Provisional text
OPINION OF ADVOCATE GENERAL
KOKOTT
delivered on 18 December 2025 (1)
Case C‑771/24
Fédération belge du stationnement ASBL,
Interparking SA
v
Région de Bruxelles-Capitale
(Request for a preliminary ruling from the Conseil d’État (Council of State, Belgium))
( Reference for a preliminary ruling – Environment – Assessment of the effects of certain plans and programmes on the environment – Obligation to carry out an environmental assessment – Plan or programme in the transport, town and country planning or land use sector – Order laying down conditions for the operation of car parks – Maintenance of effects )
Drum prüfe, wer sich ewig bindet (2)
I.      Introduction
1.        The request for a preliminary ruling from the Conseil d’État (Council of State, Belgium) gives the Court the opportunity to clarify two aspects relating to the Directive on the assessment of the effects of certain plans and programmes on the environment (3) (‘the SEA Directive’, SEA standing for ‘strategic environmental assessment’).
2.        The first aspect concerns the question of what is meant by the two terms ‘plans and programmes’ and the conditions in which they must be subjected to a strategic environmental assessment. Understanding those two terms is of key importance when it comes to defining the scope of the SEA Directive, but their meaning has not been sufficiently clarified by previous case-law. In particular, in the context of the present reference for a preliminary ruling, it is necessary to examine whether the two terms ‘plans and programmes’ presuppose a planning or programming aspect in the sense of town and country planning regulation.
3.        Second, the Court is once again called upon to examine its case-law on the exceptional conditions in which the effects of national legislation adopted in breach of the procedural rules of EU law may be maintained.
II.    Legal framework
4.        The aims of the SEA Directive are set out in particular in Article 1:
‘The objective of this Directive is to provide for a high level of protection of the environment and to contribute to the integration of environmental considerations into the preparation and adoption of plans and programmes with a view to promoting sustainable development, by ensuring that, in accordance with this Directive, an environmental assessment is carried out of certain plans and programmes which are likely to have significant effects on the environment.’
5.        Plans and programmes are defined in Article 2(a) of the SEA Directive:
‘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’.
6.        The obligation to carry out a strategic environmental assessment is governed by Article 3 of the SEA Directive:
‘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 agriculture, forestry, fisheries, energy, industry, transport, waste management, water management, telecommunications, tourism, 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 [the EIA Directive (4)], or
(b)      …’
III. Facts and request for a preliminary ruling
7.        In the order of 25 February 2021, (5) which is contested in the main proceedings, the Government of the Région de Bruxelles-Capitale (Brussels Capital Region, Belgium) laid down general operating conditions for covered and open-air car parks.
8.        According to the request for a preliminary ruling, the contested order applies to car parks with more than 10
parking spaces. Under the heading of ‘General operating conditions for covered and open-air car parks’, the order lays down conditions for the use, design and signposting of car parks, for their maintenance and oversight, for electric vehicle charging points and for bicycle parking facilities.
9.        The request for a preliminary ruling also indicates that the contested order lays down, under the heading ‘Specific operating conditions for open-air car parks’, the conditions governing the maintenance of vegetation, the use of gritting salt and the maintenance of drainage and artificial lighting installations and, under the heading ‘Specific operating conditions for covered car parks’, the conditions governing, among other things, the design of the car park, safety, air quality standards and mechanical and natural ventilation.
10.      For new car parks, moreover, the order requires the installation of charging points for electric motor vehicles and of bicycle parking facilities. Heating of roofed car parks is prohibited in principle.
11.      According to the request for a preliminary ruling, the criteria and detailed rules set out in the contested order are binding on the public authorities when they grant environmental consent for car parks, unless particular expressly permitted derogations apply. Consequently, the granting or renewal of such consent is entirely subject to compliance with the operating conditions.
12.      Anyone who wishes to construct a car park, or even only, to that end, to change the use of a building or alter significantly the topography of the land, requires, besides environmental consent, planning consent,
the issuing of which is subject to compliance with the requirements laid down in plans and regulations relating to town and country planning.
13.      The contested order, in Article 1, partially transposes Directive (EU) 2018/844 (6) (‘the amendments to the Energy Performance of Buildings Directive (7)), adopted on the basis of Article 194 TFEU with a view to improving the energy efficiency of buildings.
14.      As part of the adoption procedure for the contested order, the Legislative Section of the Conseil d’État (Council of State), in its Opinion No 68.487/1 of 12 January 2021, explained that, under Article 3(2)(a) of the SEA Directive, the intended order would require an environmental assessment if it were likely to have significant effects on the environment. The order should be regarded, the Opinion stated, as setting the framework within which infrastructure works coming within the scope of heading
10(b) of Annex II to the EIA Directive must or may be carried out, because the order contains operating conditions and detailed rules concerning decisions on environmental consent for car parks throughout the Brussels Capital Region.
15.      The Brussels Capital Region, however, adopted the contested order without assessing its effects on the environment.
16.      On 30 April 2021, the Fédération Belge du Parking ASBL and Interparking SA brought an action for annulment of the contested order before the Conseil d’État (Council of State).
17.      They consider that the contested order constitutes a plan or programme within the meaning of the SEA Directive. In their view, that order establishes a significant body of criteria and detailed rules for the approval and implementation of one or more projects likely to have significant effects on the environment, within the meaning of the Court’s case-law, since development consent cannot be granted for car-park projects unless they 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.
