A and Others v Gewestelijke stedenbouwkundige ambtenaar van het departement Ruimte Vlaanderen, afdeling Oost-Vlaanderen.
Date: 2020-06-25
35


As regards the second of those conditions, which is set out in the second indent of Article 2(a) of Directive 2001/42, it is clear from the established case-law of the Court that plans and programmes whose adoption is regulated by national legislative or regulatory provisions, which determine the competent authorities for adopting them and the procedure for preparing them, must be regarded as ‘required’ within the meaning, and for the application, of Directive 2001/42 (judgments of 22 March 2012, Inter-Environnement Bruxelles and Others, C‑567/10, EU:C:2012:159, paragraph 31; of 7 June 2018, Thybaut and Others, C‑160/17, EU:C:2018:401, paragraph 43; and of 12 June 2019, Terre wallonne, C‑321/18, EU:C:2019:484, paragraph 34). Thus the Court has held that, in order to ensure the effectiveness of that provision having regard to its objective, a measure must be regarded as ‘required’ where the legal basis of the power to adopt the measure is found in a particular provision, even if the adoption of that measure is not compulsory (see, to that effect, judgment of 7 June 2018, Inter-Environnement Bruxelles and Others, C‑671/16, EU:C:2018:403, paragraphs 38 to 40).
37


In that regard, it must be recalled that the interpretation of a provision of EU law requires account to be taken not only of its wording, but also of its context, and the objectives and purpose pursued by the act of which it forms part. The legislative history of a provision of EU law may also reveal elements that are relevant to its interpretation (see, to that effect, judgment of 9 October 2019, BGL BNP Paribas, C‑548/18, EU:C:2019:848, paragraph 25 and the case-law cited).
39


All the official languages of the European Union are the authentic languages of the acts in which they are drafted and, therefore, all the language versions of an act of the European Union must, as a matter of principle, be recognised as having the same value (see, to that effect, judgments of 17 November 2011, Homawoo, C‑412/10, EU:C:2011:747, paragraph 28 and the case-law cited, and of 20 February 2018, Belgium v Commission, C‑16/16 P, EU:C:2018:79, paragraph 49 and the case-law cited).
43


Secondly, Article 2(a) of Directive 2001/42 includes not only the preparation and adoption of ‘plans and programmes’, but also modifications to them (see, to that effect, judgments of 22 March 2012, Inter-Environnement Bruxelles and Others, C‑567/10, EU:C:2012:159, paragraph 36, and of 10 September 2015, Dimos Kropias Attikis, C‑473/14, EU:C:2015:582, paragraph 44). As the Advocate General stated in point 68 of his Opinion, that latter case, in which the modification of the plan or programme concerned is also likely to have significant environmental effects, within the meaning of Article 3(1) of Directive 2001/42, most often arises when an authority decides of its own initiative to carry out such a modification, without being obliged to do so.
46


To that end, as Article 1 states, the fundamental objective of Directive 2001/42 is to subject plans and programmes that are likely to have significant environmental effects to an environmental assessment during their preparation and before their adoption (judgments of 22 September 2011, Valčiukienė and Others, C‑295/10, EU:C:2011:608, paragraph 37, and of 7 June 2018, Thybaut and Others, C‑160/17, EU:C:2018:401, paragraph 61 and the case-law cited).
47


It must also be recalled that Directive 2001/42 was adopted on the basis of Article 175(1) EC, concerning environmental actions to be taken by the Community in order to achieve the objectives of Article 174 EC. Article 191 TFEU, which corresponds to Article 174 EC, provides, in paragraph 2 thereof, that the European Union’s policy on the environment aims for a ‘high level of protection’ taking into account the diversity of situations in the various regions of the Union. Article 191(1) TFEU authorises the adoption of measures covering, inter alia, certain specified aspects of the environment, such as the preservation, protection and improvement of the quality of the environment, the protection of human health and the prudent and rational utilisation of natural resources. In the same way, Article 3(3) TEU provides that the European Union works in particular for ‘a high level of protection and improvement of the quality of the environment’ (see, to that effect, judgment of 21 December 2016, Associazione Italia Nostra Onlus, C‑444/15, EU:C:2016:978, paragraphs 41 to 43 and the case-law cited).
50


It follows that, since a strict interpretation, which limits the second condition of Article 2(a) of Directive 2001/42 only to ‘plans and programmes’ whose adoption is compulsory, could render its scope marginal, the Court favoured the need to ensure the effectiveness of that condition by adopting a broader definition of the term ‘required’ (see, to that effect, judgment of 22 March 2012, Inter-Environnement Bruxelles and Others, C‑567/10, EU:C:2012:159, paragraph 30).
57


