The whole crucial decision of the CoE for Cosco’s investment in the PPA

By Anastasia Vamvaka

The critical four decisions of ESAL, of the Port Planning and Development Committee, are in the air, which the Council of State cancels, putting Cosco’s investment in Piraeus in additional storms.

According to the full text of the decision of the CoC, which was clarified, and is available to Capital.gr, the extensive and controversial discussion that took place between the Supreme Courts examined a number of decisions concerning the Chinese investment and especially whether it is legal. the construction permit for the project “Southern Expansion of the Cruise Port”, the permit for the disposal of dredges, the environmental rules, etc.

“After the cancellation of acts 78, 79, 80 and 81/2019 of ESAL and the construction permit for the project of the southern extension of the passenger port, the execution of the project in question can not continue and is not set, in any case, a matter of particular legal interest which would justify the continuation of the proceedings in this respect, as set out in the applicants’ memorandum.

At the same time, the CoC considers that regarding the 4 critical decisions of ESAL that “because, the decision 3121.6 / 717 / 7.1.2020 of the Chairman of the Port Planning and Development Committee lacks enforceability and, according to the interpretation of the application, the individual acts 79 are admissibly challenged. / 2019, 80/2019 and 81/2019 of the Port Planning and Development Committee, which are not legally published in the Government Gazette. In particular, the acts of ESAL are approved, which approved, after the permission of the Minister of Culture, the mandatory investment of the southern extension of the passenger port (act 79/2019 of ESAL, as amended by decision 80/2019 of the same body ) and the additional investment of the construction of a passenger station of the said southern extension (act 79/2019 of ESAL, as amended by the decisions of 80 and 81/2019) “.

Regarding the execution of maintenance works – restoration of functional depths in the area of ​​pier C2, at the request of PPA SA, which stated that “the execution of these works is necessary due to the reduction of operating depth in many places in this sea area materials that have accumulated and come from the rainwater pipes of the neighboring Municipalities that end in it (sea area) “, the CoC states that” it has nothing to do with other dredging projects that take place in the port “and that” this project is not an investment of PPA SA, in order to raise the issue of its inclusion in a Development Program, in contrast to that of the southern extension of the port “and therefore rejects the objections.

Regarding the critical point that concerns the whole Master Plan and the time of its submission based on the SBP, the CoC states:
“The national legislator acknowledged that ports of international interest, such as the port of Piraeus, consist of existing projects and activities and are not being developed for the first time, from scratch, to require a PIC, but the needs of Directive 2001/42 / EC are satisfied with the environmental licensing of all the projects, even if it follows, in view of this, it is not contrary to Directive 2001/42 / EC the regulation first introduced by Law 4150/2013, on non-compulsory preparation of PMS, if after the approval of the Master Plan will be followed by environmental licensing of all port projects, as is the case here,

– The main goal of SMPE is to evaluate environmentally “the complete and in principle approved by ESAL and finally proposed Development Plan of PPA SA”, dealing with “the already licensed and under licensed projects as the part of Master Plan inherited from current situation, ie as a starting point and basis for future activities and new projects “, while, in any case, all licensed and executed projects of the investment program of PPA SA are executed” within the existing spatial and strategic planning of the Port of Piraeus “, as it has been formed based on the decisions of ESAL that were ratified with article 15 of law 4081/2012 and are mentioned in the Concession Agreement and have received environmental licensing (based on JM 104050 / 17.5.2006 on the approval of environmental conditions of the Investment and Development Program of SA, which was renewed for two years with the act 32907 / 30.6.2016 of the General Manager of an Environmental Policy of RIS)

– Regarding the obligatory investments approved by ESAL, the contracting parties (Hellenic State and PPA SA) have contractually committed for their execution and, based on the Concession Agreement (articles 6.5. And 7.8), they are approved if they “are compatible and can harmonize with existing ESAs and the environmental approvals listed in Article 6.2 (c) (Existing Approvals) ”and“ may start as soon as they are approved by the competent government body of the Greek State (currently the Ports and Port Policy Directorate of the Ministry of Shipping) ”, without the approval of the Master Plan -or this SMP- is a condition for their implementation

– Especially regarding the southern extension of the Port of Piraeus, which is the most important mandatory investment of PPA SA (HR 01), it is included in the new Athens-Attica Master Plan (Law 4277/2014, AD 156), resulting in no strategic environmental assessment is required in this area