18.      The Brussels Capital Region, on the other hand, considers that a regulatory measure does not fall within the definition of the term ‘plans and programmes’ unless, as that term suggests, it has a planning or programming aspect. That, according to the Region, is not the case, since the contested order neither plans nor ‘programs’ the places where car parks may be constructed in the Brussels-Capital Region,
nor the number of parking spaces permitted in that area.
The Region asserts that it merely lays down the binding rules which must be applied to any constructed car park in the operational phase after its completion (internal fitting-out, cyclist safety, ventilation, etc.). Accordingly, the Region argues that the order does not, of itself, contribute to the execution or establishment of a project. 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, the Region holds that it is not possible to determine either the location or the number of car parks which could be operated in Brussels.
19.      In the view of the Conseil d’État (Council of State), the Court’s case-law relates to regulatory measures governing the siting and operation of installations (wind turbines), whereas the contested order, although it concerns the operation of car parks, does not lay down rules for their siting. Those rules, it holds, are provided for by plans and regulations relating to town and country planning, which are themselves already subject to an environmental impact assessment.
20.      Under Article 98 of the Code Bruxellois de l’Aménagement du Territoire (Brussels Town and Country Planning Code; CoBAT), the Conseil d’État (Council of State) observed, the construction of a car park requires planning consent together with the required environmental consent. The granting of such consent, it stated, 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 covered by the Habitats Directive, (8) so that it is those plans and regulations which will serve as the framework for the future granting of planning consent.
21.      In those circumstances, the Conseil d’État (Council of State) 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 for the town and country planning or land use sector. Furthermore, it is uncertain whether the operation of a car park necessarily falls within the transport sector.
22.      The Conseil d’État (Council of State) therefore addresses the following questions to the Court of Justice:
‘(1)      Must Article 3(2)(a) of the SEA Directive 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?
(2)      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?’
23.      Written observations were submitted by the applicants in the main proceedings, the Fédération Belge du Parking ASBL, Interparking SA jointly, the Kingdom of Belgium, the Republic of Latvia and the European Commission. In accordance with Article 76(2) of the Rules of Procedure, the Court decided not to hold a hearing.
IV.    Legal assessment
A.      The first question
24.      By its first question, the Conseil d’État (Council of State) wishes to know whether Article 3(2)(a) of the SEA Directive must be interpreted as meaning that a regulatory measure which is limited to laying down conditions for the operation of car parks requires a strategic environmental assessment under the SEA Directive.
25.      In order to answer that question, it is necessary, first, to examine whether such a measure falls within the definition set out in Article 2(a) of the SEA Directive. Second, it is necessary to examine whether the two terms ‘plans and programmes’ presuppose additional, unwritten characteristics and, if so, whether those characteristics are present. Third, it is then necessary to examine whether such a regulatory measure also satisfies the conditions laid down in Article 3(2)(a) of the SEA Directive.
1.      Plans and programmes within the meaning of Article 2(a) of the SEA Directive
26.      Under Article 2(a) of the SEA Directive, ‘plans and programmes’ means plans and programmes which, first, 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, second, are required by legislative, regulatory or administrative provisions.
27.      It is apparent from the wording of the question referred by the Conseil d’État (Council of State) that it has no doubt as to the fulfilment of those two conditions. First, the Government of the Brussels Capital Region adopted the order of 25 February 2021. Second, although there is no obligation to lay down the operating conditions in question, it is sufficient, in that regard, that their adoption is regulated by national legislative or regulatory provisions, which determine the competent authorities for adopting them and the procedure for preparing them. (9) According to the Conseil d’État (Council of State), the legal basis of the contested order, as its preamble indicates, is Article 6(1)(1), Article 10(2) and the second subparagraph of Article 63(3) of the Ordonnance relative aux permis d’environnement (Ordinance of 5 June 1997 on environmental consent). (10)
2.      Interpretation of the terms ‘plans and programmes’
28.      The main issue is the interpretation of the two terms ‘plans and programmes’, in particular the question whether they must possess characteristics over and above those defined in Article 2(a) of the SEA Directive.
29.      The starting point is the finding that Article 2(a) of the SEA Directive does not define the two terms ‘plans and programmes’ but merely qualifies them by reference to the two – additional – requirements which have already been examined. (11) That, however, does not rule out the possibility that other requirements may be inherent in the two terms.
30.      Following on from the arguments advanced by the Brussels Capital Region in the main proceedings, Belgium submits that a regulatory measure can fall within the scope of the concept of ‘plans and programmes’ only if it has a planning or programming aspect. That is not the case with the order at issue, Belgium submits, since it in no way plans or ‘programmes’ the places where car parks are likely to be located in the Brussels Capital Region or the permissible number of car parks in that area. (12) Belgium thus bases its understanding of the two terms ‘plans and programmes’ on a spatial planning regulation in the form of a (pre-)determination of the uses permitted in an area.
31.      I do not find that reading convincing. It is at odds with the wording, scheme and legislative history of the directive. The other arguments put forward by the Brussels Capital Region and Belgium in support of that interpretation are also unconvincing (see point (a) below).
32.      In so far as the requirement of a ‘planning or programming aspect’ is applied to the use of that term in case-law, that likewise cannot justify a restrictive interpretation of the two terms ‘plans and programmes’, as that case-law, by referring to the ‘planning or programming aspect’, is not imposing any requirements which must be fulfilled for regulatory measures to be regarded as ‘plans and programmes’ (see point (b) below).
(a)    Town and country planning regulations
33.      First of all, Belgium doubts that any plan or programme exists, because the contested order does not lay down any town and country planning regulations.
