Opinion of the Advocate General — ECLI:EU:C:2025:1003
Date: 2025-12-18
Language of the case: French

Summary C-771/24 – 1 
Case C-771/24 
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: 
7 November 2024 
Referring court: 
Conseil d’État (Council of State, Belgium) 
Date of the decision to refer: 
23 October 2024 
Applicant: 
Fédération belge du stationnement ASBL 
Interparking SA 
Defendant: 
Région de Bruxelles-Capitale, represented by its Government 
  
Subject matter of the main proceedings 
Action for annulment brought on 30 April 2021 against the Order of the 
Government of the Région de Bruxelles-Capitale (Brussels Capital Region) of 
25 February 2021 laying down general and specific conditions for the operation of 
car parks, ‘the contested order’. 
Provisions of European Union law relied on 
Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural 
habitats and of wild fauna and flora (‘the Habitats Directive’) 
Article 6(3) 
‘3. 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, shall be subject to 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-771/24 
 
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appropriate assessment of its implications for the site in view of the site’s 
conservation objectives. …’ 
Directive 2001/42/EC of the European Parliament and of the Council of 
27 June 2001 on the assessment of the effects of certain plans and programmes 
on the environment (‘Directive 2001/42/EC’) 
Article 2 
‘For the purposes of this Directive: 
(a) “plans and programmes” shall mean plans and programmes, including those 
co-financed by the European Community, as well as any modifications to them: 
- which are subject to preparation and/or adoption by an authority at national, 
regional or local level or which are prepared by an authority for adoption, through 
a legislative procedure by Parliament or Government, and 
- which are required by legislative, regulatory or administrative provisions; 
…’ 
Article 3 
‘Scope 
1. An environmental assessment, in accordance with Articles 4 to 9, shall be 
carried out for plans and programmes referred to in paragraphs 2 to 4 which are 
likely to have significant environmental effects. 
2. Subject to paragraph 3, an environmental assessment shall be carried out for all 
plans and programmes: 
(a) which are prepared for … transport, … town and country planning or land use 
and which set the framework for future development consent of projects listed in 
Annexes I and II to Directive [2011/92/EU]; 
(b) which, in view of the likely effect on sites, have been determined to require an 
assessment pursuant to Article 6 or 7 of [the Habitats] Directive. 
… 
4. Member States shall determine whether plans and programmes, other than those 
referred to in paragraph 2, which set the framework for future development 
consent of projects, are likely to have significant environmental effects. 
…’ 
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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 ( ‘Directive 2011/92/EU’) 
Annex II 
‘PROJECTS REFERRED TO IN ARTICLE 4(2) 
… 
10. INFRASTRUCTURE PROJECTS 
… 
(b) Urban development projects, including the construction of shopping centres 
and car parks; 
…’ 
Directive 2012/27/EU of the European Parliament and of the Council of 
25 October 2012 on energy efficiency, amending Directives 2009/125/EC and 
2010/30/EU and repealing Directives 2004/8/EC and 2006/32/EC (‘Directive 
2011/27/EU’) 
Directive (EU) 2018/844 of the European Parliament and of the Council of 
30 May 2018 amending Directive 2010/31/EU on the energy performance of 
buildings and Directive 2012/27/EU on energy efficiency (‘Directive (EU) 
2018/844’) 
Succinct presentation of the facts and procedure in the main proceedings 
1 The contested order lays down ‘general operating conditions for covered and 
open-air car parks’ (for example, conditions relating to fitting-out and signage), 
‘specific operating conditions for open-air car parks’ (for example, conditions 
relating to the maintenance of vegetation) and ‘specific operating conditions for 
covered car parks’ (for example, conditions relating to air quality). 
2 The granting or extension of environmental consent for such installations is 
subject to compliance with the abovementioned operating conditions. 
3 Any person intending to carry out car park construction work, or change the use of 
a building or significantly alter the topography of the land, with a view to locating 
a car park in a place where one does not yet exist, must also obtain planning 
consent, which will be granted subject to compliance with the rules set out in the 
plans and regulations relating to town and country planning. 
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4 As stated in Article 1 thereof, the contested order partially transposes Directive 
(EU) 2018/844. 
5 In the context of the procedure for the adoption of the contested order, the 
Legislation Section of the Conseil d’État, in Opinion No 68 487/1 of 12 January 
2021, considered that, in so far as that order contains operating conditions and 
detailed rules concerning the decision on environmental consent for car parks 
throughout the Brussels Capital Region, it may be regarded as decisive for car 
parks and sets the framework within which infrastructure works coming within the 
scope of heading 10(b) of Annex II of Directive 2011/92/EU will or may be 
carried out and that, viewed from that standpoint, the draft order should indeed be 
regarded, under Article 3(2)(a) of Directive 2001/42/EC, as a plan or programme 
for which an environmental assessment must be carried out if it is likely to have 
significant environmental effects. 
