Judgment;Abstract — ECLI:EU:C:2019:622
Date: 2019-07-29
Language of the case: French
Court formation: Grand Chamber
Subject matter: Environment
Procedure: Reference for a preliminary ruling
Origin: Belgium

summary, it must be stated that Article 2(4) of the EIA Directive permits an exemption from the obligation to undertake an environmental impact assessment for the extension of the period of industrial production of electricity by a nuclear power station for imperative reasons of public interest linked with the security of the country’s electricity supply and/or the avoidance of legal uncertainty if another form of assessment would be appropriate and the public concerned and the Commission are informed in accordance with Article 2(4)(b) and (c). On the other hand, it is not permissible under Article 2(4) to dispense with a transboundary environmental impact assessment under Article 7. 2. Derogation from the Espoo Convention 154. Because the transboundary environmental impact assessment under the EIA Directive may not be dispensed with, there is no need to answer Question 3(c), which asks whether the Espoo Convention permits a derogation. 3. Derogation from the Aarhus Convention 155. On the other hand, it seems possible a priori that Article 2(4) of the EIA Directive permits derogations from the environmental impact assessment which are more extensive than the possible derogations from public participation under Article 6 of the Aarhus Convention. An inconsistency of this kind could also constitute a gap in the transposition of that Convention in EU law. 156. The Aarhus Convention does not provide for an exemption for reasons of security of electricity supply and legal certainty, but only an exemption for national defence in Article 6(1)(c), which is not applicable, however. Articles 54 to 64 of the Vienna Convention on the Law of Treaties, which contain rules on termination or suspension of the operation of treaties, are also not relevant. 157. In addition, the state of necessity is a justification recognised by customary law for failure to comply with international obligations, (72) although it is subject to very strict conditions. It has been codified by the International Law Commission such that non-compliance must be the only way for the State to safeguard an essential interest against a grave and imminent peril. (73) These conditions are also applied by the ICJ. (74) 158. It does not seem inconceivable to recognise risks for security of supply or legal certainty as a grave and imminent peril to an essential interest of Belgium. However, it would also have to be proved that non-compliance with the obligations under the Aarhus Convention was the only way to counter such a peril. 159. It would thus also have to be examined in this connection whether timely public participation with an environment impact assessment would have been impossible. 160. The security of the country’s electricity supply and the avoidance of legal uncertainty do not therefore constitute imperative reasons of public interest permitting a derogation from the Aarhus Convention or suspension of the application of its provisions if it was possible to take the necessary measures to comply with the Convention in good time. 4. Consequences for the interpretation of the possibility of derogation under the EIA Directive 161. Thus it appears at first sight that the EIA Directive allows a derogation which is possibly not permitted by the Aarhus Convention. 162. In order to avoid such an inconsistency, the requirements for the state of necessity in international law must be integrated into the interpretation of Article 2(4) of the EIA Directive. This can be done by the consideration provided for in Article 2(4)(a) of the EIA Directive to determine whether another form of assessment would be appropriate. Appropriateness may therefore be accepted only where the conditions for the state of necessity in international law are also met. 163. The answer to Question 3(c), Question 5(c), Question 6(d) and Question 9 is therefore that Article 2(4) of the EIA Directive permits an exemption from the obligation to undertake an environmental impact assessment for the extension of the period of industrial production of electricity by a nuclear power station if another form of assessment is necessary to avert a grave and imminent peril to an essential interest of the Member State concerned, such as security of electricity supply or legal certainty, and the public concerned and the Commission are informed in accordance with Article 2(4)(b) and (c). On the other hand, it is not permissible under Article 2(4) to dispense with a transboundary environmental impact assessment under Article 7. F. Question 8 — Article 6(3) and (4) of the Habitats Directive 1. Question 8(a) — Definition of ‘project’ in the Habitats Directive 164. By Question 8(a), the Cour constitutionnelle (Constitutional Court) wishes to know whether Article 6 of the Habitats Directive applies to the extension of the period of industrial production of electricity by a nuclear power station. 165. Under the first sentence of Article 6(3) of the Habitats Directive, any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, is to be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. If such an assessment should be necessary, it would include public participation in accordance with Article 6 of the Aarhus Convention. (75) 166. It must therefore be clarified in particular whether the extension of the period of industrial production of electricity by nuclear power stations is a plan or project within the meaning of that provision. 167. It is true that the Habitats Directive does not define ‘project’. The Court has ruled, however, that the definition of ‘project’ in Article 1(2)(a) of the EIA Directive is relevant in defining the concept of plan or project as provided for in the Habitats Directive, which seeks, as does the EIA Directive, to prevent activities which are likely to damage the environment from being authorised without prior assessment of their impact on the environment. (76) 168. It is not possible, however, to treat ‘project’ in the two directives in exactly the same way because the assessment under the Habitats Directive is inextricably linked to the consent requirements for plans and projects which are likely to have a significant effect on protected areas. The competent authorities may agree to a plan or programme only if the impact assessment contains complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the works likely to have an effect on the protected area concerned. (77) On the other hand, the EIA Directive does not lay down any substantive rules for consent for a project. (78) 169. I therefore understand this statement by the Court regarding the meaning of the ‘project’ in the EIA Directive in the context of Article 6(3) of the Habitats Directive to mean that in any case projects within the meaning of that definition are also projects for the purposes of the first sentence of Article 6(3) of the Habitats Directive. However, I assume that the concept of project in the Habitats Directive is not thereby exhaustively defined. (79) 170. Accordingly, if the Court concurs with my view and the extension in itself is to be regarded as a project within the meaning of the EIA Directive or if the Cour constitutionnelle (Constitutional Court) concludes that the extension together with the improvement measures forms a project, a project therefore also exists within the meaning of Article 6(3) of the Habitats Directive. However, even if no project exists under the EIA Directive, that does not preclude the application of Article 6(3) of the Habitats Directive. 