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Opinion of
Directive of the European Parliament and of the Council of
Directive of the European Parliament and of the Council of
Opinion in
which are subject to preparation and/or adoption by an authority at national, regional or local level or which are prepared by an authority, through a legislative procedure by Parliament or Government, and which are required by legislative, regulatory or administrative provisions; …
Subject to paragraph 3, an environmental assessment shall be carried out for all plans and programmes,
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For the purposes of this Law, the only plans and programmes to be regarded as such shall be those provided for in federal legislation or in legal acts of the European Union …
A strategic environmental assessment shall be carried out in the case of the plans and programmes
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Parts of nature and the landscape may be protected …
Landscape conservation areas are areas the designation of which as such is legally binding and in which special protection for nature and the landscape is required Following the hearing in this case, Paragraph 22 of the BNatSchG has been supplemented with subparagraphs 2a and 2b, to allow for the maintenance in force of legal acts which defined nature and landscape conservation areas contrary to the SEA Directive as they were subject to a prior SEA.
GVBl. p. 82, as amended by Paragraph 11a(4) of the Law of
The bodies below shall be competent to do as follows: … …
ABl. des Landkreises Rosenheim No 5 of
Consent from the Landratsamt Rosenheim (Rosenheim Rural District Council), as the lower authority responsible for nature conservation (Article 43(2), point 3, of the BayNatSchG) shall be required by anyone who, in a landscape conservation area, intends
Paragraphs 45, 46 and 49, citing the judgments of
Article 2(a) defines the cumulative conditions that must be met by plans and programmes in order for the Directive to be applicable to them: (a) they must be ‘subject to preparation and/or adoption by an authority at national, regional or local level or … [be] prepared by an authority for adoption, through a legislative procedure by Parliament or Government’; and (b) they must be required by legislative, regulatory or administrative provisions. Article 3(2)(a) sets out the conditions for identifying which of those plans and programmes are likely to have significant environmental effects and must therefore be made subject to an SEA: (a) they must be prepared for certain (sensitive) sectors and economic activities; and (b) they must ‘set’ the framework for future development consent of projects.
Order for reference, paragraph 19.
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In
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Paragraph 10 of the written observations of the Landesanwaltschaft Bayern.
Paragraph 19 of the order for reference, which cites as the legal basis for the Inntal Süd Regulation Paragraphs 12(1), first sentence, 20(2) and 26 of the BNatSchgG (which govern the power to adopt, amend or repeal regulations on landscape conservation areas) in conjunction with Paragraphs 51(1), point 3, and 52 of the BayNatSchG (which define the competent administrative authority – in this case, the Rural District of Rosenheim – and the procedure respectively).
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Council Directive of
Nonetheless, if plans and programmes in these sensitive sectors determine the use of small areas at local level and the introduction of minor modifications to those plans and programmes, they are to be assessed only where the Member States determine that they are likely to have significant environmental effects (Article 3(3) of the SEA Directive). See recital 10 of that directive.
Order for reference, paragraph 27. The referring court infers from recital 10, Article 3(2)(a) and Article 5 of the SEA Directive that a prior SEA is required for plans and programmes explicitly created for and focused on one of the sectors referred to in Article 3(2)(a), which do not include that at issue in this dispute.
whether whether it is sufficient for plans and programmes to affect such sectors (in this case, agriculture, forestry and land use) in practice, even if they were prepared for another sector not referred to in that provision (in this case, nature and landscape conservation). Order for reference, paragraph 29.
See judgment in
it has stated that the reference to Judgment in it has adopted an interpretation to the effect that an order establishing an urban land consolidation area which allows for derogation from the town planning regulations for plans concerning buildings and town and country planning comes within the Judgment in it has held that an SEA was required for a presidential decree, establishing protection measures in respect of an area comprising a mountain and certain metropolitan parks, This was Presidential Decree No 187/2011 of Judgment of
In the Proposal for a Council Directive on the assessment of the effects of certain plans and programmes on the environment (COM/96/0511 final;
Plans and programmes which ‘se elaboren con respecto a’ (Spanish-language version); which are
Order for reference, paragraph 27.
There would be nothing to stop the – positive and negative – environmental effects of a provision such as the Inntal Süd Regulation (for example, the effects of reducing its scope by comparison with that of its predecessors so as to permit house building projects on previously protected land) from being identified, described and identified, notwithstanding that, because it does not include a reference framework, that provision does not necessarily have to be subjected to an SEA, as I shall examine below.
The referring court recognises (paragraph 22 of the order for reference) that the
In point 43 of her Opinion in
Paragraph 5(1), point 1.
Paragraph 5(1), points 4 and 5.
Paragraph 5(1), point 6.
Paragraph 5(1), points 8, 9 and 10.
According to Bund Naturschutz (p. 17 of the French-language version of its written observations), that same article could affect land use, and thereby impact on future construction work, inasmuch as it does not include a
Judgment of
the plans and programmes must set the framework for future development consent for the implementation of projects; and the projects must be listed in Annexes I and II to the EIA Directive.
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.
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Paragraph 22 of its written observations.
These include: ‘set[ting] up vending vans or … erect[ing], secur[ing] and operat[ing] sales kiosks and vending machines’ (Paragraph 5(1), point 2(d);
Paragraph 4 prohibits the carrying on
Point 36 of this Opinion.
