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Judgment of the Court (Grand Chamber) of 15 January

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2013 (request for a preliminary ruling from the Najvyšší

súd Slovenskej republiky — Slovakia) — Jozef Križan and

Others v Slovenská inšpekcia životného prostredia

(Case C-416/10) (1)

(Article 267 TFEU — Annulment of a judicial decision —

Referral back to the court concerned — Obligation to comply

with the annulment decision — Request for a preliminary

ruling — Whether possible — Environment — Aarhus

Convention — Directive 85/337/EEC — Directive 96/61/EC

— Public participation in the decision-making process —

Construction of a landfill site — Application for a permit

— Trade secrets — Non-communication of a document to

the public — Effect on the validity of the decision authorising

the landfill site — Rectification — Assessment of the envi­

ronmental impact of the project — Final opinion prior to

accession of the Member State to the European Union —

Application in time of Directive 85/337 — Effective legal

remedy — Interim measures — Suspension of implementation

— Annulment of the contested decision — Right to property

— Interference)

(2013/C 63/02)

Language of the case: Slovak

Referring court

Najvyšší súd Slovenskej republiky

Re:

Request for a preliminary ruling — Najvyšší súd Slovenskej

republiky — Interpretation of Articles 191(1) and (2) TFEU

and 267 TFEU, Council Directive 96/61/EC of 24 September

1996 concerning integrated pollution prevention and control

(OJ 1996 L 257, p. 26), in particular Articles 1, 6, 15 and

15a, Council Directive 85/337/EEC of 27 June 1985 on the

assessment of the effects of certain public and private projects

on the environment (OJ 1985 L 175, p. 40), in particular

Articles 2 and 10a, and Articles 6 and 9 of the (Aarhus)

Convention on access to information, public participation in

decision-making and access to justice in environmental

matters, concluded on behalf of the European Community by

Council Decision of 17 February 2005 (OJ 2005 L 124, p. 1)

— Establishment of a landfill site — Assessment of the envi­

ronmental effects of the project — Public participation in the

decision-making process — Possibility for a court of a Member

State to make a reference to the Court of Justice for a

preliminary ruling on the application, of its own motion, of

European Union law on the protection of the environment,

even if the Constitutional Court of that State has excluded

such application by a decision binding on the referring court.

Operative part of the judgment

1. Article 267 TFEU must be interpreted as meaning that a national

court, such as the referring court, is obliged to make, of its own

motion, a request for a preliminary ruling to the Court of Justice of

the European Union even though it is ruling on a referral back to

it after its first decision was set aside by the constitutional court of

the Member State concerned and even though a national rule

obliges it to resolve the dispute by following the legal opinion

of that latter court.

2. Council Directive 96/61/EC of 24 September 1996 concerning

integrated pollution prevention and control, as amended by Regu­

lation (EC) No 166/2006 of the European Parliament and of the

Council of 18 January 2006, must be interpreted as meaning that

it:

— requires that the public concerned have access to an urban

planning decision, such as that at issue in the main

proceedings, from the beginning of the authorisation

procedure for the installation concerned,

— does not allow the competent national authorities to refuse the

public concerned access to such a decision by relying on the

protection of the confidentiality of commercial or industrial

information where such confidentiality is provided for by

national or European Union law to protect a legitimate

economic interest, and

— does not preclude the possibility of rectifying, during the

administrative procedure at second instance, an unjustified

refusal to make available to the public concerned an urban

planning decision, such as that at issue in the main

proceedings, during the administrative procedure at first

instance, provided that all options and solutions remain

possible and that regularisation at that stage of the

procedure still allows that public effectively to influence the

outcome of the decision-making process, this being a matter

for the national court to determine.

3. Article 15a of Directive 96/61, as amended by Regulation No

166/2006, must be interpreted as meaning that members of the

public concerned must be able, in the context of the action

provided for by that provision, to ask the court or competent

independent and impartial body established by law to order

interim measures such as temporarily to suspend the application

of a permit, within the meaning of Article 4 of that directive,

pending the final decision.

4. A decision of a national court, taken in the context of national

proceedings implementing the obligations resulting from Article

15a of Directive 96/61, as amended by Regulation No

166/2006, and from Article 9(2) and (4) of the Convention

on access to information, public participation in decision-making

and access to justice in environmental matters, signed in Aarhus

on 25 June 1998 and approved on behalf of the European

Community by Council Decision 2005/370/EC of 17 February

2005, which annuls a permit granted in infringement of the

provisions of that directive is not capable, in itself, of constituting

an unjustified interference with the developer’s right to property

enshrined in Article 17 of the Charter of Fundamental Rights of

the European Union.