171. The Court has thus also held that it is not permitted to exclude from the duty of assessment certain categories of projects on the basis of criteria which do not adequately ensure that those projects will not have a significant effect on the protected sites. (80) In the subsequent examination of the different exclusions provided for in national law, it did not give detailed consideration as to whether they relate to projects within the meaning of Article 1(2) of the EIA Directive. Instead, the likelihood of a significant effect on the protected sites was sufficient to reject the exclusions for the activities in question. (81) 172. The definition of ‘project’ in Article 1(2)(a) of the EIA Directive therefore does not definitively delimit the concept of ‘project’ under the first sentence of Article 6(3) of the Habitats Directive. Rather, the crucial factor is whether the activity concerned is likely to have a significant effect on a protected site. 173. Thus, the remaining risk of protected areas being affected by a serious accident in one of the power stations in particular points to the existence of a project within the meaning of Article 6(3) of the Habitats Directive. Furthermore, the operation of the cooling mechanism is likely to have an effect on fish and cyclostomata particularly, (82) for which both Belgium and the Netherlands protect the Scheldt. On the basis of the available information, it cannot be ruled out that other damage is also possible. 174. The answer to Question 8(a) is therefore that the extension of the period of industrial production of electricity by a nuclear power station is to be regarded as a project within the meaning of the first sentence of Article 6(3) of the Habitats Directive even if that extension would not constitute a project as such within the meaning of the EIA Directive or on account of its connection with works to improve the installation. 2. Question 8(b) — Legislative act 175. Question 8(b) concerns the fact that the extension of the period of industrial production of electricity by a nuclear power station is brought about by a legislative act. 176. This does not, however, call into question the application of Article 6(3) of the Habitats Directive. That provision must be interpreted as not allowing a national authority, even if it is a legislative authority, to authorise a plan or project without having ascertained that it will not adversely affect the integrity of the site concerned. (83) 3. Question 8(c) — Doel 1 and Doel 2 177. From the answer to Question 8(b), it follows for Question 8(c) that the questions contained in points (a) and (b) should not be answered any differently for the two nuclear power stations Doel 1 and Doel 2. 4. Question 8(d) — Exemption for security of supply 178. Lastly, in Question 8(d), the Cour constitutionnelle (Constitutional Court) asks whether Article 6(4) of the Habitats Directive permits, for reasons of security of electricity supply, the postponement of the end of the industrial production of electricity of a nuclear power station. 179. Under the first subparagraph of Article 6(4) of the Habitats Directive, the Member State must take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected if, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature. (a) Conditions for the application of Article 6(4) of the Habitats Directive 180. The question is therefore based on the premiss of a negative assessment of the implications for the site as, if there had been a positive assessment, the project could already have been granted consent pursuant to the second sentence of Article 6(3) of the Habitats Directive. 181. Furthermore, as an exception to the criterion for consent laid down in the second sentence of Article 6(3) of the Habitats Directive, Article 6(4) must be interpreted strictly and can be applied only after the implications of a plan or project have been analysed in accordance with Article 6(3). (84) Accordingly, knowledge of the implications, in the light of the conservation objectives relating to the site in question, is a necessary prerequisite for the application of Article 6(4) of that directive, since, in the absence thereof, no condition for the application of that derogating provision can be assessed. The assessment of any imperative reasons of overriding public interest and that of the existence of less harmful alternatives require a weighing up against the damage caused to the site by the plan or project under consideration. In addition, in order to determine the nature of any compensatory measures, the damage to the site concerned must be precisely identified. (85) 182. The Cour constitutionnelle (Constitutional Court) must therefore examine, first of all, whether the various studies and consultations conducted in connection with the adoption of the Law extending the period of industrial production of electricity by the two nuclear power stations satisfy the requirements for an impact assessment under Article 6(3) of the Habitats Directive. 183. If the necessary assessments were conducted, it can be examined whether security of electricity supply constitutes an imperative reason of overriding public interest in relation to damage to the protected areas. (b) Security of electricity supply 184. As far as the public interest in security of electricity supply is concerned, this is one of the aims of Union policy on energy under Article 194(1)(b) TFEU. Member States also have the fundamental right under Article 194(2) TFEU to determine themselves the choice between different energy sources and the general structure of their energy supply. 185. Accordingly, the Court has recognised within the scope of free movement of capital for, inter alia, undertakings active in the petroleum, telecommunications and electricity sectors that the objective of safeguarding supplies of such products or the provision of such services within the Member State concerned in the event of a crisis may constitute a public security reason and therefore may justify an obstacle to the free movement of capital. (86) 186. However, public security may be invoked only for ensuring a minimum supply (87) as the requirements of public security must, as a derogation from the fundamental principle of free movement of capital, be interpreted strictly, with the result that their scope cannot be determined unilaterally by each Member State without any control by the Union institutions. Thus, public security may be relied on only if there is a genuine and sufficiently serious threat to a fundamental interest of society. (88) 187. These considerations should also apply in principle to Article 6(4) of the Habitats Directive. It should be noted, however, that this provision, unlike the derogations from free movement of capital under Article 65(1) TFEU, expressly includes reasons of an economic or social nature. 