High Court dismisses challenge to apartment guidelines, deferring EU law SEA issue to CJEU reference.

[2025] IEHC 728

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2025.0001464]

BETWEEN

FRANK MCDONALD, DAN BOYLE, PÁDRAIG MCEVOY, DARRAGH MORIARTY AND DAVID

HEALY

APPLICANTS

AND

MINISTER FOR HOUSING, LOCAL GOVERNMENT AND HERITAGE

RESPONDENT

Date of impugned decision: 8 July 2025

Date proceedings commenced: 3 October 2025

Date of main hearing: 4 December 2025

Date draft judgment circulated: 9 December 2025

JUDGMENT of Humphreys J. delivered on Wednesday the 17th day of December 2025

1. Directive 2001/42/EC on strategic environmental assessment requires prior assessment of,

and public consultation on, particular types of plans and programmes. The applicants maintain that

the apartments guidelines, which were not subjected to such assessment, in fact require it. As the

State astutely anticipated in correspondence on 14 November 2025, this dispute raises an issue of

EU law which is likely to make its way to the CJEU sooner or later, and, if so, sooner is preferable

from both sides’ perspectives.

Facts

2. On 8 July 2025, the Minister issued and published the ‘Design Standards for Apartments,

Guidelines for Planning Authorities’ (the guidelines) pursuant to s. 28 of the Planning and

Development Act 2000 (the 2000 Act).

3. On 17 July 2025, Cllr McEvoy, the third named applicant, made an access to information on

the environment (AIE) request to the Department of Housing, Local Government and Heritage (the

Department) in respect of the Standards for Apartments.

4. On 1 September 2025, the Department granted the AIE request of Cllr McEvoy and provided

documentation to Cllr McEvoy. Part of the documents provided to Cllr McEvoy was a record which

is dated 12 June 2025 (Ref CEPP/2025/ENV/002) and was prepared by the Environmental Planning

Manager in the Department.

5. On 29 July 2025, Eoin Ó Broin TD raised a parliamentary question directed to the respondent

as to whether the guidelines had been subject to strategic environmental assessment (SEA) or

screening for SEA prior to the publication of the guidelines.

6. On 29 July 2025, the respondent replied to that question and confirmed that no SEA or

screening for SEA was carried out in respect of the guidelines prior to their publication. This was on

the basis that a review of the guidelines had been carried out which concluded that the requirements

of the SEA process were not met, as the guidelines do not establish a framework for consent for

apartment projects which may be subject to environmental impact assessment (EIA) and that the

guidelines did not fall under the categories of plans or programmes which would be subject to SEA

screening under Directive 2001/42/EC of the European Parliament and of the Council of 27 June

2001 on the assessment of the effects of certain plans and programmes on the environment (the

SEA directive).

7. On 18 September 2025, solicitors for the applicants made an AIE request to the Department

seeking a copy of the environmental report and SEA statement associated with the Urban

Development and Building Height Guidelines for Planning Authorities.

8. The AIE request of the applicants’ solicitor was responded to by the Department on 30

September 2025, wherein it was stated that a final decision on the AIE request would be made by

17 October 2025.

9. On 30 September 2025, the applicants’ solicitor wrote to the respondent to suspend the

operation of the Standards for Apartment Guidelines pending the carrying out of an SEA as required

under EU and domestic law. That letter stated that the applicants wished to make submissions in

the SEA process.

Procedural history

10. The applicants commenced these proceedings on 3 October 2025.

11. Four further affidavits were filed by the applicants on 8 October 2025.

12. Three further affidavits were filed by the applicants, which exhibited expert reports on 10

October 2025, 13 October 2025 and 16 October 2025, respectively.

13. On 10 October 2025, documentation was released by the Department on foot of the AIE

request of the applicants’ solicitor made on 18 September 2025.

14. The ex parte leave application was moved on 13 October 2025, and leave was granted on

the same date. The order granting leave was perfected on 20 October 2025.

15. An expedited hearing date was applied for by the Minister on 13 October 2025, and a hearing

date was set on that date for 4 December 2025.

16. The applicants issued an originating notice of motion on 21 October 2025, which was

returnable for 3 November 2025.

17. The applicants served an affidavit of Fred Logue on 22 October 2025, which exhibited

documents released under the AIE request of the applicants’ solicitor.

18. On 22 October 2025, documents relevant to the guidelines were released to Eoin Ó Broin

TD, following a request made by Deputy Ó Broin pursuant to the Freedom of Information Act 2014

on 9 July 2025.

19. The Minister served his opposition papers in final but unsworn form on 24 October 2025.

20. The applicants served a further affidavit of Fred Logue on 31 October 2025 (filed on 4

November 2025), which exhibited documents released pursuant to the FOI request of Deputy Ó

Broin.

21. The court circulated an Issue Paper on 6 November 2025.

22. The matter was listed for directions on 10 November 2025.

23. The Minister filed his opposition papers on 14 November 2025.

24. On 14 November 2025, the Minister wrote to the applicants to inform them that he had

“resolved to take the pragmatic approach of preparing a draft National Planning Statement for the

approval of the Government, with a view to issuing same under section 25 of the Planning and

Development Act 2024 (‘the 2024 Act’) to replace the Planning Design Standards for Apartments

Guidelines”. Such course of action was expressly stated to be “strictly without prejudice to the

Minister’s position that the Planning Design Standards for Apartments Guidelines were lawfully issued

under section 28 of the 2000 Act, did not require to be the subject of an SEA and are valid, and the

Respondents will continue fully to defend the proceedings on that basis”.

25. The applicants served their primary submissions on 17 November 2025.

26. The matter was listed for directions on 17 November 2025.

27. The applicants served a further affidavit of Fred Logue on 17 November 2025 (which was

filed on 18 November 2025), which exhibited correspondence dated 17 November 2025 raising

concerns about statements made by members of the government concerning the litigation.

28. The Minister served his submissions on 24 November 2025.

29. The applicants served their replying submissions on 1 December 2025.

30. The matter was heard on Thursday 4 December 2025.

31. Judgment was reserved at the end of that hearing. I would like to record my thanks to all

of the lawyers involved for their unfailingly courteous, professional and helpful assistance. As I have

previously sought to make clear, insofar as any points advanced are not being accepted in this or

any other given judgment, that is solely to do with the inherent merits of such points and is no

reflection on those instructed to convey such points, a distinction that most certainly should be, and

I believe generally is in fact, self-evident to all concerned.

32. On 9 December 2025, a draft of the present judgment was sent to the parties to give an

opportunity to identify any errors. The rules of engagement in such a situation are that the draft is

without prejudice to the right of the court ultimately to issue a judgment in whatever form or with

whatever content it considers appropriate.

33. Any comments must be emailed to the relevant judicial assistant and uploaded to ShareFile

in writing by the mention date and should not be to reargue the substance (submissions to that

effect will be disregarded) but are confined to matters such as:

(a) informing the court as to whether a formal judgment is required, and if so on what

issues;

(b) informing the court as to whether a judgment might be oral or written or partly in

both modes;

(c) any typographical, factual or legal errors in the decision;

(d) any redaction of personal information that the party wishes to request;

(e) in the event that the court proposes to place pivotal reliance on any authority or

material not previously adverted to, as opposed to where such material merely

reinforces a point that the court was making in any event, any comment as to why

such material should not lead to the proposed conclusion; identifying points that the

court proposes to address but that the parties consider it unnecessary to address;

(f) requesting the court to decide a point that, while unnecessary to decide, is one the

party considers could beneficially be decided;

(g) identifying significant procedural, factual or legal points that the party considers that

the court was required to address but has not addressed or not provided reasons

for; and

(h) any other suggestions as to the wording (as opposed to substance) of the decision

if the proposed wording causes any significant issue for a party for any identified

reason.

34. It is then entirely a matter for the court as to whether to list the matter for mention, or

whether to simply give judgment with or without amendment to respond to any such comments or

for any other reason that appears appropriate to the court. Any judgment may be given without

further notice following the expiry of the above-mentioned period, whether comments are made or

not. That period will not be extended save in exceptional circumstances. All parties involved are

requested to positively confirm to the court the position including if they have no observations on

the draft legitimately falling within the foregoing parameters. Overall the draft judgment procedure

is a concession which parties can engage with but must do so with immediate dispatch, discipline

and focus – it is not the opening of a new phase of the litigation that gives rise to “an entitlement

to elaborate procedures at every point” (to use a phrase of O’Donnell C.J. (Dunne, Charleton and

Baker JJ. concurring) in O’Sullivan v. HSE [2023] IESC 11 (Unreported, Supreme Court, 10 May

2023) at para. 39); and still less should the procedure invite the perhaps “serious error, to which

lawyers are prone, to approach any such case on the tacit assumption that only procedures which

approximate to a criminal trial are fair, and anything which departs from that is somehow dubious”

(O’Donnell J. in O'Sullivan v. Sea Fisheries Protection Authority [2017] IESC 75, [2017] 3 I.R. 751,

[2018] 1 I.L.R.M. 245, 780).

35. For the avoidance of doubt, draft judgments are not public domain materials and, while they

can be shared between the lawyers concerned and their clients, they are not intended for publication

(indeed given their lack of status it is impracticable to refer to them, even in the context of

considering such drafts in other litigation, until the judgment is formally issued) or for any other

transmission save for the legitimate purposes of the litigation. Therefore anyone with information

as to the text, content or proposed outcome of any draft is required not to transmit such information

to others save solely by way of private transmission for the legitimate purposes of the litigation and

subject to a similar restriction on any recipient (see Attorney General v. Crosland (No. 2) [2021]

UKSC 58, [2022] 1 W.L.R. 367, [24/01/2022] T.L.R. 1 which discusses why restriction on publication

of draft judgments is in the interests of the administration of justice). The contents of this paragraph

constitute an immediately effective direction of the court to the parties and anyone having notice of

the draft judgment with effect from the date of circulation of the draft.

36. The mention date to review matters following the foregoing was to be 15 December 2025.

37. The State response was to helpfully point out a typographical error and also to offer the

following:

“With respect to the matters specified at paragraph 33(g) of the draft judgment, it is the

Minister’s position that the draft judgment does not identify any basis on which the answer

to Question 1 arises for consideration in these proceedings or could be said to be necessary

for the effective resolution of any dispute between the parties in these proceedings, such as

to comprise an admissible question for the purposes of Article 267 TFEU. The Minister will

address this further in Eco-Advocacy submissions as appropriate.”

38. In that regard it needs to be emphasised that everything is in a sense provisional until the

formal judgment for reference, so the court can in principle reconsider whether to refer an issue or

reconsider the form of any question up to the point at which it is actually referred. The intention

would be that if at the stage of the draft judgment on foot of having considered Eco Advocacy [CLG

v. An Bord Pleanála [2021] IEHC 265, [2021] 5 JIC 2704 (Unreported, High Court, 27 May 2021)]

submissions from all parties, the court still intends to refer the question concerned, the draft

judgment would set out a more formal statement of the relevance of the question. At this stage all

that needs to be said is that this was a question suggested by the applicants and the court considers

(with all caveats that follow from the foregoing) that it is a plausible question that is relevant to the

interpretation of EU law in the context of the more substantive questions. Those questions could on

the other hand be rephrased (without a separate Aarhus question) by rolling the issues together and

by asking whether the Directive has a particular effect, having regard to the Aarhus Convention to

the extent that such regard is appropriate. That would not necessarily assist the clarity of

submissions because it would combine various issues, which is the main reason why I am considering

keeping the issues separate at this stage. To the extent if any that it reassures the State, the

intention is that the Aarhus question only arises insofar as relevant to the substantive questions. So

in the light of the State submission the questions have been re-ordered, and the Aarhus question

redrafted, to make this clear, or at least clearer.

Relief sought

39. The reliefs sought are as follows:

“1. An Order of Certiorari quashing the ‘Planning Design Standards for Apartment

Guidelines for Planning Authorities, 2025’ issued by the Minister for Housing, Local

Government and Heritage (‘the Minister’) and published on 8 July 2025 (‘Standards for

Apartments Guidelines’).

2. A Declaration that the Minister was required to have carried out a strategic

environmental assessment (‘SEA’) of the Standards for Apartments Guidelines prior to

adopting and issuing the guidelines and in failing to do so acted in breach of Article 3(2) of

the Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on

the assessment of the effects of certain plans and programmes on the environment (the

‘SEA Directive’).

3. An interlocutory order and/or stay pursuant to Order 84, rule 20(8)(a) and/or (b) of

the Rules of the Superior Courts 1986, as amended, and/or pursuant to the inherent

jurisdiction of this Honourable Court or otherwise, staying the implementation and / or effect

of the Standards for Apartments Guidelines, pending the determination of these proceedings,

or further order of this Honourable Court.

4. Such Declaration(s) of the legal rights and/or legal position of the Applicants and (if

and insofar as legally permissible and appropriate) persons similarly situated and/or of the

legal duties and/or legal position of the Respondent as this Honourable Court considers

appropriate.

5. A declaration that the protective cost provisions contained in section 50B of the

Planning and Development Act 2000 as amended, and/or section 3 of the Environment

(Miscellaneous Provisions) Act 2011, and/or Order 99 of the Rules of the Superior Courts

1986, as amended, and/or section 169 of the Legal Services Regulation Act 2015, as

interpreted in light of Article 9 of the Aarhus Convention, apply to these proceedings.

6. Such interlocutory relief as the Court may order, including interlocutory relief as

defined by the Practice Direction applicable to the Planning & Environment List of the High

Court.

7. Such further or other relief which Honourable Court doth seem fit and meet.

8. An Order providing for the costs of and ancillary to these proceedings.”

Grounds of challenge

40. The core grounds of challenge are as follows:

“(1) EU Law Ground

Validity of the Decision

1. The Standards for Apartments Guidelines are invalid as they were adopted in breach

of the requirements of Article 3 of the Directive 2001/42/EC of the European Parliament and

of the Council of 27 June 2001 on the assessment of the effects of certain plans and

programmes on the environment (the ‘SEA Directive’), being a provision which was

transposed into domestic law by the European Communities (Environmental Assessment of

Certain Plans and Programmes) Regulations 2004 (S.I. No. 435 of 2004 ) and European

Communities (Environmental Assessment of Certain Plans and Programmes) (Amendment)

Regulations 2011 (S.I No. 200/2011) and section 28(1D) of the Planning and Development

Act 2000 (as amended), as the Standards for Apartments Guidelines were not subject to a

strategic environmental assessment (‘SEA’). Further particulars of which are set out in Part

2 below.”

The impugned decision

41. The guidelines (https://www.gov.ie/en/department-of-housing-local-government-and-

heritage/publications/design-standards-for-apartments-guidelines-for-planning-authorities/)

include have-regard to text concerning apartment design standards, but also includes specific

planning policy requirements (SPPRs) as follows:

“Specific Planning Policy Requirement 1

(A) With the exception of social housing developments, social/affordable housing provided

for under Part V the Act or schemes to provide housing for older persons where a specific

mix of unit sizes may be required, such as in accordance with a Housing Need and

Demand Assessment (HNDA), there shall be no restrictions within statutory plans in

relation to the mix of unit sizes or types to be provided within apartment developments.

There shall be no minimum or maximum requirements for apartments with a certain

number of bedrooms.

(B) Where any such restriction or requirement is set out within a statutory plan, this Specific

Planning Policy Requirement shall apply to any single apartment scheme and there shall

be no restriction in relation to the mix of unit sizes or types and there shall be no

minimum requirements for apartments with a certain number of bedrooms within the

development, except in the circumstances set out above.

…

Specific Planning Policy Requirement 2

The following minimum apartment floor areas shall apply and statutory plans shall not

specify minimum floor areas that exceed the minimum floor areas set out below:

• Studio apartment (1 person) 32 sq.m

• 1-bedroom apartment (2 persons) 45 sq.m

• 2 bedroom apartment (3 persons) 63 sq.m

• 2-bedroom apartment (4 persons) 73 sq.m

• 3-bedroom apartment (4 persons) 76 sq.m

• 3-bedroom apartment (5 persons) 90 sq.m

The floor area parameters set out above shall generally apply to apartment schemes and do

not apply to purpose-built and managed student housing.

…

Specific Planning Policy Requirement 3

In relation to the minimum number of dual aspect apartments that may be provided in any

single apartment scheme, the following shall apply:

(i) A minimum of 25% of units within a development shall be required to be dual aspect.

Statutory plans shall not specify minimum requirements that exceed the

requirements of this Specific Planning Policy Requirement.

(ii) For building refurbishment schemes on sites of any size or urban infill schemes on

sites of up to 0.25ha, planning authorities may exercise further discretion to consider

dual aspect unit provision at a level lower than the 25% minimum outlined above

on a case-by-case basis, but subject to the achievement of overall high design

quality in other aspects.

…

Specific Planning Policy Requirement 4

Ground level apartment floor to ceiling heights shall be a minimum of 2.7m. For building

refurbishment schemes on sites of any size or urban infill schemes on sites of up to 0.25ha,

planning authorities may exercise discretion on a case-by case basis, subject to overall

design quality.

…

Specific Planning Policy Requirement 5

There shall be no requirement within statutory plans or within an individual scheme in

respect of a minimum number of units per floor per core.

...

Specific Planning Policy Requirement 6

The provision of new Communal, Community and Cultural facilities within apartment

schemes shall only be required in specific locations identified within the development plan

and shall not be required on a blanket threshold-based approach in individual apartment

schemes.

Specific Planning Policy Requirement 7

There shall be a presumption against granting planning permission for shared

accommodation/co-living development unless the proposed development is required to meet

specific demand identified by a local planning authority further to a Housing Need and

Demand Assessment (HNDA) process.

Specific Planning Policy Requirement 8

(A) (i) There shall be no requirement or restriction in relation to the provision of en-suite

bathrooms for single study bedrooms within Purpose Built Student Accommodation

schemes.

(ii) The minimum required area for a single study bedroom without en-suite facilities is

8 sq.m and the minimum required area for a single study bedroom with en-suite facilities

is 11.5 sq.m; and statutory plans may not set out minimum required areas that exceed

the minimum required areas set out within this SPPR. areas set out within this SPPR.

(iii) The minimum space requirements for kitchen/dining/living areas serving 10 and 12

persons are 3.6 sq.m and 3.3 sq.m per person, respectively; and statutory plans may

not set out minimum required areas that exceed the minimum required

(B) Where any other requirement or restriction is set out within a statutory plan, this Specific

Planning Policy Requirement shall apply to any single student accommodation scheme.”

Preliminary issues

42. Parties’ positions as summarised in the statement of case (emphasis added):

“The Minister has raised a pleading objection in respect of the Applicants’ Submissions, which

arises as a preliminary issue in the proceedings. In this regard, the Minister has submitted

as follows:

The Applicants’ pleaded case in their Statement of Grounds is that the Guidelines should

have been subject to SEA under Article 3(2)(a) of the SEA Directive. The Applicants did not

plead that the Guidelines should have been subject to SEA screening under Article

3(3) of the SEA Directive, and they are therefore precluded from now arguing that SEA

screening is required under Article 3(3), as they seek to do in their Primary Submissions in

response to the first question in the Issue Paper.

Further, in the Statement of Grounds it is pleaded that the Guidelines required SEA on the

basis that they ‘set the framework for development consent’, as they contain criteria and

conditions that future development consents must be consistent with. The Applicants did

not plead that the Minister applied the incorrect test when determining whether

the Guidelines ‘set the framework for development consent’, nor was it pleaded that

the question of whether a plan will ‘set the framework for development consent’

can be determined by an evaluative assessment of whether the plan is likely to

have significant effects on the environment, nor that the Guidelines required SEA on

the basis that the SPPRs in the Guidelines are likely to have significant effects on

the environment. Insofar as the Applicants now seek to make those arguments in their

Primary Submissions, this is impermissible.

Finally, the affidavit evidence with respect to the purported environmental effects of the

Guidelines was expressly adduced as comprising the evidence which the Applicants would

have submitted to the Minister in the public consultation required under the SEA Directive,

had the Minister carried out a full SEA. The Applicants did not plead that the affidavit

evidence with respect to the purported environmental effects of the Guidelines was adduced

for the purposes of impugning the conclusion that the Guidelines do not ‘set the framework

for development consent’. The Applicants are therefore precluded from now seeking

to rely on that affidavit evidence for that purpose.

Applicant’s Position

The Applicants’ position is that the Minister’s pleading objections are not well-founded and

responds as follows:

The Applicants’ case is that the Guidelines ought to have been subject to SEA, and they do

not advance the case that the Guidelines ought to have been subject to screening for SEA.

The Applicants have again clarified this in their Replying Submissions, and it is unclear why

the Minister is pursuing a pleading objection where the Applicants actually agree that they

have not pleaded that the Guidelines were required to be screened for SEA. In circumstances

where all parties agree that the Applicants are not advancing a case that the Guidelines

required screening for SEA, but that the Guidelines did require SEA, it appears there is no

actual dispute between the parties.

The second pleading objection is that the Applicants were not clear enough about the basis

upon which it is stated that the Guidelines met the test for setting a framework. With

respect, this objection is misconceived. The Minister cannot have it both ways. It is either

a net legal question as to whether the Guidelines ‘set the framework’ or not. The Applicants

say it does, and the Minister says it doesn’t. Part of the relevant authorities on SEA are

clear that an evaluative and qualitative assessment is carried out – that is– the net legal

issue. The Applicants actually do not understand this pleading objection. The test is the

test in Bund Naturschutz (which appears to be accepted by the Minister), and the Applicants

expressly engaged with that test in the pleadings (particular reference to §17-§19 of the

Statement of Grounds). All parties are in agreement that the Bund Naturschutz is not limited

to ‘location, nature, size and operating conditions or by allocating resources’.

Finally, in respect of the Applicants’ expert evidence on affidavit, that evidence is

uncontested and is before the Court, and the Court is entitled to consider it and the fact that

it is not disputed by the Minister. It is correct that this evidence was advanced on the basis

of what would be put before the Minister had an SEA been carried out. Had the Applicants

not done so, it would have been suggested that they did not have standing and/or that they

had not demonstrated proof of harm. Having done so, the Minister now says that such

concerns raised in the affidavits are not relevant as they could only be relevant if an SEA

were carried out. Again, the Minister cannot have it every way. If he were unhappy with

the content of those Affidavits and the reports exhibited (which appears to be the case,

otherwise it is not clear why this pleading objection is being raised), then the Minister could

have put in a replying affidavit and sought to contest that evidence. The Minister chose not

to respond to this evidence by way of replying affidavit and as a result the evidence before

the Court is uncontested. This is simply the factual position.”

43. The issues therefore are:

(i) whether the applicants can rely on art. 3(3) of the SEA directive;

(ii) whether the applicants can argue that the Minister applied the incorrect test to

setting a framework;

(iii) whether the applicants can argue that the question of whether a plan will ‘set the

framework for development consent’ can be determined by an evaluative

assessment of whether the plan is likely to have significant effects on the

environment and/or that the SPPRs in the guidelines are likely to have significant

effects on the environment; and

(iv) whether the applicants are precluded from relying on their affidavit evidence for the

purposes of impugning the conclusion that the guidelines do not ‘set the framework

for development consent’ in the absence of pleading to that effect and/or because

such evidence was expressly adduced as comprising the evidence which the

applicants would have submitted to the Minister in the public consultation required

under the SEA directive, had the Minister carried out a full SEA.

44. As regards reliance on art. 3(3) of the directive this does not seem to affect anything critical

and does not feature in the key pleaded grounds. So it is not clear that I need to decide anything

other than to say that the applicants are confined to their pleadings.

45. As regards the Minister applying the incorrect test, again this does not feature in the key

pleaded grounds.

46. As regards an allegation that the guidelines come within art. 3(2)(a) by reason of significant

effects on the environment, this is also not pleaded in the relevant grounds.

47. As regards the applicants’ affidavit evidence, the lack of relevance of those follows from the

foregoing. In the absence of a plea that the guidelines require SEA due to significant environmental

effects, the affidavits do not advance such a case. The affidavits are framed in the context of having

something to say had there been consultation.

48. So I would generally resolve the preliminary issues in favour of the State.

The SEA directive

49. The preamble and arts. 1-4 of the directive provide (notes omitted, emphasis added):

“Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on

the assessment of the effects of certain plans and programmes on the environment

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article

175 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the Economic and Social Committee,

Having regard to the opinion of the Committee of the Regions,

Acting in accordance with the procedure laid down in Article 251 of the Treaty, in the light

of the joint text approved by the Conciliation Committee on 21 March 2001,

Whereas:

(1) Article 174 of the Treaty provides that Community policy on the environment is to

contribute to, inter alia, the preservation, protection and improvement of the quality of the

environment, the protection of human health and the prudent and rational utilisation of

natural resources and that it is to be based on the precautionary principle. Article 6 of the

Treaty provides that environmental protection requirements are to be integrated into the

definition of Community policies and activities, in particular with a view to promoting

sustainable development.

(2) The Fifth Environment Action Programme: Towards sustainability - A European

Community programme of policy and action in relation to the environment and sustainable

development, supplemented by Council Decision No 2179/98/EC on its review, affirms the

importance of assessing the likely environmental effects of plans and programmes.