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Judgment of the Court (Fourth Chamber) of 14 March 2013

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(request for a preliminary ruling from the Oberster

Gerichtshof — Austria) — Jutta Leth v Republik

Österreich, Land Niederösterreich

(Case C-420/11) (1

)

(Environment — Directive 85/337/EEC — Assessment of the

effects of certain public and private projects on the

environment — Consent for such a project without an appro­

priate assessment — Objectives of that assessment —

Conditions to which the existence of a right to compensation

are subject — Whether protection of individuals against

pecuniary damage is included)

(2013/C 141/09)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: Jutta Leth

Defendants: Republik Österreich, Land Niederösterreich

Re:

Request for a preliminary ruling — Oberster Gerichtshof —

Interpretation of Article 3 of Council Directive 85/337/EEC of

27 June 1985 on the assessment of the effects of certain public

and private projects on the environment (OJ 1985 L 175,

p. 40), as amended by Council Directive 97/11/EC of 3

March 1997 (OJ 1997 L 73, p. 5) and Directive 2003/35/EC

of the European Parliament and of the Council of 26 May 2003

(OJ 2003 L 156, p. 17) — Authorisation of a project without

an appropriate assessment of its impact on the environment —

Action brought by an individual for compensation for the loss

in value which the project causes to his immovable property —

Objectives of the assessment of the impacts of certain public

and private projects on the environment — Whether or not

they include the protection of individuals against damage to

their assets.

Operative part of the judgment

Article 3 of Council Directive 85/337/EEC of 27 June 1985 on the

assessment of the effects of certain public and private projects on the

environment, as amended by Council Directive 97/11/EC of 3 March

1997 and by Directive 2003/35/EC of the European Parliament and

of the Council of 26 May 2003, must be interpreted as meaning that

the environmental impact assessment, as provided for in that article,

does not include the assessment of the effects which the project under

examination has on the value of material assets. However, pecuniary

damage, in so far as it is the direct economic consequence of the effects

on the environment of a public or private project, is covered by the

objective of protection pursued by Directive 85/337.

The fact that an environmental impact assessment has not been carried

out, in breach of the requirements of that directive, does not, in

principle, by itself, according to European Union law, and without

prejudice to rules of national law which are less restrictive as regards

State liability, confer on an individual a right to compensation for

purely pecuniary damage caused by the decrease in the value of his

property as a result of the environmental effects of that project.

However, it is for the national court to determine whether the

requirements of European Union law applicable to the right to

compensation, including the existence of a direct causal link between

the breach alleged and the damage sustained, have been satisfied.


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Judgment of the Court (Fourth Chamber) of 11 April 2013

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(request for a preliminary ruling from the Supreme Court

of the United Kingdom — United Kingdom) — The Queen,

on the application of David Edwards, Lilian Pallikaropoulos

v Environment Agency, First Secretary of State, Secretary

of State for Environment, Food and Rural Affairs

(Case C-260/11) (1)

(Environment — Aarhus Convention — Directive

85/337/EEC — Directive 2003/35/EC — Article 10a —

Directive 96/61/EC — Article 15a — Access to justice in

environmental matters — Meaning of ‘not prohibitively

expensive’ judicial proceedings)

(2013/C 156/07)

Language of the case: English

Referring court

Supreme Court of the United Kingdom

Parties to the main proceedings

Applicants: David Edwards, Lilian Pallikaropoulos

Defendants: Environment Agency, First Secretary of State,

Secretary of State for Environment, Food and Rural Affairs,

Re:

Request for a preliminary ruling — Supreme Court of the

United Kingdom — Interpretation of Article 10a of Council

Directive 85/337/EEC of 27 June 1985 on the assessment of

the effects of certain public and private projects on the

environment (OJ 1985 L 175, p. 40), as amended by

Directive 2003/35/EC of the European Parliament and of the

Council of 26 May 2003 providing for public participation in

respect of the drawing up of certain plans and programmes

relating to the environment and amending with regard to

public participation and access to justice Council Directives

85/337/EEC and 96/61/EC — Statement by the Commission

(OJ 2003 L 156, p. 17) — Interpretation of Article 15a of

Council Directive 96/61/EC of 24 September 1996 concerning

integrated pollution prevention and control (OJ 1996 L 257,

p. 26), as amended by Directive 2003/35/EC — Interpretation

of Article 9(4) of the (Aarhus) Convention on access to

information, public participation in decision-making and

access to justice in environmental matters concluded, on

behalf of the European Community, by Decision of the

Council of 17 February 2005 (OJ 2005 L 124, p. 1) — An

order that the unsuccessful party pay the costs of the

proceedings — Meaning of ‘not prohibitively expensive’

judicial proceedings.

