ECJ: Environmental Impact Assessment Thresholds

Jun 16, 2023 Benn-Ibler Rechtsanwälte

The European Court of Justice (hereinafter ECJ) has ruled that environmental impact assessments for urban development projects do not depend exclusively on the size of such projects. EU law precludes threshold values if they are set so high that, in practice, almost all projects of certain types would be excluded from environmental impact assessments from the very outset.

WertInvest Hotelbetrieb applied to the City of Vienna for the issuance of a building permit for the Heumarkt Neu project located in the core zone of the UNESCO World Heritage Site ‘Historisches Zentrum Wien’. The existing area would be redeveloped; the land required for the project comes to approximately 1.55 hectares.

The City of Vienna remained unresponsive and did not issue a building permit. WertInvest, on the other hand, filed a default complaint with the local Administrative Court requesting that a building permit be granted. In WertInvest’s view, the project was not subject to an environmental impact assessment, considering the threshold values and criteria laid down in Austrian law. The Administrative Court sees itself required to decide in advance whether an environmental impact assessment is to be carried out at all, but has doubts as to whether Austrian regulations on environmental impact assessment are even compatible with European Directive 2011/92. In Austria, environmental impact assessments for urban development projects only have to be carried out if the threshold values are exceeded for land use upwards of 15 hectares.

The ECJ ruled on this issue as follows:

Where a Member State sets thresholds for determining whether environmental impact assessments are necessary, it is necessary to take into account considerations such as the location of a project, for example by setting more than one threshold for different project sizes and by applying them to the type of location. A site classified as a UNESCO World Heritage Site, as in the present case, would be particularly significant in determining such a threshold. 15 hectares in an urban location present so large an area that the obligation to carry out an environmental impact assessment would be non-applicable from the very outset for almost all such projects.

ECJ, C-575/21(25.05.2023)