34.      However, an interpretation whereby the two terms ‘plans and programmes’ presuppose such regulation of town and country planning does not appear convincing.
35.      First, the wording of Article 2(a) of the SEA Directive does not contain such a restriction.
36.      Second, the list of sectors in Article 3(2)(a) of the SEA Directive would be irrelevant if the two terms ‘plans and programmes’ were interpreted as meaning that they presupposed town and country planning regulations. Under Article 3(2)(a) of the SEA Directive, an environmental assessment must be carried out for plans and programmes which are prepared for agriculture, forestry, fisheries, energy, industry, transport, waste management, water management, telecommunications, tourism, town and country planning or land use. ‘Town and country planning or land use’ is therefore listed as one of several sectors for which plans and programmes within the meaning of the SEA Directive may be prepared.
37.      Third, the travaux préparatoires for the SEA Directive confirm the significance of that systemic argument. They suggest that the absence of any such requirement from Article 2(a) is intentional.
38.      In fact, Article 2(a) of the Commission’s initial proposal for the SEA Directive additionally contained the words ‘town and country planning plans and programmes’. (13) According to the explanatory memorandum to the proposal, the directive was intended to be restricted to town and country planning plans and programmes. (14)
39.      This restriction of the scope of the directive was criticised by the European Parliament’s Committee on Economic and Monetary Affairs and Industrial Policy in its opinion, in which it advocated a different wording ‘in which that direct link [with town and country planning] is dropped’. (15) By way of explanation, it submitted that even strategic options whose spatial planning consequences were not immediately obvious could have fairly drastic effects on the environment. In its legislative resolution, Parliament responded by tabling amendment
17, in which it deleted the qualification ‘only … town and country planning’. (16) The amended Commission proposal of 1999 no longer contained that qualification. (17)
40.      Nevertheless, the Commission upheld its position that the measure must be linked to a location. Article 2(a) of the amended proposal required plans and programmes to set a framework for future projects by making reference to their location and,
inter alia, their nature, size or operating conditions. (18)
41.      The Council’s common position, however, ultimately refined the definition and scope, as reflected in the version which was finally adopted, dropping the location criterion from the definition and referring, within the scope, to ‘town and country planning and land use’ as one of several possible sectors for which plans and programmes might be prepared. (19)
42.      Fourth, contrary to what Belgium maintains, the requirement of town and country planning regulation likewise cannot be inferred from the Court’s case-law.
43.      The fact that, in the judgment in
Nomarchiaki Aftodioikisi Aitoloakarnanias and Others, the Court did not classify the contested act for diversion of the course of a river as a ‘plan or programme’ is not due to the absence of town and country planning regulation. It did point out, in the grounds of its judgment, that the measure did not define criteria and detailed rules for the development of land or rules and procedures for scrutiny on which the implementation of one or more projects would have depended. (20) The Court based that wording on the judgment in Inter-Environnement Bruxelles and Others, which it cites. The reference made there to the criteria and detailed rules for the development of land can be explained only by the fact that the act at issue did relate to the sector of town and country planning, as is clear beyond doubt from the paragraphs preceding the wording in question. (21) The crucial point in the grounds of the judgment in Nomarchiaki Aftodioikisi Aitoloakarnania and Others, therefore, is not the absence of conditions for the development of land but rather the absence of criteria for scrutiny, in other words the fact that the contested regulatory measure did not set a framework for future projects.
44.      While it is true that, in the judgment in
D’Oultremont and Others, the Court held that plans and programmes must cover a specific area, (22) it was sufficient that the measure should apply to the entire area under the responsibility of the adopting authority. (23)
45.      Finally, in the joined cases Terre wallonne and Inter-Environnement Wallonie, the Court had already found that the two terms ‘plans and programmes’ covered a regulatory measure laying down conditions for the application of nitrogen to farmland. (24) That measure, similarly, did not lay down specific town and country planning regulations.
46.      Fifth, the objection that such an interpretation of the two terms ‘plans and programmes’ overstretches the scope of strategic environmental assessment is equally unconvincing. According to that view, all regulatory measures governing the operation of installations would fall under that heading. (25)
47.      It is true that the interpretation advocated here is not conducive to limiting the scope of strategic environmental assessment in that respect. However, the classification of a regulatory measure as a plan or programme within the meaning of the SEA Directive does not of itself give rise to an obligation to carry out a strategic environmental assessment. On the contrary, it is only Article 3 of the SEA Directive which determines the conditions in which such an assessment is necessary. The criteria set out in that article adequately limit the scope of strategic environmental assessment. (26)
(b)    Planning and programming aspect in case-law
48.      Nor can it be inferred from the fact that the Court of Justice has used the concept of a planning and programming aspect in its case law that requirements must be met in order for legal acts to be regarded as ‘plans and programmes’.
49.      The Court used the term for the first time in the judgment in
Inter-Environnement Bruxelles and Others, where it emphasised that the contested regulatory measure contained general rules, expressed some abstract ideas and pursued an objective of transforming an area. That, the Court found, was illustrative of the planning and programming aspect of the regulatory measure and did not prevent it from being included in the definition of ‘plans and programmes’. (27) It could be inferred from a superficial reading that the two terms ‘plans and programmes’ required those elements.
50.      On closer reading, however, the Court’s considerations do not support that conclusion.
51.       In fact, the Court introduced those considerations with the word ‘moreover’. In other words, they were only presented in the alternative. Their significance, therefore, is only revealed in the light of the Court’s essential argument that the general nature of instruments does not preclude their classification as ‘plans and programmes’. (28) Unlike the Aarhus Convention, (29) the SEA Directive does not distinguish between ‘plans and programmes’, ‘policies’ and ‘generally applicable legally binding normative instruments’. With that argument, the Court refuted Belgium’s objection that, because of its general nature, the regulatory measure at issue was not a plan or programme within the meaning of the SEA Directive.
