EIA conflicts of interest flagged in CJEU ruling

Public bodies need to be cautious when acting as both a project developer and as a competent authority for Environmental Impact Assessment (EIA) purposes on a project, write Leonora Mullett and David Wacks in a briefing note on the Philip Lee website.

A recent CJEU decision is relevant to competent authorities that carry out EIA screening functions, the lawyers point out.

The case concerns article 9a of the EIA Directive inserted by the amending 2014 Directive, which provides:

“Member states shall ensure that the competent authority or authorities perform the duties arising from this Directive in an objective manner and do not find themselves in a situation giving rise to a conflict of interest.

“Where the competent authority is also the developer, Member States shall at least implement, within their organisation of administrative competences, an appropriate separation between conflicting functions when performing the duties arising from this Directive.”

This could arise where a local authority is carrying out what is often referred to as ‘own’ or ‘part 8 development’ under section 179 of the Planning and Development Act 2000, as amended, and part 8 of the Planning and Development Regulations 2001.

For a local authority to proceed with such development, it is necessary to screen to ensure that neither an EIA nor Appropriate Assessment is required.

If either are required, an application for consent must be made to An Bord Pleanála.

Core findings

The case of Provincie Oost-Vlaanderen and Sogent Case C-236/24 involved a request by a Belgian court for a preliminary ruling by the CJEU concerning a development consent that allowed for the reconversion of a laundry site.

‘Sogent’, a Belgian public body, applied to Ghent municipal council for development consent for the project, which was accompanied by a screening note on the expected effects of that project on the environment.

An environmental officer for the City of Ghent decided that that the project “did not have an expected significant effect on the environment” and, as such, an EIA was not required.

Development consent was granted to Sogent by the municipal council of the City of Ghent.

Owners of an adjacent building brought an administrative appeal of the environmental officer’s decision and this was dismissed.

The decision was further appealed by the building owners to the Belgian Council for consent disputes, which held in their favour and annulled the decision to grant development consent.

It considered that the decision was contrary to article 9a of the EIA Directive on the basis that the municipal council of the City of Ghent was the ‘de facto’ developer of the project and that it had erred in finding that it was competent to decide on the application for development consent at issue.

This decision was appealed by the Province of East Flanders and Sogent to the Belgian Council of State, which stayed proceedings and referred the following question to the CJEU:

“Is Article 9a of [Directive 2011/92] to be interpreted as meaning that, in cases where the competent authority is also the developer, the appropriate separation between conflicting functions when performing the duties arising from that directive must also be applied to the assessment of whether the projects referred to in Article 4(2) of [that] directive are subject to assessment in accordance with Articles 5 to 10 of [that] directive?”

Appropriate separation

The CJEU held that where the competent authority was also the developer, member states shall at least implement, within their organisation of administrative competences, an appropriate separation between conflicting functions when performing the duties arising from the EIA Directive.

It held:

“That appropriate separation must be organised in such a way that an administrative body internal to the authority competent to make that determination has real autonomy, meaning, in particular, that it is provided with administrative and human resources of its own and is thus in a position to perform its duty objectively”.

The CJEU reiterated the position that the interpretation of a provision of EU law requires account to be taken not only of its wording, but also of its context, and the objectives and purpose pursued by the act of which it forms part.

The legislative history of a provision of EU law may also reveal elements that are relevant to its interpretation.

It held that the references to “performing duties arising from the directive” used in both paragraphs of article 9a, includes the duty of performing EIA screening.

The court held that “the need to ensure consistency in the application of the safeguards laid down in Article 9a of Directive 2011/92 presupposes that the competent authority can take a decision in an objective manner and does not find itself in a situation giving rise to a conflict of interest, in particular with regard to the developer who provides that authority with the information on the basis of which it must take a decision, both during the screening procedure and during the environmental impact assessment procedure”.

The court found that the effectiveness of article 9a would be undermined if the objectivity of the competent authorities and the absence of conflicts of interest were not guaranteed at all stages of the performance of the duties entrusted to those authorities on both screening and subsequent assessment of the environmental effects of a project.

What does this mean?

The CJEU made specific reference to the competent authority having administrative and human resources to ensure the requisite objectivity by those making EIA decisions.

A practical way to proceed would be for a public body, which is a competent authority and developer, to initially consider the need for an EIA screening, identify who will carry it out and who will make determinations.

Records should demonstrate that no conflicts arose.

A failure to take heed of this CJEU judgment could give rise to an appeal or judicial-review proceedings.