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Advocate-General gives opinion in case on the scope of SEA

DATE: 13 Dec 2011

On 17 November 2011 Advocate-General Kokott gave her opinion in Case C-567/10 Inter-Environnement Bruxelles ASBL & Others v Government of the Brussels-Capital Region. The Opinion is not yet available in English, but is available in several other languages including French and Italian.

The questions referred by the Cour constitutionnelle in Inter-Environnement Bruxelles were:

“(1) Must the definition of 'plans and programmes' in Article 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 [the SEA Directive] be interpreted as excluding from the scope of that directive a procedure for the total or partial repeal of a plan such as that applicable to a 'plan particulier d'affectation du sol' (specific land-use plan), provided for in Articles 58 to 63 of the Code bruxellois de l'Aménagement du Territoire (Brussels Town and Country Planning Code)?

(2) Must the word 'required' in Article 2(a) of that directive be understood as excluding from the definition of 'plans and programmes' plans which are provided for by legislative provisions but the adoption of which is not compulsory, such as the specific land-use plans referred to in Article 40 of the Brussels Town and Country Planning Code?”

The Advocate-Genreal proposed that the CJEU answer the questions thus:

(1)  A procedure for total or partial repeal of a plan or program is a modification as defined in Article 2(a) of the SEA Directive insofar as it relates to a plan or program as defined in this provision.

2) The term "required" in Article 2(a) of the SEA Directive should be understood in the sense that this definition does not cover plans and programs that are provided for under legislative provisions, but do not need necessarily to be established. Plans or programs that may, under certain conditions, be established on a voluntary basis are not covered by this definition. Plans and programmes are only covered when there is an obligation to adopt them.

The CJEU’s decision is awaited.

The Advocate-General’s proposed answer to the first question is in line with the view reached by Sales J. in R. (on the application of Cala Homes (South) Ltd) v Secretary of State for Communities and Local Government (No. 1) [2011] B.L.G.R. 204 concerning the revocation of Regional Strategies. The Advocate-General’s proposed answer to the second question is consistent with her opinion in Case C-110/09 Inter-Environnement Wallonie ASBL v Region Wallone [2011] Env. L.R. D8 and with the decision of Lindblom J. in Cala Homes (South) Ltd v Secretary of State for Communities and Local Government (No. 2) [2011] 1 P. & C.R. 22.

James Maurici acted for the United Kingdom Government which made written observations in the proceedings. (James was also junior counsel for the Secretary of State in Cala (No. 1) and in the subsequent Cala litigation).