Avis juridique important

61999J0516

European Court reports 2002 Page I-04573

Summary

Preliminary rulings - Reference to the Court - National court or tribunal within the meaning of Article 234 EC - Definition - Appeal chamber of a regional finance authority in Austria - Excluded (Art. 234 EC)

In order to determine whether a body making a reference is a court or tribunal for the purposes of Article 234 EC, which is a question governed by Community law alone, it is necessary to take account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent. The criterion of independence is not fulfilled by an appeal chamber of a regional finance authority (appellate tax authority) in Austria which is competent to hear appeals against decisions of the tax authorities.

The expression court or tribunal within the meaning of Article 234 EC can mean only an authority acting as a third party in relation to the authority which adopted the contested decision, and it is impossible to regard an authority such as the appeal chamber as a third party, since there is an organisational and functional link between it and the regional finance authority which adopts the decisions contested before it.

Parties

In Case C-516/99,

REFERENCE to the Court under Article 234 EC by the Berufungssenat V der Finanzlandesdirektion für Wien, Niederösterreich und Burgenland (Austria) for a preliminary ruling in the proceedings brought by Walter Schmid on the interpretation of Articles 73b and 73d of the EC Treaty (now Articles 56 EC and 58 EC),

THE COURT (Fifth Chamber),

composed of: P. Jann, President of the Chamber, S. von Bahr, D.A.O. Edward, M. Wathelet (Rapporteur) and C.W.A. Timmermans, Judges,

Advocate General: A. Tizzano,

Registrar: R. Grass,

after considering the written observations submitted on behalf of:

- the Austrian Government, by H. Dossi, acting as Agent,

- the French Government, by K. Rispal-Bellanger and S. Seam, acting as Agents,

- the Commission of the European Communities, by E. Traversa and K. Gross, acting as Agents,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 29 January 2002,

gives the following

This request for a preliminary ruling concerns the interpretation 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) (‘Directive 2011/92’).

The request has been made in proceedings between, on the one hand, Waltham Abbey Residents Association and, on the other hand, An Bord Pleanála (Planning Board, Ireland; ‘the Board’), Ireland and the Attorney General (Ireland), concerning authorisation granted by the Board for a strategic residential housing development.

Legal context

European Union law

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. ...

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘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:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]’

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

must be interpreted as meaning that where, in the context of a screening procedure carried out under that provision, a third party has provided the competent authority with objective evidence as regards the potential significant effects of that project on the environment, in particular on a species protected under Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, as amended by Council Directive 2013/17/EU of 13 May 2013, that authority must ask the developer to provide it with additional information and take that information into account before deciding whether or not an environmental impact assessment is necessary for that project. However, where, despite the observations submitted to that authority by a third party, the competent authority is able to rule out, on the basis of objective evidence, the possibility that the project in question is likely to have significant effects on the environment, that authority may decide that an environmental impact assessment is not necessary, without being required to ask the developer to provide it with additional information.

Gratsias

Passer

Smulders

Delivered in open court in Luxembourg on 6 March 2025.

Registrar

President of the Chamber

ECLI:EU:C:2025:140

15

28It is the contention of the Austrian Government, the Commission and the referring body itself that an authority such as the Fifth Appeal Chamber must be regarded as a court or tribunal within the meaning of Article 234 EC.

29In their submission, such an authority satisfies the conditions laid down in the Court's case-law, in particular in Case C-54/96 Dorsch Consult [1997] ECR I-4961, paragraph 23 (and the case-law there cited), namely that the body is established by law, it is permanent, its jurisdiction is compulsory, its procedure is inter partes, it applies rules of law and it is independent.

30As regards, more specifically, the requirement of independence, the Fifth Appeal Chamber states that, in accordance with Paragraph 271(1) of the BAO, appeal chamber members are not bound by any directions in the exercise of their functions.

31According to the Austrian Government, the independence of a body such as an appeal chamber does not follow exclusively from the absence of any obligation to follow directions. It stresses that criticisms have been levelled in Austrian academic writings against the dual role of the President of the regional finance authority who, on the one hand, is the head of that tax authority and, on the other, influences the membership of the appeal chambers, and against the hybrid role of the regional finance authority official who is also a member of the appeal chamber, an official who, on the one hand, is bound by directions in his department and, on the other, is not bound by any directions as a member of the appeal chamber.

32The Austrian Government submits that those objections can be disregarded in view of the practice which, as regards the two appeal chamber members who belong to the tax authority, ensures that there is a separation of functions between the appeal chamber, which is required to rule on complaints against decisions taken by the regional finance authority, and the departments of that authority whose decisions are challenged. Thus, in fact, the President of a regional finance authority does not himself assume the presidency of the appeal chamber and nominates a finance official to exercise that function. Moreover, the second member of the appeal chamber who comes from the tax authority intervenes, in his capacity as an appeal chamber member, only outside the fields and procedures for which he is usually responsible in his capacity as a tax official.

