Opinion of the Advocate General — ECLI:EU:C:2021:746
Date: 2021-09-16
Language of the case: German
Subject matter: Environment
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary C-300/20 — 1 
Case C-300/20 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
7 July 2020 
Referring court: 
Bundesverwaltungsgericht (Germany) 
Date of the decision to refer: 
4 May 2020 
Applicant and appellant in the appeal on a point of law: 
Bund Naturschutz in Bayern e. V. 
Defendant and respondent in the appeal on a point of law: 
Landkreis Rosenheim (Germany) 
Other party: 
Landesanwaltschaft Bayern, representing the interests of the Federal 
Government in the Bundesverwaltungsgericht (Federal 
Administrative Court) 
  
Subject matter of the main proceedings 
Admissibility and merits of an application from an environmental association 
seeking review of the lawfulness of a national regulation establishing an area of 
outstanding natural beauty 
Subject matter and legal basis of the reference 
Request for a preliminary ruling pursuant to Article 267 TFEU seeking 
clarification as to whether EU law requires a strategic environmental assessment 
or, at the very least, a decision by the Member State on the need for such an 
assessment, prior to the adoption of a regulation establishing an area of 
outstanding natural beauty. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-300/20 
 
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Questions referred 
1. Is Article 3(2)(a) of Directive 2001/42/EC of the European Parliament and 
of the Council of 27 June 2001 on the assessment of the effects of certain 
plans and programmes on the environment (OJ 2001 L 197, p. 30) to be 
interpreted as meaning that a framework for future development consent of 
projects listed in Annexes I and II to Directive 2011/92/EU (‘the EIA 
Directive’) is set where a regulation on nature conservation and landscape 
management provides for general prohibitions (with possible exemptions) 
and compulsory permits which do not specifically relate to projects listed in 
the annexes to the EIA Directive? 
2. Is Article 3(2)(a) of Directive 2001/42/EC to be interpreted as meaning that 
plans and programmes were prepared for agriculture, forestry, land use, etc. 
if their objective was to establish a reference framework for one or more of 
those areas? Or does it suffice if, for the purpose of nature conservation and 
landscape management, general prohibitions and permit requirements are 
regulated which have to be assessed in the permit procedure for a variety of 
projects and uses and which may indirectly impact (‘by default’) one or 
more of those areas? 
3. Is Article 3(4) of Directive 2001/42/EC to be interpreted as meaning that a 
framework for future development consent of projects is set if a regulation 
adopted for the purpose of nature conservation and landscape management 
lays down prohibitions and permit requirements for a variety of projects and 
measures in the protected area which are described in abstract terms, where 
there are no actual foreseeable or envisaged projects when it is adopted and 
therefore it does not specifically relate to actual projects? 
Provisions of EU law cited 
Directive 2001/42/EC of the European Parliament and of the Council of 27 June 
2001 on the assessment of the effects of certain plans and programmes on the 
environment (OJ 2001 L 197, p. 30, the ‘SEA Directive’), in particular the tenth 
and eleventh recitals and Article 3 
Directive 2011/92/EU of the European Parliament and of the Council of 
13 December 2011 on the assessment of the effects of certain public and private 
projects on the environment OJ 2012 L 26, p. 1, the ‘EIA Directive’), in particular 
Annexes I and II 
Provisions of national law cited 
Verwaltungsgerichtsordnung (Code of Administrative Court Procedure, ‘the 
VwGO’), Paragraph 47 
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Gesetz über ergänzende Vorschriften zu Rechtsbehelfen in 
Umweltangelegenheiten nach der EG-Richtlinie 2003/35/EG (Law on 
supplementary provisions on access to review procedures in environmental 
matters pursuant to Directive 2003/35/EC, ‘the UmwRG’), Paragraphs 1 and 3 
Gesetz über die Umweltverträglichkeitsprüfung (Law on environmental impact 
assessments, ‘the UVPG’), Paragraphs 2 and 35 
Gesetz über Naturschutz und Landschaftspflege (Law on nature conservation and 
landscape management, ‘the BNatSchG), Paragraphs 20 and 26 
Bayerisches Gesetz über den Schutz der Natur, die Pflege der Landschaft und die 
Erholung in der freien Natur (Bavarian law on nature conservation, landscape 
management and outdoor recreation, ‘the BayNatSchG), Articles 12, 18 and 51 
Verordnung des Landkreises Rosenheim über das Landschaftsschutzgebiet „Inntal 
Süd“ vom 10. April 2013 (Regulation of the Rural District of Rosenheim on the 
‘Inntal Süd’ Area of Outstanding Natural Beauty of 10 April 2013, ‘the AONB 
Regulation’), Paragraphs 1, 3, 4, 5 and 7 
Brief summary of the facts and procedure 
1 These questions have arisen in a dispute between an association recognised under 
the UmwRG (the applicant) and the Rural District of Rosenheim (defendant) on 
the validity of a regulation establishing an area of outstanding natural beauty. 
