Scope of the initial permit
65.The Court’s case-law on the Environmental Impact Assessment Directive can be explained based on assumptions as to the scope of the original permit, which will ultimately also suggest the interpretation to be given to Article3(9) of the Industrial Emissions Directive.
66.After all, if certain effects on the environment have already been the subject of an environmental impact assessment in connection with the permit, there is in principle no need to repeat that assessment where the permit is subsequently extended.(27) If, on the other hand, the assessment required was not carried out for an earlier permit, it may be necessary to rectify that omission for a subsequent permit, irrespective of whether or not an environmental impact assessment is required for that subsequent permit, considered in isolation.(28)
67.There is also evidence of this in the Compliance Committee’s decision-making practice. After all, the Compliance Committee has also relied on whether the public was informed of possible future extensions of the permit at the time of its original participation and therefore had the opportunity to comment on the associated effects on the environment.(29)
68.Where an operating permit is extended, the distinction between a simple change and a substantial change within the meaning of Article3(9) of the Industrial Emissions Directive therefore depends on whether that longer duration can give rise to significant negative effects on the environment which were not covered by the initial permit and therefore require a new assessment.
69.In the present case, the Czech Republic and FCC argue in the main proceedings that the facility to grant the contested extension of the waste disposal permit was included in the permit for the landfill from the outset. That is because the duration of waste disposal was predicated on the total planned capacity, not the expiry date of the permit.
70.That contention is also supported by the fact that dispensing with an extension would apparently trigger the need for further changes in practice. The closure plan required under Article7(g) of the Landfill Directive might need to be amended, as it presupposes that the landfill is completely full. It might even be necessary to backfill it with material other than waste in order to prevent negative effects on the environment.
71.Cases involving an extension of a permit granted for a specific limited period would have to be assessed differently. Thus, it is conceivable that the initial permit was based on a specified maximum operating time.(30) The same would have to apply for the purpose of maintaining a provisional or temporary solution. Even an extension of an old permit that did not require public participation at the time, the full effects of which were originally as yet unknown or the compatibility of which with current standards is questionable, would probably have to be regarded in principle as a substantial change.
72.To summarise, additional effects on the environment are characterised by the fact that they were not taken into account in an earlier permit for the activity and in the public participation carried out for that activity.
73.Ultimately, however, it is for the national court to appraise those specific circumstances.
V.Conclusion
74.In summary, I therefore propose that the Court answer the question referred for a preliminary ruling as follows:
Article3(9) of Directive 2010/75/EU of the European Parliament and of the Council of 24November 2010 on industrial emissions is to be interpreted as meaning that a ‘substantial change’ to an installation includes an extension of the duration of waste disposal at a landfill without the maximum approved dimensions of the landfill or its total potential capacity changing at the same time, if the extension of the permit can give rise to additional significant effects on the environment. Additional effects on the environment are effects that were not taken into account in an earlier permit for the activity and in the public participation carried out for that activity.
1Original language: German.
2Directive 2010/75/EU of the European Parliament and of the Council of 24November 2010 on industrial emissions (integrated pollution prevention and control) (OJ2010 L334, p.17).
3Directive 2011/92/EU of the European Parliament and of the Council of 13December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ2012 L26, p.1), last amended by Directive 2014/52/EU (OJ2014 L124, p.1).
41998 Convention on access to information, public participation in decision-making and access to justice in environmental matters (OJ2005 L124, p.4), approved by Council Decision 2005/370/EC of 17February 2005 (OJ2005 L124, p.1).
5Council Directive 1999/31/EC of 26April 1999 on the landfill of waste (OJ1999 L182, p.1), as amended by Council Directive 2011/97/EU of 5December 2011 amending Directive 1999/31/EC as regards specific criteria for the storage of metallic mercury considered as waste (OJ2011 L328, p.49).
6The contested permit appears to be accessible online at https://ippc.mzp.cz/ippc/ippc.nsf/xsp/.ibmmodres/domino/OpenAttachment/ippc/ippc.nsf/215B32AAF47F72E0C1257F32002C2B15/Files/zmena%20IP.pdf. Further information on the permits granted for the landfill is available at https://www.mzp.cz/ippc/ippc4.nsf/$$OpenDominoDocument.xsp?documentId=4D88556E61533616C1257B82004CE066&action=openDocument.
According to the Commission, the duration of waste disposal at the landfill has been extended by two years at least once more since that date. However, the final change to the landfill identified as a substantial change was decided in 2009.
7Cited in footnote6; see also points54 to 57 below.
8Judgments of 17March 2011, Brussels Hoofdstedelijk Gewest and Others (C‑275/09, EU:C:2011:154, paragraph24), and of 19April 2012, Pro-Braine and Others (C‑121/11, EU:C:2012:225, paragraph32).
9Judgments of 17March 2011, Brussels Hoofdstedelijk Gewest and Others (C‑275/09, EU:C:2011:154, paragraph20 et seq.), and of 19April 2012, Pro-Braine and Others (C‑121/11, EU:C:2012:225, paragraph31).
10Page4 of the contested decision, cited in footnote6.
11See my Opinion in Inter-Environnement Wallonie and Bond Beter Leefmilieu Vlaanderen (C‑411/17, EU:C:2018:972, point101).
12The English and French versions each use the term ‘extension’.
13Judgments of 22January 2009, Association nationale pour la protection des eaux et rivières and Association OABA (C‑473/07, EU:C:2009:30, paragraphs25 and 40); of 26May 2011, Stichting Natuur en Milieu and Others (C‑165/09 to C‑167/09, EU:C:2011:348, paragraph72); of 15December 2011, Møller (C‑585/10, EU:C:2011:847, paragraph29); and of 15January 2013, Križan and Others (C‑416/10, EU:C:2013:8, paragraph108).