(3) The Convention on Biological Diversity requires Parties to integrate as far as possible

and as appropriate the conservation and sustainable use of biological diversity into relevant

sectoral or cross-sectoral plans and programmes.

(4) Environmental assessment is an important tool for integrating environmental

considerations into the preparation and adoption of certain plans and programmes which are

likely to have significant effects on the environment in the Member States, because it

ensures that such effects of implementing plans and programmes are taken into account

during their preparation and before their adoption.

(5) The adoption of environmental assessment procedures at the planning and programming

level should benefit undertakings by providing a more consistent framework in which to

operate by the inclusion of the relevant environmental information into decision making.

The inclusion of a wider set of factors in decision making should contribute to more

sustainable and effective solutions.

(6) The different environmental assessment systems operating within Member States should

contain a set of common procedural requirements necessary to contribute to a high level of

protection of the environment.

(7) The United Nations/Economic Commission for Europe Convention on Environmental

Impact Assessment in a Transboundary Context of 25 February 1991, which applies to both

Member States and other States, encourages the parties to the Convention to apply its

principles to plans and programmes as well; at the second meeting of the Parties to the

Convention in Sofia on 26 and 27 February 2001, it was decided to prepare a legally binding

protocol on strategic environmental assessment which would supplement the existing

provisions on environmental impact assessment in a transboundary context, with a view to

its possible adoption on the occasion of the 5th Ministerial Conference ‘Environment for

Europe’ at an extraordinary meeting of the Parties to the Convention, scheduled for May

2003 in Kiev, Ukraine. The systems operating within the Community for environmental

assessment of plans and programmes should ensure that there are adequate transboundary

consultations where the implementation of a plan or programme being prepared in one

Member State is likely to have significant effects on the environment of another Member

State. The information on plans and programmes having significant effects on the

environment of other States should be forwarded on a reciprocal and equivalent basis within

an appropriate legal framework between Member States and these other States.

(8) Action is therefore required at Community level to lay down a minimum environmental

assessment framework, which would set out the broad principles of the environmental

assessment system and leave the details to the Member States, having regard to the

principle of subsidiarity. Action by the Community should not go beyond what is necessary

to achieve the objectives set out in the Treaty.

(9) This Directive is of a procedural nature, and its requirements should either be integrated

into existing procedures in Member States or incorporated in specifically established

procedures. With a view to avoiding duplication of the assessment, Member States should

take account, where appropriate, of the fact that assessments will be carried out at different

levels of a hierarchy of plans and programmes.

(10) All plans and programmes which are prepared for a number of sectors and which set a

framework for future development consent of projects listed in Annexes I and II to Council

Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and

private projects on the environment, and all plans and programmes which have been

determined to require assessment pursuant to Council Directive 92/43/EEC of 21 May 1992

on the conservation of natural habitats and of wild flora and fauna, are likely to have

significant effects on the environment, and should as a rule be made subject to systematic

environmental assessment. When they determine the use of small areas at local level or

are minor modifications to the above plans or programmes, they should be assessed only

where Member States determine that they are likely to have significant effects on the

environment.

(11) Other plans and programmes which set the framework for future development consent

of projects may not have significant effects on the environment in all cases and should be

assessed only where Member States determine that they are likely to have such effects.

(12) When Member States make such determinations, they should take into account the

relevant criteria set out in this Directive.

(13) Some plans or programmes are not subject to this Directive because of their particular

characteristics.

(14) Where an assessment is required by this Directive, an environmental report should be

prepared containing relevant information as set out in this Directive, identifying, describing

and evaluating the likely significant environmental effects of implementing the plan or

programme, and reasonable alternatives taking into account the objectives and the

geographical scope of the plan or programme; Member States should communicate to the

Commission any measures they take concerning the quality of environmental reports.

(15) In order to contribute to more transparent decision making and with the aim of ensuring

that the information supplied for the assessment is comprehensive and reliable, it is

necessary to provide that authorities with relevant environmental responsibilities and the

public are to be consulted during the assessment of plans and programmes, and that

appropriate time frames are set, allowing sufficient time for consultations, including the

expression of opinion.

(16) Where the implementation of a plan or programme prepared in one Member State is

likely to have a significant effect on the environment of other Member States, provision

should be made for the Member States concerned to enter into consultations and for the

relevant authorities and the public to be informed and enabled to express their opinion.

(17) The environmental report and the opinions expressed by the relevant authorities and

the public, as well as the results of any transboundary consultation, should be taken into

account during the preparation of the plan or programme and before its adoption or

submission to the legislative procedure.

(18) Member States should ensure that, when a plan or programme is adopted, the relevant

authorities and the public are informed and relevant information is made available to them.

(19) Where the obligation to carry out assessments of the effects on the environment arises

simultaneously from this Directive and other Community legislation, such as Council

Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, Directive 92/43/EEC,

or Directive 2000/60/EC of the European Parliament and the Council of 23 October 2000

establishing a framework for Community action in the field of water policy, in order to avoid

duplication of the assessment, Member States may provide for coordinated or joint

procedures fulfilling the requirements of the relevant Community legislation.

(20) A first report on the application and effectiveness of this Directive should be carried out

by the Commission five years after its entry into force, and at seven-year intervals

thereafter. With a view to further integrating environmental protection requirements, and

taking into account the experience acquired, the first report should, if appropriate, be

accompanied by proposals for amendment of this Directive, in particular as regards the

possibility of extending its scope to other areas/sectors and other types of plans and

programmes,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Objectives

The objective of this Directive is to provide for a high level of protection of the environment

and to contribute to the integration of environmental considerations into the preparation and

adoption of plans and programmes with a view to promoting sustainable development, by

ensuring that, in accordance with this Directive, an environmental assessment is carried out

of certain plans and programmes which are likely to have significant effects on the

environment.

Article 2

Definitions

For the purposes of this Directive:

(a) ‘plans and programmes’ shall mean plans and programmes, including those co-financed

by the European Community, as well as any modifications to them:

- which are subject to preparation and/or adoption by an authority at national, regional or

local level or which are prepared by an authority for adoption, through a legislative procedure

by Parliament or Government, and

- which are required by legislative, regulatory or administrative provisions;

(b) ‘environmental assessment’ shall mean the preparation of an environmental report, the

carrying out of consultations, the taking into account of the environmental report and the

results of the consultations in decision-making and the provision of information on the

decision in accordance with Articles 4 to 9;

(c) ‘environmental report’ shall mean the part of the plan or programme documentation

containing the information required in Article 5 and Annex I;

(d) ‘The public’ shall mean one or more natural or legal persons and, in accordance with

national legislation or practice, their associations, organisations or groups.

Article 3

Scope

1. An environmental assessment, in accordance with Articles 4 to 9, shall be carried out for

plans and programmes referred to in paragraphs 2 to 4 which are likely to have significant

environmental effects.

2. Subject to paragraph 3, an environmental assessment shall be carried out for all plans

and programmes,

(a) which are prepared for agriculture, forestry, fisheries, energy, industry, transport, waste

management, water management, telecommunications, tourism, town and country planning

or land use and which set the framework for future development consent of projects

listed in Annexes I and II to Directive 85/337/EEC, or

(b) which, in view of the likely effect on sites, have been determined to require an

assessment pursuant to Article 6 or 7 of Directive 92/43/EEC.

3. Plans and programmes referred to in paragraph 2 which determine the use of small areas

at local level and minor modifications to plans and programmes referred to in paragraph 2

shall require an environmental assessment only where the Member States determine that

they are likely to have significant environmental effects.

4. Member States shall determine whether plans and programmes, other than those referred

to in paragraph 2, which set the framework for future development consent of projects, are

likely to have significant environmental effects.

5. Member States shall determine whether plans or programmes referred to in paragraphs

3 and 4 are likely to have significant environmental effects either through case-by-case

examination or by specifying types of plans and programmes or by combining both

approaches. For this purpose Member States shall in all cases take into account relevant

criteria set out in Annex II, in order to ensure that plans and programmes with likely

significant effects on the environment are covered by this Directive.

6. In the case-by-case examination and in specifying types of plans and programmes in

accordance with paragraph 5, the authorities referred to in Article 6(3) shall be consulted.

7. Member States shall ensure that their conclusions pursuant to paragraph 5, including the

reasons for not requiring an environmental assessment pursuant to Articles 4 to 9, are made

available to the public.

8. The following plans and programmes are not subject to this Directive:

- plans and programmes the sole purpose of which is to serve national defence or civil

emergency,

- financial or budget plans and programmes.

9. This Directive does not apply to plans and programmes co-financed under the current

respective programming periods for Council Regulations (EC) No 1260/1999 and (EC) No

1257/1999.

Article 4

General obligations

1. The environmental assessment referred to in Article 3 shall be carried out during the

preparation of a plan or programme and before its adoption or submission to the legislative

procedure.

2. The requirements of this Directive shall either be integrated into existing procedures in

Member States for the adoption of plans and programmes or incorporated in procedures

established to comply with this Directive.

3. Where plans and programmes form part of a hierarchy, Member States shall, with a view

to avoiding duplication of the assessment, take into account the fact that the assessment

will be carried out, in accordance with this Directive, at different levels of the hierarchy. For

the purpose of, inter alia, avoiding duplication of assessment, Member States shall apply

Article 5(2) and (3).”

50. The case hinges on the single aspect of the test as to whether the guidelines set the

framework for future development consent.

EU Caselaw

51. In her opinion of 4 March 2010 in Terre wallonne and Inter-Environnement Wallonie, Joined

Cases C-105/09 and C-110/09, ECLI:EU:C:2010:120, Advocate General Kokott stated (notes

omitted, emphasis added):

“1. The term ‘framework’

60. The term ‘framework’ must reflect the objective of taking into account the

environmental effects of any decision laying down requirements for the future development

consent of projects even as that decision is being taken.

61. It is unclear, however, how strongly the requirements of plans and programmes must

influence individual projects in order for those requirements to set a framework.

62. During the legislative procedure the Netherlands and Austria proposed that

it should be made clear that the framework must determine the location, nature or

size of projects requiring environmental assessment. In other words, very

specific, conclusive requirements would have been needed to trigger an

environmental assessment. As this proposal was not accepted, the concept of

‘framework’ is not restricted to the determination of those factors.

63. The view of the Czech Republic is based on a similarly narrow understanding of the

setting of a framework. It calls for certain projects to be explicitly or implicitly the subject

of the plan or programme.

64. Plans and programmes may, however, influence the development consent

of individual projects in very different ways and, in so doing, prevent appropriate

account from being taken of environmental effects. Consequently, the SEA

Directive is based on a very broad concept of ‘framework’.

65. This becomes particularly clear in a criterion taken into account by the Member States

when they appraise the likely significance of the environmental effects of plans or

programmes in accordance with Article 3(5): they are to take account of the degree to which

the plan or programme sets a framework for projects and other activities, either with regard

to the location, nature, size and operating conditions or by allocating resources (first indent

of point 1 of Annex II). The term ‘framework’ must therefore be construed flexibly. It does

not require any conclusive determinations, but also covers forms of influence that

leave room for some discretion.

66. Contrary to the view expressed by Belgium, the listing of the various characteristics

in the first indent of point 1 of Annex II is not to be understood cumulatively, or at least not

in the sense that the framework should concern them all. When the significance of

environmental effects is appraised, the characteristics referred to in all five indents of point

1 of Annex II are to be taken into account only ‘in particular’. If, however, the overall list is

not exhaustive, the partial lists cannot claim to be so either. Furthermore, such cumulative

applicability of the individual characteristics would be inconsistent with the use of the term

‘degree’ in point 1 of Annex II. The wording implies that the various characteristics may be

concerned in varying intensity and, therefore, possibly not at all. This alone is consistent

with the objective of making all preliminary decisions for the development consent of

projects subject to an environmental assessment if they are likely to have significant effects

on the environment.

67. To summarise, it can therefore be said that a plan or programme sets a framework

in so far as decisions are taken which influence any subsequent development consent of

projects, in particular with regard to location, nature, size and operating conditions or by

allocating resources.”

52. This does not appear to have been fully followed in the judgment of 17 June 2010, Terre

wallonne and Inter-Environnement Wallonie, Joined Cases C-105/09 and C-110/09,

ECLI:EU:C:2010:355, in which the CJEU held as follows in relation to the “framework” issue (notes

omitted, emphasis added):

“45 With regard to the second condition, in order to establish whether action

programmes set the framework for future development consent of projects listed in Annexes

I and II to Directive 85/337, it is necessary to examine the content and purpose of those

programmes, taking into account the scope of the environmental assessment of projects as

provided for by that directive.

46 Thus, so far as the purpose of action programmes is concerned, it is apparent from

Directive 91/676, in particular the 9th to 11th recitals in the preamble, Articles 1 and 3 to 5

and the annexes, that those programmes involve a global examination, at the level of

vulnerable zones, of the environmental issues linked to nitrate pollution from agricultural

sources, and that they put in place an organised system designed to provide a general level

of protection against such pollution.

47 The specific nature of those programmes lies in the fact that they embody a

comprehensive and coherent approach, providing practical and coordinated arrangements

covering vulnerable zones and, where appropriate, the entire territory, for the reduction and

prevention of pollution caused by nitrates from agricultural sources.

48 As regards the content of action programmes, it is apparent from Article 5 of Directive

91/676, in conjunction with Annex III thereto, that those programmes are to contain specific,

mandatory measures that cover, in particular, periods during which the spreading of certain

types of fertiliser is prohibited, the capacity of storage vessels for livestock manure,

spreading methods and the maximum quantity of livestock manure containing nitrogen

which can be spread (see, to that effect, Case C‑416/02 Commission v Spain [2005] ECR

I‑7487, paragraph 34). Those measures are to ensure in particular, as point 2 of Annex III

to Directive 91/676 provides, that for each farm or livestock unit the amount of livestock

manure applied to the land each year, including by the animals themselves, does not exceed

a specified amount per hectare, which is the amount of manure containing 170 kilograms of

nitrogen.

....

55 In the light of all of the above considerations, the answer to the first question is

that an action programme adopted pursuant to Article 5(1) of Directive 91/676 is in principle

a plan or programme covered by Article 3(2)(a) of Directive 2001/42 since it constitutes a

‘plan’ or ‘programme’ within the meaning of Article 2(a) of the latter directive and contains

measures compliance with which is a requirement for issue of the consent that may

be granted for carrying out projects listed in Annexes I and II to Directive 85/337.”

53. In the judgment of 22 September 2011, Genovaitė Valčiukienė and Others v Pakruojo rajono

savivaldybė and Others, Case C-295/10, ECLI:EU:C:2011:608, the CJEU stated:

“The first and second questions

35 First of all, it should be noted that it is apparent from the order for reference that the

‘detailed plans’ in question in the main proceedings are ‘documents relating to land planning

at local level’ within the meaning of points 3.4 and 7.1 of the Schedule confirmed by Decree

No 967. Those documents constitute ‘plans and programmes’ within the meaning of Article

1(18) of the Law on protection of the environment. The plans at issue in the main

proceedings were approved prior to the preparation of documents relating to general land

planning.

36 In view of those preliminary observations, it must be held that the referring court, by

its first two questions, which it is appropriate to examine together, seeks essentially to

ascertain whether Article 3(2)(a), (3) and (5) of Directive 2001/42 must be interpreted as

precluding national legislation, such as that in question in the main proceedings, which

provides that assessment under that directive is not to be carried out where plans which

determine the use of small areas of land at local level mention only one subject of economic

activity.

37 As is clear from Article 1 of Directive 2001/42, the fundamental objective of that

directive is to ensure that plans and programmes which are likely to have significant effects

on the environment are subject to an environmental assessment when they are prepared

and prior to their adoption.

38 First, it should be noted that plans such as those at issue in the main proceedings are

referred to in Article 3(2)(a) of Directive 2001/42 as plans for which, subject to Article 3(3),

an environmental assessment must be carried out and that, in practical terms, they set, as

is apparent from the order for reference, the framework for the implementation of projects

listed in point 17 of Annex I to Directive 85/337.

39 In this respect, Article 3(2)(a) of Directive 2001/42 must be interpreted as meaning

that it also covers a plan which, in only one sector, sets the framework for a project which

has only one subject of economic activity.

40 The wording of Article 3(2)(a), read in the light of the 10th recital in the preamble to

Directive 2001/42, does not lead to the conclusion that its field of application should be

limited to plans and programmes that set the framework for projects concerning several

subjects in one or more of the sectors referred to by that provision.

41 Furthermore, the words ‘all plans and programmes which are prepared for a number

of sectors’ in that recital confirm that Article 3(2)(a) of Directive 2001/42 concerns all plans

and programmes which are prepared for each of the sectors referred to in that provision,

including country planning by itself, and not only the plans and programmes which are

prepared concomitantly for several of those sectors.

42 As the sectors concerned are all very broad, any other interpretation would have the

effect of appreciably restricting the field of application of that provision and therefore

jeopardising the fundamental objective pursued by Directive 2001/42. The consequence of

such an interpretation would be that major projects might not be covered by that directive

if they concerned only one subject of economic activity.

43 Lastly, it must be stated that the plans at issue in the main proceedings are capable

of falling within the scope of Article 3(3) of Directive 2001/42, under which plans which

determine the use of small areas at local level require an environmental assessment only

where the Member States ‘determine that they are likely to have significant environmental

effects’.

44 Pursuant to Article 3(5) of Article 2001/42, the Member States are to determine,

either through case-by-case examination or by specifying types of plans and programmes,

whether plans, such as those at issue in the main proceedings, are likely to have significant

environmental effects thereby requiring an assessment to be carried out in accordance with

that directive. According to that provision, Member States may also decide to combine both

approaches.

45 In that regard, it must be pointed out that the examination methods referred to in

Article 3(5) of Directive 2001/42 are designed to facilitate the specification of plans that

require assessment because they are likely to have significant environmental effects.

46 The margin of discretion enjoyed by Member States pursuant to Article 3(5) of

Directive 2001/42 to specify certain types of plans which are likely to have significant

environmental effects is limited by the requirement under Article 3(3) of that directive, in

conjunction with Article 3(2), to subject the plans likely to have significant effects on the

environment to environmental assessment, in particular on account of their characteristics,

their effects and the areas likely to be affected.

47 Consequently, a Member State which establishes a criterion which leads, in practice,

to an entire class of plans being exempted in advance from the requirement of environmental

assessment would exceed the limits of its discretion under Article 3(5) of Directive 2001/42,

in conjunction with Article 3(2) and (3), unless all plans exempted could, on the basis of

relevant criteria such as, inter alia, their objective, the extent of the territory covered or the

sensitivity of the landscape concerned, be regarded as not being likely to have significant

effects on the environment (see, to that effect, in respect of the margin of discretion

accorded to Member States pursuant to Article 4(2) of Directive 85/337, Case C‑427/07

Commission v Ireland [2009] ECR I‑6277, paragraph 42 and the case-law cited).

48 That requirement is not met by the criterion that the land planning document in

question mentions only one subject of economic activity. Such a criterion, besides being

contrary to Article 3(2)(a) of Directive 2001/42, is not one which can determine whether or

not a plan has ‘significant effects’ on the environment.

49 The unclear wording of point 3.4 of the Schedule confirmed by Decree No 967 could,

moreover, create difficulties in clearly establishing the scope of the category of plans that

competent authorities may consider to be plans ‘which mention only one subject of economic

activity’.

50 However, it should be noted that a national provision such as point 3.4 means that

any plans mentioning only one subject of economic activity, such as the complexes for the

rearing of pigs referred to in point 17 of Annex I to Directive 85/337, could avoid an

environmental assessment under Article 1(17) of the Law on protection of the environment,

although it cannot be ruled out that an assessment of the plans covered by such a provision

may reveal significant effects on the environment.

51 It is therefore not possible to find, on the basis of an overall assessment, that all

plans exempted by a national provision such as point 3.4 of the Schedule established by

Decree No 967 are not likely to have significant effects on the environment.

52 Furthermore, even if several plans were to fall within the scope of such a provision

without having significant effects on the environment, there are no grounds for concluding,

without an overall assessment, that this would also be true of the cumulative effects of those

plans.

53 Lastly, it should be noted that rules such as those in point 3.4 of the Schedule

established by Decree No 967 not only undermine the objective of Directive 2001/42 and,

in particular, Article 3(2), (3) and (5) thereof which aims to not exempt any plan likely to

have significant effects on the environment from the requirement of environmental

assessment, but also do not in the least ensure that the competent authorities will take the

criteria established in Annex II to Directive 2001/42 into account, as in fact is required by

the second sentence of Article 3(5) of that directive in order to ensure that plans with likely

significant effects on the environment are covered by it.

54 Consequently, the answer to the first and second questions is that Article 3(5) of

Directive 2001/42, in conjunction with Article 3(3) thereof, must be interpreted as precluding

national legislation, such as that in question in the main proceedings, which provides, in

fairly general terms and without assessment of each case, that assessment under that

directive is not to be carried out where mention is made, in the land planning documents

applied to small areas of land at local level, of only one subject of economic activity.”

54. In the opinion of Advocate General Bot delivered on 14 July 2011, Department of the

Environment for Northern Ireland v Seaport (NI) Ltd, C-474/10, ECLI:EU:C:2011:490, he noted

(notes omitted, emphasis added):

“27. The consultation procedure referred to in Article 6 of the Directive is designed to

guarantee everyone the right to live in an environment suitable for ensuring their health and

well-being, in accordance with Article 174 EC and Article 37 of the Charter of Fundamental

Rights of the European Union.

28. The consultation procedure thus enshrines the right of every person to participate in

decision-making procedures where they affect the environment. In that respect, the

legislature of the European Union acted on the basis of the latter’s obligations

under the Convention on access to information, public participation in decision-

making and access to justice in environmental matters, known as the Aarhus

Convention. The Aarhus Convention, it should be recalled, seeks to ensure that the public

has a right to participate in decision-making procedures concerning the environment,

particularly with regard to plans and programmes relating to the environment. However,

consultation is not solely a right. It is also a duty, namely the duty to protect and improve

the quality of the environment by expressing concerns and by assisting the authorities

responsible for preparing plans to take due account of those concerns and by adopting the

best decisions.

29. All of the provisions of the Directive bear witness to the European Union legislature’s

intention to respect those rights. The legislature sets up a procedural framework which

makes it possible to ensure, at each stage of the preparation and adoption of a plan, that

the environmental concerns of the authorities and the persons affected by those projects

are genuinely taken into account. In particular, the aim is to ensure that the information

supplied for the environmental assessment is comprehensive and reliable.”

55. In the judgment of 20 October 2011, Department of the Environment for Northern Ireland

v Seaport (NI) Ltd, C‑474/10, ECLI:EU:C:2011:681, the CJEU held:

“1. In circumstances such as those in the main proceedings, Article 6(3) of Directive

2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the

assessment of the effects of certain plans and programmes on the environment does not

require that another authority to be consulted as provided for in that provision be created

or designated, provided that, within the authority usually responsible for undertaking

consultation on environmental matters and designated as such, a functional separation is

organised so that an administrative entity internal to it has real autonomy, meaning, in

particular, that it is provided with administrative and human resources of its own and is thus

in a position to fulfil the tasks entrusted to authorities to be consulted as provided for in

Article 6(3) and, in particular, to give an objective opinion on the plan or programme

envisaged by the authority to which it is attached.

2. Article 6(2) of Directive 2001/42 must be interpreted as not requiring that the national

legislation transposing the directive lay down precisely the periods within which the

authorities designated and the public affected or likely to be affected for the purposes of

Article 6(3) and (4) should be able to express their opinions on a particular draft plan or

programme and on the environmental report upon it. Consequently, Article 6(2) does not

preclude such periods from being laid down on a case-by-case basis by the authority which

prepares the plan or programme. However, in that situation, Article 6(2) requires that, for

the purposes of consultation of those authorities and the public on a given draft plan or

programme, the period actually laid down be sufficient to allow them an effective opportunity

to express their opinions in good time on that draft plan or programme and on the

environmental report upon it.”

56. In the judgment of 28 February 2012, Inter-Environnement Wallonie ASBL and Terre

wallonne ASBL v Région Wallonne, C-41/11, ECLI:EU:C:2012:103 (Grand Chamber), the CJEU

stated:

“Where a national court has before it, on the basis of its national law, an action for annulment

of a national measure constituting a ‘plan’ or ‘programme’ within the meaning of Directive

2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the

assessment of the effects of certain plans and programmes on the environment and it finds

that the ‘plan’ or ‘programme’ was adopted in breach of the obligation laid down by that

directive to carry out a prior environmental assessment, that court is obliged to take all the

general or particular measures provided for by its national law in order to remedy the failure

to carry out such an assessment, including the possible suspension or annulment of the

contested ‘plan’ or ‘programme’. However, in view of the specific circumstances of the main

proceedings, the referring court can exceptionally be authorised to make use of its national

provision empowering it to maintain certain effects of an annulled national measure in so far

as:

— that national measure is a measure which correctly transposes Council Directive

91/676/EEC of 12 December 1991 concerning the protection of waters against pollution

caused by nitrates from agricultural sources;

— the adoption and entry into force of the new national measure containing the action

programme within the meaning of Article 5 of that directive do not enable the adverse

effects on the environment resulting from the annulment of the contested measure to

be avoided;

— annulment of the contested measure would result in a legal vacuum in relation to the

transposition of Directive 91/676 which would be more harmful to the environment, in

the sense that the annulment would result in a lower level of protection of waters against

pollution caused by nitrates from agricultural sources and would thereby run specifically

counter to the fundamental objective of that directive; and

— the effects of such a measure are exceptionally maintained only for the period of time

which is strictly necessary to adopt the measures enabling the irregularity which has

been established to be remedied.”

