Opinion of the Advocate General — ECLI:EU:C:2021:868
Date: 2021-10-21
Language of the case: French
Subject matter: Environment
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary C-463/20 – 1 
Case C-463/20 
Summary of the request for a preliminary ruling under Article 98(1) of the 
Rules of Procedure of the Court of Justice 
Date lodged:  
24 September 2020 
Referring court:  
Conseil d’État (Council of State, Belgium) 
Date of the decision to refer:  
4 June 2020 
Applicant:  
Namur-Est Environnement ASBL 
Defendant:  
Région wallonne 
  
CONSEIL D’ÉTAT (COUNCIL OF STATE, BELGIUM), 
ADMINISTRATIVE LITIGATION DIVISION 
JUDGMENT 
I. Subject matter of the application 
1 By an application lodged on 18 January 2017 the non-profit association Namur-
Est Environnement applied for annulment of the decision of 27 June 2016 of the 
inspector general of the département de la nature and des forêts (Department of 
Nature and Forests, Belgium, ‘the DNF’) granting the public limited company 
Sagrex (‘Sagrex’) derogations from the measures to protect plant and animal 
species laid down in Articles 2a, 3 and 3a of the loi du 12 juillet 1973 sur la 
conservation de la nature (Law of 12 July 1973 on nature conservation) (Moniteur 
belge No 1973A71207 of 11 September 1973, 
http://www.ejustice.just.fgov.be/eli/loi/1973/07/12/1973A71207/justel) (‘the Law 
on nature conservation’) in order to work a limestone aggregate quarry at 
Bossimé. 
EN 
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2 On 14 March 2018 the public limited company Cimenteries CBR was granted 
leave to intervene. 
II. Facts 
3 On 4 November 2008 Sagrex applied for a single permit to resume working of the 
Bossimé quarry, to dig a tunnel between the Bossimé and Lives-sur-Meuse 
quarries, to install a conveyor belt in the Lives-sur-Meuse quarry and to develop a 
riverside loading quay for barges on the Meuse. 
4 On 12 May 2010 the DNF issued an unfavourable opinion which included the 
following reasons: 
‘Whereas, even though a large number of protected species will be affected by the 
project, the application surprisingly makes no mention of the statutory obligation 
to obtain the necessary derogations from the measures to protect protected species 
in accordance with the legislation in force; 
… 
Whereas, given the nature and scale of this project, the proposed adjustments 
before, during and after the works are unlikely to genuinely mitigate or 
compensate for the many expected impacts, in particular the destruction of natural 
habitats’. 
5 On 15 April 2016 Sagrex requested a derogation from the measures to protect 
plant and animal species laid down by the Law on nature conservation. That 
request was accompanied by an impact assessment issued in April 2016, entitled 
‘Destruction of environments and relocation of plant species in order to work the 
Bossimé quarry’. 
6 On 27 June 2016, the DNF granted the derogation sought. It accordingly 
authorised Sagrex, whilst applying the mitigating measures listed by the DNF, 
intentionally to disturb individuals of the plant and animal species listed by it, to 
degrade and destroy areas of habitat of those species, to uproot, intentionally 
destroy, capture and transport individuals and to degrade areas of habitat of those 
species. This is the contested measure. 
7 On 30 September 2016 Sagrex filed amended plans and a corresponding 
supplementary impact study in support of its application for a single permit. 
8 A public inquiry into the amended project was held from 21 November to 
21 December 2016 and generated a large number of objections. 
9 On 21 December 2016 the DNF issued a favourable opinion on the application for 
a single permit, subject to conditions. That opinion was based on the following 
reasons, among others: 
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‘Whereas by means of the recommendations set out in the application file, the 
obligations arising from the derogation of 27/06/16 and the conditions set out 
below, the significant nature conservation impacts of this project can be reduced 
to an acceptable level, in particular in the light of the compensatory measures; …’. 
10 On 25 September 2017 the competent minister refused the single permit. The 
intervener brought a separate action for annulment against that decision. That 
action was dismissed by a judgment of 14 May 2020. 
III. Arguments of the parties 
A. Application for annulment 
11 The applicant claims, inter alia, that Articles 2 to 10 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 
(OJ 2012 L 26, p. 1) and Annex I.19 thereto have been infringed. 
12 The contested measure amounts to a development consent that has not undergone 
an impact assessment procedure in accordance with the relevant provisions of 
Directive 2011/92 and the authority which issued it failed to examine whether 
such an impact assessment procedure was required in the case at issue. 
