Provisional text

JUDGMENT OF THE COURT (Tenth Chamber)

1 August 2025 ( * )

( Reference for a preliminary ruling – Environment – Directive 2011/92/EU – Assessment of the effects of certain public and private projects on the environment – Article 6 – Consultations with authorities likely to be concerned by the project by reason of their specific environmental responsibilities or local and regional competences, and with the public concerned – Public participation in decision-making – Article 6(3)(b) – Scope of the concept of ‘main reports and advice’ )

In Case C‑461/24,

REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunal Superior de Justicia de Galicia (High Court of Justice, Galicia, Spain), made by decision of 21 June 2024, received at the Court on 28 June 2024, in the proceedings

Asociación Autonómica Ambiental e Cultural Petón do Lobo

v

Dirección Xeral de Planificación Enerxética e Recursos Naturais,

Eurus Desarrollos Renovables SLU,

THE COURT (Tenth Chamber),

composed of D. Gratsias, President of the Chamber, E. Regan and J. Passer (Rapporteur), Judges,

Advocate General: N. Emiliou,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– the Asociación Autonómica Ambiental e Cultural Petón do Lobo, by M. Díaz Amor, procuradora, and R.F. García Mondelo, abogado,

– the Dirección Xeral de Planificación Enerxética e Recursos Naturais, by S. Centeno Huerta, abogada, and M. Pillado Quintáns, letrado,

– Eurus Desarrollos Renovables, SLU, by M.J. Gandoy Fernández, procuradora, and Í. Muniozguren Martínez, abogado,

– the Spanish Government, by A. Gavela Llopis and P. Pérez Zapico, acting as Agents,

– the German Government, by J. Möller and P.‑L. Krüger, acting as Agents,

– the European Commission, by M. Noll-Ehlers and N. Ruiz García, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 6(3) of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘the EIA Directive’).

2 The request has been made in proceedings between the Asociación Autonómica Ambiental e Cultural Petón do Lobo (‘the association Petón do Lobo’), an environmental association, on the one hand, and the Dirección Xeral de Planificación Enerxética e Recursos Naturais (Directorate-General for Energy Planning and Natural Resources) of the Autonomous Community of Galicia (Spain) and Eurus Desarrollos Renovables SLU, on the other, concerning the dismissal of the action brought by that association against the decision to grant that company development consent to construct a wind farm.

Legal context

European Union law

3 Recitals 16 to 19 of the EIA Directive state:

‘(16) Effective public participation in the taking of decisions enables the public to express, and the decision-maker to take account of, opinions and concerns which may be relevant to those decisions, thereby increasing the accountability and transparency of the decision-making process and contributing to public awareness of environmental issues and support for the decisions taken.

(17) Participation, including participation by associations, organisations and groups, in particular non-governmental organisations promoting environmental protection, should accordingly be fostered, including, inter alia, by promoting environmental education of the public.

(18) The European Community signed the UN/ECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention) on 25 June 1998 and ratified it on 17 February 2005.

(19) Among the objectives of the Aarhus Convention is the desire to guarantee rights of public participation in decision-making in environmental matters in order to contribute to the protection of the right to live in an environment which is adequate for personal health and well-being.’

4 Recitals 31 to 33 and 36 of Directive 2014/52 are worded as follows:

‘(31) The environmental impact assessment report to be provided by the developer for a project should include a description of reasonable alternatives studied by the developer which are relevant to that project, including, as appropriate, an outline of the likely evolution of the current state of the environment without implementation of the project (baseline scenario), as a means of improving the quality of the environmental impact assessment process and of allowing environmental considerations to be integrated at an early stage in the project’s design.

(32) Data and information included by the developer in the environmental impact assessment report, in accordance with Annex IV to Directive 2011/92/EU, should be complete and of sufficiently high quality. With a view to avoiding duplication of assessments, the results of other assessments under Union legislation, such as Directive 2001/42/EC of the European Parliament and of the Council [of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (OJ 2001 L 197, p. 30)] or [Council] Directive 2009/71/Euratom [of 25 June 2009 establishing a Community framework for the nuclear safety of nuclear installations (OJ 2009 L 172, p. 18)], or national legislation should, where relevant and available, be taken into account.

(33) Experts involved in the preparation of environmental impact assessment reports should be qualified and competent. Sufficient expertise, in the relevant field of the project concerned, is required for the purpose of its examination by the competent authorities in order to ensure that the information provided by the developer is complete and of a high level of quality.

…

(36) In order to stimulate more efficient decision-making and increase legal certainty, Member States should ensure that the various steps of the environmental impact assessment of projects are carried out within a reasonable period of time, depending on the nature, complexity, location and size of the project. Such time-frames should, under no circumstances, compromise the achievement of high standards for the protection of the environment, particularly those resulting from Union legislation on the environment other than this Directive, and effective public participation and access to justice.’

