Advocate-General says extending the period of industrial production of electricity by nuclear power stations requires an environmental impact assessment

Today Advocate-General Kokott gave her opinion in Case C‑411/17 Inter-Environnement Wallonie ASBL, Bond Beter Leefmilieu Vlaanderen vzw v Conseil des ministers. 

This was a reference from Does the the Cour constitutionnelle (Constitutional Court, Belgium) asking in essence whether the “adoption of a law extending the period of industrial production of electricity by nuclear power stations require an environmental impact assessment?”. The case also looks again at the Habitats Directive and whether such extension is caught by Article 6(3).

The actual questions referred are lengthy:

“(1)      Must Article 2(1) to (3), (6) and (7), Article 3(8), Article 5 and Article 6(1) of the Espoo Convention, and point 2 of Appendix I to that Convention, be interpreted in accordance with the explanations provided in the information document on the application of the Convention to nuclear energy related activities and the good practice recommendations on the application of the Convention to nuclear energy related activities?

(2)      May Article 1(9) of the Espoo Convention, which defines the “competent authority”, be interpreted as excluding from the scope of that Convention legislative acts such as the Law of 28 June 2015 “amending the Law of 31 January 2003 on the phasing out of nuclear energy for the purposes of the industrial production of electricity in order to ensure the security of the energy supply”, having regard in particular to the various assessments and hearings carried out in connection with the adoption of that law?

(3)      (a)      Must Articles 2 to 6 of the Espoo Convention be interpreted as applying prior to the adoption of a legislative act such as the Law of 28 June 2015 “amending the Law of 31 January 2003 on the phasing out of nuclear energy for the purposes of the industrial production of electricity in order to ensure the security of the energy supply”, Article 2 of which postpones the date of deactivation and of the end of the industrial production of electricity of the Doel 1 and Doel 2 nuclear power stations?

(b)      Does the answer to the question in point (a) differ depending on whether it relates to the Doel 1 or the Doel 2 power station, having regard to the need, in the case of the former power station, to adopt administrative acts implementing the abovementioned Law of 28 June 2015?

(c)      May the security of the country’s electricity supply constitute an overriding reason of public interest permitting a derogation from the application of Articles 2 to 6 of the Espoo Convention or suspension of the application of those provisions?

4. Must Article 2(2) of the Aarhus Convention on “access to information, public participation in decision-making and access to justice in environmental matters” be interpreted as excluding from the scope of that Convention legislative acts such as the Law of 28 June 2015 “amending the Law of 31 January 2003 on the phasing out of nuclear energy for the purposes of the industrial production of electricity in order to ensure the security of the energy supply”, irrespective of whether the various assessments and hearings carried out in connection with the adoption of that law are taken into account?
5. (a)      Having regard in particular to the “Maastricht Recommendations on Promoting Effective Public Participation in Decision-making in Environmental Matters” with respect to multi-stage decision-making, must Articles 2 and 6 of the Aarhus Convention, in conjunction with Annex I.I to that Convention, be interpreted as applying prior to the adoption of a legislative act such as the Law of 28 June 2015 “amending the Law of 31 January 2003 on the phasing out of nuclear energy for the purposes of the industrial production of electricity in order to ensure the security of the energy supply”, Article 2 of which postpones the date of deactivation and of the end of the industrial production of electricity of the Doel 1 and Doel 2 nuclear power stations?

(b)      Does the answer to the question in point (a) differ depending on whether it relates to the Doel 1 or the Doel 2 power station, having regard to the need, in the case of the former power station, to adopt administrative acts implementing the abovementioned Law of 28 June 2015?

(c)      May the security of the country’s electricity supply constitute an overriding ground of public interest permitting a derogation from the application of Articles 2 and 6 of the Aarhus Convention or suspension of the application of those provisions?

6. (a)      Must Article 1(2) of the EIA Directive, in conjunction with point 13(a) of Annex II to that directive, read, where appropriate, in the light of the Espoo and Aarhus Conventions, be interpreted as applying to the postponement of the date of deactivation and of the end of the industrial production of electricity of a nuclear power station, entailing, as in this instance, significant investments and security upgrades for the Doel 1 and 2 nuclear power stations?

