Opinion of the Advocate General — ECLI:EU:C:2020:143
Date: 2020-03-03
Language of the case: Dutch
Subject matter: Environment;Provisions governing the Institutions;Acts of the institutions
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary  C-24/19 — 1 
Case C-24/19 
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:  
15 January 2019 
Referring court:  
Raad voor Vergunningsbetwistingen (Belgium) 
Date of the decision to refer:  
4 December 2018 
Applicants:  
A 
B 
C 
D 
E 
Defendant:  
De gewestelijke stedenbouwkundige ambtenaar van het departement 
Ruimte Vlaanderen, afdeling Oost-Vlaanderen 
  
Subject of the action in the main proceedings 
The applicants (A, B, C, D, E) are seeking the annulment of the decision of 
30 November 2016 of the gewestelijke stedenbouwkundige ambtenaar (regional 
town planning official) of the departement Ruimte Vlaanderen (afdeling Oost-
Vlaanderen) (Flanders Department of Spatial Planning; East Flanders Division; 
‘the defendant’) to grant the NV Electrabel (‘the applicant’) development consent, 
subject to certain conditions, for the construction of five wind turbines on parcels 
of land located along the E40 motorway on the territory of Aalter and Nevele.  
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING –CASE C-24/19 
 
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Subject and legal basis of the request for a preliminary ruling 
Request pursuant to Article 267 TFEU. 
In essence, the referring court wishes to establish whether the provisions of an 
Order of the Flemish Government (Section 5.20.6 VLAREM II) and an 
Omzendbrief (Omzendbrief) of the same government can be regarded as a ‘plan or 
programme’ within the meaning of Directive 2001/42/EC (‘SEA Directive’), and 
if that is the case, and the two instruments appear not to comply with the 
aforementioned Directive, what the consequences are which the referring court, as 
the administrative court, can or should attach thereto.  
Questions referred 
Do Article 2(a) and Article 3(2)(a) of Directive 2001/42/EEC mean that Article 99 
of the besluit van de Vlaamse regering van 23 december 2011 tot wijziging van 
het besluit van de Vlaamse regering van 6 februari 1991 houdende de vaststelling 
van het Vlaams reglement betreffende de milieuvergunning en van het besluit van 
de Vlaamse regering van 1 juni 1995 houdende algemene en sectorale bepalingen 
inzake milieuhygiëne (Order of the Flemish Government of 23 December 2011 
amending the Order of the Flemish Government of 6 February 1991 on the 
adoption of Flemish regulations concerning environmental consent and of the 
Order of the Flemish Government of 1 June 1995 on general and sectoral 
provisions relating to environmental health), as regards the updating of the 
aforementioned Orders in keeping with the evolution of technology, which 
introduces into VLAREM II Section 5.20.6 on installations for the generation of 
electricity by means of wind energy, and the Omzendbrief ‘Afwegingskader en 
randvoorwaarden voor de inplanting van windturbines’ (Circular ‘Assessment 
framework and preconditions for the installation of wind turbines) of 2006 
[together referred to as ‘the instruments in question’], which both contain various 
provisions regarding the installation of wind turbines, including measures on 
safety, and standards relating to shadow flicker and noise levels, having regard to 
town and country planning zones, must be classified as a ‘plan or programme’ 
within the meaning of the provisions of the Directive? If it appears that an 
environmental assessment should have been carried out before the adoption of the 
instruments in question, can the Raad (Council) modulate the legal effects of the 
illegal nature of these instruments in time? To that end, a number of sub-questions 
must be asked:  
1. Can a policy instrument such as the present Circular, which the public 
authority concerned is competent to draw up on the basis of its discretionary and 
policy-making powers, so that the competent authority was not actually 
designated to draw up the ‘plan or programme’, and in respect of which there is 
also no provision for a formal drafting procedure, be regarded as a plan or 
programme within the meaning of Article 2(a) of the SEA Directive?  
A AND OTHERS 
 
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2. Is it sufficient that a policy instrument or general rule, such as the 
instruments in question, partially curtails the margin of appreciation of a public 
authority responsible for granting development consent, in order to be considered 
a ‘plan or programme’ within the meaning of Article 2(a) of the SEA Directive, 
even if they do not represent a requirement, or a necessary condition for the 
granting of consent or are not intended to constitute a framework for future 
development consent, notwithstanding the fact that the European legislature has 
indicated that that purpose is an element of the definition of ‘plans and 
programmes’?  
3. Can a policy instrument such as the Circular in question, the format of which 
is drawn up on grounds of legal certainty and thus constitutes a completely 
voluntary decision, be regarded as a ‘plan or programme’ within the meaning of 
Article 2(a) of the SEA Directive, and does such an interpretation not run counter 
to the case-law of the Court of Justice that a purposive interpretation of a directive 
may not deviate fundamentally from the clearly expressed will of the Union 
legislature?  
4. Can Section 5.20.6 VLAREM II, where there was no mandatory 
requirement to draw up the rules contained therein, be defined as a ‘plan or 
programme’ within the meaning of Article 2(a) of the SEA Directive and does 
such an interpretation not run counter to the case-law of the Court of Justice that a 
purposive interpretation of a directive may not deviate fundamentally from the 
clearly expressed will of the Union legislature?  
