Inter-Environnement Bruxelles ASBL and Others v Région de Bruxelles-Capitale.
Date: 2018-06-07
29


The fact that a national court has, formally speaking, worded a question referred for a preliminary ruling with reference to certain provisions of EU law does not preclude this Court from providing the national court with all the elements of interpretation that may be of assistance in adjudicating on the case pending before it, whether or not that court has referred to them in its questions. In that regard, it is for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision referring the questions, the points of EU law which require interpretation, having regard to the subject matter of the dispute (judgment of 22 June 2017, E.ON Biofor Sverige, C‑549/15, EU:C:2017:490, paragraph 72 and the case-law cited).
30


In that regard, it follows from Article 3 of the SEA Directive that, on a proper construction of that provision, the obligation to subject a specific plan or programme to an environmental assessment is conditional upon the plan or programme covered by that provision being likely to have significant environmental effects.
32


As a preliminary point, it should first of all be borne in mind that, as is apparent from recital 4 of the SEA Directive, environmental assessment is an important tool for integrating environmental considerations into the preparation and adoption of certain plans and programmes.
33


Next, under Article 1 thereof, the objective of that directive is to provide for a high level of protection of the environment and to contribute to the integration of environmental considerations into the preparation and adoption of plans and programmes with a view to promoting sustainable development, by ensuring that, in accordance with that directive, an environmental assessment is carried out of certain plans and programmes which are likely to have significant effects on the environment (judgment of 21 December 2016, Associazione Italia Nostra Onlus, C‑444/15, EU:C:2016:978, paragraph 47).
34


Lastly, given the objective of that directive, which is to provide for such a high level of protection of the environment, the provisions which delimit the directive’s scope, in particular those setting out the definitions of the measures envisaged by the directive, must be interpreted broadly (judgment of 27 October 2016, D’Oultremont and Others, C‑290/15, EU:C:2016:816, paragraph 40 and the case-law cited).
37


The Court has interpreted that provision to mean 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 the SEA Directive and, accordingly, be subject to an assessment of their environmental effects in the circumstances which it lays down (judgment of 22 March 2012, Inter-Environnement Bruxelles and Others, C‑567/10, EU:C:2012:159, paragraph 31).
38


Excluding from the scope of the SEA Directive those plans and programmes whose adoption is not compulsory would compromise the practical effect of that directive, having regard to its objective, which consists in providing for a high level of protection of the environment (see, to that effect, judgment of 22 March 2012, Inter-Environnement Bruxelles and Others, C‑567/10, EU:C:2012:159, paragraphs 28 and 30).
39


In the present case, it follows from the findings of the referring court that the contested decree was adopted by a regional authority on the basis of Article 88 et seq. of the CoBAT.
40


Accordingly, the conditions set out in paragraph 36 above are satisfied.
41


It should be noted that Article 3(2)(a) of the SEA Directive provides that a systematic environmental assessment is to be carried out for all plans and programmes which (i) are prepared for certain sectors and (ii) set the framework for future development consent of projects listed in Annexes I and II to the EIA Directive (see, to that effect, judgment of 17 June 2010, Terre wallonne and Inter-Environnement Wallonie, C‑105/09 and C‑110/09, EU:C:2010:355, paragraph 43).
46


Concerning the second of those conditions, in order to establish whether regional town planning regulations, such as those at issue in the main proceedings, set the framework for future development consent of projects listed in Annexes I and II to the EIA Directive, it is necessary to examine the content and purpose of those regulations, taking into account the scope of the environmental assessment of projects as provided for by that directive (see, to that effect, judgment of 17 June 2010, Terre wallonne and Inter-Environnement Wallonie, C‑105/09 and C‑110/09, EU:C:2010:355, paragraph 45).
53


In the second place, regarding the question whether the contested decree sets the framework for future development consent of such projects, the Court has already held that the notion 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 likely to have significant effects on the environment (judgment of 27 October 2016, D’Oultremont and Others, C‑290/15, EU:C:2016:816, paragraph 49 and the case-law cited).
54


That interpretation of the concept of ‘plans and programmes’ is intended to ensure, as was noted by the Advocate General in point 23 of her Opinion, that provisions which are likely to have significant effects on the environment are subject to an environmental assessment.
55


Therefore, as was noted by the Advocate General in points 25 and 26 of her Opinion, 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 the SEA Directive by splitting measures, thereby reducing the practical effect of that directive (see, to that effect, judgment of 27 October 2016, D’Oultremont and Others, C‑290/15, EU:C:2016:816, paragraph 48 and the case-law cited).
58


Such criteria and detailed rules are, as has been emphasised by the Commission, likely to have an effect on lighting, wind, the urban landscape, air quality, biodiversity, water management, the sustainability of buildings and, more generally, emissions within the area concerned. More particularly, as is stated in the preamble of the contested decree, the size and layout of high rise buildings are likely to give rise to undesirable effects in terms of shade and wind.
60


Such a finding cannot be called in question by the objection raised by the Belgian Government relating to the general nature of the regulations at issue in the main proceedings. Indeed, besides the fact that it is apparent from the actual wording of the first indent of Article 2(a) of the SEA Directive that the notion of ‘plans and programmes’ can cover normative acts adopted by law or regulation, 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. Moreover, the fact that RZTPRs, such as those at issue in the main proceedings, contain general rules, express some abstract ideas, and pursue an objective of transforming an area is illustrative of their planning and programming aspect and does not prevent them from being included in the definition of ‘plans and programmes’ (see, to that effect, judgment of 27 October 2016, D’Oultremont and Others, C‑290/15, EU:C:2016:816, paragraphs 52 and 53).
62


It should be borne in mind that the fundamental objective of the SEA 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 (see, to that effect, judgment of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne, C‑41/11, EU:C:2012:103, paragraph 40 and the case-law cited).
63


In that regard, it is apparent from Article 6(2) of that directive that the environmental assessment is supposed to be carried out as soon as possible so that its conclusions may still have an influence on any potential decision-making. Indeed, it is at that stage that the various alternatives may be analysed and strategic choices may be made.