Inter-Environnement Wallonie ASBL and Terre wallonne ASBL v Région wallonne.
Date: 2012-02-28
35. According to settled case‑law, questions on the interpretation of European Union law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of European Union law that is sought bears no relation to the facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, most recently, Joined Cases C‑188/10 and C‑189/10 Melki and Abdeli  [2010] ECR I‑5667, paragraph 27 and the case‑law cited).
36. Moreover, according to settled case‑law, it is for the national court hearing a dispute to determine both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (Case C‑188/07 Commune de Mesquer  [2008] ECR I‑4501, paragraph 31 and the case‑law cited).
40. At the outset, it should be recalled that, as is apparent from Article 1 of Directive 2001/42, the fundamental objective of that directive is to ensure that plans and programmes which are likely to have significant effects on the environment are subject to an environmental assessment when they are prepared and prior to their adoption ( Terre wallonne and Inter-Environnement Wallonie , paragraph 32, and Case C‑295/10 Valčiukienė and Others  [2011] ECR I‑8819, paragraph 37).
41. The directive lays down minimum rules concerning the preparation of the environmental report, the carrying out of consultations, the taking into account of the results of the environmental assessment and the communication of information on the decision adopted at the end of the assessment ( Terre wallonne and Inter-Environnement Wallonie, paragraph 33).
42. 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’ likely to have ‘significant environmental effects’ within the meaning of Directive 2001/42 are subject to an environmental assessment prior to their adoption in accordance with the procedural requirements and the criteria laid down by that directive (see, by analogy, Case C‑72/95 Kraaijeveld and Others  [1996] ECR I‑5403, paragraph 61; Case C‑435/97 WWF and Others  [1999] ECR I‑5613, paragraph 70; and Case C‑201/02 Wells  [2004] ECR I‑723, paragraph 65).
43. It is clear from settled case‑law that, 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 European Union law (see, inter alia, Case 6/60 Humblet v Belgian State  [1960] ECR 559, p. 569, and Joined Cases C‑6/90 and C‑9/90 Francovich and Others  [1991] ECR I‑5357, paragraph 36). Such an obligation is owed, within the sphere of its competence, by every organ of the Member State concerned (Case C‑8/88 Germany  v Commission  [1990] ECR I‑2321, paragraph 13, and Wells , paragraph 64 and the case‑law cited).
44. It follows that where a ‘plan’ or ‘programme’ should, prior to its adoption, have been subject to an assessment of its environmental effects in accordance with the requirements of Directive 2001/42, the competent authorities are obliged to take all general or particular measures for remedying the failure to carry out such an assessment (see, by analogy, Wells , paragraph 68).
45. National courts before which an action against such a national measure has been brought are also under such an obligation, and, in that regard, it should be recalled that the detailed procedural rules applicable to such actions which may be brought against such ‘plans’ or ‘programmes’ are a matter for the domestic legal order of each Member State, under the principle of procedural autonomy of the Member States, provided that they are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the European Union legal order (principle of effectiveness) (see Wells , paragraph 67 and the case‑law cited).
46. Consequently, courts before which actions are brought in that regard must adopt, on the basis of their national law, measures to suspend or annul the ‘plan’ or ‘programme’ adopted in breach of the obligation to carry out an environmental assessment (see, by analogy, Wells , paragraph 65).
47. The fundamental objective of Directive 2001/42 would be disregarded if national courts did not adopt in such actions brought before them, and subject to the limits of procedural autonomy, the measures, provided for by their national law, that are appropriate for preventing such a plan or programme, including projects to be realised under that programme, from being implemented in the absence of an environmental assessment.
56. In view of the specific features of the present case as set out in paragraphs 50 to 55 of the present judgment, there is a risk that, in remedying the irregularity under Directive 2001/42 affecting the procedure by which the contested order was adopted by annulling that order, the referring court would create a legal vacuum incompatible with the obligation on the Member State concerned to adopt measures to transpose Directive 91/676 as well as the measures required of it in order to comply with the judgment in Commission  v Belgium .
57. In that regard, it should be noted that the referring court does not rely on economic grounds in order to be authorised to maintain the effects of the contested order, but refers only to the objective of protecting the environment, which constitutes one of the essential objectives of the European Union and is both fundamental and cross-cutting in nature (see, to that effect, Case C‑176/03 Commission  v Council  [2005] I‑7879, paragraphs 41 and 42).
61. Thirdly, annulment of the contested order must result in a legal vacuum in relation to the transposition of Directive 91/676 which would be more harmful to the environment, a matter which is for the referring court to determine. That would be the case if annulling the order resulted in a lower level of protection of waters against pollution caused by nitrates from agricultural sources, given that this would run specifically counter to the fundamental objective of that directive, which is to prevent such pollution.
62. Fourthly and finally, the effects of such a national measure can be exceptionally maintained only for the period of time which is strictly necessary to adopt the measures enabling the irregularity which has been established to be remedied.
63. In the light of the foregoing, the answer to the question referred is that where a national court has before it, on the basis of its national law, an action for annulment of a national measure constituting a ‘plan’ or ‘programme’ within the meaning of Directive 2001/42 and it finds that the ‘plan’ or ‘programme’ was adopted in breach of the obligation laid down by that directive to carry out a prior environmental assessment, that court is obliged to take all the general or particular measures provided for by its national law in order to remedy the failure to carry out such an assessment, including the possible suspension or annulment of the contested ‘plan’ or ‘programme’. However, in view of the specific circumstances of the main proceedings, the referring court can exceptionally be authorised to make use of its national provision empowering it to maintain certain effects of an annulled national measure in so far as:
– that national measure is a measure which correctly transposes Directive 91/676;
– the adoption and entry into force of the new national measure containing the action programme within the meaning of Article 5 of that directive do not enable the adverse effects on the environment resulting from the annulment of the contested measure to be avoided;
– annulment of the contested measure would result in a legal vacuum in relation to the transposition of Directive 91/676 which would be more harmful to the environment, in the sense that the annulment would result in a lower level of protection of waters against pollution caused by nitrates from agricultural sources and would thereby run specifically counter to the fundamental objective of that directive; and
– the effects of such a measure are exceptionally maintained only for the period of time which is strictly necessary to adopt the measures enabling the irregularity which has been established to be remedied.
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