intensive agricultural purposes (para. 72)’. Therefore, the fact that projects for ‘reclamation of land from the sea’ are listed under the title ‘Agriculture, silviculture and aquaculture’, must not be interpreted in a way to exclude projects for reclamation of land from the sea in other sectors, e.g. urban development projects.

Annex II (1) Agriculture, silviculture and aquaculture (a)

Projects for the restructuring of rural land holdings

Descriptions of projects falling under this project category differ from one Member State to another. For the sake of clarification, some Member States include examples of projects falling under this category in their guidance documents. For example, certain Member States qualify these restructuring projects as ‘Projects that physically restructure rural land holdings including the addition or removal of field boundaries or recontouring the land through addition, removal or redistribution of earth or other material’.

Annex II (1)(a)

Some Member States established thresholds or criteria for screening of the projects. For example, making restructuring projects subject to an environmental impact assessment if they involve changes to four kilometres or more of field boundaries; movements of 10 000 m³ or more of earth or other material; or otherwise restructure an area of 100 hectares or more. However, where a restructuring project is within a sensitive area, it is subject to stricter thresholds of 2 km or more of field boundaries; 5 000 m³ or more of earth or other material, or otherwise restructuring an area of 50 hectares or more. Another example is a case-by-case screening if the restructuring project covers more than 200 hectares. If the restructuring project is in a protected area, an environmental impact assessment is mandatory if it covers more than 100 hectares. In Case C-66/06, Commission v Ireland, the Court examined the thresholds determined by Ireland for this category of projects. The Court concluded that the threshold of 100 hectares in relation to projects for the restructuring of rural land holdings and the use of uncultivated land or semi-natural areas for intensive 37

agricultural purposes and, under paragraph 1(c), the threshold of a catchment area of 1 000 hectares, or 20 hectares of affected wetland, in relation to water management projects for agriculture, are not such as to preclude likely significant effects on the environment by virtue of their nature or location, since they are liable to have a substantial, or even irreversible, impact on environmental factors such as fauna and flora, land or cultural heritage. The average field size in Ireland was at that time approximately 2.4 hectares. The effect of setting, in particular for the restructuring of rural land holdings, a threshold of 100 hectares is that a project relating to the consolidation of around 40 fields, which would entail the destruction of numerous hedgerows and other means of enclosure, could be granted consent without having been subject to an environmental impact assessment, although it is such as to have significant effects on biodiversity (paragraph 67-70). (b) Projects for the use of uncultivated land or semi-natural areas for intensive agricultural purposes The decision as to which specific agricultural practices and which types of areas fall within this project category is bound to vary between Member States, given the variety of land uses and agricultural practices in different parts of Europe.

Some countries have included lists of relevant agricultural practices and habitats in national guidance documents in order to clarify how this category should be interpreted.

Annex II (1)(b)

In relation to the term ‘intensive’, this project category is considered to include all practices used to significantly improve the quality of land so as to enhance or ‘intensify’ its agricultural productivity. The term ‘uncultivated land’ is considered to include all areas that are not agriculturally managed at the time of assessment. However, land areas (fallow land, permanent pastures or meadows) that are temporarily taken out of production are normally counted as ‘utilised agricultural areas’56. The definition of what constitutes 'semi-natural areas' will vary from one Member State to the next, given that it relates to the assessed value of different areas throughout the EU. The term ‘semi-natural’ indicates that there has been some degree of human intervention (regardless of the moment in time when the human intervention took place) which prevents an area from being ‘natural’, but retaining many natural features. For example, in one Member State, semi-natural woods composed of locally native trees and shrubs, which derive from natural regeneration or coppicing rather than planting, will fall within this category. In many Member States, the term ‘semi-natural’ is likely to be applicable to large parts of the country area, although the extent of management will vary.

56

These areas are eligible for receiving direct payments in line with Council Regulation No 73/2009, which in its Article 6 defines that Member States need to ensure that these areas are maintained in good agricultural and environmental condition and shall ensure the maintenance of the area under permanent pasture.

