Opinion of Advocate General Kokott delivered on 29 November 2018.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2018:972
• Docket Number: C-411/17
• Celex Number: 62017CC0411
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 29 November 2018

Provisional text

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 29 November 2018 (1)

Case C‑411/17

Inter-Environnement Wallonie ASBL,

Bond Beter Leefmilieu Vlaanderen vzw

v

Conseil des ministres,

Intervener:

Electrabel SA

(Request for a preliminary ruling from the Cour constitutionnelle (Constitutional Court, Belgium))

(Request for a preliminary ruling — Environment — Espoo Convention — Aarhus Convention — Directive 2011/92/EU — Directive 92/43/EEC — Directive 2009/147/EC — Phasing out of nuclear energy — Statutory extension by 10 years of the period of industrial production of electricity by certain nuclear power stations — No environmental impact assessment — Definition of ‘project’ — Legislative act — Renewal of consent — Direct effect of International Conventions — Derogation from obligations — Overriding public interest — Security of supply)

Table of contents

I. Introduction

II. Legal framework

A. International law

1. Espoo Convention

2. Aarhus Convention

B. EU law

1. EIA Directive

2. Habitats Directive

III. Facts

IV. Request for a preliminary ruling

V. Legal assessment

A. The applicability of EU law to nuclear energy

B. Legislative acts in environmental impact assessment

C. The extension of the period of industrial production of electricity

1. Definition of ‘project’ in the EIA Directive

2. Definition of ‘activity’ in the Espoo Convention

(a) The Court’s power of interpretation

(b) Definition of ‘activity’ in the Espoo Convention

3. Definition of ‘project’ in the Aarhus Convention

(a) Extension of the period as a ‘project’

(b) Reconsideration of consent as a ‘project’

(c) Change or extension as a ‘project’

(d) Interim conclusion

4. Inconsistency between the previous interpretation of Article 1(2)(a) of the EIA Directive and the two Conventions

(a) Interpretation of the definition of ‘project’ in the EIA Directive in conformity with international law

(b) The direct effect of the Espoo and Aarhus Conventions

5. Status as a project by virtue of other works

D. Other questions regarding the application of the EIA Directive

1. Classification under the Annexes to the EIA Directive

2. Time of the assessment

E. Derogation from the duty of assessment on grounds of security of electricity supply and legal certainty

1. Derogation on the basis of the specific exemption in the EIA Directive

2. Derogation from the Espoo Convention

3. Derogation from the Aarhus Convention

4. Consequences for the interpretation of the possibility of derogation under the EIA Directive

F. Question 8 — Article 6(3) and (4) of the Habitats Directive

1. Question 8(a) — Definition of ‘project’ in the Habitats Directive

2. Question 8(b) — Legislative act

3. Question 8(c) — Doel 1 and Doel 2

4. Question 8(d) — Exemption for security of supply

(a) Conditions for the application of Article 6(4) of the Habitats Directive

(b) Security of electricity supply

(c) Interim conclusion

G. Maintenance of the effects of the Law extending the period of industrial production of electricity by the Doel 1 and Doel 2 nuclear power stations

1. Case-law within the scope of the Strategic Environmental Assessment Directive

2. Application to other environmental assessments

VI. Conclusion

I. Introduction

1. Does the adoption of a law extending the period of industrial production of electricity by nuclear power stations require an environmental impact assessment? This question is raised before the Cour constitutionnelle (Constitutional Court, Belgium), which is therefore referring it to the Court for a preliminary ruling.

2. The Cour constitutionnelle (Constitutional Court) refers in this regard to the international Espoo (2) and Aarhus (3) Conventions, the EIA Directive (4) and the Habitats Directive, (5) which all provide for an environmental assessment, but lay down different requirements. The list of questions referred is therefore extensive.

3. However, the request for a preliminary ruling boils down to three central questions, namely, first, whether legislative measures require an environmental impact assessment, second, whether the prolongation of an already authorised activity requires an assessment, and third, whether overriding public interests can justify the continued operation of the power stations concerned in the event of any failure to fulfil assessment duties. At first sight at least, each of the abovementioned legal instruments contains different requirements on these points.

