Strategic Environmental Assessment: The Term “Plans and Programmes” as Interpreted by the European Court of Justice
Thomas Bunge
elni Review 2019, pp. 2-9. https://doi.org/10.46850/elni.2019.001
One of the key terms of the SEA Directive is ‘Plans and Programmes’, defining the range of application of strategic environmental assessment. Although this notion has a high degree of relevance, the Directive itself abstains from a clear-cut definition. It rather presupposes what is meant and only lays down for which specific plans and programmes SEA is mandatory. Two provisions deal with the matter: Article 2 (Definitions) and Article 3 (‘Scope’).
The European Court of Justice interprets these provisions broadly, as it has pointed out several times. This view is based on the general intention of the SEA Directive to provide for a high level of protection of the environment, as laid down in its Article 1, and on its objective to subject plans and programmes which are likely to have significant effects on the environment to an environmental assessment. Thus, the Court extends its general understanding of the EIA Directive (2011/92/EU) also to the SEA Directive – an argument which, in view of the close relationship and far-reaching similarities of these directives, certainly seems adequate, since Article 3(1) of the SEA Directive makes it clear that SEA is required for plans and programmes due to the effects on the environment they have when implemented. A parallel provision exists in Article 2(1) of the EIA Directive.
This contribution outlines the main elements of these provisions as interpreted by the Court. It begins by briefly addressing the Court’s views regarding Article 2 lit. (a), and then deals with the various components of Article 3(1) to (4).
References
- 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 197/30.
- European Community, Implementation of Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment, 2003 (Guidance document).
- Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, OJ 1985 L 175/40.
- 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 26/1.
- Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment, OJ 2014 L 124/1.
- Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, OJ 1992 L 206/7.
- Council Directive 2013/17/EU of 13 May 2013 adapting certain directives in the field of environment, by reason of the accession of the Republic of Croatia, OJ 2013 L 158/193.
- Court of Justice of the European Union, 2012, Judgment of the Court (Fourth Chamber), 22 March 2012, Inter-Environnement Bruxelles ASBL and Others v Région de Bruxelles-Capitale Reference for a preliminary ruling from the Cour constitutionnelle (Belgium) Directive 2001/42/EC — Assessment of the effects of certain plans and programmes on the environment — Concept of plans and programmes ‘which are required by legislative, regulatory or administrative provisions’ — Applicability of the directive to a procedure for the total or partial repeal of a land use plan, Case C‑567/10.
- Court of Justice of the European Union, 2015, Judgment of the Court (Ninth Chamber) of 10 September 2015, Dimos Kropias Attikis v Ypourgos Perivallontos, Energeias kai Klimatikis Allagis Request for a preliminary ruling from the Symvoulio tis Epikrateias Reference for a preliminary ruling — Directive 2001/42/EC — Assessment of the effects of certain plans and programmes on the environment — Protection regime in respect of the Mount Hymettus area — Modification procedure — Applicability of the directive — Master plan and environmental protection programme for the greater Athens area, Case C-473/14.
- Court of Justice of the European Union, 2016, Judgment of the Court (Second Chamber) of 27 October 2016, Patrice D'Oultremont and Others v Région wallonne Request for a preliminary ruling from the Conseil d'État (Belgium) 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, Case C-290/15.
- Court of Justice of the European Union, 2019, Judgment of the Court (First Chamber) of 12 June 2019, Terre wallonne ASBL v Région wallonne Request for a preliminary ruling from the Conseil d'État (Belgium) Reference for a preliminary ruling — Environment — Directive 2001/42/EC — Assessment of the effects of certain plans and programmes on the environment — Decree — Establishment of conservation objectives for the Natura 2000 network, in accordance with Directive 92/43/EEC — Definition of ‘plans and programmes’ — Obligation to undertake an environmental assessment, Case C-321/18.
- Deutscher Bundestag, Drucksache15/3441 of 29 June 2004: Gesetzentwurf der Fraktionen SPD und Bündnis 90/Die Grünen: Entwurf eines Gesetzes zur Einführung einer Strategischen Umweltprüfung und zur Umsetzung der Richtlinie 2001/42/EG (SUPG).
- Letter by the Commission of 19 July 2004 to the Federal Environmental Ministry.
- Federal Act on Environmental Impact Assessment (Gesetz über die Umweltverträglichkeitsprüfung), 2000.
- European Commission Report of 15 May 2017 to the Council and the European Parliament under Article 12(3) of Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment, Doc. COM(2017) 234 final.
- 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 375/1.
- Court of Justice of the European Union, 2010, Judgment of the Court (Fourth Chamber) of 17 June 2010. Terre wallonne ASBL (C-105/09) and Inter-Environnement Wallonie ASBL (C-110/09) v Région wallonne. References for a preliminary ruling: Conseil d'État - Belgium. Directive 2001/42/EC - Assessment of the effects of certain plans and programmes on the environment - Directive 91/676/EEC - Protection of waters against pollution caused by nitrates from agricultural sources - Action programmes in respect of vulnerable zones. Joined cases C-105/09 and C-110/09.
