EN Official Journal of the European Union C 73/7

Order of the Court (Fourth Chamber) of 17 November 2011 (references for a preliminary ruling from the Conseil d’État — Belgium) — Le Poumon vert de la Hulpe ASBL, Jacques Solvay de la Hulpe, Marie-Noëlle Solvay, Alix Walsh (C-177/09 and C-179/09), Jean-Marie Solvay de la Hulpe (C-177/09), Action et défense de l’environnement de la Vallée de la Senne et de ses affluents ASBL (ADESA), Réserves naturelles RNOB ASBL, Stéphane Banneux, Zénon Darquenne (C-178/09), Les amis de la Forêt de Soignes ASBL (C-179/09) v Région wallonne

(Joined Cases C-177/09 to C-179/09) (1)

(Assessment of the effects of projects on the environment - Directive 85/337/EEC - Scope - 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)

2012/C 73/11

Language of the case: French

Referring court

Conseil d’État

Parties to the main proceedings

Applicants: Le Poumon vert de la Hulpe ASBL, Jacques Solvay de la Hulpe, Marie-Noëlle Solvay, Alix Walsh (C-177/09 and C-179/09), Jean-Marie Solvay de la Hulpe (C-177/09), Action et défense de l’environnement de la Vallée de la Senne et de ses affluents ASBL (ADESA), Réserves naturelles RNOB ASBL, Stéphane Banneux, Zénon Darquenne (C-178/09), Les amis de la Forêt de Soignes ASBL (C-179/09)

Defendant: Région wallonne

Interveners: Codic Belgique SA, Federal Express European Services Inc. (FEDEX) (C-177/09 and C-179/09), Intercommunale du Brabant wallon (IBW) (C-178/09)

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 in the general interest? — Absence 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 of the order

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 the details of which have been adopted by a specific legislative act, in such a way that the objectives of that directive have been achieved by the legislative process, are excluded from the directive’s scope. It is for the national court to verify that 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 in the general interest without a substantive legislative process enabling those conditions to be fulfilled having first been commenced, 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 scope 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 scope of those provisions is adopted by a legislative act, the question whether that legislative act satisfies the conditions laid down in Article 1(5) of that directive must be capable of being submitted, under the national procedural rules, 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, as the case may be, drawing the necessary conclusions by disapplying that legislative act.

(1) OJ C 180, 1.8.2009.