Joined Cases C-105/09 and C-110/09, Terre wallonne ASBL

Court clarifies scope of Strategic Environmental Assessment Directive  
By judgment of 22 September 2005 in Case C-221/03 Commission v Belgium [2005], the Court held that, by failing to adopt within the relevant time-limit the measures needed for the full and correct implementation of Directive 91/676, the Belgium had failed to fulfil its obligations under that directive.

In order to comply with that judgment, the Walloon Government adopted the contested order in pursuance of Art. 5 of Directive 91/676. That order amended Book II of the Environment Code, which formed the Water Code, as regards the sustainable management of nitrogen in agriculture.

Terre wallonne ASBL and Inter-Environnement Wallonie ASBL applied to the Conseil d’État for annulment of that order, claiming in particular that the programme which it contained was not subjected to an environmental assessment in accordance with Directive 2001/42.

The referring court is of the view that the possibility cannot be ruled out that action programmes such as the one referred to by Directive 91/676 are plans or programmes within the meaning of Directive 2001/42.

By its first question, the referring court is, in essence, asking the Court whether a programme for the management of nitrogen in agriculture such as the one at issue in the main proceedings is liable to constitute a plan or programme covered by Art. 3(2)(a) of Directive 2001/42.

The Court held that, as a result both of the characteristics they displayed and of the actual intention of the European Union legislature, action programmes are “plans and programmes” within the meaning of Directive 2001/42.

Furthermore, according to the Court, as regards the content of action programmes, it is apparent from Art. 5 of Directive 91/676, in conjunction with Annex III thereto, that those programmes are to contain specific, mandatory measures that cover, in particular, periods during which the spreading of certain types of fertiliser is prohibited, the capacity of storage vessels for livestock manure, spreading methods and the maximum quantity of livestock manure containing nitrogen which could be spread (see, to that effect, Case C-416/02 Commission v Spain [2005]).

 The Court held that in the context of environmental assessment provided for by Directive 85/337, the national authorities must take into account not only the direct effects of the planned works, but also the environmental impact liable to result from the use and exploitation of the end product of those works (Case C-2/07 Abraham and Others [2008], and Case C‑142/07 Ecologistas en Acción-CODA [2008]).

In particular, in the case of installations for intensive rearing, such an environmental assessment must envisage the impact of the installations on water quality (see, to that effect, Case C-121/03 Commission v Spain [2005]).

The Court therefore concluded was that an action programme adopted pursuant to Art. 5(1) of Directive 91/676 was in principle a plan or programme covered by Art. 3(2)(a) of Directive 2001/42 since it constituted a “plan” or “programme” within the meaning of Art. 2(a) of the latter directive and contained measures compliance with which was a requirement for issue of the consent that might be granted for carrying out projects lists in Annexes I and II to Directive 85/337.