6 The defendant adopted the contested order without assessing its effects. 
The essential arguments of the parties in the main proceedings 
Existence of a plan or programme in the transport, town and country 
planning or land use sectors 
Position of the parties 
7 The parties dispute, in essence, whether the contested order falls within the 
concept of ‘plans and programmes’ referred to in Article 3(2)(a) of Directive 
2001/42/EC. 
8 Under that provision, those plans and programmes, provided that they are 
‘prepared for … transport, … town and country planning or land use’ and that 
they ‘set the framework for future development consent of projects listed in 
Annexes I and II to Directive 85/337/EEC’, must automatically be subject to a 
prior environmental assessment. 
9 The applicants submit that an assessment of the effects of the contested order was 
required under Article 3(2)(a) of the directive (or, in the alternative, under 
Article 3(2)(b) of that directive, which relates to Natura 2000 sites, or under 
Article 3(4) thereof, which relates to plans and programmes that are not prepared 
in one of the sectors concerned but which set the framework for future 
development consent of projects, in which case Member States are to determine 
whether they are likely to have significant environmental effects and, if so, to 
carry out an assessment of the effects). 
10 They refer in particular to the judgment of 27 October 2016, D’Oultremont and 
Others (C-290/15, EU:C:2016:816) (‘the judgment in D’Oultremont’), in which 
the Court held that ‘the notion of “plans and programmes” relates to any measure 
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which establishes, by defining rules and procedures for scrutiny applicable to the 
sector concerned, a significant body of criteria and detailed rules for the grant and 
implementation of one or more projects likely to have significant effects on the 
environment’ and concluded that sector-specific conditions for wind farms of a 
total power of at least 0.5 MW was a ‘plan or programme’ which should have 
been subject to an assessment of the effects. 
11 They state that the contested order contains operating conditions with which off-
street car parks in Brussels must comply and that the construction and operation of 
such car parks fall within the transport and town planning sectors. 
12 In their view, that order establishes a significant body of criteria and detailed rules 
for the grant and implementation of one or more projects likely to have significant 
effects on the environment, since car park projects must, in order to obtain 
consent, necessarily comply with the regulations, criteria and detailed rules which 
are set out in that order and which are likely to have significant effects on the 
urban environment. 
13 The applicants also refer to the above-mentioned opinion of the Legislation 
Section of the Conseil d’État. 
14 By contrast, the defendant takes the view that in order to fall within the concept of 
‘plan and programme’, a measure must have, as that concept indicates, a planning 
or programming aspect. 
15 The content and purpose of the provisions in question must make a practical 
contribution to (the implementation of) one or more projects, whether this 
involves carrying out the project itself or prior decisions such as the selection of 
the areas affected by those (future) projects. 
16 However, according to the defendant, the contested order does not have any 
planning or programming aspect, since it in no way plans or programmes the 
places where car parks are likely to be located in Brussels. 
17 Its provisions simply set out the (mandatory) rules with which any car park 
installation must comply once it has been constructed, during the operational 
phase (internal fitting-out, cyclist safety, ventilation, etc.), and do not in 
themselves contribute to the construction or siting of a project.  
18 On the basis of the contested sector-specific conditions, which are strictly linked 
to the operation of car parks as such, after consent has been granted, it is not 
possible to determine the location and number of car parks which could be 
operated in Brussels. 
19 In that respect, the provisions of the contested order differ fundamentally from the 
sector-specific conditions for wind turbines in the Walloon and Flemish Regions 
which gave rise respectively to the judgment in D’Oultremont and the judgment in 
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A and Others (Wind Turbines at Aalter and Nevele) (C-24/19, EU:C:2020:503) 
(‘the judgment in A and Others’). 
20 ‘Plans and programmes’ presuppose measures concerning the conditions for 
implementing, authorising, siting, building and operating a project or installation, 
which are a function of spatial or territorial factors, rather than measures strictly 
limited to rules of operation. 
21 The applicants counter that the concept of ‘framework’ referred to in 
Article 3(2)(a) and (4) of Directive 2001/42/EC is not limited to spatial planning 
tools or tools which necessarily define conditions of a territorial nature, but in fact 
covers any measure which defines criteria or detailed rules which will influence 
the granting of consent and its implementation, as is the case here. 