5 Article 1(2) of the EIA Directive provides:

‘For the purposes of this Directive, the following definitions shall apply:

…

(d) “public” means one or more natural or legal persons and, in accordance with national legislation or practice, their associations, organisations or groups;

(e) “public concerned” means the public affected or likely to be affected by, or having an interest in, the environmental decision-making procedures referred to in Article 2(2). For the purposes of this definition, non-governmental organisations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest;

…

(g) “environmental impact assessment” means a process consisting of:

(i) the preparation of an environmental impact assessment report by the developer, as referred to in Article 5(1) and (2);

(ii) the carrying out of consultations as referred to in Article 6 and, where relevant, Article 7;

(iii) the examination by the competent authority of the information presented in the environmental impact assessment report and any supplementary information provided, where necessary, by the developer in accordance with Article 5(3), and any relevant information received through the consultations under Articles 6 and 7;

(iv) the reasoned conclusion by the competent authority on the significant effects of the project on the environment, taking into account the results of the examination referred to in point (iii) and, where appropriate, its own supplementary examination; and

(v) the integration of the competent authority’s reasoned conclusion into any of the decisions referred to in Article 8a.’

6 According to Article 3 of that directive:

‘1. The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

(a) population and human health;

(b) biodiversity, with particular attention to species and habitats protected …;

(c) land, soil, water, air and climate;

(d) material assets, cultural heritage and the landscape;

(e) the interaction between the factors referred to in points (a) to (d).

2. The effects referred to in paragraph 1 on the factors set out therein shall include the expected effects deriving from the vulnerability of the project to risks of major accidents and/or disasters that are relevant to the project concerned.’

7 Article 5 of that directive provides:

‘1. Where an environmental impact assessment is required, the developer shall prepare and submit an environmental impact assessment report. The information to be provided by the developer shall include at least:

(a) a description of the project comprising information on the site, design, size and other relevant features of the project;

(b) a description of the likely significant effects of the project on the environment;

(c) a description of the features of the project and/or measures envisaged in order to avoid, prevent or reduce and, if possible, offset likely significant adverse effects on the environment;

(d) a description of the reasonable alternatives studied by the developer, which are relevant to the project and its specific characteristics, and an indication of the main reasons for the option chosen, taking into account the effects of the project on the environment;

(e) a non-technical summary of the information referred to in points (a) to (d); and

(f) any additional information specified in Annex IV relevant to the specific characteristics of a particular project or type of project and to the environmental features likely to be affected.

Where an opinion is issued pursuant to paragraph 2, the environmental impact assessment report shall be based on that opinion, and include the information that may reasonably be required for reaching a reasoned conclusion on the significant effects of the project on the environment, taking into account current knowledge and methods of assessment. The developer shall, with a view to avoiding duplication of assessments, take into account the available results of other relevant assessments under Union or national legislation, in preparing the environmental impact assessment report.

2. Where requested by the developer, the competent authority, taking into account the information provided by the developer in particular on the specific characteristics of the project, including its location and technical capacity, and its likely impact on the environment, shall issue an opinion on the scope and level of detail of the information to be included by the developer in the environmental impact assessment report in accordance with paragraph 1 of this Article. The competent authority shall consult the authorities referred to in Article 6(1) before it gives its opinion.

Member States may also require the competent authorities to give an opinion as referred to in the first subparagraph, irrespective of whether the developer so requests.

3. In order to ensure the completeness and quality of the environmental impact assessment report:

(a) the developer shall ensure that the environmental impact assessment report is prepared by competent experts;

(b) the competent authority shall ensure that it has, or has access as necessary to, sufficient expertise to examine the environmental impact assessment report; and

(c) where necessary, the competent authority shall seek from the developer supplementary information, in accordance with Annex IV, which is directly relevant to reaching the reasoned conclusion on the significant effects of the project on the environment.

4. Member States shall, if necessary, ensure that any authorities holding relevant information, with particular reference to Article 3, make this information available to the developer.’

8 According to Article 6 of the EIA Directive:

‘1. Member States shall take the measures necessary to ensure that the authorities likely to be concerned by the project by reason of their specific environmental responsibilities or local and regional competences are given an opportunity to express their opinion on the information supplied by the developer and on the request for development consent, taking into account, where appropriate, the cases referred to in Article 8a(3). To that end, Member States shall designate the authorities to be consulted, either in general terms or on a case-by-case basis. The information gathered pursuant to Article 5 shall be forwarded to those authorities. Detailed arrangements for consultation shall be laid down by the Member States.