52.      Thus, by setting out considerations on a planning or programming aspect and on the aforementioned circumstances (presence of general rules, expression of abstract ideas and objective of transforming an area), the Court did not introduce an additional requirement for classification as a plan or programme.
3.      Conditions laid down in Article 3(1) of the SEA Directive
53.      Under Article 3(1) of the SEA Directive, ‘only’ plans and programmes referred to in paragraphs 2 to 4 are subject to a strategic environmental assessment. Under Article 3(2)(a) of the SEA Directive, an environmental assessment must be carried out for all plans and programmes which satisfy two cumulative conditions. First, plans and programmes must be prepared for one of the listed sectors and, second, they must set the framework for future development consent of projects defined in Annexes I and II to the EIA Directive.
54.      Contrary to the doubts expressed by the Conseil d’État (Council of State), (30) the contested order was prepared for one of the listed sectors (see point (a) below). It will be for the Conseil d’État (Council of State) to examine whether the order also sets a framework for future development consents. The decisive factor in that regard is whether the order issued by the approval authority prescribes binding criteria and detailed rules which are likely to have significant effects on the environment (see point (b) below).
(a)    Preparation of plans and programmes for a listed sector
55.      Among the sectors for which plans and programmes may be prepared, which are listed in Article 3(2)(a) of the SEA Directive, the ‘transport’ and ‘town and country planning or land use’ sectors are relevant in the present case.
56.      It should first be noted that the Court interprets the concept of ‘preparing plans and programmes for a sector’ to mean that the requirement is met where the plan or programme in question ‘concerns’ that sector. (31) By contrast, neither the SEA Directive nor the case-law of the Court contains definitions of the various sectors.
57.      On that basis, conditions for the operation of car parks concern the ‘transport’ sector. Unfortunately, the Conseil d’État (Council of State) does not set out the reasons for its doubts as to whether the operating conditions concern that sector, at least not so far as I am aware. On the contrary, it seems very logical that the operating conditions for car parks concern the transport sector
since they regulate the design and use of transport infrastructure.
58.      It is true that the relevant case-law does not contain any general explanation of what is meant by the ‘transport’ sector. However, in the only relevant case to date, namely Bund Naturschutz in Bayern, the Court based its findings on a broad conception of that sector. Without stating its precise reasons, it considered that the ‘transport’ sector was also concerned where a provision prescribed a compulsory permit for driving or parking motor vehicles off the public road network in a landscape conservation area. (32)
59.      If the Court even includes in the ‘transport’ sector the parking of motor vehicles in places not dedicated to public traffic, the same must also apply to car parks the operation of which is subject to specific rules, as transport by private car is practically inconceivable without parking facilities. As essential infrastructure, car parks must therefore be classed as part of the ‘transport’ sector.
60.      The question whether the conditions for the operation of car parks also concern the ‘town and country planning or land use’ sector depends on how those operating conditions are formulated in practice.
61.      The doubts of the Conseil d’État (Council of State) as to the whether the operating conditions concern the ‘town and country planning or land use’ sector appear to arise from the fact that the construction of car parks, besides environmental consent, which depends on compliance with operating conditions, also requires development consent, which depends on compliance with town and country planning regulations. According to the considerations and assessment of the
Conseil d’État (Council of State), the town and country planning regulations set the framework for development consent for the construction of a car park and have therefore undergone a strategic environmental assessment. (33)
62.      The existence of a town and country planning framework, however, does not preclude the possibility that other regulations which impose binding requirements for the project require a strategic environmental assessment. What matters is whether the regulations in question satisfy the conditions set out in Article 3(2)(a) of the SEA Directive. Otherwise, Member States could circumvent the obligation to carry out a strategic environmental assessment of plans or programmes by splitting requirements into various regulatory measures, only one of which would be subject to a strategic environmental assessment. (34)
63.      As regards
the interpretation of the twofold concept ‘town and country planning or land use’, this presupposes, as the Conseil d’État (Council of State) submits, a provision affecting the use of land.
64.      The Court, it is true, proceeds on the understanding that the sector is not confined to the division of an area into zones and the determination of the activities permitted within those zones but is broader in scope, since its designation refers to both town and country planning and land use. (35) However, the Court’s reasoning is not to be understood as meaning that an impact on the use of an area is not necessary. On the contrary, the Court juxtaposes the two terms ‘town and country planning’ and ‘land use’. It convincingly explains that, besides planning at the level of actual use (land use), the twofold concept also encompasses the higher level of planning, such as the management of territorial development or nature and resource conservation (town and country planning). Accordingly, in the case-law in which it has relied on that interpretation, the Court has classified as ‘town and country planning or land use’ only regulatory measures which have an effect on the use of land. (36) While it cannot be inferred from that practice that such an effect is strictly necessary, the Court’s reasoning certainly does not preclude such a requirement.
65.      The travaux préparatoires for the SEA Directive also suggest that the twofold concept ‘town and country planning and land use’ presupposes a provision which has an effect on the use of land. In the explanatory memorandum to its proposal, the Commission expressly stated that ‘town and country planning plans or programmes define the use of land’. (37) Although the limitation of the scope of the SEA Directive to the town and country planning sector was dropped in the course of the legislative process, it is not evident that, by so doing, the EU legislature also intended to abandon that interpretation of the term ‘town and country planning’.