57. In the judgment of 22 March 2012, Inter-Environnement Bruxelles ASBL and Others v Région

de Bruxelles-Capitale, C‑567/10, ECLI:EU:C:2012:159, the court held as follows as to the meaning

of “required”:

“31 It follows that 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’ within the

meaning, and for the application, of Directive 2001/42 and, accordingly, be subject to an

assessment of their environmental effects in the circumstances which it lays down.”

58. As to plans revoking earlier plans (emphasis added):

“36 It is to be noted first of all, as the national court has, that Directive 2001/42 refers

expressly not to repealing measures but only to measures modifying plans and programmes.

37 However, given the objective of Directive 2001/42, which consists in providing for a

high level of protection of the environment, the provisions which delimit the directive’s

scope, in particular those setting out the definitions of the measures envisaged by the

directive, must be interpreted broadly.

38 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.

39 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.

40 It is to be recalled that, when the Member States draw up an environmental report

within the meaning of Article 5(1) of Directive 2001/42, they must take into consideration,

in particular, information concerning ‘the relevant aspects of the current state of the

environment and the likely evolution thereof without implementation of the plan or

programme’ within the meaning of point (b) of Annex I to the directive. Therefore, inasmuch

as the repeal of a plan or programme may modify the state of the environment as examined

at the time of adoption of the measure which is to be repealed, it must be taken into

consideration with a view to scrutiny of the subsequent effects that it might have on the

environment.

41 It follows that, in light of the characteristics and the effects of the measures

repealing that plan or programme, to regard those measures as excluded from the scope of

Directive 2001/42 would be contrary to the objectives pursued by the European Union

legislature and such as to compromise, in part, the practical effect of the directive.

42 On the other hand, it must be made clear that, in principle, that is not the case if

the repealed measure falls within a hierarchy of town and country planning measures, as

long as those measures lay down sufficiently precise rules governing land use, they have

themselves been the subject of an assessment of their environmental effects and it may

reasonably be considered that the interests which Directive 2001/42 is designed to protect

have been taken into account sufficiently within that framework.

43 It follows from the foregoing considerations that the answer to the first question is

that Article 2(a) of Directive 2001/42 must be interpreted as meaning that a procedure for

the total or partial repeal of a land use plan, such as the procedure laid down in Articles 58

to 63 of the CoBAT, falls in principle within the scope of that directive, so that it is subject

to the rules relating to the assessment of effects on the environment that are laid down by

the directive.”

59. In the judgment of 21 June 2012, Syllogos Ellinon Poleodomon kai Khorotakton v Ipourgos

Perivallontos, Khorotaxias & Dimosion Ergon and Others, C-177/11, ECLI:EU:C:2012:378, the CJEU

stated:

“The question referred for a preliminary ruling

17 By its question, the referring court asks, in essence, whether Article 3(2)(b) of the

SEA Directive must be interpreted as meaning that the obligation to make a particular plan

subject to an environmental assessment within the meaning of that directive depends on

the preconditions requiring an assessment under the Habitats Directive being met in respect

of that plan.

18 First, it should be noted that Article 3(4) of the SEA Directive, which the referring

court also cites in its order for reference, does not apply, as its wording confirms, to the

plans and programmes referred to in Article 3(2) of that directive.

19 With regard to Article 3(2)(b) of the SEA Directive, that provision requires an

environmental assessment every time an assessment is required under Articles 6 or 7 of the

Habitats Directive. Consequently, the scope of those articles must be examined in order to

determine the scope of Article 3(2)(b) of the SEA Directive.

20 Article 4(5) of the Habitats Directive provides that sites of Community importance,

including sites of Community importance designated as special areas of conservation by the

Member States, are subject to Article 6(2), (3) and (4) of that directive.

21 It follows from the wording of Article 6(3) of the Habitats Directive, read in

conjunction with Article 4(5) of that directive, that an assessment is required for any plan

or project not directly connected with or necessary to the management of the site but likely

to have a significant effect thereon, either individually or in combination with other plans or

projects.

22 The first sentence of Article 6(3) of the Habitats Directive makes the requirement of

an appropriate assessment of the implications of a plan or project conditional on there being

a probability or a risk that that plan or project will have a significant effect on the site

concerned (Case C-127/02 Waddenvereniging and Vogelbeschermingsvereniging [2004]

ECR I-7405, paragraph 43). That condition is fulfilled if it cannot be excluded, on the basis

of objective information, that that plan or project will have a significant effect on the site

concerned (see, to that effect, Case C-418/04 Commission v Ireland [2007] ECR I-10947,

paragraph 227).

23 It follows that an examination carried out to determine whether a plan or project is

likely to have a significant effect on a site, within the meaning of Article 6(3) of the Habitats

Directive, is necessarily limited 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. That interpretation is also required with regard to the areas referred to in Article

4(1) and (2) of the Birds Directive, given that Article 7 of the Habitats Directive extends the

scope of Article 6(3) of the latter directive to those areas.

24 The answer to the question referred is therefore that Article 3(2)(b) of the SEA

Directive must be interpreted as meaning that the obligation to make a particular plan

subject to an environmental assessment depends on the preconditions requiring an

assessment under the Habitats Directive, including the condition that the plan may have a

significant effect on the site concerned, being met in respect of that plan. The examination

carried out to determine whether that latter condition is fulfilled is necessarily limited to the

question as to 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.”

60. In the judgment of 18 April 2013, L v M, C‑463/11, ECLI:EU:C:2012:830, the CJEU stated

(emphasis added):

“36 By its question, the referring court asks, in essence, whether Article 3(5) of the

directive, read in conjunction with Article 3(4) thereof, must be interpreted as precluding

national legislation such as that at issue in the main proceedings, pursuant to which breach

of a qualitative condition, imposed by the implementing provision of that directive to exempt

the adoption of a particular type of building plan from an environmental assessment under

that directive, is irrelevant to the legal validity of that plan.

37 In that regard, it must be noted that a provision such as Paragraph 214(2a)(1) of

the BauGB means that building plans in respect of the preparation of which an environmental

assessment ought to have been carried out under the national legislation which transposed

Article 3(5) of the directive remain valid even if they were prepared without an

environmental assessment thereunder.

38 Such a system effectively deprives of its effectiveness Article 3(1) of the directive,

which requires an environmental assessment to be carried out in respect of the plans

referred to in Article 3(3) and (4) thereof which are likely to have significant effects on the

environment.

39 Although it is possible to envisage that a particular type of plan which meets the

qualitative condition laid down in Paragraph 13a(1) of the BauGB is not necessarily likely to

have significant effects on the environment, since that condition is such as to ensure that

such a plan meets the relevant criteria laid down in Annex II to the directive, to which the

second sentence of Article 3(5) refers, it appears, however, that such a condition is deprived

of its effectiveness when it is combined with a provision such as Paragraph 214(2a)(1) of

the BauGB.

40 By maintaining in force building plans which, within the meaning of the directive as

transposed into national law, are likely to have significant effects on the environment, that

provision of the BauGB definitively enables municipalities to prepare such plans without

carrying out an environmental assessment, provided they meet the quantitative condition

laid down in the second sentence of Paragraph 13a(1) of the BauGB and do not fall within

the scope of the grounds for exclusion set out in the fourth and fifth sentences of that

Paragraph.

41 In those circumstances, it is not guaranteed to the requisite legal standard that the

municipality will in any event meet the relevant criteria laid down in Annex II to the directive,

which criteria, however, the national legislature intended should be met, as is demonstrated

by the introduction of the concept of urban development in the legislation designed to use

the discretion conferred on the legislature in Article 3(5) of the directive.

42 Clearly, then, a national provision such as Paragraph 214(2a)(1) of the BauGB,

adopted as part of the implementation of Article 3(5) of the directive, has the effect of

exempting from an environmental assessment building plans which should not have been so

exempted, which is contrary to the objective pursued by the directive and, more particularly

by Article 3(1), (4) and (5) thereof.

43 Moreover, it is clear from the case-law of the Court that, where a plan, within the

meaning of the directive, should, prior to its adoption, have been subject to an

assessment of its environmental effects in accordance with the requirements of

the directive, the national courts hearing an action for annulment of such a plan

are obliged to take all general or particular measures for remedying the failure to

carry out such an assessment (see, to that effect, Inter-Environnement Wallonie and

Terre wallonne, paragraphs 44 to 46).

44 Consequently, in the main proceedings, it is for the referring court, within the

exercise of its jurisdiction, to apply the provisions of European Union law and to give

full effect to those provisions, refusing to apply any provision of the BauGB, in

particular Paragraph 214(2a)(1) thereof, which would lead that court to deliver a

decision contrary to the directive (see, to that effect, Case 106/77 Simmenthal [1978]

ECR 629, paragraph 24, and Case C-617/10 Åkerberg Fransson [2013] ECR, paragraph 45).

45 In the light of the above considerations, the answer to the question referred is that

Article 3(5) of the directive, read in conjunction with Article 3(4) thereof, must be interpreted

as precluding national legislation such as that at issue in the main proceedings, pursuant to

which breach of a qualitative condition, imposed by the implementing provision of that

directive to exempt the adoption of a particular type of building plan from an environmental

assessment under that directive, is irrelevant to the legal validity of that plan.”

61. In the judgment of 10 September 2015, Dimos Kropias Attikis v Ypourgos Perivallontos,

Energeias kai Klimatikis Allagis, C-473/14, ECLI:EU:C:2015:582, the court said (emphasis added):

“50 Given the objective of Directive 2001/42, which consists in providing for a high level

of protection of the environment, the provisions which delimit the directive’s scope, in

particular those setting out the definitions of the measures envisaged by the directive, must

be interpreted broadly (judgment in Inter-Environnement Bruxelles and Others,

C‑567/10, EU:C:2012:159, paragraph 37). Any exceptions to or limitations of those

provisions must, consequently, be interpreted strictly.

51 Moreover, measures modifying plans and programmes necessarily result in

a modification of the legal reference framework and are therefore likely to have

effects on the environment, in some circumstances, significant ones, which have

not yet been the subject of an ‘environmental assessment’ within the meaning of

Directive 2001/42 (see, to that effect, judgment in Inter-Environnement Bruxelles and

Others, C‑567/10, EU:C:2012:159, paragraph 39).

52 The mere fact that the modifications made by the contested decree may be

intended to give more specific expression to and implement a master plan

contained in a measure which, in terms of the legislation, is hierarchically superior

cannot justify such measures being adopted without being subject to such an

assessment.

53 Indeed, an interpretation to that effect would be incompatible with the objectives of

Directive 2001/42 and would undermine its effectiveness, since it would mean that a

potentially broad category of measures modifying plans and programmes likely to give rise

to significant environmental effects is, on principle, excluded from the scope of that directive

even though those measures are expressly covered by the terms of Articles 2(a) and 3(2)(a)

of that directive.

54 That is particularly true as regards a measure such as the contested decree, since it

is common ground that the modifications made by it are substantive in nature and that the

master plan at issue in the main proceedings, namely the AMP relating to the greater Athens

area, even if it could be regarded as laying down sufficiently precise rules governing land

use, has not in any event been the subject of an environmental assessment within the

meaning of Directive 2001/42.

55 The rationale for the limitation of the scope of Directive 2001/42 to which the Court

referred in paragraph 42 of the judgment in Inter-Environnement Bruxelles and Others

(C‑567/10, EU:C:2012:159) is to avoid the same plan being subject to several environmental

assessments covering all the requirements of that directive.

56 The fact that Directive 2001/42 had not yet come into force when that master plan

was adopted is irrelevant in the light of the fact that that directive applies without exception

to any modifying measure adopted while the directive was in force.

57 Moreover, what is even more important in the main proceedings is the fact that the

plan that the contested decree is specifically intended to modify, namely the plan established

by the presidential decree of 31 August 1978, evidently was not the subject of an

environmental assessment analogous to that required under Directive 2001/42.

58 Lastly, even if the plans and programmes that the contested decree modifies have

already been subject to an assessment of their environmental effects under Directive 85/337

or ‘any other Community law requirements’ as provided for in Article 11(1) of Directive

2001/42 — a point which it is not possible to establish from the documents before the Court

— it is, in any event, for the referring court to determine whether such an assessment may

be regarded as being the result of a coordinated or joint procedure within the meaning of

Article 11(2) of Directive 2001/42 and whether it already complies with all the requirements

of Directive 2001/42, in which case there would no longer be an obligation to carry out a

new assessment for the purposes of that directive (judgment in Valčiukienė and Others,

C‑295/10, EU:C:2011:608, paragraph 62).

59 Having regard to all the foregoing considerations, the answer to the first two

questions is that Articles 2(a) and 3(2)(a) of Directive 2001/42 must be interpreted as

meaning that the adoption of a measure containing a plan or programme relating to town

and country planning and land use falling within the scope of Directive 2001/42 that modifies

an existing plan or programme may not be exempted from the obligation to carry out an

environmental assessment under that directive on the ground that that measure is intended

to give more specific expression to and implement a master plan established by a

hierarchically superior measure that has not itself been the subject of such an environmental

assessment.

The third and fourth questions

60 In the light of the answer given to the first two questions, it should be observed

that, as to whether Article 3(2)(b) of Directive 2001/42 also requires an environmental

assessment in respect of the plans and programmes laid down in the contested decree, the

third and fourth questions required an answer only if the Court held that those plans and

programmes do not have to be the subject of such an assessment under Article 3(2)(a) of

that directive.”

62. In the opinion of Advocate General Kokott delivered on 14 July 2016, Patrice D'Oultremont

and Others v Région Wallonne, C-290/15, ECLI:EU:C:2016:561 she said (notes omitted, emphasis

added):

“66. In order to distinguish plans and programmes not only from individual projects but

also, at the other end of the spectrum, from (even) more general rules, some of the parties

to the proceedings rely on Articles 7 and 8 of the Aarhus Convention and on the Kiev Protocol.

67. The types of measure concerned are defined in greatest detail in the Aarhus

Convention. The first to third sentences of Article 7 of that Convention provide for

appropriate arrangements to be made for public participation in connection with plans and

programmes relating to the environment. In addition, the fourth sentence of Article 7

requires the Contracting Parties to endeavour to make provision for public participation in

connection with policies relating to the environment. Lastly, in accordance with Article 8,

the Contracting Parties are to strive to promote public participation during the preparation

of executive regulations and other generally applicable legally binding rules that may have

a significant effect on the environment.

68. The Kiev Protocol, which is specifically concerned with strategic environmental

assessment, draws the same distinction. While the rules governing plans and programmes

are largely the same as those under the SEA Directive, the Protocol also contains an Article

13, which deals expressly with policies and legislation. In their preparation, the Contracting

Parties are required only to endeavour to take environmental concerns into consideration.

69. It seems inconceivable, however, that those international agreements should

provide a blueprint for the SEA Directive so far as concerns the definition of the

terms plan and programme. Neither the Aarhus Convention nor the Kiev Protocol

formed part of EU law at the time when the SEA Directive was adopted. Although

the Convention existed, it is not mentioned in the SEA Directive; in particular, it is

not the purpose of that directive to implement the Convention. While recital 7 of

the directive predates the Protocol, which was concluded later, and, according to

a declaration issued at the time when the Protocol was ratified, serves to

implement it, it does not follow even from this that the Protocol requires that the

directive be interpreted restrictively.

70. Moreover, the SEA Directive differs from those two international agreements inasmuch

as it does not contain any special provisions in relation to policies or general legislation that

would call for them to be distinguished from plans and programmes.

71. Furthermore, a restrictive interpretation of the terms plan and programme on that

basis would be incompatible both with the principle of the broad interpretation of the

conditions governing the application of the SEA Directive and with the overarching objective

of subjecting measures capable of having significant environmental effects to an

environmental assessment. It is not surprising that those two considerations carry less

weight in the case of international agreements with third countries. Those countries — unlike

the European Union under Article 3(3) TEU, second sentence, Article 191(2) TFEU and Article

37 of the Charter of Fundamental Rights — are not necessarily obliged to strive for a high

level of protection of the environment. Environmental agreements with third countries may

therefore contain compromises which fall short of the level of protection within the EU.

72. There is therefore no obligation to transpose the types of measure constituting plans

or programmes under the Aarhus Convention and the Kiev Protocol to the older SEA

Directive.

73. It would be more appropriate to be guided by the second sentence of Article 2(7) of

the Espoo Convention, which became part of EU law during the negotiations on the SEA

Directive and is therefore more reliable as a possible source of inspiration for that directive

than the aforementioned agreements. According to the authentic versions of that provision

(English, French and Russian), the Contracting Parties must, to the extent appropriate,

endeavour to apply the principles of environmental impact assessment to policies, plans and

programmes. Under that provision, all three types of measure are treated equally.”

63. In the judgment of 27 October 2016, Patrice D'Oultremont and Others v Région Wallonne,

Case C-290/15, ECLI:EU:C:2016:816, the court said (emphasis added):

“37 By its question, the referring court asks in essence whether Articles 2(a) and 3(2)(a)

of Directive 2001/42 must be interpreted as meaning that a regulatory order, such as that

at issue in the main proceedings, containing various provisions concerning the installation

of wind turbines which must be respected in the granting of administrative consent for the

installation and operation of such installations come under the definition of ‘plans and

programmes’ within the meaning of that directive.

38 First, it must be noted that it is apparent from recital 4 of Directive 2001/42 that

environmental evaluation is an important tool for integrating environmental considerations

into the preparation and adoption of certain plans and programmes.

39 Next, and as was stated by the Advocate General in point 34 of her Opinion, the

delimitation of the definition of ‘plans and programmes’ in relation to other measures not

coming within the material scope of Directive 2001/42 must be made with regard to the

specific objective laid down in Article 1 of that directive, namely to subject plans and

programmes which are likely to have significant effects on the environment to an

environmental assessment (see, to that effect, judgment of 28 February 2012, Inter-

Environnement Wallonie and Terre wallonne, C‑41/11, EU:C:2012:103, paragraph 40 and

the case-law cited).

40 Consequently, given the objective of Directive 2001/42, which is to provide for a

high level of protection of the environment, the provisions which delimit the directive’s

scope, in particular those setting out the definitions of the measures envisaged by the

directive, must be interpreted broadly (see, to that effect, judgments of 22 March 2012,

Inter-Environnement Bruxelles and Others, C‑567/10, EU:C:2012:159, paragraph 37, and

of 10 September 2015, Dimos Kropias Attikis, C‑473/14, EU:C:2015:582, paragraph 50).

41 As regards Article 2(a) of Directive 2001/42, the definition of ‘plans and

programmes’ laid down in that provision sets out the cumulative condition that they are,

first, subject to preparation and/or adoption by an authority at national, regional or local

level or are prepared by an authority for adoption, through a legislative procedure by

Parliament or Government, and, secondly, required by legislative, regulatory or

administrative provisions.

42 It follows from the findings of the referring court that the order of 13 February 2014

was prepared and adopted by a regional authority, in this case the Walloon Government,

and that that order is required by the provisions of the Decree of 11 March 1999.

43 For its part, Article 3(2)(a) of Directive 2001/42 provides, subject to paragraph 3 of

that article, that an environmental assessment is to be carried out for all plans and

programmes which are prepared, inter alia, for the energy sector and which set the

framework for future development consent for projects listed in Annexes I and II to Directive

2011/92.

44 It is also common ground that the order of 13 February 2014 concerns the energy

sector and that it helps to define the framework for the implementation, in the Walloon

Region, of wind farm projects which form part of the projects listed in Annex II to Directive

2011/92.

45 As for the term ‘plans and programmes’, whilst it is true that it must cover a specific

area, the fact nonetheless remains that it is not apparent from the wording of either Article

2(a) of Directive 2001/42 or Article 3(2)(a) of that directive that those plans or programmes

must concern planning for a given area. It follows from the wording of those provisions that

they cover, in the wider sense, regional and district planning in general.

46 According to the findings of the referring court, the order of 13 February 2014

concerns the entire Walloon Region and the limit values that it lays down in respect of noise

are closely connected with that region, since those limits are determined in relation to the

various uses of the geographical areas in question.

47 As regards the argument that the order of 13 February 2014 does not set out a

sufficiently complete framework concerning the wind power sector, it should be recalled that

the assessment of the criteria laid down in Articles 2(a) and 3(2)(a) of Directive 2001/42 for

determining whether an order, such as that at issue in the main proceedings, may come

within that definition must in particular be carried out in the light of the objective of

that directive, which, as is apparent from paragraph 39 of the present judgment,

is to make decisions likely to have significant environmental effects subject to an

environmental assessment.

48 Furthermore, as the Advocate General stated in point 55 of her Opinion, it is

necessary to avoid strategies which may be designed to circumvent the obligations

laid down in Directive 2001/42 by splitting measures, thereby reducing the practical

effect of that directive (see, to that effect, judgment of 22 March 2012, Inter-Environnement

Bruxelles and Others, C‑567/10, EU:C:2012:159, paragraph 30 and the case-law cited).

49 Having regard to that objective, it should be noted that the notion of ‘plans and

programmes’ relates to any measure which establishes, by defining rules and procedures for

scrutiny applicable to the sector concerned, a significant body of criteria and detailed

rules for the grant and implementation of one or more projects likely to have

significant effects on the environment (see, to that effect, judgment of 11 September

2012, Nomarchiaki Aftodioikisi Aitoloakarnanias and Others, C‑43/10, EU:C:2012:560,

paragraph 95 and the case-law cited).

50 In the present case, it should be noted that the order of 13 February 2014 concerns,

in particular, technical standards, operating conditions (particularly shadow

flicker), the prevention of accidents and fires (inter alia, the stopping of the wind

turbine), noise level standards, restoration and financial collateral for wind

turbines. Such standards have a sufficiently significant importance and scope in

the determination of the conditions applicable to the sector concerned and the

choices, in particular related to the environment, available under those standards

must determine the conditions under which actual projects for the installation and

operation of wind turbine sites may be authorised in the future.

51 Lastly, relying on the Aarhus Convention and the Kiev Protocol, the French

Government seeks to distinguish the notion of ‘plans and programmes’ from that of ‘general

rules’, under which it claims that the order of 13 February 2014 comes, with the result that

that order does not come within the scope of Directive 2001/42.

52 In that regard, it should be noted that it is apparent from the actual wording of

Article 2(a), first indent, of that directive, borne out by the case-law referred to in paragraph

49 of the present judgment, that the notion of ‘plans and programmes’ can cover normative

acts adopted by law or regulation.

53 Moreover, as the Advocate General stated in point 70 of her Opinion, Directive

2001/42 differs from the Aarhus Convention and the Kiev Protocol inasmuch as that directive

does not contain any special provisions in relation to policies or general legislation that would

call for them to be distinguished from ‘plans and programmes’.

54 It follows from all of the foregoing that the answer to the question referred is that

Articles 2(a) and 3(2)(a) of Directive 2001/42 must be interpreted as meaning that a

regulatory order, such as that at issue in the main proceedings, containing various

provisions on the installation of wind turbines which must be complied with when

administrative consent is granted for the installation and operation of such

installations comes within the notion of ‘plans and programmes’, within the meaning

of that directive.”

64. In the judgment of 21 December 2016, Associazione Italia Nostra Onlus v Comune di Venezia

and Others, Case C-444/15, ECLI:EU:C:2016:978, the CJEU held:

“1. The examination of the first question referred has disclosed no factor of such a kind

as to affect the validity of Article 3(3) of Directive 2001/42/EC of the European Parliament

and of the Council of 27 June 2001 on the assessment of the effects of certain plans and

programmes on the environment, in the light of the provisions of the TFEU and the Charter

of Fundamental Rights of the European Union.

2. Article 3(3) of Directive 2001/42, read in conjunction with recital 10 of that directive,

must be interpreted to the effect that the term ‘small areas at local level’ in paragraph 3

must be defined with reference to the size of the area concerned where the following

conditions are fulfilled:

— the plan or programme is prepared and/or adopted by a local authority, as opposed to

a regional or national authority, and

— that area inside the territorial jurisdiction of the local authority is small in size relative

to that territorial jurisdiction.”

65. In the judgment of 7 June 2018, Inter-Environnement Bruxelles ASBL and Others v Région

de Bruxelles-Capitale, Case C-671/16, ECLI:EU:C:2018:403, the court held (emphasis added):

“Article 2(a) of the SEA Directive

36 Article 2(a) of the SEA Directive defines the ‘plans and programmes’ covered by that

provision as being plans and programmes that satisfy two cumulative conditions, namely (i)

they have been prepared and/or adopted by an authority at national, regional or local level

or have been prepared by an authority for adoption, through a legislative procedure, by

Parliament or Government, and (ii) they are required by legislative, regulatory or

administrative provisions.

