HAVET & VANHUFFEL – Association d’avocats
On a preliminary question referred by the Council of State of Belgium, the Court of Justice of the European Union, by judgment of 8 May 2025 (C/236-24), held that, Article 9a of Directive 2011/92/EU of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2014/52/EU of 16 April 2014, must be interpreted as meaning that where the authority competent to determine whether a project referred to in Article 4(2) of Directive 2011/92, as amended, must be subject to an environmental impact assessment, in accordance with Articles 5 to 10 of Directive 2011/92, as amended, is also the developer of the project concerned, an appropriate separation between the conflicting functions in the performance of that task must at least be applied.
In this case, a public body with legal personality, established by the City of Ghent (Belgium), submitted an application to the College of Mayor and Aldermen of Ghent for authorization to carry out a project to convert a laundry site. It attached to this application a preliminary verification note on the expected environmental impacts of this project, intended to assess whether it should be subject to an environmental assessment.
On September 1, 2020, the City of Ghent’s environmental officer considered that the project did not have any significant expected impact on the environment and that it was therefore not necessary to subject it to an environmental impact assessment. On December 10, 2020, the College of Mayor and Aldermen of the City of Ghent granted the requested authorization.
The owners of a building neighboring the site affected by the same project filed an administrative appeal against this permit with the Province of East Flanders. On June 3, 2021, the latter dismissed this appeal as unfounded.
The two neighbors filed an appeal for annulment of this rejection decision before the Council for Litigation on Permits. In a judgment dated October 6, 2022, the Council declared this appeal well-founded, annulled the decision, and refused to grant the permit.
The Province of East Flanders and the permit applicant filed appeals in cassation against this judgment before the Council of State, Belgium.
The Council of State considers that it follows from this article that when a project permit application initially involves a preliminary check to determine whether the project must be subject to an environmental impact assessment, the municipal environmental officer is competent. However, since Article 9a of Directive 2011/92 precludes such competence being granted to the municipal environmental officer for projects in which the municipality is also the project owner, this article has not been correctly transposed in the Flemish Region.
In these circumstances, the Council of State decided to stay the proceedings and refer the following question to the Court for a preliminary ruling:
„Must Article 9a of [Directive 2011/92] be interpreted as meaning that, where the competent authority is also the developer, the appropriate separation of conflicting functions in the performance of tasks arising from the directive must also be applied for the purpose of determining whether projects referred to in Article 4(2) of [that] directive must be subject to an assessment in accordance with Articles 5 to 10 of [that] directive?“
For the Court, pursuant to Article 4(4) of Directive 2011/92, when Member States decide to require a determination for projects listed in Annex II to that directive, the developer must provide information on the characteristics of the project and the significant effects it is likely to have on the environment. According to paragraph 5 of this article, the competent authority determines, on the basis of this information, whether the project must be subject to an environmental impact assessment.
In this context, the need to ensure consistency in the application of the safeguards prescribed in Article 9a of Directive 2011/92 presupposes that the competent authority can decide objectively and is not in a position giving rise to a conflict of interest, in particular with regard to the developer who provides that authority with the information on the basis of which it must decide, both during the preliminary screening procedure and during the environmental impact assessment procedure.
The fact that Article 4(1) and (2) of Directive 2011/92 refers to the application of Articles 5 to 10 of that directive with regard to the environmental impact assessment does not preclude Article 9a of that directive from also being applicable with regard to the preliminary screening procedure.
Furthermore, for the Court, the requirement to prevent conflicts of interest laid down in Article 9a of Directive 2011/92 pursues the objective of ensuring the objectivity of the competent authorities.
The effectiveness of Article 9a of Directive 2011/92 would be weakened if the objectivity of the competent authorities and the absence of conflicts of interest were not guaranteed at all stages of the performance of the tasks conferred on those authorities by that directive, with regard to both the preliminary verification and the subsequent assessment of the effects of a project on the environment.
It follows from the foregoing that Article 9a of Directive 2011/92 applies when the competent authority determines whether a project referred to in Article 4(2) of that directive must be subject to an environmental impact assessment.
Consequently, the Court considers that, in accordance with the second paragraph of Article 9a, where the authority competent to make that determination is also the developer of the project concerned, Member States must apply an appropriate separation of the conflicting functions when carrying out that task by ensuring that the authority competent to make that determination enjoys genuine autonomy.
The Court therefore concludes that Article 9a of Directive 2011/92 must be interpreted as meaning that, where the authority competent to determine whether a project referred to in Article 4(2) of Directive 2011/92 must be subject to an environmental impact assessment, in accordance with Articles 5 to 10 of Directive 2011/92, is also the developer of the project concerned, an appropriate separation of the conflicting functions when carrying out that task must, at a minimum, be applied.
The judgment is available via the following link: https://curia.europa.eu/juris/document/document.jsf?text=&docid=299087&pageIndex=0&doclang=fr&mode=lst&dir=&occ=first&part=1&cid=223755.