2. In order to ensure the effective participation of the public concerned in the decision-making procedures, the public shall be informed electronically and by public notices or by other appropriate means, of the following matters early in the environmental decision-making procedures referred to in Article 2(2) and, at the latest, as soon as information can reasonably be provided:

(a) the request for development consent;

(b) the fact that the project is subject to an environmental impact assessment procedure and, where relevant, the fact that Article 7 applies;

(c) details of the competent authorities responsible for taking the decision, those from which relevant information can be obtained, those to which comments or questions can be submitted, and details of the time schedule for transmitting comments or questions;

(d) the nature of possible decisions or, where there is one, the draft decision;

(e) an indication of the availability of the information gathered pursuant to Article 5;

(f) an indication of the times and places at which, and the means by which, the relevant information will be made available;

(g) details of the arrangements for public participation made pursuant to paragraph 5 of this Article.

3. Member States shall ensure that, within reasonable time-frames, the following is made available to the public concerned:

(a) any information gathered pursuant to Article 5;

(b) in accordance with national legislation, the main reports and advice issued to the competent authority or authorities at the time when the public concerned is informed in accordance with paragraph 2 of this Article;

(c) in accordance with the provisions of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information [(OJ 2003 L 41, p. 26)], information other than that referred to in paragraph 2 of this Article which is relevant for the decision in accordance with Article 8 of this Directive and which only becomes available after the time the public concerned was informed in accordance with paragraph 2 of this Article.

4. The public concerned shall be given early and effective opportunities to participate in the environmental decision-making procedures referred to in Article 2(2) and shall, for that purpose, be entitled to express comments and opinions when all options are open to the competent authority or authorities before the decision on the request for development consent is taken.

…

6. Reasonable time-frames for the different phases shall be provided for, allowing sufficient time for:

(a) informing the authorities referred to in paragraph 1 and the public; and

(b) the authorities referred to in paragraph 1 and the public concerned to prepare and participate effectively in the environmental decision-making, subject to the provisions of this Article.

7. The time-frames for consulting the public concerned on the environmental impact assessment report referred to in Article 5(1) shall not be shorter than 30 days.’

9 Article 7(2) to (5) of that directive provides:

‘2. If a Member State which receives information pursuant to paragraph 1 indicates that it intends to participate in the environmental decision-making procedures referred to in Article 2(2), the Member State in whose territory the project is intended to be carried out shall, if it has not already done so, send to the affected Member State the information required to be given pursuant to Article 6(2) and made available pursuant to points (a) and (b) of Article 6(3).

3. The Member States concerned, each in so far as it is concerned, shall also:

(a) arrange for the information referred to in paragraphs 1 and 2 to be made available, within a reasonable time, to the authorities referred to in Article 6(1) and the public concerned in the territory of the Member State likely to be significantly affected; and

(b) ensure that the authorities referred to in Article 6(1) and the public concerned are given an opportunity, before development consent for the project is granted, to forward their opinion within a reasonable time on the information supplied to the competent authority in the Member State in whose territory the project is intended to be carried out.

…

5. The detailed arrangements for implementing paragraphs 1 to 4 of this Article, including the establishment of time-frames for consultations, shall be determined by the Member States concerned, on the basis of the arrangements and time-frames referred to in Article 6(5) to (7), and shall be such as to enable the public concerned in the territory of the affected Member State to participate effectively in the environmental decision-making procedures referred to in Article 2(2) for the project.’

Spanish law

10 Article 33(1) of Ley estatal 21/2013 de evaluación ambiental (Law 21/2013 on environmental assessment) of 9 December 2013 (BOE No 296 of 11 December 2013, p. 98151), in the version applicable to the dispute in the main proceedings (‘Law 21/2013’), is worded as follows:

‘The ordinary environmental impact assessment shall comprise the following stages:

(a) the developer shall draft the environmental impact study;

(b) the competent body shall disclose the project and the environmental impact study to the public and hold consultations with the relevant administrative authorities and stakeholders.

(c) the competent environmental body shall conduct a technical analysis of the dossier;

(d) the competent environmental body shall prepare an environmental impact statement;

(e) the competent body shall incorporate the content of the environmental impact statement into the development consent.’