37 The Court has interpreted that provision to mean that 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’ within the meaning, and for the application, of the SEA Directive and,

accordingly, be subject to an assessment of their environmental effects in the circumstances

which it lays down (judgment of 22 March 2012, Inter-Environnement Bruxelles and Others,

C‑567/10, EU:C:2012:159, paragraph 31).

38 Excluding from the scope of the SEA Directive those plans and programmes

whose adoption is not compulsory would compromise the practical effect of that

directive, having regard to its objective, which consists in providing for a high level of

protection of the environment (see, to that effect, judgment of 22 March 2012, Inter-

Environnement Bruxelles and Others, C‑567/10, EU:C:2012:159, paragraphs 28 and 30).

39 In the present case, it follows from the findings of the referring court that the

contested decree was adopted by a regional authority on the basis of Article 88 et seq. of

the CoBAT.

40 Accordingly, the conditions set out in paragraph 36 above are satisfied.

Article 3 of the SEA Directive

41 It should be noted that Article 3(2)(a) of the SEA Directive provides that a systematic

environmental assessment is to be carried out for all plans and programmes which (i) are

prepared for certain sectors and (ii) set the framework for future development consent of

projects listed in Annexes I and II to the EIA Directive (see, to that effect, judgment of 17

June 2010, Terre wallonne and Inter-Environnement Wallonie, C‑105/09 and C‑110/09,

EU:C:2010:355, paragraph 43).

42 Regarding the first of those conditions, it follows from the wording of Article 3(2)(a)

of the SEA Directive that that provision covers, in particular, ‘town and country planning or

land use’.

43 As the European Commission notes, the fact that that provision refers both to ‘town

and country planning’ and ‘land use’ clearly shows that the sector mentioned is not limited

to land use sensu stricto, namely the dividing of land into zones and the defining of activities

permitted within those zones, but necessarily covers a broader field.

44 It is apparent from Article 88 of the CoBAT that regional town planning regulations

are to concern, in particular, buildings and their surroundings in terms of, inter alia,

highways, preservation, safety, salubriousness, energy, acoustics, waste management, and

aesthetics.

45 Accordingly, such measures fall within the category of ‘town and country planning

or land use’ for the purpose of Article 3(2)(a) of the SEA Directive.

46 Concerning the second of those conditions, 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 (see,

to that effect, judgment of 17 June 2010, Terre wallonne and Inter-Environnement Wallonie,

C‑105/09 and C‑110/09, EU:C:2010:355, paragraph 45).

47 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.

48 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.

49 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.

50 More specifically, that measure contains provisions concerning, inter alia: the

number, location, height and surface area of buildings; construction-free spaces,

including flower beds and vegetable patches in those spaces; rainwater collection,

including the construction of stormwater collection tanks and storage tanks; the

designing of buildings in line with their potential use, how long they will be used

for and their eventual dismantling; the biotope coefficient, namely the relationship

between areas that can be developed ecologically and total surface area;

converting roofs with a view to, inter alia, landscape integration and greening.

51 Regarding the purpose of the contested decree, it pursues an objective of

transforming the district into a ‘dense, mixed urban’ area and is intended to achieve the

‘redevelopment of the whole of the European Quarter’. More specifically, that decree

contains a chapter entitled ‘Provisions relating to the composition of the planning permission

and certificate application file’ which lays down not only the substantive rules that will have

to be applied when permission is granted, but also the procedural rules relating to the

composition of applications for urban planning permission and certificates.

52 It follows that a decree such as the one at issue in the main proceedings contributes,

by both its content and its purpose, to the implementation of projects listed in that annex.

53 In the second place, regarding the question whether the contested decree sets the

framework for future development consent of such projects, the Court has already held that

the notion of ‘plans and programmes’ relates to any measure which establishes, by defining

rules and procedures for scrutiny applicable to the sector concerned, a significant body of

criteria and detailed rules for the grant and implementation of one or more projects likely to

have significant effects on the environment (judgment of 27 October 2016, D’Oultremont

and Others, C‑290/15, EU:C:2016:816, paragraph 49 and the case-law cited).

54 That interpretation of the concept of ‘plans and programmes’ is intended to ensure,

as was noted by the Advocate General in point 23 of her Opinion, that provisions which are

likely to have significant effects on the environment are subject to an environmental

assessment.

55 Therefore, as was noted by the Advocate General in points 25 and 26 of her Opinion,

the concept of ‘a significant body of criteria and detailed rules’ must be construed

qualitatively and not quantitatively. It is necessary to avoid strategies which may

be designed to circumvent the obligations laid down in the SEA Directive by

splitting measures, thereby reducing the practical effect of that directive (see, to

that effect, judgment of 27 October 2016, D’Oultremont and Others, C‑290/15,

EU:C:2016:816, paragraph 48 and the case-law cited).

56 It is apparent from reading the contested decree that that measure contains, inter

alia, provisions concerning the development of areas situated in the areas around buildings

and other construction-free spaces, areas on which building is permissible, courtyard and

garden areas, fences, hedges and boundary walls, pipes and cables connecting buildings

with networks and sewers, collection of rainwater, and various building features, including

whether they can be converted and are sustainable, certain external aspects thereof, and

vehicle access thereto.

57 Having regard to the way in which they are defined, the criteria and detailed rules

established by such a measure may, as was noted by the Advocate General in point 30 of

her Opinion, have significant effects on the urban environment.

58 Such criteria and detailed rules are, as has been emphasised by the Commission,

likely to have an effect on lighting, wind, the urban landscape, air quality, biodiversity, water

management, the sustainability of buildings and, more generally, emissions within the area

concerned. More particularly, as is stated in the preamble of the contested decree, the size

and layout of high rise buildings are likely to give rise to undesirable effects in terms of

shade and wind.

59 Having regard to those elements, the existence and extent of which are nonetheless

for the referring court to verify in respect of the measure concerned, it must be found that

a measure such as that at issue in the main proceedings falls within the definition of ‘plans

and programmes’ which must be subjected to an environmental impact assessment as

provided for in Article 3(1) and (2) of the SEA Directive.

60 Such a finding cannot be called in question by the objection raised by the Belgian

Government relating to the general nature of the regulations at issue in the main

proceedings. Indeed, besides the fact that it is apparent from the actual wording of the first

indent of Article 2(a) of the SEA Directive that the notion of ‘plans and programmes’ can

cover normative acts adopted by law or regulation, that directive does not contain any

special provisions in relation to policies or general legislation that would call for them to be

distinguished from plans and programmes for the purpose of that directive. Moreover, the

fact that RZTPRs, such as those at issue in the main proceedings, contain general rules,

express some abstract ideas, and pursue an objective of transforming an area is illustrative

of their planning and programming aspect and does not prevent them from being included

in the definition of ‘plans and programmes’ (see, to that effect, judgment of 27 October

2016, D’Oultremont and Others, C‑290/15, EU:C:2016:816, paragraphs 52 and 53).

Potential accumulations of environmental impact assessments

61 The referring court indicates that the future planning permission applications, the

rules relating to the composition of whose files are defined by the RZTPRs at issue in the

main proceedings, will be subjected to an environmental impact assessment.

62 It should be borne in mind that the fundamental objective of the SEA Directive is to

ensure that ‘plans and programmes’ which are likely to have significant effects on the

environment are subject to an environmental assessment when they are prepared and prior

to their adoption (see, to that effect, judgment of 28 February 2012, Inter-Environnement

Wallonie and Terre wallonne, C‑41/11, EU:C:2012:103, paragraph 40 and the case-law

cited).

63 In that regard, it is apparent from Article 6(2) of that directive that the

environmental assessment is supposed to be carried out as soon as possible so that its

conclusions may still have an influence on any potential decision-making. Indeed, it is at

that stage that the various alternatives may be analysed and strategic choices may be made.

64 In addition, while Article 5(3) of the SEA Directive provides for the possibility of

using relevant information obtained at other levels of decision-making or through other EU

legislation, Article 11(1) of that directive states that an environmental assessment carried

out under that directive is to be without prejudice to any requirements under the EIA

Directive.

65 Furthermore, an environmental impact assessment report completed under the EIA

Directive cannot be used to circumvent the obligation to carry out the environmental

assessment required under the SEA Directive in order to address environmental aspects

specific to that directive.

66 Thus, the fact, raised by the referring court, that the future planning

permission applications will be subjected to an impact assessment procedure

under the EIA Directive is not capable of calling in question the need to carry out

an environmental assessment of a plan or a programme falling within the scope of

Article 3(2)(a) of the SEA Directive and establishing the framework within which those

town planning projects will subsequently be authorised, unless an assessment of the

environmental effects of that plan or programme, as referred to in paragraph 42 of the

judgment of 22 March 2012, Inter-Environnement Bruxelles and Others (C‑567/10,

EU:C:2012:159), has already been carried out.

67 In the light of all of the foregoing, the answer to the question referred is that, on a

proper construction of Article 2(a), Article 3(1), and Article 3(2)(a) of the SEA Directive,

regional town planning regulations, such as those at issue in the main proceedings, laying

down certain requirements for the completion of building projects, fall under the definition

of ‘plans and programmes’ which are likely to have significant environmental effects within

the meaning of that directive and must, consequently, be subjected to an environmental

impact assessment.”

66. This constitutes a broad endorsement of the Advocate General’s opinion in that case on the

“framework” issue. In the Opinion of Advocate General Kokott delivered on 25 January 2018, Inter-

Environnement Bruxelles ASBL and Others v Région de Bruxelles-Capitale, C‑671/16,

ECLI:EU:C:2018:39, she stated (notes omitted, emphasis added):

“Interpretation of the two terms ‘plans and programmes’ in the light of the judgment in

D’Oultremont

18. In reality, the Council of State’s concern is not Article 2(a) of the SEA Directive, but

rather whether there are other features that are of relevance when seeking to ascertain

whether a measure such as the zoned town planning regulations at issue are a plan or a

programme.

19. The starting point for the answer to this question is that the environmental

assessment, as indicated in recital 4 of the SEA Directive, is an important tool for integrating

environmental considerations into the preparation and adoption of certain plans and

programmes. In addition, the distinction between the two terms ‘plans and programmes’

and other measures not falling within the material scope of the directive must be drawn by

reference to the specific objective laid down in Article 1 to the effect that plans and

programmes which are likely to have significant effects on the environment are subject to

an environmental assessment. Therefore, the Court has held that, given the objective of

that directive, which consists in providing for a high level of protection of the environment,

the provisions which delimit its scope, in particular those setting out the definitions of the

measures envisaged by the directive, must be interpreted broadly.

20. The case-law to date has essentially concerned plans and programmes for which an

environmental assessment under Article 3(2)(a) of the SEA Directive applied. In accordance

with that provision, an environmental assessment is to be carried out for all plans and

programmes which are prepared for agriculture, forestry, fisheries, energy, industry,

transport, waste management, water management, telecommunications, tourism, town and

country planning or land use and which set the framework for future development consent

of projects covered by the EIA Directive. Moreover, a framework for development consent

of projects which are not covered by the EIA Directive may require an environmental

assessment under Article 3(4) of the SEA Directive.

21. The establishment of a framework for subsequent decisions is characteristic

of measures which form part of a regulatory hierarchy. In that regard, the

provisions are specified in increasingly greater detail in the run-up to the final

decision on the individual case, for example a development consent. At the same

time, however, any margins for manoeuvre in the decision on the individual case

are, generally, already limited by higher-ranking measures; in the case of

development consent, for example, rules on the possible development or use of

certain areas. In this hierarchical model, the SEA Directive is intended to ensure

that specifications which are likely to have significant effects on the environment

are made only after those effects have been assessed.

22. Against that background, the Court’s ruling in D’Oultremont must be considered. In

accordance with that judgment, the two terms ‘plans and programmes’ ‘relate … to any

measure which establishes, by defining rules and procedures for scrutiny applicable to the

sector concerned, a significant body of criteria and detailed rules for the grant and

implementation of one or more projects likely to have significant effects on the environment’.

23. On the one hand, in a regulatory hierarchy, that interpretation of the two terms ‘plans

and programmes’ in the judgment in D’Oultremont is intended to ensure that provisions

which have significant effects on the environment are subject to an environmental

assessment. On the other hand, for the purposes of a de minimis rule, it is also intended to

prevent an environmental assessment being mandatory for individual criteria or rules which

are determined in isolation.

24. Denmark therefore emphasises that a significant body of criteria and detailed rules

implies a number of specifications and these specifications must also carry a certain weight.

25. However, I do not find a quantitative approach, which focuses on the number of

specifications, convincing. For, the Court has also held that it is necessary to avoid strategies

which may be designed to circumvent the obligations laid down in the SEA Directive by

splitting measures, thereby reducing the practical effect of that directive.

26. Consequently, the clarification of the criterion of a ‘significant body’ should be aligned

qualitatively to the specific objective laid down in Article 1 of the SEA Directive, inter alia, to

subject plans and programmes which are likely to have significant effects on the environment

to an environmental assessment.

27. The establishment of criteria and rules for the development consent and

implementation of projects which are likely to have significant effects on the environment

must therefore be regarded as a significant body and thus as a plan or programme if those

environmental impacts of the projects derive precisely from the criteria and rules in question.

However, if the criteria and detailed rules established cannot have significant effects on the

environment, a significant body does not exist and, therefore, nor does a plan or programme.

28. When assessing whether a plan or a programme within the meaning of Article 2(a)

of the SEA Directive exists, it is therefore necessary to ascertain whether the specifications

in the measure in question are likely to have significant effects on the environment.”

67. In her Opinion delivered on 25 January 2018, Raoul Thybaut and Others v Région

Wallonne, C-160/17, ECLI:EU:C:2018:40, Advocate General Kokott said (notes omitted, emphasis

added):

“29. Enabling a derogation from existing requirements is similar to repealing those

requirements as, by establishing an urban land consolidation area, projects that have

significant effects on the environment and that previously conflicted with the requirements

contained in existing plans may, in principle, be implemented in that area. Those

requirements might be, for instance, restrictions on building size or land use that must no

longer be observed.

30. This constitutes, albeit indirectly, a potentially significant number of criteria and

detailed rules for the grant and implementation of projects. Consequently, the land in

question will be attractive for a variety of projects that are reliant upon derogations from

existing planning requirements.

31. In respect of the repeal of plans and programmes, the Court has already held that,

in light of the characteristics and the effects of the measures repealing a plan or programme,

to regard those measures as excluded from the scope of the SEA Directive would be contrary

to the objectives pursued by the European Union legislature and would be such as to

compromise, in part, the practical effect of the directive as, by removing the requirements

of a plan or programme, the framework for future development consent of projects will also

be significantly affected. These considerations apply equally to the possibility of derogating

from existing planning requirements.

…

41. However, whether or not the establishment of an urban land consolidation

area must in fact be regarded as significant within the meaning of the judgment in

D’Oultrement depends on the requirements laid down in the existing plans from

which a derogation is possible. The greater those requirements, the more

significant the possibility of derogation becomes.”

68. In the judgment of 7 June 2018, Raoul Thybaut and Others v Région Wallonne, C-160/17,

ECLI:EU:C:2018:401, the CJEU stated (emphasis added):

“38 As a preliminary matter, the Court notes that, as is clear from recital 4 of the SEA

Directive, environmental assessment is an important tool for integrating environmental

considerations into the preparation and adoption of certain plans and programmes.

39 Next, under Article 1, the objective of the SEA Directive is to provide for a high

level of protection of the environment and to contribute to the integration of

environmental considerations into the preparation and adoption of plans and programmes

with a view to promoting sustainable development, by ensuring that, in accordance with that

directive, an environmental assessment is carried out of certain plans and programmes

which are likely to have significant effects on the environment (judgment of 21 December

2016, Associazione Italia Nostra Onlus, C‑444/15, EU:C:2016:978, paragraph 47).

40 Lastly, given the objective of the SEA Directive, which is to provide for such a high

level of protection of the environment, the provisions which delimit the scope of the directive,

in particular those setting out the definitions of the measures envisaged by the directive,

must be interpreted broadly (judgment of 27 October 2016, D’Oultremont and Others,

C‑290/15, EU:C:2016:816, paragraph 40 and the case-law cited).

41 It is in the light of the foregoing considerations that the question referred must be

answered.

42 In the first place, Article 2(a) of the SEA Directive defines the ‘plans and

programmes’ to which it refers as being those which satisfy two cumulative conditions,

namely, first, that they have been subject to preparation and/or adoption by an authority at

national, regional or local level or prepared by an authority for adoption, through a legislative

procedure by Parliament or Government, and, secondly, that they are required by legislative,

regulatory or administrative provisions.

43 The Court has interpreted that provision as meaning that plans and programmes the

adoption of which 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 being ‘required’ within the meaning, and for the application, of

the SEA Directive and, accordingly, must be subject to an assessment of their environmental

effects in the circumstances which it lays down (judgment of 22 March 2012, Inter-

Environnement Bruxelles and Others, C‑567/10, EU:C:2012:159, paragraph 31).

44 In the present case, it can be inferred from the findings of the referring court that

the contested order was adopted by a regional authority on the basis of Article 127 of the

Walloon Code.

45 It follows that the conditions referred to in paragraph 42 above are satisfied.

46 In the second place, Article 3(2)(a) of the SEA Directive provides that a systematic

environmental assessment is to be carried out for all plans and programmes which, first, are

prepared for certain sectors and, second, set the framework for future development consent

of projects listed in Annexes I and II to the EIA Directive (see, to that effect, judgment of

17 June 2010, Terre wallonne and Inter-Environnement Wallonie, C‑105/09 and C‑110/09,

EU:C:2010:355, paragraph 43).

47 As regards the first of those conditions, it is clear from the wording of Article 3(2)(a)

of the SEA Directive that that provision covers, inter alia, the sector of ‘town and country

planning or land use’.

48 The fact that that provision refers both to ‘town and country planning’ and to ‘land

use’ indicates clearly that the targeted sector is not confined to land use stricto sensu,

namely the division of an area into zones and the determination of the activities

permitted within those zones, but that that sector is necessarily broader in its

scope.

49 A consolidation area, such as that at issue in the main proceedings, 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.

50 As regards the second of the conditions mentioned in paragraph 46 above, in order

to ascertain whether a consolidation area, such as that at issue in the main proceedings,

sets 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 that

instrument, taking into account the scope of the environmental assessment of projects as

provided for by that directive (see, to that effect, judgment of 17 June 2010, Terre wallonne

and Inter-Environnement Wallonie, C‑105/09 and C‑110/09, EU:C:2010:355, paragraph

45).

51 Infrastructure projects feature among the projects listed in Annex II to the EIA

Directive, under Part 10 thereof, which include urban development projects in subparagraph

(b) of that part.

52 It follows from the wording of Article 127 of the Walloon Code that the purpose of a

consolidation area, such as that at issue in the main proceedings, is to determine the

boundaries of a geographical area in which ‘urban development plans 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.

53 Thus, having regard to its content and purpose, such an instrument, in so far as it

posits that infrastructure projects will be carried out, in general, and urban development

projects, in particular, contributes to the implementation of the projects listed in that

annex.

54 As to whether an instrument, such as the contested instrument, sets the framework

for future development consent of projects, it should be noted that the Court has previously

held that the notion of ‘plans and programmes’ relates to any measure which establishes,

by defining rules and procedures for scrutiny applicable to the sector concerned, a significant

body of criteria and detailed rules for the grant and implementation of one or more projects

likely to have significant effects on the environment (judgment of 27 October 2016,

D’Oultremont and Others, C‑290/15, EU:C:2016:816, paragraph 49 and the case-law cited).

55 In that regard, the concept of ‘a significant body of criteria and detailed rules’ must

be understood qualitatively and not quantitatively. It is necessary to avoid strategies which

may be designed to circumvent the obligations laid down in the SEA Directive by splitting

measures, thereby reducing the practical effect of that directive (see, to that effect,

judgment of 27 October 2016, D’Oultremont and Others, C‑290/15, EU:C:2016:816,

paragraph 48 and the case-law cited).

56 In the present case, it is clear from the findings of the referring court that, although

a consolidation area, such as that at issue in the main proceedings, does not in itself lay

down any positive requirements, it does, however, allow for derogation from

existing requirements for plans. That court has made it clear that determining the

boundaries of the consolidation area in the contested order 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 has noted in that context that, under Article 127(3) of the Walloon

Code and the requirements laid down by it, planning permissions given for the geographical

area within a consolidation area may depart from the sectoral plan, a municipal development

plan and local planning rules.

57 In that regard, in so far as a sectoral plan, a municipal development plan and

local planning rules are themselves plans and programmes within the meaning of

the SEA Directive, a consolidation area, such as that at issue in the main

proceedings, given that it amends the framework laid down by those plans, must

also be characterised as such and be subject to the same rules of law.

58 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.

59 Having regard to those factors, which it nevertheless remains a matter for the

referring court to verify and to assess their significance in respect of the instrument in

question, it must be held that an instrument, such as that at issue in the main proceedings,

comes within the concept of ‘plans and programmes’, within the meaning of Article 2(a),

Article 3(1) and Article 3(2) of the SEA Directive, and must be subject to an environmental

impact assessment.

60 In the third and final place, the referring court states that, although determining the

boundaries of a consolidation area involves acceptance of the principle of an urban

development plan, the latter will, however, still be subject to planning permission which will

require an impact assessment within the meaning of the EIA Directive.

61 The Court notes that the fundamental objective of the SEA Directive is to ensure

that ‘plans and programmes’ which are likely to have significant effects on the environment

are subject to an environmental assessment when they are prepared and prior to their

adoption (see, to that effect, judgment of 28 February 2012, Inter-Environnement Wallonie

and Terre wallonne, C‑41/11, EU:C:2012:103, paragraph 40 and the case-law cited).

62 In that regard, as the Advocate General stated in point 39 of her Opinion, it is clear

from Article 6(2) of the SEA Directive that the environmental assessment should be carried

out at the earliest possible stage so that the results of that assessment are still capable

of influencing any decisions. It is indeed at that stage that the various elements of an

alternative may be analysed and strategic choices made.

63 In addition, although Article 5(3) of the SEA Directive provides for the possibility of

using relevant information obtained at other levels of decision-making or through other EU

legislation, Article 11(1) of that directive specifies that an environmental assessment carried

out under that directive is to be without prejudice to any requirements under the EIA

Directive.

64 Furthermore, an assessment of the effects on the environment carried out under the

EIA Directive cannot lead to an exemption from the obligation to carry out the environmental

assessment required by the SEA Directive for the purposes of addressing the environmental

aspects particular to the SEA Directive.

65 In so far as an order, such as that at issue in the main proceedings, entails,

as set out in paragraph 58 above, a change in the legal framework of reference

which offers, without any conditions, the possibility of departing from the planning

rules in respect of all projects subsequently carried out in the relevant

geographical area, that possibility is liable to have significant effects on the

environment. Thus, subject to the verifications which the referring court must

carry out, an alteration in the effects assessed in advance makes a new

environmental impact assessment necessary.

66 Such a finding safeguards the practical effect of the SEA Directive by ensuring that

any possible significant effects on the environment are subject to an environmental

assessment.

67 In the light of the foregoing considerations, the answer to the question referred is

that Article 2(a), Article 3(1) and Article 3(2)(a) of the SEA Directive must be interpreted as

meaning that an order adopting a consolidation area, the sole purpose of which is to

determine a geographical area within which an urban development plan may be carried out

with the objective of renovating and developing urban functions and requiring the creation,

modification, removal or overhang of roads and public spaces in carrying out that plan, in

respect of which it will be permissible to derogate from certain planning requirements,

comes, because of that possibility of derogation, within the concept of ‘plans and

programmes’ likely to have significant effects on the environment within the meaning of that

directive, thereby necessitating an environmental assessment.”

69. In the judgment of 8 May 2019, Associazione "Verdi Ambiente e Società - Aps Onlus" (VAS)

and “Movimento Legge Rifiuti Zero per l'Economia Circolare” Aps v Presidente del Consiglio dei

Ministri and Others, C-305/18, ECLI:EU:C:2019:384, the CJEU stated (emphasis added):

“55 Moreover, as suggested by that court, the increase in operational capacity of waste

incineration facilities casts doubt on the adequacy of the assessments which had been carried

out previously in order to authorise the entry into service of existing incineration facilities.

56 In addition, the fact that an environmental assessment for the purposes of the SEA

Directive will be carried out subsequently, when planning at regional level is undertaken,

has no bearing on the applicability of the provisions relating to such an assessment. An

assessment of the effects on the environment carried out under the EIA Directive cannot

lead to an exemption from the obligation to carry out the environmental assessment required

by the SEA Directive for the purposes of addressing the environmental aspects particular to

the SEA Directive. An environmental impact assessment report completed under the EIA

Directive cannot be used to circumvent the obligation to carry out the environmental

assessment required under the SEA Directive in order to address environmental aspects

specific to that directive (judgment of 7 June 2018, Thybaut and Others, C‑160/17,

EU:C:2018:401, paragraph 64).