The above southern extension project has already received an environmental permit, following: i. approval, conditionally, of the preliminary design of the project by ESAL (act 2 / 18.4.2011, conference 49), ii. evaluation, following publication and consultation, a full environmental impact assessment, with the [αναφερόμενη στο Παράρτημα 6.2.γ της Σύμβασης Παραχώρησης] decision of approval of environmental conditions (AEPO) 170400 / 11.9.2013, and iii. issuance of a special AEPO (11021 / 30.7.2018), based on a modification dossier and without an environmental impact study and consultation process, on the manner and methodology of construction of the southern extension project, dredging, management and rejection of dredges, resulting in it is not required to follow the procedure of submission and approval of PPA for this project, and the PPA was submitted, returned and its examination is pending, without the fault of the intervening PPA SA.

Consequently, the contested acts of the ESAL should have been preceded by a strategic environmental assessment, in order to be investigated, as required by the directive, “as soon as possible” and following the appropriate consultation procedure (based on the JMC / EYPE / EYPE 107017 / 28.8.2006), the impact on the environment of this complex project, which entails the expansion and enlargement of the port into multiple fields of activity, and the argument put forward by the State and the interveners, according to which proceeded to the initial approval of the investments, which will be finalized after the issuance of the PD for the determination of land uses and building conditions, which is the “final approval” of the plan. And this, on the one hand, because, as it appears from the plans of the future situation of the port that accompany the contested acts, the ESAL, which is at the same time an instrument that gives an opinion in accordance with the establishment (with PD) of new land uses and building conditions in the Land Zone Limenos, approved, even in the first phase and with a “certain degree of abstraction”, the new design, in terms of “land use”, even prejudging the definition of land uses and building conditions (see e.g. the provision of hotel installation, which presupposes the establishment of tourism use in the Land Port Zone, with the issued p.d., and the provision of a new warehouse in the area “former ODDY” with the specific characteristics, which presupposes the provision of increased coverage and construction), and, on the other hand, because the decisions of ESAL with their accompanying diagrams were published, albeit voluntarily, in the Government Gazette, signaling their finality and commitment.

– The New Master Plan of Athens does not take a position on the issue of the southern extension of the port and if, according to a logical sequence, the environmental implications of over-planning of such a scope, it cannot be accepted that the requirements of Directive 2001/42 / EC are met and that a (new) strategic environmental assessment is not required at the level of ESA operations, as the

Allegations that national legislation allows, in a manner inconsistent with Directive 2001/42 / EC, the omission of a PPA to be avoided if, after the approval of the Master Plan, environmental permitting of all port projects follows

– The claim of the State that the JMC requires the elaboration of SBM only for tourist ports is not valid. Finally, the failure to approve the PPA before the issuance of the contested administrative acts is a fault of theirs, regardless of the fault of PPA SA, so the fact that the PPA was prepared and submitted before the issuance of the ESAL decisions is unreasonably supported.

– The use of the port for general tourism activities is not allowed, unless, among other things, it has been specially allowed as part of a Development Plan and Management Study, legally approved. However, as far as the mandatory investments, which were included in the concession Agreement ratified by law, are, the currently contested acts of ESAL are the first administrative act that implies the acceptance in principle of the future development plan of the port under the new form, as formed after all the projects, mandatory and additional, the most important of which is the addition of a new cruise ship port. Since these (mandatory investments) were included in the Development Program of PPA SA and approved by ESAL, they are part of the Plan – Program and must be subject to a strategic environmental assessment, in combination with all other parts of the plan, regardless of forecasts. of the Concession Agreement, which cannot take precedence over Union law and Directive 2001/42 / EC. In any case, especially regarding the project of the southern expansion of the port, its environmental licensing (AEPO 170400 / 11.9.2013) can not replace its assessment as part of the Development Plan of PPA SA, because this assessment was conducted in the past for the specific project, while the object of the SMP is the overall new design of the port, which is not limited to this individual project, but includes a number of new projects, which cause, overall, increase in port activity and environmental impact and constitute a new plan now

It is reminded that the southern extension of the passenger port of Piraeus requires the embankment of approximately 140 acres of sea with inert materials, dredging of the port at depths from -19 to -29.5 m., In the first phase, and creation of a 1.5 km long quay wall. , serves the intended upgrade of Piraeus to a “home port” and is expected to cause a vertical increase in the number of cruise ship passengers who will visit Piraeus from 1,302,000 to 2,282,000 tourists.