On 25 May 2016, the Environmental Board of Appeal decided that a licence for water catchment for the purpose of the continued operation of Tangeværket was not covered by the environmental impact assessment rules. The Board thereby upheld the decision of the Municipality of Viborg of 5 February 2015.

The municipality's decision has been brought before the Board by a number associations claiming for instance that Tangeværket and its continued operation were covered by the environmental impact assessment rules, and that the municipality should therefore have screened Tangeværket and its continued operation based on these rules. The associations further claimed that Tangeværket was covered by Schedule 1 of the environmental impact assessment rules and was therefore subject to an environmental impact assessment obligation as a new plant.

The matter started when the Parliament abolished the Tange Act in 2014, thereby abolishing the special legal basis (a concession) according to which Tangeværket had been regulated so far. A new licence was therefore to be issued based on the general rules. No physical changes were made at Tangeværket.

The claimants were of the opinion that Tangeværket was covered by the environmental impact assessment rules. This was primarily due to the fact that Tangeværket was to obtain its first licence for water catchment etc. under the general legislation. The question was then whether an existing licence for operation could legally be considered a "project".

The Municipality of Viborg was of the opinion that Tangeværket was not a "project" within the meaning of the Planning Act and the environmental impact assessment rules.

The Board found that two recent rulings from the European Court of Justice ("ECJ") were particularly relevant when assessing the question. The rulings were in case C-275/09 of 17 March 2011 concerning Brussels Airport, and case C-121/11 of 19 April 2012 concerning a waste deposit (Pro-Braine), where the ECJ emphasised the close connection between a "licence" and a "project" under the environmental impact assessment rules. In the latter ruling, the ECJ found that "there may only be one licence" within the meaning of the Directive if a "project is to be implemented".

The ECJ further found that the mere extension of an existing licence for operation cannot qualify as a "project" within the meaning of the Directive.

A majority of the Board (7 to 1) attaches importance to the above rulings from the ECJ and finds that the "licence for water catchment for the purpose of the continued operation of Tangeværket is not a "project" within the meaning of the environmental impact assessment rules."

Based on the case law of the ECJ, the majority of the Board attaches special importance to the fact that no physical changes were made in the existing plant or the operation thereof, and that it only concerned a new licence due to a changed regulation of the basis of Tangeværket, which made it possible to continue Tangeværket and its existing operation.

contacts

Henriette Soja

Partner

Charlotte Kunckel

Specialist Attorney