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Annex II (1)(b)

The definition of which areas are considered ‘semi-natural’ may, in practice, depend upon a wider evaluation of the role of habitats and areas, or features of high biodiversity interest in the wider countryside (such as ponds, small wetlands, ancient hedgerows, patterns of tree cover), by the competent authority or authorities responsible for nature conservation designations or biodiversity in the Member States. Other potentially relevant environmental factors may have to be considered by other authorities, for example, those responsible for landscape designations or protection of archaeology. There is therefore some margin for discretion, but the main emphasis should be on identifying those areas that reflect natural conditions and have some intrinsic nature conservation or other environmental value that would be lost by agricultural management proposals aiming at the intensification of agricultural practices. One key indicator for potential habitat types that may fall within the concept of ‘semi-natural areas’ of high conservation value will be the habitat types and the habitats of species that are identified under the Habitats57 and Birds58 Directives. Some Member States have set thresholds for this type of project. Thresholds are different depending on whether the projects are within or outside a sensitive area.

For example, uncultivated land projects are subject to screening if the area of uncultivated land or semi-natural area directly affected by the project is two hectares or more. However, the competent national authority may conclude that a project that falls below this threshold still has a significant effect on the environment and should therefore be subject to an environmental impact assessment. Further examples from Member States show that an assessment is mandatory for cases involving more than 10 ha of uncultivated land or semi-natural areas in protected areas under national legislation, while for the same projects outside protected areas screening is applied. (c) Water management projects for agriculture, including irrigation and land drainage projects (d) Initial afforestation and deforestation for the purposes of conversion to another type of land use

Annex II (1)(d)

‘Conversion’ refers to any conversion of land use. Due to their different effects on the environment, thresholds introduced by Member States often vary for this project category. For example, in one Member State, afforestation above 20 ha and deforestation above 5 ha will require mandatory environmental impact assessment. In another Member State, mandatory assessment is conducted in the case of deforestation on an area of 20 ha or more, and screening 57

Council Directive 92/43/EEC of 21 May 1992 on the Conservation of Natural Habitats and of Wild Flora and Fauna, OJ L 206, 22.7.1992, p. 7, as amended. 58

Council Directive 79/200147/EC on the conservation of wild birds, OJ L 20, 26.1.2010, p. 7.

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in the case of expansion of already approved deforestation projects of 20 ha or more for an extension of 5 ha or more. Further criteria may be introduced that will trigger screening, such as sensitivity of the area or type of tree species. The change of land use is not in itself a project in the context of the definition of the EIA Directive, since a project implies some sort of works or intervention. (e) Intensive livestock installations (projects not included in Annex I); This project category can be considered to include installations for the concentrated rearing of livestock either in purpose-built units or in areas dedicated to this activity, either indoor or outdoor. When interpreting the term 'intensive', similar reasoning as the one for intensive fish farming can be used (see Annex II (1) (f)). Annex II (1)(e)

As the Annex II (1) (e) project category does not refer to any specific animal species, its scope is not limited purely to those animals listed in Annex I (17), i.e. pigs and poultry. Directive 85/337/EEC prior to amendments included in its Annex II only ‘poultry-rearing installations’ (Annex II (1)(e)) and ‘pig-rearing installations’ (Annex II(1)(f)). After the Directive 97/11/EC amendments, however, Annex II(1)(e) no longer refers to specific species, so in view of the wide scope and broad purpose of the Directive59 the rearing of additional animal species may need to be included in this category.60 The type of species will vary depending on the actual activities carried out in each Member State. By way of example, national environmental impact assessment legislation in several Member States explicitly includes the intensive rearing of calves and cattle under this project category. In at least one Member State, this project category is considered to cover amongst other species the rearing of rabbits, ducks, geese and horses. Another Member State includes ostriches and ostrich-like animals. In the latter case, a full screening will be needed for stables with 1 000 places or more for ostriches and ostrich-like species. In the same Member State, full screening will be needed for stables with 60 000-85 000 places for poultry other than hens.