57 Furthermore, and in any event, the objection raised by the Italian Government that

the second condition set out in Article 3(2)(a) of the SEA Directive is not satisfied since the

national legislation at issue in the main proceedings does not constitute a framework of

reference must be rejected. The fact that national legislation expresses some

abstract ideas, and pursues an objective of transforming the existing framework

is illustrative of its planning and programming aspect and does not prevent it from

being included in the notion of ‘plans and programmes’ (see, to that effect, judgment

of 7 June 2018, Inter-Environnement Bruxelles and Others, C‑671/16, EU:C:2018:403,

paragraph 60 and the case-law cited).

58 Such an interpretation is supported, first, by the requirements stemming from Article

6 of the SEA Directive, read in the light of recitals 15 to 18 thereof, to the extent that that

directive not only aims to contribute to environmental protection, but also to enable the

public to take part in the decision-making process. Second, as is apparent from Article 4(1)

of that directive, ‘the environmental assessment … shall be carried out during the

preparation of a plan or programme and before its adoption or submission to the legislative

procedure’. Similarly, it is apparent from Article 6(2) of that directive that the environmental

assessment is supposed to be carried out as soon as possible so that its conclusions may

still have an influence on any potential decision-making. Indeed, it is at that stage that the

various options may be analysed and strategic choices may be made (see, to that effect,

judgments of 20 October 2011, Seaport (NI) and Others, C‑474/10, EU:C:2011:681,

paragraph 45, and of 7 June 2018, Inter-Environnement Bruxelles and Others, C‑671/16,

EU:C:2018:403, paragraph 63).

59 In the light of those elements, the existence and extent of which are for the referring

court to assess having regard to the legislation concerned, it must be found that national

legislation increasing the capacity of existing waste incineration facilities and creating new

installations of that kind, such as that at issue in the main proceedings, may come under

the notion of ‘plans and programmes’, within the meaning of Article 3(1) and (2) of the SEA

Directive, which must be subject to an environmental assessment.

60 It follows that the answer to the third question is that Article 2(a), Article 3(1), and

Article 3(2)(a) of the SEA Directive must be interpreted as meaning that national

legislation, such as that at issue in the main proceedings, comprising basic

legislation and implementing legislation, which revises upwards the capacity of

existing waste incineration facilities and which provides for the construction of

new installations of that kind, comes under the notion of ‘plans and programmes’,

within the meaning of that directive, where it is likely to have significant environmental

effects and must, consequently, be subject to a prior environmental assessment.”

70. In the judgment of 12 June 2019, Terre wallonne ASBL v Région Wallonne, C-321/18,

ECLI:EU:C:2019:484, the CJEU stated (emphasis added):

“40 As the Advocate General observes in point 69 of her Opinion, the obligation to carry

out an environmental assessment, laid down in Article 3(4) of the SEA Directive, like the

assessment requirement under Article 3(2)(a) of that directive, is dependent on whether the

plan or programme in question sets the framework for future development consent of

projects.

41 In that connection, the Court has ruled that the notion of ‘plans and programmes’

relates to any measure which establishes, by defining rules and procedures, a significant

body of criteria and detailed rules for the grant and implementation of one or more projects

likely to have significant effects on the environment (judgments of 27 October 2016,

D’Oultremont and Others, C‑290/15, EU:C:2016:816, paragraph 49 and the case-law cited,

and of 8 May 2019, Verdi Ambiente e Società (VAS) — Aps Onlus and Others, C‑305/18,

EU:C:2019:384, paragraph 50 and the case-law cited).

42 In the present case, the Decree of 1 December 2016 does not set out conservation

objectives for specific sites, but summarises them for the Walloon region as a whole.

Furthermore, it is apparent from the third subparagraph of Article 25a(1) of the Law of 12

July 1973 that the conservation objectives at Walloon Region level have indicative

value only, whereas the second subparagraph of Article 25a(2) provides that the

conservation objectives applicable at the level of Natura 2000 sites have statutory value.

43 In the light of those factors, it must be held that a measure, such as that at issue in

the main proceedings, fails to satisfy the condition recalled in paragraph 41 of the present

judgment, in that it does not set a framework for future development consent of projects,

with the effect that it does not come within the scope either of Article 3(2)(a) or Article 3(4)

of the SEA Directive.

44 In the light of the foregoing, the answer to the questions referred is that Article 3(2)

and (4) of the SEA Directive must be interpreted as meaning that a decree, such as that at

issue in the main proceedings, by which a body of a Member State establishes, at regional

level for its Natura 2000 network, conservation objectives which have an indicative value,

whereas the conservation objectives at site level have a statutory value, is not one of the

‘plans and programmes’, within the meaning of that directive, for which an environmental

impact assessment is mandatory.”

71. In the judgment of 12 June 2019, Compagnie d'entreprises CFE SA v Région de Bruxelles-

Capitale, C‑43/18, ECLI:EU:C:2019:483, the CJEU stated (emphasis added):

“64 It is apparent from the judgments of 7 June 2018, Inter-Environnement Bruxelles

and Others (C‑671/16, EU:C:2018:403, paragraph 55), and Thybaut and Others (C‑160/17,

EU:C:2018:401, paragraph 55), that the concept of ‘a significant body of criteria and detailed

rules’ must be construed qualitatively.

65 Undoubtedly, as the Advocate General noted in point 91 of her Opinion, the decree

of 14 April 2016, and particularly Article 15 thereof, contains a number of prohibitions.

However, it is for the referring court to determine whether those prohibitions apply

only to projects not requiring consent.

66 If that court were to determine that to be the case, it would follow that the

characteristics and normative properties of a decree such as that of 14 April 2016

do not set the framework for future development consent of other projects.

67 Thus, in so far as such a measure would not satisfy the conditions referred to in

paragraphs 61 to 64 of this judgment, it would not constitute a plan or a programme

requiring an environmental assessment within the meaning of Article 3(2) and (4) of the

SEA Directive.

68 That consideration does not contradict the guidance in the judgment of 17 June

2010, Terre wallonne and Inter-Environnement Wallonie (C‑105/09 and C‑110/09,

EU:C:2010:355), in which the Court held that an action programme adopted pursuant to

Article 5(1) of the Nitrates Directive is, in principle, a plan or programme requiring an

environmental assessment under Article 3 of the SEA Directive.

69 That judgment was given in circumstances where an overall analysis had

demonstrated, first, that the specific nature of the action programmes concerned lay in the

fact that they embodied a comprehensive and coherent approach, providing practical and

coordinated arrangements. Second, as regards the content of the action programmes, it is

apparent from Article 5 of the Nitrates Directive, amongst other provisions, that those

programmes contained specific, mandatory measures (see, to that effect, judgment of 17

June 2010, Terre wallonne and Inter-Environnement Wallonie, C‑105/09 and C‑110/09,

EU:C:2010:355, paragraphs 47 and 48).

70 Furthermore, it should be emphasised that, as the Advocate General noted in points

76 and 77 of her Opinion, a measure such as the decree of 14 April 2016 generally

forms part of a hierarchy of measures with those preceding it, and may therefore

constitute a modification of a plan or programme, and be subject on that basis,

equally, to the requirement for an environmental assessment.

71 In that regard, the Court has repeatedly held that the concept of ‘plans and

programmes’ not only includes their preparation, but also their modification, this being

intended to ensure that provisions which are likely to have significant environmental effects

are subject to an environmental assessment (judgment of 8 May 2019, Verdi Ambiente e

Società (VAS) — Aps Onlus and Others, C‑305/18, EU:C:2019:384, paragraph 52 and the

case-law cited).

72 At the same time, it is important to avoid the same plan being subject to several

environmental assessments covering all the requirements of the SEA Directive (see, to that

effect, judgment of 10 September 2015, Dimos Kropias Attikis, C‑473/14, EU:C:2015:582,

paragraph 55).

73 To that end, and provided that the assessment of their effects has already been

carried out, a measure does not fall within the meaning of ‘plans and programmes’

if it is part of a hierarchy of measures which have themselves been the subject of

an assessment of their environmental effects and it may reasonably be considered

that the interests which the SEA Directive is designed to protect have been taken

into account sufficiently within that framework (see, to that effect, judgment of 22

March 2012, Inter-Environnement Brussels and Others, C‑567/10, EU:C:2012:159,

paragraph 42 and the case-law cited).

74 In the light of all the foregoing considerations, the answer to the questions referred

is that Article 3(2) and (4) of the SEA Directive is to be interpreted, subject to those matters

which are for the referring court to verify, as meaning that a decree such as that at issue in

the main proceedings, whereby a Member State designates an SAC, and makes provision as

to conservation objectives and certain preventive measures, is not among the ‘plans and

programmes’ in respect of which an environmental impact assessment is required.”

72. In the judgment of 25 June 2020, A and Others v Gewestelijke stedenbouwkundige

ambtenaar van het departement Ruimte Vlaanderen, afdeling Oost-Vlaanderen, C-24/19,

ECLI:EU:C:2020:503, the CJEU (Grand Chamber) stated (emphasis added):

“The first question and sub-questions(a) to (d) of the second question: the concept of ‘plans

and programmes’ within the meaning of Article 2(a) of Directive 2001/42

32 By its first question and sub-questions (a) to (d) of its second question, which it is

appropriate to examine together, the referring court asks, in essence, whether Article 2(a)

of Directive 2001/42 must be interpreted as meaning that the concept of ‘plans and

programmes’ covers an order and circular, adopted by the government of a federated entity

of a Member State, both of which contain various provisions concerning the installation and

operation of wind turbines.

33 Article 2(a) of Directive 2001/42 defines the ‘plans and programmes’ covered by

that provision as being those which satisfy the two cumulative conditions set out in the two

indents in that provision, namely, first, that they are subject to preparation and/or adoption

by an authority at national, regional or local level or are prepared by an authority for

adoption, through a legislative procedure by parliament or government, and, second, that

they are required by legislative, regulatory or administrative provisions.

34 As regards the first of those conditions, it is clear from the indications provided by

the referring court that the Order and the Circular of 2006 were adopted by the Flemish

government, which is a regional authority, and that this condition is therefore satisfied.

35 As regards the second of those conditions, which is set out in the second indent of

Article 2(a) of Directive 2001/42, it is clear from the established case-law of the Court that

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’ within the meaning, and for the

application, of Directive 2001/42 (judgments of 22 March 2012, Inter-Environnement

Bruxelles and Others, C‑567/10, EU:C:2012:159, paragraph 31; of 7 June 2018, Thybaut

and Others, C‑160/17, EU:C:2018:401, paragraph 43; and of 12 June 2019, Terre wallonne,

C‑321/18, EU:C:2019:484, paragraph 34). Thus the Court has held that, in order to ensure

the effectiveness of that provision having regard to its objective, a measure must be

regarded as ‘required’ where the legal basis of the power to adopt the measure is found in

a particular provision, even if the adoption of that measure is not compulsory (see, to that

effect, judgment of 7 June 2018, Inter-Environnement Bruxelles and Others, C‑671/16,

EU:C:2018:403, paragraphs 38 to 40).

36 It should be noted at the outset that, by its questions, the referring court, as well as

the United Kingdom Government in its written observations, invites the Court to reconsider

that line of case-law.

37 In that regard, it must be recalled that the interpretation of a provision of EU law

requires account to be taken not only of its wording, but also of its context, and the

objectives and purpose pursued by the act of which it forms part. The legislative history of

a provision of EU law may also reveal elements that are relevant to its interpretation (see,

to that effect, judgment of 9 October 2019, BGL BNP Paribas, C‑548/18, EU:C:2019:848,

paragraph 25 and the case-law cited).

38 As regards, first of all, the wording of Article 2(a) of Directive 2001/42, it must be

noted, as the Advocate General stated in point 60 of his Opinion, that a comparison of the

different language versions of the second indent of Article 2(a) of Directive 2001/42

highlights differences in meaning from one version to another. Whilst the term ‘exigés’ used

in the French-language version and similarly, inter alia, the terms used in the Spanish-

(‘exigidos’), German- (‘erstellt werden müssen’), English- (‘required’), Dutch- (‘zijn

voorgeschreven’), Portuguese- (‘exigido’) and Romanian- (‘impuse’) language versions refer

to a form of requirement or obligation, the Italian-language version uses the less prescriptive

term ‘previsti’ (‘provided’).

39 All the official languages of the European Union are the authentic languages of the

acts in which they are drafted and, therefore, all the language versions of an act of the

European Union must, as a matter of principle, be recognised as having the same value (see,

to that effect, judgments of 17 November 2011, Homawoo, C‑412/10, EU:C:2011:747,

paragraph 28 and the case-law cited, and of 20 February 2018, Belgium v Commission,

C‑16/16 P, EU:C:2018:79, paragraph 49 and the case-law cited).

40 It follows that an examination of the wording of Article 2(a), second indent, of

Directive 2001/42 is inconclusive, since it does not make it possible to determine whether

‘plans and programmes’ referred to in that provision are exclusively those that national

authorities are obliged to adopt under legislative, regulatory or administrative provisions.

41 Next, as regards the legislative history of the second indent of Article 2(a) of

Directive 2001/42, that provision, which was not included in the original European

Commission proposal for a directive, nor in the amended version of that proposal, was added

by Common Position (EC) No 25/2000 of 30 March 2000 adopted by the Council, acting in

accordance with the procedure referred to in Article 251 of the Treaty establishing the

European Community, with a view to adopting a Directive of the European Parliament and

of the Council on the assessment of the effects of certain plans and programmes on the

environment (OJ 2000 C 137, p. 11). As the Advocate General observed in points 62 and

63 of his Opinion, by this addition the EU legislature intended to restrict the obligation to

carry out an environmental assessment to certain plans and programmes only, but it is not

possible to infer that its intention was to restrict such an assessment only to plans and

programmes whose adoption is mandatory.

42 As regards the context of that provision, it must be noted, first, as the Advocate

General observed in points 66 and 67 of his Opinion, that a binary concept which makes a

distinction according to whether the adoption of a plan or a programme is compulsory or

optional is not capable of covering, in a manner that is sufficiently precise and therefore

satisfactory, the diversity of situations that arise or the wide-ranging practices of national

authorities. The adoption of plans or programmes, which can occur in a great variety of

situations, is often neither imposed as a general requirement, nor left entirely to the

discretion of the competent authorities.

43 Secondly, Article 2(a) of Directive 2001/42 includes not only the preparation and

adoption of ‘plans and programmes’, but also modifications to them (see, to that effect,

judgments of 22 March 2012, Inter-Environnement Bruxelles and Others, C‑567/10,

EU:C:2012:159, paragraph 36, and of 10 September 2015, Dimos Kropias Attikis, C‑473/14,

EU:C:2015:582, paragraph 44). As the Advocate General stated in point 68 of his Opinion,

that latter case, in which the modification of the plan or programme concerned is also likely

to have significant environmental effects, within the meaning of Article 3(1) of Directive

2001/42, most often arises when an authority decides of its own initiative to carry out such

a modification, without being obliged to do so.

44 Those foregoing considerations are consistent with the purpose and objectives of

Directive 2001/42, which itself comes within the framework established by Article 37 of the

Charter of Fundamental Rights of the European Union, according to which a high level of

environmental protection and the improvement of the quality of the environment must be

integrated into the policies of the European Union and ensured in accordance with the

principle of sustainable development.

45 The purpose of that directive is, as set out in Article 1, to provide for a high level of

protection for the environment and to contribute to the integration of environmental

considerations into the preparation and adoption of plans and programmes with a view to

promoting sustainable development.

46 To that end, as Article 1 states, the fundamental objective of Directive 2001/42 is

to subject plans and programmes that are likely to have significant environmental effects to

an environmental assessment during their preparation and before their adoption (judgments

of 22 September 2011, Valčiukienė and Others, C‑295/10, EU:C:2011:608, paragraph 37,

and of 7 June 2018, Thybaut and Others, C‑160/17, EU:C:2018:401, paragraph 61 and the

case-law cited).

47 It must also be recalled that Directive 2001/42 was adopted on the basis of Article

175(1) EC, concerning environmental actions to be taken by the Community in order to

achieve the objectives of Article 174 EC. Article 191 TFEU, which corresponds to Article 174

EC, provides, in paragraph 2 thereof, that the European Union’s policy on the environment

aims for a ‘high level of protection’ taking into account the diversity of situations in the

various regions of the Union. Article 191(1) TFEU authorises the adoption of measures

covering, inter alia, certain specified aspects of the environment, such as the preservation,

protection and improvement of the quality of the environment, the protection of human

health and the prudent and rational utilisation of natural resources. In the same way, Article

3(3) TEU provides that the European Union works in particular for ‘a high level of protection

and improvement of the quality of the environment’ (see, to that effect, judgment of 21

December 2016, Associazione Italia Nostra Onlus, C‑444/15, EU:C:2016:978, paragraphs

41 to 43 and the case-law cited).

48 Those objectives would be likely to be compromised if Article 2(a) of Directive

2001/42 were interpreted as meaning that only those plans or programmes whose adoption

is compulsory are covered by the obligation to carry out an environmental assessment laid

down by that directive. First, as has been observed in paragraph 42 above, the adoption of

those plans and programmes is often not imposed as a general requirement. Second, such

an interpretation would allow a Member State to circumvent easily that requirement for an

environmental assessment by deliberately refraining from providing that competent

authorities are required to adopt such plans and programmes.

49 Moreover, a broad interpretation of the concept of ‘plans and programmes’ is

consistent with the European Union’s international undertakings, such as those resulting,

inter alia, from Article 2(7) of the Espoo Convention.

50 It follows that, since a strict interpretation, which limits the second condition of

Article 2(a) of Directive 2001/42 only to ‘plans and programmes’ whose adoption is

compulsory, could render its scope marginal, the Court favoured the need to ensure the

effectiveness of that condition by adopting a broader definition of the term ‘required’ (see,

to that effect, judgment of 22 March 2012, Inter-Environnement Bruxelles and Others,

C‑567/10, EU:C:2012:159, paragraph 30).

51 Therefore, there is nothing to justify a reversal of the case-law of the Court of Justice

in that regard.

52 It follows that the second indent of Article 2(a) of Directive 2001/42 must be

interpreted as meaning that plans and programmes whose adoption is regulated by national

legislative or regulatory provisions, which determine the authorities competent to adopt

them and the procedure for preparing them, must be regarded as ‘required’ within the

meaning, and for the application, of that directive.

53 As regards the question whether the Order and the Circular of 2006 satisfy that

condition, it is clear from the order for reference that the Vlarem II is an order adopted by

the executive authority of a federated Belgian entity, namely the Flemish government, in

implementation of hierarchically superior rules emanating from the legislative authority of

that entity, namely the Flemish Parliament. It follows from the explanations provided by

the referring court regarding the Decree of the Flemish Council concerning environmental

consent and the Decree of the Flemish Council laying down general provisions on

environmental policy that they were the framework for the adoption of Vlarem II by the

Flemish government, inter alia by conferring on that government the competence to adopt

such an act and by indicating that the sectoral conditions laid down by it sought to prevent

and to limit unacceptable nuisance and risks for the environment caused by the installations

and activities concerned.

54 As regards the Circular of 2006, it follows from the order for reference that that

circular emanates, in this case, from the Flemish government and was signed by the

Minister-President and two ministers responsible for the matter.

55 In that regard the referring court states that the legal basis for the Circular of 2006,

which, like the Vlarem II, contributes to the attainment of objectives and standards to be

achieved under Directive 2009/28/EC of the European Parliament and of the Council of 23

April 2009 on the promotion of the use of energy from renewable sources and amending and

subsequently repealing Directives 2001/77/EC and 2003/30/EC (OJ 2009 L 140, p. 16), lies

in the competence that authorities have, pursuant to the relevant national legislation, for

management and assessment for the purpose of granting ‘environmental’ consents, within

the meaning of that legislation.

56 Thus, the raison d’être for the Circular of 2006 is the decision by the ministerial

authorities of that federated entity to restrict their own discretion by requiring themselves

to follow the rules that they laid down on that matter. It therefore appears that the Circular

of 2006 was adopted under prerogatives that such ministerial authorities have available to

them under Belgian law, subject to verification which it is for the referring court, in the

present case, to carry out as to the precise legal nature of such a circular in the legal order

of that Member State.

57 In that regard, it should be recalled that the concept of ‘plans and programmes’

includes not only their preparation, but also their modification (see, to that effect, judgment

of 12 June 2019, CFE, C‑43/18, EU:C:2019:483, paragraph 71 and the case-law cited).

58 In particular, the Court has already held that although such a measure does not,

and cannot, lay down positive rules, the possibility which it creates of allowing a derogation

from the rules in force to be obtained more easily changes the legal process and

consequently brings such a measure within the scope of Article 2(a) of Directive 2001/42

(see, to that effect, judgment of 7 June 2018, Thybaut and Others, C‑160/17,

EU:C:2018:401, paragraph 58).

59 As the Advocate General observed in points 108 and 109 of his Opinion, and as is

clear from the case file before the Court, first, point 3 of the Circular of 2006 appears to

allow the inclusion of zones that were not initially under consideration for the generation of

wind energy. Second, the annex to that circular appears to contain values that are less

stringent compared with those set out in the annex to Section 5.20.6.1 of the Vlarem II on

the subject of the quality of the environment as regards noise levels and shadow flicker in

inhabited zones, which it is nevertheless for the referring court to verify.

60 Therefore, as the Advocate General in essence observed in point 80 of his Opinion,

and subject to the verifications which it is for the referring court to make, the Circular of

2006 amends, by extending or derogating from them, the provisions of the Vlarem II such

that it may be regarded as satisfying the condition recalled in paragraph 52 above.

61 It is also necessary to observe that the general nature of the Order and the Circular

of 2006 do not preclude those instruments from being classified as ‘plans and programmes’

within the meaning of Article 2(a) of Directive 2001/42. While it is clear from the wording

of that provision that the concept of ‘plans and programmes’ can cover normative

instruments that are legislative, regulatory or administrative, that directive does not contain

any special provisions in relation to policies or general legislation that would call for them to

be distinguished from plans and programmes for the purpose of that directive. The fact that

a national measure is to some extent abstract and pursues an objective of transforming an

existing geographical zone is illustrative of its planning and programming aspect and does

not prevent it from being included in the concept of ‘plans and programmes’ (see, to that

effect, judgment of 7 June 2018, Inter-Environnement Bruxelles and Others, C‑671/16,

EU:C:2018:403, paragraph 60 and the case-law cited).

62 It follows that the Vlarem II and, subject to the verifications which it is for the

referring court to carry out, the Circular of 2006, also fulfil the second condition, laid down

in the second indent of Article 2(a) of Directive 2001/42.

63 Having regard to all those considerations, the answer to the first question and sub-

questions (a) to (d) of the second question is that Article 2(a) of Directive 2001/42 must be

interpreted as meaning that the concept of ‘plans and programmes’ covers an order and

circular, adopted by the government of a federated entity of a Member State, both of which

contain various provisions concerning the installation and operation of wind turbines.

The second question, sub-questions (e) to (g): the concept of ‘plans and programmes’

subject to an environmental assessment, within the meaning of Article 3(2)(a) of Directive

2001/42

64 By sub-questions (e) to (g) of its second question the referring court asks, in

essence, whether Article 3(2)(a) of Directive 2001/42 must be interpreted as meaning that

an order and a circular, both of which contain various provisions regarding the installation

and operation of wind turbines, including measures on shadow flicker, safety and noise level

standards, constitute plans and programmes that must be subject to an environmental

assessment in accordance with that provision.

65 Article 3 of Directive 2001/42 makes the obligation to subject a specific plan or

programme to an environmental assessment conditional upon the plan or programme

covered by that provision being likely to have significant environmental effects (judgment

of 7 June 2018, Inter-Environnement Bruxelles and Others, C‑671/16, EU:C:2018:403,

paragraph 30). More specifically, Article 3(2)(a) of that directive provides that a systematic

environmental assessment is to be carried out for all plans and programmes that are

prepared for certain sectors and set the framework for future development consent of

projects listed in Annexes I and II to Directive 2011/92 (judgment of 8 May 2019, Verdi

Ambiente e Società (VAS) — Aps Onlus and Others, C‑305/18, EU:C:2019:384, paragraph

47).

66 In the first place, it is common ground in the present case that the Order and the

Circular of 2006 concern the energy sector, referred to in Article 3(2)(a) of Directive

2001/42, and that those national instruments concern wind farm projects, which are

amongst the projects listed in point 3(i) of Annex II to Directive 2011/92.

67 In the second place, as regards the question whether such instruments set the

framework for future development consent for projects, it must be noted that the concept

of ‘plans and programmes’ relates to any measure which establishes, by defining rules and

procedures for scrutiny applicable to the sector concerned, a significant body of criteria and

detailed rules for the grant and implementation of one or more projects that are likely to

have significant effects on the environment (judgments of 27 October 2016, D’Oultremont

and Others, C‑290/15, EU:C:2016:816, paragraph 49; of 7 June 2018, Inter-Environnement

Bruxelles and Others, C‑671/16, EU:C:2018:403, paragraph 53; and of 12 June 2019, CFE,

C‑43/18, EU:C:2019:483, paragraph 61).

