HAVET & VANHUFFEL – Association d’avocats
The applicants in this case are seeking the annulment of Article 5 of the Flemish Regional Decree of 19 April 2024 « amending the Decree of 25 April 2014 on environmental permits, with regard to the performance of tasks for screening the project’s EIA, » which concerns the competent authorities to consider and rule on environmental permit applications.
Article 5 of this Decree of 19 April 2024 inserts a paragraph 3 into Article 15/1 of the Flemish Regional Decree of 25 April 2014 « on environmental permits, » which provides, in certain cases, that municipal and provincial environmental officials who must assess the preliminary assessment of the project’s EIA (…) are municipal or provincial officials, respectively, while the executive of that municipality or the provincial government, the initiator of the project and applicant for the permit.
For the Constitutional Court, which relies on the judgment of the Court of Justice of the European Union of 8 May 2025 (c-236/24), if it is true that these officials are appointed to their functions by the municipal council or the provincial council, that is to say the elected bodies of the municipality and the province, and that the legislature has decided that they exercise their functions with complete independence and neutrality, these elements cannot be sufficient for the said officials to have « genuine autonomy » within the meaning of the judgment of the Court of Justice of 8 May 2025 (c-236/24).
Indeed, the decree of April 25, 2014, does not provide sufficient structural and organizational guarantees to ensure that environmental officials (…) can always assess the preliminary assessment note of the project’s EIA with the required objectivity.
However, for the Court of Justice of the European Union, Article 9a of Directive 2011/92/EU is applicable to the assessment conducted by the environmental official in the context of a screening note for the environmental impact assessment of the project. In this judgment, it held that when the authority competent to determine whether a project must be subject to an environmental impact assessment is also the developer of the project in question, Member States must, at a minimum, apply, in their organization of administrative powers, an appropriate separation between the conflicting functions when carrying out this task.
This appropriate separation must be organized in such a way that an administrative entity, internal to the authority competent to carry out said determination, has real autonomy, implying in particular that it is provided with its own administrative and human resources, and is thus able to fulfill its mission in an objective manner.
However, for the Constitutional Court, the municipal and provincial environmental officials who must examine the screening note for the environmental impact assessment of the project in the situation described are officials of the municipality or the province (respectively), and the college of mayor and aldermen of that municipality or the deputation of that province (respectively) is, in that situation, the initiator and the applicant for the project. These officials are certainly appointed to their function by the municipal council or the provincial council (respectively), which are the elected bodies of the municipality and the province, and the decree legislature has provided that they carry out their tasks with complete independence and neutrality. These elements cannot, however, be sufficient for the aforementioned officials to have “real autonomy” within the meaning of the aforementioned judgment of the Court of Justice. The decree of 25 April 2014 does not provide the structural and organisational guarantees required to enable environmental officials to systematically judge the screening score for the environmental impact assessment of the project with the required objectivity.
The Court considers that, in addition, Article 9, § 3, of the Decree of 25 April 2014 provides that, if no municipal environmental officer is available within the municipality or inter-municipal partnership, the general director of the municipality (formerly the municipal secretary) may exercise, for a period of up to twelve months, the duties of a municipal environmental officer, whereas, given that the general director of the municipality, in his role, collaborates closely with the college of mayor and aldermen, the rule according to which a screening note for the assessment of the project’s impact on the environment is examined by this general director can hardly be described as an “appropriate separation between the conflicting functions” within the meaning of Article 9bis of Directive 2011/92/EU. B.16.1. In that it is alleged that Articles 10 and 11 of the Constitution, read in conjunction with Article 9a of Directive 2011/92/EU, are violated.
For these reasons, the Constitutional Court annuls this provision. The judgment is available via the following link: https://fr.const-court.be/public/f/2025/2025-122f.pdf.
For a commentary on the judgment of the Court of Justice of the European Union of 8 May 2025 and to access the judgment, follow the following link: https://www.hv-a.be/sur-question-prejudicielle-posee-par-le-conseil-detat-de-belgique-la-cour-de-justice-de-lunion-europeenne-a-par-arret-du-8-mai-2024-c-236-24-considere-que-larticle-9-b/.