Below these thresholds, a simplified screening will be conducted. Only activities that constitute a ‘project’ within the meaning of the EIA Directive will fall within this project category. The ruling of the Court in C-392/96, Commission v. Ireland, may be relevant here, although this case related to different project categories, i.e. Annex II(1)(b) and (d) of Directive 85/337/EEC prior to its 59

Consistently noted by the Court, for example in C-72/95, Kraaijeveld and Others, paragraph 31. In particular, the general objective of the Directive as expressed in Article 2(1) should be borne in mind, i.e. that ‘projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to […] an assessment with regard to their effects’. 60

40

amendments (‘Projects for the use of uncultivated land or semi-natural areas for intensive agricultural purposes’; and ‘Initial afforestation where this may lead to adverse ecological changes and land reclamation for the purposes of conversion to another type of land use’). In paragraphs 80 and 81 of the ruling, the Court referred to sheep grazing, considered to be a ‘development which may have adverse environmental consequences’. However, the Court further stated that ‘the Commission has not demonstrated that sheep farming as practised in Ireland constitutes a project’. (f) Intensive fish farming

Annex II (1)(f)

Intensive fish farming would imply using techniques designed to increase the production of the species in question beyond the natural capacity of the environment or culture stage, up to and including harvesting. Typically, this practice will involve the input of an additional compound feed to compensate for the lack of naturally available food at the density at which the animals are farmed. Husbandry techniques, which are also applicable to non-intensive farming, including the use of medicines and aeration of the water to meet the needs of the animals and ensure their health and welfare may also be used. Waste products should also be managed satisfactorily. It should be noted that since the wording of the EIA Directive is not specific in this respect, this category could be taken to include the farming of fish both in fresh and marine waters. Questions have arisen in practice as to the use of the term ‘intensive fish farming’, its relationship with 'extensive fish farming' and the term 'aquaculture'. 'Aquaculture' refers to the broader cultivation of any aquatic organism in fresh or marine waters. This includes algae, molluscs, crustaceans, and finfish. The term 'fish farming' is used interchangeably with 'aquaculture' though it typically refers to the cultivation of finfish.

'Intensive fish farming' therefore refers to a subset of aquaculture activities where the biomass produced is beyond that which could be naturally supported without the provision of additional feed. Many of the species farmed intensively can also be farmed extensively where additional feed is not provided, stocking densities are lower and the enclosures cover a more extensive area to allow for the natural provision of their feed requirements. This is often the case for fresh water fish such as carp. Algae and mollusc farming are typically extensive forms of aquaculture61. The European Maritime and Fisheries Fund Regulation62 defines ‘fisheries and aquaculture area’ as ‘an area with a sea, river or lake shore, including ponds or a river 61

Guidance to sustainable aquaculture activities in the context of the Natura 2000 Network can be found in the Commissions Guidance on Aquaculture and Natura 2000 [http://ec.europa.eu/environment/nature/natura2000/management/docs/Aqua-N2000 %20guide.pdf]. 62 Regulation (EU) No 508/2014 of the European Parliament and of the Council of 15 May 2014 on the European Maritime and Fisheries Fund and repealing Council Regulations (EC) No 2328/2003, (EC) No

41

basin, with a significant level of employment in fisheries or aquaculture, that is functionally coherent in geographical, economic and social terms and is designated as such by a Member State’ (Article 3 Definitions). Some Member States have applied thresholds based on different aspects for this project category, for example, on the area of the farming site (e.g. site area exceeds 5 ha), total fish production output (e.g. yearly production higher than 100 tonnes), fish production output per hectare (e.g. carp ponds with a fish production output higher than 4 tonnes per hectare of the pond area) or feed consumption (e.g. more than 2,000kg of dry feed consumed per year). (g)

Reclamation of land from the sea.

Annex II (2) Extractive Industry (a) Quarries, open-cast mining and peat extraction (projects not included in Annex I); Annex II (2)

(b)

Underground mining;

(c)

Extraction of minerals by marine or fluvial dredging;

(d)

Deep drillings, in particular: (i)

geothermal drilling;

(ii)

drilling for the storage of nuclear waste material;

(iii)

drilling for water supplies;

with the exception of drillings for investigating the stability of the soil;

Annex II (2) (d) to the EIA Directive contains only an indicative list of deep drillings. The text of the EIA Directive uses the term ‘in particular’, which implies that the enumeration of examples is indicative and not exhaustive, and applies both for exploration and exploitation-related drillings. In Case C-531/13, Kornhuber and Others, the Court ruled that exploratory drillings are a form of a deep drilling, within the meaning of Annex II (2) (d). The question of defining ‘deep drillings’ became particularly relevant in connection with the issue of exploration and exploitation of unconventional hydrocarbon projects, notably shale gas. Special guidance was provided by the European Commission on the application of the EIA Directive to projects related to the exploration and exploitation of unconventional hydrocarbons.63 Hence,

861/2006, (EC) No 1198/2006 and (EC) No 791/2007 and Regulation (EU) No 1255/2011 of the European Parliament and of the Council. 63 http://ec.europa.eu/environment/integration/energy/pdf/guidance_note.pdf.