11 Article 35(1) of that law provides:

‘Without prejudice to Article 34(6), the developer shall prepare an environmental impact assessment containing, at a minimum, the following information as specified in Annex VI:

(a) a general description of the project, including information on its location, design, size and other relevant features of the project; forecasts for the use of land and other natural resources over time. An estimation of the types and amounts of waste produced, and of the resulting emissions of matter or energy;

(b) a description of the reasonable solutions that were examined in relation to the project, including the “zero-solution” or non-implementation of the project, and their specific characteristics, as well as the main reasons for the chosen solution, taking into account the project’s environmental impact;

(c) an identification, description, analysis and, where appropriate, quantification of any significant direct and indirect, secondary, cumulative and synergistic effects of the project on the following factors: population, human health, flora, fauna, biodiversity, geodiversity, soil, subsoil, air, water, marine environment, climate, climate change, landscape, material assets, cultural heritage, and the interaction between all the above factors during the implementation, exploitation and, where appropriate, demolition or abandonment phases of the project;

…

(d) it is appropriate to include either a specific paragraph detailing the identification, description, analysis and, where appropriate, a quantification of the effects on the factors listed in point (c) deriving from the vulnerability of the project to risks of major accidents or disasters, the risk of such accidents or disasters occurring and the likely significant adverse effects on the environment in the event of those accidents or disasters occurring, or a report justifying the non-application of this paragraph to the project.

In order to carry out the studies referred to in this paragraph, the developer shall include relevant information obtained through risk assessments carried out in accordance with the rules applicable to the project.

(e) measures to prevent, correct and, where appropriate, offset likely significant adverse effects on the environment and the landscape;

(f) an environmental monitoring programme;

(g) a non-technical summary of the environmental impact study and conclusions in easily understandable terms.’

12 Article 36 of Law 21/2013 states:

‘1. The developer shall submit the project and the environmental impact study to the relevant authority, which shall disclose them to the public for a period of not less than 30 working days, following publication in the Boletín Oficial del Estado [(Official State Gazette)] or the relevant official gazette and on its website.

Public disclosure shall take place at a stage in the development consent procedure when all options regarding its content, scope and definition are still open.

…

2. The competent body – or the competent environmental body, where applicable – shall include a summary of the development consent procedure in the notice regarding the initiation of the public disclosure process. That summary must contain, at a minimum, the following information:

(a) an indication that the project is subject to an ordinary environmental impact assessment and that, where appropriate, the provisions of Chapter III of this Title relating to cross-border consultations may apply;

(b) an identification of the body competent to approve the project or, in the case of projects that are subject to a declaration of compliance or prior notification, an identification of the body to which the aforementioned declaration or prior notification must be submitted; identification of the bodies from which relevant information can be obtained and those to which objections can be submitted, as well as the deadline for submission.

3. The competent body, or, as the case may be, the competent environmental body, shall take the necessary measures to disseminate the documents for public disclosure as widely as possible, using electronic or other communication methods.’

13 Article 37 of Law 21/2013 provides:

‘1. At the same time as the public disclosure phase, the competent body shall consult with the relevant administrative authorities and the stakeholders on the significant effects that the project is likely to have. That shall include an analysis of any significant adverse environmental effects likely to result from the project’s vulnerability to the risks of major accidents or disasters affecting the project.

…

2. The competent body shall request the following reports, each of which shall be duly reasoned:

(a) a report from the competent environmental body of the Autonomous Community in which the project is geographically located;

(b) a cultural heritage report, where appropriate;

(c) a report from the bodies responsible for water planning and water assets in the public domain, and for water quality, where appropriate;

(d) a report on maritime and land assets in the public domain, and marine strategies, where appropriate …;

(e) a preliminary report from the body responsible for radiological impact, where appropriate;

(f) a report from the bodies responsible for the prevention and management of risks arising from serious accidents or disasters, where applicable;

(g) a report on the compatibility of the project with water planning or the planning of subdivisions of marine regions and subregions, where appropriate;

(h) a report from the Ministry of Defence in the event that the project affects areas declared to be of interest to national defence and on land, buildings and installations, including the protection zones thereof, earmarked for national defence; The report is binding as regards national defence;

(i) a report from the bodies responsible for public health, where appropriate.

The Autonomous Communities, acting within the scope of their powers, may make any report other than those mentioned above compulsory.

3. Consultations shall be carried out by means of a notification containing, at least, the following information:

(a) the environmental impact study or details of where it can be accessed;

(b) the body to which reports and comments are to be sent;

(c) any documents relevant to the project for the purposes of the environmental assessment, which are available to the competent body;

Consultations with the relevant administrative authorities and the stakeholders shall be conducted electronically, either by way of an opinion or by any other means, provided evidence of the consultation is provided.

4. Relevant administrative authorities and stakeholders shall have a maximum of 30 working days from the receipt of the notification to issue the reports and make any comments they consider relevant.

5. The competent body may make available to the relevant administrative authorities and the stakeholders any such information other than that provided for in paragraph 3 as cannot be obtained until after the public disclosure period referred to in Article 36 has expired and as is material to the decision on the implementation of the project.’