(b)      If the answer to the question in point (a) is in the affirmative, must Articles 2 to 8 and 11 of the EIA Directive and Annexes I, II and III to that directive be interpreted as applying prior to the adoption of a legislative act such as the Law of 28 June 2015 “amending the Law of 31 January 2003 on the phasing out of nuclear energy for the purposes of the industrial production of electricity in order to ensure the security of the energy supply”, Article 2 of which postpones the date of deactivation and the end of the industrial production of electricity of the Doel 1 and Doel 2 nuclear power stations?

(c)      Does the answer to the questions in points (a) and (b) differ depending on whether it relates to the Doel 1 or the Doel 2 power station, having regard to the need, in the case of the former power station, to adopt administrative acts implementing the abovementioned Law of 28 June 2015?

(d)      If the answer to the question set out in point (a) is in the affirmative, must Article 2(4) of the EIA Directive be interpreted as permitting an exemption for the postponement of the deactivation of a nuclear power station from the application of Articles 2 to 8 and 11 of the EIA Directive for overriding reasons of public interest linked with the security of the country’s electricity supply?

7. Must the concept of “specific act of national legislation” within the meaning of Article 1(4) of the EIA Directive be interpreted as excluding from the scope of that directive a legislative act such as the Law of 28 June 2015 “amending the Law of 31 January 2003 on the phasing out of nuclear energy for the purposes of the industrial production of electricity in order to ensure the security of the energy supply”, having regard to the various assessments and hearings carried out in connection with the adoption of that law, which might attain the objectives of that directive?
8. (a)      Must Article 6 of the Habitats Directive, in conjunction with Articles 3 and 4 of the Birds Directive, read, where appropriate, in the light of the EIA Directive and the Espoo and Aarhus Conventions, be interpreted as applying to the postponement of the date of deactivation and of the end of the industrial production of electricity of a nuclear power station, entailing, as in this instance, significant investments and security upgrades for the Doel 1 and 2 nuclear power stations?

(b)      If the answer to the question in point (a) is in the affirmative, must Article 6(3) of the Habitats Directive be interpreted as applying prior to the adoption of a legislative act such as the Law of 28 June 2015 “amending the Law of 31 January 2003 on the phasing out of nuclear energy for the purposes of the industrial production of electricity in order to ensure the security of the energy supply”, Article 2 of which postpones the date of deactivation and of the end of the industrial production of electricity of the Doel 1 and Doel 2 nuclear power stations?

(c)      Does the answer to the questions in points (a) and (b) differ depending on whether it relates to the Doel 1 or the Doel 2 power station, having regard to the need, in the case of the former power station, to adopt administrative acts implementing the abovementioned Law of 28 June 2015?

(d)      If the answer to the question in point (a) is in the affirmative, must Article 6(4) of the Habitats Directive be interpreted as allowing grounds linked with the security of the country’s electricity supply to be considered an imperative reason of overriding public interest, having regard in particular to the various assessments and hearings carried out in the context of the adoption of the abovementioned Law of 28 June 2015, which might be capable of attaining the objectives of that directive?

9. If, on the basis of the answers to the preceding questions, the national court should conclude that the contested law fails to fulfil one of the obligations arising under the abovementioned Conventions or directives, and the security of the country’s electricity supply cannot constitute an imperative reason of overriding public interest permitting a derogation from those obligations, might the national court maintain the effects of the Law of 28 June 2015 in order to avoid legal uncertainty and to allow the environmental impact assessment and public participation obligations arising under those Conventions or directives to be fulfilled?’”

The Advocate-General therefore propose that the Court should rule as follows:

“1.      The answer to Questions 2, 4 and 7 of the request for a preliminary ruling is that under Article 1(4) of Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment only projects the details of which have been adopted by a specific legislative act, in such a way that the objectives of that directive have been achieved by the legislative process, are excluded from the ambit of the directive. It is for the national court to verify whether the legislative act is equivalent to development consent for a project and whether the objectives of the directive are achieved in the legislative process, taking account both of the content of the legislative act adopted and of the entire legislative process which led to its adoption, in particular the preparatory documents and parliamentary debates.

