The definition of plan and programme
According to the CJEU, the plan also established a framework for future planning approvals, even though it did not contain any positive legal regulation, because the definition of the district by the contested decree “amounts to accepting the principle of a future urban development plan, which will be able to be carried out by means of derogations from the planning requirements in force being granted more easily […]. It follows that, although such an instrument does not, and cannot, lay down positive requirements, the possibility which it lays down of allowing a derogation from the planning rules in force to be obtained more easily amends the legal process and consequently brings the consolidation area at issue in the main proceedings within the scope of Article 2(a) and Article 3(2)(a) of the SEA Directive” (paras 56, 58). Thus, in terms of its content and purpose, such a plan contributes to the implementation of the projects included in the Annex to the EIA Directive.
The acts of a mixed form between plans and permits may also be subject to an SEA. One such example is a measure (in this case, a Prime Ministerial Decree) that determines the total treatment capacity of existing waste incineration plants already in operation, the use of this capacity, and the construction of new incineration plants, as follows from the judgment in Case C-305/18, Verdi Ambiente e Società (VAS) — Aps Onlus and Others.
In principle, it cannot be ruled out that even a law proposed by a national government and approved by parliament meets all the conditions to be considered a plan or a programme. Indeed, legislative measures are explicitly included in the definition contained in the first indent of Art. 2(a) of the SEA Directive, and while interpreting this provision, the CJEU rejected the categorical exclusion of legislative measures from plans and programmes subject to assessment, as well as the analogy to the categories resulting from the Aarhus Convention and the so-called Kiev Protocol.
Even a decree and a circular adopted by the federal government can be considered a plan or a programme for the purposes of SEA, provided that these contain different provisions concerning the siting and operation of the projects such as wind farms (Case C-24/19, A. and Others).
The above judgments imply the need to carry out an SEA for regulations setting out requirements for the implementation of construction projects (requirements for the use of land, technical requirements for buildings), where the environmental impact consists in the fact that a set of established conditions and criteria serve to approve and implement one or more of the projects that may have a significant impact on the environment. In simple terms, it is the basis for the authorisation of projects subject to EIA.
However, it may not be obvious how specific this basis must be. Case C-290/15 concerned the conditions for the establishment of wind farms laid down in an order (“The present sector-specific conditions apply to wind farms the total power of which is at least 0.5 MW of electricity, referred to in sections 40.10.01.04.02 and 40.10.01.04.03 of Annex I”). The order at issue did not define a “complete framework” for the implementation of the projects; the conditions set out consisted of technical standards, operating conditions, accident and fire prevention, noise standards, restoration to its original state, and the posting of financial security for the operation of the wind farms. At the same time, however, the provisions of the order were separated from the reference framework and the mapping of areas for the siting of wind power plants so that it was a classic technical order. The CJEU concluded that the order was subject to impact assessment because it was substantively relevant to the energy sector and contributed to defining the framework for implementing wind farm projects, among the projects listed in Annex II of the EIA Directive.
There seems to exist an alternative scenario in which even the abovementioned order will not qualify as a plan within the meaning of the SEA Directive. This would be the case if the plan could not have any impact on the environment. In that case, it would indeed regulate binding criteria but inert to the environment. See the opinion of Advocate General in Case C-290/15, D'Oultremont and Others, para. 82: “EDORA is of the view that the provisions contained in the contested order will not have any significant environmental effects. Strictly speaking, however, this is not a prerequisite for the obligation to carry out an environmental assessment under Article 3(2)(a) of the SEA Directive. It is true that the opposite might be inferred from a reading of the judgment in Dimos Kropias Attikis. In that event, however, the examination of the potential for significant environmental effects would be confined to the question of whether it can be excluded, on the basis of objective information, that that plan or project will have a significant effect on the site concerned. It seems unlikely that this is readily feasible in the context of setting limit values, in particular where these relate to noise generation and shadow flicker.”
Furthermore, considering the order as a plan would probably not be necessary if the SEA process carried out in preparing land-use planning documents or other plans went so far as to examine the technical criteria set out in the order, subject to the requirements for public participation. Finally, a different situation would also arise if the criteria laid down were not binding and were only subsidiary. There would, therefore, be no binding framework, which is a prerequisite for the SEA process to be necessary.
Recently, in Case C-461/23, Umweltforum Osnabrücker Land, the CJEU was dealing with a decree adopted by County of Osnabrück declaring the Bäche im Artland special protection area as a Natura 2000 site under the Habitats Directive. The decree included a list of human activities that are prohibited on the site, as well as permitted exceptions to these prohibitions. The issue in dispute was whether the decree (or at least the part of it relating to exceptions to the prohibitions) should have been subject to an environmental impact assessment under the SEA Directive. The Court held that the decree as a whole was directly related to the management of the site in question or was necessary for its management. Therefore, in view of the wording of Article 6(3) of the Habitats Directive, it does not require an assessment of its effects on the conservation objectives of the site and, consequently, does not fall within the scope of the SEA Directive.