14 Under Article 38(2) of Law 21/2013:

‘If the developer amends the project or the environmental impact study as a result of the public notice phase and the consultations with the relevant public authorities and the stakeholders, and those amendments imply significant environmental effects that differ from those originally anticipated, a new public disclosure phase and further consultations must be carried out within the time limits set out in Articles 36 and 37, and in any case before the environmental impact statement is drawn up.’

15 In accordance with Article 41(1) of Law 21/2013, ‘once the technical analysis of the environmental impact assessment file has been completed, the body responsible for environmental matters shall draw up the environmental impact statement’. According to Article 41(2), that declaration must include, inter alia, ‘a summary of the results of the public disclosure process and consultations with the relevant public authorities and the stakeholders, and an explanation of how they were taken into account’.

16 Article 33 of Ley autonómica gallega 8/2009 por la que se regula el aprovechamiento eólico en Galicia y se crean el canon eólico y el Fondo de Compensación Ambiental (Law 8/2009 of the Autonomous Community of Galicia regulating the use of wind energy in Galicia and creating the wind energy tax and the Environmental Compensation Fund) of 22 December 2009 (BOE No 30 of 4 February 2010, p. 9842), in the version applicable to the dispute in the main proceedings (‘Law 8/2009’), provides, in paragraphs 10 to 12 and 15 thereof:

‘10. In the case of an ordinary environmental impact assessment, the unit responsible for processing [the application] shall simultaneously submit the implementation plan and the environmental impact study for public disclosure by publishing them in the “Diario Oficial de Galicia” (Official Journal of Galicia) and on the website of the Autonomous Community ministry competent in matters of energy. …

11. During the aforementioned period, any persons, entities or bodies concerned may make as many comments as they deem appropriate or ask to examine the project file and technical documentation, or any such part thereof as may be agreed. Any comments shall be sent to the applicant for a response, which shall be transmitted to the relevant processing unit within a maximum period of 15 days.

12. At the same time as the public disclosure process, the unit responsible for processing [the application] shall hold hearings and consultations with the relevant public authorities and the stakeholders. At a minimum, it shall request the mandatory reports required for the environmental assessment and give the relevant municipalities an opportunity to be heard. …

15. The unit responsible for processing [the application] shall send the developer the reports and comments received for its consent and/or consideration in the drafting of the implementation plan and the environmental impact study, so that it may make the amendments and adjustments necessary to each of those documents. The developer shall have a maximum period of one month to submit the final documents required to continue the procedure …’

17 Article 34(1) of Law 8/2009 provides that ‘once the development consent procedure has been completed and the applicant has provided proof of access to the transmission or distribution grid, as appropriate, and proof of acquisition of a connection point to one of those grids, the directorate-general competent in matters of energy shall issue a decision on the grant of prior administrative authorisation for the wind farm and the issue of a permit for its construction within a maximum period of two months from the date on which the body responsible for adjudicating on the procedure receives all documentation’.

The dispute in the main proceedings and the questions referred for a preliminary ruling

18 On 22 December 2017, Eurus Desarrollos Renovables SLU applied, in its capacity as a developer, to the authorities of the Autonomous Community of Galicia for the grant of a prior administrative authorisation and the issue of a permit for the construction of the ‘A Raña III’ wind farm project, situated in the municipal district of Mazaricos (Spain). Accompanying the application were various documents, including an environmental impact assessment of the project in question, as required by Article 35 of Law 21/2013.

19 Once the preliminary reports had been drawn up, the 30-day public disclosure phase began, during which time various comments were submitted.

20 During that time, the bodies responsible for, inter alia, forestry, water, natural and cultural heritage, tourism, health, electricity and aviation safety submitted their reports in accordance with Article 37 of Law 21/2013.

21 On 17 June 2022, the Dirección Xeral de Calidade Ambiental, Sostibilidade e Cambio Climático (Directorate-General for Environmental Quality, Sustainability and Climate Change) of the Autonomous Community of Galicia drew up the environmental impact statement, as required by Article 41 of Law 21/2013.

22 On 30 June 2022, after Eurus Desarrollos Renovables had submitted the requested technical documentation, the Directorate-General for Energy Planning and Natural Resources of the Autonomous Community of Galicia granted it the permits sought.

23 An action was brought before the Tribunal Superior de Justicia de Galicia (High Court of Justice, Galicia, Spain), which is the referring court, by the association Petón do Lobo against the implied decision rejecting its administrative appeal seeking annulment of the decision of 30 June 2022.