2 The defendant issued the AONB Regulation with effect from 27 April 2013. It 
included the applicant as an other party in the procedure to adopt the regulation, 
but it did not carry out a strategic environmental assessment or a preliminary 
assessment. 
3 The AONB Regulation protects an area measuring 4 021 hectares. All acts within 
the area of outstanding natural beauty that alter the character of the area or 
undermine the protective purpose of the area of outstanding natural beauty are 
prohibited. 
4 The applicant disputes the AONB Regulation by means of an application for 
review of its lawfulness (‘Normenkontrollantrag’). The lower court dismissed the 
application as inadmissible. The referring court has to rule on the appeal on a 
point of law. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-300/20 
 
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Brief summary of the basis for the reference 
Relevance of the questions 
5 The applicant’s appeal on a point of law is inadmissible under national law. The 
applicant has no legal standing to apply for a review of lawfulness under the 
VwGO, as it cannot assert any infringement of a right. An application for review 
of environmental lawfulness under the UmwRG is not allowed, as the AONB 
Regulation is not a decision within the meaning of the UmwRG and there was no 
obligation to carry out a strategic environmental assessment or a preliminary 
assessment prior to its adoption. 
6 The answers to the questions referred might enable the application to be upheld. 
The first two questions should help to clarify whether there was an obligation to 
carry out a strategic environmental assessment in accordance with Article 3(2)(a) 
of the SEA Directive for the AONB Regulation, in which case review would be 
admissible under the UmwRG. If a strategic environmental assessment should 
have been carried out in accordance with Article 3(2)(a) of the SEA Directive 
prior to the adoption of the AONB Regulation, the applicant’s appeal on a point of 
law would also have merit. In that case the referring court would probably have to 
find that the AONB Regulation is invalid, as a compulsory procedural stage for 
the adoption of the regulation was omitted. 
7 The third question, concerning Article 3(4) of the SEA Directive, is also relevant. 
If the AONB Regulation sets a framework for future development consent of 
projects within the meaning of Article 3(4) of the SEA Directive, the defendant 
was required under national law to subject the AONB Regulation to a preliminary 
assessment (that is a case-by-case examination within the meaning of Article 3(5) 
of the SEA Directive), in which case review would be admissible in application, 
mutatis mutandis, of the UmwRG. That review would have grounds if an 
obligation to carry out a strategic environmental assessment would necessarily 
have followed from the preliminary assessment, in which case the AONB 
Regulation would have to be found to be invalid. 
8 The referring court notes that the relevance of the questions goes beyond this 
particular case. It has always been assumed in practice in the Federal Republic of 
Germany that the designation of special protection areas, including the 
designation of special protection areas under Directive 92/43/EEC, is not 
contingent upon either a strategic environmental assessment or a corresponding 
preliminary assessment. Therefore, no such assessments have been carried out. If 
the answers given to the questions by the Court of Justice of the European Union 
establish an obligation under EU law to carry out a strategic environmental 
assessment or, at the very least, an obligation under national law to carry out a 
preliminary assessment, a large number of designations of protection areas made 
after expiry of the deadline for transposition of the SEA Directive on 21 July 2004 
would probably be vitiated by procedural error. Under national law, any such 
procedural error invalidates the regulation required for the designation as a matter 
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of course. The assumption of an obligation to carry out a strategic environmental 
assessment or preliminary assessment might therefore significantly reduce the 
level of nature conservation and landscape management achieved in Germany (see 
most recently, in that regard, opinion of Advocate General Campos Sánchez-
Bordona, A and Others, [wind farms in Aalter and Nevelle], C-24/19, 
EU:C:2020:143). 
