Case C‐24/19 (A and others): How to ensure effet utile of the Strategic Environmental Assessment Directive?

• Published date: 01 April 2022
• Author: Magdalena Porzeżyńska
• Date: 01 April 2022
• DOI: http://doi.org/10.1111/reel.12424

CASE NOTE

Case C-24/19 (A and others): How to ensure effet utile of the

Strategic Environmental Assessment Directive?

Magdalena Porzeży

nska

Faculty of Law and Administration, University

of Warsaw, Warsaw, Poland

Correspondence

Email: m.porzezynska@wpia.uw.edu.pl

Abstract

On 25 June 2020, the Court of Justice of the European Union (EU) gave its judge-

ment in the case A and others, which is of significant importance for carrying out

Strategic Environmental Assessments (SEAs). This case presented the Court with an

opportunity to reconsider its approach to the interpretation of the notion of ‘plans

and programmes’, which are subject to an SEA obligation under EU law. Moreover, in

the judgement, the Court explains whether and to what extent national courts may

maintain national plans and programmes adopted in breach of the obligation to carry

out an SEA. This case note considers how the Court reached its position and evalu-

ates the arguments supporting its view and formulates findings resulting from this

analysis. Especially, the contribution concludes with reflections on whether and how

the Court reconciled the principles of effectiveness and primacy of EU law on the

one hand and the need to protect the environment on the other.

1|INTRODUCTION

Based on the precautionary and prevention principles, environmental

assessment is a key tool for integrating environmental considerations

into decision-making.

1

European Union (EU) law requires that envi-

ronmental impacts should be taken into account at the earliest possi-

ble stage in all technical planning and decision-making processes.

2

Specifically, the Strategic Environmental Assessment (SEA) Directive

3

requires that the environmental effects are considered during the

preparation and prior to the adoption of plans and programmes.

4

The

key limiting factors for the application of the SEA Directive revolve

around the definition of ‘plans and programmes’and of significant

effects on the environment. The recent judgement by the Court of

Justice of the EU (CJEU) in A and others

5

is of crucial importance for

defining the contours of SEA under EU law and deserves special

attention for two main reasons.

First, the Court made important clarifications regarding the instru-

ments that are subject to the SEA Directive and the implications

resulting from a failure to carry out an SEA. In this context, it is note-

worthy that the national court that initiated the preliminary ruling pro-

cedure suggested that the Court reconsider its settled case law on the

scope of the SEA Directive. According to the SEA Directive, plans and

programmes for which an SEA must be carried out include, among

others, those that are required by legislative, regulatory or administra-

tive provisions.

6

With the SEA Directive's implementation, doubts

have arisen on whether an SEA is necessary only for the purposes of

plans and programmes that are required to be adopted or whether

such an assessment is also necessary where the adoption of such

plans and programmes is simply provided for but not obligatory under

national law.

7

In its settled case law,

8

the Court has followed the sec-

ond approach, confirming that the SEA Directive applies not only

1

W Sheate et al, ‘The Relationship between the EIA and SEA Directives: Final Report to the

European Commission’(2005) <https://ec.europa.eu/environment/archives/eia/pdf/final_

report_0508.pdf>.

2

Treaty on the Functioning of the European Union (Consolidated Version of the Treaty on

the Functioning of the European Union [2012] OJ C326/47 (TFEU) art 191.

3

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 [2001]

OJ L197/30 (SEA Directive).

4

Sheate et al (n 1).; See also C Klänea and E Albrecht, ‘Purpose and Background of the

European SEA Directive’in M Schmidt, E Jo~

ao and E Albrecht (eds), Implementing Strategic

Environmental Assessment. Environmental Protection in the European Union (Springer 2005) 22.

5

Case C-24/19, A and others, ECLI:EU:C:2020:503.

6

SEA Directive (n 3) art 2(a), second indent.

7

See C Ricketts and J Munn, ‘The Meaning of Required by Legislative, Regulatory or

Administrative Provisions’in G Jones, E Scotford (eds), The Strategic Environmental

Assessment Directive: A Plan for Success? (Hart 2017) 63.

8

Case C-567/10, Inter-Environnement Bruxelles and others, ECLI:EU:C:2012:159 (Inter-

Environnement Bruxelles I) para 31; A and others (n 5), Opinion of AG Sánchez-Bordona, ECLI:

EU:C:2020:143 para 50 and the case law cited.

DOI: 10.1111/reel.12424

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