4. On account of the questions regarding the Conventions, these proceedings also give the Court another opportunity to consider the effects of international environmental law in EU law and its own role in interpreting those provisions. As Germany explained at the hearing, this is of considerable practical interest for the application of the Espoo Convention to nuclear power stations in particular because at present decisions must be taken within the scope of the Convention on extending the lifetimes of around 90 plants. Within the framework of the Convention, a special working group of the Contracting States has therefore also been established on this subject.

II. Legal framework

A. International law

5. The Espoo and Aarhus Conventions were adopted within the framework of the United Nations Economic Commission for Europe (UNECE). They were concluded for the then European Community as a mixed agreement together with the Member States.

1. Espoo Convention

6. The Espoo Convention concerns environmental impact assessment in a transboundary context. It was approved by the Council by way of an unpublished decision of 15 October 1996, which it communicated to the Court upon request. (6) That decision was based on Article 130s in conjunction with the first sentence of Article 228(2) and the first subparagraph of Article 228(3) of the EC Treaty, which were applicable at the time. Those provisions now appear in amended form in Article 192, Article 218(6)(b) and the first sentence of Article 218(8) TFEU.

7. Article 1(5) and (9) of the Espoo Convention contains relevant definitions:

‘For the purposes of this Convention,

…

5. “Proposed activity” means any activity or any major change to an activity subject to a decision of a competent authority in accordance with an applicable national procedure;

…

9. “Competent authority” means the national authority or authorities designated by a Party as responsible for performing the tasks covered by this Convention and/or the authority or authorities entrusted by a Party with decision-making powers regarding a proposed activity;

…’.

8. Article 2 of the Espoo Convention contains the fundamental obligations on the Contracting States:

‘1. The Parties shall, either individually or jointly, take all appropriate and effective measures to prevent, reduce and control significant adverse transboundary environmental impact from proposed activities.

2. Each Party shall take the necessary legal, administrative or other measures to implement the provisions of this Convention, including, with respect to proposed activities listed in Appendix I that are likely to cause significant adverse transboundary impact, the establishment of an environmental impact assessment procedure that permits public participation and preparation of the environmental impact assessment documentation described in Appendix II.

3. The Party of origin shall ensure that in accordance with the provisions of this Convention an environmental impact assessment is undertaken prior to a decision to authorise or undertake a proposed activity listed in Appendix I that is likely to cause a significant adverse transboundary impact.

…

6. The Party of origin shall provide, in accordance with the provisions of this Convention, an opportunity to the public in the areas likely to be affected to participate in relevant environmental impact assessment procedures regarding proposed activities[,] and shall ensure that the opportunity provided to the public of the affected Party is equivalent to that provided to the public of the Party of origin.’

9. Appendix I, point 2 to the Espoo Convention defines thermal power stations covered by the Convention:

‘Thermal power stations and other combustion installations with a heat output of 300 megawatts or more and nuclear power stations and other nuclear reactors (except research installations for the production and conversion of fissionable and fertile materials, whose maximum power does not exceed 1 kilowatt continuous thermal load).’

2. Aarhus Convention

10. Article 2 of the Aarhus Convention contains relevant definitions:

‘For the purposes of this Convention,

…

2. “Public authority” means:

(a) government at national, regional and other level;

(b) ...

This definition does not include bodies or institutions acting in a judicial or legislative capacity’.

11. Article 6 of the Aarhus Convention regulates public participation in decisions on specific activities:

‘1. Each Party:

(a) shall apply the provisions of this article with respect to decisions on whether to permit proposed activities listed in Annex I;

…

(c) may decide, on a case-by-case basis if so provided under national law, not to apply the provisions of this article to proposed activities serving national defence purposes, if that Party deems that such application would have an adverse effect on these purposes.

4. Each Party shall provide for early public participation, when all options are open and effective public participation can take place.

6. Each Party shall require the competent public authorities to give the public concerned access for examination … as soon as it becomes available, to all information relevant to the decision-making referred to in this article that is available at the time of the public participation procedure …

…

10. Each Party shall ensure that, when a public authority reconsiders or updates the operating conditions for an activity referred to in paragraph 1, the provisions of paragraphs 2 to 9 of this Article are applied mutatis mutandis, and where...