Judgment;Summary — ECLI:EU:C:2025:321
Date: 2025-05-08
Language of the case: Dutch
Court formation: First Chamber
Subject matter: Environment
Procedure: Reference for a preliminary ruling
Origin: Belgium

Anonymised version 
Translation C-236/24 – 1 
Case C-236/24 
Request for a preliminary ruling 
Date lodged: 
29 March 2024 
Referring court: 
Raad van State (Belgium) 
Date of the decision to refer: 
26 March 2024 
Applicants: 
Provincie Oost-Vlaanderen 
Sogent 
Defendants: 
KG 
WA 
  
RAAD VAN STATE, AFDELING BESTUURSRECHTSPRAAK 
(COUNCIL OF STATE, ADMINISTRATIVE LITIGATION 
DEPARTMENT) 
SEVENTH CHAMBER 
J U D G M E N T 
[…] of 26 March 2024 
in the cases I. […] 
II. […] 
EN 
REQUEST FOR A PRELIMINARY RULING OF 26. 3. 2024 – CASE C-236/24 
 
2  
Anonymised version 
In the case: I. 
PROVINCIE OOST-VLAANDEREN (PROVINCE OF EAST 
FLANDERS, BELGIUM) […] 
II. 
SOGENT 
[…] 
v 
I. + II. 
1. KG 
2. WA 
[…] 
I. Subject matter of the action 
1 The appeals in cassation, brought on 14 and 15 November 2022, seek to have the  
judgment […] of the Raad voor Vergunningsbetwistingen (Council for Consent 
Disputes) of 6 October 2022 in Case […] set aside. 
II. Conduct of the court proceedings 
2 The appeals in cassation were declared admissible […]. 
[…] [information concerning the procedure] 
The […] hearing […] took place on 22 February 2024. 
[…] [information concerning the procedure] 
III. Joinder 
3 The two appeals in cassation are directed against the same judgment of the 
Council for Permit Disputes. It is appropriate to join the two cases. 
IV. Facts 
4 1. The applicant in the case under II is an autonomous municipal corporation 
established by the city of Ghent within the meaning of Article 231 of the Decree 
of 22 December 2017 ‘on local government’. It submitted an application to the 
municipal council of the city of Ghent for an environmental permit for the 
PROVINCIE OOST-VLAANDEREN AND SOGENT 
 
3 
Anonymised version 
reconversion of a laundry site, attaching a project EIA screening note to the 
application. 
2. The municipal environment officer declared the application admissible and 
complete on 1 September 2020. He ruled that no significant environmental 
impacts are expected, as also shown in the project EIA screening note, and that 
there was no need to prepare a project EIA. The municipal council granted the 
permit on 10 December 2020. 
3. The defendants filed an administrative appeal against the environmental 
permit. On 3 June 2021, the applicant in the case under I declared the appeal 
unfounded, and granted the permit. 
4. By the contested judgment, the action for annulment brought by the 
defendants against the decision of 3 June 2021 was upheld, that decision annulled, 
and the environmental permit refused. 
V. Examination of the first part of the single plea in both appeals in cassation 
Explanation of the plea 
5 The applicants have developed an identical appeal in cassation in which they 
allege that Articles 4 and 9a of Directive 2011/92/EU of 13 December 2011 of the 
European Parliament and of the Council on the assessment of the effects of certain 
public and private projects on the environment (‘the Project EIA Directive’) and 
Articles 15/1 and 9 and 20 of the Decree of 25 April 2014 ‘on the environmental 
permit’ have been infringed. 
The plea is directed against the assessment of the contested judgment that the 
application for the environmental permit could not be submitted to the municipal 
council, because the deputation [of the Provincial Council] is competent in that 
regard in the first administrative instance under Article 15/1(1) of the Decree of 
25 April 2014 ‘on the environmental permit’. This assessment rests on the 
following grounds of the contested judgment: 
“the applicants make it sufficiently plausible that the condition in 
Article 15/1(1) [of the Decree of 25 April 2014 ‘on the environmental 
permit’ (‘the OVD’)] that an EIA must be prepared for the project and no 
exemption from the reporting obligation has been obtained based on an 
interpretation of this in line with Article 9a of the Project EIA Directive 
must be understood to apply even if the project requires the preparation of a 
project EIA screening note in the first instance and it therefore is not 
apparent that a project EIA does not need to be prepared for it. The 
contested decision also erroneously contains no statement of reasons in that 
regard, despite the arguments on that point in the applicants’ administrative 
appeal. 
REQUEST FOR A PRELIMINARY RULING OF 26. 3. 2024 – CASE C-236/24 
 