24 It is apparent from the order for reference that, in its action, that association relies on a plea for annulment alleging that the public had not been informed about the project that was ultimately authorised and refers, in that regard, to a judgment of the referring court of 14 January 2022. In that judgment, the referring court held, in a similar case and on the basis of the same State and Autonomous Community legislation, that, in so far as that legislation neglected to provide for the reports referred to in Article 37 of Law 21/2013 to be sent to the interested parties so that they could submit their comments, it infringed the requirement to inform the public laid down in Article 6(3) of the EIA Directive.

25 That judgment was set aside by a judgment of the Sala de lo Contencioso-Administrativo del Tribunal Supremo (Chamber for Administrative Litigation of the Supreme Court, Spain) of 21 December 2023, on the ground, inter alia, that the EIA Directive offered Member States various procedural options as to when to provide notice to the public concerned and consult with authorities likely to be concerned by that project by reason of their specific environmental responsibilities or local and regional competences.

26 The referring court considers, however, that the bodies adjudicating on applications for development consent for projects having environmental effects are required, under Article 6 of the EIA Directive, to take three prior measures. The first two, in no particular chronological order, involve providing the general public with the opportunity to comment on the project and collecting reports from various competent bodies. The third occurs at a later stage and consists of communicating the main reports and advice of those bodies to the public concerned so that the latter can submit observations before the final decision is adopted.

27 That court considers that the obligation imposed on the Member States under Article 6(3) of the EIA Directive is clear, namely that they must ensure that those main reports are made available to the public concerned in order for that public to be able to exercise the right, conferred on it by paragraph 4 of that article, to submit, within a period of not less than 30 days, its comments and opinions before the adoption of the decision on the environmental impact assessment of the project in question.

28 That court considers that the reports referred to in Article 37(2) of Law 21/2013 fall within the expression ‘main reports and advice’ in Article 6(3)(b) of the EIA Directive, since the content of those reports has a direct and significant effect on the assessment of the effects of a project on the environment, in that those reports provide valuable technical information generated by the administrative authorities specialising in the fields set out in Article 3 of that directive. Information which is essential and relevant to the assessment of a project which is likely to have ‘significant effects on the environment’, within the meaning of the EIA Directive, is provided, at the very least, by the content of the reports referred to in Article 37(2)(a) to (g) and (i) of Law 21/2013.

29 However, Law 21/2013 does not set out any measures to be taken after the reports have been received that would provide the relevant public with a genuine opportunity to participate in the assessment process. Article 37(5) of Law 21/2013 does not address that shortcoming, as it does not clearly identify the information referred to and merely provides for it to be ‘made available’, rather than establishing a genuine procedure that would allow the public concerned ‘to express comments and opinions’, as recognised in Article 6(4) of the EIA Directive.

30 Consequently, the referring court considers that Articles 36 to 38 of Law 21/2013 and Articles 33 and 34 of Law 8/2009 may not have correctly transposed the requirements of Article 6(3) of the EIA Directive.

31 In those circumstances the Tribunal Superior de Justicia de Galicia (High Court of Justice, Galicia) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) What is the meaning of the expression “main reports and advice” used in Article 6(3) of [the EIA Directive]?

(2) Are the reports referred to in Article 37(2) of Law 21/2013 to be construed as forming part of the ‘main reports and advice’ referred to in Article 6(3) of [the EIA Directive]?

(3) Do Articles 36 [to] 38 of [Law 21/2013] and Articles 33 and 34 of [Law 8/2009] run counter to the requirement, laid down in Article 6(3) of [the EIA Directive], to ensure that the main sectoral reports issued are made available to the members of the public concerned so as to enable them, within a period of not less than 30 days, to exercise their right under paragraph 4 of that provision to express comments and opinions and participate in the decision-making process concerning the request for development consent before that decision is taken?’

32 By order of the President of the Court of 10 September 2024, Asociación Petón do Lobo (C‑461/24, EU:C:2024:758), the referring court’s request that the present reference for a preliminary ruling be dealt with under the expedited procedure provided for in Article 105 of the Rules of Procedure of the Court was refused. By the same decision, the President of the Court of Justice gave the present case priority over others, pursuant to Article 53(3) of the Rules of Procedure of the Court of Justice.

Consideration of the questions referred

33 By its three questions, which it is appropriate to examine together, the referring court asks, in essence, whether the EIA Directive, and in particular Article 6(3)(b) thereof, must be interpreted as precluding legislation of a Member State under which, in the context of an environmental impact assessment procedure in respect of a project subject to that directive, the authorities likely to be concerned by that project by reason of their specific environmental responsibilities or local and regional competences are consulted at the same time as the public concerned, without the public concerned then being entitled to express its comments and opinions to the authority or authorities competent for granting development consent for the project, on the opinions given in that connection by the consulted authorities.

