Environmental Impact Assessment

The case-law of the CJEU allows, exceptionally, to uphold an incompatible national plan or programme that has not been properly assessed in the SEA process. In exceptional cases, it is thus possible not to annul, for example, a land use plan. However, the following conditions must be cumulatively met: 1) the contested plan or programme implements EU environmental law; 2) the legal vacuum created would constitute a worse environmental impact than maintaining the regulation; 3) it will be assessed whether the adoption of the new measure/act makes it possible to avoid adverse environmental impacts; 4) the effects of the non-conforming regulation will be maintained only for as long as necessary (see Case C-41/11, Inter-Environnement Wallonie and Terre wallonne; or C-379/15, Association France Nature Environnement).

In her opinion in Case C-671/16, Inter-Environnement Bruxelles and Others, the Advocate General explicitly referred to this procedure as a means of alleviating the legal uncertainty resulting from the unclear interpretation of the notion of plans and programmes: “Finally, Belgium emphasises the legal uncertainty resulting from the case-law of the Court as this case-law covers numerous general provisions which, since the expiry of the deadline for transposition of the SEA Directive, have been adopted without an environmental assessment. However, this uncertainty is mitigated at least in part by the 2016 judgment in Association France Nature Environnement, which allows national courts, under certain conditions, provisionally to maintain the effects of measures which were adopted in breach of the SEA Directive.” (paras 38-39).

The above-mentioned exception does not appear to apply to defective legislation governing the requirements for issuing plans and programmes and their assessment, but only to acts adopted on their basis. In other words, the national court, which is responsible for assessing whether those conditions have been met, may, for example, exceptionally not annul a spatial plan because of defects in the SEA process, but it cannot treat the law under which the spatial plan was adopted in the same way. At the same time, however, this exemption is not limited to non-conforming plans or programmes or defects in the SEA process. In Case C-411/17, Inter-Environnement Wallonie et Bond Beter Leefmilieu Vlaanderen, the CJEU confirmed the possibility of maintaining the effects of measures during the period necessary to remedy their possible illegality in the light of the EIA Directive and the Habitats Directive. The CJEU concluded that the security of the electricity supply in the Member State concerned is also an exceptional circumstance in the sense indicated. However, it also specified that “In this instance, in accordance with the case-law cited in paragraph 177 of the present judgment, it is for the Court of Justice alone to determine the circumstances in which it may be justifiable, by way of exception, to maintain the effects of measures such as those at issue in the main proceedings on account of overriding considerations relating to the security of the electricity supply of the Member State concerned. In that regard, such considerations could justify maintaining the effects of national measures adopted in breach of the obligations under the EIA Directive and the Habitats Directive only if, in the event that the effects of those measure were annulled or suspended, there was a genuine and serious threat of disruption to the electricity supply of the Member State concerned, which could not be remedied by any other means or alternatives, particularly in the context of the internal market” (para. 179). Thus, the exceptional possibility of maintaining the effects of measures contrary to EU law cannot be equated with the possibility of making use of derogation schemes under the EIA or Habitats Directives. It is always necessary to assess whether, taking into account other reasons and alternative solutions available to the Member State concerned to safeguard a particular public interest, the exceptional maintenance of the effects of a plan or programme is justified by the need to counter a threat to that public interest. In any event, such maintenance of effects may only apply for a period of time which is strictly necessary to remedy the illegality.