4  
Anonymised version 
The Project EIA Directive aims to make projects that are likely to have 
significant impacts on the environment by virtue of their nature, size or 
location subject to an assessment of their effects before a permit is granted 
for them (Article 2 of the Project EIA Directive and, inter alia, 
ECJ 19 September 2000, C-287/98, Linster; ECJ 4 May 2006, C-290/03, 
Barker; ECJ 24 March 2011, C-435/09, Commission v Belgium). This is 
justified in a (second) recital to that directive from the observation that ‘[the 
European Union’s] policy on the environment is based on the precautionary 
principle and on the principles that preventive action should be taken, that 
environmental damage should, as a priority, be rectified at source and that 
the polluter should pay (Article 191 TFEU)’, so that ‘effects on the 
environment should be taken into account at the earliest possible stage in all 
the technical planning and decision-making processes’. The projects in 
question are defined in Article 4 of the Project EIA Directive, which 
provides for projects to be subject to an assessment in all cases in 
accordance with Articles 5 to 10 of the directive (projects in Annex I to the 
directive) and projects for which Member States determine, either through a 
case-by-case examination or on the basis of thresholds or criteria set by 
them, or on the basis of the application of both procedures, whether or not 
the project should be subject to such an assessment (projects in Annex II to 
the directive). The Project EIA Directive therefore provides not only for the 
task of preparing and assessing a project EIA in accordance with Articles 5 
to 10 of that directive when it has been established that an environmental 
impact assessment is required, but also for the task of examining, on a case-
by-case basis and/or by reference to established thresholds or criteria, 
whether a project is likely to have significant impacts on the environment 
and whether an environmental impact assessment is required in this regard 
(Article 4(2) to (6) of the Project EIA Directive). 
Article 9a of the Project EIA Directive thereby provides for a general ‘no 
conflict of interest’ principle in terms of the usefulness of the Project EIA 
Directive, whereby Member States must ensure that the competent authority 
or authorities carry out their ‘duties arising from this Directive’ in an 
objective manner and do not find themselves in a situation that gives rise to 
a conflict of interest, and, in any case, where the competent authority is also 
the developer, they must ensure an appropriate separation of conflicting 
functions ‘when carrying out the duties arising from this Directive’ within 
their organisation of administrative competences. The reading of that article 
shows that the aim is to ensure the objectivity of the competent authority or 
authorities and avoid conflicts of interest in ‘all duties’ arising from the 
Project EIA Directive, and thus in principle also in the duties under the 
screening obligation that involve assessing whether a project is likely to 
have significant environmental impacts and whether this requires an 
environmental impact assessment. The general thrust of Article 9a of the 
Project EIA Directive is confirmed in a (twenty-fifth) recital to Directive 
2014/52/EU, which inserts this article into the Project EIA Directive, and 
which states that ‘the objectivity of the competent authorities should be 
PROVINCIE OOST-VLAANDEREN AND SOGENT 
 
5 
Anonymised version 
ensured’ and ‘conflicts of interest could be prevented by, inter alia, a 
functional separation of the competent authority from the developer’, 
whereby ‘Member States should at least implement, within their 
organisation of administrative competences, an appropriate separation 
between conflicting functions of those authorities performing the duties 
arising from Directive 2011/92/EU in cases where the competent authority is 
also the developer.’ Reference is again made to the ‘duties’ arising from the 
Project EIA Directive, with no distinction between projects that must be 
subject to an environmental impact assessment in all cases and projects for 
which Member States determine whether an environmental impact 
assessment is required on the basis of a case-by-case examination and/or on 
the basis of defined thresholds or criteria. The finding that Article 9a of the 
Project EIA Directive is inserted between Articles 5 to 10 of the Project EIA 
Directive, which deal with the environmental impact assessment, does not 
affect the general thrust thereof. In that context, reference may also be made 
to the (forty-first) recital to Directive 2014/52/EU that ‘the objective of this 
Directive’ is to ‘ensure a high level of protection of the environment and of 
human health, through the establishment of minimum requirements for the 
environmental impact assessment of projects’. 
The Project EIA Directive was transposed for Flanders by (Title IV of) the 
Decree of 5 April 1995 containing general provisions on environmental 
policy (‘the DABM’). It provides (in Chapter III) that ‘proposed projects, 
before authorisation can be granted for the licensable activity that is the 
subject of the project, shall be subject to an environmental impact 
assessment in the cases provided for in this chapter’ (Article 4.3.1 DABM), 
defining the concept of ‘environmental impact assessment’ as ‘the procedure 
that may or may not lead to the preparation and approval of an 
environmental impact assessment on a proposed action and, where 
appropriate, to its use as an aid to decision-making on that action’ 
(Article 4.1.1, § 1, 1° DABM). In that context, the Government of Flanders, 
using the criteria in Annex II to the DABM, designates different categories 
of projects, namely ‘the categories of projects for which a project EIA must 
be prepared in accordance with this chapter’, ‘the categories of projects 
other than those listed in paragraph 1 for which a project EIA or a reasoned 
request for exemption from the reporting obligation must be prepared in 
accordance with this chapter’, and ‘the categories of projects other than 
those listed in paragraphs 1 and 2 for which a project EIA or a project EIA 
screening note must be prepared in accordance with this chapter’ 
(Article 4.3.2, §§ 1, 2 and 2a DABM). It is stipulated therein that ‘the 
authority deciding on the admissibility and completeness of the permit 
application in the cases mentioned in Article 4.3.2, § 2a, for which a project 
EIA screening note has been prepared, shall decide whether a project EIA 
needs to be prepared at the time of and as part of the decision on the 
admissibility and completeness of the permit application’, while ‘the 
initiator may submit a reasoned request for exemption from the reporting 
REQUEST FOR A PRELIMINARY RULING OF 26. 3. 2024 – CASE C-236/24 
 