First question 
9 The referring court has doubts as to whether the obligation to carry out a strategic 
environmental assessment prior to the adoption of an AONB regulation follows 
from Article 3(2)(a) of the SEA Directive. 
10 Under Article 3(1) of the SEA Directive, an environmental assessment, in 
accordance with Articles 4 to 9 of the SEA Directive, must be carried out for plans 
and programmes referred to in Article 3(2) to (4) of that Directive which are likely 
to have significant environmental effects. Under Article 3(2)(a) of the SEA 
Directive, an environmental assessment is to be carried out, subject to 
Article 3(3), for all plans and programmes which are prepared for agriculture, 
forestry, fisheries, energy, industry, transport, waste management, water 
management, telecommunications, tourism, town and country planning or land use 
and which set the framework for future development consent of projects listed in 
Annexes I and II to Directive 85/337/EEC (now Directive 2011/92/EU, see 
Article 14(2) of the EIA Directive). 
Existence of a plan or programme within the meaning of Article 2(a) of the SEA 
Directive 
11 The referring court assumes, based on the case-law of the Court (judgments of 
11 September 2012, Nomarchiaki Aftodioikisi Aitoloakarnanias and Others, 
C-43/10, EU:C:2012:560, paragraphs 94 and 95, and of 27 October 2016, 
D’Oultremont and Others, C-290/15, EU:C:2016:816, paragraph 52; see also 
judgments of 12 June 2019, CFE, C-43/18, EU:C:2019:483, paragraph 54 and the 
case-law cited, and of 22 March 2012, Inter-Environnement Bruxelles and Others, 
C-567/10, EU:C:2012:159, paragraph 41), that the AONB Regulation is a plan or 
a programme within the meaning of Article 2(a) of the SEA Directive. 
Setting a framework for development consent of projects 
12 Article 3(2)(a) of the SEA Directive requires the plan or programme to set the 
framework for future development consent of projects listed in Annexes I and II to 
the EIA Directive. According to the case-law of the Court, the notion of ‘plans 
and programmes’ relates to any measure which establishes, by defining rules and 
procedures, a significant body of criteria and detailed rules for the grant and 
implementation of one or more projects likely to have significant effects on the 
environment (judgments of 11 September 2012, Nomarchiaki Aftodioikisi 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-300/20 
 
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Aitoloakarnanias and Others, C-43/10, EU:C:2012:560, paragraphs 94 and 95; of 
27 October 2016, D’Oultremont and Others, C-290/15, EU:C:2016:816, 
paragraph 52; of 8 May 2019, Verdi Ambiente e Società [VAS] — Aps Onlus and 
Others, C-305/18, EU:C:2019:384, paragraph 50; and of 12 June 2019, CFE, 
C-43/18, EU:C:2019:483, paragraph 61). According to the judgments of 7 June 
2018, Inter-Environnement Bruxelles and Others (C-671/16, EU:C:2018:403, 
paragraph 55), and of 7 June 2018, Thybaut and Others, C-160/17, 
EU:C:2018:401, paragraph 55), the concept of ‘a significant body of criteria and 
detailed rules’ must be understood qualitatively. Thus, it is necessary to avoid 
strategies which may be designed to circumvent the obligations laid down in the 
SEA Directive by splitting measures, thereby reducing the practical effect of that 
Directive (see also judgment of 8 May 2019, Verdi Ambiente e Società [VAS] — 
Aps Onlus and Others, C-305/18, EU:C:2019:384, paragraph 51). 
13 In order to establish whether a plan or a programme sets the framework for future 
development consent of projects listed in Annexes I and II to the EIA Directive, it 
is necessary to examine the content and purpose of the plan or programme, taking 
into account the scope of the environmental assessment of projects as provided for 
by that Directive (judgment of 17 June 2010, Terre wallonne and Inter-
Environnement Wallonie, C-105/09 and C-110/09, EU:C:2010:355, 
paragraph 45). 
