Avis juridique important

61999J0215

European Court reports 2001 Page I-01901

Summary

Parties

In Case C-215/99,

REFERENCE to the Court under Article 177 of the EC Treaty (now Article 234 EC) by the Landesgericht Feldkirch, Austria, for a preliminary ruling in the proceedings pending before that court between

on the interpretation of Articles 10a(1) and 19(1) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1),

THE COURT,

composed of: G.C. Rodríguez Iglesias, President, C. Gulmann, A. La Pergola, M. Wathelet, V. Skouris (Presidents of Chambers), D.A.O. Edward, J.-P. Puissochet (Rapporteur), P. Jann, L. Sevón, R. Schintgen, F. Macken, N. Colneric, S. von Bahr, J.N. Cunha Rodrigues and C.W.A. Timmermans, Judges,

Advocate General: S. Alber,

Registrar: H.A. Rühl, Principal Administrator,

after considering the written observations submitted on behalf of:

the Austrian Government, by C. Stix-Hackl, acting as Agent,

the German Government, by W.-D. Plessing and C.-D. Quassowski, acting as Agents,

the Commission of the European Communities, by P. Hillenkamp and C. Egerer, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of the Austrian Government, represented by G. Hesse, acting as Agent; the French Government, represented by C. Bergeot, acting as Agent; the Netherlands Government, represented by M.A. Fierstra, acting as Agent; the United Kingdom Government, represented by E. Sharpston QC; and the Commission, represented by V. Kreuschitz and C. Egerer, acting as Agents, at the hearing on 25 October 2000,

after hearing the Opinion of the Advocate General at the sitting on 14 December 2000,

gives the following

1 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’).

2 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

3 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.

ECLI:EU:C:2025:140

(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.’

4 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.

3. A description of any likely significant effects, to the extent of the information available on such effects, of the project on the environment resulting from:

(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

21In that context, it is permissible for the Community legislature to adopt provisions which derogate from the principle of the exportability of social security benefits (see, inter alia, Snares, paragraph 41). Derogating provisions of that kind, such as those provided for by Article 10a of Regulation No 1408/71, must be interpreted strictly. This means that they can apply only to benefits which fulfil the conditions they define. It follows that Article 10a can apply only to benefits which satisfy the conditions defined in Article 4(2a) of Regulation No 1408/71, that is, benefits which are both special and non-contributory and are listed in Annex IIa to that regulation.

22The Court must therefore examine whether the benefit at issue in the main proceedings, which is listed in Annex IIa to Regulation No 1408/71, is special and non-contributory.

Special benefit

23While the German Government and the Commission accept that care allowance is a benefit to which Regulation No 1408/71 applies, the Austrian Government submits that it is a measure which forms part of its social assistance policy. It considers that the risk of reliance on care is closer to the risk of poverty than to that of sickness.

24However, the Court has already decided this point in the Molenaar case. It held that the provisions concerning the grant of German care insurance benefits confer on recipients a legally defined right and that those benefits, the aim of which is to improve the state of health and quality of life of persons reliant on care, are essentially intended to supplement sickness insurance benefits.

25According to settled case-law, a benefit may be regarded as a social security benefit in so far as it is granted, without any individual and discretionary assessment of personal needs, to recipients on the basis of a legally defined position and relates to one of the risks expressly listed in Article 4(1) of Regulation No 1408/71 (Case 249/83 Hoeckx [1985] ECR 973, paragraphs 12 to 14; Case C-356/89 Newton [1991] ECR I-3017; Case C-78/91 Hughes [1992] ECR I-4839, paragraph 15; and Molenaar, paragraph 20). It was on the basis of that case-law, taking account of the constituent elements of the German care insurance benefits, that the Court held, in paragraph 25 of Molenaar, that those benefits were to be regarded as sickness benefits within the meaning of Article 4(1)(a) of Regulation No 1408/71 and, in paragraph 36 of that judgment, that they were to be regarded as cash benefits of sickness insurance as referred to inter alia in Article 19(1)(b) of that regulation.

26In the case in point in the main proceedings, while care allowance may possibly have a different legal regime at national level, it nevertheless remains of the same kind as the German care insurance benefits at issue in Molenaar, and is likewise granted objectively on the basis of a legally defined situation.

27First, under Paragraph 3(1) of the BPGG, entitlement to care allowance is conferred only on recipients of a pension who have suffered an accident at work or an occupational disease or recipients of a pension under the Allgemeines Sozialversicherungsgesetz (General Law on social security). Second, under Paragraphs 22 and 23 of the BPGG, the compulsory pension and accident insurance institutions are initially responsible for paying the allowance, being subsequently reimbursed by the federal budget for their expenditure in this respect.

