1 This request for a preliminary ruling concerns the interpretation of Article 9a of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).
2 The request has been made in proceedings between the Provincie Oost-Vlaanderen (Province of East Flanders, Belgium) and Sogent, on the one hand, and KG and WA, on the other, concerning development consent granted for a project for the reconversion of a laundry site.
3 Article 4 of Directive 2011/92 provides: ‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10. 2. Subject to Article 2(4), for projects listed in Annex II, Member States shall determine whether the project shall be made subject to an assessment in accordance with Articles 5 to 10. Member States shall make that determination through: Member States may decide to apply both procedures referred to in points (a) and (b). … 4. Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. … 5. The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall be made available to the public and: …’
4 Article 9a of Directive 2011/92 is worded as follows: ‘Member States shall ensure that the competent authority or authorities perform the duties arising from this Directive in an objective manner and do not find themselves in a situation giving rise to a conflict of interest. Where the competent authority is also the developer, Member States shall at least implement, within their organisation of administrative competences, an appropriate separation between conflicting functions when performing the duties arising from this Directive.’
5 Recitals 25 and 26 of Directive 2014/52 state:
6 Article 4.3.3(2) of the decreet houdende algemene bepalingen inzake milieubeleid (Decree containing general provisions on environmental policy) of 5 April 1995 (Belgisch Staatsblad, 3 June 1998, p. 15971) provides: ‘In the cases referred to in Article 4.3.2(2bis) and (3bis), for which a [screening note of the effects of the project on the environment] has been drawn up, the authority deciding on the admissibility and completeness of the application for development consent … shall take a decision on the need to draw up an [environmental impact assessment report]. … …’
7 Article 9(2) of the decreet betreffende de omgevingsvergunning (Decree on the environmental permit) of 25 April 2014 (Belgisch Staatsblad, 23 October 2014, p. 82132), in the version applicable to the facts in the main proceedings (‘the Decree on the environmental permit’), provides: ‘A municipal environmental officer shall carry out the tasks referred to in this decree independently and neutrally. He or she shall not be prejudiced in the performance of those tasks.’
8 Article 15/1 of that decree, which is intended to transpose Article 9a of Directive 2011/92, provides: ‘However, for the perusal of and decision on a permit application for a project or for the change of a project, for which, according to Article 15, the municipal council is competent, the deputation is competent if the following two conditions are met: 1° the project requires an environmental impact assessment and no waiver of the reporting requirement has been obtained; 2° the municipal council is the initiator of and applicant for the project. However, for the perusal of and decision on a permit application for a project or for the change of a project, for which, according to Article 15, the deputation is competent, the Flemish Government is competent if the following two conditions are met: 1° the project requires an environmental impact assessment and no waiver of the reporting requirement has been obtained; 2° the deputation is the initiator of and applicant for the project.’
9 Article 20 of that decree provides: ‘If, in accordance with Article 4.3.3(2) of the [Decree containing general provisions on environmental policy of 5 April 1995], the application for development consent includes a [screening note of the effects of the project on the environment], the competent authority referred to in Article 15 or the municipal, provincial or regional environmental officer shall examine that note and take a decision on the need to carry out an environmental impact assessment for the project. If the application is submitted by the competent authority itself, the municipal, provincial or regional environmental officer shall carry out the tasks referred to in the first subparagraph.’
10 Sogent, a public body with legal personality, established by the City of Ghent (Belgium), applied to the college van burgemeester en schepenen (municipal council, Belgium) of that city for development consent for a project for the reconversion of a laundry site. It attached to that application a screening note on the expected effects of that project on the environment, intended to determine whether that project should be subject to an environmental assessment.
11 On 1 September 2020, the environmental officer of the City of Ghent took the view that that project did not have an expected significant effect on the environment and that it was therefore not necessary to subject that project to an environmental impact assessment. On 10 December 2020, the municipal council of the City of Ghent granted Sogent the development consent requested.
12 KG and WA, owners of a building adjacent to the site affected by that project, brought an administrative appeal against that development consent before the Province of East Flanders. On 3 June 2021, that province dismissed that appeal as unfounded.
