Env. L.R. On 7 January 2004 the ECJ ruled under Art 234 on a series of important issues regarding the direct effect of Directive 85/337/EEC on the Assessment of the effects of certain projects on the Environment. The case was an old mining permission which had not been subject to EIA prior to the Secretary of State’s approval of conditions but which was followed some years later by a request to revoke the determination of conditions in order to remedy the failure to carry out EIA. On a reference from the High Court, the ECJ adopted an approach consistent with that of the House of Lords in ex parte Brown as to whether an approval of new conditions was a “development consent” and with the Court of Appeal in ex parte Huddlestonas to the implications of the direct effect of directives on individuals.
On direct effect, the ECJ considered so-called “triangular direct effect” and ruled (para.s 56-57) that:
“… the principle of legal certainty prevents directives from creating obligations for individuals. For them, the provisions of a directive can only create rights (see Case 152/84 Marshall  ECR 723, paragraph 48). Consequently, an individual may not rely on a directive against a Member State where it is a matter of a State obligation directly linked to the performance of another obligation falling, pursuant to that directive, on a third party … On the other hand, mere adverse repercussions on the rights of third parties, even if the repercussions are certain, do not justify preventing an individual from invoking the provisions of a directive against the Member State concerned.”
On the question of when EIA should occur in a multi-stage process (such as the planning process) the ECJ ruled that:
“52. … where national law provides that the consent procedure is to be carried out in several stages, one involving a principal decision and the other involving an implementing decision which cannot extend beyond the parameters set by the principal decision, the effects which the project may have on the environment must be identified and assessed at the time of the procedure relating to the principal decision. It is only if those effects are not identifiable until the time of the procedure relating to the implementing decision that the assessment should be carried out in the course of that procedure.”
On the obligation to remedy breach of the directive and the delay of the claimant in seeking redress:
“67. The detailed procedural rules applicable are a matter for the domestic legal order of each Member State, under the principle of procedural autonomy of the Member States, provided that they are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the Community legal order (principle of effectiveness) …
68. So far as the main proceedings are concerned… the competent authorities are obliged to take all general or particular measures for remedying the failure to carry out such an assessment.
69. In that regard, it is for the national court to determine whether it is possible under domestic law for a consent already granted to be revoked or suspended in order to subject the project in question to an assessment of its environmental effects, in accordance with the requirements of Directive 85/337, or alternatively, if the individual so agrees, whether it is possible for the latter to claim compensation for the harm suffered.”
David Elvin QC and James Maurici acted for the UK Government.
(The case of Barker, referred by the House of Lords to Luxembourg shortly after argument in Wells, raises related issues on the multi-stage planning process.)