14Judgments of 22January 2009, Association nationale pour la protection des eaux et rivières and Association OABA (C‑473/07, EU:C:2009:30, paragraph27), and of 15December 2011, Møller (C‑585/10, EU:C:2011:847, paragraph31).
15See, to that effect, judgment of 15January 2013, Križan and Others (C‑416/10, EU:C:2013:8, paragraph77). See also, with regard to the Environmental Impact Assessment Directive, judgments of 12May 2011, Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen (C‑115/09, EU:C:2011:289, paragraph41), and of 16April 2015, Gruber (C‑570/13, EU:C:2015:231, paragraph34).
16‘The Compliance Committee’; see, in that regard, my Opinion in Edwards and Pallikaropoulos (C‑260/11, EU:C:2012:645, point8), and the Opinions of Advocate General Cruz Villalón in Gemeinde Altrip and Others (C‑72/12, EU:C:2013:422, point101); of Advocate General Jääskinen in joined cases Council and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht (C‑401/12P to C‑403/12P, EU:C:2014:310, point114), and in joined cases Council and Commission v Stichting Natuur en Milieu and Pesticide Action Network Europe (C‑404/12P and C‑405/12P, EU:C:2014:309, point23); and of Advocate General Bobek in Folk (C‑529/15, EU:C:2017:1, point86), and in Stichting Varkens in Nood and Others (C‑826/18, EU:C:2020:514, point77).
17Findings and recommendations of the Compliance Committee of 4October 2018, Stichting Greenpeace Netherlands v Netherlands (Borssele nuclear power plant), ACCC/C/2014/104, ECE/MP.PP/C.1/2019/3, point65; of 19August 2019, Cummins v Ireland (Trammon quarry), ACCC/C/2013/107, ECE/MP.PP/C.1/2019/9, point79; and of 26July 2021, OEKOBUERO and Others v Czech Republic (Dukovany nuclear power plant), ACCC/C/2016/143, ECE/MP.PP/C.1/2021/28, point97.
18Findings and recommendations of the Compliance Committee of 4October 2018, Stichting Greenpeace Netherlands v Netherlands (Borssele nuclear power plant), ACCC/C/2014/104, ECE/MP.PP/C.1/2019/3, point71; of 19August 2019, Cummins v Ireland (Trammon quarry), ACCC/C/2013/107, ECE/MP.PP/C.1/2019/9, point83; and of 26July 2021, OEKOBUERO and Others v Czech Republic (Dukovany nuclear power plant), ACCC/C/2016/143, ECE/MP.PP/C.1/2021/28, point104.
19See the references in footnote18 and the findings and recommendations of the Compliance Committee of 12May 2011, Global 2000 [Friends of the Earth Austria] v Slovakia (Mochovce nuclear power plant), ACCC/C/2009/41, ECE/MP.PP/2011/11/Add.3, point57, and of 4October 2018, Fons de Defensa Ambiental v Spain (Uniland Cementera), ACCC/C/2013/99, ECE/MP.PP/C.1/2017/17, point85.
20The same capacity thresholds are laid down in the fourth indent of point5 of AnnexI to the Aarhus Convention for the purposes of point22 of that annex.
21Page4 of the contested decision, cited in footnote6.
22Findings and recommendations of the Compliance Committee of 26July 2021, OEKOBUERO and Others v Czech Republic (Dukovany nuclear power plant), ACCC/C/2016/143, ECE/MP.PP/C.1/2021/28, point99. See also my Opinion in Inter-Environnement Wallonie and Bond Beter Leefmilieu Vlaanderen (C‑411/17, EU:C:2018:972, point91 et seq.).
23Judgment of 9September 2020, Friends of the Irish Environment (C‑254/19, EU:C:2020:680, paragraphs43 to 47).
24Judgment of 7January 2004, Wells (C‑201/02, EU:C:2004:12, paragraphs45 and 46).
25Judgment of 17March 2011, Brussels Hoofdstedelijk Gewest and Others (C‑275/09, EU:C:2011:154, paragraph24).
26Judgment of 19April 2012, Pro-Braine and Others (C‑121/11, EU:C:2012:225, paragraph32).
27See judgments of 22September 2011, Valčiukienė and Others (C‑295/10, EU:C:2011:608, paragraphs61 and 62), and of 10September 2015, Dimos Kropias Attikis (C‑473/14, EU:C:2015:582, paragraph58), both regarding Directive 2001/42/EC of the European Parliament and of the Council of 27June 2001 on the assessment of the effects of certain plans and programmes on the environment (OJ2001 L197, p.30).
28Judgment of 17March 2011, Brussels Hoofdstedelijk Gewest and Others (C‑275/09, EU:C:2011:154, paragraph37).
29Findings and recommendations of the Compliance Committee of 19August 2019, Cummins v Ireland (Trammon quarry), ACCC/C/2013/107, ECE/MP.PP/C.1/2019/9, point85.
30See findings and recommendations of the Compliance Committee of 4October 2018, Stichting Greenpeace Netherlands v Netherlands (Borssele nuclear power plant), ACCC/C/2014/104, ECE/MP.PP/C.1/2019/3, points65, 66 and 71, and of 26July 2021, OEKOBUERO and Others v Czech Republic (Dukovany nuclear power plant), ACCC/C/2016/143, ECE/MP.PP/C.1/2021/28, point104. See also findings and recommendations of the Compliance Committee of 19August 2019, Cummins v Ireland (Trammon Quarry), ACCC/C/2013/107, ECE/MP.PP/C.1/2019/9, point79.