14 By those standards, the referring court has doubts as to whether the AONB 
Regulation sets a framework within the meaning of Article 3(2)(a) of the SEA 
Directive. 
15 Although it establishes a series of general prohibitions and compulsory permits for 
numerous projects and uses, Paragraph 4 of the AONB Regulation prohibits all 
acts within the area of outstanding natural beauty that alter the character of the 
area or undermine its protective purpose. Paragraph 5(1) and (2) of the AONB 
Regulation provide for permits authorising various measures prohibited under 
Paragraph 4 of the AONB Regulation. Lastly, Paragraph 6 of the AONB 
Regulation provides for exceptions from the restrictions established in the 
regulation and Paragraph 7 of the AONB Regulation provides for exemptions. 
16 However, the question arises as to whether that suffices to assume that a 
framework is set within the meaning of the Directive. Considering the scheme of 
Article 3 of the SEA Directive, the purpose of requiring a framework to be set for 
future development consent of projects listed in Annexes I and II to the EIA 
Directive and of allocation to one of the areas listed in Article 3(2)(a) of the SEA 
Directive is to establish a dividing line between those plans and programmes and 
plans and programmes that fall under Article 3(4) of the SEA Directive. That 
dividing line is necessary because the rules have different legal consequences. A 
strategic environmental assessment is always required for plans and programmes 
that fall under Article 3(2) of the SEA Directive, whereas a strategic 
environmental assessment is only required for plans and programmes covered by 
Article 3(4) of the SEA Directive where the Member States have determined, in 
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accordance with Article 3(5) of the SEA Directive, that they are likely to have 
significant environmental effects; otherwise an environmental assessment is not 
necessary (see also the eleventh recital of the SEA Directive). 
17 In the opinion of the referring court, a framework set within the meaning of 
Article 3(2)(a) of the SEA Directive must actually target or must specifically 
relate to projects listed in Annexes I and II to the EIA Directive. The plans and 
programmes must set the reference or regulatory framework for future 
development consent of projects which tend to have environmental effects as 
understood by the legislature and whose environmental effects should therefore be 
assessed at a higher level, which ranks above and precedes the authorisation of an 
actual project (see opinion of Advocate General Campos Sánchez-Bordona, A and 
Others [wind farms in Aalter and Nevelle], C-24/19, EU:C:2020:143, 
paragraphs 33, 35 and 74). The Court has assumed that a reference/regulatory 
framework for development consent of projects in that sense is set if the plan 
refers to technical standards, operating conditions, noise level standards, etc., 
thereby determining the conditions applicable to the area concerned under which 
actual projects may be authorised (see judgment of 27 October 2016, 
D’Oultremont and Others, C-290/15, EU:C:2016:816, paragraph 50). Advocate 
General Sánchez-Bordona cites that case-law in his opinion in A and Others (wind 
farms in Aalter and Nevelle), C-24/19, EU:C:2020:143, paragraph 93) and notes 
that the Flemish legislation at issue in that case lays down detailed requirements 
on sensitive issues such as noise, shadow flicker, safety and the nature of wind 
turbines. In light of that, the referring court is of the opinion that the fact that a 
plan or programme (coincidentally) also covers ‘projects listed in Annexes I or II 
to Directive 2011/92/EU’, for example due to its scope, cannot suffice if it is not 
predicated on them or does not influence their authorisation in a targeted manner. 
18 If a plan or programme has to relate to projects, then the AONB Regulation does 
not set a framework for future development consent of projects listed in Annexes I 
and II to the EIA Directive. That is immediately evident from the protective 
purpose of the AONB Regulation. Moreover, the regulation does not contain any 
specific rules for the authorisation of projects within the meaning of Annexes I 
and II to the EIA Directive. This form of AONB regulation does not influence the 
authorisation of projects; instead it serves primarily to prevent projects or, at the 
very least, to ensure that they are ecologically sound. 
Second question 
19 The second question concerns the additional condition of Article 3(2)(a) of the 
SEA Directive requiring plans and programmes to be prepared for agriculture, 
forestry, fisheries, energy, industry, transport, waste management, water 
management, telecommunications, tourism, town and country planning or land 
use. The referring court has doubts as to whether that is the case here, as the 
AONB Regulation was prepared in the area of nature conservation and landscape 
management, not in one of the above areas. 
