Brussels, 26/05/2011 (Agence Europe) - In a judgment delivered on Thursday 26 May in Cases C-165/09 and C-167/09, the Court of Justice of the EU ruled that member states were granted wide flexibility when developing their programmes for the progressive reduction of emissions of pollutants and delivering permits for the construction and operation of industrial installations. These permits, the Court says, “must be appraised on the basis of an overall assessment, taking account of all the policies and measures adopted in the national territory”.
This decision represents a reversal for various Dutch environmentalist organisations which brought actions in the Dutch Council of State against three projects for power stations fuelled by pulverised coal and biomass. Using the provisions in the NEC directive (2001/81/EC), which sets national ceilings for emissions of certain pollutants to be met by 2010, and the fact that the Netherlands had been unable to comply with these ceilings, the organisations argued that the Dutch government ought not to have authorised the projects or ought, at least, to have made the permits subject to stricter conditions.
To the questions from the Dutch court on the interpretation of the above-mentioned NEC directive and the IPPC directive (2008/1/EC), which established the principles governing the procedures and conditions for granting permits to construct and operate large industrial installations, the Court provided the following replies:
- national authorities are not obliged to include among the conditions for granting a permit the national emission ceilings for pollutants laid down by the NEC directive, although they must adopt appropriate and coherent policies and measures capable of reducing, as a whole, emissions of those pollutants;
- while, during the period for transposition of the NEC directive (from 27 November 2002 to 31 January 2010), member states had to refrain from taking any measures liable seriously to compromise the attainment of the result prescribed by that directive, compliance with this obligation must be verified “on the basis of an overall assessment, taking account of all the policies and measures adopted in the national territory concerned”. Thus, granting an environmental permit for the construction and operation of an industrial installation, does not appear liable, in itself, seriously to compromise the result prescribed by the directive;
- with regard to the specific content of the national programmes, the NEC directive accords member states wide flexibility in order to strike a certain balance among the various interests involved. For this reason, member states must have freedom to tailor their programmes without being “obliged to adopt or to refrain from adopting specific measures or initiatives for reasons extraneous to assessments of a strategic nature which took account globally of the factual circumstances and the various competing public and private interests”. Consequently, during the transitional period, member states were not obliged to refuse or to attach restrictions to the granting of an environmental permit, such as the permits at issue, or to adopt specific compensatory measures for each permit granted of that kind, even where the national emission ceilings for the pollutants concerned were exceeded or risked being exceeded;
- lastly, the Court held that the organisations involved could not rely directly in a national court on the NEC directive to claim, before 31 December 2010, that the competent authorities should refuse, or attach restrictions when deciding to grant, an environmental permit, or adopt specific compensatory measures following the granting of such a permit. They could, however, could rely on the directive to claim that, during the transitional period, member states should adopt measures capable of reducing, as a whole, emissions of the pollutants covered, so as to comply with the national ceilings laid down in that directive. (F.G./transl.rt)