Analysis: “Case C-24/19 – Grand Chamber ruling on the interpretation of Directive 2001/42 on the assessment of the effects of certain plans and programmes on the environment” by Alessandra Donati
On June 25, 2020, the Grand Chamber of the Court of Justice of the European Union (‘CJEU’) rendered its judgment in A and others (C-24/19). This ruling is important because, by confirming its previous case law and in line with the Opinion of the Advocate General, the CJEU provided a wide interpretation of the notion of national ‘plans and programmes’ that, under the Directive 2001/42 and to achieve a high level of environmental protection, are subject to an environmental assessment.
A) The background
On November 30, 2016, the regional town planning official of the Flanders Department of Land Planning granted development consent for the installation and operation of five wind turbines. The consent was subject to compliance with certain conditions laid down by (1) an order of the Flemish Government (the ‘Order’), and (2) a circular on the ‘Assessment framework and conditions for the installation of wind turbines’ (the ‘Circular’).
A and others, in their capacity as residents near the site proposed for the wind farm project, brought an action before the Council for Consent Disputes (Raad voor Vergunningsbetwistingen) seeking the annulment of the development consent. In support of their action, they submitted that the Order and the Circular, based on which the consent was granted, infringed Article 2(a) and Article 3(2)(a) of Directive 2001/42. Indeed, they were not subject to an environmental assessment, contrary to the provisions of the Directive. Against this backdrop, the Council for Consent Disputes decided to stay proceedings and to refer questions for a preliminary ruling to the CJEU.
B) The judgment
Upon the request for a preliminary ruling, the Grand Chamber of the CJEU rendered its judgment clarifying: (1) the notion of plans and programmes under the Directive; (2) the conditions under which an environmental assessment shall be made; and (3) the conditions under which a national provision contrary to EU law may be provisionally maintained in force.
1) The notion of plans and programmes
According to established case law (C-567/10, C-160/17, C-321/18), the CJEU considered that, under Article 2(a) of the Directive, the adoption of plan or programmes (in this case the Order and the Circular) does not need to be compulsory. It is sufficient that such plans and programmes are provided for by national legislative or regulatory provisions, which determine the competent authorities and the procedure for their adoption. Therefore, a measure must be regarded as ‘required’ under Article 2(a) of the Directive where the legal basis of the power to adopt the measure is found in a particular national provision, even if the adoption of that measure is not mandatory. Therefore, in the case at stake, the notion of plans and programmes covers the Order and, subject to the verifications which it is for the referring court to carry out, the Circular.
2) The conditions to carry out an environmental assessment
For the CJEU, the Order and, subject to the verifications which it is for the referring court to carry out, the Circular must be subject to an environmental assessment under Article 3 of the Directive.
First, the Order and the Circular concern the energy sector, which is specifically referred to in Article 3(2)(a) of the Directive as one of the sectors for which an environmental assessment is required.
Second, as regards the question of whether the Order and the Circular define the framework for future development consent for projects, as set out by Article 3(2)(a) of the Directive, the CJEU stated the following. According to established case law (C-671/16, C-43/18), the environmental assessment is needed if the measure at stake ‘establishes a significant body of criteria and detailed rules for the grant and implementation of one or more projects that are likely to have significant effects on the environment’. In this regard, the CJEU considered that the concept of ‘significant body of criteria and detailed rules’ must be construed qualitatively and not quantitatively. Therefore, in the case at hand, the importance of the requirements laid down by the Order and the Circular – that provide conditions relating to the installation and operation of wind turbines as regards, inter alia, shadow flicker, safety procedures, and noise emission – indicate that those instruments constitute a framework, which is non-exhaustive, but which is sufficiently significant from a qualitative point of view to require the execution of an environmental assessment.
3) The conditions under which a national provision breaching EU law can be provisionally maintained in force
It being acknowledged that the Order and, subject to the verifications which it is for the referring court to carry out, the Circular are in breach of the Directive, can the referring court maintain these instruments in force? The CJEU considered that, without prejudice to the principle of sincere cooperation and the primacy of EU law, the referring court can maintain those provisions in force – only for the period strictly necessary to remedy that illegality – if, as in the case in question: (1) the national law permits that; and (2) the annulment of these measures would be likely to have significant implications for an overriding public interest, such as the electricity supply of the Member State concerned.
Alessandra Donati is a Senior Research Fellow at the Max Planck Institute for procedural law in Luxembourg, a lecturer at the University of SciencesPO (Nancy,) and an Attorney in law in Italy and France. She obtained her Ph.D. from the University Paris 1 – Panthéon Sorbonne with a thesis on the precautionary principle under EU law.