22 In their view, it is not necessary for a measure to contain rules on the siting or 
location of projects within the territory in order to be covered by the obligation to 
carry out an assessment. 
23 In that regard the refer to the judgment of 17 June 2010, Terre wallonne and Inter-
Environnement Wallonie (C-105/09 and C-110/09, EU:C:2010:355) and the 
Opinion of Advocate General Kokott in that case, from which they infer that 
conditions relating to the location of a project are only one type of condition 
which may be contained in a ‘plan or programme’, alongside others such as those 
relating to the nature or size of an installation or even its operating conditions, as 
well as to the judgment in D’Oultremont, from which they infer that zoning is not 
always necessary, to the judgment of 7 June 2018, Thybaut and Others, C-160/17, 
EU:C:2018:401 (‘the judgment in Thybaut’), from which they infer that an order 
which, like the contested measure, lays down rules for the operation of car parks 
falls within the town and country planning sector (in addition to falling within the 
transport sector), to the judgment of 8 May 2019, Associazione ‘Verdi Ambiente e 
Società (VAS) – Aps Onlus’ and Others (C-305/18, EU:C:2019:384) which shows, 
in their view, that a ‘plan or programme’ need not necessarily contain provisions 
which implement very specific projects and, finally, to the Opinion of Advocate 
General Campos Sánchez-Bordona in Bund Naturschutz in Bayern (C-300/20, 
EU:C:2021:746), which gave rise to the judgment of 22 February 2022, Bund 
Naturschutz in Bayern (C-300/20, EU:C:2022:102) (‘the judgment in Bund 
Naturschutz in Bayern’). 
24 They conclude that the contested order, which defines the conditions relating to 
equipment and operating conditions which car parks must satisfy to be authorised 
and implemented, constitutes a framework for the authorisation and 
implementation of projects and should have been subject to a prior assessment of 
its effects. 
25 In the alternative, the applicants submit that, even if it is necessary to adopt the 
defendant’s restrictive interpretation of the concept of ‘plans and programmes’, 
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the contested order actually has a ‘planning or programming aspect’ within the 
meaning defined by the defendant.  
26 In their view, that measure forms part of a hierarchy of provisions and/or plans 
and aims to implement, through the practical measures which it sets out, the 
objectives determined and pursued by those provisions/plans. 
27 The applicants cite, inter alia, Directive 2012/27/EU of the European Parliament 
and of the Council of 25 October 2012 on energy efficiency, Directive (EU) 
2018/844, the Regional Air-Climate-Energy Plan and the National Energy-
Climate Plan 2021-2030.  
28 In their view, the contested order is clearly in keeping with those provisions and 
plans, which it seeks to implement, and constitutes a key element in the Brussels 
air, climate and energy strategy. It is conceived as a whole and as an ordered 
succession of operations to be carried out in public and private car parks with a 
view to achieving a specific aim within a given period of time. 
29 They infer from this that the order has a clear planning and programming aspect in 
the restrictive sense defined by the defendant. They argue that it relates to a very 
large number of car parks and parking spaces and that it contains measures which 
have a significant impact on the environment at the regional level (in particular air 
quality standards). 
30 The defendant contends that the contested order merely sets out regulatory 
operating conditions without setting a framework for the development of car parks 
in Brussels. 
31 In so far as the applicants maintain that, in any event, the scope of the contested 
order covers the whole of the Brussels Capital Region and therefore the three 
Natura 2000 sites and all the nature and forest reserves there, with the result that 
an assessment of the effects is required under Article 3(2)(b) of Directive 
2001/42/EC, the defendant rejects that argument on the ground that the very 
concept of plan and programme implies a framework for future development 
consent of projects. 
32 It cites the judgment of 12 June 2019, Terre wallonne (C-321/18, EU:C:2019:484) 
from which it infers that the Court held that the plans referred to in Article 6 of the 
Habitats Directive were to be regarded as ‘plans and programmes’ within the 
meaning of Directive 2001/42/EC according to the same rules of interpretation 
and that the order at issue did not constitute a plan and programme in so far as it 
did not set a framework for future development consent of projects. 
Assessment of the referring court 
33 Adopting the two-stage line of reasoning applied by the Court in its judgment of 
9 March 2023, An Bord Pleanála and Others (Site of St Teresa’s Gardens) 
(C-9/22, EU:C:2023:176, paragraphs 27, 30, 36 and 38) (‘the judgment in An 
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Bord Pleanála’), the Conseil d’État first concludes that the contested order clearly 
satisfies the formal criteria for definition as a ‘plan or programme’ set out in 
Article 2(a) of Directive 2001/42/EC. 