5. Can a policy instrument and a normative government Order, such as the 
instruments in question, which have a limited indicative value, or at least do not 
constitute a framework from which any right to execute a project may be derived 
and from which no right to any framework, as a measure by which projects may 
be approved, may be derived, be regarded as a ‘plan or programme’ [...] that 
constitute the ‘framework for future development consent’ within the meaning of 
Article 2(a) and 3(2) of the SEA Directive, and does such an interpretation not run 
counter to the case-law of the Court of Justice that a purposive interpretation of a 
directive may not deviate fundamentally from the clearly expressed will of the 
Union legislature? 
6. Can a policy instrument such as Circular: EME/2006/01- RO /2006/02 
which has a purely indicative value and/or a normative government Order such as 
Section 5.20.6 VLAREM II that only sets a minimum threshold for development 
consent and in addition operates fully autonomously as a general rule, both of 
which only contain a limited number of criteria and modalities, and neither of 
which is the only determinant for even a single criterion or modality, and in 
relation to which it could be argued that, on the basis of objective information, it 
can be excluded that they are likely to have significant effects on the environment, 
be regarded as a ‘plan or programme’ on a joint reading of Article 2(a) and 
Article 3(1) and (2) of the SEA Directive, and can they thus be considered as acts 
which, by the adoption of rules and control procedures applicable to the sector 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING –CASE C-24/19 
 
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concerned, establish a whole package of criteria and modalities for the approval 
and execution of one or more projects that are likely to have significant effects on 
the environment?  
7. If the answer to the previous question is in the negative, can a court or 
tribunal determine this itself, after the Order or the pseudo-legislation (such as the 
VLAREM standards and the Circular in question) have been adopted?  
8. Can a court or tribunal, if it has only indirect jurisdiction through an 
exception being raised, the result of which applies inter partes, and if the answer 
to the questions referred for a preliminary ruling shows that the instruments in 
question are illegal, order that the effects of the unlawful Order and/or the 
unlawful Circular be maintained if the unlawful instruments contribute to an 
objective of environmental protection, as also pursued by a Directive within the 
meaning of Article 288 TFEU and if the requirements laid down in European 
Union law for such maintenance (as laid down the judgment in Association 
France Nature Environnement, [Case C-379/15]) have been met?  
9. If the answer to question 8 is in the negative, can a court or tribunal order 
that the effects of the contested project be maintained in order to comply 
indirectly with the requirements imposed by EU law (as laid down in the 
judgment in Association France Nature Environnement) for the continued 
maintenance of the legal effects of plans or programmes that do not conform to 
the SEA Directive? 
Provisions of European Union law cited 
Article 2(a) and Article 3(2)(a) of Directive 2001/42/EC of the European 
Parliament and of the Council of 27 June 2001on the assessment of the effects of 
certain plans and programmes on the environment (SEA Directive, OJ 2011 
L 197, p. 30) 
Directive 2009/28/EC of the European Parliament and of the Council of 23 April 
2009 on the promotion of the use of energy from renewable sources and amending 
and subsequently repealing Directives 2001/77/EC and 2003/30/EC (OJ 2009 
L 140, p. 16) 
Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of 
certain public and private projects on the environment (EIA Directive, OJ 1985 
L 175, p. 40) 
Article 3(3) TEU 
Articles 191(2) and 288 TFEU  
Article 37 of the Charter of Fundamental Rights of the European Union  
A AND OTHERS 
 
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Provisions of national law cited 
Flemish decreet van 5 april 1995 houdende algemene bepalingen inzake 
milieubeleid (Decree of 5 April 1995 laying down general provisions on 
environmental policy; ‘DABM’) 
Flemish decreet betreffende de milieuvergunning van 28 juni 1985 (Decree of 
28 June 1985 concerning environmental consent; ‘Milieuvergunningsdecreet’) 
Section 5.20.6 of the besluit van de Vlaamse regering van 1 juni 1995 houdende 
algemene en sectorale bepalingen inzake milieuhygiëne (Order of the Flemish 
Government of 1 June 1995 on the general and sectoral provisions with regard to 
environmental health; ‘VLAREM II’) 
Article 99 of the besluit van 23 december 2011 tot wijziging van het besluit van 
de Vlaamse Regering van 6 februari 1991 houdende de vaststelling van het 
Vlaams reglement betreffende de milieuvergunning en van het besluit van de 
Vlaamse regering van 1 juni 1995 houdende algemene en sectorale bepalingen 
(Order of 23 December 2011 amending the Order of the Flemish Government of 
6 February 1991 on the adoption of Flemish regulations concerning environmental 
consents and of the Order of the Flemish Government of 1 June 1995 on general 
and sectoral provisions)  
Omzendbrief R0/2014/02 van 25 april 2014 betreffende het afwegingskader en 
randvoorwaarden voor de oprichting van windturbines (Omzendbrief R0/2014/02 
of 25 April 2014 concerning the assessment framework and preconditions for the 
installation of wind turbines; ‘Omzendbrief’)  
Article 4.3.3 of the Vlaamse Codex Ruimtelijke Ordening (Flemish Codex Spatial 
Planning; ‘VCRO’)  
Article 36 of the decreet van 4 april 2014 betreffende de organisatie en de 
rechtspleging van sommige Vlaamse bestuursrechtscolleges (Decree of 4 April 
2014 concerning the organisation and the administration of justice of some 
Flemish administrative courts; ‘DBRC-decreet’) 
Article 159 van de Grondwet (Constitution; ‘Gw’) 
Principles of sound management  
Brief summary of the facts and the procedure in the main proceedings 
1 The Raad voor Vergunningsbetwistingen (Council for Consent Disputes; ‘the 
referring court’) is an independent Flemish administrative court that decides on 
appeals against registration decisions and decisions to grant or refuse a town 
planning consent or subdivision consent, as well as disputes regarding 
environmental consents and expropriations.  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING –CASE C-24/19 
 
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2 The applicants seek the annulment of the planning consent granted to the applicant 
on 30 November 2016 (‘the contested decision’) for the installation of a number 
of wind turbines on the territory of the municipalities of Aalter and Nevele along 
the E40 motorway. Based on the applicable regional plans, the parcels of land on 
which the wind turbines would be installed are located partly on agricultural land 
and partly on agricultural land of scenic value.  
