Provisional text
JUDGMENT OF THE COURT (Second Chamber)
9 July 2026 (*)
( Reference for a preliminary ruling – Environment – Directive 2001/42/EC – Assessment of the effects of certain plans and programmes on the environment – Article 2(a) – Concept of ‘plans and programmes’ – Article 3(2)(a) – Measures prepared for certain sectors and setting a framework for future development consent of projects listed in Annexes I and II to Directive 2011/92/EU – Plan or programme in the transport, town and country planning or land use sector – Order laying down the conditions for operating car parks – Maintenance of the effects of a national act where there is no environmental impact assessment – Conditions )
In Case C‑771/24,
REQUEST for a preliminary ruling under Article 267 TFEU from the Conseil d’État (Council of State, Belgium) made by decision of 23 October 2024, received at the Court on 7 November 2024, in the proceedings
Fédération belge du stationnement ASBL,
Interparking SA
v
Région de Bruxelles-Capitale,
THE COURT (Second Chamber),
composed of K. Jürimäe, President of the Chamber, K. Lenaerts, President of the Court, acting as Judge of the Second Chamber, F. Schalin, M. Gavalec and Z. Csehi (Rapporteur), Judges,
Advocate General: J. Kokott,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
– the Fédération belge du stationnement ASBL and Interparking SA, by O. Di Giacomo, B. Lombaert and R. Smal, avocats,
– the Belgian Government, by S. Baeyens, P. Cottin and C. Pochet, acting as Agents, and by I.-S. Brouhns, G. Possoz and V. Thunis, avocats,
– the Latvian Government, by J. Davidoviča and K. Pommere, acting as Agents,
– the European Commission, by I. Melo Sampaio and G. Wils, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 18 December 2025,
gives the following
Judgment
1 This request for a preliminary ruling concerns the interpretation of Article 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 the course of proceedings between Fédération belge du stationnement ASBL (‘the Fédération’) and Interparking SA, on the one hand, and the Région de Bruxelles-Capitale (Brussels-Capital Region, Belgium), on the other hand, concerning the legality of the arrêté du gouvernement de la Région de Bruxelles-Capitale (Belgique), du 25 février 2021, fixant des conditions générales et spécifiques d’exploitation applicables aux parkings (Order of the Government of the Brussels-Capital Region (Belgium) of 25 February 2021, laying down general and specific operating conditions applicable to car parks) (Moniteur belge of 3 March 2021, p. 18655; ‘the order of 25 February 2021’).
Legal context
European Union law
Directive 2001/42
3 Article 1 of Directive 2001/42, entitled ‘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.’
4 Article 2 of that directive, entitled ‘Definitions’, provides, in point (a) thereof:
‘For the purposes of this Directive:
(a) “plans and programmes” shall mean plans and programmes, including those co-financed by the European Community, 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’.
5 Article 3 of that directive, headed ‘Scope’, provides in paragraphs 1 and 2 thereof:
‘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 [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, p. 40)], or
…’
Directive 2011/92/EU
6 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 Directive 85/337, provides, in Article 1(2)(a) thereof:
‘For the purposes of this Directive, the following definitions shall apply:
(a) “project” means:
– the execution of construction works or of other installations or schemes,
– other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources’.
7 Point 10(b) of Annex II to that directive, entitled ‘Projects referred to in Article 4(2)’, states, among infrastructure projects, ‘urban development projects, including the construction of shopping centres and car parks’.
Belgian law
8 Article 1 of the order of 25 February 2021 provides:
‘This order partially transposes Directive (EU) 2018/844 of the European Parliament and of the Council [of 30 May 2018 amending Directive 2010/31/EU on the energy performance of buildings and Directive 2012/27/EU on energy efficiency (OJ 2018 L 156, p. 75)].
This order shall apply to the car parks referred to in section 68 of the order of the Government of the Brussels-Capital Region of 4 March 1999 establishing the list of Class IB, IC, ID, II and III installations in implementation of Article 4 of the ordinance of 5 June 1997 on environmental permits and section 224 of the ordinance of 22 April 1999 establishing the list of Class IA installations referred to in Article 4 of the ordinance of 5 June 1997 on environmental permits.