66.      On the basis of that understanding of the ‘town and country planning or land use’ sector, it cannot be ruled out that the sector may be affected by a regulatory measure which exclusively lays down conditions for the operation of car parks without prescribing rules governing the siting of such car parks or their maximum number. It is for the Conseil d’État (Council of State) to examine whether such a measure affects the use of an area.
(b)    Framework for future development consent of projects subject to an environmental impact assessment
67.      The question whether the conditions for operating the car parks must be subject to an environmental assessment therefore depends essentially on whether they impose on the approval authority binding criteria and detailed rules which are likely to have significant effects on the environment.
68.      Under Article 3(2)(a) of the SEA Directive, the plans or programmes concerned must also set the framework for future development consent of projects, and those projects must belong to the project categories listed in Annexes I and II to the EIA Directive.
69.      In that regard, the Court regularly recalls that the concept (38) of ‘plans and programmes’ refers to any regulatory measure which, by defining scrutiny rules and procedures applicable to the sector concerned, establishes a significant body of criteria and detailed rules for the development consent and implementation of one or more projects likely to have significant effects on the environment. (39)
70.      That interpretation is intended, on the one hand, to ensure that preconditions (criteria and detailed rules for granting development consent) are not set until their environmental effects have been assessed. (40) What matters, therefore, is whether the plan or programme sets preconditions – which bind the approval authority – for subsequent consent decisions.
71.      On the other hand, the interpretation is also intended to prevent, in the way of a de minimis rule (a ‘significant body’ of criteria), a situation in which the isolated establishment of individual criteria or detailed rules which do not relate to effects on the environment necessitates an environmental assessment. The decisive question whether the prescribed criteria and detailed rules attain the threshold of a significant body of criteria must be answered on the basis of a qualitative assessment. (41) It therefore comes down to whether the prescribed criteria and detailed rules are likely to have significant effects on the environment. (42)
72.      For the purpose of determining the significance of effects on the environment, it is possible to resort to the non-exhaustive criteria in Annex II to the SEA Directive. Accordingly, the Court too – without referring explicitly to the first indent of point 1 of Annex II – has indicated that the criteria and detailed rules may relate in particular to the location, nature, size and operating conditions of projects or the allocation of resources connected with those projects. (43)
73.      As the request for a preliminary ruling suggests, the regulations on artificial lighting and drainage installations for open-air car parks in particular, as well as the requirements relating to recharging points and bicycle parking facilities, could have effects on the environment. However, it is for the Conseil d’État (Council of State) to ascertain whether, thereby or through other content of the contested order, the criteria for a framework for future development consents (binding establishment of a significant body of criteria) are met. In particular, it will have to examine whether, in the context of the situation on the ground in Brussels, those regulations are likely to have significant effects on the environment.
The remarks on the binding nature of the operating conditions which it made in the request for a preliminary ruling, moreover, prompt the following observation:
74.      According to the Conseil d’État (Council of State), the operating conditions provide scope for the approval authority to derogate from some provisions. As the Conseil d’État (Council of State) rightly acknowledges, the scope for derogation dilutes the binding nature of the operating conditions. From which provisions the operating conditions provide scope for derogation is therefore the key question, for if the scope for derogation were to apply to precisely those criteria and detailed rules which may have significant effects on the environment, those very criteria and rules would lack binding force on the approval authority.
4.      Interim conclusion
75.      Consequently, Article 2(a) and Article 3(2)(a) of the SEA Directive must be interpreted as meaning that a national measure which only lays down operating conditions for car parks without prescribing rules relating to their location or maximum number must be classified as a plan or programme for the transport sector. The question whether an environmental assessment must be carried out for such a plan or programme, however, depends on whether the plan or programme imposes on the approval authority binding criteria and detailed rules which are likely to have significant effects on the environment.
B.      The second question
76.      In its second question, the Conseil d’État (Council of State) asks whether a national court may 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.
77.      Although a regulatory measure adopted in breach of the SEA Directive must, in principle, be suspended or repealed (see section
1 below), the Court, under certain conditions, exceptionally permits national courts to maintain the effects of such measures (see section
2).
Finally, some remarks are called for with regard to the application of those conditions (see section
3).
1.      Fundamental obligation to suspend or repeal the regulatory measure
78.      In answer to the question referred, it should be recalled, first of all, that the SEA Directive contains no provisions on the consequences of infringing the procedural provisions which it lays down. (44)
79.      That said, under the principle of cooperation in good faith laid down in Article 4(3) TEU, Member States are required to nullify the unlawful consequences of a breach of EU law. (45) The competent national authorities, including national courts before which an action has been brought against a national regulatory measure adopted in breach of EU law, are therefore required to take, within the sphere of their competence, all measures necessary to remedy the failure to carry out an environmental assessment. (46)
80.      The national court, acting within the limits of its jurisdiction, must therefore suspend or annul plans or programmes adopted in breach of the obligation to carry out an environmental assessment. (47)
2.      Exceptional maintenance of the effects of a regulatory measure
81.      Since the suspension or repeal of a national provision which is contrary to EU law may have adverse consequences, the Court has permitted derogations from that principle.
