Focus on Environmental Impact Assessment (EIA)

The EIA Directive gives a dual definition of “project” in point (a) of Article 1(2):

This definition was subject to a number of cases at the European Court of Justice (ECJ). In its case-law, the ECJ has given a broad interpretation of the concept of “construction” – when assessing the need for an EIA in the case of road refurbishment, it accepted that works for the refurbishment of an already existing road may be equivalent, due to their size and the manner in which they are carried out, to the construction of a new road and hence an EIA would be justified in such a case.

Furthermore, the ECJ has also found that it would be contrary to the very objective of the EIA Directive to exclude works to improve or extend the infrastructure of an existing airport from the scope of Annex II on the grounds that Annex I covers the ‘construction of airports’ and not ‘airports’ as such. According to the ECJ, such an interpretation would indeed allow all works to modify a pre-existing airport, regardless of their extent, to fall outside the obligations resulting from the Directive and would, in that regard, thus deprive Annex II of all its effects.

In another case, however, the ECJ has concluded, based on its judgments in the above two cases, that physical works are essential for classifying the project as meeting the definition of “project” under the EIA Directive. According to the ECJ, a purposive interpretation of the directive cannot, in any event, disregard the clearly expressed intention of the legislature of the European Union, from which it follows that, in any event, the renewal of an existing consent to operate an airport cannot, in the absence of any works or interventions involving alterations to the physical aspect of the site, be classified as a “construction” within the meaning of point 7(a) of Annex I to the EIA Directive.