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20 Based on the tenth recital of the SEA Directive, Article 3(2)(a) of the SEA 
Directive stipulating the areas concerned assumes that those areas are likely to be 
at risk of significant environmental effects and plans should therefore be subject to 
a strategic environmental assessment as a matter of course. That presupposes that 
the plan or programme can be unequivocally allocated to the area concerned. That 
is expressed in Article 3(2)(a) of the SEA Directive by stating that the plan or 
programme must be ‘prepared’ for that area, that is it must target and be 
predicated on that area. Article 5 of the SEA Directive supports that finding. It 
states that the environmental report must identify, describe and evaluate the likely 
significant effects on the environment of implementing the plan or programme, 
and reasonable alternatives (paragraph 1) and include information on the stage of 
the plan or programme in the decision-making process (paragraph 2). These 
requirements are tailored to plans and programmes for the areas named in 
Article 3(2)(a) of the SEA Directive, but are unsuited to a regulation for the 
purpose of nature conservation and landscape management. In light of that, it is 
consistent that the areas of nature conservation and landscape management are not 
named in Article 3(2)(a) of the SEA Directive. 
21 Little attention has been paid to the requirement of ‘preparation’ for a particular 
area in the case-law of the Court to date (see, for example, judgment of 12 June 
2019, CFE, C-43/18, EU:C:2019:483, paragraphs 61 and 62; see also judgment of 
7 June 2018, Inter-Environnement Bruxelles and Others, C-671/16, 
EU:C:2018:403, paragraphs 43 and 44 on the areas of town and country planning 
and land use). That being so, the referring court is of the opinion that clarification 
by the Court is required as to whether ‘preparation’ presupposes that a plan targets 
or is predicated on one of the areas named in Article 3(2)(a) of the SEA Directive 
or whether it suffices that the plan or programme actually has effects on the 
named areas (in this case, agriculture, forestry and land use), even if it was 
prepared for a different area not covered by Article 3(2)(a) of the SEA Directive 
(in this case, nature conservation and landscape management). Clarification of this 
question is particularly important as ‘preparation’ for one of the named areas 
distinguishes plans and programmes within the meaning of Article 3(2)(a) of the 
SEA Directive from those under Article 3(4) of the SEA Directive. 
Third question 
22 The third question concerns the interpretation of Article 3(4) of the SEA 
Directive. It need only be answered if the Court holds that a plan or programme 
must specifically relate to projects listed in Annexes I and II to the EIA Directive 
(Question 1) or must target and be predicated on an area named in Article 3(2)(a) 
of the SEA Directive (Question 2), as then it would have to be assumed that there 
was no obligation to carry out a strategic environmental assessment in accordance 
with Article 3(2)(a) of the SEA Directive for the AONB Regulation. 
23 Article 3(4) of the SEA Directive requires the Member States to determine in 
accordance with Article 3(5) of the SEA Directive whether plans and 
programmes, other than those referred to in Article 3(2) of the SEA Directive, 
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which set the framework for future development consent of projects are likely to 
have significant environmental effects. According to the case-law of the Court, the 
requirement in Article 3(4) of the SEA Directive (‘set a framework’) is to be 
interpreted in the same way as the requirement in Article 3(2)(a) of the SEA 
Directive (see judgment of 12 June 2019, CFE, C-43/18, EU:C:2019:483, 
paragraph 60). Thus, the issues addressed in the first question also arise with 
regard to Article 3(4) of the SEA Directive. Based on the above considerations, 
therefore, those plans and programmes must also specifically relate to the 
‘projects’ for which the framework is set as, without any such connection, there 
would ultimately be no plans or programmes, with the exception of those only 
containing specifications for projects not requiring consent (judgment of 12 June 
2019, CFE, C-43/18, EU:C:2019:483, paragraph 65) that do not fall within the 
scope of the SEA Directive. That would conflict with the eleventh recital of the 
SEA Directive. 
24 Therefore, the third question seeks clarification as to just how specifically the 
plans and programmes must relate to the ‘projects’ for which the framework is set.