Order of the Court (Fourth Chamber) of 17 November 2011 – Le Poumon vert de la Hulpe and Others v Région wallonne

(Joined Cases C-177/09 to C-179/09)

Assessment of the effects of projects on the environment – Directive 85/337/EEC – Field of application – Concept of ‘specific act of national legislation’ – Aarhus Convention – Access to justice in environmental matters – Extent of the right to a review procedure in respect of a legislative act

1. Environment – Assessment of the effects of certain projects on the environment – Directive 85/337 – Field of application – Project adopted by an act of national legislation – Not included – Conditions – Determination by the national court (Council Directive 85/337, as amended by Directive 2003/35, Art. 1(5)) (see para. 37, operative part 1)

2. Environment – Assessment of the effects of certain projects on the environment – Directive 85/337 – Project adopted by an act of national legislation falling within the field of application of the directive – Right to challenge that act – Scope (Council Directive 85/337, as amended by Directive 2003/35, Art. 10; Council Decision 2005/370) (see para. 46, operative part 2)

Re:

References for a preliminary ruling – Conseil d’État – Interpretation of Articles 1, 5, 6, 7, 8 and 10a 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), as amended by Council Directive 97/11/EC of 3 March 1997 (OJ 1997 L 73, p. 5) and Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending Directives 85/337/EEC and 96/61/EC (OJ 2003 L 156, p. 17) – Interpretation of Articles 6 and 9 of the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters, concluded on 25 June 1998 and approved, on behalf of the European Community, by Council Decision 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p. 1) – Recognition, as specific acts of national legislation, of certain consents ‘ratified’ by decree in respect of which there are overriding reasons relating to the general interest – Lack of a full right to a review procedure in respect of a decision to authorise projects capable of having significant effects on the environment – Whether the existence of such a right is optional or mandatory – Environmental consent granted for the operation of an administrative and training centre in la Hulpe.

Operative part

1. Article 1(5) 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, as amended by Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003, must be interpreted as meaning that only projects adopted in detail by a specific legislative act, so that the objectives of that directive have been achieved by the legislative process, are excluded from the directive’s ambit. It is for the national court to ascertain whether those two conditions have been satisfied, taking account both of the content of the legislative act adopted and of the entire legislative process which led to its adoption, in particular the preparatory documents and parliamentary debates. In that regard, a legislative act which does no more than simply ‘ratify’ a pre-existing administrative act, by merely referring to overriding reasons relating to the general interest without a substantive legislative process enabling those conditions to be fulfilled having first been begun, cannot be regarded as a specific legislative act for the purposes of that provision and is therefore not sufficient to exclude a project from the ambit of Directive 85/337, as amended by Directive 2003/35.

2. Article 9(2) of the Convention on access to information, public participation in decision making and access to justice in environmental matters, concluded on 25 June 1998 and approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005, and Article 10a of Directive 85/337, as amended by Directive 2003/35, must be interpreted as meaning that:

– when a project falling within the ambit of those provisions is adopted by a legislative act, it must be possible, under the national procedural rules, for the question whether that legislative act satisfies the conditions laid down in Article 1(5) of that directive to be submitted to a court of law or an independent and impartial body established by law;

– if no review procedure of the nature and scope set out above were available in respect of such an act, any national court before which an action falling within its jurisdiction is brought would have the task of carrying out the review described in the previous indent and acting upon it, if need be by disapplying that legislative act.