1.

Should a national court annul with retroactive effect the incorrect transposition of a directive or can it temporarily maintain in force the incorrect provisions until the error has been corrected (for the future) by the legislator? That is the question that has been referred to the Court.

2.

The starting point of the request for a preliminary ruling is a procedure for testing the constitutionality of laws before the French Conseil d’État (Council of State) regarding the compatibility of French implementing law with the Directive on the assessment of the effects of certain plans and programmes on the environment. ( *2 ) In that procedure the Council of State found that the rules set out in the Directive regarding the autonomy of the entities that must be consulted when conducting an environmental assessment had not been transposed correctly. Now the Council of State would like to avoid the validity of the plans and programmes adopted under national law, which is contrary to the Directive, being called into question.

3.

In this context the Council of State refers to the judgment in Inter-Environment Wallonie and Terre wallonne ( *3 ) which, as does the request for a preliminary ruling, concerns Directive 2001/42/EC and allows for such plans and programmes to remain in force under certain conditions. Upon closer examination there are significant differences however.

4.

The judgment mentioned in the previous point concerned the effectiveness of measures for the transposition of the Nitrates Directive ( *4 ) that were adopted in breach of the procedural rules set out in Directive 2001/42/EC. The present proceedings, on the other hand, concern the transposition of Directive 2001/42/EC itself. Therefore the earlier judgment cannot be simply transposed to the present case. In fact, the present proceedings raise more general questions about the effect of directives.

5.

The present request for a preliminary ruling is the starting point of a fine finger exercise along the keyboard of the multiple levels of EU law which calls to mind the well-known themes of primacy, the request for a preliminary ruling and the effects of procedural errors. It should not be expected however that the Council of State will enjoy the resulting melody.

6.

As is apparent from Article 1 of Directive 2001/42/EC, the fundamental objective of that directive is to ensure that (certain) plans and programmes which are likely to have significant effects on the environment are subject to an environmental assessment when they are prepared and prior to their adoption. The directive lays down minimum rules concerning the preparation of the environmental report, the carrying out of consultations, the taking into account of the results of the environmental assessment and the communication of information on the decision adopted at the end of the assessment.

7.

Article 6(3) of Directive 2001/42/EC concerns the consultation of the authorities concerned:

‘Member States shall designate the authorities to be consulted which, by reason of their specific environmental responsibilities, are likely to be concerned by the environmental effects of implementing plans and programmes.’

8.

Article L. 122-7 of the Environmental Code (code de l’environnement) as amended by Decree No 2012-616 of 2 May 2012 concerning the assessment of certain plans and documents having an impact on the environment provides that:

‘The public entity responsible for drawing up a plan or a document shall submit to the competent state administrative authority in environmental matters for its assessment the draft plan or document drawn up in accordance with article L. 122-4, accompanied by the environmental report. …’

9.

The association France Nature Environnement requests the French Council of State to annul Decree No 2012-616.

10.

In the procedure for testing the constitutionality of laws, the Council of State already established that the contested decree infringed the obligations arising from Directive 2001/42/EC as interpreted by the Court. For certain plans and programmes, the power to draw up and approve plans and documents and consultative power in environmental matters is conferred on the same authority. There is no provision, however, ensuring that the consultative power in environmental matters be exercised within that authority by an entity with effective autonomy.

11.

According to the Council of State, the law as it stands is incompatible with Article 6(3) of Directive 2001/42/EC as interpreted by the Court.

12.

The Council of State considers that the retroactive effect of the partial annulment of the contested decree would present the risk that the legality of all the plans and programmes taken to implement those provisions might be called into question and, having regard to the possibility of alleging the invalidity, without any limitation period, of regulatory acts under French administrative law, of all the acts taken on the basis of those plans and programmes.

13.

The Council of State wishes to avoid this outcome and therefore addresses the following questions to the Court:

14.

The association France Nature Environnement, the French Republic and the European Commission all participated in the written part and, on 24 February 2016, in the oral part of the present proceedings.

15.

While the Council of State does ask, in the first place, about the possibility, temporarily, not yet to annul the provisions held to be contrary to EU law, in reality, it is not concerned about the provisions as such but about maintaining in force their effects as against overriding applicable EU law. This is what the second question explicitly drives at.

16.

That is the reason why I will examine first which effects are concerned (see A below) before explaining that maintaining such effects in force would be incompatible with the settled case-law of the Court (see B below). Lastly, I will consider how to deal in practical terms with the problem that led the Council of State to submit a request for a preliminary ruling. Only in this regard does the question raised by the Council of State as to whether the matter should be brought before the Court (see C below) actually arise.

17.

