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EIA appeals EU legislation and jurisprudence

EIA appeals EU legislation and jurisprudence. Jan Veeken. 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.

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EIA appeals EU legislation and jurisprudence

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  1. EIA appeals EU legislation and jurisprudence Jan Veeken

  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

  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

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

  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

  6. Applicants at the European Court of Justice • European Commission • Member States, authorities • National judges • Private entities cannot appeal to the European Court

  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

  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

  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

  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

  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

  12. Newest Jurisprudence • Verdict of September 16th 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

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