82.      Having initially set four conditions for such derogation, (48) it rightly stripped these down, in its judgment in A and Others (Wind turbines at Aalter and Nevele) to their core elements, namely: maintenance of the effects must be necessary to safeguard an overriding interest, specifically the continued application of an act of EU law for the protection of the environment (49) or the prevention of a significant disruption to the Member State’s energy supply. (50) Therefore, in particular, the derogation may last only as long as is necessary to remedy, by means of a subsequent environmental assessment, the procedural defect occurring at the time of adoption of the provision. (51)
83.      The request from the Conseil d’État (Council of State) prompts the observation that, in the judgment in
A and Others (Wind turbines at Aalter and Nevele), the Court does not cite as the basis of an overriding interest in the transposition of an act of EU law concerning protection of the environment the extent of the environmental disadvantages but rather the resulting transposition deficit. (52) Accordingly, where an obligation exists to transpose an act of EU law concerning protection of the environment and the Member State has infringed the procedural provisions of the SEA Directive when transposing it, the transposing measure may be maintained if a transposition deficit would otherwise arise.
84.      The request from the Conseil d’État (Council of State) for a preliminary ruling draws on the Court’s wording in the older judgments in
Inter-Environnement Wallonie and Terre wallonne and in
Association France Nature Environnement.  In those cases, the Court still required satisfaction of the condition that the legal vacuum would be more damaging to the environment in so far as annulment would result in lesser environmental protection and would thus run counter to the fundamental objective of the directive to be implemented. (53)
85.      The Court rightly chose not to repeat that wording in the judgment in
A and Others (Wind turbines at Aalter and Nevele), as the criterion of a transposition deficit is far more straightforward than the question whether repeal would run counter to the fundamental objective of the act of EU law. It has thus created greater legal certainty while making it easier for national courts to apply the law.
86.      Consequently, even minimal, geographically and substantively limited environmental disadvantages may suffice to maintain
the effects of a national regulatory measure.
3.      Remarks on the application of the criteria
87.      It is for the Conseil d’État (Council of State) to examine whether the conditions are met in the present case. In that regard, the following remarks should be made.
88.      According to the findings of the Conseil d’État (Council of State), the contested order partially transposes the Energy Performance of Buildings Directive. On that basis, the Conseil d’État (Council of State) raises the question whether it is contrary to the essential objective of that legislation that the transposition of the Energy Performance of Buildings Directive would no longer be ensured for some months in the sector for the operation of car parks in the Brussels Capital Region. (54) The Conseil d’État (Council of State) appears to infer implicitly from the fact that the contested order partially transposes the amendments to the Energy Performance of Buildings Directive that it constitutes a measure transposing EU law on environmental protection.
89.      That assumption on the part of the Conseil d’État (Council of State) is too sweeping.
90.      It should first be noted that the amendments to the Energy Performance of Buildings Directive fall within the scope of EU environmental protection law. Like the Energy Performance of Buildings Directive itself, they are not based on the environmental competence of the European Union conferred by Article 192 TFEU, but on its energy competence, conferred by Article 194 TFEU. According to recital 3 of the preamble to the Energy Performance Buildings Directive, however, the directive also serves to mitigate climate change and thus protect the environment and, according to recital 1 of the preamble to the amendments to the directive, the amendments share that objective. (55)
91.      However, the Conseil d’État (Council of State) will have to examine whether the provisions the effects of which it seeks to maintain transpose the amendments to the Energy Performance of Buildings Directive. Only to that extent does relevance attach to the question raised by the Conseil d’État (Council of State) as to whether the repeal runs counter to the implementation of the amendments to the Energy Performance of Buildings Directive.
92.      As far as can be seen, only the provisions on the establishment of vehicle charging points serve to transpose the amendments to the Energy Performance of Buildings Directive.
93.      Furthermore, the assumption made by the Conseil d’État (Council of State) that any annulment of the operating conditions would necessarily create a legal vacuum already appears questionable. (56) In that regard, it will be necessary to examine whether a consent practice such as that which existed before the adoption of the operating conditions cannot prevent the emergence of a legal vacuum at the time of transposition. Indeed, according to Belgium’s submissions and the discussions at the time when the contested regulatory measure was adopted, which are outlined in the request for a preliminary ruling, before the order was adopted the competent authorities were prescribing the operating conditions laid down in the order in each individual consent procedure. (57) It would be possible to revert to that practice, at least temporarily, for future consents.
4.      Interim conclusion
94.      If it is necessary to ensure the continued transposition of an act of EU law relating to protection of the environment, a national court may, therefore, apply a provision of its national law under which it may maintain, for a limited period, the effects of a regulatory measure adopted in breach of the procedural rules laid down in the SEA Directive. It may do so only for the period required for the competent authority to carry out an environmental assessment of the measure before redrafting it, if necessary.
V.      Conclusion
95.      I therefore propose that the Court answer the questions referred for a preliminary ruling as follows:
(1)      Article 2(a) and 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 must be interpreted as meaning that a national measure 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 be regarded as a plan or programme for the transport sector. The question whether an environmental assessment must be carried out for such a plan or programme, however, depends on whether the plan or programme imposes on the approval authority binding criteria and detailed rules which are likely to have significant effects on the environment.
(2)      Where it is necessary to ensure the continued transposition of an act of EU law relating to protection of the environment, a national court may apply a provision of its national law which empowers it to maintain, for a limited period, the effects of a regulatory measure adopted in breach of the procedural rules laid down in Directive 2001/42. It may do so only for the period required for the competent authority to carry out an environmental assessment of the measure before redrafting it, if necessary.
1      Original language: German.
2      ‘So assess therefore, who commit forever’ –
Das Lied von der Glocke, Friedrich Schiller.
3      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 (OJ 2001 L 197, p. 30).
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 amended by Directive 2014/52/EU (OJ 2014 L 124, p. 1).