188. It follows that not only minimum supply is a possible imperative reason of overriding public interest but, more generally, sufficient supply to satisfy demand. However, public security may be invoked only for the interest in ensuring a minimum supply. 189. This distinction between the general interest in security of electricity supply and the particular interest in a minimum supply is particularly important because under the second subparagraph of Article 6(4) of the Habitats Directive the only considerations which may be raised are those relating to human health or public safety or to beneficial consequences of primary importance for the environment where the site concerned hosts a priority natural habitat type and/or a priority species. Other imperative reasons of overriding public interest may be raised only further to an opinion from the Commission. 190. With regard to that provision, the Court has ruled that the security of supply in the energy sector, in that case the supply of coal, does not fall under the second subparagraph of Article 6(4) of the Habitats Directive. (89) I understand this to mean that the Court was thereby addressing only the general interest in security in supply, which does not attain the level of the interest in ensuring public security. 191. As has already been stated, various protected areas mentioned by the Cour constitutionnelle (Constitutional Court) host priority habitats (90) and it does not appear to be ruled out a priori that they may also be damaged by the power stations. For that reason, the Cour constitutionnelle (Constitutional Court) must consider whether the operation of the two nuclear power stations in question only serves the general interest in security of supply or is in fact necessary to guarantee a minimum supply. In the former case, reliance on Article 6(4) of the Habitats Directive requires an opinion from the Commission. 192. Furthermore, that assessment is necessary because the requirements relating to the absence of alternative solutions may differ depending on whether the more substantial interest in ensuring a minimum supply or the less substantial general interest in security of supply is relevant. 193. It seems appropriate for a Member State to wish to ensure the minimum supply in its own territory. (91) On the other hand, it is not unreasonable to refer the Member States, for the general interest in security of supply, to the possibility of importing electrical energy. (92) (c) Interim conclusion 194. The answer to Question 8(d) is therefore that the public interest in ensuring a minimum supply of electricity constitutes a reason of public safety within the meaning of the second subparagraph of Article 6(4) of the Habitats Directive, while the further-reaching public interest in security of electricity supply is to be regarded as a reason of an economic nature within the meaning of the first subparagraph of Article 6(4). G. Maintenance of the effects of the Law extending the period of industrial production of electricity by the Doel 1 and Doel 2 nuclear power stations 195. On the basis of the above considerations, there are indications that the rules at issue were infringed on the adoption of the Law extending the period of industrial production of electricity by the Doel 1 and Doel 2 nuclear power stations and that this is not justified by security of electricity supply or legal certainty. Nevertheless, I do not rule out the possibility in this case of maintaining the effects of that law. The basis for this is the case-law developed by the Court in relation to the maintenance of measures adopted in breach of the Strategic Environmental Assessment Directive. 1. Case-law within the scope of the Strategic Environmental Assessment Directive 196. Within the scope of the Strategic Environmental Assessment Directive the Court has considered it possible to take into consideration overriding public interests in connection with the consequences of procedural infringements of rules on the environmental assessment of measures. This stems from the fact that the Strategic Environmental Assessment Directive, like the Espoo and Aarhus Conventions and the EIA Directive and the Habitats Directive, does not contain any rules relating to those consequences. (93) 197. Therefore, the detailed procedural rules governing actions brought for failure to fulfil the obligation to undertake an environmental assessment before the decision on a certain activity, subject to the principles of equivalence and effectiveness, fall within the procedural autonomy of the Member States. (94) 198. The requirements of the principle of effectiveness follow in this case from the Member States’ obligation under the principle of cooperation in good faith laid down in Article 4(3) TEU to nullify the unlawful consequences of a breach of EU law. (95) Consequently, courts before which actions are brought in that regard must adopt, on the basis of their national law, measures to suspend or annul the decision taken in breach of the obligation to carry out an environmental assessment. (96) The fundamental objective of a rule governing the environmental assessment would be disregarded if national courts did not adopt in such actions brought before them, and subject to the limits of procedural autonomy, the measures, provided for by their national law, that are appropriate for preventing the activity concerned from being implemented in the absence of an environmental assessment. (97) 199. Furthermore, measures to suspend or annul such decisions are necessary on account of the substantive dimension of the fundamental right to effective judicial protection enshrined in the first paragraph of Article 47 of the Charter. That fundamental right is invoked mainly on account of its procedural requirements, but they are merely a means to an end, namely to guarantee an effective remedy. However, a remedy is effective only if the finding of infringements of the law has appropriate consequences. (98) It would hardly be compatible with this if challenged acts continued to be applicable even in the case of infringements of the law. 200. Accordingly, I have already taken the view that it is appropriate, as a rule, to halt the operations of a plant if its consent is revoked or suspended on grounds of an infringement of the EIA Directive (99) and the Court also clearly considers this to be the typical consequence of such a finding. (100) 201. The Court nevertheless ruled in Inter-Environnement Wallonie and Terre wallonne that a