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unconventional hydrocarbon projects that use deep drillings are covered by Annex II (2) (d). Annex II (2)

Member States have different thresholds defining deep drilling. Some Member States have adopted a general threshold beyond which the drilling is considered deep (e.g. 300 m). Other Member States have taken into account the type of drilling to fix the threshold (e.g. geothermal drillings and drillings for water supply are considered deep if exceeding 500 m, while the threshold for drillings for nuclear waste storage is 100 m). The depth of the drilling should not be the sole screening criterion in assessing the likely significance of the environmental impact.64 The screening should take into account all the relevant criteria listed in Annex III to the EIA Directive. The overall characteristics of the project should be taken into account. Even a small-scale project (e.g. exploration or drilling in the range of only several metres) can have significant effects on the environment if it is in a location where the environmental factors, such as fauna and flora, soil, water, climate or cultural heritage, are sensitive to the slightest alteration. Furthermore, the effectiveness of the EIA Directive would be seriously compromised if the competent authorities of a Member State could, when deciding whether a project must be subject to an environmental impact assessment, leave out of consideration the part of the project that is located in another Member State.

Therefore, the assessment of the impact of other projects cannot be confined to particular borders (e.g. municipal).65 Last but not least, taking into account the effectiveness of the EIA Directive and the precautionary principle, as explained by the Court66, it could be argued that in case of doubts as to the absence of significant effects, competent authorities of a Member State should subject a project to an environmental impact assessment. (e) Surface industrial installations for the extraction of coal, petroleum, natural gas and ores, as well as bituminous shale. Annex II (3) Energy industry

(a) Industrial installations for the production of electricity, steam and hot water (projects not included in Annex I);

64

Case C-531/13, Kornhuber and Others, paragraph 41-47. Idem. 66 Case C-127/02, Case C-127/02, Waddenvereniging and Vogelbeschermingsvereniging, paragraph 44. 65

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(b) Industrial installations for carrying gas, steam and hot water; transmission of electrical energy by overhead cables (projects not included in Annex I); In its judgment in the Case C-300/13,67 the Court held that the extension of a substation transforming the electric voltage does not fall under this project category, unless the extension fits into the framework of the construction of overhead cables for transmission of electrical energy. In addition, this project category would cover those projects which do not meet the cumulative thresholds set under Annex I (20) of the EIA Directive. (c)

Surface storage of natural gas;

(d)

Underground storage of combustible gases;

(e)

Surface storage of fossil fuels;

(f)

Industrial briquetting of coal and lignite;

(g) Installations for the processing and storage of radioactive waste (unless included in Annex I);

Annex II (3)

(h)

Installations for hydroelectric energy production;

(i) Installations for the harnessing of power for energy production (wind farms). The terms wind farms and wind parks should be read as synonyms. It is a common understanding that wind farms (wind parks) comprise wind turbines (windmills). At least two wind turbines are necessary to form a wind farm. Wind farm projects could have significant effect on certain segments of the environment, with magnitude depending on different factors, e.g. the sensitivity of the site. In particular, they could influence birds, and their migration routes, as well as increase the levels of environmental noise. Special attention should be given to the location of wind farms and their proximity to Natura 2000 sites.68 Screening thresholds introduced by Member States for this project category are usually based on the following criteria, or a combination of them: •

number of wind turbines;

67

Case C-300/13, Ayuntamiento de Benferri v Consejería de Infraestructuras y Transporte de la Generalitat Valenciana and Iberdrola Distribución Eléctrica SAU. 68 Useful guidance on how best to ensure that wind farm developments are compatible with the Habitats and Birds Directives, as well as with the Environmental Impact Assessment (EIA), and Strategic Environmental Assessment (SEA) Directives, can be found in a guidance document on Wind energy developments and Natura 2000: http://ec.europa.eu/environment/nature/natura2000/management/docs/Wind_farms.pdf.