3 On 25 March 2011, the applicant submitted an application to the defendant for 
town planning consent for the installation of eight wind turbines. In the course of 
the procedure, the application for one of the turbines was withdrawn. Eventually, 
consent was granted for five wind turbines.  
4 The contested decision was taken after examination of the objections and 
comments received. The objections related, among other things, to the impact on 
the visual perception of the area, noise pollution, spatial planning, shadow flicker 
and safety.  
5 The contested decision declares the objections of interested parties admissible but 
unfounded (except in relation to one turbine) and deals extensively with the water 
test, the environmental impact report, the assessment of sound spatial planning, as 
well as on the advisory trajectories followed. The reasons provided refer to 
relevant Flemish legislation, including VLAREM II and the Omzendbrief, which 
give rise to the questions referred for a preliminary ruling by the referring court. 
The consent is subject to certain conditions.  
Main submissions of the parties to the main proceedings  
6 In the interim judgment, the referring court deals only with the third plea of the 
applicants.  
7 In the third plea in law, the applicants rely substantively on an infringement of 
Article 2(a) and Article 3(2)(a) of the SEA Directive; Article 4.1.1, §1, 4 ° 
DABM); Article 20 of the Flemish Milieuvergunningsdecreet; Section 5.20.6 of 
VLAREM II; Article 99 of the besluit van 23 december 2011 tot wijziging van het 
besluit van de Vlaamse Regering van 6 februari 1991 houdende de vaststelling 
van het Vlaams reglement betreffende de milieuvergunning en van het besluit van 
de Vlaamse regering van 1 juni 1995 houdende algemene en sectorale bepalingen; 
the Omzendbrief, Article 4.3.3 VCRO, Article 159 Gw, and the principles of 
sound management. 
8 More specifically, they argue that those provisions were infringed because the 
contested decision was made in accordance with the sectoral conditions laid down 
in Section 5.20.6 VLAREM II and the Omzendbrief, and compliance with the 
VLAREM standards was itself imposed as a condition for the consent, whereas 
Section 5.20.6 was introduced without an (obligatory) environmental assessment 
being carried out even though that Section relates to a ‘programme’ within the 
A AND OTHERS 
 
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meaning of the SEA Directive. The Omzendbrief on which the defendant relies in 
the contested decision is, according to the applicants, also such a ‘programme’.  
9 According to the applicants, Section 5.20.6 VLAREM II and the Omzendbrief are 
unlawful because of the cited incompatibility with the SEA Directive, which 
means that they must be disapplied under Article 159 Gw. That unlawfulness is 
carried through to the contested decision. At the very least, the applicants request 
that a question in that regard be referred to the Court of Justice for a preliminary 
ruling.  
10 According to the defendant, the declaration of unlawfulness in respect of Section 
5.20.6 VLAREM II does not result in the unlawfulness of the contested decision, 
since that Section is not the legal basis of the contested decision but merely 
contains the sectoral conditions under which operation may take place.  
11 Furthermore, it argues that the applicants have no interest in the plea: declaring 
Section 5.20.6 of VLAREM II inapplicable would result in there no longer being 
any sectoral environmental conditions in respect of wind turbines and in that way 
a more environmentally damaging legal vacuum would arise, which is not in the 
interests of the applicants and would run counter to the objectives of the SEA 
Directive.  
12 In addition, it submits, moreover, that the sectoral environmental conditions 
cannot be regarded as a ‘plan or programme’ within the meaning of the Directive, 
but constitute a stand-alone normative scheme defining the sectoral conditions to 
be complied with by the operator, but which does not form a coherent system for 
wind turbine projects.  