34 Next, it examines whether the measure at issue also meets the cumulative 
substantive criteria set out in Article 3(2)(a) of that directive, namely that ‘[it is] 
prepared for the sectors referred to in that provision (the first condition) and [it] 
set[s] the framework for future development consent of projects listed in 
Annexes I and II to Directive 2011/92 (the second condition)’ (judgment in An 
Bord Pleanála, paragraph 36). 
35 As regards that second condition, the Court has held that ‘the concept of “plans 
and programmes” relates to any measure which establishes, by defining rules and 
procedures for scrutiny applicable to the sector concerned, a significant body of 
criteria and detailed rules for the grant and implementation of one or more 
projects likely to have significant effects on the environment (judgment of 
22 February 2022, Bund Naturschutz in Bayern, C-300/20, EU:C:2022:102, 
paragraph 60 and the case-law cited)’ (judgments in An Bord Pleanála, 
paragraph 38; D’Oultremont, paragraph 49; Thybaut, paragraph 54; of 7 June 
2018, Inter-Environnement Bruxelles and Others, C-671/16, EU:C:2018:403, 
paragraph 53; of 8 May 2019, ‘Verdi Ambiente e Società (VAS) – Aps Onlus’ and 
Others, C-305/18, EU:C:2019:384, paragraph 50; of 12 June 2019, CFE, C-43/18, 
EU:C:2019:483, paragraph 61; of 12 June 2019, Terre wallonne, C-321/18, 
EU:C:2019:484, paragraph 41; A and Others, paragraph 67, and of 22 February 
2022, Bund Naturschutz in Bayern, C-300/20, EU:C:2022:102, paragraph 60), 
those criteria and detailed rules having to have a ‘sufficiently significant 
importance and scope in the determination of the conditions applicable to the 
sector concerned’ (judgment in D’Oultremont, paragraph 50), and that, in order to 
satisfy that condition, provisions must at least be binding on the authorities with 
competence to grant development consent (see A and Others, paragraph 77). 
36 The ‘criteria and detailed rules’ referred to may relate in particular to ‘the 
location, nature, size and operating conditions of such projects, or the allocation of 
resources connected with those projects’ (see, in particular, judgment of 
22 February 2022, Bund Naturschutz in Bayern, C-300/20, EU:C:2022:102, 
paragraph 62). 
37 In that regard, the Conseil d’État notes that the criteria and detailed rules set out in 
the contested order are binding on the authorities since, unless expressly provided 
otherwise by that order, those authorities cannot grant or extend environmental 
consent for car parks which do not comply with the operating conditions defined 
by that order. The fact that additional specific conditions may be added to the 
environmental consent does not alter the binding nature of the general conditions 
defined by that order. 
38 Returning to the first condition, the Conseil d’État notes that it is common ground 
between the parties that the contested order relates to one of the sectors (transport 
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and town planning) referred to in Article 3(2)(a) of Directive 2001/42/EC, which 
enables both parties to refer to the judgment in D’Oultremont (concerning a 
measure relating to the energy sector, which is also covered by that provision), 
since the applicants submit that operating conditions such as those laid down by 
the contested order constitute a plan or programme, which the defendant disputes 
by emphasising the necessary planning or programming aspect, where appropriate 
in connection with a specific territory, of plans and programmes as considered by 
the Court in its case-law relating to that provision. 
39 The Conseil d’État notes that the case-law specifically relied on by both parties in 
support of their respective arguments (the judgments in D’Oultremont and A and 
Others) relates to measures governing the siting and operation of installations 
(wind turbines), whereas the contested order concerned the operation of car parks, 
but did not lay down any rules concerning their siting, such rules being provided 
for by plans and regulations relating to town and country planning, which are 
themselves already subject to an environmental impact assessment pursuant to 
Articles 15/1, 18 to 20, 22, 25 to 27, 30, 30/3 to 30/7, 30/11, 33 to 37, 39, 41, 43, 
44, 46 to 50, 63, 68, 87/1, 89/1 to 89/5 and 93 of the Brussels Town and Country 
Planning Code (CoBAT), Article 1 of which states that it is intended, inter alia, to 
transpose Directive 2001/42/EC. 
40 The Conseil d’État recalls that, under Article 98 of the CoBAT, the construction 
of a car park requires planning consent (together with the required environmental 
consent) and states that the granting of such consent is subject to compliance with 
the rules set out in the plans and regulations relating to town and country 
planning, and in particular those which protect the sites concerned by the Habitats 
Directive, so that it is those plans and regulations which will serve as the 
framework for granting planning consent. 