13 Under Article 4(1) of Directive 2011/92, ‘projects listed in Annex I shall be made 
subject to an assessment in accordance with Articles 5 to 10.’ Annex I.19 
concerns inter alia ‘quarries and open-cast mining where the surface of the site 
exceeds 25 hectares …’. Such projects must be ‘subject to a requirement for 
development consent and an assessment with regard to their effects’ and the 
development consent is ‘the decision of the competent authority or authorities 
which entitles the developer to proceed with the project’. 
14 The project falls under Annex I to Directive 2011/92 and the derogation was 
granted ‘in order to work a limestone aggregate quarry at Bossimé’. The applicant 
therefore needs a development consent if it is to be ‘entitled to proceed with the 
project’ and, in consequence, an assessment of its effects in accordance ‘with 
Articles 5 to 10’ of the directive should have been carried out before that consent 
was granted. 
15 In any event, where a decision-making process involves several stages, the 
assessment procedure should take place as far upstream as possible. Admittedly, a 
single permit to work the quarry was applied for in parallel, but that application 
and its accompanying impact study were subsequent to the request to derogate and 
the decision of 27 June 2016, since the impact study was issued in July 2016. 
16 The ‘extract from the Flora and Fauna chapter of the 2008 impact study – 
Supplementary impact study following amendment of the 2015 project’, annexed 
to the request to derogate, is of limited scope and cannot amount to an assessment 
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of the effects on the environment for the purposes of the requirements under the 
directive. 
17 Furthermore, an impact assessment also involves consulting the bodies concerned 
and public participation (Article 6 of Directive 2011/92); the competent authority 
examining and taking into consideration the information provided in the 
assessment document and received in the context of the consultations under 
Article 6 (Article 8 of Directive 2011/92) and including the results of the 
foregoing in its decision-making on the development consent; and the provision of 
information to the public (Article 9 of Directive 2011/92), that is to say, stages 
which – in particular as regards the public participation phase – were not followed 
in the present case. 
B. Defence 
18 The opposing party counters that the contested measure is not a project within the 
meaning of Directive 2011/92. Its effect is not to allow a quarry to be operated, 
but merely to disapply certain provisions of the Law on nature conservation so 
that an operating permit could be applied for. Since that consent cannot be 
implemented as such, it is not a ‘decision of the competent authority or authorities 
which entitles the developer to proceed with the project’. Nor is this a matter of a 
development consent resulting from a decision-making process comprising several 
stages, and the contested measure was issued by an authority other than those 
responsible for examining the application for a single permit, and which is acting 
in a different context. 
C. Reply 
19 The applicant replies referring to various judgments of the Court of Justice, 
including the judgment of 7 January 2004, Wells (C-201/02, EU:C:2004:12), on 
application of Council Directive 85/337/EEC of 27 June 1985 on the assessment 
of the effects of certain public and private projects on the environment (OJ 1985 
L 175, p. 40) to the working of a quarry. 
20 The contested measure is a necessary precondition for working the quarry. It 
therefore constitutes consent in the context of a decision-making process 
comprising several stages. The assessment procedure must take place as far 
upstream as possible. The fact that the contested measure was issued by a different 
authority from those responsible for examining the application for a single permit 
is irrelevant in that respect. 
21 To take the view that the impact assessment may only take place as part of 
examination of the application for a single permit is to overlook the fact, first, that 
in the decision-making process, the competent authority must take the 
environmental effects of the project into account ‘at the earliest possible stage’, 
and, secondly, that an impact assessment carried out subsequently cannot cast 
doubt on the contested measure, which grants final consent intentionally to disturb 
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protected species and to degrade and destroy areas of habitat of those species, 
meaning that the assessment must be carried out in advance. 
D. Statement in intervention 
22 According to the intervener, although the project for the working of the quarry 
falls within the concept of ‘project’ within the meaning of Directive 2011/92, the 
derogation at issue is however not a ‘development consent’ within the meaning of 
that directive, since it does not, alone, confer entitlement to proceed with the 
project: it is the combination of the consent and the permit which ‘entitles’ the 
developer to proceed with its project. 
23 Since the derogation is a stage in the development consent process constituting an 
ancillary decision relating only to certain effects of the project, rather than the 
principal decision, it was not necessary to assess its effects at that stage. 