6  
Anonymised version 
requirement to the administration in the cases mentioned in Article 4.3.2, § 
2’ (Article 4.3.3, §§ 2 and 3 DABM). 
A project EIA screening note is a (reasoned) document that indicates 
whether a proposed project is likely to have significant impacts on people 
and the environment (Article 1, 5° of the Project EIA Decree). The 
document should allow the authority to make an informed assessment, using 
the criteria set out in Annex II DABM, of the extent to which the application 
generates significant impacts on people and the environment, and whether or 
not a project EIA should be prepared in relation to it. When making a 
screening decision, the competent authority must specifically assess the 
application against the criteria of Annex II DABM, and its decision must 
adequately demonstrate why it considers that (no) significant environmental 
impacts are to be expected and the preparation of a project EIA is (not) 
required (Article 66(2) of the Order of the Government of Flanders of 
27 November 2015 implementing the OVD). This shows that the screening 
of projects for their potentially significant environmental impacts forms the 
basis for deciding whether or not a project EIA should be prepared for them 
and is therefore part of ‘the procedure that may or may not lead to the 
preparation and approval of an environmental impact assessment on a 
proposed action’. Therefore, if the screening process as a task or part of the 
‘environmental impact assessment’ were to be affected by a conflict of 
interest, due to the fact that the competent authority is also the developer, 
this could have an impact on the final assessment of whether or not an 
environmental impact assessment should be carried out. In view of these 
considerations, the application of the ‘no conflict of interest’ provision in 
Article 9a of the Project EIA Directive should not be limited to those 
projects that are ‘directly’ subject to an environmental impact assessment 
under Article 4 of that directive, barring an exemption (Article 4.3.2, §§ 1 
and 2 DABM), but also cover projects subject to screening (Article 4.3.2, § 
2a DABM). For such projects subject to screening, there is no apparent 
certainty at the time the application for them is submitted that a project EIA 
will not need to be prepared because the project EIA screening note is yet to 
be specifically examined and assessed. Again, this task, which derives 
equally from the Project EIA Directive, must be able to be performed by a 
body that ‘can perform it objectively and therefore is not in a situation that 
gives rise to a conflict of interest. Thus, when reading Article 15/1(1) OVD 
in accordance with Article 9a of the Project EIA Directive, projects subject 
to screening also fall within its scope and should in principle be submitted to 
and examined by the deputation in the first administrative instance if the 
municipal council is the initiator and applicant for the project. The fact that 
this is contradicted in the explanatory memorandum to Article 15/1 OVD 
does not prevent this because the recitals in the preparatory works to a 
decree implementing a directive do not take precedence over its provisions, 
which must be respected by the Member States. 
PROVINCIE OOST-VLAANDEREN AND SOGENT 
 