41 In those circumstances, the Conseil d’État seeks to ascertain whether the contested 
order, which merely lays down conditions for the operation of car parks, without 
laying down rules on their siting or maximum number, can be regarded as a plan 
or programme in the town and country planning or land use sectors. 
42 Moreover, the Conseil d’État is uncertain whether the operation of a car park 
necessarily falls within the transport sector. 
43 Consequently, the Conseil d’État considers it necessary to refer to the Court for a 
preliminary ruling the first question set out in paragraph 53 of this summary. 
Maintenance of the effects of the contested order 
44 In the event that the contested order is annulled, the defendant requests that its 
effects be maintained for a period of 24 months from the date of the judgment to 
be delivered in order to enable the defendant to take the measures necessary to 
remedy the illegality of that measure by making it subject to an environmental 
assessment. 
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45 It adds that the annulment of the contested order without maintaining its effects 
would have considerable repercussions and threaten the legal certainty of all 
consents and authorisations subject to the annulled general operating conditions. 
46 In particular, it states that the contested order contains conditions relating to air 
quality in car parks which constitute a strictly necessary minimum for the 
protection of the environment and human health. 
47 It cannot accept that those installations should not be subject to minimum 
environmental protection standards. 
48 The applicants oppose that request, referring to the judgments of 28 February 
2012, Inter-Environnement Wallonie and Terre wallonne (C-41/11, 
EU:C:2012:103), and of 28 July 2016, Association France Nature Environnement 
(C-379/15, EU:C:2016:603). 
49 In the latter judgment, the Court held that ‘that exceptional power [of maintaining 
effects] may … be exercised only if all the conditions flowing from the judgment 
of 28 February 2012 in Inter-Environnement Wallonie and Terre wallonne 
(C-41/11, EU:C:2012:103) are satisfied, namely: 
– that the contested provision of national law constitutes a measure correctly 
transposing EU law on environmental protection; 
– that the adoption and coming into force of a new provision of national law do 
not make it possible to avoid the damaging effects on the environment arising 
from the annulment of the contested provision of national law; 
– that annulment of the contested provision of national law would have the effect 
of creating a legal vacuum concerning the transposition of EU law on 
environmental protection which would be more damaging to the environment, 
in the sense that that annulment would result in lesser protection and would 
thus run counter to the essential objective of the EU law; and 
– that any exceptional maintaining of the effects of the contested provision of 
national law lasts only for the period strictly necessary for the adoption of the 
measures making it possible to remedy the irregularity found.’ 
50 The applicants consider that those conditions have not been satisfied. 
Accordingly, they argue that the defendant has not explained how annulment of 
the contested order, namely the return to the regulatory situation which prevailed 
before the entry into force of the annulled order, would cause such harm to the 
environment in terms of air quality that it is absolutely necessary to maintain its 
effects despite the clear infringement of the law. 
51 The Conseil d’État notes that, since the contested order partially transposes the 
aforementioned Directive (EU) 2018/844 (see paragraph 4 of this summary), the 
possible annulment of the contested order on the grounds that it constitutes a plan 
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or programme subject to prior environmental impact assessment would 
necessarily create a legal vacuum in that regard, so that there may be justification 
for maintaining its effects for a reasonable period of time in order to give the 
defendant time to carry out that assessment. 
52 However, the Conseil d’État considers that there may be reasonable doubt as to 
whether the mere fact that the transposition of that directive would no longer be 
ensured for some months in the sector for the operation of car parks in the 
Brussels Capital Region would run counter to an essential objective of EU law, 
and therefore it is necessary to seek a ruling from the Court of Justice on that 
matter. 
Questions referred 
53 The following questions are referred to the Court for a preliminary ruling: 
‘Must Article 3(2)(a) of Directive 2001/42/EC of the European Parliament and of 
the Council of 27 June 2001 on the assessment of the effects of certain plans and 
programmes on the environment be interpreted as meaning that an order, such as 
that at issue, which is limited to laying down conditions for the operation of car 
parks without laying down rules on their siting or their maximum number must 
nevertheless be regarded as a plan or programme in the transport, town and 
country planning or land use sector? 
If the first question is answered in the affirmative, may a national court apply a 
provision of its national law which empowers it to maintain, for a limited period, 
the effects of an annulled regulatory measure laying down the conditions for the 
operation of car parks in the territory of a region in order to allow the regional 
authority to carry out an assessment of the environmental impact of those 
operating conditions before any redrafting of that measure?’