Association France Nature Environnement v Premier ministre and Ministre de l’Écologie, du Développement durable et de lʼÉnergie.
Date: 2016-07-28
30


In paragraph 42 of that judgment, the Court decided that, there being no provisions in Directive 2001/42 on the consequences of infringing the procedural provisions laid down in that directive, 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 that directive are subject to an environmental assessment before being adopted in accordance with the procedural requirements and the criteria laid down by that directive.
31


In paragraph 43 of that judgment, the Court stated that, in accordance with settled case-law of the Court, Member States are required to nullify the unlawful consequences of a breach of EU law and that such an obligation is owed, within the sphere of its competence, by every organ of the Member State concerned.
32


In addition, it follows from paragraphs 44 to 46 of the same judgment that the obligation intended to remedy the failure to carry out an environmental assessment required by Directive 2001/42, including the possible suspension or annulment of the act vitiated by that defect, is also a matter for the national courts hearing an action against an act of domestic law adopted in breach of that directive. Consequently, those courts must take, on the basis of their national law, measures to suspend or annul a plan or programme adopted in breach of the obligation to carry out the environmental assessment required by that directive.
33


So far as concerns the concerns expressed by the referring court relating to possible adverse environmental consequences of an annulment of the domestic law provisions held to be incompatible with EU law, it is apparent from paragraphs 66 and 67 of the judgment of 8 September 2010 in Winner Wetten (C‑409/06, EU:C:2010:503) that the Court alone may, exceptionally and for overriding considerations of legal certainty, grant a provisional suspension of the ousting effect which a rule of EU law has on national law that is contrary thereto. If national courts had the power to give national provisions primacy in relation to EU law contrary to those national provisions, even provisionally, the uniform application of EU law would be damaged.
34


Nevertheless, and as regards the sphere under examination, the Court held in paragraph 58 of its judgment of 28 February 2012 in Inter-Environnement Wallonie and Terre wallonne (C‑41/11, EU:C:2012:103) that a national court may, in the light of the existence of an overriding consideration linked to environmental protection and provided that certain conditions defined by that judgment are satisfied, exceptionally be authorised to make use of its national provision enabling it to maintain certain effects of an annulled national measure. It is thus apparent from that judgment that the Court intended to afford, case by case and by way of exception, a national court the power to restructure the effects of annulment of a national provision held to be incompatible with EU law.
40


At all events, the exceptional power thus granted to the national court may be exercised only case by case, and not abstractly or generally. As the Court has already held, that power must be exercised in the light of the specific circumstances of the case pending before it (see, to that effect, judgment of 28 February 2012 in Inter-Environnement Wallonie and Terre wallonne, C‑41/11, EU:C:2012:103, paragraph 63).
43


It follows from the considerations above that the answer to the second question is that a national court may, when this is allowed by domestic law, exceptionally and case by case, limit in time certain effects of a declaration of the illegality of a provision of national law adopted in disregard of the obligations provided for by Directive 2001/42, in particular the obligations arising from Article 6(3) of the directive, provided that such a limitation is dictated by an overriding consideration linked to environmental protection and having regard to the specific circumstances of the case pending before it. That exceptional power may, however, be exercised only if all the conditions flowing from the judgment of 28 February 2012 in Inter-Environnement Wallonie and Terre wallonne (C‑41/11, EU:C:2012:103) are satisfied, namely:





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that the contested provision of national law constitutes a measure correctly transposing EU law on environmental protection;








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that the adoption and coming into force of a new provision of national law do not make it possible to avoid the damaging effects on the environment arising from the annulment of the contested provision of national law;








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that annulment of the contested provision of national law would have the effect of creating a legal vacuum concerning the transposition of EU law on environmental protection which would be more damaging to the environment, in the sense that that annulment would result in lesser protection and would thus run counter to the essential objective of the EU law; and








—


that any exceptional maintaining of the effects of the contested provision of national law lasts only for the period strictly necessary for the adoption of the measures making it possible to remedy the irregularity found.
46


It is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case 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 (judgment of 9 September 2015 in X and van Dijk, C‑72/14 and C‑197/14, EU:C:2015:564, paragraph 57).
48


In paragraph 16 of the judgment of 6 October 1982 in Cilfit and Others (283/81, EU:C:1982:335), the Court held, in that regard, that the correct application of EU law may be so obvious as to leave no scope for any reasonable doubt as to the way in which the question raised is to be resolved. Before it comes to the conclusion that such is the case, the national court ruling at last instance must be convinced that the matter is equally obvious to the courts of the other Member States and to the Court of Justice. Only if those conditions are satisfied may the national court refrain from submitting that question to the Court of Justice and take upon itself the responsibility for resolving it.
49


In addition, it is on the basis of the characteristics of EU law and the specific difficulties presented by its interpretation that it is for that national court to examine the extent to which it is not obliged to make a reference for a preliminary ruling to the Court. Accordingly, every provision of EU law, including the case-law of the Court in the relevant area, must be placed in its context and interpreted in the light of the provisions of EU law as a whole, regard being had to the objectives thereof and to its state of evolution at the date on which the provision in question is to be applied (see, to that effect, judgment of 6 October 1982 in Cilfit and Others, 283/81, EU:C:1982:335, paragraphs 17 and 20).
50


The Court thus held, in paragraph 21 of the judgment of 6 October 1982 in Cilfit and Others (283/81, EU:C:1982:335), that a court against whose decisions there is no judicial remedy under national law is required, when a question of EU law is raised before it, to fulfil its obligation to bring the matter before the Court of Justice, unless it has established that the correct application of EU law is so obvious as to leave no scope for any reasonable doubt and that the existence of such a possibility must be assessed in the light of the specific characteristics of EU law, the particular difficulties to which its interpretation gives rise and the risk of divergences in judicial decisions within the European Union.