Case Study based on Case C-416/10 Krizan Workshop on EU Law on Industrial Emissions Budapest, 3 June 2013 Dr. Christoph Sobotta, Chambers of Advocate General Juliane Kokott Court of Justice of the European Union Work in Progress, licence: CC-BY-SA 3.0 Germany

The Facts Landfill in a former clay pit in a town 7/5/2007: urban planning decision on the location of the landfill 25/9/2007:application for an integrated permit 17/10/2007: 30 days public consultation

The Dispute The planning decision is not part of the available information In response to a complaint the planning decision is considered a commercial secret Subsequently the integrated permit is issued by the first administrative instance On appeal the second administrative instance makes the planning decision available, again consults the public, but confirms the permit

Court proceedings The Regional Court dismisses the legal action against the permit On appeal, the Supreme Court annuls the permit because the planning decision should have been available in the administrative first instance The Constitutional Court finds a breach of the rights to effective legal protection and to property because the Supreme Court did not examine whether a possible illegality had been healed during the second administrative instance. It annuls the judgment of the Supreme Court.

Reference to the CJEU? The Supreme Court looks for a resolution from Luxembourg. Two issues are being discussed: Is the decision of the Constitutional Court an obstacle to a reference? Is the validity of the integrated permit affected by the withholding of the urban planning decision during the first administrative instance?

Additional Question An EIA was conducted in 1999 In 2006 its validity was extended without further studies or public consultations Slovak law provides that complaints against the EIA must be introduced in a separate judicial procedure The Supreme Court raised the EIA ex officio an found the extension invalid The Constitional Court found the Supreme Court incompetent for the issue Questions to the CJEU?

Results See Case C-416/10 Krizan The Opinion currently is available in all languages but English. To be presented later.

On the Constitutional Court All Courts have the power to bring a reference. A request by a party is not necessary. Binding decisions of a higher court do not limit the freedom to bring a reference if the outcome could be relevant to the case. A Constitutional Court, limited to questions of constitutional law, is not an additional judicial instance. >> The Supreme Court probably is obliged to make a reference.

On the availability of the planning decision The planning decision is relevant to the integrated permit procedure and therefore should be available Commercial secrets are protected by reference the Directive on Environmental Information However, there is no indication that the complete decision requires protection Therefore, it should have been available

Was the infringement healed? No EU rules on procedural healing of mistakes >> MS responsibility, but under the principles of equivalence and effectiveness Effectiveness does not completely preclude later regularisation, but circumvention of rules must be prevented

On the additional Question Is the Directives on environmental impact assessment applicable? No, the original assessment predates the accession, therefore the project was already in the pipeline. [Does the Directive allow the extension of an assessment? In principle, the assessment must be up-to-date.] [Does the Directive allow a distinct procedure to deal with the assessment? MS responsibility, but relevant errors must prevent the project.]

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