34 Under Article 1(2)(g)(ii) of the EIA Directive, the environmental impact assessment process must include ‘the carrying out of consultations as referred to in Article 6 and, where relevant, Article 7’.

35 In accordance with Article 6 of the EIA Directive, consultations must be held with authorities likely to be concerned by the project by reason of their specific environmental responsibilities or local and regional competences, on the one hand, and the public concerned, on the other.

36 The right of the public concerned to be consulted is an essential component of the assessment process under the EIA Directive.

37 As recital 16 of the EIA Directive states, effective public participation in the taking of decisions enables the public to express, and the decision-maker to take account of, opinions and concerns which may be relevant to those decisions, thereby increasing the accountability and transparency of the decision-making process and contributing to public awareness of environmental issues and support for the decisions taken.

38 To that end, Article 6 of the EIA Directive provides, first, in paragraphs 2 and 3 thereof, that a set of information relating to projects subject to an environmental impact assessment must be communicated to the public, depending on the case, ‘early in the … decision-making procedures … and, at the latest, as soon as information can reasonably be provided’ or made available to the public concerned ‘within reasonable time-frames’. That article then states, in paragraph 4 thereof, that ‘the public concerned shall be given early and effective opportunities to participate in the … decision-making procedures … and shall, for that purpose, be entitled to express comments and opinions when all options are open to the competent authority or authorities before the decision on the request for development consent is taken’. Finally, paragraph 7 of that article provides that the time-frames for consulting the public concerned on the environmental impact assessment report referred to in Article 5(1) of the EIA Directive are not to be shorter than 30 days.

39 It follows from those provisions, first, that both the communication to the public or the making available to the public of the information which is to serve as a basis for public participation, in the course of the procedure for assessing and granting development consent for projects subject to the EIA Directive, and the opportunity for the public to express comments and opinions on that information and, more generally, on the project concerned and its environmental impact, must occur at an early stage and, in any event, before a decision is taken on whether to grant development consent for that project (see, to that effect, judgment of 24 February 2022, Namur-Est Environnement , C‑463/20, EU:C:2022:121, paragraphs 70 and 71).

40 Secondly, that participation must be effective, which means that the public should be able to express views on the project concerned and its environmental impact not only in a useful and comprehensive manner, but also at a juncture when all options are open (judgment of 24 February 2022, Namur-Est Environnement , C‑463/20, EU:C:2022:121, paragraph 72).

41 As regards consultations with the authorities likely to be concerned by the project by reason of their specific environmental responsibilities or local and regional competences, Article 6(1) of the EIA Directive provides, in essence, that those authorities must be given an opportunity to express their opinion on the information supplied by the developer and on the request for development consent.

42 That said, it should be noted, in the first place, that Article 6(1) of the EIA Directive does not specify at what stage of the procedure for assessing and granting development consent for projects subject to that directive consultation with those authorities must take place. That provision provides, on the contrary, that the detailed arrangements for consultation are to be laid down by the Member States.

43 Nor does the timing of such consultation follow from the other provisions of Article 6. In particular, Article 6(6) refers to consultations with authorities likely to be concerned by the project by reason of their specific environmental responsibilities or local and regional competences, on the one hand, and the public concerned, on the other, without indicating the order in which those consultations are to take place.

44 Nor does such a clarification appear in Article 1(2)(g)(ii) of the EIA Directive, or indeed, as regards consultations to be carried out, as the case may be, in another Member State likely to be significantly affected by a project, under Article 7(3) of that directive.

45 In the second place, Article 6(2) and (3) of the EIA Directive does not specify that the opinions expressed under Article 6(1) by the authorities referred to in the latter provision is information that must be communicated to the public or made available to the public concerned. Similarly, Article 6(4) of the EIA Directive does not stipulate that the public concerned is entitled to express comments and opinions, to the authority or authorities competent for granting development consent, on the opinions expressed under Article 6(1) by the authorities referred to in the latter provision.

46 As regards, more specifically, Article 6(3)(b) of the EIA Directive, which refers to making available to the public concerned ‘the main reports and advice issued to the competent authority or authorities’, it should be noted that that provision also does not refer to Article 6(1) of that directive but, on the contrary, to the law of the Member States.

47 Furthermore, although, having regard to the purpose of the EIA Directive, the concept of ‘reports and advice issued to the competent authority or authorities’ in Article 6(3)(b) of the EIA Directive may cover all the documents relevant to the environmental impact assessment of the project in question available to that authority or those authorities, it should be noted that the scope of Article 6(3)(b) is limited to the main reports and opinions issued to the competent authority or authorities ‘at the time when the public concerned is informed in accordance with paragraph 2 of this Article’.

