The obligation of prior environmental assessment once again interferes with our energy supply

The Court of Justice has recently decided that Flemish rules establishing a framework for the development consent for wind turbines infringe the EU rules on prior environmental assessment. The Flemish rules under scrutiny were the Vlarem II and the 2006 Circular, which were never subjected to a prior environmental assessment. According to the Court, both instruments are a plan or programme under the SEA Directive that require an environmental assessment. Despite this EU law infringement, the Court has allowed the referring court to maintain the consequences of Vlarem II and the 2006 Circular.

A legal action for annulment of a development consent for five wind turbines near Aalter and Nevele (Flemish Region) was brought before the Flemish Appeal Board for Permit Disputes (“Raad voor Vergunningsbetwistingen”). This action then led to a reference for a preliminary ruling concerning the SEA Directive’s application. The Court gave its preliminary ruling on 25 June 2020 and has mainly concurred with the Advocate General’s opinion of 3 March 2020.

Vlarem II and the 2006 Circular are a plan/programme

In its ruling, the Court of Justice has first declared that Vlarem II and the 2006 Circular constitute a plan/programme within the meaning of the SEA Directive.

Moreover, to qualify as a plan/programme under the SEA Directive the measure or provision has to be “required by legislative, regulatory or administrative provisions”. Following the referring court’s request, the Court of Justice has affirmed its established case law that a measure is ‘required’ if the public authority’s legal basis for adopting the measure is enshrined in a particular provision, even if the adoption of that measure is not compulsory.

Vlarem II and the 2006 Circular require prior environmental assessment

Subject to the referring court’s verification, the Court has concluded that Vlarem II and the 2006 Circular, which bind the competent authorities and contain various provisions regarding the installation and operation of wind turbines (such as shadow flicker, safety and noise level standards) constitute a plan/programme requiring a prior environmental assessment.

The referring court can limit the effects of the EU law infringement

The EU law infringement implies the illegality of Vlarem II and the 2006 Circular as well as the development consent for the construction of the five wind turbines.

The effects of the illegality of the development consent seem to be limited. As the construction of the wind turbines has not yet commenced, the Court does not see any reason to maintain the effects of the unlawful consent.

The illegality of Vlarem II and the 2006 Circular now raises more questions. The referring court is bound to declare these instruments inapplicable but doing so could jeopardise the legality of all consents based on Vlarem II and the 2006 Circular.

The Court has clarified that the referring court may maintain the effects of Vlarem II and the 2006 Circular if:

• national law allows it; and
• the annulment would have significant implications for electricity supply; and
• the effects are not maintained for a longer period than is strictly necessary to remedy the illegality.

The referring court can only declare Vlarem II and the 2006 Circular inapplicable inter partes (i.e. between the parties present in the legal proceedings). Therefore, it seems that the above conditions are not met. Nevertheless, it appears from the preliminary reference that the referring court is willing to maintain the effects of Vlarem II and the 2006 Circular based on the principle of legal certainty to safeguard existing development consents.

Therefore, the illegality of Vlarem II and the 2006 Circular has been established but the effects of the illegality remain uncertain… It is not known when the referring court will take a decision but we will keep you updated.