In that regard, it should be recalled that the concept of ‘plans and programmes’ includes not only their preparation, but also their modification (see, to that effect, judgment of 12 June 2019, CFE, C‑43/18, EU:C:2019:483, paragraph 71 and the case-law cited).
58


In particular, the Court has already held that although such a measure does not, and cannot, lay down positive rules, the possibility which it creates of allowing a derogation from the rules in force to be obtained more easily changes the legal process and consequently brings such a measure within the scope of Article 2(a) of Directive 2001/42 (see, to that effect, judgment of 7 June 2018, Thybaut and Others, C‑160/17, EU:C:2018:401, paragraph 58).
61


It is also necessary to observe that the general nature of the Order and the Circular of 2006 do not preclude those instruments from being classified as ‘plans and programmes’ within the meaning of Article 2(a) of Directive 2001/42. While it is clear from the wording of that provision that the concept of ‘plans and programmes’ can cover normative instruments that are legislative, regulatory or administrative, that directive does not contain any special provisions in relation to policies or general legislation that would call for them to be distinguished from plans and programmes for the purpose of that directive. The fact that a national measure is to some extent abstract and pursues an objective of transforming an existing geographical zone is illustrative of its planning and programming aspect and does not prevent it from being included in the concept of ‘plans and programmes’ (see, to that effect, judgment of 7 June 2018, Inter-Environnement Bruxelles and Others, C‑671/16, EU:C:2018:403, paragraph 60 and the case-law cited).
65


Article 3 of Directive 2001/42 makes the obligation to subject a specific plan or programme to an environmental assessment conditional upon the plan or programme covered by that provision being likely to have significant environmental effects (judgment of 7 June 2018, Inter-Environnement Bruxelles and Others, C‑671/16, EU:C:2018:403, paragraph 30). More specifically, Article 3(2)(a) of that directive provides that a systematic environmental assessment is to be carried out for all plans and programmes that are prepared for certain sectors and set the framework for future development consent of projects listed in Annexes I and II to Directive 2011/92 (judgment of 8 May 2019, Verdi Ambiente e Società (VAS) — Aps Onlus and Others, C‑305/18, EU:C:2019:384, paragraph 47).
67


In the second place, as regards the question whether such instruments set the framework for future development consent for projects, it must be noted that the concept of ‘plans and programmes’ relates to any measure which establishes, by defining rules and procedures for scrutiny applicable to the sector concerned, a significant body of criteria and detailed rules for the grant and implementation of one or more projects that are likely to have significant effects on the environment (judgments of 27 October 2016, D’Oultremont and Others, C‑290/15, EU:C:2016:816, paragraph 49; of 7 June 2018, Inter-Environnement Bruxelles and Others, C‑671/16, EU:C:2018:403, paragraph 53; and of 12 June 2019, CFE, C‑43/18, EU:C:2019:483, paragraph 61).
68


Such an interpretation is intended to ensure that provisions which are likely to have significant environmental effects are subject to an environmental assessment (see, to that effect, judgments of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne, C‑41/11, EU:C:2012:103, paragraph 42, and of 7 June 2018, Inter-Environnement Bruxelles and Others, C‑671/16, EU:C:2018:403, paragraph 54).
70


While the Order and the Circular of 2006 do not appear to constitute a complete set of standards in relation to the installation and operation of wind turbines, the Court has already had occasion to clarify that the concept of ‘a significant body of criteria and detailed rules’ must be construed qualitatively and not quantitatively. It is necessary to avoid strategies which may be designed to circumvent the obligations laid down in Directive 2001/42 by splitting measures, thereby reducing the practical effect of that directive (see, to that effect, judgments of 7 June 2018, Inter-Environnement Bruxelles and Others, C‑671/16, EU:C:2018:403, paragraph 55, and of 12 June 2019, CFE, C‑43/18, EU:C:2019:483, paragraph 64).
72


It is also appropriate to recall in that regard that, in paragraph 50 of the judgment of 27 October 2016, D’Oultremont and Others (C‑290/15, EU:C:2016:816), the Court held that a measure that set out standards, comparable to those laid down in the Order and the Circular of 2006, as regards the installation and operation of wind turbines, had a sufficiently significant importance and scope in the determination of the conditions applicable to the sector concerned and the choices, in particular those related to the environment, laid down through those standards, are designed to determine the conditions under which actual projects for the installation and operation of wind turbine sites might be authorised in the future.
76


While it is uncertain whether an instrument such as the Circular of 2006 is capable of producing compulsory legal effects for third parties, that circular cannot, however, subject to verification by the referring court as to its precise legal effect, be treated in the same way as provisions of purely indicative value, which do not meet the condition recalled in the preceding paragraph (see, to that effect, judgment of 12 June 2019, Terre wallonne, C‑321/18, EU:C:2019:484, paragraph 44).
82