national court can, given the existence of an overriding consideration relating to the protection of the environment, exceptionally be authorised to make use of its national provision empowering it to maintain certain effects of a national measure which it has annulled on grounds of infringement of the Strategic Environmental Assessment Directive. (101) 202. In Association France Nature Environnement, the Court even interpreted the earlier judgment to the effect that it intended to afford, case by case and by way of exception, a national court the power to restructure the effects of annulment of a national provision held to be incompatible with EU law. (102) That interpretation seems to be misleading, however, in so far as it might run counter to settled case-law according to which the Court alone may provisionally suspend the temporal application of EU law, whose application takes precedence. (103) 203. In fact, the judgment in Inter-Environnement Wallonie and Terre wallonne relates only to cases in which domestic measures are not substantively contrary to EU law, but have merely been adopted in breach of the rules on environmental assessment. Consequently, those measures are not inapplicable because they are contrary to EU law, whose application takes precedence. Rather, they are vitiated by a procedural error, the consequences of which are not expressly regulated, as has been stated. This explains the latitude which the Court has allowed national courts and the Court did not therefore go any further in Association France Nature Environnement. 204. The Court originally (104) permitted in this context only the maintenance of the effects of measures which correctly transpose the Nitrates Directive (105) and this was subsequently extended to the transposition of EU law in the field of environmental protection in general. (106) Furthermore, this case-law can be understood to mean that the avoidance of adverse environmental effects, irrespective of the transposition of EU environmental law, could justify maintaining the effects of measures adopted in breach of the Strategic Environmental Assessment Directive. (107) 205. It must therefore be stated that a national court can, given the existence of an overriding consideration relating to the protection of the environment, exceptionally be authorised to make use of a national provision empowering it to maintain certain effects of a national measure which it has annulled on grounds of infringement of the procedural requirements of the Strategic Environmental Assessment Directive. 2. Application to other environmental assessments 206. Applying this case-law in the present case would extend it considerably. 207. Such extension could not really be limited to the procedural requirements of the Espoo and Aarhus Conventions, the EIA Directive and the Habitats Directive in the long term. Rather, it would be conceivable in the case of a large number of procedural rules of EU law. Furthermore, the set of possible justifications would be extended far beyond environmental protection to other public interests if security of supply or avoidance of legal uncertainty were considered sufficient. 208. However, as a rule, some of the justification for the maintenance of plans and programmes which are subject to the Strategic Environmental Assessment Directive would be lacking since, unlike those measures, individual decisions do not in principle leave a legal vacuum (108) if they are annulled or suspended. Normally consent is merely cancelled and the activity in question may not therefore be carried out. 209. Nevertheless, such decisions are not necessarily contrary in substance to EU law when they are adopted in breach of procedural requirements of EU law. EU law does not therefore preclude national legislation which, in certain cases, permits the regularisation of operations or measures which are unlawful in the light of EU law. (109) 210. Bearing in mind this possibility, it could be disproportionate in some cases, on the basis of a finding of a procedural error, to eliminate the effects of the decision concerned, with the result that the activity at issue can no longer be carried out at least temporarily. Rather, it could be necessary to weigh up the conflicting interests and, in some cases, to maintain the effects of the decision until it is subsequently regularised. 211. However, a good degree of caution must be exercised. 212. The possibility of a posteriori regularisation is limited to exceptional cases and may not offer the opportunity to circumvent EU law or dispense with applying it. (110) However, there would be a danger of circumvention especially if before regularisation the effect of decisions adopted in breach of procedural rules was maintained too generously. 213. It must also be ensured that maintenance of the effects of a decision taken without the necessary environmental assessment does not result in environmental damage which the environmental assessment is specifically intended to prevent. 214. Consequently, the effects of such a decision may be maintained only if, on the basis of the available information and the applicable provisions, it is highly likely that the decision will be confirmed in the same form following the retrospective carrying out of the environmental assessment. If, however, there is reasonable doubt as to such confirmation, maintaining the effects should be ruled out. Crucial to the assessment are the substantive conditions for the exercise of the activity in question, in this case, aside from the applicable rules governing the operation of nuclear power stations, Article 6 of the Habitats Directive for example. 215. Furthermore, maintaining the effects should not mean that additional faits accomplis are created, for example by project developers making further investments or causing additional environmental damage. 216. Faits accomplis weaken the effectiveness of an environmental assessment that is carried out retrospectively. The main function of the assessment, when used in good time, is to influence the decision concerning the project such that environmental damage is minimised as far as possible. For this reason, it is to be undertaken, under Article 6(4) of the Aarhus Convention and Article 6(4) of the EIA Directive, as early as possible, when all options are open. If it is merely carried out retrospectively, it can perform this function only to a very limited extent because many decisions have already been taken. Modifying those decisions in the light of the retrospective assessment is even less attractive when they have actually already been implemented. 217. Only in so far as a confirmation of the contested decision is taken to exist and no further faits accomplis are created is it possible to weigh up the interest in the effective enforcement of the rules on the environmental assessment against the interests in maintaining the effects of the decision. 