The ECJ today gave its judgment in the reference in Case C-75/08 R (Mellor) v SSCLG.
The case concerned the need for reasons for negative screening decisions under the Environmental Impact Assessment Directive.
The questions referred by the Court of Appeal were:
- Whether under Article 4 of Council Directive 85/337/EEC as amended by Directives 97/11/EC and 2003/35/EC Member States must make available to the public reasons for a determination that in respect of an Annex II project there is no requirement to subject the project to assessment in accordance with Articles 5 to 10 of the Directive?
- If the answer to Question 1 is in the affirmative whether that requirement was satisfied by the content of the letter dated 4 December 2006 from the Secretary of State?
- If the answer to Question 2 is in the negative, what is the extent of the requirement to give reasons in this context?
The ECJ answered those questions:
“1. Article 4 of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003, must be interpreted as not requiring that a determination, that it is unnecessary to subject a project falling within Annex II to that directive to an environmental impact assessment, should itself contain the reasons for the competent authority’s decision that the latter was unnecessary. However, if an interested party so requests, the competent administrative authority is obliged to communicate to him the reasons for the determination or the relevant information and documents in response to the request made.
2. If a determination of a Member State not to subject a project, falling within Annex II to Directive 85/337 as amended by Directive 2003/35, to an environmental impact assessment in accordance with Articles 5 to 10 of that directive, states the reasons on which it is based, that determination is sufficiently reasoned where the reasons which it contains, added to factors which have already been brought to the attention of interested parties, and supplemented by any necessary additional information which the competent national administration is required to provide to those interested parties at their request, can enable them to decide whether to appeal against that decision.”
Accordingly, the effect of the judgment is that:
- there is no need for a negative screening decision to itself contain reasons;
- but there is a duty to provide further information on the reasons for the decision if an interested person subsequently requests the same;
- that request need not be met by a formal statement of reasons but also by providing “information and relevant documents”;
- reasons, when given, can be very short.
James Maurici appeared as Counsel for the United Kingdom.