13 The drafting of the sectoral environmental conditions is not ‘required’ by laws, 
regulations or administrative provisions. The fact that the sectoral environmental 
conditions have a legislative basis does not detract from this. According to the 
defendant, the sectoral environmental conditions of section 5.20.6 VLAREM II 
contain a less complete framework than the Walloon legislation that was the 
subject of the judgment in Case C-290/15 cited by the applicants (judgment of 
26 October 2015, D’Oultrement), in which the Court of Justice ruled that the 
Walloon legislation in question was covered by the term ‘plans and programmes’.  
14 Furthermore, the defendant submits that the objective of the SEA Directive is 
achieved because the obligation laid down therein to carry out an environmental 
assessment for plans and programmes is intended to ensure that, even before the 
adoption of plans and programmes which may have significant effects on the 
environment, the impact of their implementation on the environment is taken into 
account. In the present case, the sectoral environmental conditions would not 
cause ‘significant’ environmental effects and, on the contrary, those conditions 
would ensure a high level of environmental protection. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING –CASE C-24/19 
 
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15 Finally, the defendant submits that the Omzendbrief is not a ‘plan or programme’ 
either, since it is not of a regulatory nature and may be departed from, so that it 
does not constitute a framework for the granting of consent.  
16 In the view of the defendant, the referral of a question for a preliminary ruling is 
not necessary for the resolution of the dispute.  
17 The applicants reply that they do indeed have an interest in pursuing their claim 
because compliance with section 5.20.6 VLAREM II was laid down as a condition 
for the consent and that condition is inextricably linked to the consent, as a result 
of which its unlawfulness also automatically affects the lawfulness of the consent. 
The unlawfulness of the sectoral conditions would presumably also imply that 
they do not receive the protection to which they are entitled: if an environmental 
assessment had in fact been carried out for both instruments (within the meaning 
of the SEA Directive), it is possible that (even) stricter standards might have been 
laid down.  
18 As regards the analogy with the Walloon sectoral conditions, which the Court of 
Justice has already examined in an earlier preliminary ruling, they argue that the 
comparison with Section 5.20.6 VLAREM II necessarily leads to the conclusion 
that at issue here is a similar, virtually parallel, sectoral framework for the 
granting of consents for wind turbines. The judgment of the Court of Justice in 
case C-290/15, D’Oultrement, must therefore be applied, as a result of which 
Section 5.2.6 of VLAREM II is unlawful.  
19 As regards the Omzendbrief: according to the applicants, it does in fact entail an 
obligation to carry out an environmental assessment within the meaning of the 
SEA Directive (EIA) because it contains various provisions that must be observed 
when granting consent. That is why it is a ‘plan or programme’ within the 
meaning of Directive 2001/42.  
Brief summary of the reasons for the referral 
20 The referring court considers it to be common ground that the contested decision 
of the public authority responsible for granting development consent, the 
defendant, relies in part on the compliance of the consent with Section 5.20.6 
VLAREM II and the Omzendbrief. 
21 In order to assess the substance of the case, the referring court must verify the 
lawfulness of the instruments in question. It is not disputed that Section 5.20.6 
VLAREM II and the OMzendbrief have not undergone any environmental 
assessment within the meaning of the SEA Directive. The referring court is of the 
view that those instruments are not lawful and could therefore not possibly have 
served as the decisive basis for the contested decision, if it should become 
apparent that an environmental assessment on the basis of the SEA Directive was 
required for their adoption.  
A AND OTHERS 
 
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22 The parties to the main proceedings disagree as to whether the SEA Directive 
applies to Section 5.20.6 VLAREM II and the Omzendbrief. Despite the 
clarifications given by the Court of Justice, inter alia in the D’Oultremont 
judgment (Case C-290/15), the referring court doubts whether the instruments in 
question fall within the scope of the environmental assessment obligation of the 
SEA Directive.  
23 The referring court concludes from European Union law that the main purpose of 
the SEA Directive is that plans and programmes which are likely to have 
significant effects on the environment are subjected to an environmental 
assessment during the course of their preparation and before they are adopted. 
Furthermore, the referring court observes that it is also clear from the case-law 
that the scope of application of that directive may not be interpreted restrictively if 
a high level of environmental protection is to be ensured (Article 3(3) TEU, 
Article 37 of the Charter of Fundamental Rights of the European Union and 
Article 191(2) TFEU), and that the effectiveness of the SEA Directive may not be 
impaired. The provisions that define the scope of the Directive must also be 
interpreted broadly. In particular, the referring court refers to the judgments of the 
Court of Justice in Case C-671/16, Inter-Environnement Bruxelles ASBL; Case 
C-160/17, Raoul Thybaut and Others; Case C-567/10, Inter-Environnement 
Bruxelles ASBL and Others; Case C-290/15, Patrice D’Oultremont and Others, 
and Case C-473/14, Dimos Kropias Attikis.  
The instruments whose compatibility with EU law is the subject-matter of the 
questions referred 
24 Section 5.20.6 VLAREM II is headed ‘Installaties voor het opwekken van 
elektriciteit door middle van windenergie’ (‘Installations for the generation of 
electricity by means of wind energy’). That Section lays down generally 
formulated standards relating to shadow flicker, certain safety aspects and noise.  
