Flemish wind turbine rules could infringe EU rules on prior environmental assessment

Advocate General Sánchez-Bordona has concluded in a recent legal opinion that several Flemish rules regarding wind turbines infringe the EU rules on prior environmental assessment. If the Court of Justice follows this opinion, this could have a serious impact on all regulations and permits for energy and infrastructure projects. That being said, the Advocate General has also highlighted that the regulations and permits violating EU rules can be maintained under strict conditions and only for a period that is absolutely necessary.

Facts of the case

In the Flemish Region, permits for wind turbines are granted on the basis of several rules, including the 2011 Decree (“Vlarem II”) and the 2006 Circular (“Omzendbrief EME/2006/01-RO/2006/02”). Both instruments contain rules regarding the operation of wind turbines and regulate aspects such as the casting of shadow, noise, and safety aspects.

The Flemish Region did not carry out any environmental assessment prior to adopting these two legal instruments. In the context of a dispute concerning a building permit for five wind turbines in the municipalities of Aalter and Nevele (now Deinze), the Court of Justice was asked whether this fact infringed Directive 2001/42/EC of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (the “SEA Directive”) and, if so, whether the effects of these legal instruments may be maintained.

This was the first preliminary reference to the Court of Justice by the Flemish Appeal Board for Permit Disputes (“Raad voor Vergunningsbetwistingen”).

The Advocate General’s conclusion

The Advocate General has concluded that the instruments under scrutiny infringe the SEA Directive due to their lack of environmental assessment. He considers that it is possible to limit the effects of these unlawful instruments and the individual decisions (such as permits) that are based upon them. We set out his reasoning below.

1. Plan/programme requiring an environmental assessment?

First, the Advocate General’s opinion has distinguished four conditions for assessing whether the Decree and Circular are plans/programmes under the SEA Directive that require an environmental assessment.

Subsequently, the Advocate General has applied these conditions to these legal instruments.

According to the opinion, the Decree is a plan/programme within the meaning of the SEA Directive because it gives effect to a specific Flemish Act (the so-called “DABM”). Regarding the Circular, the Advocate General has left it to the national court to ascertain whether it limits the administration’s discretion and whether it establishes guidelines for private individuals. If this is the case, then the Circular is also a plan/programme under the SEA Directive.

As for the other conditions, the Advocate General has concluded that they were fulfilled because both instruments concern several sectors referred to in the SEA Directive (such as energy, town and country planning and land use) and because wind farms are included in the projects listed for the SEA Directive to apply. Therefore, an environmental assessment was required for the Decree and, subject to the national court’s assessment above, also for the Circular.

Therefore, the Advocate General has concluded that there is an infringement of the SEA Directive.

Effects of the judgment?

The next question is what the consequences are for individual permits based on these Flemish rules for wind turbines that infringe the SEA Directive.

On this point, the Advocate General has recalled that the national court should in principle suspend, annul or not apply a plan/programme infringing the SEA Directive. This rule should also apply to all permits based on such a plan or programme.

Exceptionally, the Court of Justice can allow the national court to suspend the consequences of EU law on the conflicting national law. However, certain conditions have to be fulfilled.

First, there has to be an overriding consideration of the public interest. The Advocate General has considered that the environment and ensuring electricity supply constitute overriding considerations in the public interest.

Second, the following four specific conditions must be met:

• The conflicting national law gives effect to EU law protecting the environment;
• Replacing the conflicting national law with a new national provision will not prevent negative effects on the environment caused by annulling the conflicting national law;
• Annulling the conflicting national law would lead to a legal vacuum (for new permits) that is more damaging to the environment;
• Maintaining conflicting national law may only last as long as is absolutely necessary to adopt the necessary measures.

The Advocate General has concluded that these conditions are fulfilled. He has advised the Court of Justice to allow the national court (here: the Flemish Board of Appeal) to maintain the consequences of the Decree and the Circular as long as is absolutely necessary and on the condition that this option is also provided for in national law.

Clearly, not all issues are resolved. The Flemish Appeal Board has no jurisdiction to maintain the consequences of the Flemish rules at stake (certainly not by way of a general rule), but it can maintain the consequences of a (partly) annulled individual permit. Therefore, we look forward to the future judgment of the Court of Justice and to the further developments of the case at the level of the Flemish Board of Appeal.

Written by

• William Timmermans

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