7 
Anonymised version 
The finding that, in projects subject to screening, the municipal environment 
officer has the task of examining the project EIA screening note 
accompanying the application and, on that basis, deciding whether an EIA 
should be drawn up on the project ‘if the application is submitted by the 
competent authority itself’ (Article 20(2) OVD) does not suggest otherwise 
in the light of the 'no conflict of interest' provision in Article 9a of the 
Project EIA Directive. There is therefore no adequate ‘appropriate 
separation’ of conflicting functions” in the organisation of the authorisation 
procedure at first administrative instance when performing the duties arising 
from the Project EIA Directive, with the result that it is not ensured that the 
competent authorities can perform their duties arising from this Directive in 
an objective manner and do not find themselves in a situation giving rise to a 
conflict of interest, as envisaged by Article 9a of the Project EIA Directive. 
As is clear from the case-law of the Court of Justice (judgment in Case 
C-474/10), in terms of ‘appropriate separation’, there must be ‘genuine 
autonomy’, which is understood to mean that the body designated to carry 
out the tasks arising from the Project EIA Directive ‘has its own 
administrative resources and personnel and is thus able to carry out the tasks 
entrusted (to it)’, and, in particular, can ‘objectively’ express its opinion on 
the project applied for ‘by the body to which it belongs’. Although the 
municipal environment officer performs his duties under the OVD 
‘independently and neutrally’ and in doing so ‘may not be prejudiced in the 
performance of these duties’ (Article 9, § 2 OVD), it does not appear that 
this officer has sufficient ‘genuine autonomy’ and has his own 
administrative resources or personnel to assess a project EIA screening note 
from the municipality and decide on the basis of that note whether or not a 
project EIA should be prepared. After all, the municipal environment officer 
is appointed by the municipality by municipal council decision from among 
its own staff or from staff of an intermunicipal partnership (Article 9, § 2 
OVD), while his duties may even be performed temporarily for a maximum 
of 12 months by the municipal secretary if no municipal environment officer 
is available within the municipality or the intermunicipal partnership 
(Article 9, § 3 OVD). In that respect, this official cannot reasonably judge 
‘objectively’ whether or not the project being applied for by the municipality 
is subject to an EIA, all the more so since, according to the ‘professional 
ethical rights and duties’ as a member of staff, this official must perform his 
duties ‘loyally and correctly’ and, in doing so, must ‘actively and 
constructively’ commit himself to the accomplishment of the municipality’s 
mission and objectives (Article 188 of the Decree of 22 December 2017 on 
local government). Irrespective of this finding, moreover, in its permit 
decision in the first administrative instance of 10 December 2020, the 
municipal council of Ghent did (once again) make its own judgement on the 
necessity of preparing a project EIA by aligning itself with the opinion on 
this matter issued by the municipal environment officer on 4 December 2020 
with regard to the ‘project EIA screening’ aspect. 
[…] 
REQUEST FOR A PRELIMINARY RULING OF 26. 3. 2024 – CASE C-236/24 
 
8  
Anonymised version 
Having regard to the explanation above, the applicants make a sufficiently 
plausible case that the deputation was competent in the first administrative 
instance of the present application on the basis of Article 15/1(1) OVD 
because the application is aimed at a municipal project in which the 
municipal council of Ghent is the initiator and (de facto co-)applicant, and it 
does not appear that the project manifestly does not require the preparation 
of a project EIA.” 
6 In the first part of the plea, the applicants argue that Article 15/1 of the Decree of 
25 April 2014 on the environmental permit stipulates that the municipal council 
cannot adjudicate on its own application if ‘an environmental impact assessment 
[must] be prepared for the project and no exemption from the reporting 
requirement [has] been obtained’. According to the applicants, this provision 
unambiguously shows that the deputation can only be competent if the project 
requires the preparation of an environmental impact assessment, and consequently 
the deputation cannot be competent if the project is only subject to screening. The 
applicants argue that this was also confirmed during the parliamentary preparation 
of the provision. 
By holding that projects subject to screening fall within the scope of Article 9a of 
the Project EIA Directive and inferring from this that Article 15/1 of the Decree of 
25 April 2014 on the environmental permit should be read in that sense, the 
judgment under appeal, according to the applicants, gives that provision an 
interpretation that is contra legem. 
The contested judgment is thus said to infringe Article 15/1 of the Decree of 
25 April 2014 on the environmental permit. 
7 The applicants request that at least a question should be referred to the Court of 
Justice for a preliminary ruling regarding the interpretation and scope of Article 9a 
of the Project EIA Directive. 
Assessment 
8 Article 15/1, first paragraph of the Decree of 25 April 2014 on the environmental 
permit states: 
‘However, for the perusal of and decision on a permit application for a 
project or for the change of a project, for which, according to Article 15, the 
municipal council is competent, the deputation is competent if the following 
two conditions are met: 
1° the project requires an environmental impact assessment and no waiver of 
the reporting requirement has been obtained; 
2° the municipal council is the initiator and applicant for the project.’ 
PROVINCIE OOST-VLAANDEREN AND SOGENT 
 