Operative part of the judgment

The requirement, under the fifth paragraph of Article 10a of Council

Directive 85/337/EEC of 27 June 1985 on the assessment of the

effects of certain public and private projects on the environment and

the fifth paragraph of Article 15a of Council Directive 96/61/EC of

24 September 1996 concerning integrated pollution prevention and

control, as amended by Directive 2003/35/EC of the European

Parliament and of the Council of 26 May 2003, that judicial

proceedings should not be prohibitively expensive means that the

persons covered by those provisions should not be prevented from

seeking, or pursuing a claim for, a review by the courts that falls

within the scope of those articles by reason of the financial burden

that might arise as a result. Where a national court is called upon to

make an order for costs against a member of the public who is an

unsuccessful claimant in an environmental dispute or, more generally,

where it is required — as courts in the United Kingdom may be — to

state its views, at an earlier stage of the proceedings, on a possible

capping of the costs for which the unsuccessful party may be liable, it

must satisfy itself that that requirement has been complied with, taking

into account both the interest of the person wishing to defend his

rights and the public interest in the protection of the environment.

In the context of that assessment, the national court cannot act solely

on the basis of that claimant’s financial situation but must also carry

out an objective analysis of the amount of the costs. It may also take

into account the situation of the parties concerned, whether the

claimant has a reasonable prospect of success, the importance of

what is at stake for the claimant and for the protection of the

environment, the complexity of the relevant law and procedure, the

potentially frivolous nature of the claim at its various stages, and the

existence of a national legal aid scheme or a costs protection regime.

By contrast, the fact that a claimant has not been deterred, in practice,

from asserting his claim is not of itself sufficient to establish that the

proceedings are not prohibitively expensive for him.

Lastly, that assessment cannot be conducted according to different

criteria depending on whether it is carried out at the conclusion of

first-instance proceedings, an appeal or a second appeal.


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Case C- 244/12

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Judgment of the Court (Fifth Chamber) of 21 March 2013

Applicant: Salzburger Flughafen GmbH

Defendant: Umweltsenat

Intervener: Landesumweltanwaltschaft Salzburg, Bundesministerin

für Verkehr, Innovation und Technologie

Re:

Reference for a preliminary ruling — Verwaltungsgerichtshof —

Interpretation of Council Directive 85/337/EEC of 27 June

1985 on the assessment of the effects of certain public and

private projects on the environment (OJ 1985 L 175, p. 40)

— Projects liable to an assessment — Extension of an airport —

Member State’s legislation providing for an environmental

impact assessment of a project only if the annual number of

flights increases by no less than 20 000.

Operative part of the judgment

1. Articles 2(1) and 4(2)(b) and (3) of Council Directive

85/337/EEC of 27 June 1985 on the assessment of the effects

of certain public and private projects on the environment, as

amended by Council Directive 97/11/EC of 3 March 1997,

preclude national legislation which makes projects which change

the infrastructure of an airport and fall within the scope of Annex

II to that directive subject to an environmental impact assessment

only if those projects are likely to increase the number of aircraft

movements by at least 20 000 per year;

2. When a Member State, pursuant to Article 4(2)(b) of Directive

85/337, as amended by Directive 97/11, with regard to projects

falling within the scope of Annex II thereto, establishes a threshold

which is incompatible with the obligations laid down in Articles

2(1) and 4(3) of that directive, the provisions of Articles 2(1) and

4(2)(a) and (3) of the directive have direct effect, which means

that the competent national authorities must ensure that it is first

examined whether the projects concerned are likely to have

significant effects on the environment and, if so, that an

assessment of those effects is then undertaken.


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Donation annulled

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Mr Justice Lino Farrugia Sacco has declared two contracts of donation to be null and void as they were contracted in a fraudulent manner.

Joanne Cassar instituted a case against Joseph St John and William St John and their wives. She asked the First Hall Civil Court to declare that two contracts of donation between Joseph St John to his son William St John were fraudulently made and made with the intention of defrauding the plaintiff’s rights. She also requested the Court to declare such contracts null and void.

The case stemmed from previous proceedings between Joanne Cassar and Joseph St John, which case related to a car accident between the parties in 1979. In July 2009 the First Hall Civil Court decided that the defendant Joseph St John was responsible for causing the accident and he was ordered to pay €226,313.67 in damages. As a result, St John, predicting the decision, proceeded to donate all the immovable property in his name to his son, William.

The defendants claimed that the contracts of donation were not fraudulently contracted and that the plaintiff had plenty of time to protect her rights as the case took over 28 years to be decided. Furthermore, they stated that the immovable property in question was purchased during marriage and therefore Mr St John only owned half of the shares in question.