25 The Omzendbrief is headed ‘Afwegingskader en randvoorwaarden voor de 
inplanting van windturbines’ (‘Assessment framework and preconditions for the 
installation of wind turbines’) and is intended for councils of mayors and 
aldermen, provincial governors, members of the permanent (provincial) 
deputations and civil servants involved in consent applications. The Omzendbrief 
sets out the policy line of the Flemish Government and aims to minimise the 
effects on various sectors (including nature, landscape, environment, economy, 
noise, safety, energy efficiency, etc.) and to offer sufficient development 
opportunities for onshore wind energy. Standards are formulated for each of the 
relevant sectors, with further attention — as in the case of the VLAREM 
standards — being given to noise, shadow flicker, safety and nature.  
26 The Omzendbrief is based on the pillars of sustainable spatial development, 
sustainable energy consumption, the advantages of wind energy in relation to 
other energy sources and the economic added-value of wind energy. The spatial 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING –CASE C-24/19 
 
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principle of deconcentrated bundling or clustering is central: by bundling wind 
turbines as much as possible, the preservation of the remaining open space in 
highly urbanised Flanders must be guaranteed. Finally, the Omzendbrief describes 
the role of the so-called Windwerkgroep (Wind Working group), which has the 
task of selecting locations for large-scale wind farms and submitting them to the 
Minister van Ruimtelijke ordening (Minister for Spatial Planning). Furthermore, 
the working group gives advice on actual consent applications, as in the present 
case.  
27 With a view to answering the questions referred for a preliminary ruling, the 
interim judgment of the referring court contains an explanation of the legal basis 
and the effects of the instruments in question. 
28 VLAREM II was adopted in implementation of the Flemish 
Milieuvergunningsdecreet, which aims to prevent and limit unacceptable nuisance 
and risks associated with certain establishments and, if necessary, to rectify the 
damage that the operation of an establishment or activity has inflicted on the 
environment. The Milieuvergunningsdecreet explains that the sectoral 
environmental conditions (such as Section 5.20.6 VLAREM II) apply to certain 
types or categories of classified establishments or activities.  
29 The basis of the Omzendbrief is set out in the policy-making and discretionary 
powers which the authorities have when granting an ‘environmental consent’. It 
encompasses guidelines which the public authority itself involves in its 
assessment whenever it has to assess an actual consent application. Whenever a 
public authority has wide discretionary powers (which is certainly the case when 
assessing whether an application is compatible with sound spatial planning), it can 
also indicate how it will deal with those policy-making and discretionary powers.  
30 As regards the effects of the aforementioned instruments, the referring court states 
that general and sectoral conditions have direct effect regardless of the existence 
of consent. They limit the discretionary powers of the public authorities 
responsible for granting development consent. Moreover, the competent authority 
can make the operation of an establishment subject to compliance with specific 
environmental conditions, or, as in the present case, it can counter sources of 
nuisance by means of sound spatial planning through town planning conditions, 
which in turn can refer to, among other things, the general and sectoral conditions. 
Those specific environmental conditions and town planning conditions will then 
accompany the consent or notification certificate as a condition.  
31 Fulfilling the general and sectoral conditions of VLAREM II does not give rise to 
an entitlement to a town planning consent or environmental consent. In any case, 
the public authority responsible for granting development consent must not only 
check compliance with the conditions set by VLAREM II, but must, taking into 
account all the specific aspects of the case, examine the nuisance and risk factors 
for humans and the environment and, taking into account the precise findings of 
that study, draw the appropriate final conclusions. Consents that take into account 
A AND OTHERS 
 
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general and sectoral conditions should not prejudice the requirements of statutory, 
decree-based or regulatory provisions. The referring court also points out that 
national case-law proceeds on the assumption that compliance with the VLAREM 
II regulatory standards constitutes an obligation of result for the applicant and 
that, in a specific case, those standards can offer sufficient guarantees that the 
possible nuisance factors involved can be avoided or remedied from a town 
planning point of view.  
32 The Omzendbrief is not of a regulatory nature and its mere infringement does not 
therefore lead to the unlawfulness of the contested decision. That Omzendbrief 
does, however, offer an assessment framework that can be used as a testing 
framework for the spatial (consent) policy with regard to wind turbines. That 
Omzendbrief cannot, however, detract from the assessment that must be carried 
out in accordance with decree-based and regulatory instruments.  
33 With regard to the two instruments in question, it is not disputed that they contain 
various provisions, including measures on safety, and standards relating to shadow 
flicker and noise levels, having regard to town and country planning zones. 
Furthermore, according to the referring court, it cannot be disputed that they are 
aimed at ‘regional planning and land use’ as interpreted in the case-law of the 
Court of Justice (Case C-290/15, D’Oultrement). It is also common cause that 
they at least also cover the energy sector and contribute to the projects listed in 
Annex II of the SEA Directive.  
The provisions of European Union law which led to the questions posed by the 
referring court  
34 In addition to recital 4 of the SEA Directive and its objective, as stated in 
Article 1, the referring court also refers to various elements of the legislative 
history of the SEA Directive. The provisions which are central to the review 
which the referring court has to carry out are Articles 2 and 3 of the Directive.  
