Request for a preliminary ruling from the Raad voor Vergunningsbetwistingen (Belgium) lodged on 15 January 2019 — A, B, C, D, E v Gewestelijke stedenbouwkundige ambtenaar van het departement Ruimte Vlaanderen, afdeling Oost-Vlaanderen

(Case C-24/19)

(2019/C 139/28)

Language of the case: Dutch

Referring court

Raad voor Vergunningsbetwistingen

Parties to the main proceedings

Applicants: A, B, C, D, E

Defendant: Gewestelijke stedenbouwkundige ambtenaar van het departement Ruimte Vlaanderen, afdeling Oost-Vlaanderen

Questions referred

Do Article 2(a) and Article 3(2)(a) of Directive 2001/42/EC (1) (‘the SEA Directive) mean that Article 99 of the besluit van de Vlaamse regering van 23 december 2011 tot wijziging van het besluit van de Vlaamse regering van 6 februari 1991 houdende de vaststelling van het Vlaams reglement betreffende de milieuvergunning en van het besluit van de Vlaamse regering van 1 juni 1995 houdende algemene en sectorale bepalingen inzake milieuhygiëne (Order of the Flemish Government of 23 December 2011 amending the Order of the Flemish Government of 6 February 1991 on the adoption of Flemish regulations concerning environmental consent and of the Order of the Flemish Government of 1 June 1995 on general and sectoral provisions relating to environmental health), as regards the updating of the aforementioned Orders in keeping with the evolution of technology, which introduces into VLAREM II Section 5.20.6 on installations for the generation of electricity by means of wind energy, and the Omzendbrief ‘Afwegingskader en randvoorwaarden voor de inplanting van windturbines’ (Circular “Assessment framework and preconditions for the installation of wind turbines) of 2006 [together referred to as ‘the instruments in question’], which both contain various provisions regarding the installation of wind turbines, including measures on safety, and standards relating to shadow flicker and noise levels, having regard to town and country planning zones, must be classified as a ‘plan or programme’ within the meaning of the provisions of the Directive? If it appears that an environmental assessment should have been carried out before the adoption of the instruments in question, can the Raad (Council) modulate the legal effects of the illegal nature of those instruments in time? To that end, a number of sub-questions must be asked:

1. Can a policy instrument such as the present Circular, which the public authority concerned is competent to draw up on the basis of its discretionary and policy-making powers, so that the competent authority was not actually designated to draw up the ‘plan or programme’, and in respect of which there is also no provision for a formal drafting procedure, be regarded as a plan or programme within the meaning of Article 2(a) of the SEA Directive?

2. Is it sufficient that a policy instrument or general rule, such as the instruments in question, partially curtails the margin of appreciation of a public authority responsible for granting development consent, in order to be considered a ‘plan or programme’ within the meaning of Article 2(a) of the SEA Directive, even if they do not represent a requirement, or a necessary condition, for the granting of consent or are not intended to constitute a framework for future development consent, notwithstanding the fact that the European legislature has indicated that that purpose is an element of the definition of ‘plans and programmes’?

3. Can a policy instrument such as the Circular in question, the format of which is drawn up on grounds of legal certainty and thus constitutes a completely voluntary decision, be regarded as a ‘plan or programme’ within the meaning of Article 2(a) of the SEA Directive, and does such an interpretation not run counter to the case-law of the Court of Justice that a purposive interpretation of a directive may not deviate fundamentally from the clearly expressed will of the EU legislature?

4. Can Section 5.20.6 VLAREM II, where there was no mandatory requirement to draw up the rules contained therein, be defined as a ‘plan or programme’ within the meaning of Article 2(a) of the SEA Directive, and does such an interpretation not run counter to the case-law of the Court of Justice that a purposive interpretation of a directive may not deviate fundamentally from the clearly expressed will of the EU legislature?

5. Can a policy instrument and a normative government Order, such as the instruments in question, which have a limited indicative value, or at least do not constitute a framework from which any right to execute a project may be derived and from which no right to any framework, as a measure by which projects may be approved, may be derived, be regarded as a ‘plan or programme’ that constitute the ‘framework for future development consent’ within the meaning of Article 2(a) and 3(2) of the SEA Directive, and does such an interpretation not run counter to the case-law of the Court of Justice that a purposive interpretation of a directive may not deviate fundamentally from the clearly expressed will of the EU legislature?

6. Can a policy instrument such as Circular: EME/2006/01- RO/2006/02 which has a purely indicative value and/or a normative government Order such as Section 5.20.6 VLAREM II that only sets a minimum threshold for development consent and in addition operates fully autonomously as a general rule, both of which only contain a limited number of criteria and modalities, and neither of which is the only determinant for even a single criterion or modality, and in relation to which it could be argued that, on the basis of objective information, it can be excluded that they are likely to have significant effects on the environment, be regarded as a”plan or programme’ on a joint reading of Article 2(a) and Article 3(1) and (2) of the SEA Directive, and can they thus be regarded as acts which, by the adoption of rules and control procedures applicable to the sector concerned, establish a whole package of criteria and modalities for the approval and execution of one or more projects that are likely to have significant effects on the environment?

7. If the answer to the previous question is in the negative, can a court or tribunal determine this itself, after the Order or the pseudo-legislation (such as the VLAREM standards and the Circular in question) has been adopted?

8. Can a court or tribunal, if it has only indirect jurisdiction through an exception being raised, the result of which applies inter partes, and if the answer to the questions referred for a preliminary ruling shows that the instruments in question are illegal, order that the effects of the unlawful Order and/or the unlawful Circular be maintained if the unlawful instruments contribute to an objective of environmental protection, as also pursued by a directive within the meaning of Article 288 TFEU, and if the requirements laid down in EU law for such maintenance (as laid down in the judgment in Association France Nature Environnement, [Case C-379/15]) have been met?

9. If the answer to Question 8 is in the negative, can a court or tribunal order that the effects of the contested project be maintained in order to comply indirectly with the requirements imposed by EU law (as laid down in the judgment in Association France Nature Environnement) for the continued maintenance of the legal effects of plans or programmes that do not conform to the SEA Directive?

(1) 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).