…’
9 The order of 25 February 2021 lays down, in particular:
– under the heading of ‘general operating conditions for covered and open-air car parks’, the conditions for the use, layout and signposting of car parks, for their maintenance and oversight, for electric vehicle charging points and conditions relating to bicycle parking facilities;
– under the heading of ‘specific operating conditions for open-air car parks’, the conditions governing the maintenance of vegetation, the use of gritting salt and the maintenance of drainage installations and artificial lighting;
– under the heading of ‘specific operating conditions for covered car parks’, the conditions governing the layout of the car park, safety (in particular, the prohibition on parking LPG vehicles, fire resistance of the car park walls, the presence of gas pipes, exits and evacuation routes and fire-fighting equipment), the management of equipment, air quality standards and mechanical and natural ventilation.
The dispute in the main proceedings and the questions referred for a preliminary ruling
10 On 2 July 2020, the Government of the Brussels-Capital Region adopted, at first reading, a draft order establishing general operating conditions applicable to car parks.
11 On 6 July 2020, that draft was notified to the European Commission, pursuant to Article 5(1) of Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (OJ 2015 L 241, p. 1).
12 On 10 December 2020, the Government of the Brussels-Capital Region adopted that draft at second reading.
13 On 12 January 2021, the Legislative Section of the Conseil d’État (Council of State, Belgium), in its opinion on that draft, raised the question whether it should not be subject to an environmental impact assessment under Article 3(2)(a) of Directive 2001/42, read in conjunction with point 10(b) of Annex II to Directive 2011/92. That opinion invited the authors of the draft at issue to specify how the environmental obligations were complied with by that draft or, where applicable, the reasons why they considered that they were not applicable to it.
14 On 25 February 2021, the Government of the Brussels-Capital Region adopted the order at issue in the main proceedings, without any environmental assessment, within the meaning of Article 3(2)(a) of Directive 2001/42, having been carried out beforehand.
15 On 30 April 2021, the Fédération and Interparking brought an action before the Conseil d’État (Council of State), which is the referring court, seeking annulment of that order.
16 Before that court, the Fédération and Interparking submit, inter alia, that that order constitutes a plan or programme likely to have significant effects on the environment, within the meaning of Directive 2001/42, and that it should therefore have been subject, before its adoption, to an environmental assessment pursuant to Article 3(2)(a) of that directive.
17 By contrast, according to the Government of the Brussels-Capital Region, the order of 25 February 2021 does not constitute a plan or programme within the meaning of that directive. It contends that binding regulatory provisions, which contain standing rules, such as those laid down by that order, can be regarded as falling within the concept of ‘plan’ or ‘programme’ only if they have a planning or programming aspect, which is not the case here. That order does not plan or programme the places where car parks are likely to be sited in the territory of the Brussels-Capital Region, or the number of parking spaces permitted in that territory. Furthermore, that order cannot be regarded as a plan or programme, in so far as its provisions merely lay down the mandatory rules with which every car park installation must comply after its completion, during its operational phase, and do not contribute to the implementation or siting of a project, for the purposes of Directive 2001/42.
18 In those circumstances, the Conseil d’État (Council of State) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Must Article 3(2)(a) of [Directive 2001/42] be interpreted as meaning that an order, such as that at issue, which is limited to laying down conditions for the operation of car parks without laying down rules on their siting or their maximum number must nevertheless be regarded as a plan or programme in the transport, town and country planning or land use sector?
(2) If the first question is answered in the affirmative, may a national court apply a provision of its national law which empowers it to maintain, for a limited period, the effects of an annulled regulatory measure laying down the conditions for the operation of car parks in the territory of a region in order to allow the regional authority to carry out an assessment of the environmental impact of those operating conditions before any redrafting of that measure?’
Consideration of the questions referred
The first question
19 By its first question, the referring court asks, in essence, whether Article 3(2)(a) of Directive 2001/42 must be interpreted as meaning that national legislation which lays down the conditions for operating car parks without, however, laying down rules on their siting or their maximum number must be subject to an environmental assessment.
20 As a preliminary point, it should be borne in mind, first, that, pursuant to Article 1 of Directive 2001/42, the objective thereof is to provide 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 that directive, an environmental assessment is carried out of certain plans and programmes which are likely to have significant effects on the environment.
21 Second, given the intended purpose of Directive 2001/42, which is to provide for such a high level of protection of the environment, the provisions which delimit the scope of the directive, in particular those setting out the definitions of the measures envisaged by that directive, must be interpreted broadly (judgments of 22 March 2012, Inter-Environnement Bruxelles and Others, C‑567/10, EU:C:2012:159, paragraph 37, and of 22 February 2022, Bund Naturschutz in Bayern, C‑300/20, EU:C:2022:102, paragraph 44).
