‘Required’ not compulsory & ‘modifying’ includes repealing under SEA Directive

This case concerned the interpretation of the SEA Directive 2001/42/EC. An amendment to the Belgian regional planning act was contested by NGO’s that addressed the Belgian constitutional court claiming that under the amendment, an environmental impact assessment for the total or partial repeal of a land use plan is no longer required, contrary to the requirements of the Directive 2001/42/EC. Following the approach proposed by Advocate-General Kokott in her Opinion (discussed in EEL News Service 2012/01), the Court noted that Directive 2001/42 refers only expressly to modifying measures, but found that its object and purpose support a broader interpretation that in principle includes total or partial repealing measures. The ECJ came to this conclusion after considering that the partial or total repeal of a plan or programme can have significant effects on the environment, since it may involve a modification of the planning envisaged in the territories concerned. It did add one exception. Repealing a measure might not require an SEA if it falls within a hierarchy of town and country planning measures, and those measures lay down sufficiently precise rules governing land use, they have themselves been the subject of an assessment of their environmental effects, and it may reasonably be considered that the interests which Directive 2001/42 is designed to protect have been taken into account sufficiently within that framework.

As for a question regarding the interpretation of the provision on plans and programmes ‘required by legislative, regulatory or administrative provisions’ (Article 2(a) of the Directive, emphasis added), the ECJ explained that this covers not only plans and programmes the adoption of which is compulsory, but also those ´whose adoption is regulated by national legislative or regulatory provisions, which determine the competent authorities for adopting them and the procedure for preparing them.”

The ECJ thus interpreted the provisions of the SEA Directive in a manner that contributes to reaching the goal of this instrument, namely ensuring that a high level of protection of the environment is achieved.