68 Such an interpretation is intended to ensure that provisions which are likely to have

significant environmental effects are subject to an environmental assessment (see, to that

effect, judgments of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne,

C‑41/11, EU:C:2012:103, paragraph 42, and of 7 June 2018, Inter-Environnement Bruxelles

and Others, C‑671/16, EU:C:2018:403, paragraph 54).

69 In the present case, the Order and the Circular of 2006 lay down conditions in

relation to the installation and operation of wind turbines in the Flemish region as regards,

inter alia, shadow flicker, safety procedures and noise emission.

70 While the Order and the Circular of 2006 do not appear to constitute a complete set

of standards in relation to the installation and operation of wind turbines, the Court has

already had occasion to clarify that the concept of ‘a significant body of criteria and detailed

rules’ must be construed qualitatively and not quantitatively. It is necessary to avoid

strategies which may be designed to circumvent the obligations laid down in Directive

2001/42 by splitting measures, thereby reducing the practical effect of that directive (see,

to that effect, judgments of 7 June 2018, Inter-Environnement Bruxelles and Others,

C‑671/16, EU:C:2018:403, paragraph 55, and of 12 June 2019, CFE, C‑43/18,

EU:C:2019:483, paragraph 64).

71 The importance and scope of the requirements laid down by the Order and the

Circular of 2006 indicate, as the Advocate General observed in point 94 of his Opinion, that

those instruments constitute a framework, which is admittedly non-exhaustive, but which is

sufficiently significant for the determination of the conditions for consent to be granted for

the installation in the proposed geographic zone of wind farms whose environmental impact

is undeniable.

72 It is also appropriate to recall in that regard that, in paragraph 50 of the judgment

of 27 October 2016, D’Oultremont and Others (C‑290/15, EU:C:2016:816), the Court held

that a measure that set out standards, comparable to those laid down in the Order and the

Circular of 2006, as regards the installation and operation of wind turbines, had a sufficiently

significant importance and scope in the determination of the conditions applicable to the

sector concerned and the choices, in particular those related to the environment, laid down

through those standards, are designed to determine the conditions under which actual

projects for the installation and operation of wind turbine sites might be authorised in the

future.

73 Having regard to those elements, it must be held that the Order and, subject to the

verifications referred to in paragraphs 60 and 62 above, the Circular of 2006 fall within the

concept of ‘plans and programmes’ that must, in accordance with Article 3(2) of Directive

2001/42, be subject to an environmental impact assessment.

74 That interpretation cannot be called into question by the particular legal nature of

the Circular of 2006.

75 The phrase ‘which set the framework for future development consent’, in

Article 3(2)(a) of Directive 2001/42, does not include any reference to national

laws and therefore constitutes an autonomous concept of European Union law that

must be interpreted uniformly throughout the territory thereof.

76 While it is uncertain whether an instrument such as the Circular of 2006 is capable

of producing compulsory legal effects for third parties, that circular cannot, however, subject

to verification by the referring court as to its precise legal effect, be treated in the same way

as provisions of purely indicative value, which do not meet the condition recalled in the

preceding paragraph (see, to that effect, judgment of 12 June 2019, Terre wallonne,

C‑321/18, EU:C:2019:484, paragraph 44).

77 In addition to the fact that the Circular of 2006 is entitled ‘Assessment framework

and conditions required for the installation of wind turbines’, it is clear from the indications

provided by the referring court that the consent of 30 November 2016 specifies that it must

meet the conditions set out in that circular at all times, which suggests that the circular is

binding at least for the authorities with competence to grant such consents.

78 Furthermore, as the Advocate General observed in point 95 of his Opinion, the

Belgian Government itself appears to accept the binding nature of the Order and the Circular

of 2006 upon such authorities as a whole when that government observes that the possible

non-compliance with EU law of the environmental conditions that those instruments lay down

would have the consequence of invalidating consents previously granted, such that,

according to that government, it is appropriate to restrict the temporal effects of the

judgment to be given by the referring court.

79 It follows from all the foregoing considerations that the answer to sub-questions (e)

to (g) of the second question is that Article 3(2)(a) of Directive 2001/42 must be interpreted

as meaning that an order and a circular, both of which contain various provisions regarding

the installation and operation of wind turbines, including measures on shadow flicker, safety,

and noise level standards, constitute plans and programmes that must be subject to an

environmental assessment in accordance with that provision.

The second question, sub-questions (h) and (i): the possibility for the referring court to

maintain the effects of the Order and the Circular of 2006, as well as the consent of 30

November 2016

80 By sub-questions (h) and (i) of its second question, the referring court asks, in

essence, whether and under what conditions, if it is found that an environmental assessment

within the meaning of Directive 2001/42 should have been carried out prior to the adoption

of the order and circular on the basis of which the consent, which is contested before it, was

granted for the installation and operation of wind turbines, with the result that those

instruments and that consent do not comply with EU law, that court may maintain the effects

of those instruments and that consent.

81 First of all, as stated in Article 1 of Directive 2001/42, the fundamental objective of

that directive is to ensure that (certain) plans and programmes which are likely to have

significant effects on the environment are subject to an environmental assessment when

they are being prepared and prior to their adoption.

82 In the absence of provisions in that directive on the consequences of infringing the

procedural provisions which it lays down, it is for the Member States to take, within the

sphere of their competence, all the general or particular measures necessary to ensure that

all ‘plans’ or ‘programmes’ that are likely to have ‘significant environmental effects’, within

the meaning of that directive, are subject to an environmental assessment, in accordance

with the procedural requirements and the criteria laid down by that directive (see, to that

effect, judgment of 28 July 2016, Association France Nature Environnement, C‑379/15,

EU:C:2016:603, paragraph 30 and the case-law cited).

83 Under the principle of sincere cooperation provided for in Article 4(3) TEU, Member

States are required to eliminate the unlawful consequences of such a breach of EU law. It

follows that the competent national authorities, including national courts hearing an action

against an instrument of national law adopted in breach of EU law, are therefore under an

obligation to take all the necessary measures, within the sphere of their competence, to

remedy the failure to carry out an environmental assessment. That may, for a ‘plan’ or

‘programme’ adopted in breach of the obligation to carry out an environmental assessment,

consist, for example, in adopting measures to suspend or annul that plan or programme

(see, to that effect, judgment of 28 July 2016, Association France Nature Environnement,

C‑379/15, EU:C:2016:603, paragraphs 31 and 32), or in revoking or suspending consent

already granted, in order to carry out such an assessment (see, to that effect, judgment of

12 November 2019, Commission v Ireland (Derrybrien Wind Farm), C‑261/18,

EU:C:2019:955, paragraph 75 and the case-law cited).

84 It must be added that only the Court of Justice may, in exceptional cases, for

overriding considerations of legal certainty, allow temporary suspension of the ousting effect

of a rule of EU law with respect to national law that is contrary thereto. If national courts

had the power to give provisions of national law primacy in relation to EU law contravened

by those provisions, even temporarily, the uniform application of EU law would be

undermined (judgment of 29 July 2019, Inter-Environnement Wallonie and Bond Beter

Leefmilieu Vlaanderen, C‑411/17, EU:C:2019:622, paragraph 177 and the case-law cited).

85 In response to the argument put forward by the Commission in its written

observations that the exceptional maintenance of the effects of national measures that

contravene EU law is only possible in the context of a direct action against potentially

defective measures, and not by way of an objection of illegality where the action before the

national court challenges acts adopted on the basis of those measures, it must be stated, as

the Advocate General indicated in points 126 to 128 of his Opinion, that the case-law of the

Court of Justice has not drawn such a distinction and that such maintenance, by the Court

of Justice, is possible in the context of either one or other of those procedural routes.

86 In the present case, the order for reference states that while the Decreet betreffende

de organisatie en de rechtspleging van sommige Vlaamse bestuursrechtscolleges (Decree

on the organisation and procedure of certain Flemish administrative courts), of 4 April 2014

(Belgisch Staatsblad of 1 October 2014, p. 77620), does not permit the referring court to

maintain temporarily the effects of the Order and the Circular of 2006, the Belgian

Constitution, as interpreted in national case-law, recognises the right of that court to

disapply such regulatory national instruments where they do not comply with hierarchically

superior norms. As regards the effects of the consent of 30 November 2016, Article 36(1)

and (2) of the Decree on the organisation and procedure of certain Flemish administrative

courts permits the referring court to maintain those effects temporarily, even though the

consent was adopted pursuant to national instruments that failed to comply with EU law.

87 In that regard, it must be observed that it is clear from the case file before the Court

that the wind farm project does not appear to have reached its completion and indeed that

its construction has not yet commenced.

88 If it proved to be correct that the construction of the wind farm project has not

commenced, the maintenance of the effects of the consent of 30 November 2016 during the

period of the environmental assessment prescribed by the Order and the Circular of 2006

would not in any event appear to be necessary (see, to that effect, judgments of 26 July

2017, Comune di Corridonia and Others, C‑196/16 and C‑197/16, EU:C:2017:589,

paragraph 43, and of 28 February 2018, Comune di Castelbellino, C‑117/17,

EU:C:2018:129, paragraph 30). The referring court would therefore have to annul the

consent adopted on the basis of the ‘plan’ or ‘programme’ which was itself adopted in breach

of the obligation to carry out an environmental assessment (see, by analogy, judgment of

28 February 2012, Inter-Environnement Wallonie and Terre wallonne, C‑41/11,

EU:C:2012:103, paragraph 46).

89 Such an annulment should equally be ordered, in accordance with the principles

recalled in paragraph 83 above, if it is the case that the installation of the wind farm project

has commenced, or is even completed.

90 However, it has been held, in the first place, that, while taking into account the

existence of an overriding consideration relating to the protection of the environment, a

national court may exceptionally be authorised to make use of a national provision

empowering it to maintain certain effects of a national measure the procedure for the

adoption of which did not comply with Directive 2001/42, such as that referred to in

paragraph 86 above, where there is a risk that the annulment of that measure could create

a legal vacuum that is incompatible with that Member State’s obligation to adopt measures

to transpose another act of EU law concerning the protection of the environment, such as

Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters

against pollution caused by nitrates from agricultural sources (OJ 1991 L 375, p. 1) (see, to

that effect, judgments of 28 February 2012, Inter-Environnement Wallonie and Terre

wallonne, C‑41/11, EU:C:2012:103, paragraphs 56 and 63).

91 In that regard, the referring court states that the Order and the Circular of 2006

contribute to the implementation of the objectives of Directive 2009/28 on the generation

of energy from renewable sources. Even if that generation is guided by considerations

pertaining to the protection of the environment and constitutes a fundamental objective of

the European Union in the field of energy, it does not follow that any barrier to its

development in the territory of a Member State, such as that which could arise from the

annulment of development consent given to a generator and to a supplier of electricity for

the purpose of the installation of a number of wind turbines, can suffice to compromise the

overall implementation of that directive on its territory.

92 In the second place, in paragraph 179 of the judgment of 29 July 2019, Inter-

Environnement WallonieandBond Beter Leefmilieu Vlaanderen (C‑411/17, EU:C:2019:622),

the Court recognised that the security of electricity supply of the Member State concerned

was also an overriding consideration. The Court nevertheless specified at the same time

that considerations as to the security of electricity supply could justify maintaining the effects

of national measures adopted in breach of the obligations under EU law only if, in the event

that the effects of those measures 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.

93 As the Commission submitted at the hearing before the Court, and as the Advocate

General observed in point 132 of his Opinion, it is not clear that cessation of the activity of

a limited number of wind turbines would be likely to have significant implications for the

supply of electricity for the whole of the Member State concerned.

94 In any event, any possible the maintenance of the effects of those acts may last only

as long as is strictly necessary to remedy the breach found (see, to that effect, judgments

of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne, C‑41/11,

EU:C:2012:103, paragraph 62, and of 29 July 2019, Inter-Environnement Wallonie and Bond

Beter Leefmilieu Vlaanderen, C‑411/17, EU:C:2019:622, paragraph 181).

95 Having regard to the foregoing considerations, the answer to sub-questions (h) and

(i) of the second question is that, where it appears that an environmental assessment, within

the meaning of Directive 2001/42, should have been carried out prior to the adoption of the

order and circular on the basis of which a consent, which is contested before a national court,

relating to the installation and operation of wind turbines was granted with the result that

those instruments and that consent are incompatible with EU law, that court may maintain

the effects of those instruments and that consent only if the national law permits it to

do so in the proceedings before it and if the annulment of that consent would be

likely to have significant implications for the electricity supply of the whole of the

Member State concerned, and only for the period of time strictly necessary to

remedy that illegality. It is for the referring court, if necessary, to carry out that

assessment in the case in the main proceedings.”

73. In the judgment of 22 February 2022, Bund Naturschutz in Bayern eV v Landkreis

Rosenheim, C-300/20, ECLI:EU:C:2021:746, the CJEU (Grand Chamber) stated:

“The first condition laid down in Article 3(2)(a) of Directive 2001/42

48 Under Article 3(2)(a) of Directive 2001/42, in order to be covered by that provision,

plans and programmes must be prepared for agriculture, forestry, fisheries, energy,

industry, transport, waste management, water management, telecommunications, tourism,

town and country planning or land use.

49 Regarding the requirement that plans and programmes must be ‘prepared for’ the

sectors listed in Article 3(2)(a) of Directive 2001/42, the Court has previously held that that

requirement is met where the plan or programme in question ‘concerns’ one of those sectors

(see, to that effect, judgments of 27 October 2016, D’Oultremont and Others, C‑290/15,

EU:C:2016:816, paragraph 44, and of 25 June 2020, A and Others(Wind turbines at Aalter

and Nevele), C‑24/19, EU:C:2020:503, paragraph 66).

50 In that regard, it should be noted, more specifically, that the fact that Article 3(2)(a)

of Directive 2001/42 refers both to ‘town and country planning’ and to ‘land use’ clearly

shows that ‘town and country planning or land use’ is not limited to land use stricto sensu,

namely the dividing of land into areas and the determination of the activities permitted within

those areas, but is necessarily broader in its scope (judgments of 7 June 2018, Thybaut and

Others, C‑160/17, EU:C:2018:401, paragraph 48, and of 7 June 2018, Inter-Environnement

Bruxelles and Others, C‑671/16, EU:C:2018:403, paragraph 43).

51 In addition, the fact that the main objective of a plan or programme is the protection

of the environment, which includes protection of the landscape, does not mean that that

plan or programme may not also ‘concern’ one of the sectors listed in Article 3(2)(a) of that

directive, including town and country planning or land use (see, to that effect, judgment of

10 September 2015, Dimos Kropias Attikis, C‑473/14, EU:C:2015:582, paragraphs 20 and

46).

52 Moreover, the very essence of plans and programmes prepared with a view to the

protection of the environment, in particular measures of general application which, like the

Inntal Süd Regulation, pursue such an objective, is, as a general rule, precisely to regulate

human activities having significant environmental effects, namely – inter alia – those

covered by the sectors listed in Article 3(2)(a) of Directive 2001/42 (see, by way of example,

judgments of 17 June 2010, Terre wallonne and Inter-Environnement Wallonie, C‑105/09

and C‑110/09, EU:C:2010:355, and of 28 February 2012, Inter-Environnement Wallonie and

Terre wallonne, C‑41/11, EU:C:2012:103).

53 In this instance, as was emphasised, in essence, by the Advocate General in points

65 to 67 of his Opinion, the Inntal Süd Regulation contains rules which concern activities

falling within, inter alia, the following sectors: agriculture (point 6 of Paragraph 5(1)),

forestry (points 8 and 9 of Paragraph 5(1)), transport (points 3 and 13 of Paragraph 5(1)),

water management (point 4 of Paragraph 5(1)), and town and country planning or land use

(points 1 and 2 of Paragraph 5(1)).

54 Thus, it appears that the first condition laid down in Article 3(2)(a) of Directive

2001/42 is satisfied, which it is, however, for the referring court to ascertain.

The second condition laid down in Article 3(2)(a) of Directive 2001/42

55 It follows from Article 3(2)(a) of Directive 2001/42 that the second condition laid

down by that provision is satisfied where, first, the plans or programmes in question set the

framework for future development consent of projects and, second, those projects are

among those listed in Annexes I and II to Directive 2011/92.

56 Regarding, in the first place, the question whether a regulation such as the Inntal

Süd Regulation covers the projects listed in Annex I or Annex II to Directive 2011/92, it

should be noted that the concept of ‘project’, as defined in Article 1(2)(a) of Directive

2011/92, cannot be regarded as covering certain activities which that regulation makes

subject to authorisation, such as those consisting of ‘[setting] up vending vans’ (point 2(d)

of Paragraph 5(1)), ‘[pursuing], [capturing] or [killing] wild animals’ (point 7 of Paragraph

5(1)), or ‘[allowing] aircraft … to take off or land’ (point 13 of Paragraph 5(1)). It follows

from case-law that that concept refers to work or interventions involving alterations to the

physical aspect of the site (judgment of 9 September 2020, Friends of the Irish Environment,

C‑254/19, EU:C:2020:680, paragraph 32 and the case-law cited).

57 However, besides the fact that Paragraph 4 of the Inntal Süd Regulation prohibits,

in landscape conservation areas, ‘any activity which alters the character of that area or which

runs counter to the conservation objective pursued’, Paragraph 5(1) of that regulation

provides that a permit must be obtained, inter alia, in order to construct or substantially

alter roads, paths or spaces, in particular campsites, sports fields, playgrounds and bathing

areas or similar facilities (point 2(c)), to alter bodies of water, their banks or beds, the inflow

or outflow of water or the piezometric level, to create new bodies of water or to construct

drainage systems (point 4), and to clear forest stands in full or in part, carry out initial

afforestation or perform associated clear-cutting of more than 0.5 hectares (point 9).

58 Such activities are capable of being covered by the projects listed in Annexes I and

II to Directive 2011/92, in particular in point 7(b) and (c) of Annex I, as well as in point 1(c)

and (d), point 10(e) and (f) and point 12(d) of Annex II.

59 In addition, the activities consisting of erecting, changing or changing the use of any

kind of construction which are referred to in Paragraph 5(1) of the Inntal Süd Regulation are

capable of being covered by several of the projects listed in both Annex I and Annex II to

Directive 2011/92.

60 Regarding, in the second place, the question whether a regulation such as the Inntal

Süd Regulation sets the framework for future development consent of projects, it should be

borne in mind that the concept of ‘plans and programmes’ relates to any measure which

establishes, by defining rules and procedures for scrutiny applicable to the sector concerned,

a significant body of criteria and detailed rules for the grant and implementation of one or

more projects likely to have significant effects on the environment (judgment of 25 June

2020, A and Others (Wind turbines at Aalter and Nevele), C‑24/19, EU:C:2020:503,

paragraph 67 and the case-law cited).

61 Such an interpretation is intended to ensure that provisions which are likely to have

significant environmental effects are subject to an environmental assessment (judgment of

25 June 2020, A and Others(Wind turbines at Aalter and Nevele), C‑24/19, EU:C:2020:503,

paragraph 68 and the case-law cited).

62 The requirement laid down in Article 3(2)(a) of Directive 2001/42, according to which

the plan or programme concerned must set the framework for future development consent

of projects listed in Annexes I and II to Directive 2011/92, must therefore be regarded as

met where that plan or programme establishes a significant body of criteria and detailed

rules for the grant and implementation of one or more of those projects, inter alia with

regard to the location, nature, size and operating conditions of such projects, or the

allocation of resources connected with those projects.

63 By contrast, that requirement is not met in the case of a plan or programme which,

while targeting projects listed in Annexes I and II to Directive 2011/92, does not lay down

such criteria or detailed rules.

64 In this instance, it appears that Paragraph 5(1) of the Inntal Süd Regulation merely,

in the conservation area defined in Paragraph 1 thereof, makes a certain number of activities

and projects, including projects in the nature of those listed in Annexes I and II to Directive

2011/92, subject to obtaining a compulsory permit.

65 It is true that that provision defines, for some of those projects, the size above which

the implementation of those projects calls for prior authorisation. However, even in such

cases, that provision does not lay down criteria or detailed rules for the grant and

implementation of those projects.

66 As regards Paragraph 5(2) of the Inntal Süd Regulation, it is apparent from its own

wording that it makes the issuing of a permit, ‘without prejudice to other legislative

provisions’ subject to a single general condition, namely ‘that the intended measure does

not produce any of the effects referred to in Paragraph 4 or … that any such effects can be

offset by ancillary provisions’.

67 It should be added in that regard that it is common ground that, first, the prohibition,

laid down in Paragraph 4 of the Inntal Süd Regulation, of ‘any activity which alters the

character of [the landscape conservation] area or which runs counter to the conservation

objective [referred to in Paragraph 3 of that regulation]’ corresponds, in essence, to the

prohibition already laid down in Paragraph 26(2) of the BNatSchG.

68 Second, it is not disputed that Paragraph 3 of the Inntal Süd Regulation sets out

that conservation objective in general terms without laying down specific criteria or detailed

rules compliance with which is required in order to obtain authorisation to implement the

various projects referred to in Paragraph 5(1) of that regulation.

69 Consequently, while it is true that the adoption of the Inntal Süd Regulation may

have a certain influence on the location of projects, by making it harder to implement them

within the conservation area defined in Paragraph 1 thereof and, by contrast, easier to do

so outside that area, including in areas which were included in the conservation area defined

before that regulation was adopted, it appears that that regulation does not establish a

significant body of criteria and detailed rules for the grant and implementation of one or

more projects listed in Annexes I and II to Directive 2011/92, which it is, however, for the

referring court to ascertain.

70 Having regard to the foregoing, the answer to the first and second questions is that

Article 3(2)(a) of Directive 2001/42 must be interpreted as meaning that a national measure

which is intended to protect nature and the landscape and, to that end, lays down general

prohibitions and makes provision for compulsory permits without laying down sufficiently

detailed rules regarding the content, preparation and implementation of the projects referred

to in Annexes I and II to Directive 2011/92 does not fall within the scope of that provision.

The third question

71 By its third question, the referring court asks, in essence, whether Article 3(4) of

Directive 2001/42 is to be interpreted as meaning that a national measure which is intended

to protect nature and the landscape and, to that end, lays down general prohibitions and

makes provision for compulsory permits falls within the scope of that provision.

72 Under that provision, Member States are to determine whether plans and

programmes, other than those referred to in Article 3(2) of Directive 2001/42, which set the

framework for future development consent of projects, are likely to have significant

environmental effects.

73 The obligation laid down in Article 3(4) of Directive 2001/42 is therefore dependent

on a condition which corresponds to the second condition laid down in Article 3(2)(a) of that

directive, namely that the plan or programme in question must set the framework for future

development consent of projects (see, to that effect, judgment of 12 June 2019, CFE,

C‑43/18, EU:C:2019:483, paragraph 60).

74 Thus, in view of the considerations relating to that condition set out in paragraphs

60 to 69 of the present judgment, the answer to the third question is that Article 3(4) of

Directive 2001/42 must be interpreted as meaning that a national measure which is intended

to protect nature and the landscape and, to that end, lays down general prohibitions and

makes provision for compulsory permits without laying down sufficiently detailed rules

regarding the content, preparation and implementation of projects does not fall within the

scope of that provision.”

74. In the judgment of 9 March 2023, NJ and OZ v An Bord Pleanála and Others, C-9/22,

ECLI:EU:C:2023:176 (Site de St Teresa’s Gardens), the CJEU stated (emphasis added):

“49 It should be borne in mind that, according to the case-law, provisions of purely

indicative value do not satisfy the second condition set out in Article 3(2)(a) of Directive

2001/42. In order to satisfy that condition, they must at least be binding on the authorities

with competence to grant development consent (see, to that effect, judgment of 25 June

2020, A and Others (Wind turbines at Aalter and Nevele), C‑24/19, EU:C:2020:503,

paragraphs 76 and 77).

50 Only acts of a mandatory nature are capable of limiting the discretion enjoyed by

those authorities and thus of excluding certain modalities of implementation of projects

which might prove to be more favourable to the environment, which is why such acts must

be subject to an environmental assessment within the meaning of Directive 2001/42.

51 It follows that it is only if, under Irish law, the masterplan were binding on the

authority competent to grant development consent for the project at issue in the main

proceedings, namely, in the present case, the Board, which it is for the referring court to

establish, that it would be necessary to consider, subject to the proviso mentioned in

paragraph 47 above, that that plan comes within the scope of Directive 2001/42 and that it

should therefore have been subject, at the very least, to the obligation imposed on the

Member States in Article 3(3) of that directive to determine whether it is likely to have

significant effects on the environment.

52 In the light of the foregoing, the answer to the first, second and third questions is

that Article 2(a) and Article 3(2) and (3) of Directive 2001/42 must be interpreted as

meaning that a plan comes within the scope of that directive where (i) it has been prepared

by an authority at local level in collaboration with a developer of the project concerned by

that plan and has been adopted by that authority, (ii) it has been adopted on the basis of a

provision in another plan or programme and (iii) it envisages developments distinct from

those envisaged in another plan or programme, provided, however, that it is at least

binding on the authorities with competence to grant development consent.

...

59 In the present case, as is apparent from paragraph 24 above, the 2018 Guidelines

were subject to an environmental assessment within the meaning of Directive 2001/42.