Projects involving
My emphasis.
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This idea is shared in their written observations by the Commission and by the Governments of Germany (paragraph 22 of its observations) and the Czech Republic (paragraphs 14, 19 and 23 of its observations), and Ireland (paragraphs 32 and 40 of its observations).
Walloon legislation which concerned, in particular, Judgment in rules enacted by the Region of Flanders (an order and a circular) containing provisions on the installation and operation of wind turbines, including measures relating to stroboscopic shadowing, safety and noise regulations;. Judgment in town planning regulations (of the Brussels Capital Region) containing certain requirements concerning the implementation of building projects and rules applicable to all buildings, that is to say to immovable property, of whatever nature, and to all their surroundings, including Judgment in
Order for reference, paragraph 25.
Written observations, paragraph 33.
The referring court took the view that the designation of a site as an SAC has legal effects on the adoption of plans and on the consideration of applications for permits affecting the site, both procedurally and in terms of the criteria according to which decisions are made, and therefore contributed to setting the framework for activities that are, in principle, to be accepted, encouraged or prohibited, and thus is not unconnected with the concept of
Judgment in
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This reference for a preliminary ruling does not contain a question concerning the natural habitats and wild flora and fauna of Community interest governed by Directive 92/43. The requirements relating to plans and programmes under the SEA Directive cannot be applied without further consideration to the legal rules governing those habitats and species.
if the Court were to establish the existence of an obligation under EU law to conduct an SEA or, in any event, a prior examination under national law, it is likely that many designations of protected areas made after the time limit for transposing the SEA Directive, that is to say after in accordance with national law, such an irregularity would in principle render the corresponding regulatory provision ineffective. According to the referring court (paragraph 16 of the order for reference), the ineffectiveness [of the regulatory provision] could be relied on by anyone wishing to implement a project in the protected area. In that event, the competent court would be obliged to examine the validity of the Inntal Süd Regulation as an ancillary issue, and in the absence of any time limit for such a claim under national law, since regulations – unlike administrative measures – do not become final. Paragraph 16 of the order,
The referring court points up (in paragraph 16 of the order for reference) the importance of the issues raised but it does not, as I have said before, expressly ask the Court of Justice to limit the effects of any judgment declaring the Inntal Süd Regulation to be incompatible with the SEA Directive.
They also drew attention to the administrative burden that would be associated with reopening proceedings for designating sites and conducting SEAs, if they were compulsory.
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This consideration and those I shall set out in the points that follow are consistent with the ones contained in the Opinion in
See, to this effect, judgment in
In accordance with settled case-law, the interpretation which the Court gives to a rule of EU law, in the exercise of the jurisdiction conferred upon it by Article 267 TFEU, clarifies and defines the meaning and scope of that rule as it must be, or ought to have been, understood and applied from the time of its coming into force. It follows that the rule as thus interpreted may and must be applied by the courts to legal relationships arising and established before the judgment ruling on the request for interpretation, provided that in other respects the conditions for bringing before the courts having jurisdiction an action relating to the application of that rule are satisfied (judgments of
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first, that the ineffectiveness of the Inntal Süd Regulation might even have a positive impact on the environment if, as Bund Naturschutz argues, this rendered the previous regulation applicable and thus increased the size of the conservation area formerly in place, which the latter regulation reduced; and secondly, that the continued applicability to that area and to all similar areas of the remaining sectoral rules allows administrative control to be exercised over many of the activities having a potential impact on the environment.
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if national courts had the power to give provisions of national law primacy in relation to EU law contravened by those provisions, even temporarily, the uniform application of EU law would be undermined; Judgment of if national law permits it, a national court may, by way of exception and following a case-by-case examination, limit the temporal effectiveness of a declaration as to the illegality of a provision of national law adopted in breach of the obligations under the SEA Directive.
Paragraph 50 of its written observations.
Written observations of Bund Naturschutz, p. 25, which cites the judgment of the Bundesverwaltungsgericht (Federal Administrative Court) of
After the hearing, the Court has been informed of the introduction in Paragraph 22 BNatschGH of subparagraphs 2a and 2b, which allow the maintenance of conservation areas.
Paragraphs 59 to 63. To the same effect, judgment in
It falls to the referring court to determine whether, under domestic law, the absence of an SEA prior to the Inntal Süd Regulation results in the invalidity (nullity) or ineffectiveness of that regulation.
the areas protected prior to the entry into force of the SEA Directive in 2004 would not be affected; in those areas granted protection after 2004, the loss of effectiveness (or, where appropriate, nullity) of regulations adopted without a prior SEA may be at least partially if, as the referring court notes, regulations which were adopted without a prior SEA but which were not directly contested at the time of their adoption may be challenged by an indirect mechanism (an objection of illegality or an ancillary action), it has not been shown that the judgment bringing such an action to an end is effective It is for the referring court to establish whether a judgment given in an action against a refusal to grant development consent for an individual project, following an assessment of the formal defect vitiating the regulation in question, is to be effective the rules at federal and also still in place are the mechanisms available under sectoral legislation for controlling activities which are potentially harmful to the environment through the application of regulations relating to town planning, building, water management, mining, excavation and earth moving, agriculture, forestry, tourism and other similar activities.