48 Therefore, while it cannot be ruled out that, in accordance with national law, the most relevant opinions expressed, under Article 6(1) of the EIA Directive, by the authorities concerned referred to in the latter provision, may, pursuant to Article 6(3)(b), have to be communicated to the public concerned where those opinions have been issued to the competent authorities at the time when that public is informed, it cannot be inferred from that provision either that those opinions must, in any event, form part of the information which serves as the basis for consulting the public concerned.

49 Accordingly, it does not follow from the wording of the EIA Directive that the authorities likely to be concerned by the project by reason of their specific environmental responsibilities or local and regional competences must be consulted, under Article 6(1) of that directive, before the public concerned, or that the latter must, in any event, be entitled to express comments and opinions, to the authority or authorities competent for granting development consent, on the opinions expressed, under Article 6(1) of that directive by the authorities referred to in that provision.

50 Therefore, it is open to Member States to consult with authorities likely to be concerned by the project by reason of their specific environmental responsibilities or local and regional competences, on the one hand, and of the public concerned, on the other, at the same time and without the latter then being entitled to express its comments and opinions, to the authority or authorities competent for granting development consent for the project, on the opinions given in that connection by the consulted authorities, as was the case here.

51 In so far as recitals 16 to 19 of the EIA Directive highlight the objective of effective public participation in decision-making, it should be added that it follows from the wording of Article 6(2), (4) and (6)(b) and from Article 7(5) of the EIA Directive that the EU legislature took account of that objective when formulating those articles, without, however, expressly requiring that the authorities likely to be concerned by the project by reason of their specific environmental responsibilities or local and regional competences be consulted before the public concerned or that the latter be entitled to express comments and opinions, to the authority or authorities competent for granting development consent for the project, on the opinions given in that connection by the consulted authorities.

52 Furthermore, in Article 6(7) of the EIA Directive, the EU legislature chose the assessment report referred to in Article 5 of that directive as the starting point for the period of not more than 30 days that must be made available to the public concerned, in all circumstances, for consultation. That indicates that the EU legislature considers that report to be essential for effective public participation in decision-making.

53 Moreover, it follows from recitals 31 to 33 of Directive 2014/52 that, through the amendments to Article 5 of the EIA Directive and Annex IV thereto, the EU legislature sought to ensure that the data and information included by the developer in that report were complete and of sufficiently high quality and that, to that end, the experts involved in the preparation of environmental impact assessment reports of projects subject to the EIA Directive should be qualified and competent.

54 It follows that, in so far as the public concerned has, for the purposes of consultation in the context of the assessment and development consent process for projects subject to the EIA Directive, all the information referred to in Article 6(2) and (3) of that directive and, above all, for a period of not less than 30 days, the environmental impact assessment report drawn up in accordance with the requirements of Article 5 of the EIA Directive and Annex IV thereto, the participation of the public concerned can be considered to be effective. On the other hand, it is not necessary for that purpose that the public concerned should, in any event, also be entitled to express its views, in the context of that consultation, on the opinions expressed, under Article 6(1) of that directive, by the authorities referred to in that provision.

55 Moreover, as pointed out, in essence, by the German Government and the Commission in their written observations, a solution to the contrary could prove excessively burdensome for the national authorities concerned and prolong the procedure, which would not be compatible with the objective of an effective decision-making process referred to in recital 36 of Directive 2014/52.

56 That being said, it should be recalled that Article 6(3)(c) of the EIA Directive requires Member States to make available to the public concerned, in accordance with the provisions of Directive 2003/4, relevant information other than that referred to in Article 6(2) which becomes available after the public concerned has been informed pursuant to Article 6(2).

57 In the light of the foregoing considerations, the answer to the questions referred for a preliminary ruling are that the EIA Directive does not preclude legislation of a Member State under which, in the context of an environmental impact assessment procedure in respect of a project subject to that directive, the authorities likely to be concerned by that project by reason of their specific environmental responsibilities or local and regional competences are consulted at the same time as the public concerned, without the public concerned then being entitled to express its comments and opinions, to the authority or authorities competent for granting development consent for the project, on the opinions given in that connection by the consulted authorities.

Costs

58 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Tenth Chamber) hereby rules:

Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014,

must be interpreted as not precluding legislation of a Member State under which, in the context of an environmental impact assessment procedure in respect of a project subject to that directive, the authorities likely to be concerned by that project by reason of their specific environmental responsibilities or local and regional competences are consulted at the same time as the public concerned, without the public concerned then being entitled to express its comments and opinions, to the authority or authorities competent for granting development consent for the project, on the opinions given in that connection by the consulted authorities.

[Signatures]

* Language of the case: Spanish.