Environmental Impact Assessment

Framework in the meaning of the SEA Directive can therefore be interpreted as establishing a significant body of criteria and detailed rules for the grant and implementation, which means that the plan or programme must be substantial and set criteria or conditions for the projects which require the EIA. On the one hand, this interpretation is intended to ensure that environmental impact assessments are carried out for acts that significantly impact the environment. On the other hand, however, it is also intended, in the sense of the de minimis rule, to prevent the separate determination of individual criteria or conditions from triggering the need for the SEA. In this logic, it is possible to identify various ad hoc normative acts which authorise the project, as the CJEU has done, for example, in Case C-43/10, Nomarchiaki Aftodioikisi Aitoloakarnanias and Others).

Nevertheless, the criterion of a number of specifications set by the plan or programme to become substantial is not without issues. The Member States might be tempted to circumvent the obligations laid down in the SEA Directive, including public participation, by splitting measures, thereby reducing the practical effect of that Directive. Indeed, breaking programmes for individual projects does not seem to present an escape from the requirement to carry out the SEA. Nevertheless, the key takeaway seems to be that the CJEU excluded planning for a given area as one of the characteristics of a plan or a programme under the SEA Directive. It is sufficient if the planning acts “cover, in the wider sense, regional and district planning in general” (Case C-290/15, D’Oultremont and Others, paras 47-48).

As regards the condition of Art. 2(a) of the SEA Directive that plans and programmes are required by law and administrative provisions, it follows from the judgment in case C-567/10, Inter-Environnement Bruxelles and Others, that the SEA Directive also applies to plans and programmes adopted on an optional basis (in this case, specific spatial plans), since “…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’…” (para. 31). It is, therefore, irrelevant whether the adoption of the plan or programme is imposed as an obligation by national legislation. Their adoption at the discretion is already sufficient for the purposes of the SEA Directive.

In practice, the legal form and content of plans and programmes in town and country planning or development of land varies among Member States. The CJEU emphasises the content and regulatory function of the specific plan or programme. See Joined Cases C-105/09 and C 110/09, Terre wallonne and Inter-Environnement Wallonie, paras 47–49: “…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” , whereby “Concerning, in the first place, the projects listed in Annexes I and II to the EIA Directive, it should be borne in mind that infrastructure projects are listed under Title 10 of that second annex, including, under point (b) of that title, urban development projects. It should be noted that the contested decree contains rules applicable to all buildings, whatever their nature, and to all their surroundings, including ‘areas of open space’ and ‘areas on which building is permissible’, whether public or private. In that regard, that measure contains a map which not only sets out the area to which it applies, but also defines various islands to which different rules apply as regards the location and height of buildings.”

Even the cancellation of a plan or programme can also be regarded as a plan or programme, although the SEA Directive only refers to acts which amend plans and programmes. See case C-567/10, Inter-Environnement Bruxelles and Others, paras 38–39: “In this regard, it is possible that the partial or total repeal of a plan or programme is likely to have significant effects on the environment, since it may involve a modification of the planning envisaged in the territories concerned. Thus, a repealing measure may give rise to significant effects on the environment because, as has been observed by the Commission and by the Advocate General in points 40 and 41 of her Opinion, such a measure necessarily entails a modification of the legal reference framework and consequently alters the environmental effects which had, as the case may be, been assessed under the procedure prescribed by Directive 2001/42.” That conclusion implies an obligation to carry out an assessment in the procedure, which was the subject of the complete or partial repeal of the spatial plan.

Regarding various hybrid acts, the conclusions of the CJEU judgment in Case C-160/17, Thybaut and others, are particularly relevant. The CJEU examined the nature of a decree of the Walloon Minister for Housing, Transport and Territorial Development, which defined an urban land-use planning district for the centre of Orp-le-Petit, which falls within the jurisdiction of the smaller municipality of Orp-Jauche (8 000 inhabitants, 15 km south-east of Louvain). According to the referring court, the purpose of the plan was merely to define the perimeter of the area, that is to say the boundaries of the geographical area within which the urban development plan for renovation and development of urban functions requiring the creation, modification, extension, removal or overhang of roads and public spaces are capable of being carried out. The CJEU concluded that the plan “due both to the manner in which it is defined and to its purpose, which is to allow for derogation from the planning requirements for plans concerning buildings and town and country planning, comes within the ‘town and country planning or land use’ sector within the meaning of Article 3(2)(a) of the directive” (para. 49).