- Court of Justice of the European Union, 2018, Judgment of the Court (Second Chamber) of 7 June 2018, Raoul Thybaut and Others v Région wallonne Request for a preliminary ruling from the Conseil d'État (Belgium) Reference for a preliminary ruling — Environment — Directive 2001/42/EC — Article 2(a) — Concept of ‘plans and programmes’ — Article 3 — Assessment of the effects of certain plans and programmes on the environment — Urban land consolidation area — Possibility of derogating from town planning requirements — Modification of the ‘plans and programmes’, Case C-160/17.
- Court of Justice of the European Union, 2011, Judgment of the Court (Fourth Chamber) of 22 September 2011. Genovaitė Valčiukienė and Others v Pakruojo rajono savivaldybė and Others. Reference for a preliminary ruling: Vyriausiasis administracinis teismas - Lithuania. Directive 2001/42/EC - Assessment of the effects of certain plans and programmes on the environment - Plans which determine the use of small areas at local level - Article 3(3) - Documents relating to land planning at local level relating to only one subject of economic activity - Assessment under Directive 2001/42/EC precluded in national law - Member States’ discretion - Article 3(5) - Link with Directive 85/337/EEC - Article 11(1) and (2) of Directive 2001/42/EC. Case C-295/10.
- Court of Justice of the European Union, 2018, Judgment of the Court (Second Chamber) of 7 June 2018, Inter-Environnement Bruxelles ASBL and Others v Région de Bruxelles-Capitale Request for a preliminary ruling from the Conseil d'État (Belgium) Reference for a preliminary ruling — Environment — Directive 2001/42/EC — Article 2(a) — Concept of ‘plans and programmes’ — Article 3 — Assessment of the effects of certain plans and programmes on the environment — Regional town planning regulations relating to the European Quarter, Brussels (Belgium), Case C-671/16.
- Court of Justice of the European Union, 2019, Judgment of the Court (Sixth Chamber) 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 Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio Reference for a preliminary ruling — Environment — Directive 2008/98/EC — Disposal or recovery of waste — Establishment of an integrated waste management system guaranteeing national self-sufficiency — Construction of incineration facilities or increase in capacity of existing facilities — Classification of incineration facilities as ‘strategic infrastructure and installations of major national importance’ — Compliance with the ‘waste hierarchy’ principle — Directive 2001/42/EC — Need to carry out an ‘environmental assessment’, Case C-305/18.
- Court of Justice of the European Union, 2019, Judgment of the Court (First Chamber) of 12 June 2019. Compagnie d'entreprises CFE SA v Région de Bruxelles-Capitale Request for a preliminary ruling from the Conseil d'État (Belgium) Reference for a preliminary ruling — Environment — Directive 2001/42/EC — Assessment of the effects of certain plans and programmes on the environment — Decree — Designation of a special area of conservation pursuant to Directive 92/43/EEC — Setting of conservation objectives and provision of certain preventive measures — Concept of ‘plans and programmes’ — Obligation to carry out an environmental assessment, Case C-43/18.
- Erste allgemeine Verwaltungsvorschrift zum Bundes-Immissionsschutzgesetz (Technische Anleitung zur Reinhaltung der Luft – TA Luft) of 24 July 2002 (Gemeinsames Ministerialblatt 2002, pp. 511 et seq.).
- Court of Justice of the European Union, 2004, Judgment of the Court (Grand Chamber) of 7 September 2004. Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging tot Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en Visserij. Reference for a preliminary ruling: Raad van State - Netherlands. Directive 92/43/EEC -Conservation of natural habitats and of wild flora and fauna - Concept of "plan' or "project' - Assessment of the implications of certain plans or projects for the protected site. Case C-127/02.
- Court of Justice of the European Union, 2012, Judgment of the Court (Eighth Chamber), 21 June 2012, Syllogos Ellinon Poleodomon kai Khorotakton v Ipourgos Perivallontos, Khorotaxias & Dimosion Ergon and Others Reference for a preliminary ruling from the Simvoulio tis Epikrateias Directive 2001/42/EC — Assessment of the effects of certain plans and programmes on the environment — Article 3(2)(b) — Margin of discretion of the Member States, Case C-177/11.
- Court of Justice of the European Union, 2016, Judgment of the Court (Third Chamber) of 21 December 2016 Associazione Italia Nostra Onlus v Comune di Venezia and Others Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Veneto Reference for a preliminary ruling — Environment — Directive 2001/42/EC — Assessment of the effects of certain plans and programmes on the environment — Article 3(3) — Plans and programmes which require an environmental assessment only where the Member States determine that they are likely to have significant environmental effects — Validity in the light of the TFEU and the Charter of Fundamental Rights of the European Union — Meaning of use of ‘small areas at local level’ — National legislation referring to the size of the areas concerned Case C-444/15.