28The conditions for granting care allowance and the way in which it is financed cannot have the intention or the effect of changing the character of care allowance as analysed in the Molenaar judgment, in which it was held that benefits of that type are essentially intended to supplement sickness insurance benefits, to which they are, moreover, linked at the organisational level, in order to improve the state of health and quality of life of persons reliant on care (Molenaar, paragraph 24). In those circumstances, even if they have their own characteristics, such benefits must be regarded as sickness benefits in cash within the meaning of Article 4(1)(a) and (b) of Regulation No 1408/71 (Molenaar, paragraph 25). It is of no importance in those circumstances that the care allowance is intended to provide a financial supplement, having regard to a person's reliance on care, to a pension paid on a basis other than sickness. Thus, whether it is contributory or non-contributory, the allowance, as the German Government moreover observes, must be regarded as a cash sickness benefit within the meaning of Article 4(1)(a) of Regulation No 1408/71, and does not therefore come under Article 4(2a) of that regulation.

Non-contributory benefit

29As regards the method of financing the care allowance, the aim of the BPGG which introduced it was to create a system intended to ensure that all persons reliant on care should receive uniform cash benefits throughout Austria, thereby supplementing the cover of the social risk of reliance on care already ensured at regional level by some Länder.

30The BPGG further provides that the allowance is to be financed federally under the procedure described in paragraph 27 above. Thus, in the case in point in the main proceedings, the cash benefits are initially paid by the statutory pension and accident insurance institutions, and Paragraph 23 of the BPGG provides that the sums thus paid by those institutions are then repaid out of federal funds in the form of a reimbursement. At the budgetary level, the Austrian Government released the funds needed for that expenditure by reducing the federal contribution to pension insurance. In order to balance that reduction, the sickness insurance contribution payable by the pension insurance institutions was reduced by the same amount as the reduction in the federal contribution to pension insurance.

31The Commission, however, considers, first, that the financing is in reality borne by the persons insured under the social security scheme, since, to compensate for the reduction of sickness insurance receipts, contributions to that insurance were increased in 1993. It observes, second, that the care allowance thus financed benefits insured persons only.

32It must be stated, with respect to this latter argument, that no principle or provision of Community law prohibits the legislature of a Member State from establishing different social protection schemes for different social or occupational categories. The fact that only persons insured under the social security scheme receive the care allowance introduced by the BPGG is not capable by itself of establishing that that benefit is financed by their sickness insurance contributions, even though, by virtue of the Molenaar judgment, the allowance must be analysed as a sickness benefit. No rule of Community law prohibits national legislation from treating the risk of reliance on care separately and financing it differently from other sickness benefits.

33As regards the increase in sickness insurance contributions, however, the Austrian Government itself acknowledges that this was decided on in order to compensate for the reduction of the contributory financial transfers from pension insurance to the sickness insurance institutions, that reduction in turn being intended to reduce to a proper level the federal contribution to pension insurance so as to release the necessary resources for financing the new care allowance. The financing of that benefit was therefore made possible, without altering sickness, old-age and accident benefits, by means of increasing sickness insurance contributions. The link, albeit indirect, with sickness insurance contributions is all the stronger in that the abstraction of resources from sickness insurance is made from the contributory portion of receipts. Care allowance is therefore contributory in character.

34Care allowance does not therefore meet the conditions in Article 10a of Regulation No 1408/71, which reserves the benefit of the special non-contributory benefits referred to in Article 4(2a) of that regulation to persons resident in the Member State in which they are paid.

35It follows that, in accordance with the provisions of Article 19(1)(b) of Regulation No 1408/71 and the corresponding provisions of the other sections of Chapter 1 of Title III of that regulation, care allowance, which is to be regarded as a sickness benefit in cash, must be provided irrespective of the Member State in which a person reliant on care, who satisfies the other conditions for receipt of the benefit, is resident.

36In those circumstances, the answer to the question referred must be that Article 19(1) of Regulation No 1408/71 and the corresponding provisions of the other sections of Chapter 1 of Title III of that regulation preclude entitlement to care allowance under the BPGG from being subject to the condition that the person reliant on care must be habitually resident in Austria.

Decision on costs

Costs

37The costs incurred by the Austrian, German, French, Netherlands and United Kingdom 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 action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT,

in answer to the question referred to it by the Landesgericht Feldkirch by order of 16 March 1999, hereby rules:

Article 19(1) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, and the corresponding provisions of the other sections of Chapter 1 of Title III of that regulation preclude entitlement to Pflegegeld (care allowance) under the Bundespflegegeldgesetz (Austrian Federal Law on care allowance) from being subject to the condition that the person reliant on care must be habitually resident in Austria.