Brussels, 28/07/2016 (Agence Europe) - The French Council of State may temporarily keep in place the effect of a national decree, even though it has been partially invalidated for non-compliance with EU law, as long as certain major principles are complied with, the Court of Justice of the EU said in a judgement returned on Thursday 28 July (case C-379/15).
The Council of State asked the Court a prejudicial question following the partial invalidation in 2015 of a national decree (no. 2012-616) on the grounds that it did not comply with certain provisions of the directive on the assessment of the impact on the environment of certain plans and programmes (Directive 2001/42), amongst other things due to the lack of administrative autonomy given to the environmental authorities. The French court expressed concern at the legal gap which could be caused by the partial retroactive repeal of the decree. It therefore wanted the effects of the repeal not to take effect until 1 January 2016, to give enough time to implement a new decree in line with European law.
In its judgement, the Court stated that “for imperative regions of legal security”, it alone could provide approval for a temporary suspension of the effects brought about by the repeal of a national act deemed to run counter to EU law, in order to preserve the uniformity of its application. Nonetheless, a national jurisdiction may, on an exceptional basis and for imperative considerations such as environmental protection, be authorised to keep in place certain effects of a repealed national act, as long as four conditions are met.
Firstly, the repealed national act must “in its entirety” constitute a correct transposition measure of the directive. Secondly, the adoption and entry into force of a new national act are not sufficient to prevent harmful effects stemming from the invalidation of the earlier act. Thirdly, it must be proven that the invalidation of the national act has the consequence of creating a legal void as regards the transposition of the directive and that this would be harmful. Finally, the effects of the invalidated national act may only apply for as long as it takes to adopt measures to remedy the irregularity observed.
That said, the Court adds that a national jurisdiction whose decisions cannot be appealed against, such as the Council of State, is obliged to ask a prejudicial question in order to be absolutely certain that the national act does not comply with EU law, unless the matter is beyond all doubt. However, the national jurisdiction is, in such cases, obliged to give the reasons for this in detail.
It is worth noting that the judgment returned by the Court did not go along with the argument put forward in April of this year by Advocate General Juliane Kokott. She drew a distinction between the effects of the directive, on the one hand, and the effects of each plan or programme taken individually, on the other, but the Court does not make such a distinction. (Original in French by Pascal Hansens)