Extension of Doel 1 and Doel 2 is illegitimate but our energy supply is safe for now …
On 5 March 2020, the Constitutional Court annulled the extension of Doel 1 and Doel 2 because this extension infringed EU legal provisions concerning environmental assessments. Nevertheless, the Belgian energy supply is safe for now due to a lack of sufficient alternatives to the current nuclear energy supply.
Nuclear energy in Belgium
Nuclear energy accounted for 54.6 % of Belgian energy production in 2019. The nuclear power plants Doel 1 and Doel 2 are together responsible for 866 MW, representing approximately 15% of Belgian nuclear energy. As early as 2003, the Belgian legislator decided to phase out the use of nuclear energy. The existing nuclear power stations were to be gradually taken out of service between 2015 and 2025. In the context of this legislation, Doel 1 ceased and Doel 2 was about to cease electricity production in 2015.
However, as the share of electricity generated by nuclear power plants was still substantial in 2015, the Belgian legislator adopted the Act of 28 June 2015 (“Extension Act”) to extend the operational life of Doel 1 and Doel 2 in order to secure Belgium’s electricity supply. This meant that Doel 1 restarted production and Doel 2 would continue production until 2025 instead of 2015. Clearly, additional works to modernise Doel 1 and Doel 2 were necessary and constituted an essential condition for the extension.
Two environmental associations then lodged an action for annulment against the Extension Act because it had been adopted without an environmental impact assessment and also without a required procedure allowing for public participation (as set out in the Espoo and Aarhus Conventions and the EIA and Habitats Directive).
EU Court of Justice
Faced with these international and European regulations, the Constitutional Court requested a preliminary ruling from the Court of Justice of the European Union. The Court of Justice stated in its ruling that there was the need for an environmental impact assessment of the extension of the operational life of Doel 1 and Doel 2 based on the EIA and Habitats Directive. The Court of Justice set out the principles, which left little margin of appreciation for the Constitutional Court about whether an assessment on the environmental impact was required. The case was referred back to the Constitutional Court, which then had to apply these principles and examine whether there was a genuine and serious threat of an interruption to electricity supply that could not be addressed by another alternative within the internal market.
Decision to annul
In its judgment, the Constitutional Court did not consider the arguments relating to the Espoo and Aarhus Convention since the EIA Directive integrates both Conventions.
Subsequently, the Constitutional Court examined the scope of the EIA Directive and the Habitats Directive. It concluded that the Extension Act was a ‘development consent’ in the sense of both the EIA and the Habitats Directive. A development consent requires an assessment on its environmental impact.
Although the extension was adopted by a specific act of national legislation, it could not be exempted from the obligations under the EIA Directive. A specific act of national legislation can only be exempted if the Directive’s objectives are achieved through the legislative process. The Constitutional Court ruled that these objectives were not achieved because the Belgian members of parliament did not vote on the additional works necessary to modernise Doel 1 and Doel 2 and did not have sufficient information about the extension’s environmental impact and its alternatives.
Moreover, no derogation from the EIA or Habitats Directive was possible. The urge to secure electricity supply is an imperative reason of overriding public interest. However, this imperative reason could not justify a derogation. The EIA Directive does not allow any exemption for projects with transboundary effects, such as the Extension Act. Additionally, no exemption is possible under the Habitats Directive without an appropriate assessment of the environmental impact.
In short, the Extension Act should have been subject to an environmental impact assessment, public participation and transboundary consultation.
The Constitutional Court annulled the Extension Act based on the infringements of the EIA and Habitats Directive but decided that it is possible to remedy the situation as well as to maintain the effects of this annulment. To that effect, the Constitutional Court pointed out that the Belgian State must respect the following conditions in remedying the situation:
- The national rules providing the option to remedy neither circumvent nor refrain from applying EU law;
- The remedying assessment does not only assess the future environmental impact but also the environmental impact since the start of the extension of the operational life of Doel 1 and 2.
According to the Constitutional Court, maintaining the effects of the annulment is justified considering the genuine and serious risk of interruption of electricity supply in Belgium, which cannot be addressed by another alternative within the internal market. Following an assessment of the capacity remuneration mechanism, the strategic reserve and the supply through electricity interconnections, the Constitutional Court concluded that these alternatives were not sufficient to address the problem of securing electricity supply.
The Constitutional Court has granted the Belgian federal legislator until 31 December 2022 at the latest to terminate the infringement. Although these are difficult times, the Belgian federal legislator should not delay and should start a new legislative procedure with an environmental impact assessment including public participation and transboundary consultation. In the absence of such action, uncertainties about securing electricity supply will resurface.
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