9 
Anonymised version 
This provision was adopted in order to transpose the ‘no conflict of interest’ rule 
of Article 9a of the Project EIA Directive. That article provides as follows: 
‘Member States shall ensure that the competent authority or authorities 
perform the duties arising from this Directive in an objective manner and do 
not find themselves in a situation giving rise to a conflict of interest. Where 
the competent authority is also the developer, Member States shall at least 
implement, within their organisation of administrative competences, an 
appropriate separation between conflicting functions when performing the 
duties arising from this Directive.’ 
9 It follows from the aforementioned Article 15/1, first paragraph that the 
deputation in the place of the municipal council only takes cognisance of an 
application for a permit submitted by the municipal council when it is already 
established at the time the application is submitted that the project is subject to the 
obligation to prepare an environmental impact assessment. 
Where, under the regulations, the project is only subject to the obligation to 
prepare a project EIA screening note, the obligation to prepare an environmental 
impact assessment is not established at the time the application is submitted. It is 
the authority that decides on the admissibility and completeness of the permit 
application that can decide to subject the project to the obligation to prepare an 
environmental impact assessment (Article 4.3.3, § 2 of the Decree of 5 April 1995 
containing general provisions on environmental policy). 
A permit application from a municipal council for a project that requires only a 
project EIA screening note must therefore be submitted to the same council, after 
which the municipal environment officer decides whether the project requires an 
environmental impact assessment (Article 20 of the Decree of 5 April 1995 
containing general provisions on environmental policy). The decision of the 
municipal environment officer that an environmental impact assessment must be 
prepared automatically results in the incompleteness of the application and the 
halting of the permit procedure (Article 21, second paragraph of the Decree of 
5 April 1995 containing general provisions on environmental policy). If the 
municipal environment officer judges that no environmental impact assessment 
needs to be prepared, the municipal council decides on the permit application in 
the first administrative instance. 
The parliamentary preparation of Article 15/1 of the Decree of 25 April 2014 on 
the environmental permit confirms the will of the decree-maker ‘[not] to impose 
the conflict of interest provision mentioned in Article 9a [of the Project EIA 
Directive] on the authorisation procedure of projects subject to EIA screening’. 
[…] 
The contested judgment, in which it was held that the application for authorisation 
of a project for which a municipal council is the initiator, and for which only a 
project EIA screening note needs to be prepared, must be submitted not to the 
REQUEST FOR A PRELIMINARY RULING OF 26. 3. 2024 – CASE C-236/24 
 
10  
Anonymised version 
same council, but to the deputation, thus infringes Article 15/1(1) of the Decree of 
25 April 2014 on the environmental permit. 
10 The possible circumstance that Article 9a of the Project EIA Directive might 
preclude the municipal environment officer from deciding whether an 
environmental impact assessment should be prepared for municipal projects 
requiring only a project EIA screening note does not affect this. Indeed, in this 
hypothesis, the aforementioned Article 9a has been insufficiently transposed in the 
Flemish Region, in the absence of regulations that provide for an appropriate 
separation between the conflicting functions within the meaning of Article 9a. 
The aforementioned Article 15/1 cannot be interpreted contrary to its clear text 
and intent, even under the guise of an interpretation in conformity with the 
directive. Accordingly, that provision cannot be read as extending the appropriate 
separation between the conflicting situations provided for in cases where an 
environmental impact assessment has to be prepared, to cases where only a project 
EIA screening note has to be prepared. 
In view of the direct effect of the aforementioned Article 9a, in the event of its 
incomplete transposition in the Flemish Region, that provision can serve in place 
of the invalid grounds as a legal basis for the contested judgment, so that, in that 
scenario, the applicants would not succeed on that part of the plea. 
11 Whether Article 9a of the Project EIA Directive was adequately transposed 
depends on the scope of that provision. More specifically, the question arises as to 
whether the ‘appropriate separation’ referred to in that provision should also be 
provided for assessing whether projects subject to screening – which are targeted 
by Article 4(2) of the Project EIA Directive – are subject to the obligation to 
prepare an environmental impact assessment. 
It is appropriate to refer this question to the Court of Justice of the European 
Union for a preliminary ruling. 
DECISION 
1. The cases […] are joined. 
2. The following question is referred to the Court of Justice of the 
European Union for a preliminary ruling: 
‘Is Article 9a of 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, inserted by 
Directive 2014/52/EU of 16 April 2014, to be interpreted as meaning 
that, in cases where the competent authority is also the developer, the 
appropriate separation between conflicting functions when performing 
the duties arising from that directive must also be applied to the 
assessment of whether the projects referred to in Article 4(2) of the 
PROVINCIE OOST-VLAANDEREN AND SOGENT 
 
11 
Anonymised version 
directive are subject to assessment in accordance with Articles 5 to 10 of 
the directive?’ 
3. […] [closing wording and signature]