Patrice D'Oultremont and Others v Région wallonne.

• Jurisdiction: European Union
• Celex Number: 62015CJ0290
• ECLI: ECLI:EU:C:2016:816
• Docket Number: C-290/15
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 27 October 2016

JUDGMENT OF THE COURT (Second Chamber)

27 October 2016 ( *1 )

‛Reference for a preliminary ruling — Assessment of the effects of certain plans and programmes on the environment — Directive 2001/42/EC — Articles 2(a) and 3(2)(a) — Definition of ‘plans and programmes’ — Conditions concerning the installation of wind turbines laid down by a regulatory order — Provisions concerning, inter alia, safety, inspection, site restoration and financial collateral and permitted noise levels set having regard to area use’

In Case C‑290/15,

REQUEST for a preliminary ruling under Article 267 TFEU from the Conseil d’État (Council of State, Belgium), made by decision of 2 June 2015, received at the Court on 15 June 2015, in the proceedings

Patrice D’Oultremont and Others,

v

Région wallonne,

intervening parties:

Fédération de l’Énergie d’origine renouvelable et alternative ASBL (EDORA),

THE COURT (Second Chamber),

composed of M. Ilešič, President of the Chamber, A. Prechal, A. Rosas, C. Toader (Rapporteur) and E. Jarašiūnas, Judges,

Advocate General: J. Kokott,

Registrar: V. Tourrès, Administrator,

having regard to the written procedure and further to the hearing on 7 April 2016,

after considering the observations submitted on behalf of:

— Mr D’Oultremont and Others, by J. Sambon, avocat,

— the Fédération de l’énergie d’origine renouvelable et alternative ASBL (EDORA), by J. Sohier, S. Rodrigues, L. Levi, A. Blot and M. Chomé, avocats,

— the Belgian Government, by J. Van Holm, M. Jacobs and S. Vanrie, acting as Agents, and by P. Moërynck, avocat,

— the French Government, by D. Colas and J. Traband, acting as Agents,

— the Netherlands Government, by M.K. Bulterman, B. Koopman and J. Langer, acting as Agents,

— the European Commission, by O. Beynet and C. Hermes, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 14 July 2016,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Articles 2(a) and 3(2)(a) 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 (OJ 2001 L 197, p. 30).

2 The request has been made in proceedings between Mr Patrice D’Oultremont and Others and the Région wallonne (Walloon Region) concerning the validity of the order of the Walloon Government of 13 February 2014 on sector-specific conditions for wind farms of a total power of at least 0.5 MW, amending the order of the Walloon Government of 4 July 2002 concerning the procedure and various enforcement measures in respect of the decree of 11 March 1999 on environmental consent and amending the order of the Walloon Government of 4 July 2002 establishing the list of projects subject to an impact assessment and classified installations and activities (Moniteur belge of 7 March 2014, p. 20263) (‘the order of 13 February 2014’).

Legal context

International law

The Convention on environmental impact assessment in a transboundary context

3 The Convention on environmental impact assessment in a transboundary context, signed in Espoo (Finland) on 26 February 1991 (‘the Espoo Convention’) was approved on behalf of the European Community on 24 June 1997 and entered into force on 10 September of the same year.

4 Pursuant to Article 2(7) of the Espoo Convention: ‘Environmental impact assessments as required by this Convention shall, as a minimum requirement, be undertaken at the project level of the proposed activity. To the extent appropriate, the Parties shall endeavour to apply the principles of environmental impact assessment to policies, plans and programmes.’

The Protocol on Strategic Environmental Assessment to the Espoo Convention

5 The Protocol on Strategic Environmental Assessment to the Espoo Convention was signed in Kiev (Ukraine) on 21 May 2003 by the Commission, on behalf of the European Community (‘the Kiev Protocol’). That protocol was approved by Council Decision 2008/871/EC of 20 October 2008 (OJ 2008 L 308, p. 33).

6 Article 13(1) of the Kiev Protocol stipulates: ‘Each Party shall endeavour to ensure that environmental, including health, concerns are considered and integrated to the extent appropriate in the preparation of its proposals for policies and legislation that are likely to have significant effects on the environment, including health.’

The Aarhus Convention

7 The Convention on access to information, public participation in decision-making and access to justice in environmental matters, approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p. 1) (‘the Aarhus Convention’) also deals with environmental assessment.

8 Article 6 of that convention contains rules on public participation in the authorisation of activities. Articles 7 and 8 of the convention refer to such participation concerning plans, programmes, policies, regulations and other legally binding rules of general application.

European Union law

9 According to recital 4 of Directive 2001/42: ‘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.’

10 Article 1 of that directive, headed ‘Objectives’, provides: ‘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.’

11 Article 2 of that directive is worded as follows: ‘For the purposes of this Directive: (a) “plans and programmes” shall mean plans and programmes, including those co-financed by the European [Union], 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; ...’

12 Under Article 3 of the directive, headed ‘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 [2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), which repealed and replaced Directive 85/337 from 17 February 2012], or ... 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. ...’

Belgian law

13 Pursuant to Article 6(1)(II) of the loi spéciale du 8 août 1980 de réformes institutionnelles (Special Law on institutional reform of 8 August 1980) (Moniteur belge of 15 August 1980, p. 9434), the Regions alone are competent in matters relating to environmental protection.

14 In the Walloon Region, Directive 2001/42 has been partially transposed by Article D.52 et seq. in Book I of the code de l’environnement (Environment Code) (Moniteur belge of 9 July 2004, p. 54654), as is apparent from Article D.51/1 of that code.

15 Article D.6 of Book I of that code defines, in paragraph 13, the ‘plans and programmes’ as being ‘decisions excluding those referred to in the [code wallon de l’aménagement du territoire, de l’urbanisme, du patrimoine et de l’énergie (Walloon Town and Country Planning, Heritage and Energy Code) (Moniteur belge of 19 May 1984, p. 6939, and corrigendum, Moniteur belge of 25 May 1984, p. 7636)] and the amendments thereto which have as their purpose to decide upon either...