22 Under Article 3(2)(a) of Directive 2001/42, an environmental assessment is carried out for all plans and programmes which satisfy two cumulative conditions, namely, first, that they are prepared for one or more sectors listed in that provision and, second, that they set the framework for future development consent of projects listed in Annexes I and II to Directive 2011/92.
23 The concept of ‘plans and programmes’, within the meaning of Directive 2001/42, is defined in Article 2(a) thereof as referring to those which satisfy two cumulative conditions, namely, first, that they are subject to preparation and/or adoption by an authority at national, regional or local level or are prepared by an authority for adoption, through a legislative procedure by Parliament or Government, and, second, that they are required by legislative, regulatory or administrative provisions (judgments of 9 March 2023, An Bord Pleanála and Others (Site of St Teresa’s Gardens), C‑9/22, EU:C:2023:176, paragraph 27 and the case-law cited, and of 4 October 2024, Friends of the Irish Environment (Project Ireland 2040), C‑727/22, EU:C:2024:825, paragraph 24).
24 As regards the first of those conditions, it is satisfied since it is clear from the information provided by the referring court that the order of 25 February 2021 was adopted by a regional authority, in this instance the Government of the Brussels-Capital Region.
25 As regards the second condition, it is apparent from the case-law of the Court that plans and programmes whose adoption is regulated by national legislative or regulatory provisions, which determine the competent authorities for adopting them and the procedure for preparing them, must be regarded as ‘required’ within the meaning, and for the application, of Directive 2001/42 (judgment of 22 March 2012, Inter-Environnement Bruxelles and Others, C‑567/10, EU:C:2012:159, paragraph 31). Thus, the Court has held that, in order to ensure the effectiveness of Article 2(a) of Directive 2001/42, having regard to its objective, a measure must be regarded as being ‘required’ where the legal basis of the power to adopt the measure is found in a particular provision, even if the adoption of that measure is not compulsory (judgment of 25 June 2020, A and Others (Wind turbines at Aalter and Nevele), C‑24/19, EU:C:2020:503, paragraph 35 and the case-law cited).
26 In the present case, it is apparent from the documents before the Court that the order of 25 February 2021 was adopted, as is apparent from the preamble thereto, on the basis of the first subparagraph of Article 6(1), Article 10(2) and the second subparagraph of Article 63(3) of the ordinance of 5 June 1997 relating to environmental permits. It therefore appears that the second condition, set out in the second indent of Article 2(a) of Directive 2001/42, is satisfied.
27 In that regard, it should be added, in the light of the referring court’s questions and contrary to the position taken by the Belgian Government in its written observations, that Article 2(a) of Directive 2001/42 cannot be interpreted as meaning that, in order to fall within the concept of ‘plans or programmes’ within the meaning of that provision, an act must also have a planning or programming aspect.
28 The Belgian Government thus relies, in that context, on an interpretation of the concept of ‘plans and programmes’ according to which, in order to fall within it, an act must contain provisions relating to town and country planning, identifying the permissible uses of the infrastructure in question in a territory.
29 In that regard, it should be noted, first, that Article 2(a) of Directive 2001/42 defines, in the light of its wording, the concept of ‘plans and programmes’ only by reference to two elements, namely the authority from which the act concerned emanates and the legal basis on which it was adopted.
30 In the light of the wording of that provision, those two elements must be regarded as exhaustive.
31 That literal interpretation of Article 2(a) of Directive 2001/42 is supported by the context of that provision and by the scheme of that directive. In that regard, it should be recalled that Article 3 of that directive sets out the conditions which a plan or programme concerned, within the meaning of Article 2(a) of that directive, must satisfy in order to be subject to an environmental assessment under Directive 2001/42.
32 Concerning, in that regard, Article 3(2)(a), it should be noted that that provision lists the sectors for which plans and programmes are prepared, including town and country planning or land use, and provides that plans and programmes must set the framework for future development consent of projects listed in Annexes I and II to Directive 2011/92.
33 Thus, while it appears that Article 2 of Directive 2001/42 lays down certain formal conditions for a measure to fall within the scope of that directive, Article 3 thereof lays down the substantive conditions which must be satisfied in order for that measure to be subject to an environmental assessment.
34 That provision would be rendered meaningless if the concept of ‘plans and programmes’, within the meaning of Article 2(a) of Directive 2001/42, were to be interpreted as meaning that the act must have a certain substantive content, in particular a planning or programming aspect in relation to the town and country planning sector, in order to fall within that concept.