35 Article 2(a) of the SEA Directive states that ‘plans and programmes’ ‘are subject 
to preparation and/or adoption by an authority at national, regional or local level 
or [...] are prepared by an authority for adoption, through a legislative procedure 
by Parliament or Government, and [...] are required by legislative, regulatory or 
administrative provisions’ (the referring court emphasises that they are cumulative 
conditions).  
36 Under Article 3(2)(a) of the SEA Directive, a systematic environmental 
assessment must be carried out for all plans and programmes which first, are 
prepared for certain sectors and which, second, set the framework for future 
development consent of projects listed in Annexes I and II to the EIA Directive 
(judgment in Case C-671/16 and in Case C-160/17). Other plans and programmes 
must be the subject of such an assessment when they ‘set the framework for future 
development consent of projects’, provided that they ‘are likely to have significant 
environmental effects’ (Article 3(4) of the SMB Directive).  
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Referred questions 1 and 2: Article 2(a) of the SEA Directive: the term ‘plan or 
programme’ 
37 According to the referring court, it follows from the case-law of the Court of 
Justice that no distinction is made between ‘plans and programmes’ and ‘general 
rules’ and that the general nature of a given regulation does not prevent that 
regulation from being covered by the term ‘plans and programmes’ (judgment of 
7 June 2018, Case C-671/16, Inter-Environnement Bruxelles ASBL and Others, 
and judgment of 27 October 2016, Case C-290/15, D’Oultrement).  
38 The referring court states that the power to draw up an Omzendbrief (Circular)is 
included in the discretionary and policy-making powers of the authority 
concerned. There is no question of the competent authority having a mandate to 
draw up the ‘plan or programme’, nor is there a formal procedure for its 
preparation. Circulars have an indicative value because, with sufficient 
justification, they can be deviated from within the limits of reasonableness. As 
long as those guidelines are not regarded as a legal rule, they are therefore not 
open to challenge before the Raad van State (Council of State) or the Raad voor 
Vergunningsbetwistingen. 
39 The referring court also states that the finality of the instruments in question is 
partly independent of the creation of a framework for granting development 
consent. It points out that, according to the case-law of the Court of Justice, when 
interpreting the terms ‘plans and programmes’, account must however be taken of 
the reference to the ‘framework for future development consent’ in Article 3 of 
the SEA Directive. With regard to the latter phrase, it notes that it was only 
introduced late in the European legislative process (Proposal for a Council 
Directive on the assessment of the effects of certain plans and programmes on the 
environment, 4 December 1996, COM (96) 0511 final).  
Referred questions 3 to 7: Article 2(a) and Article 3 of the SEA Directive: 
‘required’ programmes 
40 The referring court questions whether one is dealing here with ‘required plans or 
programmes’. To explain its doubts in that regard, extensive reference is made to 
the case-law of the Court of Justice, more specifically to the judgment and the 
Opinion in the aforementioned Case C-671/16 and the Opinion in Joined Cases 
C-105/09 and C-110/09 (Terre wallonne ASBL). Reference is also made to an 
English judgment, HS2 Action Alliance Ltd, R (on the application of) v The 
Secretary of State for Transport & Anor ([2014] UKSC 3). The restrictive 
interpretation of the terms ‘plans and programmes’ that seems to follow from the 
foregoing limits those terms to instruments required by law. However, according 
to the referring court, that might be in conflict with the purposive interpretation of 
directives which is presupposed elsewhere in the case-law (Case C-275/09, 
Brussels Hoofstedelijk Gewest and Others).  
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41 Unlike the defendant, the referring court considers that the 
Milieuvergunningsdecreet and the DABM leave no room for claiming that no 
provision was made for the preparation of sectoral environmental conditions. The 
situation is different in relation to the drafting of the Omzendbrief, which was 
motivated by the pursuit of legal certainty, does not contain any legal rules and for 
which no provision was made. It represents a free political decision.  
42 With regard to Section 5.20.6 VLAREM II and the sectoral conditions contained 
therein, the interim judgment of the referring court also states that the obligation 
to prepare them is laid down in the Milieuvergunningsdecreet, but that they are 
not required in the sense of European Union law (they are indeed provided for, but 
they are not compulsory, see points 14 to 30 of the Opinion in Case C-567/10, 
Inter-Environnement Bruxelles ASBL and Others). The preparation of sectoral 
conditions, specifically for ‘installations for generating electricity by means of 
wind energy’, is not compulsory and the government could choose not to adopt 
these rules.  
43 The referring court is therefore of the view that both the sectoral environmental 
conditions and the Omzendbrief are ‘voluntary plans’, which, if coupled with a 
requirement to carry out an environmental assessment, could undermine the 
objective of the Directive (Opinion in Case C-567/10). There was no obligation to 
draw up those instruments as an assessment framework for development consent 
within the meaning of the case-law of the Court of Justice, because the sectoral 
environmental conditions also operate autonomously as a general rule.  