60 Second, it is apparent from the documents before the Court that, in those guidelines,

it is stated that ‘to support proposals …, specific assessments may be required and may

include: … relevant environmental assessment requirements, including [a strategic

environmental assessment within the meaning of Directive 2001/42], [an environmental

impact assessment within the meaning of Directive 2011/92], appropriate assessment

[within the meaning of Directive 92/43] and Ecological Impact Assessment, as appropriate’.

61 Moreover, it does not appear – which is however for the referring court to verify –

that the obligation, laid down in Section 28(1C) of the 2000 Act, on planning authorities to

comply with specific planning policy requirements, which may be contained in guidelines

such as those at issue in the main proceedings, is liable to interfere, in one way or

another, with the obligations on the competent Irish authorities under Part X of

that act, which is intended to transpose Directive 2011/92 into Irish law, and in

particular with the obligation, laid down in Article 3(1) of that directive, to identify, describe

and assess in an appropriate manner, in the light of each individual case, the direct and

indirect significant effects of a project on all the factors listed in that provision.

62 It should be added that, in any event, it appears to follow from the wording of specific

requirement 3, inasmuch as it states that the planning authority ‘may’ approve a

development, that that requirement is not absolute and therefore does not require

the building height to be increased, in relation to any height provided for in the

applicable development plan, in every case, that being however a matter for the

referring court to verify also.

63 In the light of the foregoing, the answer to the fourth question is that Directive

2011/92 must be interpreted as not precluding national legislation which requires the

competent authorities of a Member State, when deciding whether or not to grant

development consent for a project, to act in accordance with guidelines which

require the height of buildings to be increased, where possible, and which have

been subject to an environmental assessment under Directive 2001/42.”

75. In the judgment of 4 October 2024, Friends of the Irish Environment CLG v Government of

Ireland and Others, C-727/22, ECLI:EU:C:2024:825, the CJEU stated at 38:

“In the light of all the foregoing considerations, the answer to the first question is that Article

2(a) of Directive 2001/42 must be interpreted as meaning that a measure adopted by the

government of a Member State solely on the basis of a provision of the Constitution of that

Member State providing that the executive power of the State is to be exercised by or on

the authority of that government does not meet the condition of being ‘required by

legislative, regulatory or administrative provisions’ and, consequently, cannot constitute a

‘plan’ or a ‘programme’ for the purposes of that Article 2(a).”

76. In the judgment of 17 October 2024, Umweltforum Osnabrücker Land eV v Landkreis

Osnabrück, C-461/23, ECLI:EU:C:2024:902, the CJEU stated:

“The first and second questions

40 By its first and second questions, which it is appropriate to examine together, the

referring court asks, in essence, whether Article 3(2)(b) of Directive 2001/42, read in

conjunction with Article 6(3) of Directive 92/43, must be interpreted as meaning that a

legislative act by which the Member State concerned designates a site as a special area of

conservation, under Directive 92/43, and which lists the human activities that are prohibited

on that site, subject to the exceptions which that legislative act also lays down, is covered

by the concept of ‘plans and programmes’, within the meaning of Directive 2001/42, in

respect of which an environmental assessment is required.

41 Under Article 3(2)(b) of Directive 2001/42, the obligation to subject a specific plan

or programme to an environmental assessment under that directive depends on whether

Articles 6 and 7 of Directive 92/43 require an assessment.

42 In accordance with Article 6(3) of Directive 92/43, an appropriate assessment is

required for any plan or project not directly connected with or necessary to the management

of the site but likely to have a significant effect on that site, either individually or in

combination with other plans or projects.

43 The Court has already held that a legislative act by which a Member State designates

a site as a special area of conservation pursuant to Directive 92/43 is, by its nature, directly

connected with or necessary to the management of the site. Article 4(4) of Directive 92/43

requires such designations to be made for the purposes of implementing that directive

(judgment of 12 June 2019, CFE, C‑43/18, EU:C:2019:483, paragraph 49).

44 It is true that that assessment cannot be extended to all the provisions of such a

legislative act automatically, without verifying their content. In particular, it cannot be ruled

out a priori that that act may also contain provisions which are unrelated to the fulfilment

by the Member State concerned of the obligation laid down in Article 4(4) of Directive 92/43

and which are not directly connected with or necessary to the management of the site in

question in any other way.

45 However, subject to the verifications which it is for the referring court to make, the

decree at issue does not appear to contain such provisions.

46 In that regard, under Article 4(4) of Directive 92/43, once a site of Community

importance has been adopted, the Member State concerned is to designate it as a special

area of conservation as soon as possible and within six years at most, establishing priorities

in the light of the importance of the sites for the maintenance or restoration, at a favourable

conservation status, of a natural habitat type or species and for the coherence of Natura

2000. That Member State is also required, in accordance with the same provision of Directive

92/43, as interpreted by the Court, to define, within the same time limits and prior to the

setting of those priorities, the conservation objectives, which must be specific, as well as to

fix, in accordance with Article 6(1) of that directive, the conservation measures (see, to that

effect, judgment of 29 June 2023, Commission v Ireland (Protection of special areas of

conservation), C‑444/21, EU:C:2023:524, paragraphs 45, 53, 65 and 66).

47 In accordance with Article 6(1) of Directive 92/43, conservation measures involve,

where relevant, ‘appropriate statutory, administrative or contractual measures’.

48 Accordingly, the conservation measures which the Member State concerned must

establish under Article 6(1) may consist, inter alia, in establishing a legal regime designed

to limit human activities on the territory of the site in question in relation to what was

authorised until then on that site, taking account of the conservation objectives set.

49 Provisions of a legislative act designating a site as a special area of conservation, by

which the Member State concerned seeks to establish such a legal regime, must therefore

be regarded as being ‘directly connected with or necessary to the management of the site’

in question.

50 In the absence of any clarification in that regard in Directive 92/43, the Member

States remain, moreover, free to determine, in their legal systems, the type of rules which

they deem to be most appropriate for the establishment of such a legal regime.

51 In the present case, the legal regime established by the decree at issue consists of

a series of provisions, including Paragraph 4 of that decree, which lays down prohibitions,

and Paragraph 5 thereof, which lists the ‘acts and uses’ not covered by those prohibitions.

52 In that regard, the referring court states, inter alia, that it considers that the purpose

of the exceptions provided for in Paragraph 5 of the decree at issue is to authorise, in a

certain context, the continuation of operational activities already started on the site

concerned and still ongoing, in particular activities for commercial purposes, such as fishing,

agriculture and forestry, and certain measures for water maintenance, with the aim of

avoiding a disproportionate interference with the rights of the owners and beneficiaries

affected by the protection afforded to the site concerned.

53 The fact remains that, subject to the verifications which it is for that court to make,

Paragraph 5 of the decree at issue is among the provisions intended, as a whole, to establish

the legal regime considered necessary for the protection, inter alia, of the designated special

area of conservation, namely, in the present case, the site concerned.

54 That appears to be reaffirmed by Paragraph 9 of the decree at issue, subparagraph

1 of which provides that the provisions contained in Paragraphs 4 and 5 of that decree

‘correspond, in general terms, to measures for maintaining the favourable conservation

status of the habitat types listed in Annex I and the animal species listed in Annex II to

[Directive 92/43] present [on the site concerned]’, and by the wording of Paragraph 7(1)

and Paragraph 10(1) of that decree.

55 It follows that, again subject to the verifications which are for the referring court to

make, the decree at issue must be regarded as being directly connected with or necessary,

as a whole, to the management of the site concerned.

56 In the light of all those reasons, the answer to the first and second questions is that

Article 3(2)(b) of Directive 2001/42, read in conjunction with Article 6(3) of Directive 92/43,

must be interpreted as meaning that a legislative act by which the Member State concerned

designates a site as a special area of conservation, under Directive 92/43, and which lists

the human activities which are prohibited on that site, subject to the exceptions which that

legislative act also lays down, is not covered by the concept of ‘plans and programmes’,

within the meaning of Directive 2001/42, in respect of which an environmental assessment

is required.”

77. On the general approach to interpretation of the SEA directive, one academic commentator

says as follows (Vomáčka V., “Interpreting the SEA directive: a focus on plans, programmes, and

reasonable alternatives” ERA Forum 26, 337–355 (2025) https://doi.org/10.1007/s12027-025-

00843-x):

“While the SEA Directive provides categories of plans and programmes subject to

assessment, the interpretation of these categories is autonomous. In principle, such

interpretation should be extensive rather than restrictive, and reflect the objectives of the

SEA Directive as pronounced in its preamble and Art. 1. The provisions which delimit the

Directive’s scope, in particular those setting out the definitions of the measures envisaged

by it, must therefore be interpreted broadly. [Footnote 24] After all, there is no other

harmonised tool for integrating complex environmental considerations into the preparation

and adoption of certain plans and programmes. Therefore, strategies which may be

designed to circumvent the obligations laid down in the SEA Directive, thereby reducing its

practical effect, must be avoided. [Footnote 25]

For example, town and country planning is explicitly covered by the SEA Directive, albeit

without detailed guidance on which plans and programmes fall into this sector. In Case C-

671/16 (Inter-Environnement Bruxelles and others), [Footnote 26] the CJEU concluded that

regional town planning regulations, such as the blueprint for the European Quarter of the

City of Brussels (adopted in the form of a decree by a regional authority laying down specific

requirements for the completion of building projects [Footnote 27]), fall under the definition

of plans and programmes which are likely to have significant environmental effects. The

CJEU elaborated on the denomination of the particular sector in the SEA Directive, stating

that ‘the fact that that provision refers both to ‘town and country planning’ and ‘land use’

clearly shows that the sector mentioned is not limited to land use sensu stricto, namely the

dividing of land into zones and the defining of activities permitted within those zones, but

necessarily covers a broader field.’ [Footnote 28]

While land use planning documents vary in form and content from one Member State to

another, specific plans and programmes are often required by EU law. For example, plans

and programmes subject to SEA may include flood risk management plans adopted under

the Floods Directive (2007/60/EC) [Footnote 29] and programmes of measures adopted

under the Water Framework Directive (2000/60/EC). [Footnote 30] Member States are

provided with a choice as to whether to assess other plans and programmes, plans and

programmes for smaller areas, and minor modifications based on a case-by-case

examination, or based on the specification of their types, or by combining both approaches.

[Footnote 31]”

78. The same writer proposed a broad approach to the concept of a framework:

“3 Establishing the ‘framework’

Regarding the interpretation of the characteristic of plans and programmes to ‘set the

framework’, it is only in recent years that significant CJEU decisions in this respect can be

traced. Until then, the most comprehensive description of the ‘framework’ had been

provided by the Advocate General’s Opinion in Joined Cases C-105/09 and C-110/09 (Terre

wallonne and Inter-Environnement Wallonie). [Footnote 32] In particular, the Advocate

General contemplates how strongly the requirements of plans and programmes must

influence individual projects for those requirements to ‘set a framework’. She leans towards

a broader interpretation of the concept owing to the historical context of the SEA Directive’s

adoption [Footnote 33] and also refers to Art. 3(5) of the SEA Directive – a criterion

considered by Member States when they estimate the likely significance of the

environmental effects of plans or programmes. They are to take account of the degree to

which the plan or programme sets a framework for projects and other activities, either

concerning location, nature, size, and operating conditions, or by allocating resources –

therefore, the term ‘framework’ must be construed flexibly. [Footnote 34]

A broad interpretation of the term ‘framework’ is therefore supported by the relationship

between the SEA Directive and the EIA Directive. In its reasoning in the same cases,

[Footnote 35] the CJEU remained brief, stating merely that ‘it is necessary to examine the

content and purpose of those programmes, taking into account the scope of the

environmental assessment of projects’. [Footnote 36] However, it is clear from the outcome

of the proceedings that the CJEU concurred with the Advocate General’s approach, as it

concluded that a programme adopted under the Nitrates Directive (91/676/EEC) Footnote

37 was subject to SEA. [Footnote 38] The CJEU also confirmed that the regulatory potential

of the plan or programme should be considered from the perspective of the permitting of

EIA projects, not in general: ‘…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

zones to which different rules apply as regards the location and height of buildings.’

[Footnote 39]

Later, in 2012, the CJEU added that a plan or programme is defined by balancing and

coordinating as comprising ‘the criteria and the detailed rules for the development of land

and normally concern[ing] a multiplicity of projects whose implementation is subject to

compliance with the rules and procedures provided for by those measures’. Footnote 40 In

2016, fifteen years after the adoption of the SEA Directive, the CJEU finally provided further

guidance on the interpretation of the terms ‘plan’ and ‘programme’. According to its

conclusions in Case C-290/15 (D’Oultremont and Others), [Footnote 41] the terms ‘plan’

and ‘programme’ ‘relate to any measure which establishes, by defining rules and procedures

for scrutiny applicable to the sector concerned, a significant body of criteria and detailed

rules for the grant and implementation of one or more projects likely to have significant

effects on the environment…’. [Footnote 42]

‘Framework’ in the meaning of the SEA Directive can therefore be interpreted as establishing

a ‘significant body’ of criteria and detailed rules for grant and implementation, which means

that the plan or programme must be substantial and set criteria or conditions for projects

which require EIA.

Although the interpretation provided by the CJEU is still broad, it seems that the Court has

not fully sided with the aforementioned approach of the Advocate General and has attempted

to set a compromise between exceedingly broad and overly narrow concepts of ‘plan and

programme’. This has attracted some critique. [Footnote 43] A requirement of a ‘significant

body of criteria’ is far from a ‘complete set of criteria’ but also far from being merely ‘related

to the environment’ in the spirit of the Aarhus Convention.

On the one hand, this interpretation is intended to ensure that environmental impact

assessment is carried out for acts that significantly affect 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 SEA.

Following this logic, it is possible to identify various ad hoc normative acts which authorise

a project, as the CJEU has done, for example, in Case C-387/97 (Commission v Greece)

[Footnote 44] or in Case C-43/10 (Nomarchiaki Aftodioikisi Aitoloakarnanias and Others).

[Footnote 45]

Nevertheless, the criterion of a number of specifications set by the plan or programme for it

to become substantial is not without issues. 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. [Footnote 46] Indeed,

fragmenting programmes for individual projects does not seem to present an escape from

the requirement to carry out SEA. [Footnote 47] Nevertheless, the key takeaway appears

to be that the CJEU excluded planning for a given area as one of the characteristics of a plan

or programme under the SEA Directive. It is sufficient if the planning acts ‘cover, in the

wider sense, regional and district planning in general’. [Footnote 48]

Regarding various specific or hybrid acts, the conclusions of the CJEU judgment in Case C-

160/17 (Thybaut and others) [Footnote 49] 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, with 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 an urban development plan for renovation and

development of urban functions requiring the creation, modification, extension, removal or

overhang of roads and public spaces was 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.’ [Footnote 50]

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.’ Footnote 51 Thus, in terms of its content and purpose, such a plan contributes

to the implementation of projects included in the Annex to the EIA Directive. The same

conclusion would apply even if the concept concerned exclusively land development since,

according to the CJEU, ‘the words ‘all plans and programmes which are prepared for a

number of sectors’ in that recital confirm that Article 3(2)(a) of Directive 2001/42 concerns

all plans and programmes which are prepared for each of the sectors referred to in that

provision, including country planning by itself, and not only the plans and programmes which

are prepared concomitantly for several of those sectors.’ [Footnote 52]

Fragmented measures, including general technical requirements, may establish a

framework, as confirmed by Case C-290/15 (D’Oultremont and Others), [Footnote 53] which

provides further guidance on when a set of established conditions and criteria serves to

approve and implement one or more projects that may have a significant impact on the

environment. The case 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 Sects. 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 measures, 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. 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, which are among the projects listed in Annex II of the EIA Directive.

If technical standards for wind farms are considered a plan, so too should technical standards

for other buildings and construction be. [Footnote 54] However, there appears 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 instance, it would indeed regulate binding criteria but

these would be inert with respect to the environment. [Footnote 55] 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 extended so far as to examine

the technical criteria set out in the order, subject to the requirements for public participation.

Footnote 56

A different situation would also arise if the criteria laid down were not binding and were only

subsidiary, as the CJEU concluded: ‘…a regulatory order, such as that at issue in the main

proceedings, containing various provisions on the installation of wind turbines which must

be complied with…’ [Footnote 57] There would, therefore, be no binding framework, which

is a prerequisite for the SEA process to be necessary.”

79. Relevant footnotes are:

24) Case C-290-15, D’Oultremont and Others, EU:C:2016:816, para. 40.

25) Ibid, para. 48.

26) Case C-671/16, Inter-Environnement Bruxelles and Others, EU:C:2018:403.

27) The aim of the plan was to build a concentrated and varied neighbourhood combining

elements of mixed-use developments.

28) Para. 43.

29) Directive 2007/60/EC of the European Parliament and of the Council of 23.10.2007 on

the assessment and management of flood risks. OJ L 288, 6.11.2007, pp. 27–34.

30) Directive 2000/60/EC of the European Parliament and of the Council of 23.10.2000

establishing a framework for Community action in the field of water policy. OJ L 327,

22.12.2000, pp. 1–73.

31) SEA Directive, Art. 3(7).

32) Opinion C-105/09, Terre wallonne and Inter-Environnement Wallonie, EU:C:2010:120.

33) Ibid, paras 62–64: “During the legislative procedure the Netherlands and Austria

proposed that it should be made clear that the framework must determine the location,

nature or size of projects requiring environmental assessment. In other words, very

specific, conclusive requirements would have been needed to trigger an environmental

assessment. As this proposal was not accepted, the concept of ‘framework’ is not

restricted to the determination of those factors. The view of the Czech Republic is based

on a similarly narrow understanding of the setting of a framework. It calls for certain

projects to be explicitly or implicitly the subject of the plan or programme. Plans and

programmes may, however, influence the development consent of individual projects in

very different ways and, in so doing, prevent appropriate account from being taken of

environmental effects. Consequently, the SEA Directive is based on a very broad

concept of ‘framework’.”.

34) Ibid, para. 65.

35) Joined Cases C-105/09 and C-110/09, Terre wallonne and Inter-Environnement

Wallonie, EU:C:2010:355.

36) Ibid, para. 45.

37) Council Directive 91/676/EEC of 12.12.1991 concerning the protection of waters against

pollution caused by nitrates from agricultural sources. OJ L 375, 31.12.1991, pp. 1–8.

38) Joined Cases C-105/09 and C-110/09, paras 53–54: “Also, it is clear from Article 5(4)

of Directive 91/676 that action programmes adopted under Article 5(1) must provide for

a set of measures compliance with which can be a requirement for issue of the consent

that may be granted for projects listed in Annexes I and II to Directive 85/337, and in

respect of the definition of which Directive 91/676 gives Member States a certain

discretion. That is so in particular in the case of measures concerning the storage of

livestock manure provided for in Annex III to Directive 91/676 as regards the intensive

rearing installation projects listed in Annexes I and II to Directive 85/337. In such a

situation, the existence and scope of which it is nevertheless for the national court to

assess in the light of the action programme concerned, it must be held that the action

programme is to be regarded, in respect of those measures, as setting the framework

for future development consent of projects listed in Annexes I and II to Directive 85/337

within the meaning of Article 3(2)(a) of Directive 2001/42.”.

39) Ibid, paras 47–49.

40) Case C-567/10, Inter-Environnement Bruxelles and Others, EU:C:2012:159, para. 30;

also see Case C-160/17, Thybaut and Others, EU:C:2018:401, para. 43.

41) Case C-290/15, D’Oultremont and Others, EU:C:2016:816.

42) Ibid, para. 49.

43) See Opinion C-671/16, Inter-Environnement Bruxelles and Others, EU:C:2018:39.

44) Case C-387/97, Commission v Greece, EU:C:2000:356, para. 76: “Contrary to the

claims of the Greek Government, legislation or specific measures amounting only to a

series of ad hoc normative interventions that are incapable of constituting an organised

and coordinated system for the disposal of waste and toxic and dangerous waste cannot

be regarded as plans which the Member States are required to adopt…”.

45) Case C-43/10, Nomarchiaki Aftodioikisi Aitoloakarnanias and Others, EU:C:2012:560,

para. 95, on a plan to partially divert the course of a river: “It is not evident that the

project concerned constitutes a measure which defines criteria and detailed rules for the

development of land and which subjects implementation of one or more projects to rules

and procedures for scrutiny…”.

46) Opinion C-671/16, Inter-Environnement Bruxelles and Others, EU:C:2018:39, paras 25–

26: “However, I do not find a quantitative approach, which focuses on the number of

specifications, convincing. For, the Court has also held that it is necessary to avoid

strategies which may be designed to circumvent the obligations laid down in the SEA

Directive by splitting measures, thereby reducing the practical effect of that directive.

Consequently, the clarification of the criterion of a ‘significant body’ should be aligned

qualitatively to the specific objective laid down in Article 1 of the SEA Directive, inter

alia, to subject plans and programmes which are likely to have significant effects on the

environment to an environmental assessment.”.

47) The CJEU held that rules with a planning character that have been set up for a single

project may also fall within the scope of the SEA Directive. See Case C-295/10,

Valčiukienė and Others, EU:C:2011:608, paras 39–40: “In this respect, Article 3(2)(a)

of Directive 2001/42 must be interpreted as meaning that it also covers a plan which, in

only one sector, sets the framework for a project which has only one subject of economic

activity. The wording of Article 3(2)(a), read in the light of the 10th recital in the

preamble to Directive 2001/42, does not lead to the conclusion that its field of application

should be limited to plans and programmes that set the framework for projects

concerning several subjects in one or more of the sectors referred to by that provision.”.

48) Case C-290/15, D’Oultremont and Others, EU:C:2016:816, paras 47–48.

49) Case C-160/17, Thybaut and Others, EU:C:2018:401.

50) Ibid, para. 49.

51) Ibid, paras 56 and 58.

52) Case C-295/10, Valčiukienė and Others, EU:C:2011:608, para. 41.

53) Case C-290/15, D’Oultremont and Others, EU:C:2016:816.

54) In principle, it will be a regulation that can be classified under the “development criteria”,

which is one of the examples of the concepts mentioned in the UNECE handbook. See

UNECE: Resource to Support Application of the UNECE Protocol on Strategic

Environmental Assessment (2011), p. 50. Available at:

http://www.unece.org/fileadmin/DAM/env/documents/2011/eia/ece.mp.eia.17.e.pdf.

55) See Opinion C-290/15, D’Oultremont and Others, EU:C:2016:561, 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.”.

56) Ibid, para. 83.

57) Case C-290/15, D’Oultremont and Others, EU:C:2016:816, para. 54.

Domestic law

80. Section 10 of the Planning and Development Act 2000

(https://revisedacts.lawreform.ie/eli/2000/act/30/revised/en/html#SEC10) provides for the making

of development plans, which may be subject to SEA:

“(5A) Where required, a strategic environmental assessment or an appropriate assessment

of a draft development plan shall be carried out.”

81. In fact each planning authority has made such a plan and such plans have in fact been

subject to SEA so far as the referring court is aware. One can also infer from the fact that such

plans deal with matters such as zoning that this was legally required and not voluntary. Planning

authorities will now be required to apply the SPPRs in the impugned guidelines in preference to any

contrary provision in their own plans, which shall be thereby superseded.

82. The most relevant domestic law provision is s. 28 of the 2000 Act, now repealed but in force

at the material time, and the repeal does not affect the validity of the guidelines. This provided

(emphasis added):

“28.—(1) The Minister may, at any time, issue guidelines to planning authorities

regarding any of their functions under this Act and planning authorities shall have

regard to those guidelines in the performance of their functions.

(1A) Without prejudice to the generality of subsection (1) and for the purposes of that

subsection a planning authority in having regard to the guidelines issued by the Minister

under that subsection, shall—

(a) consider the policies and objectives of the Minister contained in the guidelines when

preparing and making the draft development plan and the development plan, and

(b) append a statement to the draft development plan and the development plan which shall

include the information referred to in subsection (1B).

(1B) The statement which the planning authority shall append to the draft development plan

and the development plan under subsection (1A) shall include information which

demonstrates—

(a) how the planning authority has implemented the policies and objectives of the

Minister contained in the guidelines when considering their application to the area

or part of the area of the draft development plan and the development plan, or

(b) if applicable, that the planning authority has formed the opinion that it is not

possible, because of the nature and characteristics of the area or part of the area

of the development plan, to implement certain policies and objectives of the

Minister contained in the guidelines when considering the application of those

policies in the area or part of the area of the draft development plan or the

development plan and shall give reasons for the forming of the opinion and why

the policies and objectives of the Minister have not been so implemented.

(1C) Without prejudice to the generality of subsection (1), guidelines under that subsection

may contain specific planning policy requirements with which planning authorities,

regional assemblies and the Board shall, in the performance of their functions,

comply.

(1D) A strategic environmental assessment or an appropriate assessment shall, as

the case may require, be conducted in relation to a draft of guidelines proposed to

be issued under subsection (1).

(2) Where applicable, the Board shall have regard to any guidelines issued to planning

authorities under subsection (1) in the performance of its functions.

(3) Any planning guidelines made by the Minister and any general policy directives issued

under section 7 of the Act of 1982 prior to the commencement of this Part and still in force

immediately before such commencement shall be deemed to be guidelines under this

section.