218. It would not be surprising if the Cour constitutionnelle (Constitutional Court) conducts this weighing up in the main proceedings, as they relate to the continuation of an activity which has already taken place for around 40 years. 219. As regards the weighing up itself, it must be considered whether the interest in security of supply in particular falls within the narrower area of minimum supply described above, which is to be attributed to the more important public safety, or within the broader area of general security of supply, which is to be attributed to economic interests. This has lower importance. (111) 220. In summary, it must therefore be stated that national courts may exceptionally maintain temporarily the effects of a decision taken in breach of a duty under EU law to undertake an environmental assessment if – that decision is as soon as possible regularised a posteriori by rectifying the procedural error, – on the basis of the available information and the applicable provisions, it is highly likely that the decision will be confirmed in the same form following regularisation, – as far as possible no additional faits accomplis are created, and – overriding public interests in maintaining the effects prevail over the interest in the effectiveness of the obligation to undertake the environmental assessment and the fundamental right to effective judicial protection. VI. Conclusion 221. I therefore propose that the Court should rule as follows: (1) The answer to Questions 2, 4 and 7 of the request for a preliminary ruling is that under Article 1(4) of Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment only projects the details of which have been adopted by a specific legislative act, in such a way that the objectives of that directive have been achieved by the legislative process, are excluded from the ambit of the directive. It is for the national court to verify whether the legislative act is equivalent to development consent for a project and whether the objectives of the directive are achieved in the legislative process, taking account both of the content of the legislative act adopted and of the entire legislative process which led to its adoption, in particular the preparatory documents and parliamentary debates. (2) The answer to Questions 1, 3(a), 5(a) and the first part of Question 6(a) is that, contrary to previous case-law, the definition of ‘project’ under Article 1(2)(a) of Directive 2011/92 includes the extension by 10 years of the period of industrial production of electricity by a nuclear power station. In the event that in respect of the extension of the period of production of electricity in nuclear power stations the Court adheres to its interpretation of the definition of ‘project’ under Article 1(2)(a) of Directive 2011/92, I propose that it find that the directive is nevertheless applicable to such extension because it constitutes a project within the meaning of Article 1(5) and Appendix I to the Espoo Convention on access to information, public participation in decision-making and access to justice in environmental matters and Article 6(1)(a) and Annex I to the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters. Irrespective of whether the Court concurs with the proposals regarding the interpretation of Article 1(2)(a) of Directive 2011/92 in conformity with international law or regarding the direct application of the definition of ‘project’ in the Espoo and Aarhus Conventions, the extension of the period of industrial production of electricity by a nuclear power station constitutes consent for a project within the meaning of Article 1(2)(a) where it involves consent for works or interventions altering or extending the installation. (3) The answer to Question 6(b) is that an extension by 10 years of the period of industrial production of electricity by commercial nuclear power stations, which is linked with structural improvement measures, must, as a change to a nuclear power station, be made subject to an assessment of its environmental effects in accordance with Article 4(1) and Annex I, point 24 in conjunction with point 2(b) to Directive 2011/92 if the extension is not already to be regarded in itself as consent for a project in accordance with Annex I, point 2(b). The answer to the third part of Question 6(a) is that in the case of a decision concerning the extension of the period of industrial production of electricity by certain nuclear power stations, which is connected with structural improvement measures, public participation must take place in accordance with Article 6(4) of Directive 2011/92 as early as possible, when all options are open, that is to say, before the decision on the extension is taken. (4) The answer to Question 3(c), Question 5(c), Question 6(d) and Question 9 is that Article 2(4) of Directive 2011/92 permits an exemption from the obligation to undertake an environmental impact assessment for the extension of the period of industrial production of electricity by a nuclear power station if another form of assessment is necessary to avert a grave and imminent peril to an essential interest of the Member State concerned, such as security of electricity supply or legal certainty, and the public concerned and the Commission are informed in accordance with Article 2(4)(b) and (c). On the other hand, it is not permissible under Article 2(4) to dispense with a transboundary environmental impact assessment under Article 7. (5) The answer to Question 8(a) is that the extension of the period of industrial production of electricity by a nuclear power station is to be regarded as a project within the meaning of the first sentence of Article 6(3) of Directive 92/43/EEC even if that extension would not constitute a project as such within the meaning of the EIA Directive or on account of its connection with works to improve the installation. The answer to Question 8(b) is that Article 6(3) of Directive 92/43 does not allow a national authority, even if it is a legislative authority, to authorise a plan or project without having ascertained that it will not adversely affect the integrity of the site concerned. The answer to Question 8(d) is that the public interest in ensuring a minimum supply of electricity constitutes a reason of public safety within the meaning of the second subparagraph of Article 6(4) of Directive 92/43, while the further-reaching public interest in security of electricity supply is to be regarded as a reason of an economic nature within the meaning of the first subparagraph of Article 6(4). (6) National courts may exceptionally maintain temporarily the effects of a decision taken in breach of a duty under EU law to undertake an environmental assessment if – that decision is as soon as possible regularised a posteriori by rectifying the procedural error, – on the basis of the available information and the applicable provisions, it is highly likely that the decision will be confirmed in the same form following regularisation, – as far as possible no additional faits accomplis are created, and – overriding public interests in maintaining the effects prevail over the interest in the effectiveness of the obligation to undertake the environmental assessment and the fundamental right to effective judicial protection. (7) The answer to Question 3(b), Question 5(b), Question 6(c) and Question 8(c) is that the need to adopt administrative acts implementing the Law of 28 June 2015 for the Doel 1 nuclear power station, which does not exist for the Doel 2 nuclear power station, does not affect the answers to the questions referred for a preliminary ruling. 