In the absence of provisions in that directive on the consequences of infringing the procedural provisions which it lays down, it is for the Member States to take, within the sphere of their competence, all the general or particular measures necessary to ensure that all ‘plans’ or ‘programmes’ that are likely to have ‘significant environmental effects’, within the meaning of that directive, are subject to an environmental assessment, in accordance with the procedural requirements and the criteria laid down by that directive (see, to that effect, judgment of 28 July 2016, Association France Nature Environnement, C‑379/15, EU:C:2016:603, paragraph 30 and the case-law cited).
83


Under the principle of sincere cooperation provided for in Article 4(3) TEU, Member States are required to eliminate the unlawful consequences of such a breach of EU law. It follows that the competent national authorities, including national courts hearing an action against an instrument of national law adopted in breach of EU law, are therefore under an obligation to take all the necessary measures, within the sphere of their competence, to remedy the failure to carry out an environmental assessment. That may, for a ‘plan’ or ‘programme’ adopted in breach of the obligation to carry out an environmental assessment, consist, for example, in adopting measures to suspend or annul that plan or programme (see, to that effect, judgment of 28 July 2016, Association France Nature Environnement, C‑379/15, EU:C:2016:603, paragraphs 31 and 32), or in revoking or suspending consent already granted, in order to carry out such an assessment (see, to that effect, judgment of 12 November 2019, Commission v Ireland (Derrybrien Wind Farm), C‑261/18, EU:C:2019:955, paragraph 75 and the case-law cited).
84


It must be added that only the Court of Justice may, in exceptional cases, for overriding considerations of legal certainty, allow temporary suspension of the ousting effect of a rule of EU law with respect to national law that is contrary thereto. If national courts had the power to give provisions of national law primacy in relation to EU law contravened by those provisions, even temporarily, the uniform application of EU law would be undermined (judgment of 29 July 2019, Inter-Environnement Wallonie and Bond Beter Leefmilieu Vlaanderen, C‑411/17, EU:C:2019:622, paragraph 177 and the case-law cited).
88


If it proved to be correct that the construction of the wind farm project has not commenced, the maintenance of the effects of the consent of 30 November 2016 during the period of the environmental assessment prescribed by the Order and the Circular of 2006 would not in any event appear to be necessary (see, to that effect, judgments of 26 July 2017, Comune di Corridonia and Others, C‑196/16 and C‑197/16, EU:C:2017:589, paragraph 43, and of 28 February 2018, Comune di Castelbellino, C‑117/17, EU:C:2018:129, pargraph 30). The referring court would therefore have to annul the consent adopted on the basis of the ‘plan’ or ‘programme’ which was itself adopted in breach of the obligation to carry out an environmental assessment (see, by analogy, judgment of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne, C‑41/11, EU:C:2012:103, paragraph 46).
90


However, it has been held, in the first place, that, while taking into account the existence of an overriding consideration relating to the protection of the environment, a national court may exceptionally be authorised to make use of a national provision empowering it to maintain certain effects of a national measure the procedure for the adoption of which did not comply with Directive 2001/42, such as that referred to in paragraph 86 above, where there is a risk that the annulment of that measure could create a legal vacuum that is incompatible with that Member State’s obligation to adopt measures to transpose another act of EU law concerning the protection of the environment, such as Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources (OJ 1991 L 375, p. 1) (see, to that effect, judgments of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne, C‑41/11, EU:C:2012:103, paragraphs 56 and 63).
92


In the second place, in paragraph 179 of the judgment of 29 July 2019, Inter-Environnement WallonieandBond Beter Leefmilieu Vlaanderen (C‑411/17, EU:C:2019:622), the Court recognised that the security of electricity supply of the Member State concerned was also an overriding consideration. The Court nevertheless specified at the same time that considerations as to the security of electricity supply could justify maintaining the effects of national measures adopted in breach of the obligations under EU law only if, in the event that the effects of those measures were annulled or suspended, there was a genuine and serious threat of disruption to the electricity supply of the Member State concerned which could not be remedied by any other means or alternatives, particularly in the context of the internal market.
94


In any event, any possible the maintenance of the effects of those acts may last only as long as is strictly necessary to remedy the breach found (see, to that effect, judgments of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne, C‑41/11, EU:C:2012:103, paragraph 62, and of 29 July 2019, Inter-Environnement Wallonie and Bond Beter Leefmilieu Vlaanderen, C‑411/17, EU:C:2019:622, paragraph 181).