5      Arrêté du Gouvernement de la Région de Bruxelles-Capitale du 25 février 2021 fixant des conditions générales et spécifiques d’exploitation applicables aux parking (Order of the Government of the Brussels Capital Region of 25 February 2021 laying down general and specific operating conditions for car parks), Moniteur Belge of 3 March 2021, p. 18655.
6      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 (OJ 2018 L 156, p. 75).
7      Directive 2010/31/EU of the European Parliament and of the Council of 19 May 2010 on the energy performance of buildings (OJ 2010 L 153, p. 13).
8      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).
9      Judgments of 25 June 2020, A and Others (Wind turbines at Aalter and Nevele) (C‑24/19, EU:C:2020:503, paragraph 52); of 12 June 2019, CFE (C‑43/18, EU:C:2019:483, paragraph 54); of 12 June 2019, Terre wallonne (C‑321/18, EU:C:2019:484, paragraph 34); of 7 June 2018, Thybaut and Others (C‑160/17, EU:C:2018:401, paragraph 43); and of 22 March 2012, Inter-Environnement Bruxelles and Others (C‑567/10, EU:C:2012:159, paragraph 31).
10      Order for reference, p. 30.
11      See my previous Opinions in D’Oultremont and Others (C‑290/15, EU:C:2016:561, point 28) and in joined cases Terre wallonne and Inter-Environnement Wallonie (C-105/09 and C-110/09, EU:C:2010:120, point 38).
12      Order for reference, p. 21; Observations of the Kingdom of Belgium, paragraphs 21 and 23.
13      Proposal for a Council Directive on the assessment of the effects of certain plans and programmes on the environment of 4 December 1996 (COM(96) 511 final, p. 18).
14      Proposal for a Council Directive on the assessment of the effects of certain plans and programmes on the environment of 4 December 1996 (COM(96) 511 final, p. 2).
15      Opinion of the Committee on Economic and Monetary Affairs and Industrial Policy in the report on the proposal for a Council Directive on the assessment of the effects of certain plans and programmes on the environment of 25 June 1998 (A4/1998/245).
16      Legislative resolution embodying Parliament’s opinion on the proposal for a Council Directive on the assessment of the effects of certain plans and programmes on the environment of 20 October 1998 (OJ 1998 C 341, p. 22).
17      Amended proposal for a Council Directive on assessment of the effects of certain plans and programmes on the environment (COM(1999) 73 final) of 22 February 1999 (OJ 1999 C 83, pp. 15-16).
18      Amended proposal for a Council Directive on assessment of the effects of certain plans and programmes on the environment (COM(1999) 73 final) of 22 February 1999 (OJ 1999 C 83, pp. 15-16).
19      Common Position adopted by the Council on 30 March 2000 with a view to the adoption of a Directive of the European Parliament and of the Council on the assessment of the effects of certain plans and programmes on the environment (5685/1/00 REV 1, pp. 7-8).
20      Judgment of 11 September 2012, Nomarchiaki Aftodioikisi Aitoloakarnanias and Others (C‑43/10, EU:C:2012:560, paragraph 95).
21      See judgment of 22 March 2012, Inter-Environnement Bruxelles and Others (C‑567/10, EU:C:2012:159, paragraphs 28 and 29).
22      Judgment of 27 October 2016, D’Oultremont and Others (C‑290/15, EU:C:2016:816, paragraph 45).
23      Judgment of 27 October 2016, D’Oultremont and Others (C‑290/15, EU:C:2016:816, paragraph 46).
24      Judgment of 17 June 2010, Terre wallonne and Inter-Environnement Wallonie (C‑105/09 and C‑110/09, EU:C:2010:355, paragraphs 41-42).
25      Order for reference, p. 19; Observations of the Kingdom of Belgium, paragraphs 43-44.
26      This regulatory technique results from the distinction made in the legislative procedure between definition and scope. Both the Commission’s original draft and its amended draft defined ‘plans and programmes’ on the basis of the criteria which determine the scope of the SEA Directive in Article 3 of the version in force. See the references in footnotes 10 and 14 above.
27      Judgment of 7 June 2018, Inter-Environnement Bruxelles and Others (C‑671/16, EU:C:2018:403, paragraph 60); see also judgment of 25 June 2020, A and Others (Wind turbines at Aalter and Nevele) (C‑24/19, EU:C:2020:503, paragraph 61).
28      Judgment of 7 June 2018, Inter-Environnement Bruxelles and Others (C‑671/16, EU:C:2018:403, paragraph 60); see also judgment of 25 June 2020, A and Others (Wind turbines at Aalter and Nevele) (C‑24/19, EU:C:2020:503, paragraph 61).
29      Convention on access to information, public participation in decision-making and access to justice in environmental matters of 1998 (OJ 2005 L 124, p. 4), adopted by Council Decision 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p. 1).
30      Order for reference, pp. 36-37.
31      Judgment of 22 February 2022, Bund Naturschutz in Bayern (C‑300/20, EU:C:2022:102, paragraph 49), with references to the judgments of 25 June 2020, A and Others (Wind turbines at Aalter and Nevele) (C‑24/19, EU:C:2020:503, paragraph 66) and of 27 October 2016, D’Oultremont and Others (C‑290/15, EU:C:2016:816, paragraph 44).