The court, after compiling all the evidence produced by the parties, made reference to Article 1144 of the Civil Code, which reads, “It shall also be competent to any creditor in his own name to impeach any act made by the debtor in fraud of his claims…” The action envisaged by this article is generally known as the Actio Pauliana, and Judge Farrugia Sacco quoted previous judgments and authors and highlighted the reason for such action. In applying the said Article, the Court noted that the donations were made four months before the aforementioned judgment was delivered and therefore the plaintiff was instituting this case in order to reinstate the position she was in before the donations were made. The court also noted that when Mr St John was giving his property on donation to his son, he knew that he was prejudicing the plaintiff’s position, as she could not have a right to claim against any other property in order to substantiate her title.

Finally with reference to the defendant’s first plea, which stated that Mary St John was not a party to the first proceedings in the name Joanne Cassar vs. Joseph St John, the court, after taking into consideration a previous judgment, noted that Mrs St John knew about the case and also knew that if the Court had canonised the debt, such debt would be burdened on the Community of Acquests. Judge Farrugia Sacco also stated that Mrs St John was well aware of the situation as she entered into a contract to dissolve the Community of Acquests, in order to avoid any debts which would have been created and was receiving cheques from the plaintiff in connection with the debt in question. As a result of this, the Court denied the defendant’s plea.

The Court concluded that the property in question was donated fraudulently and with the intention to prejudice the plaintiff’s rights which emanated from a previous court decision. The court therefore upheld the pleas of the plaintiff and declared both contracts of donation to be null and void.


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Deposit ruled refundable and not forfeitable

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Mr. Justice Lino Farrugia Sacco, presiding over The First Hall of the Civil Court on 11 June 11 2013 in the case Raymond Grima et al v. Pio Chetcuti et al held that when the Commissioner of Inland Revenue is not notified of a promise of sale and, furthermore, when no tax is paid to the Commissioner in terms of Article 3(6) of the Duty on Documents and Transfers Act for the promise of sale, it is rendered invalid. The court was of the opinion that the deposit paid was not paid as a ‘kappara’, or a forfeitable deposit, and therefore was to be reimbursed to the applicants.

Raymond and Lourdes Grima entered into a promise of sale agreement on 25 March 2009 for six months with defendants Pio Chetcuti, Jacqueline Chetcuti, Joseph Chetcuti and Antoinette Chetcuti for the purchase of a penthouse in Attard, including its airspace. The agreement was never duly registered by a notary.

The applicants claimed that they filed legal proceedings to be refunded the sum of €23,293 together with interest as from 25 September 2009, since the defendants had never instituted proceedings to enforce the deed of sale. The sum had been paid by way of deposit on the promise of sale.

In September 2009 the defendants served the applicants with a judicial letter to appear on the final deed of sale. They claimed that that applicants had acted illegally and abusively when they failed to pay the notary 1% tax and as a result, the promise of sale agreement was not registered. The applicant never returned the keys to the apartment, thereby denying the defendants the free and unencumbered enjoyment of the property.

In their counterclaim, the defendants cited damages from 25 March 2009 and asked the court to grant the return of the keys and possession of the apartment. In reply, the applicants denied ever having acted in bad faith and, therefore, responsibility for any damages, though they were willing to return the keys.

Citing the judgment ‘Maria mart Vincent Cascun et al v. Carmelo Scicluna pro et noe (Citaz.Nru.42/88) deciza fis-27 ta’ Jannar, 2009′, the court explained that Article 3(6) of the Duty on Documents Act states that a promise of sale shall not be valid unless notice thereof is given to the Commissioner within such time and in such manner and containing such particulars as may be prescribed, together with a provisional payment equivalent to 20% of the amount chargeable in terms of articles 32 and 40. The court claimed that there was no evidence that this was fulfilled. Therefore the promise of sale could not be considered valid.

The court also examined whether the €23, 293 deposit paid was paid in the form of an earnest kappara or as a deposit ‘on account of’ the price, which would make it refundable.

The court noted that jurisprudence has not been consistent in its interpretation of the nature of a deposit paid, but agreed with the interpretation of 14 May 2010 in the case Reginald Vella et al v. Angela Galea pro et noe. The Court of Appeal noted that if the deposit was paid as a forfeitable deposit, it was not to be reimbursed if the person who effected payment failed to appear on the final deed of sale without a valid reason. Also, there was no need for legal proceedings to be instituted in terms of Article 1357 of the Civil Code. Only if the other party believed that he or she had a valid reason for not appearing on the contract could he or she file proceedings to have the deposit returned.

The court was of the opinion that, in this case, the sum paid was a deposit ‘on account of’ the price. It agreed with the applicants’ interpretation that even though the defendants insisted that they had filed a judicial letter, the court had never seen it, but they definitely never followed it by a court application as contemplated under Article 1357 (2) of the Civil Code, so the applicants were entitled to the return of their deposit.


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