24 The impact study accompanying the application for a single permit contains an 
analysis of the effects on the protected species to which the derogation relates, and 
the objectives of Directive 2011/92 are therefore fully attained, since the 
assessment took place before the principal development consent, relates to the 
effects on the protected species and was made with all the procedural guarantees 
required by the directive. 
25 It cannot be found that the project, including all its implementing arrangements, 
had been finalised at the time of the request to derogate. The applicant must 
therefore carry out the impact assessment at the stage of applying for the single 
permit, so that the study relates to the final project, after it has been adapted to 
comply with the derogation. 
E. Final submissions of the opposing party 
26 The opposing party argues that there is no connection in either the legislation or 
the regulations between the provisions governing single permits and those 
governing derogations from the measures to protect plants and animal species. 
There is therefore no ‘decision-making process’ within the meaning of the EU 
case-law. The cause, that is to say, the working of a quarry, should not be 
confused with its effects, that is to say, harm to plant or animal species. 
F. Final submissions of the intervener 
27 The intervener asserts that Directive 2011/92 has been complied with, even 
though the public inquiry took place after the contested measure was adopted, 
since ‘both the derogation itself and the specific impact assessment showing that 
the conditions for the derogation had been complied with and the supplementary 
impact study relating to flora and fauna (of April 2016) were annexed to the 
dossier submitted to the public inquiry for the principal decision’. The public 
inquiry was held precisely at a time when the public had an effective opportunity 
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to make observations on the project itself, since at that time all options were still 
open. 
G. Final submissions of the applicant 
28 The applicant again emphasises that the contested measure is a necessary 
precondition for working the quarry. That working and the disturbance of species 
‘constitute one and the same project for intervention in the natural surroundings’. 
Where the developer needs more than one administrative decision in order to be 
entitled to proceed with the project, all those administrative decisions taken 
together constitute the development consent within the meaning of Directive 
2011/92. The request to derogate therefore did not undergo a sufficient 
environmental assessment. 
IV. Analysis 
29 Under Articles 12 and 13 of 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 Member States are to take the requisite measures to establish systems of 
protection for the animal species listed in Annex IV (a) and (b). Under Article 16, 
the Member States can derogate from those measures in certain situations and 
subject to certain conditions. 
30 There is no requirement, under Directive 92/43, the Law on nature conservation or 
the regional administrative legislation, for any impact assessment or public 
consultation before issuing consent to derogate from measures protecting animal 
and plant species. 
31 Sagrex made a request to derogate from the Law on nature conservation so that it 
could respond to the DNF’s unfavourable opinion of 12 May 2010. 
32 That request was accompanied by an impact assessment issued in April 2016, 
entitled ‘Destruction of environments and relocation of plant species in order to 
work the Bossimé quarry’. 
33 That impact assessment was accompanied by, inter alia, an extract from the 
impact study issued in the context of the single permit application. This was the 
‘Flora and Fauna chapter of the 2008 impact study – Supplementary impact study 
following amendment of the 2015 project’, likewise issued in April 2016. 
34 No public participation phase took place before the contested measure was 
adopted. 
35 Article 1(2) of Directive 2011/92 contains, inter alia, the following definitions: 
‘(a) “project” means: 
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– the execution of construction works or of other installations or schemes, 
– other interventions in the natural surroundings and landscape including those 
involving the extraction of mineral resources; 
… 
(c) “development consent” means the decision of the competent authority or 
authorities which entitles the developer to proceed with the project’. 
Article 2(1) of that directive provides, among other matters: 
‘Member States shall adopt all measures necessary to ensure that, before 
development consent is given, projects likely to have significant effects on the 
environment by virtue, inter alia, of their nature, size or location are made subject 
to a requirement for development consent and an assessment with regard to their 
effects on the environment.’ 
36 Article 6 of Directive 2011/92 is worded as follows: 
‘1. Member States shall take the measures necessary to ensure that the authorities 
likely to be concerned by the project by reason of their specific environmental 
responsibilities or local and regional competences are given an opportunity to 
express their opinion on the information supplied by the developer and on the 
request for development consent, taking into account, where appropriate, the cases 
referred to in Article 8a(3). To that end, Member States shall designate the 
authorities to be consulted, either in general terms or on a case-by-case basis. The 
information gathered pursuant to Article 5 shall be forwarded to those authorities. 
Detailed arrangements for consultation shall be laid down by the Member States. 