44 It is true that the Omzendbrief, which has indicative value, and Section 5.20.6 
VLAREM II, which has autonomous effect, must be respected as legislation by 
the public authority responsible for granting development consent and they have 
the normative power to limit the discretionary powers of that authority and thus to 
counter unacceptable nuisance, but that discretionary power is certainly not 
restricted in a way that would lead to unacceptable nuisance being condoned at the 
level where development consent is granted. Those instruments work as a 
minimum threshold from which no deviation is possible if that would lead to 
unacceptable nuisance. In other words, they do not detract from the fact that no 
consent can be granted that runs counter to sound spatial planning or, more 
generally, that no consent can be granted that would entail unacceptable risks or 
nuisance for the environment. As regards Section 5.20.6 VLAREM II, it should be 
noted that the sectoral environmental conditions are autonomous to such an extent 
that they do not have to be imposed as a condition for consent in order to be 
enforceable.  
45 The question is whether the abovementioned instruments have the normative 
power and the finality to be regarded as plans or programmes (Opinion in Joined 
Cases C-105/09 and C-110/09). The finality of both instruments is independent of 
the way in which a project will have to be executed, and the instruments 
mentioned do not indicate in any determinative sense to what extent a project can 
be approved as a framework for development consent. In the interpretation of the 
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Court of Justice, the ‘required’ nature of the plans and programmes must be read 
in conjunction with the term ‘framework for future development consent’ in 
Article 3 of the SEA Directive. According to the referring court, the finality (the 
will of the legislature), as evidenced by the parliamentary preparation of the 
Directive, is relevant to the assessment of the definition of ‘a framework’.  
46 The term ‘framework’ meets the aim of taking account of the environmental 
effects of any order which sets conditions for the granting of future development 
consent for projects, in the context of that order. A plan or programme sets a 
framework in so far as it influences any subsequent development consent of 
projects, in particular with regard to location, nature, size and operating conditions 
or by allocating resources (Opinion in Joined Cases C-105/09 and C-110/09).  
47 According to the referring court, it follows from the case-law that the setting of 
criteria and modalities for the approval and implementation of projects which are 
likely to have significant effects on the environment should be regarded as a large 
package and therefore as a plan or programme, where the environmental effects of 
the projects arise from those very criteria and modalities themselves. If, on the 
other hand, the criteria and modalities that have been laid down are unlikely to 
have a significant impact on the environment, there is no question of a large 
package and therefore no plan or programme.  
48 The question which arises in that regard and in the context of what has been set 
out in relation to the operation of the two instruments and the minimum thresholds 
which are created by them, is whether the importance and scope of the standards 
in the present case are sufficient to warrant talk of ‘a large package’ of criteria and 
modalities and of a sufficiently coherent system and a sufficiently complete 
assessment framework for granting development consent. In other words, whether 
the scope of such standards is sufficiently broad for determining the conditions 
applicable to the sector concerned and the choices which are made through these 
standards, in particular with regard to the environment, and whether they serve to 
lay down the conditions under which future concrete projects for the construction 
and operation of wind farms may be permitted and whether compliance with them 
is a condition for the granting of consent. To put it yet another way: whether, by 
analogy with the D’Oultremont judgment, one is dealing here with a regulatory 
decision that concerns various provisions for the installation of wind turbines, 
which must be complied with when granting consent for the construction and 
operation of such installations, and the importance and scope of the standards are 
sufficient to warrant talk of instruments which are likely to have significant 
environmental effects within the meaning of Article 3(1) and (2) of the SEA 
Directive. 
49 On the basis of the aforementioned case-law of the Court of Justice (Joined Cases 
C-105/09 and C-110/09, Case C-290/15, Case C-160/17, Case C-41/11, Case 
C-671 / 16, Case C-392/96), the referring court asks whether the instruments in 
question are likely to have a significant impact on the environment. According to 
the abovementioned case-law, the investigation that has to be carried out in order 
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to ascertain whether that condition has been fulfilled is limited to the question of 
whether it can be excluded on the basis of objective information that the plan or 
project in question will have significant effects on the site concerned.  
50 In that sense, the question must also be asked whether an order such as that at 
issue in the present case entails an amendment to the legal reference framework 
which may have significant effects on the environment. After all, it is doubtful 
whether the ‘possibility of environmental effects’ (term used in the Opinion in 
Case C-160/17) [not available in English] is created through the present 
instruments or whether they are plans that are decisive for projects that are subject 
to the EIA Directive. It would be difficult with the instruments in question to 
undermine the requirement that the possibility of significant environmental effects 
should be the subject of an environmental impact assessment.  
Referred questions 8 and 9: possibilities for the referring court to limit the effects 
of any incompatibility with the SEA Directive  
51 It is clear from the judgment in Case C-379/15 (Association France Nature 
Environnement) that the Court of Justice has, on a case-by-case basis and by way 
of exception, intended to grant a national court the possibility of managing the 
effects of an annulment or declaration of illegality of a national provision that is 
deemed incompatible with Union law, for example by limiting it in time. This 
follows from the third paragraph of Article 3 TEU and Article 191(1) and (2) 
TFEU, which guarantee a high level of protection and improvement of the quality 
of the environment. The Court of Justice has attached certain conditions to the 
special modulation option.  