(4) The Minister may revoke or amend guidelines issued under this section.

(5) The Minister shall cause a copy of any guidelines issued under this section and of any

amendment or revocation of those guidelines to be laid before each House of the Oireachtas.

(6) A planning authority shall make available for inspection by members of the public any

guidelines issued to it under this section.

(7) The Minister shall publish or cause to be published, in such manner as he or she considers

appropriate, guidelines issued under this section.”

83. Hence while entitled “guidelines”, instruments adopted under s. 28 are binding insofar as

they include SPPRs, and subject to a have-regard-to duty otherwise. The impugned guidelines were

adopted under subsections (1C) (the SPPRs) and (1) (other text).

84. Separate guidelines, the Sustainable Residential Development and Compact Settlements

Guidelines for Planning Authorities (https://www.gov.ie/en/department-of-housing-local-

government-and-heritage/publications/sustainable-residential-development-and-compact-

settlements-guidelines-for-planning-authorities/) were also adopted under this provision in January

2024, and address matters related to other features of apartment developments such as density.

85. The Planning and Development (Amendment) Act 2025 inserts s. 44B into the Planning and

Development Act 2000 but this is not relevant for the reasons set out below.

The key issues

86. I can now outline the three issues on the Issue Paper.

87. Issue 1 is:

Specific issue – St Teresa’s Gardens (sub-ground 20 re: CDPs, sub-grounds 45-46 re: s. 28

guidelines)

1. Does the concept of a framework for future development consent in art. 3(2)(a) of

Directive 2001/42 as construed in Case C-300/20, Bund Naturschutz have the effect that

provision such as those of (a) Section 28 guidelines for Planning Authorities - Design

Standards for New Apartments (July 2023)/ predecessor instruments and/or (b) the

development plans (that were subjected to SEA), being provisions of the type that are

superseded by/ disapplied by the impugned guidelines, lack detailed criteria and rules such

that in isolation from other provisions of such plans they would not have been required to

have been subject to SEA in themselves [SOO para. 34]?

88. The parties’ positions as recorded in the statement of case are summarised as follows:

“Applicants’ Position:

39. No – Where a plan or programme, which was subject to SEA, is subject to derogation

under another plan or programme, at a minimum SEA screening under Article 3(3) of the

SEA Directive is required of the plan or programme which provides for such derogation.

Under Article 3(3) even minor modifications must be screened. There is no EU law to support

the proposition that Article 3(3) of the SEA Directive is only triggered if specific framework

elements in a primary plan or programme are disapplied by a specific framework in another

plan or programme.

40. However, the Applicants’ position is that such issue does not arise as the Guidelines

do set a ‘framework’ and would have the effect of derogating from other frameworks.

Respondent’s Position:

41. The Minister’s answer to Issue One is yes, as where the SPPRs in the Guidelines do

not comprise or establish a significant body of criteria and detailed rules for the grant and

implementation of apartment developments, inter alia with regard to the location, nature,

size and operating conditions of apartment developments, or the allocation of resources

connected with apartment developments, any provisions of a development plan disapplied

by the SPPRs on the basis that they differ from those SPPRs also will not comprise criteria

and detailed rules with respect to the location, nature, size and operating conditions of a

project listed in Annexes I and II of the EIA Directive, or the allocation of resources

connected with those projects.

42. The Minister submits that the disapplication of such provisions of a development plan

does not comprise a derogation from any of the criteria and detailed rules in a development

plan with respect to the location, nature, size and operating conditions of a project listed in

Annexes I and II of the EIA Directive.”

89. Issue 2 is:

2. If yes, does the concept of a framework for future development consent in art.

3(2)(a) of Directive 2001/42 as construed in Case C-300/20, Bund Naturschutz have the

effect that the doctrine in Case C-9/22, Site de St Teresa’s Gardens, at §43 [sub-ground 20]

not apply if the provisions of plans that were subjected to SEA and that are being

superseded/disapplied by the impugned guidelines can be taken in isolation from the rest of

the plans concerned and regarded as not having required SEA in themselves even if other

provisions required SEA and/or such plans were actually subjected to SEA?

90. The parties’ positions as recorded in the statement of case are summarised as follows:

“Applicants’ Position:

43. No - the concept of a framework for future development consent in art. 3(2)(a) of

SEA Directive as construed in Bund Naturschutz does not have the effect that the doctrine

in Case C-09/22, Site de St Teresa’s Gardens does not apply if the provisions of plans that

were subjected to SEA and that are being superseded/disapplied by the impugned guidelines

can be taken in isolation from the rest of the plans concerned and regarded as not having

required SEA in themselves even if other provisions required SEA and/or such plans were

actually subjected to SEA.

44. The Applicants rely on the same answer for this question as question 1. Again, the

Applicants’ position is that such issue does not arise as the Guidelines do set a ‘framework’

and would have the effect of disapplying other frameworks.

Respondent’s Position:

45. The Minister’s answer to Issue Two is yes. The Minister submits that the issues

addressed in St Teresa’s Gardens are not directly applicable to the within proceedings, where

that judgment considered the question of the assessment of a modification of a specific plan

and thus the obligations for SEA screening which arise under Article 3(3) of the SEA

Directive. Rather, it is submitted that the within proceedings require to be assessed, as in

C-160/17 Thybault, by reference to the question of whether the Guidelines comprise a

derogation from the overarching framework for development consent under Article 3(2)(a)

of the SEA Directive, as considered under Issue One.

46. In this respect, the CJEU in Thybault did not proceed on the basis that any derogation

from the existing legal framework that sets the framework for development consent will

mean that a plan effecting such derogation puts in place ‘a significant body of criteria and

detailed rules for the grant and implementation of one or more projects likely to have

significant effects on the environment’. Rather, noting §41 of the Opinion of Advocate

General Kokott and § 59 of the Judgment of the CJEU in Thybault, the significance of the

body of criteria and rules must be assessed by reference to the ‘requirements laid down in

the existing plans from which a derogation is possible’ (§41, Opinion of AG Kokott). Applying

that here, the answer to Issue Two is yes.”

91. Issue 3 is:

3. Does the concept of a framework for future development consent in art. 3(2)(a) of

Directive 2001/42 as construed in Case C-300/20, Bund Naturschutz encompass matters

such as the SPPRs in the guidelines because they “contain criteria and conditions (including

the characteristics and size, operating conditions and allocation of resources) that future

development consents must be consistent with” [sub-ground 17] and “provide criteria and

detailed rules against which future development consent applications will be judged” [sub-

ground 18]?”

92. The parties’ positions as recorded in the statement of case are summarised as follows:

“Applicants’ Position:

Yes – the test in Bund Naturschutz does encompass matters such as the 8 SPPRs in the

Guidelines because those SPPRs ‘contain criteria and conditions (including the characteristics

and size, operating conditions and allocation of resources) that future development consents

must be consistent with’ and ‘provide criteria and detailed rules against which future

development consent applications will be judged’.

The test is not limited to nature, location, size or operating conditions (that limitation was

rejected when the SEA Directive was being drafted) but even if there was such a closed list

of relevant criteria, the Guidelines meet that test.

Respondent’s Position:

The Minister’s answer to Issue Three is no, the SPPRs in the Guidelines do not ‘set the

framework for future development consent’ of projects, as they do not establish a significant

body of criteria and detailed rules for the grant and implementation of apartment

developments, inter alia with regard to the location, nature, size and operating conditions of

such developments, or the allocation of resources connected with those developments. On

this basis, the Minister contends that the Guidelines therefore fall outside the scope of Article

3(2)(a) of the SEA Directive.

The Minister submits that the criteria of location, nature, size and operating conditions of

projects, or allocation of resources connected with those projects (‘the Bund Naturschutz

criteria’) are the key reference point for determining whether a plan or programme sets the

framework for future development consent. The Applicants’ contention that any measure

which will have significant environmental effects will set the framework for future

development consent is not accepted.

In the Minister’s submission, the SPPRs refer solely to the internal design parameters of an

apartment development and do not establish significant criteria and detailed rules for the

grant of apartment developments with regard to the location, nature, size and operating

conditions of an apartment development, or the allocation of resources connected with those

projects. Matters of density, size and location of apartment developments, and thus their

location, nature, size and operating conditions, are established by relevant provisions of

inter alia the Sustainable Residential Development and Compact Settlements Guidelines

(2024), the Urban Development and Building Height Guidelines (2018) and the statutory

development plan.”

93. We can now turn to the critical question of the extent to which the various issues properly

arise on the pleadings. The statement of grounds warrants detailed consideration.

94. Sub-grounds 1-11 are essentially contextual.

95. Sub-grounds 12-14 deal with criteria that are not contested.

96. Sub-grounds 15-23 deal with the contested criterion.

97. Sub-grounds 24-28 deal with an uncontested criterion.

98. Sub-grounds 29 alleges non-compliance with ministerial guidance, but the guidance is

addressed to planning authorities and regional authorities.

99. Sub-grounds 30-40 relate to what the applicants would have said if consultation had

happened, but all of that is premised on there being an obligation to consult in the first place.

100. Sub-grounds 41-47 relate to alleged inconsistency by the Minister, but the fact that other

plans were subject to SEA does not create a legal obligation that this set of guidelines were subjected

to SEA. Anyway no route-map between inconsistency and relief is set out.

101. Sub-grounds 48-52 relate to relief rather than being substantive grounds.

102. Sub-grounds 53-65 are jurisdictional or factual issues rather than being substantive

grounds.

103. We can therefore turn to the critical part of the case which is to be found in sub-grounds 15-

23. Those sub-grounds are as follows.

104. Sub-ground 15 is (emphasis added):

“It is the Applicants’ case that the Standards for Apartments Guidelines ‘sets the

framework for future development consent of projects listed in Annexes I and II

to Directive 85/337/EEC’ on the basis of the Guidelines as a whole and / or on the

basis of the SPPRs included in the Guidelines. The Minister failed to carry out an SEA

of the Standards for Apartments Guidelines prior to issuing the guidelines which procedure

would involve public participation and permit members of the public including the Applicants

to have an opportunity to make submissions on the Draft Standards for Apartments

Guidelines.”

105. Insofar as the non-SPPR provisions of the guidelines are concerned, namely the text other

than SPPRs, this is non-binding although not quite as purely indicative as the masterplan considered

in C-9/22, Site de St Teresa’s Gardens. There the court held that the plan must be “binding on the

authorities with competence to grant development consent”. While closer to the Site de St Teresa’s

Gardens situation than to a more classic framework situation, the position is perhaps not completely

beyond doubt as to whether the concept of being “binding” covers a binding obligation to consider

as opposed to a binding obligation to comply.

106. Sub-ground 16 is:

“The Standards for Apartments Guidelines as a whole sets a framework that must be

considered before granting development consent for sector-specific proposed development

which includes apartment developments and where the SPPRs are engaged development

consent cannot be granted where the proposed development is not consistent with the SPPR

at issue.”

107. This does not add anything to the already pleaded point.

108. Sub-ground 17 is (emphasis added):

“The Standards for Apartments Guidelines as a whole influence and guide (and in cases

involving the application of SPPRs are determinative of) applications for development

consent. The Standards for Apartments Guidelines thus set the framework for development

consent as they contain criteria and conditions (including the characteristics and

size, operating conditions and allocation of resources) that future development

consents must be consistent with.”

109. This elaborates slightly on sub-ground 15. Sub-ground 18 is:

“The Standards for Apartments Guidelines provide criteria and detailed rules against which

future development consent applications will be judged. In short, what is contained in the

Standards for Apartments Guidelines, are matters that need to be scrutinised when a

planning authority or the Commission is considering a planning application for an apartment

development, and in determining if that application should be granted and if granted whether

there ought to be modifications or other conditions imposed.”

110. Sub-ground 19 is:

“Furthermore, in circumstances where the SPPRs are engaged, they limit the nature of the

development which can be granted development consent and thus are not and cannot be

considered to be procedural requirements. For example, and having regard to SPPR4, where

an application is made for a proposed development (other than for a building refurbishment

schemes on sites of any size or urban infill schemes on sites of up to 0.25ha) and the ceiling

height of a ground level apartment is less [than] 2.7m that application must be refused

consent unless an amendment / revision to the planning application is made. By way of

further example, SPPR 7 provides a presumption against a grant of permission for shared

accommodation/co-living development unless the proposed development is required to meet

specific demand identified by a local planning authority further to a HNDA process.”

111. That however is not meaningfully contested – the whole point of the guidelines is that they

are intended to shape the projects concerned and the point of the SPPRs is that they have to be

complied with. That in itself doesn’t result in mandatory SEA, if the type of effect produced falls

outside the notion of a framework for future development consent.

112. Sub-ground 20 is (emphasis added):

“Furthermore, the SPPRs contained in the Standards for Apartments Guidelines provide a

derogation from inconsistent provisions in Development Plans, which are

themselves required under section 10(5A) of the 2000 Act and the Planning and

Development (Strategic Environmental Assessment) Regulations 2004 (S.I. No.

436 of 2004) and Planning and Development (Strategic Environmental

Assessment) (Amendment) Regulations 2011 (S.I No. 201/2011) to be subject to

an environmental assessment under the SEA Directive. In short, SPPRs take

precedence over and derogate from Development Plans on the statutory basis pleaded

above. This is further evidence that the Standards for Apartments Guidelines set the

framework for development consent, and by way of analogy, the Applicants rely on the

judgment of the Court of Justice in Case C-9/22 at §43.”

113. Sub-ground 21 is:

“Additionally, the Applicants refer to section 44B of the 2000 Act which was inserted by

section 29 of the Planning and Development (Amendment) Act 2025. Whilst section 44B of

the 2000 Act is yet to be commenced, when commenced, it will permit the holder of a

permission for residential development to apply to a planning authority or the Commission

(as appropriate) to certify that a proposed modification to a grant of permission is a

‘permitted modification’. A permitted modification includes modifications relating to SPPR1-

4 of the Standards for Apartments Guidelines. As set out in section 44B(14) of the 2000 Act

(un-commenced) the purpose of section 44B is to:

‘facilitate and encourage expedited construction of greater numbers of dwellings in

apartment complexes than permitted under permissions already granted, taking account

of—

(a) the acute shortage of residential accommodation in the State,

(b) the rise in homelessness in the State,

(c) the rise in the cost of—

(i) residential rental accommodation, and

(ii) house and apartment purchase prices,

in the State.”

114. This does not assist the applicants because s. 44B is not an operative provision of domestic

law (and was not enacted as of the date of the guidelines – having been enacted on 23 July 2025)

so is not relevant in present circumstances. One can envisage a situation where a plan is adopted

that falls outside SEA by reason of domestic legal provisions, and then where the legal framework

changes such that the plan would require SEA. EU law can’t be circumvented by a legislative change

of that nature, so at the point of or prior to commencement of any legislative change there would

need to be compliance with SEA obligations that would arise in the light of the new legislative

framework.

115. Sub-ground 22 is:

“In the circumstances, section 44B of the 2000 Act, when commenced, provides for the

Standards for Apartments Guidelines to set the framework for development consent in the

form of a certificate granted under section 44B.”

116. Sub-ground 23 is:

“An Internal Report prepared by the Environmental Planning Manager of the Department of

Housing, Local Government and Heritage dated 12 June 2025 concluded that the Standards

for Apartments Guidelines did not set the framework for future development consents

(internal pages 10-12). For the reasons pleaded above the conclusion in that report is legally

incorrect.”

117. The kernel of the pleaded case is therefore that the guidelines require SEA because they

contain criteria and conditions (including the characteristics and size, operating conditions and

allocation of resources) that future development consents must be consistent with and/or because

they provide a derogation from inconsistent provisions in Development Plans which are subjected to

SEA.

118. The State did not disagree with the notion that enactments have to be given the correct

interpretation even if the matters (e.g., the Interpretation Act 2005, the European Convention on

Human Rights Act 2003, the C-106/09 Marleasing doctrine or other similar rules) by reference to

which the correct interpretation arises are not themselves expressly pleaded. Hence the lack of

pleading relating to Aarhus is irrelevant – if Aarhus is in fact relevant, which the State denies. Of

course any such interpretation should not be contra legem. Meeting some criteria for SEA is

insufficient if other mandatory criteria are not met (see e.g. judgment of 4 October 2024, Friends of

the Irish Environment CLG v Government of Ireland and Others, C-727/22, ECLI:EU:C:2024:825).

Given that the directive has to be given a wide interpretation anyway, Aarhus may be of limited

relevance in many cases. The fact that Aarhus is only part of Irish law via EU law is relevant to the

extent to which a domestic court can determine the question of compliance. At the same time and

given the uncontroversial principle of pacta sunt servanda, I don’t think it would be unacceptable for

me to say that I would have some concerns about the fact that compliance with arts. 7 and/or 8 was

not expressly addressed when adopting the guidelines, and indeed I would have concerns (which

perhaps would have been entirely allayed if the matter had been pleaded and fully debated, or

perhaps not) as to whether those provisions were complied with. A concern doesn’t amount to a

view or even provisional view as to non-compliance but is rather a hope and expectation that

international law would be complied with fully even if it isn’t enforceable domestically. Beyond any

domestic relevance that derives from EU law (something that isn’t totally clear, as set out below),

as the State effectively pointed out in correspondence, at that point the court’s role ends and the

Compliance Committee takes over, should it hypothetically become seized of such issues in an

appropriate but obviously procedurally separate case.

119. The pinch points as between the parties on these questions are:

(i) whether art. 3 of the SEA directive should be interpreted to comply with arts. 7

and/or 8 of the Aarhus Convention to the maximum extent possible;

(ii) the status of the non-binding text;

(iii) subject to the foregoing whether guidelines relating to the design of apartments

come within the scope of art. 3(2)(a) where they affect (subject to other applicable

legal requirements) the number of housing units within a given project and their

internal features and (to the extent that this is consequential on internal features)

their external appearance but not the number, location, size, operating conditions

or funding of apartment projects themselves; and

(iv) even if not, do such guidelines come within that provision because they derogate

from other plans that were required to, or were in fact, subject to SEA?

120. A more formally worded version of these is set out below. The State’s position could be

summarised by saying that they accepted there was some contradictory thought on point (i), they

thought point (ii) was acte clair in their favour, and they argued for their position on (iii) and (iv) on

the basis of existing caselaw but accepted that there was no case directly in point. The lack of direct

authority would not necessarily support any conclusion that the central issues are acte clair.

121. While both parties’ preferences were for the matter to be resolved in their mutual favour at

first instance, both of them had the same second preference which was a reference from the trial

court. Also early clarification limits the extent to which any remedial obligation would arise following

any potential decision that would trigger such an obligation.

122. A reference would not be moot even if a planning statement was adopted in the meantime

under the 2024 Act, because the present case would affect the status of any decisions made in the

meantime and also potentially the remedial obligation.

123. As they evolved at the hearing and by way of submission on the draft judgment, and subject

to further consideration in formulating the formal judgment for reference, the issues came down to

the following:

(i) Do binding legal requirements (such as the specific planning policy

requirements contained in the apartments guidelines at issue in the main

proceedings) relating to the design of apartments come within the notion

of a framework for future development consent referred to in Article

3(2)(a) of Directive 2001/42 if they affect (subject to other applicable legal

requirements) the number of housing units within a given project and their

internal features and (to the extent that it is consequential on internal

features) their external appearance but not the number, location, size,

operating conditions or funding of apartment projects themselves (save to

the extent if any to which such matters flow from the design features)?

(ii) If the answer to the first question is No, do such binding legal requirements

come within the notion of a framework for future development consent

referred to in Article 3(2)(a) of Directive 2001/42 if they derogate from

other plans that were required to, or were in fact, subject to assessment

under that Directive?

(iii) Does the notion of a framework for future development consent in Article

3(2)(a) of Directive 2001/42 exclude a plan where domestic law provides

for a binding obligation on competent authorities to consider such a plan in

deciding on the grant of development consent but not a binding obligation

to comply with it?

(iv) Insofar as concerns the issues raised in the foregoing questions, should

Article 3 of the Directive 2001/42 be interpreted and/or applied by Member

States and/or their competent authorities so as to comply with Articles 7

and/or 8 of the UNECE Convention on Access to Information, Public

Participation in Decision-making and Access to Justice in Environmental

Matters done at Aarhus on 25 June 1998, to the fullest extent possible?

124. In the light of the circumstances discussed above, these meet the criteria for reference, and

I propose to exercise the discretion concerned in favour of doing so.

Procedural directions

125. Certain procedural directions are appropriate having regard inter alia to the standard terms

in Eco Advocacy CLG v. An Bord Pleanála [2021] IEHC 265, [2021] 5 JIC 2704 (Unreported, High

Court, 27 May 2021) format with some modifications set out in the order below. I also propose to

set a mention date to confirm that all is in order with the reference.

Order

126. For the foregoing reasons, it is ordered that:

(i) referral in principle: the identified questions be in principle referred to the CJEU

under art. 267 TFEU in accordance with a judgment for reference to be issued

separately;

(ii) provision for notification of potential amici: the parties have liberty to make

any enquiries with any suitable entities if and to the extent that they think fit, and

for the avoidance of doubt have liberty to convey this judgment in unapproved form

and any of the papers to any proposed amicus curiae;

(iii) amici to bear own costs if added: in line with Eco Advocacy CLG v. An Bord

Pleanála [2021] IEHC 265, [2021] 5 JIC 2704 (Unreported, High Court, 27 May

2021), if any one or more amici curiae is added, such entities bear their own costs

throughout, in the Irish courts and in Luxembourg, and not have any liability for the

costs of any other participant in the proceedings, and that such entities be involved

on a written-submissions-only basis at domestic level unless otherwise ordered;

(iv) CJEU contact sheet: within seven days from it being determined whether any amici

curiae are to be parties to the reference, the parties be required to complete the

CJEU contact sheet set out in guidance notes to Practice Direction HC126 specifying

whether any natural persons referred to in the proceedings wish their names to be

anonymised for the purposes of the CJEU proceedings and judgment, such sheet to

provide contact details for all parties whether participating in the reference or not,

and be required to submit that sheet to the List Registrar;

(v) submissions by parties to facilitate reference: the parties be required to

provide simultaneous submissions within 14 days from the date of this judgment

(excluding vacation time) setting out the following:

i. a list of any provisions of domestic legislation they consider particularly

relevant to answering the questions with hyperlinks to the text;

ii. a list of any provisions of European law they consider particularly relevant

to answering the questions with hyperlinks to the text;

iii. a summary of the party’s proposed answer to each question (maximum

200 words per question) (and for clarity, submissions on the wording of

the questions are not being particularly invited unless a party considers

that the court has overlooked something crucial or considers that

additional questions are necessary); and

iv. whether there should be any amici curiae added to the proceedings prior

to the reference being made;

(vi) submissions by amici if added: if any amicus is added such an entity shall furnish

such submissions within 14 days from being added to the proceedings;

(vii) judgment for reference to follow: following any such submissions, the court will

issue the formal judgment for reference which will set out the final text of any

questions together with material drawn from the parties’ submissions;

(viii) papers for CJEU: the applicants as document management party be required to

prepare a draft contents page of documents for the CJEU and to agree this with the

other parties or apply to the court in default of agreement; this should include:

i. all relevant pleadings/ affidavits/ exhibits/ other documents; and

ii. all relevant judgments/ orders in the case including the formal order for

reference when perfected and the final judgment for reference when

delivered;

iii. this should not include written legal submissions or cases/ other

authorities, especially where these are already cited in the judgment for

reference;

iv. once the contents page is agreed, it is then the function of the document

management party to prepare electronic versions for the CJEU as follows.

All files should be in PDF format not exceeding 30 MB per PDF. Four

documents are required:

1. the order for reference when perfected should be a single

standalone PDF;

2. the judgment for reference should be a single standalone PDF

clearly identified as such; that PDF should be sent in a form (which

should be final but may be unsigned) that preserves the

hyperlinks and not as a scanned picture of the signed version;

3. the completed form of the contact details of the parties in the

form attached to guidance notes to Practice Direction HC126

should be a separate PDF; and

4. all other documents should be bundled together in a single PDF

(or more than one if required to comply with the 30 MB file size

limit);

v. once prepared, the PDFs should be sent to the List Registrar by email or

file sharing link, and for this purpose parties should not use password

protected file transfers, this process to be completed within 14 days from

the date of the judgment for reference;

(ix) request for priority: having regard to the importance of the impugned guidelines

for the Government’s housing policy it be requested that the CJEU give the case

priority over other cases, pursuant to Article 53(3) of the Rules of Procedure;

(x) information for the referring court: once the matter is formally referred, the

parties should liaise to ensure that the referring court is copied with all submissions

including those of member states and EU institutions, and the Advocate General’s

opinion, when permitted to do so by the rules of procedure of the CJEU, and to copy

the referring court with relevant notifications such as regarding the date of any oral

hearing, any opinion of the Advocate General, the date of delivery of the judgment

and the judgment itself;

(xi) costs: all costs to date be reserved;

(xii) liberty to apply: there be liberty to apply; and

(xiii) review of arrangements for reference: the matter be listed for mention on 26

January 2026.