Opinion of the Advocate General — ECLI:EU:C:2011:822
Date: 2011-12-08
Language of the case: French
Subject matter: Environment;Pollution
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary of the Judgment Environment — Assessment of the effects of certain plans and programmes on the environment — Directive 2001/42 — Plan or programme — No prior environmental assessment — Annulment of a plan or programme — Whether possible to maintain the effects of the plan or programme — Conditions (European Parliament and Council Directive 2001/42, Art. 2(a) and 3(2)(a); Council Directives 85/337, Annexes I and II, and 91/676, Art. 5(1), and Annex III) When a national court has before it, on the basis of its national law, an action for annulment of a national measure constituting a ‘plan’ or ‘programme’ within the meaning of Directive 2001/42 on the assessment of the effects of certain plans and programmes on the environment and it finds that the ‘plan’ or ‘programme’ was adopted in breach of the obligation laid down by that directive to carry out a prior environmental assessment, that court is obliged to take all the general or particular measures provided for by its national law in order to remedy the failure to carry out such an assessment, including the possible suspension or annulment of the contested ‘plan’ or ‘programme’. However, having regard to the specific circumstances of the case before it, the referring court may, exceptionally, be authorised to make use of its national provision empowering it to maintain certain effects of an annulled national measure in so far as: – that national measure is a measure which correctly transposes Directive 91/676 concerning the protection of waters against pollution caused by nitrates from agricultural sources; – the adoption and entry into force of the new national measure containing the action programme within the meaning of Article 5 of that directive do not enable the adverse effects on the environment resulting from the annulment of the contested measure to be avoided; – annulment of the contested measure would result in a legal vacuum in relation to the transposition of Directive 91/676 which would be more harmful to the environment, in the sense that the annulment would result in a lower level of protection of waters against pollution caused by nitrates from agricultural sources and would thereby run specifically counter to the fundamental objective of that directive; and – the effects of such a measure are exceptionally maintained only so long as is strictly necessary for the adoption of the measures making it possible to remedy the irregularity found. (see para. 63, operative part)