2. In order to ensure the effective participation of the public concerned in the 
decision-making procedures, the public shall be informed electronically and by 
public notices or by other appropriate means, of the following matters early in the 
environmental decision-making procedures referred to in Article 2(2) and, at the 
latest, as soon as information can reasonably be provided: 
(a) the request for development consent; 
(b) the fact that the project is subject to an environmental impact assessment 
procedure and, where relevant, the fact that Article 7 applies; 
(c) details of the competent authorities responsible for taking the decision, those 
from which relevant information can be obtained, those to which comments or 
questions can be submitted, and details of the time schedule for transmitting 
comments or questions; 
(d) the nature of possible decisions or, where there is one, the draft decision; 
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(e) an indication of the availability of the information gathered pursuant to 
Article 5; 
(f) an indication of the times and places at which, and the means by which, the 
relevant information will be made available; 
(g) details of the arrangements for public participation made pursuant to 
paragraph 5 of this Article. 
3. Member States shall ensure that, within reasonable time-frames, the following 
is made available to the public concerned: 
(a) any information gathered pursuant to Article 5; 
(b) in accordance with national legislation, the main reports and advice issued to 
the competent authority or authorities at the time when the public concerned is 
informed in accordance with paragraph 2 of this Article; 
(c) in accordance with the provisions of Directive 2003/4/EC of the European 
Parliament and of the Council of 28 January 2003 on public access to 
environmental information, information other than that referred to in paragraph 2 
of this Article which is relevant for the decision in accordance with Article 8 of 
this Directive and which only becomes available after the time the public 
concerned was informed in accordance with paragraph 2 of this Article. 
4. The public concerned shall be given early and effective opportunities to 
participate in the environmental decision-making procedures referred to in 
Article 2(2) and shall, for that purpose, be entitled to express comments and 
opinions when all options are open to the competent authority or authorities before 
the decision on the request for development consent is taken. 
5. The detailed arrangements for informing the public (for example by bill posting 
within a certain radius or publication in local newspapers) and for consulting the 
public concerned (for example by written submissions or by way of a public 
inquiry) shall be determined by the Member States. Member States shall take the 
necessary measures to ensure that the relevant information is electronically 
accessible to the public, through at least a central portal or easily accessible points 
of access, at the appropriate administrative level. 
6. Reasonable time-frames for the different phases shall be provided for, allowing 
sufficient time for: 
(a) informing the authorities referred to in paragraph 1 and the public; and 
(b) the authorities referred to in paragraph 1 and the public concerned to prepare 
and participate effectively in the environmental decision-making, subject to the 
provisions of this Article. 
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7. The time-frames for consulting the public concerned on the environmental 
impact assessment report referred to in Article 5(1) shall not be shorter than 
30 days.’ 
37 In its judgment of 7 January 2004, Wells (C-201/02, EU:C:2004:12), the Court 
observed that according to the first recital in the preamble to the directive, the 
competent authority is to take account of the environmental effects of the project 
in question ‘at the earliest possible stage’ in the decision-making process 
(paragraph 51). ‘Accordingly, where national law provides that the consent 
procedure is to be carried out in several stages, one involving a principal decision 
and the other involving an implementing decision which cannot extend beyond the 
parameters set by the principal decision, the effects which the project may have on 
the environment must be identified and assessed at the time of the procedure 
relating to the principal decision. It is only if those effects are not identifiable until 
the time of the procedure relating to the implementing decision that the 
assessment should be carried out in the course of that procedure’ (paragraph 52). 
38 The Court has also held: ‘It is apparent from the scheme and the objectives of 
Directive 85/337 that [Article 1(2) of that directive] refers to the decision 
(involving one or more stages) which allows the developer to commence the 
works for carrying out his project. Having regard to those points, it is therefore the 
task of the national court to verify whether the outline planning permission and 
decision approving reserved matters which are at issue in the main proceedings 
constitute, as a whole, a “development consent” for the purposes of Directive 
85/337 (see, to that effect, the judgment delivered today in Case 
C-508/03 Commission v United Kingdom, not yet published in the ECR, 
paragraphs 101 and 102). Second, it should be borne in mind, as the Court 
explained in Wells, at paragraph 52, where national law provides for a consent 
procedure comprising more than one stage, one involving a principal decision and 
the other involving an implementing decision which cannot extend beyond the 
parameters set by the principal decision, the effects which a project may have on 
the environment must be identified and assessed at the time of the procedure 
relating to the principal decision. It is only if those effects are not identifiable until 
the time of the procedure relating to the implementing decision that the 
assessment should be carried out in the course of that procedure’ (judgment of 
4 May 2006, Barker (C-290/03, EU:C:2006:286, paragraphs 45 to 47); see also 
judgment of 4 May 2006, Commission v United Kingdom (C-508/03, 
EU:C:2006:287, paragraph 104); judgment of 28 February 2008, Abraham and 
Others (C-2/07, EU:C:2008:133, paragraph 26); judgment of 3 March 2011, 
Commission v Ireland (C-50/09, EU:C:2011:109, paragraphs 76 and 77); and 
judgment of 17 March 2011, Brussels Hoofdstedelijk Gewest and Others 
(C-275/09, EU:C:2011:154, paragraph 32)).  