35 That interpretation is further supported by the legislative history of Article 2(a) of Directive 2001/42, as is apparent from points 37 to 41 of the Opinion of the Advocate General.
36 The above interpretation is all the more compelling because such an additional condition, by having the effect of limiting the scope of that directive, would run counter to the principle that, in accordance with the case-law cited in paragraph 21 above, the provisions of that directive which delimit its scope, and in particular those setting out the definitions of the measures envisaged by that directive, must be interpreted broadly.
37 Furthermore, as regards the general nature of the act at issue in the main proceedings, it should be borne in mind that the general nature of a measure does not preclude it from being classified as a plan or programme within the meaning of Article 2(a) of Directive 2001/42. While it is clear from the wording of that provision that the concept of ‘plans and programmes’ can cover normative acts that are legislative, regulatory or administrative, that directive does not contain any special provisions in relation to policies or general legislation that would call for them to be distinguished from plans and programmes for the purpose of that directive (see, to that effect, judgments of 27 October 2016, D’Oultremont and Others, C‑290/15, EU:C:2016:816, paragraphs 52 and 53, and of 22 February 2022, Bund Naturschutz in Bayern, C‑300/20, EU:C:2022:102, paragraph 41).
38 As regards the two conditions set out in Article 3(2)(a) of Directive 2001/42, recalled in paragraph 22 above, it should be noted that the first of those conditions, according to which plans and programmes must be ‘prepared for’ the sectors listed in that provision, is satisfied where the plan or programme in question ‘concerns’ one of those sectors (see, to that effect, judgments of 27 October 2016, D’Oultremont and Others, C‑290/15, EU:C:2016:816, paragraph 44, and of 22 February 2022, Bund Naturschutz in Bayern, C‑300/20, EU:C:2022:102, paragraph 49).
39 In that regard, it must be stated at the outset that, in order for that condition to be satisfied, it is sufficient that the plan or programme in question falls within one of those sectors. Those sectors include, in particular, transport and town and country planning or land use.
40 As regards the interpretation of those concepts, it should be noted, first, that, in its judgment of 22 February 2022, Bund Naturschutz in Bayern, C‑300/20, EU:C:2022:102), the Court adopted a broad definition of the transport sector, holding that the regulation at issue in the case which gave rise to that judgment, in so far as it required authorisation to drive or park motor vehicles of any kind anywhere other than on roads, paths and spaces dedicated to public traffic, contained rules which concern activities falling within the transport sector.
41 Private passenger transport is not, in practice, conceivable without car parks, with the result that they, as essential infrastructure for transport, fall within the transport sector. In those circumstances, it may be considered that the measure at issue in the main proceedings, in so far as it lays down specific operating rules for car parks, contains rules which concern activities falling within, in particular, the transport sector.
42 Second, it must be held that the concept of town and country planning or land use presupposes, as is apparent from points 63 to 65 of the Opinion of the Advocate General, the existence of a provision affecting the use of land.
43 In the present case, it appears that, subject to the assessment which falls to the referring court alone, the order of 25 February 2021 contains rules which concern, at the very least, the transport sector, with the result that the first condition laid down in Article 3(2)(a) of Directive 2001/42 appears to be satisfied.
44 As regards the second condition laid down in Article 3(2)(a) of Directive 2001/42, it follows from that provision that that condition is satisfied where, first, the plans or programmes in question set the framework for future development consent of projects and, second, those projects are among those listed in Annexes I and II to Directive 2011/92 (judgment of 22 February 2022, Bund Naturschutz in Bayern, C‑300/20, EU:C:2022:102, paragraph 55).
45 First, as regards the question whether a measure such as the order of 25 February 2021 refers to projects listed in Annexes I and II to Directive 2011/92, it should be noted that point 10(b) of Annex II to that directive refers to ‘urban development projects, including the construction of shopping centres and car parks’.
46 Second, as regards the question whether such an order sets the framework for future development consent of projects, it should be recalled that according to the case-law, a measure has that characteristic where it establishes, by defining rules and procedures for scrutiny applicable to the sector concerned, a significant body of criteria and detailed rules for the grant and implementation of one or more projects likely to have significant effects on the environment (see, to that effect, judgments of 27 October 2016, D’Oultremont and Others, C‑290/15, EU:C:2016:816, paragraph 49, and of 22 February 2022, Bund Naturschutz in Bayern, C‑300/20, EU:C:2022:102, paragraph 60 and the case-law cited).