13 KG and WA brought an action for annulment of that rejection decision before the Raad voor Vergunningsbetwistingen (Council for consent disputes, Belgium). By judgment of 6 October 2022, that council declared that action to be well founded, annulled that decision and refused to grant that development consent. It considered that that decision was contrary to the first paragraph of Article 15/1, Article 20 of the Decree on the environmental permit and Article 9a of Directive 2011/92. According to the Council for consent disputes, since the municipal council of the City of Ghent was also the ‘de facto’ developer of the project concerned, the municipal council had erred in finding that it was competent to decide on the application for development consent at issue, since the first paragraph of Article 15/1 of the Decree on the environmental permit, interpreted in the light of Article 9a of Directive 2011/92, conferred that power solely on the deputatie van de Provincie Oost-Vlaanderen (Deputation of the Province of East Flanders, Belgium).
14 The Province of East Flanders and Sogent brought appeals on a point of law against that judgment before the Raad van State (Council of State, Belgium), which is the referring court.
15 The Raad van State (Council of State) considers that the analysis adopted in that judgment is contrary to Article 15/1 of the Decree on the environmental permit.
16 The referring court considers that it follows from that article that the deputation is to examine, in place of the municipal council, an application for development consent for a project only where it has already been established, at the time of that application, that the project concerned must be made subject to an environmental impact assessment. By contrast, where an application for development consent for a project involves, as a first step, a screening in order to assess whether that project must be subject to an environmental impact assessment, the municipal environmental officer is competent.
17 That court therefore considers that, if Article 9a of Directive 2011/92 precludes such a power from being conferred on the municipal environmental officer in respect of projects in which the municipality is also the developer, that article has not been transposed correctly in the Flemish Region.
18 In those circumstances, the Raad van State (Council of State) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Is Article 9a of [Directive 2011/92] to be interpreted as meaning that, in cases where the competent authority is also the developer, the appropriate separation between conflicting functions when performing the duties arising from that directive must also be applied to the assessment of whether the projects referred to in Article 4(2) of [that] directive are subject to assessment in accordance with Articles 5 to 10 of [that] directive?’
19 By its question, the referring court asks, in essence, whether Article 9a of Directive 2011/92 must be interpreted as meaning that, where the authority competent to determine whether a project referred to in Article 4(2) of that directive must be made subject to an environmental impact assessment, in accordance with Articles 5 to 10 of that directive, is also the developer of the project concerned, an appropriate separation between conflicting functions when performing that duty must at least be implemented.
20 As a preliminary point, it must be borne in mind that Article 4(2) of Directive 2011/92 refers to the projects listed in Annex II to that directive. In the present case, it is for the referring court to ascertain whether the project at issue in the main proceedings comes under that annex.
21 It must also 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 (judgment of 25 June 2020, A and Others (Wind turbines at Aalter and Nevele), C‑24/19, EU:C:2020:503, paragraph 37).
22 In the first place, as regards the wording of Article 9a of Directive 2011/92, that article provides, first, in its first paragraph, that Member States are to ensure that the competent authority or authorities perform the duties arising from that directive in an objective manner and do not find themselves in a situation giving rise to a conflict of interest and, second, in its second paragraph, that, in the specific case where the competent authority is also the developer, Member States are to at least implement, within their organisation of administrative competences, an appropriate separation between conflicting functions when performing the duties arising from that directive.
23 That article thus refers, in both its first and second paragraphs, to the ‘duties arising from [Directive 2011/92]’.
24 Where the competent authority determines whether a project referred to in Article 4(2) of that directive must be made subject to an environmental impact assessment, in the context of a procedure which recital 26 of Directive 2014/52 classifies as a ‘screening’, it is performing a duty arising from that directive.
25 It therefore follows from the wording of Article 9a of Directive 2011/92 that it applies to that screening procedure.
26 In the second place, that analysis is supported by the context of that article.
27 First, recital 25 of Directive 2014/52 states in identical terms that the appropriate separation between conflicting functions concerns the authorities performing ‘the duties arising from Directive [2011/92]’, without precluding the applicability of that requirement to that screening procedure.
28 Second, it should be noted that Article 4 of Directive 2011/92 refers, first, in paragraph 1 thereof, to the projects listed in Annex I to that directive, which the Member States must make subject to an environmental impact assessment, and, second, in paragraph 2, to the projects listed in Annex II to that directive, in respect of which the Member States are to determine whether they are to be made subject to such an assessment.