2.      The answer to Questions 1, 3(a), 5(a) and the first part of Question 6(a) is that, contrary to previous case-law, the definition of ‘project’ under Article 1(2)(a) of Directive 2011/92 includes the extension by 10 years of the period of industrial production of electricity by a nuclear power station.

In the event that in respect of the extension of the period of production of electricity in nuclear power stations the Court adheres to its interpretation of the definition of ‘project’ under Article 1(2)(a) of Directive 2011/92, I propose that it find that the directive is nevertheless applicable to such extension because it constitutes a project within the meaning of Article 1(5) and Appendix I to the Espoo Convention on access to information, public participation in decision-making and access to justice in environmental matters and Article 6(1)(a) and Annex I to the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters.

Irrespective of whether the Court concurs with the proposals regarding the interpretation of Article 1(2)(a) of Directive 2011/92 in conformity with international law or regarding the direct application of the definition of ‘project’ in the Espoo and Aarhus Conventions, the extension of the period of industrial production of electricity by a nuclear power station constitutes consent for a project within the meaning of Article 1(2)(a) where it involves consent for works or interventions altering or extending the installation.

3. The answer to Question 6(b) is that an extension by 10 years of the period of industrial production of electricity by commercial nuclear power stations, which is linked with structural improvement measures, must, as a change to a nuclear power station, be made subject to an assessment of its environmental effects in accordance with Article 4(1) and Annex I, point 24 in conjunction with point 2(b) to Directive 2011/92 if the extension is not already to be regarded in itself as consent for a project in accordance with Annex I, point 2(b).

The answer to the third part of Question 6(a) is that in the case of a decision concerning the extension of the period of industrial production of electricity by certain nuclear power stations, which is connected with structural improvement measures, public participation must take place in accordance with Article 6(4) of Directive 2011/92 as early as possible, when all options are open, that is to say, before the decision on the extension is taken.

4. The answer to Question 3(c), Question 5(c), Question 6(d) and Question 9 is that Article 2(4) of Directive 2011/92 permits an exemption from the obligation to undertake an environmental impact assessment for the extension of the period of industrial production of electricity by a nuclear power station if another form of assessment is necessary to avert a grave and imminent peril to an essential interest of the Member State concerned, such as security of electricity supply or legal certainty, and the public concerned and the Commission are informed in accordance with Article 2(4)(b) and (c). On the other hand, it is not permissible under Article 2(4) to dispense with a transboundary environmental impact assessment under Article 7.
5. The answer to Question 8(a) is that the extension of the period of industrial production of electricity by a nuclear power station is to be regarded as a project within the meaning of the first sentence of Article 6(3) of Directive 92/43/EEC even if that extension would not constitute a project as such within the meaning of the EIA Directive or on account of its connection with works to improve the installation.

The answer to Question 8(b) is that Article 6(3) of Directive 92/43 does not allow a national authority, even if it is a legislative authority, to authorise a plan or project without having ascertained that it will not adversely affect the integrity of the site concerned.

The answer to Question 8(d) is that the public interest in ensuring a minimum supply of electricity constitutes a reason of public safety within the meaning of the second subparagraph of Article 6(4) of Directive 92/43, while the further-reaching public interest in security of electricity supply is to be regarded as a reason of an economic nature within the meaning of the first subparagraph of Article 6(4).

6. National courts may exceptionally maintain temporarily the effects of a decision taken in breach of a duty under EU law to undertake an environmental assessment if

• that decision is as soon as possible regularised a posteriori by rectifying the procedural error,
• on the basis of the available information and the applicable provisions, it is highly likely that the decision will be confirmed in the same form following regularisation,
• as far as possible no additional faits accomplis are created, and
• overriding public interests in maintaining the effects prevail over the interest in the effectiveness of the obligation to undertake the environmental assessment and the fundamental right to effective judicial protection.

7. The answer to Question 3(b), Question 5(b), Question 6(c) and Question 8(c) is that the need to adopt administrative acts implementing the Law of 28 June 2015 for the Doel 1 nuclear power station, which does not exist for the Doel 2 nuclear power station, does not affect the answers to the questions referred for a preliminary ruling.”