Member States must assess the environmental impact of urban development projects on places of historical, cultural or archaeological significance, according to the Advocate General of the CJEU

In case C-575/21, the CJEU addresses the request for a preliminary ruling made by an administrative court in Vienna wishing to ascertain, inter alia, whether a national rule which only requires an environmental impact assessment of urban development projects of a certain size contradicts Directive 2011/92, of the European Parliament and of the Council, of December 13, 2011, on the assessment of the effects of certain public and private projects on the environment.

The question arises from the important “Heumarkt Neu” construction project, which is planned to be carried out in the historical center of Vienna, a UNESCO World Heritage Site. The project in question does not reach the size thresholds necessary so that, under Austrian legislation, it must undergo an environmental impact assessment.

Having the developer appealed the implied rejection of the application for the necessary building permit to carry out the project, the regional court decided to suspend the judicial proceedings and to seek a preliminary ruling from the CJEU on the interpretation of the above-mentioned Directive 2011/92.

Although the decision of the CJEU is not known yet, the opinion of Advocate General Collins has been recently published, in which basically he proposes to the CJEU to rule as follows:

• That the above-mentioned directive precludes national legislation which only takes into account the size of urban development projects and does not bear in mind their location to decide whether they must undergo an environmental impact assessment, thereby excluding from this procedure small-scale projects located in places of historical, cultural or archaeological significance, as are the places declared UNESCO World Heritage Sites.
• That the directive also precludes national legislation according to which, when assessing whether an environmental impact assessment is necessary due to the cumulative effects of an urban development project with other projects, only similar urban development projects are to be taken into consideration. According to the Advocate General, to determine whether a project is to be subject to an environmental impact assessment, a national authority must examine its potential to create significant effects on the environment in the context of other projects. Therefore, the scope of that assessment is not limited to projects of the same kind.
                     
  Nor may the size of the project in question be the criterion that determines the need to assess the cumulative effects, since even the smallest-scale projects may have significant effects on the environment.
• That, when a State has incorrectly transposed the directive, by having established thresholds that exceed the discretion conferred on it by the directive to determine the projects that must undergo an environmental impact assessment, it will be the responsibility of the authorities of that Member State to take all of the measures necessary to ensure those projects are examined on a case-by-case basis in order to determine whether they may lead to significant effects on the environment.

Although, as is well known, the opinions of Advocate Generals are not binding on the CJEU, they carry great weight. Therefore, one cannot rule out the possibility that the proposals made in this case may create a new line of European case law that provides greater protection for historical, cultural or archaeological heritage in the context of urban development projects.