Opinion of the Advocate General — ECLI:EU:C:2018:39
Date: 2018-01-25
Language of the case: French
Subject matter: Environment
Procedure: Reference for a preliminary ruling
Origin: Belgium

summary it can therefore be concluded that Belgium’s objections cannot be accepted. 41. However, I would note that the case-law of the Court may have in fact extended the scope of the SEA Directive further, as was intended by the legislature and the Member States were able to foresee. In my view, however, this does not follow from the definition of the two terms ‘plans and programmes’, but from the interpretation of the characteristic set out in Article 2(a), second indent, in accordance with which those plans and programmes must be required by legislative, regulatory or administrative provisions. 42. As has already been said, the fact that a measure is regulated by national legislative or regulatory provisions which determine the competent authorities for adopting them and the procedure for preparing them should be sufficient. (20) Therefore, a rather rare requirement to adopt the measure in question is not necessary; rather, it suffices if it is made available as a tool. This extends the obligation to carry out an environmental assessment significantly. As I have already stated, this interpretation that is based on the legitimate objective of applying an environmental assessment covering all relevant measures, (21) is contrary to the recognisable intention of the legislature. (22) The Supreme Court of the United Kingdom has therefore strongly criticised this, (23) without, however, making a request for a preliminary ruling to that effect to the Court. 43. This case-law is not called into question by the present request for a preliminary ruling or by the parties to the proceedings. Therefore, the Court should not address it and examine it on its own initiative; rather it should reserve this for a more appropriate case. V. Conclusion 44. I therefore propose that the Court rule as follows: When assessing whether a plan or a programme within the meaning of Article 2(a) of Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment exists, it is necessary to ascertain whether the specifications in the measure in question are likely to have significant effects on the environment. 1 Original language: German. 2 Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 (OJ 2001 L 197, p. 30). 3 Judgment of 27 October 2016, D’Oultremont and Others (C‑290/15, EU:C:2016:816, paragraph 49). 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 2012 L 26, p. 1), as last amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1). 5– Judgment of 22 March 2012, Inter-Environnement Bruxelles and Others (C‑567/10, EU:C:2012:159, paragraph 31). 6 Judgment of 27 October 2016, D’Oultremont and Others (C‑290/15, EU:C:2016:816, paragraph 38). 7 Judgment of 27 October 2016, D’Oultremont and Others (C‑290/15, EU:C:2016:816, paragraph 39). 8– Judgments of 22 March 2012, Inter-Environnement Bruxelles and Others (C‑567/10, EU:C:2012:159, paragraph 37); of 10 September 2015, Dimos Kropias Attikis (C‑473/14, EU:C:2015:582, paragraph 50); and of 27 October 2016, D’Oultremont and Others (C‑290/15, EU:C:2016:816, paragraph 40). 9 For the sake of completeness, however, it must be recalled that there is at least one other obligation to carry out an environmental assessment of plans and programmes which does not depend on a framework for development consent of projects, namely Article 3(2)(b) of the SEA Directive. In accordance with that provision, it is necessary to assess plans and programmes which are covered by the special impact assessment pursuant to Article 6(3) of 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), the Habitats Directive, which covers only part of the effects on the environment. 10 Proposal for a Council Directive on the assessment of the effects of certain plans and programmes on the environment (COM(96) 511 final, p. 6) See, in this regard, my Opinion in Joined Cases Terre wallonne and Inter-Environnement Wallonie (C‑105/09 and C‑110/09, EU:C:2010:120, points 31 and 32) and my Opinion delivered today in Thybaut and Others (C‑160/17, point 37). 11 Judgment of 27 October 2016, D’Oultremont and Others (C‑290/15, EU:C:2016:816, paragraph 49). 12 Judgment of 27 October 2016, D’Oultremont and Others (C‑290/15, EU:C:2016:816, paragraph 48). 13 See, to that effect, judgments of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne, C‑41/11 (EU:C:2012:103, paragraph 40); of 22 March 2012, Inter-Environnement Bruxelles and Others (C‑567/10, EU:C:2012:159, paragraph 30); and of 27 October 2016, D’Oultremont and Others (C‑290/15, EU:C:2016:816, paragraph 39). 14 Convention on access to information, public participation in decision-making and access to justice in environmental matters, done at Aarhus, Denmark, on 25 June 1998 (OJ 2005 L 124, p. 4), approved by Council Decision 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p. 1). 15 Protocol on Strategic Environmental Assessment to the 1991 UN/ECE Espoo Convention on Environmental Impact Assessment in a Transboundary Context (OJ 2008 L 308, p. 35), approved by Council Decision 2008/871/EC of 20 October 2008 (OJ 2008 L 308, p. 33). 16 Judgments of 17 June 2010, Terre wallonne and Inter-Environnement Wallonie (C‑105/09 and C‑110/09, EU:C:2010:355, paragraph 47), and of 27 October 2016, D’Oultremont and Others (C‑290/15, EU:C:2016:816, paragraph 52). 17 Judgment of 27 October 2016, D’Oultremont and Others (C‑290/15, EU:C:2016:816, paragraph 53). 18 See the references in footnote 10. 19 Judgment of 28 July 2016, Association France Nature Environnement (C‑379/15, EU:C:2016:603). 20– Judgment of 22 March 2012, Inter-Environnement Bruxelles and Others (C‑567/10, EU:C:2012:159, paragraph 31). 21– Judgment of 22 March 2012, Inter-Environnement Bruxelles and Others (C‑567/10, EU:C:2012:159, paragraph 30). 22– Opinion in Inter-Environnement Bruxelles and Others (C‑567/10, EU:C:2011:755, points 18 and 19). 23 HS2 Action Alliance Ltd, R (on the application of) v The Secretary of State for Transport & Anor [2014] UKSC 3, paragraphs 175 to 189.