1 Original language: German. 2 Convention on environmental impact assessment in a transboundary context of 1991 (OJ 1992 C 104, p. 7). 3 Convention on access to information, public participation in decision-making and access to justice in environmental matters of 1998 (OJ 2005 L 124, p. 4), approved by Council Decision 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p. 1). 4 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 2011 L 26, p. 1). 5 Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193). 6 Council Document 8931/96 of 17 July 1996. 7 Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7), as amended most recently by Council Directive 2013/17/EU of 13 May 2013 adapting certain directives in the field of environment, by reason of the accession of the Republic of Croatia (OJ 2013 L 158, p. 193). 8 Standard data form, http://natura2000.eea.europa.eu/Natura2000/SDF.aspx?site=BE2300006 9 Standard data form, http://natura2000.eea.europa.eu/Natura2000/SDF.aspx?site=BE2100017 10 Standard data form, http://natura2000.eea.europa.eu/Natura2000/SDF.aspx?site=NL9803061 11 See footnotes 8 to 10. 12 Pages 39 to 40 of the request for a preliminary ruling. 13 Judgment of 12 February 2015, Parliament v Council (C‑48/14, EU:C:2015:91, paragraph 38). 14 See to that effect judgments of 29 March 1990, Greece v Council (C‑62/88, EU:C:1990:153, paragraph 17), and of 12 April 2005, Commission v United Kingdom (C‑61/03, EU:C:2005:210, paragraph 44); and Opinion 1/94 (Agreements annexed to the WTO Agreement) of 15 November 1994 (EU:C:1994:384, paragraph 24). 15 Judgments of 10 December 2002, Commission v Council (Nuclear Safety Convention, C‑29/99, EU:C:2002:734, paragraph 78), and of 27 October 2009, ČEZ (C‑115/08, EU:C:2009:660, paragraph 100). 16 Judgment of 27 October 2009, ČEZ (C‑115/08, EU:C:2009:660, paragraph 105). See also judgment of 10 December 2002, Commission v Council (Nuclear Safety Convention, C‑29/99, EU:C:2002:734, paragraph 89). 17 Appendix I, point 2 to the Espoo Convention, fifth indent of point 1 of Annex I to the Aarhus Convention and Annex I, point 2(b) to the EIA Directive. 18 See, with regard to the application of the Aarhus Convention to similar measures in the United Kingdom, Aarhus Convention Compliance Committee, Findings and recommendations of 23 October 2013, Ewing v United Kingdom (ACCC/C/2011/61, ECE/MP.PP/C.1/2013/13, Hybrid Bill, paragraph 54). With regard to this committee, see my Opinion in Edwards (C‑260/11, EU:C:2012:645, point 8). See, by contrast, however, judgments of 18 October 2011, Boxus and Others (C‑128/09 to C‑131/09, C‑134/09 and C‑135/09, EU:C:2011:667, paragraph 50), and of 16 February 2012, Solvay and Others (C‑182/10, EU:C:2012:82, paragraph 43). 19 Judgments of the ICJ of 20 April 2010, Pulp Mills on the River Uruguay (Argentina v Uruguay), I.C.J. Reports 2010, p. 14, paragraph 204, and of 16 December 2015, Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica), I.C.J. Reports 2015, p. 665, paragraph 104. 20 Concluded on 23 May 1969 (United Nations Treaty Series, Vol. 1155, p. 331). 21 See for example judgments of 5 May 1970, Commission v Belgium (77/69, EU:C:1970:34, paragraph 15) and of 9 December 2003, Commission v Italy (C‑129/00, EU:C:2003:656, paragraph 29); and Opinion 1/09 (Agreement creating a Unified Patent Litigation System) of 8 March 2011 (EU:C:2011:123, paragraph 86). 22 Directive of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1). 23 Judgments of 16 September 1999, WWF and Others (C‑435/97, EU:C:1999:418, paragraph 57); of 18 October 2011, Boxus and Others (C‑128/09 to C‑131/09, C‑134/09 and C‑135/09, EU:C:2011:667, paragraph 37); and of 17 November 2016, Stadt Wiener Neustadt (C‑348/15, EU:C:2016:882, paragraph 26). 24 Judgments of 16 September 1999, WWF and Others (C‑435/97, EU:C:1999:418, paragraph 58); of 18 October 2011, Boxus and Others (C‑128/09 to C‑131/09, C‑134/09 and C‑135/09, EU:C:2011:667, paragraphs 38 and 39); and of 17 November 2016, Stadt Wiener Neustadt (C‑348/15, EU:C:2016:882, paragraph 27). 25 See below, point 63 et seq. 26 Judgments of 18 October 2011, Boxus and Others (C‑128/09 to C‑131/09, C‑134/09 and C‑135/09, EU:C:2011:667, paragraph 41), and of 17 November 2016, Stadt Wiener Neustadt (C‑348/15, EU:C:2016:882, paragraph 29). 27 Judgments of 18 October 2011, Boxus and Others (C‑128/09 to C‑131/09, C‑134/09 and C‑135/09, EU:C:2011:667, paragraph 43), and of 17 November 2016, Stadt Wiener Neustadt (C‑348/15, EU:C:2016:882, paragraph 30). 28 See judgment of 18 October 2011, Boxus and Others (C‑128/09 to C‑131/09, C‑134/09 and C‑135/09, EU:C:2011:667, paragraph 48). 29 Judgments of 17 March 2011, Brussels Hoofdstedelijk Gewest and Others (C‑275/09, EU:C:2011:154, paragraph 24), and of 19 April 2012, Pro-Braine and Others (C‑121/11, EU:C:2012:225, paragraph 31). 30 Judgments of 17 March 2011, Brussels Hoofdstedelijk Gewest and Others (C‑275/09, EU:C:2011:154, paragraph 24), and of 19 April 2012, Pro-Braine and Others (C‑121/11, EU:C:2012:225, paragraph 32). 31 Judgment of 8 March 2011, Lesoochranárske zoskupenie (C‑240/09, EU:C:2011:125, paragraph 30); of 15 March 2018, North East Pylon Pressure Campaign and Sheehy (C‑470/16, EU:C:2018:185, paragraph 46); and of 11 July 2018, Bosphorus Queen Shipping (C‑15/17, EU:C:2018:557, paragraph 44). 32 Declaration by the European Community concerning its competence under Article 17(5) of the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo, Finland) (Council document 8931/96, Annex B, also available at: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII‑4&chapter= 27&lang=en#EndDec). 33 Judgment of 8 March 2011, Lesoochranárske zoskupenie (C‑240/09, EU:C:2011:125, paragraph 31 and the case-law cited). 34 See judgments of 19 March 2002, Commission v Ireland (C‑13/00, EU:C:2002:184, paragraph 20); of 7 October 2004, Commission v France, C‑239/03, EU:C:2004:598, paragraphs 29 to 31); of 8 March 2011, Lesoochranárske zoskupenie (C‑240/09, EU:C:2011:125, paragraph 36); and of 4 September 2014, Commission v Council (C‑114/12, EU:C:2014:2151, paragraph 102). 35 Judgments of 8 March 2011, Lesoochranárske zoskupenie (C‑240/09, EU:C:2011:125, paragraph 42), and of 15 March 2018, North East Pylon Pressure Campaign and Sheehy (C‑470/16, EU:C:2018:185, paragraph 50). 36 The Court took a similar approach in the judgment of 17 March 2011, Brussels Hoofdstedelijk Gewest and Others (C‑275/09, EU:C:2011:154, paragraphs 26 to 28), in order to substantiate its interpretation of ‘project’ in the EIA Directive. 