39 The Court has also held, in paragraph 34 of its judgment of 17 March 2011, 
Brussels Hoofdstedelijk Gewest and Others (C-275/09, EU:C:2011:154), that it is 
for the national court to determine, on the basis of the national legislation 
applicable, whether a decision such as that at issue in the main proceedings can be 
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regarded as a stage in a consent procedure carried out in several stages, the 
ultimate purpose of which is to enable activities which constitute a project within 
the meaning of the relevant provisions of Directive 85/337 to be carried out. 
40 In the present case, no public participation phase took place before the contested 
measure was adopted. The public participation phase occurred principally after the 
contested measure was adopted, in connection with the public inquiry held into 
the application for a single permit. It is therefore necessary to examine whether 
Directive 2011/92 requires a public participation phase to be held before a 
measure with the scope and effects of the contested measure is adopted. 
41 It should be noted in that respect that the quarry could not be worked without the 
derogation at issue. In that sense, it is beyond doubt that the contested measure is 
a necessary condition for resuming the working of the quarry. It is moreover 
equally indisputable that the quarry could not be worked unless a single permit is 
granted, which can only be issued if a public inquiry is held. 
42 The working of the Bossimé quarry is, as such, a project within the meaning of 
Article 1(2)(a) of Directive 2011/92. Under Article 4(1) of the directive, that 
working must be made subject to an environmental assessment, since quarries of 
that type are covered by Annex I to the directive. 
43 However, the sole purpose of the contested measure is to authorise the disturbance 
of animals and degradation of the areas of habitat of those species. Furthermore, 
the principal decision entitling the developer to proceed with its project is the 
single permit which may, following a public inquiry, be refused or made subject 
to stricter conditions than those laid down by the contested measure. Indeed, in the 
present case, the authority refused to grant the single permit to work the quarry. 
44 The authority responsible for issuing single permits must examine all the planning 
and environmental aspects of the project for working the quarry. Accordingly, the 
authority may determine the effects of that working more strictly in the light of the 
parameters set by the body that issued the contested measure. 
45 It is therefore necessary to determine whether the contested measure and the 
single permit that would authorise the working of the quarry form a single 
development consent (within the meaning of Article 1(2)(c) of Directive 2011/92) 
relating to a single project (within the meaning of Article 1(2)(a) of that directive). 
Having regard to the specific characteristics of the factual context at issue in the 
light of the existing EU case-law, it is appropriate for this court to refer that 
question to the Court of Justice of the European Union. 
46 If the answer to that first question is in the affirmative, a question should also be 
referred to the Court on the requirements of that directive since, in contrast to the 
measures at issue in the judgments referred to above, specifically Wells, whilst the 
contested measure is not an implementing decision in the true sense, neither is it 
the principal decision, since the principal decision is the single permit authorising 
the working of the quarry. 
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V. Questions referred for a preliminary ruling 
1. Do a decision ‘authorising the disturbance of animals and degradation of the 
areas of habitat of those species for the working of a quarry’ and the decision 
authorising or refusing that working (single permit) form a single development 
consent (within the meaning of Article 1(2)(c) 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) relating to 
a single project (within the meaning of Article 1(2)(a) of that directive) where, 
first, that working cannot take place without the first of those decisions and, 
secondly, the authority responsible for issuing single permits retains the ability to 
determine the environmental effects of that working more strictly having regard to 
the parameters set by the body that issued the first decision?  
2. If the answer to that first question is in the affirmative, are the requirements laid 
down by that directive, specifically in Articles 2, 5, 6, 7 and 8, sufficiently met 
where the public participation phase takes place after adoption of the decision 
‘authorising the disturbance of animals and degradation of the areas of habitat of 
those species for the working of a quarry’ but before adoption of the principal 
decision entitling the developer to proceed to work the quarry?