33The Commission states that, as bodies of the appellate tax authority (Paragraph 260(2) of the BAO), the appeal chambers are an integral part of that authority, at least from the organisational point of view. It submits, however, that there are various factors which are such as to ensure the independence of the appeal chambers from that administrative authority: first, the composition of the appeal chambers, the majority of whose members do not come from the tax authority but are delegated by the professional bodies (Paragraph 270(3) of the BAO); second, the express guarantee of the lack of any direction given to the members of the appeal chambers (Paragraph 271(1) of the BAO) and the obligation, for those members, to withdraw where there is a well-founded suspicion of partiality (Paragraph 283 of the BAO), and, finally, the option for the President of the regional finance authority to bring before the Administrative Court an appeal against the decision of the appeal chamber (Paragraph 292 of the BAO), which shows that the appeal chambers can adopt a decision against the tax authority.

34According to settled case-law, in order to determine whether a body making a reference is a court or tribunal for the purposes of Article 234 EC, which is a question governed by Community law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent (see, in particular, Dorsch Consult, paragraph 23, and the case-law there cited, and Joined Cases C-110/98 to C-147/98 Gabalfrisa and Others [2000] ECR I-1577, paragraph 33).

35It is unnecessary to determine whether the appeal chambers satisfy the other conditions for them to be categorised as courts or tribunals for the purposes of Article 234 EC, since it does not appear that the criterion of independence is fulfilled.

36It must be remembered that the expression court or tribunal within the meaning of Article 234 EC can mean only an authority acting as a third party in relation to the authority which adopted the contested decision (Case C-24/92 Corbiau [1993] ECR I-1277, paragraph 15).

37The authority before which an appeal can be brought against a decision adopted by a department of an administrative authority cannot be regarded as a third party in relation to that department and, accordingly, as a court or tribunal within the meaning of Article 234 EC, where it has an organisational link with that administrative authority (see, to that effect, Corbiau, paragraph 16). This will be so unless the national legal framework is such as to ensure a separation of functions between, on the one hand, the department of the administrative authority whose decision is being challenged and, on the other, the authority which rules on complaints lodged against decisions of that department without receiving any directions from the administrative authority to which that department is responsible (see, to that effect, Gabalfrisa and Others, paragraph 39).

38Where there is an organisational and functional link between an appeal chamber and the regional finance authority which adopts the decisions contested before it, it is impossible to regard the chamber as a third party in relation to that administrative authority.

39As regards, first, the existence of an organisational link, it is not disputed that two of the five members of the appeal chamber belong to the tax authority. It is noteworthy, in that regard, that at least according to the terms of the legislation the President of the regional finance authority is a member as of right of the appeal chamber, of which he exercises the function of president.

40As regards, second, the existence of a functional link, it should be noted, first of all, that the official of the regional finance authority who is the second member of the appeal chamber drawn from the tax authority continues, in addition, to pursue his activities within that authority and is, in that capacity, subject to the directions of his hierarchical superiors.

41Next, under Paragraph 270(1) of the BAO, the President of the regional finance authority has the power to nominate members of the appeal chambers on the basis of the lists of appeal commission members. There is no legislative provision to prevent him from modifying, at his discretion, the composition of an appeal chamber for the inquiry into each complaint, or even in the course of the inquiry into a complaint. In the absence of an express legislative provision determining the length of the mandate of appeal chamber members and specifying the conditions of removal, members cannot be said to enjoy sufficient safeguards against undue intervention or pressure on the part of the executive (see, to that effect, Case C-103/97 Köllensperger and Atzwanger [1999] ECR I-551, paragraph 21).

42Finally, and above all, the President of the regional finance authority may - and here he is subject to possible directions from the Finance Minister - bring an appeal against a decision of an appeal chamber (Paragraph 292 of the BAO) and on that occasion defend a point of view different from that adopted by the chamber of which he is president.

43In those circumstances, the prohibition in Paragraph 271(1) of the BAO against receiving directions in the exercise of the functions of an appeal chamber member, the fact that, in practice, the President of the regional finance authority does not himself, as, in law, he may, assume the presidency of the appeal chamber and nominates for that purpose another member of the tax authority, and the fact that the second member of the chamber belonging to the tax authority does not intervene on the questions and procedures with which he is usually involved within that administrative authority do not suffice to guarantee the independence of an appeal chamber.

44It is clear from the foregoing that an appeal chamber does not constitute a court or tribunal within the meaning of Article 234 EC and that, as a consequence, the Court has no jurisdiction to answer the questions referred by the Fifth Appeal Chamber.

Decision on costs

Costs

45The costs incurred by the Austrian and French Governments and by the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the Fifth Appeal Chamber, the decision on costs is a matter for that chamber.

Operative part

On those grounds,

hereby rules:

The Court of Justice of the European Communities has no jurisdiction to answer the questions referred by the Berufungssenat V der Finanzlandesdirektion für Wien, Niederösterreich und Burgenland, by order of 2 December 1999.