37 Report of the thirtieth session of the Implementation Committee, 14 August 2014, ECE/MP.EIA/IC/2014/2, Annex (Rivne nuclear power plant), paragraph 37. 38 Ibid., paragraphs 41 to 45. 39 See below, point 98. 40 Report of the thirtieth session of the Implementation Committee, 14 August 2014, ECE/MP.EIA/IC/2014/2, Annex (Rivne nuclear power plant), paragraph 42. 41 See above, point 80. 42 See Aarhus Convention Compliance Committee, Findings and recommendations of 12 May 2011, Global 2000 [Friends of the Earth Austria] v Slovakia (ACCC/C/2009/41, ECE/MP.PP/2011/11/Add.3, Mochovce nuclear power plant, paragraphs 55 to 57). 43 See above, point 81. 44 OJ 1999 L 318, p. 21, approved by Commission Decision 1999/819/Euratom of 16 November 1999 concerning the accession to the 1994 Convention on Nuclear Safety by the European Atomic Energy Community (Euratom) (OJ 1999 L 318, p. 20). 45 Council Directive of 25 June 2009 establishing a Community framework for the nuclear safety of nuclear installations (OJ 2009 L 172, p. 18). 46 See Article 21 of Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control) (OJ 2010 L 334, p. 17). 47 Aarhus Convention Compliance Committee, Findings and recommendations of 12 May 2011, Global 2000 [Friends of the Earth Austria] v Slovakia (ACCC/C/2009/41, ECE/MP.PP/2011/11/Add.3, Mochovce nuclear power plant, paragraph 58). See also UNECE, Maastricht Recommendations on Promoting Effective Public Participation in Decision-making in Environmental Matters, paragraph 40(f), and Task Force on Public Participation in Decision-making, Report on the fourth meeting (18 June 2013), ECE/MP.PP/WG.1/2013/6, paragraphs 56 and 57. 48 See, on the one hand, Declaration by the European Community concerning its competence under Article 17(5) of the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo, Finland) (Council document 8931/96, Annex B, also available at: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII‑4&chapter= 27&lang=en#EndDec) and recital 15 of the EIA Directive and, on the other, Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC (OJ 2003 L 156, p. 17). 49 See judgments of 8 March 2011, Lesoochranárske zoskupenie (C‑240/09, EU:C:2011:125, paragraph 42), and of 15 March 2018, North East Pylon Pressure Campaign and Sheehy (C‑470/16, EU:C:2018:185, paragraph 50). 50 Judgments of 24 November 1992, Poulsen and Diva Navigation (C‑286/90, EU:C:1992:453, paragraph 9); of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission (C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraph 291); of 21 December 2011, Air Transport Association of America and Others (C‑366/10, EU:C:2011:864, paragraph 123); and of 11 July 2018, Bosphorus Queen Shipping (C‑15/17, EU:C:2018:557, paragraph 44). 51 Judgment of 17 March 2011, Brussels Hoofdstedelijk Gewest and Others (C‑275/09, EU:C:2011:154, paragraphs 26 to 28). 52 See above, point 54. 53 See, with regard to the limitation of the effects of a judgment, judgments of 2 February 1988, Blaizot and Others (24/86, EU:C:1988:43, paragraphs 28 and 30); of 15 March 2005, Bidar (C‑209/03, EU:C:2005:169, paragraphs 66 to 69); and of 9 November 2010, Volker and Markus Schecke and Eifert (C‑92/09 and C‑93/09, EU:C:2010:662, paragraph 93). 54 Judgment of 17 November 2016, Stadt Wiener Neustadt (C‑348/15, EU:C:2016:882, paragraphs 41 and 42). 55 Judgments of 30 September 1987, Demirel (12/86, EU:C:1987:400, paragraph 14), and of 8 March 2011, Lesoochranárske zoskupenie (C‑240/09, EU:C:2011:125, paragraph 44 and the case-law cited). 56 Judgments of 10 January 2006, IATA and ELFAA (C‑344/04, EU:C:2006:10, paragraph 35); of 3 June 2008, The International Association of Independent Tanker Owners and Others (C‑308/06, EU:C:2008:312, paragraph 42); of 21 December 2011, Air Transport Association of America and Others (C‑366/10, EU:C:2011:864, paragraph 50); and of 16 July 2015, ClientEarth v Commission (C‑612/13 P, EU:C:2015:486, paragraph 33). 57 See, with regard to the direct application of directives, judgments of 18 October 2001, Gharehveran (C‑441/99, EU:C:2001:551, paragraphs 41 to 44), and of 6 September 2018, Hampshire (C‑17/17, EU:C:2018:674, paragraph 62). 58 Judgments of 8 November 2016, Lesoochranárske zoskupenie VLK (C‑243/15, EU:C:2016:838, paragraphs 57 and 59), and of 20 December 2017, Protect Natur-, Arten- und Landschaftsschutz Umweltorganisation (C‑664/15, EU:C:2017:987, paragraphs 38 and 39). 59 Group of Experts for the Pact (Fabius et al.), White Paper, Toward a Global Pact for the Environment, sections 4.2.1 and 4.2.2 (http://pactenvironment.emediaweb.fr/wp-content/uploads/2017/07/White-paper-Global-Pact-for-the-environment.pdf). 60 Judgment of 19 April 2012, Pro-Braine and Others (C‑121/11, EU:C:2012:225, paragraph 33). 61 See judgment of 7 January 2004, Wells (C‑201/02, EU:C:2004:12, paragraphs 44 to 48). 62 See point 6.2.6 of the Explanatory Memorandum for Commission Proposal COM(2000) 0839 final, which led to Directive 2003/35 (cited in footnote 48). 63 See above, point 86. 64 Section B.9.2 of the request for a preliminary ruling. 65 Judgments of 7 January 2004, Wells (C‑201/02, EU:C:2004:12, paragraph 53); of 28 February 2008, Abraham and Others (C‑2/07, EU:C:2008:133, paragraph 26); and of 17 March 2011, Brussels Hoofdstedelijk Gewest and Others (C‑275/09, EU:C:2011:154, paragraph 33). 66 Judgments of 7 January 2004, Wells (C‑201/02, EU:C:2004:12, paragraph 52), and of 28 February 2008, Abraham and Others (C‑2/07, EU:C:2008:133, paragraph 26). 67 Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40). 68 Judgments of 7 January 2004, Wells (C‑201/02, EU:C:2004:12, paragraph 52), and of 28 February 2008, Abraham and Others (C‑2/07, EU:C:2008:133, paragraph 26). 69 Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40). 70 Council Directive of 3 March 1997 amending Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment (OJ 1997 L 73, p. 5). 71 Common Position (EC) No 40/96, (OJ 1996 C 248, p. 75 (88)). 72 Judgment of the ICJ of 25 September 1997, Gabčíkovo-Nagymaros Project (Hungary/Slovakia), I.C.J. Reports 1997, p. 7, paragraph 51. 73 Article 25(1)(a) of the Draft Articles on Responsibility of States for Internationally Wrongful Acts (General Assembly of the United Nations — Fifty-Sixth Session, Section VII, p. 530, http://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf). 74 Judgment of the ICJ of 25 September 1997, Gabčíkovo-Nagymaros Project (Hungary/Slovakia), I.C.J. Reports 1997, p. 7, paragraph 52. 75 Judgment of 8 November 2016, Lesoochranárske zoskupenie VLK (C‑243/15, EU:C:2016:838, paragraphs 46 and 49). 76 Judgments of 7 September 2004, Waddenvereniging and Vogelbeschermingsvereniging (C‑127/02, EU:C:2004:482, paragraph 26), and of 14 January 2010, Stadt Papenburg (C‑226/08, EU:C:2010:10, paragraph 38). Worded slightly differently in the judgment of 17 July 2014, Commission v Greece (C‑600/12, not published, EU:C:2014:2086, paragraph 75). 