29 Furthermore, under Article 4(4) of Directive 2011/92, where Member States decide to require a determination for projects listed in Annex II to that directive, the developer is to provide information on the characteristics of the project and its likely significant effects on the environment. According to paragraph 5 of that article, the competent authority is to determine, on the basis of that information, whether the project is to be made subject to an environmental impact assessment.
30 In that context, the need to ensure consistency in the application of the safeguards laid down in Article 9a of Directive 2011/92 presupposes that the competent authority can take a decision in an objective manner and does not find itself in a situation giving rise to a conflict of interest, in particular with regard to the developer who provides that authority with the information on the basis of which it must take a decision, both during the screening procedure and during the environmental impact assessment procedure.
31 The fact that Article 4(1) and (2) of Directive 2011/92 refers to the application of Articles 5 to 10 of that directive as regards the environmental impact assessment does not preclude the possibility that Article 9a of that directive may also be applicable as regards the screening procedure.
32 In the third place, from a teleological point of view, as is apparent from recital 25 of Directive 2014/52, the requirement to prevent conflicts of interest laid down in Article 9a of Directive 2011/92 pursues the objective of ensuring the objectivity of the competent authorities. In addition, that objective contributes to the essential objective of Directive 2011/92 which is to ensure that projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are subject to an assessment with regard to their environmental effects before consent is given (judgment of 29 July 2019, Inter-Environnement Wallonie and Bond Beter Leefmilieu Vlaanderen, C‑411/17, EU:C:2019:622, paragraph 108 and the case-law cited). Therefore, compliance with those objectives presupposes that Article 9a of Directive 2011/92 is applicable where the competent authority determines whether a project referred to in Article 4(2) of that directive must be made subject to an environmental impact assessment.
33 The effectiveness of Article 9a of Directive 2011/92 would be undermined if the objectivity of the competent authorities and the absence of conflicts of interest were not guaranteed at all stages of the performance of the duties entrusted to those authorities by that directive as regards both the screening and the subsequent assessment of the effects of a project on the environment.
34 In the fourth and last place, the legislative history of Article 9a of Directive 2011/92 does not call that interpretation into question.
35 Although the Province of East Flanders and Sogent argue that amendment 19 of the Report of the European Parliament of 22 July 2013 on the proposal for a directive of the European Parliament and of the Council amending Directive 2011/92/EU of the assessment of the effects of certain public and private projects on the environment (COM(2012) 0628), was adopted after the judgment of 20 October 2011, Seaport (NI) and Others (C‑474/10, EU:C:2011:681), concerning the case where an environmental assessment of certain plans or programmes is required, and proposed a new recital 13b, which provided for the introduction of specific standards to avoid conflicts of interest between the competent authority and the developer of a project subject to an environmental impact assessment, without referring to the projects subject to a screening procedure, it must be held that that amendment does not correspond to the wording of recital 25 of Directive 2014/52. Furthermore, and in any event, Directive 2011/92 does not contain any provision which would limit the application of the safeguards laid down in Article 9a of that directive to the procedure for assessing the effects of a project on the environment. That argument cannot, therefore, call into question the interpretation of that article based on its wording, context and objectives.
36 It follows from the foregoing that Article 9a of Directive 2011/92 is applicable where the competent authority determines whether a project referred to in Article 4(2) of that directive must be made subject to an environmental impact assessment.
37 Consequently, in accordance with the second paragraph of Article 9a, where the authority competent to make that determination is also the developer of the project concerned, the Member States are to at least implement, within their organisation of administrative competences, an appropriate separation between conflicting functions when performing that duty.
38 That appropriate separation must be organised in such a way that an administrative body internal to the authority competent to make that determination has real autonomy, meaning, in particular, that it is provided with administrative and human resources of its own and is thus in a position to perform its duty objectively (see, by analogy, judgment of 20 October 2011, Seaport (NI) and Others, C‑474/10, EU:C:2011:681, paragraph 43).
39 In the light of the foregoing considerations, the answer to the question referred is that Article 9a of Directive 2011/92 must be interpreted as meaning that, where the authority competent to determine whether a project referred to in Article 4(2) of Directive 2011/92 must be made subject to an environmental impact assessment, in accordance with Articles 5 to 10 of Directive 2011/92, is also the developer of the project concerned, an appropriate separation between conflicting functions when performing that duty must at least be implemented.
40 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.