32      Judgment of 22 February 2022, Bund Naturschutz in Bayern (C‑300/20, EU:C:2022:102, paragraph 53).
33      Order for reference, pp. 36-37.
34      See judgments of 7 June 2018, Inter-Environnement Bruxelles and Others (C‑671/16, EU:C:2018:403, paragraph 55), and of 27 October 2016, D’Oultremont and Others (C‑290/15, EU:C:2016:816, paragraph 48), as well as my Opinions in Inter-Environnement Bruxelles and Others (C‑671/16, EU:C:2018:39, point 25) and in D’Oultremont and Others (C‑290/15, EU:C:2016:561, point 55).
35      Judgments of 22 February 2022, Bund Naturschutz in Bayern (C‑300/20, EU:C:2022:102, paragraph 50), and of 7 June 2018, Inter-Environnement Bruxelles and Others (C‑671/16, EU:C:2018:403, paragraph 43) and Thybaut and Others (C‑160/17, EU:C:2018:401, paragraph 48).
36      The judgment in Inter-Environnement Bruxelles and Others concerned a regional urban planning regulation, the judgment in
Thybaut concerned an urban land consolidation area, and the judgment in
Bund Naturschutz in Bayern concerned the designation of a landscape conservation area.
37      Proposal for a Council Directive on the assessment of the effects of certain plans and programmes on the environment of 4 December 1996 (COM(96) 511 final, p. 2). See also the plan and programme types listed by the Commission on p. 3 to illustrate the scope of its proposal.
38      The Court’s wording is somewhat unfortunate in so far as, in the judgment in D’Oultremont and Others, it has referred to the concept of ‘plans and programmes’. As is apparent from the context of the case-law cited in footnote 34, however, the Court’s considerations actually flesh out the criterion of the ‘framework for future development consent of projects’.
39      Judgments of 9 March 2023, An Bord Pleanála and Others (Site de St Teresa’s Gardens) (C‑9/22, EU:C:2023:176, paragraph 38); of 22 February 2022, Bund Naturschutz in Bayern (C‑300/20, EU:C:2022:102, paragraph 60); and of 25 June 2020, A and Others (Wind turbines at Aalter and Nevele) (C‑24/19, EU:C:2020:503, paragraph 67).
40      Judgments of 22 February 2022, Bund Naturschutz in Bayern (C‑300/20, EU:C:2022:102, paragraph 61), and of 25 June 2020, A and Others (Wind turbines at Aalter and Nevele) (C‑24/19, EU:C:2020:503, paragraph 68).
41      Judgments of 8 May 2019, ‘Verdi Ambiente e Società – Aps Onlus’ and Others (C‑305/18, EU:C:2019:384, paragraph 51); of 7 June 2018, Inter-Environnement Bruxelles and Others (C‑671/16, EU:C:2018:403, paragraph 55); and of 7 June 2018, Thybaut and Others (C‑160/17, EU:C:2018:401, paragraph 55); see my preceding Opinion in Inter-Environnement Bruxelles and Others (C‑671/16, EU:C:2018:39, point 26).
42      Judgments of 22 February 2022, Bund Naturschutz in Bayern (C‑300/20, EU:C:2022:102, paragraph 61) and of 25 June 2020, A and Others (Wind turbines at Aalter and Nevele) (C‑24/19, EU:C:2020:503, paragraph 68).
43      Judgment of 22 February 2022, Bund Naturschutz in Bayern (C‑300/20, EU:C:2022:102, paragraph 62).
44      Judgments of 25 June 2020, A and Others (Wind turbines at Aalter and Nevele) (C‑24/19, EU:C:2020:503, paragraph 82), and of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne (C‑41/11, EU:C:2012:103, paragraph 42).
45      Judgments of 25 June 2020, A and Others (Wind turbines at Aalter and Nevele) (C‑24/19, EU:C:2020:503, paragraph 83), and of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne (C‑41/11, EU:C:2012:103, paragraph 43).
46      Judgments of 25 June 2020, A and Others (Wind turbines at Aalter and Nevele) (C‑24/19, EU:C:2020:503, paragraph 83), and of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne (C‑41/11, EU:C:2012:103, paragraphs 44-45).
47      Judgments of 25 June 2020, A and Others (Wind turbines at Aalter and Nevele) (C‑24/19, EU:C:2020:503, paragraph 83), and of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne (C‑41/11, EU:C:2012:103, paragraph 46).
48      Judgments of 28 July 2016, Association France Nature Environnement (C‑379/15, EU:C:2016:603, paragraph 43), and of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne (C‑41/11, EU:C:2012:103, paragraph 63).
49      Judgment of 25 June 2020, A and Others (Wind turbines at Aalter and Nevele) (C‑24/19, EU:C:2020:503, paragraph 90).
50      Judgment of 25 June 2020, A and Others (Wind turbines at Aalter and Nevele) (C‑24/19, EU:C:2020:503, paragraph 92).
51      Judgment of 25 June 2020, A and Others (Wind turbines at Aalter and Nevele) (C‑24/19, EU:C:2020:503, paragraph 94).
52      Judgment of 25 June 2020, A and Others (Wind turbines at Aalter and Nevele) (C‑24/19, EU:C:2020:503, paragraph 90).
53      Judgments of 28 July 2016, Association France Nature Environnement (C‑379/15, EU:C:2016:603, paragraph 41), and of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne (C‑41/11, EU:C:2012:103, paragraph 61).
54      Order for reference, p. 42.
55      Similarly, judgment of 25 June 2020, A and Others (Wind turbines at Aalter and Nevele) (C‑24/19, EU:C:2020:503, paragraph 91).
56      Order for reference, p. 42.
57      Order for reference, p. 20; Observations of the Kingdom of Belgium, paragraphs 37 to 39.