77 Judgments of 11 April 2013, Sweetman and Others (C‑258/11, EU:C:2013:220, paragraph 44); of 21 July 2016, Orleans and Others (C‑387/15 and C‑388/15, EU:C:2016:583, paragraph 50); and of 17 April 2018, Commission v Poland (Białowieża Forest) (C‑441/17, EU:C:2018:255, paragraph 114). 78 Judgments of 13 December 2007, Commission v Ireland (C‑418/04, EU:C:2007:780, paragraph 231), and of 14 March 2013, Leth (C‑420/11, EU:C:2013:166, paragraph 46). 79 See judgment of 7 November 2018, Coöperatie Mobilisation for the Environment and Others (C‑293/17 and C‑294/17, EU:C:2018:882, paragraphs 65 and 66), and my Opinions in Waddenvereniging and Vogelbeschermingsvereniging (C‑127/02, EU:C:2004:60, point 31) and in Coöperatie Mobilisation for the Environment and Others (C‑293/17 and C‑294/17, EU:C:2018:622, points 114 to 118). 80 Judgment of 10 January 2006, Commission v Germany (C‑98/03, EU:C:2006:3, paragraph 41). See also judgment of 26 May 2011, Commission v Belgium (C‑538/09, EU:C:2011:349, paragraph 41). 81 Judgment of 10 January 2006, Commission v Germany (C‑98/03, EU:C:2006:3, paragraphs 42 to 44). Now also the Judgment of 7 November 2018, Coöperatie Mobilisation for the Environment and Others (C‑293/17 and C‑294/17, EU:C:2018:882, paragraph 67). 82 See judgment of 26 April 2017, Commission v Germany (Moorburg) (C‑142/16, EU:C:2017:301, paragraph 30). 83 Judgment of 16 February 2012, Solvay and Others (C‑182/10, EU:C:2012:82, paragraphs 69 and 70). Also the judgment of 11 September 2012, Nomarchiaki Aftodioikisi Aitoloakarnanias and Others (C‑43/10, EU:C:2012:560, paragraph 100 et seq.) concerning the authorisation of a project by way of legislation. 84 Judgments of 21 July 2016, Orleans and Others (C‑387/15 and C‑388/15, EU:C:2016:583, paragraph 60 and the case-law cited), and of 17 April 2018, Commission v Poland (Białowieża Forest) (C‑441/17, EU:C:2018:255, paragraph 189). 85 Judgments of 21 July 2016, Orleans and Others (C‑387/15 and C‑388/15, EU:C:2016:583, paragraph 61 and the case-law cited), and of 17 April 2018, Commission v Poland (Białowieża Forest) (C‑441/17, EU:C:2018:255, paragraph 191 and the case-law cited in both). 86 Judgments of 13 May 2003, Commission v Spain (C‑463/00, EU:C:2003:272, paragraph 71), and of 26 March 2009, Commission v Italy (C‑326/07, EU:C:2009:193, paragraph 69). 87 Judgments of 10 July 1984, Campus Oil and Others (72/83, EU:C:1984:256, paragraphs 35 and 47); of 4 June 2002, Commission v France (C‑483/99, EU:C:2002:327, paragraph 47); and of 4 June 2002, Commission v Belgium (C‑503/99, EU:C:2002:328, paragraph 46). 88 Judgments of 14 March 2000, Église de scientologie (C‑54/99, EU:C:2000:124, paragraph 17); of 4 June 2002, Commission v France (C‑483/99, EU:C:2002:327, paragraph 48); and of 4 June 2002, Commission v Belgium (C‑503/99, EU:C:2002:328, paragraph 47). 89 Judgment of 24 November 2011, Commission v Spain (Alto Sil/Spanish brown bear) (C‑404/09, EU:C:2011:768, paragraphs 193 and 195). See also the Opinion of the Commission of 24 April 2004 under Article 6(4) of the Habitats Directive concerning the Prosper Haniel Colliery (http://ec.europa.eu/environment/nature/natura2000/management/docs/art6/prosper_haniel_en.pdf). 90 See above, points 25. 91 See the judgments cited in footnotes 86 and 87. 92 See to that effect, in particular, judgments of 20 December 2017, Eni and Others (C‑226/16, EU:C:2017:1005, paragraph 45) and of 20 March 2018, Commission v Austria (C‑187/16, EU:C:2018:194, paragraph 87). 93 See, with regard to the EIA Directive, judgment of 26 July 2017, Comune di Corridonia and Others (C‑196/16 and C‑197/16, EU:C:2017:589, paragraph 34). 94 Judgments of 7 January 2004, Wells (C‑201/02, EU:C:2004:12, paragraph 67), and of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne (C‑41/11, EU:C:2012:103, paragraph 45). 95 Judgments of 7 January 2004, Wells (C‑201/02, EU:C:2004:12, paragraph 64 and the case-law cited), and of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne (C‑41/11, EU:C:2012:103, paragraph 43 and the case-law cited). 96 Judgments of 7 January 2004, Wells (C‑201/02, EU:C:2004:12, paragraph 65); of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380, paragraph 59); of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne (C‑41/11, EU:C:2012:103, paragraph 46); and of 26 July 2017, Comune di Corridonia and Others (C‑196/16 and C‑197/16, EU:C:2017:589, paragraph 35). 97 Judgment of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne (C‑41/11, EU:C:2012:103, paragraphs 46 and 47). 98 See for example judgments of the ECtHR of 19 March 1997, Hornsby v. Greece (18357/91, CE:ECHR:1997:0319JUD001835791, paragraphs 40 and 41), and of 8 April 2004, Assanidze v. Georgia (71503/01, CE:ECHR:2004:0408JUD007150301, paragraphs 181 and 182). 99 My Opinion in Comune di Corridonia and Others (C‑196/16 and C‑197/16, EU:C:2017:249, point 41). 100 Judgment of 7 January 2004, Wells (C‑201/02, EU:C:2004:12, paragraph 58). 101 Judgment of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne (C‑41/11, EU:C:2012:103, paragraph 58). 102 Judgment of 28 July 2016, Association France Nature Environnement (C‑379/15, EU:C:2016:603, paragraph 34). 103 Judgments of 17 May 1990, Barber (C‑262/88, EU:C:1990:209, paragraph 41); of 8 September 2010, Winner Wetten (C‑409/06, EU:C:2010:503, paragraph 67); and of 28 July 2016, Association France Nature Environnement (C‑379/15, EU:C:2016:603, paragraph 33). 104 Judgment of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne (C‑41/11, EU:C:2012:103, paragraph 59). 105 Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources (OJ 1991 L 375, p. 1). 106 Judgment of 28 July 2016, Association France Nature Environnement (C‑379/15, EU:C:2016:603, paragraph 39). 107 Judgments of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne (C‑41/11, EU:C:2012:103, paragraphs 57 and 58), and of 28 July 2016, Association France Nature Environnement (C‑379/15, EU:C:2016:603, paragraphs 34 to 36). 108 Judgments of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne (C‑41/11, EU:C:2012:103, paragraph 56), and of 28 July 2016, Association France Nature Environnement (C‑379/15, EU:C:2016:603, paragraph 38). 109 Judgments of 3 July 2008, Commission v Ireland (C‑215/06, EU:C:2008:380, paragraph 57); of 15 January 2013, Križan and Others (C‑416/10, EU:C:2013:8, paragraph 87); of 17 November 2016, Stadt Wiener Neustadt (C‑348/15, EU:C:2016:882, paragraph 36); and of 26 July 2017, Comune di Corridonia and Others (C‑196/16 and C‑197/16, EU:C:2017:589, paragraphs 37 to 43). 110 Judgments of 3 July 2008, Commission v Ireland (C-215/06, EU:C:2008:380, paragraph 57); of 15 January 2013, Križan and Others (C-416/10, EU:C:2013:8, paragraph 87); of 17 November 2016, Stadt Wiener Neustadt (C-348/15, EU:C:2016:882, paragraph 36); and of 26 July 2017, Comune di Corridonia and Others (C-196/16 and C-197/16, EU:C:2017:589, paragraph 38). 111 See, with regard to the strategic environmental assessment, judgment of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne (C-41/11, EU:C:2012:103, paragraph 57). See also above, points 186 to 190.