47 Such an interpretation is intended to ensure that provisions which are likely to have significant environmental effects are subject to an environmental assessment (judgments of 25 June 2020, A and Others (Wind turbines at Aalter and Nevele), C‑24/19, EU:C:2020:503, paragraph 68, and of 22 February 2022, Bund Naturschutz in Bayern, C‑300/20, EU:C:2022:102, paragraph 61).
48 The requirement laid down in Article 3(2)(a) of Directive 2001/42, according to which the plan or programme concerned must set the framework for future development consent of projects listed in Annexes I and II to Directive 2011/92, must therefore be regarded as met where the plan or programme establishes a significant body of criteria and detailed rules for the grant and implementation of one or more of those projects, inter alia with regard to the location, nature, size and operating conditions of such projects, or the allocation of resources connected with those projects (judgment of 22 February 2022, Bund Naturschutz in Bayern, C‑300/20, EU:C:2022:102, paragraph 62).
49 In the present case, it is apparent from the order for reference that the order of 25 February 2021 relates exclusively to the operation of car parks, without laying down any rules concerning their siting and their maximum number.
50 In that regard, it should be noted that the planning or programming aspect of a measure is not a decisive criterion for the purposes of Article 3(2)(a) of Directive 2001/42. The obligation to carry out an environmental assessment arises not from the existence of such an aspect, but from the effects of the measure on the environment, in that the measure sets the framework for future development consent of certain projects.
51 As regards the order of 25 February 2021, it is apparent from the information in the file before the Court that, among the rules laid down for the operation of car parks, the rules relating to artificial lighting and drainage installations for open-air car parks and the requirements relating to recharging points and bicycle parking facilities are likely to have effects on the environment. It will be for the referring court to determine whether, as a result of those rules, those requirements or other provisions of that order, the second condition laid down in Article 3(2)(a) of Directive 2001/42 is satisfied. In particular, it will have to examine whether, in the light of the Brussels territory, those rules and requirements are likely to have significant effects on the environment.
52 In the light of the foregoing considerations, the answer to the first question is that Article 3(2)(a) of Directive 2001/42 must be interpreted as meaning that national legislation which lays down the conditions for operating car parks without, however, laying down rules on their siting or their maximum number must be subject to an environmental assessment if, first, that legislation is drawn up for the transport sector or that of town and country planning or land use, and second, it establishes, by defining rules and procedures for scrutiny applicable to the sector concerned, a significant body of criteria and detailed rules for the grant and implementation of one or more projects likely to have significant effects on the environment.
The second question
53 By its second question, the referring court asks, in essence, whether EU law must be interpreted as meaning that, where it appears that an environmental assessment, within the meaning of Directive 2001/42, should have been carried out before the adoption of a regulatory act the legality of which is challenged before it, with the result that that act must be regarded as incompatible with EU law, that court may, and under what conditions, maintain the effects of that act in order to enable the competent authority to carry out that environmental assessment and, where appropriate, to amend that act.
54 As stated in paragraph 20 above, the objective of Directive 2001/42 is to provide 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 that directive, an environmental assessment is carried out of certain plans and programmes which are likely to have significant effects on the environment.
55 In the absence of provisions in that directive on the consequences of infringing the procedural provisions which it lays down, it is for the Member States to take, within the sphere of their competence, all the general or particular measures necessary to ensure that all ‘plans’ or ‘programmes’ that are likely to have ‘significant environmental effects’, within the meaning of that directive, are subject to an environmental assessment, in accordance with the procedural requirements and the criteria laid down by that directive (judgment of 25 June 2020, A and Others (Wind turbines at Aalter and Nevele), C‑24/19, EU:C:2020:503, paragraph 82 and the case-law cited).
56 Under the principle of sincere cooperation provided for in Article 4(3) TEU, Member States are required to eliminate the unlawful consequences of such a breach of EU law. It follows that the competent national authorities, including national courts hearing an action against an instrument of national law adopted in breach of EU law, are therefore under an obligation to take all the necessary measures, within the sphere of their competence, to remedy the failure to carry out an environmental assessment. That may, for a ‘plan’ or ‘programme’ adopted in breach of the obligation to carry out an environmental assessment, consist, for example, in adopting measures to suspend or annul that plan or programme, or in revoking or suspending consent already granted, in order to carry out such an assessment (judgment of 25 June 2020, A and Others (Wind turbines at Aalter and Nevele), C‑24/19, EU:C:2020:503, paragraph 83 and the case-law cited).