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• •

Annex II (3)

capacity (per turbine and/or cumulated); size of the wind turbines.

For example, one Member State requires a screening for projects of two or more wind turbines; another, of five or more wind turbines; and in a third Member State, screening is required for wind farms with a capacity above 1 MW. Another example is that a full environmental impact assessment is needed for wind farms with more than 50 wind turbines, or a capacity of more than 30 MW, or which are located less than 2 km from another wind farm. In the latter case, the thresholds are lower if the wind farm is located in a protected area (10 wind turbines or 6 MW). In this Member State, all other wind farm projects are subject to screening, with the exception of self-supply installations generating less than 100 kW. In another Member State, most of wind farms are subject to permitting system under the IED. Moreover, a system of thresholds based on the height of wind turbines and their capacity is applied (e.g. in case the turbine's height is equal or more than 50 meters, a full environmental impact assessment is required). The thresholds can be modulated in case the project is located e.g. in a protected area, or close to other wind parks.

On the top of it, when considering whether even a small number of wind turbines can have a likely significant effect on the environment, all relevant Annex III criteria, inter alia, distance between projects and their cumulative effect, shall be taken into account, especially to projects located in areas where many small farms already exist (e.g. with three wind turbines) relatively close to each other. (j) Installations for the capture of CO2 streams for the purposes of geological storage, pursuant to Directive 2009/31/EC, from installations not covered by Annex I to this Directive. Annex II (4) Production and processing of metals

Annex II (4)

(a) Installations for the production of pig iron or steel (primary or secondary fusion) including continuous casting; (b) Installations for the processing of ferrous metals: (i) hot-rolling mills; (ii) smitheries with hammers; (iii) application of protective fused metal coats; (c)

Ferrous metal foundries;

(d) Installations for the smelting, including the alloyage, of non-ferrous metals, excluding precious metals, including recovered products (refining, foundry casting, etc.); (e) Installations for surface treatment of metals and plastic materials using an electrolytic or chemical process; 45

Surface treatments of plastics and metals falling under this category are mostly water-based and encompass for example, plating, electroplating, immersion coating, autocatalytic plating, anodising, and phosphatising, including various pre- and aftertreatment techniques. (f) Manufacture and assembly of motor vehicles and manufacture of motor-vehicle engines; Annex II (4) (g)

Shipyards;

(h)

Installations for the construction and repair of aircraft;

(i)

Manufacture of railway equipment;

(j)

Swaging by explosives;

(k)

Installations for the roasting and sintering of metallic ores.

The sintering process is used to increase the size of the raw material or the chemical composition so that it is suitable for further processing. The main binding mechanism in ore sintering is achieved by bringing the ore up to a temperature where the gangue minerals start to melt, whereby individual particles are fused together in a matrix of molten slag. Annex II (5) Mineral industry

Annex II (5)

(a)

Coke ovens (dry coal distillation);

(b)

Installations for the manufacture of cement;

(c) Installations for the production of asbestos and the manufacture of asbestos products (projects not included in Annex I); See under corresponding Annex I project category, Annex I (5) above. (d)

Installations for the manufacture of glass including glass fibre;

(e) Installations for smelting mineral substances including the production of mineral fibres; Certain Member States refer to thresholds introduced by the IED for this project category. The IED refers to the same activity in Annex I, point 3.4 (melting mineral substances including the production of mineral fibres with a melting capacity exceeding 20 tonnes per day). A common question under this project category is whether the production of asphalt falls within its scope. Natural asphalt (bitumen) is a mineral substance and its production falls within the scope of this project category. As for asphalt concrete (a mix of asphalt and aggregate), this is not covered by this project category, since in 46

the mixing process no smelting of mineral substances occurs as the processing temperatures are too low. In addition, asphalt can be produced by the refining of oil and that process is also covered by the EIA Directive. (f) Manufacture of ceramic products by burning, in particular roofing tiles, bricks, refractory bricks, tiles, stoneware or porcelain. Annex II (6) Chemical industry (Projects not included in Annex I) (a)