52 The referring court points out that at first sight both the instruments in question 
contribute to the construction of wind turbines and are closely aligned to the 
objectives of European and Flemish legislation on renewable energy sources.  
53 Under Article 36(1) and (2) of the DBRC Decree, the referring court only has the 
legal power to determine, at the request of one of the parties or on its own 
initiative, that the legal effects of the wholly or partially annulled individual order 
should remain wholly or partially in force or should remain provisionally in force 
for a period that it determines. That measure can only be ordered for exceptional 
reasons that justify a violation of the principle of legality, in a fully reasoned 
decision and after an adversarial debate. That decision may take into account the 
interests of third parties.  
54 The referring court is therefore not competent to order the continued enforcement 
of the instruments concerned in the questions referred for a preliminary ruling 
which, depending on the answer to the questions referred, may have been adopted 
in an (ir)regular manner. Moreover, because of its limited normative power, the 
Omzendbrief is not a legal act that can be challenged before the referring court or 
the Raad van State. The referring court does not have the power to order the 
enforcement of the instruments in question, because it has no power to annul those 
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instruments, and the power to enforce cannot be exercised if the illegality of these 
instruments is only being assessed in interim proceedings by way of an exception.  
55 However, under Flemish law, there is a possibility, based on case-law, not to 
attach any effects to the illegality on the basis of considerations originating in the 
principle of legal certainty. The referring court raises the question whether that 
enforcement possibility based on case-law could be applied from the point of view 
of European Union law, so that it could also temporarily continue to enforce the 
effects of the plan and/or programme in the event of a legality test in interim 
proceedings, which would otherwise lead to the standard being disapplied where 
1) the requirements laid down in the judgment in Case C-379/15 have been met 
(and the measure affects European Union law) and 2) the conditions laid down in 
Article 36(1) and (2) of the DBRC Decree have been met (with the exception of 
the requirement that it be an order which has been annulled), whereby the 
exceptional nature of the continued enforcement is guaranteed and the period of 
enforcement can be limited to the time-frame strictly required to remedy the 
irregularity.  
56 In that regard, the referring court observes that a simple declaration of 
inapplicability which it would be competent to issue on the basis of the 
abovementioned interim test of legality (with Article 159 GW as the legal basis), 
would, at first sight, have the consequence that the sectoral environmental 
conditions, aimed more at the wind turbines, would fall away. Moreover, that 
declaration of inapplicability could occur not only within the context of planning 
consent disputes, but also outside it, since the sectoral environmental conditions 
function as binding minimum standards for establishments and activities. 
Furthermore, the declaration of inapplicability of those standards would jeopardise 
the legality of all consents granted since 31 March 2012, in so far as they are 
decisively based on those instruments. The illegality of those consents could also 
be invoked in civil law cases or in criminal or administrative enforcement 
disputes. Such a declaration of inapplicability would also jeopardise the legal 
certainty of the assessment framework for wind turbines, and thus an objective in 
the field of renewable energy production.  
57 The adoption and entry into force of a new provision of national law cannot, at 
first sight, prevent the adverse effects on the environment resulting from a 
declaration of inapplicability because, in principle, the adoption of a new order 
laying down sectoral standards for wind turbines cannot have retroactive effect, 
and the operation of existing wind turbines would be put at risk.  
58 The declaration of inapplicability of the instruments in question would also, at 
first sight, have the effect of creating a legal vacuum with regard to the 
implementation of European Union law in the field of environmental protection 
which is even more damaging to the environment. In that regard, the referring 
court points out that the two instruments concerned are in line with the objectives 
of Directive 2009/28/ EC on the promotion of the use of energy from renewable 
sources and also give effect to its transposition in Flanders.  
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59 The declaration of inapplicability of the sectoral standards and the Omzendbrief 
could also lead to considerable legal uncertainty with regard to the enforceability 
of, inter alia, the environmental consents for the wind turbines already in 
operation.  
60 The referring court also notes that, whereas it is not legally competent to continue 
to enforce the legality of the instruments in question on a temporary basis, it is 
competent, on the basis of Article 36(1) and (2) of the DBRC Decree, to continue 
to enforce the legal effects of the consent for a project on a temporary basis if it 
annuls that consent. However, as previously stated, a number of strict conditions 
apply. Therefore, if the answer of the Court of Justice to question 8 is in the 
negative, the referring court questions whether it would be able to continue to 
enforce temporarily the legal effects of an annulled individual order on the basis 
of the conditions imposed by Flemish law and European Union law for the 
modulation in time of a declaration of illegality because of conflict with the SEA 
Directive.  
61 The continued enforcement of the legal effects of the instruments in question 
means that the legality of individual projects is not jeopardised and the Regional 
legislature is given the time strictly necessary to adopt new legislation that 
complies with the SEA Directive. The temporary continued enforcement of the 
legal effects of an individual project during the period of time strictly required by 
the Regional legislature in order to adopt new legislation that complies with the 
SEA Directive, does affect the legality of the individual project and obliges the 
applicant to submit a new application at the end of that time period. That approach 
also means that the referring court can only deal with the legal vacuum within the 
context of consent disputes on an ad hoc basis for each contested consent decision.