57 However, the Court has already held that, while taking into account the existence of an overriding consideration relating to the protection of the environment, a national court may exceptionally be authorised to make use of a national provision empowering it to maintain certain effects of a national measure the procedure for the adoption of which did not comply with Directive 2001/42, where there is a risk that the annulment of that measure creates a legal vacuum that is incompatible with that Member State’s obligation to adopt measures to transpose another act of EU law concerning the protection of the environment (see, to that effect, judgment of 25 June 2020, A and Others (Wind turbines in Aalter and Nevele), C‑24/19, EU:C:2020:503, paragraph 90 and the case-law cited).
58 Furthermore, any possible maintenance of the effects of those measures may last only as long as is strictly necessary to remedy the breach found (judgment of 25 June 2020, A and Others (Wind turbines at Aalter and Nevele), C‑24/19, EU:C:2020:503, paragraph 94 and the case-law cited).
59 It is thus apparent from the case-law referred to in paragraphs 57 and 58 above that, where it appears that an environmental assessment, within the meaning of Directive 2001/42, should have been carried out before the adoption of a national act the legality of which is challenged before a national court, with the result that that act must be regarded as incompatible with EU law, that court may maintain the effects of that act in order to enable the competent authority to carry out that environmental assessment and, where appropriate, to amend that act only if national law permits it to do so in the proceedings before it and in so far as that is necessary to ensure the transposition of another EU act concerning the protection of the environment, such as Directive 2018/844, and only for as long as is strictly necessary to remedy that breach.
60 In the present case, the referring court states that the order of 25 February 2021 partially transposes Directive 2018/844, with the result that its annulment or suspension would be liable to create a legal vacuum. Although it is apparent from the case-law referred to in paragraph 57 above that such a legal vacuum, which is incompatible with the obligation on the Member State concerned to adopt the measures transposing a directive, may, in principle, justify the temporary maintenance of an act which does not comply with EU law, that presupposes that the act, the effects of which the referring court intends to maintain, actually transposes that directive.
61 Furthermore, as the Advocate General stated in point 93 of her Opinion, it appears questionable whether the annulment or suspension of the operating conditions applicable to car parks set out in the order of 25 February 2021 creates a legal vacuum. Where appropriate, it will therefore be for the referring court to examine whether, for the purposes of issuing permits for projects listed in Annex I or Annex II to Directive 2011/92, it is indeed possible to revert, even temporarily, to a practice which, as the Belgian Government stated in its written observations, existed before the adoption of those operating conditions, under which the competent authorities imposed the operating conditions which are now grouped together in a regulatory act of general application as part of each individual authorisation.
62 In view of the foregoing, the answer to the second question is that EU law must be interpreted as meaning that, where it appears that an environmental assessment, within the meaning of Directive 2001/42, should have been carried out before the adoption of a regulatory act the legality of which is challenged before a national court, with the result that that act must be regarded as incompatible with EU law, that court may maintain the effects of that act in order to enable the competent authority to carry out that environmental assessment and, where appropriate, to amend that act only if national law permits it to do so in the proceedings before it and in so far as that is necessary to ensure the transposition of another EU act concerning the protection of the environment, such as Directive 2018/844, and only for as long as is strictly necessary to remedy that breach.
Costs
63 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Second Chamber) hereby rules:
1. Article 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
must be interpreted as meaning that national legislation which lays down the conditions for operating car parks without, however, laying down rules on their siting or their maximum number must be subject to an environmental assessment if, first, that legislation is drawn up for the transport sector or that of town and country planning or land use, and second, it establishes, by defining rules and procedures for scrutiny applicable to the sector concerned, a significant body of criteria and detailed rules for the grant and implementation of one or more projects likely to have significant effects on the environment.
2. EU law must be interpreted as meaning that, where it appears that an environmental assessment, within the meaning of Directive 2001/42, should have been carried out before the adoption of a regulatory act the legality of which is challenged before a national court, with the result that that act must be regarded as incompatible with EU law, that court may maintain the effects of that act in order to enable the competent authority to carry out that environmental assessment and, where appropriate, to amend that act only if national law permits it to do so in the proceedings before it and in so far as that is necessary to ensure the transposition of another EU act concerning the protection of the environment – such as Directive (EU) 2018/844 of the European Parliament and of the Council of 30 May 2018 amending Directive 2010/31/EU on the energy performance of buildings and Directive 2012/27/EU on energy efficiency – and only for as long as is strictly necessary to remedy that breach.
[Signatures]
* Language of the case: French.