The Council of State wishes to maintain in force, temporarily, the effects of Article L.122-7 of the Environmental Code which provides that the entity responsible for drawing up a plan or document is to submit to the competent state administrative authority in environmental matters for its assessment the draft plan or document drawn up in accordance with article L.122-4, accompanied by the environmental report. This provision has the same wording, in essence, as Article 6(3) of Directive 2001/42/EC.

18.

The Court has held that it is indeed acceptable for the authority that draws up or accepts a plan or programme also to be consulted (itself) with regard to that measure pursuant to Article 6(3). Nevertheless, within the authority usually responsible for consultation on environmental matters, a functional separation must be organised at least so that an internal administrative entity (that is to be consulted) has real autonomy. ( *5 )

19.

That is the reason why the Council of State decided that Article L-122.7 of the Environmental Code was incompatible with Article 6(3) of Directive 2001/42/EC, in so far as that provision does not guarantee sufficient autonomy for the entities that are consulted internally in the context of the environmental assessment of plans and programmes. The Council of State nevertheless wishes to maintain in force the effects of that provision until the adoption of a replacement measure compatible with Directive 2001/42/EC.

20.

In doing so, while it can be conceived that those procedural rules continue to apply temporarily for the assessment of new plans or programmes, this would only be of limited practical interest. It would even stand to reason to postpone such assessments until the autonomy of the relevant entities had been sufficiently guaranteed.

21.

The Council of State is instead primarily concerned about plans and programmes that have already been adopted and for which the entities consulted for their environmental assessment were not sufficiently autonomous. The Council of State fears that the existence of such plans and programmes is at risk due to that lack of autonomy.

22.

Such risk could materialise in direct actions against the respective plan or programme as well as in ancillary complaints. The latter could be initiated in the context of actions against administrative decisions based on the respective plan or programme. According to the information provided by the Council of State such ancillary complaints are not subject to any temporal limitations under French law so that the binding nature ( *6 ) of plans and programmes would not preclude them.

23.

One could imagine for instance a plan that prohibits construction measures on certain areas for reasons of environmental protection. Should an application for planning permission be rejected for that reason, the applicant, in the context of a subsequent claim, could argue that the plan is vitiated by a procedural error because the internal entities consulted before the adoption of the plan were not sufficiently autonomous. If the plan were the only obstacle to the planning permission, it is conceivable that the building project should have been permitted.

24.

One could, however, also envisage for instance that environmental associations could object to projects that comply with such a plan or programme, and argue that more stringent protective measures would have been incorporated in the plan or programme had the internal entities consulted been sufficiently autonomous.

25.

The chances of success of such a contention depend first of all on national law since Directive 2001/42/EC does require that the entities to be consulted have autonomy, ( *7 ) but does not expressly address the consequences of insufficient autonomy. ( *8 )

26.

The modalities for relying on the autonomy of the entities consulted, as required by EU law, may not be less favourable, however, than those governing similar domestic situations (principle of equivalence) and they may not render in practice impossible or excessively difficult the exercise of rights conferred by the EU legal order (principle of effectiveness). ( *9 ) And according to the principle of effectiveness, courts before which actions are brought in that regard must adopt, on the basis of their national law, measures to suspend or annul the plan or programme adopted in breach of the obligation to carry out an environmental assessment pursuant to Directive 2001/42/EC. ( *10 )

27.

One might wish to reflect however on whether the case-law on procedural errors in the application of the EIA Directive ( *11 ) can be transposed to the present case.

28.

According to that case-law, a procedural error does not require the contested decision to be annulled unless the court is in a position to take the view — without in any way making the burden of proof fall on the applicant, but by relying, where appropriate, on the evidence provided by the project developer or the competent authorities and, more generally, on the entire file placed before that court or body — that the contested decision would not have been any different without the procedural error. ( *12 ) Moreover, in making that assessment, the court concerned has to take into account inter alia the seriousness of the errors invoked. ( *13 )

29.

Further examination would be required however as to whether such reasoning can be transposed at all from individual consents for the purposes of the EIA Directive to plans and programmes which are inevitably more general and where, naturally, there is more room for manoeuvre with regard to their design, which can be influenced by consultations. This should not be discussed in abstracto in the present proceedings but rather on the basis of specific proceedings regarding particular plans and programmes that illustrate the questions actually raised.

30.

Consequently, the Council of State is correct in fearing that the insufficient autonomy of the entities consulted in the context of an environmental assessment pursuant to Directive 2001/42/EC might call into question the continued existence of the relevant plans and programmes.

31.

The above explains the objective of the request for a preliminary ruling to find out whether the Council of State can maintain in force the effects of French implementing law that is incompatible with Article 6(3) of Directive 2001/42/EC. This is intended to rule out the possibility for plans and programmes adopted under the implementing law to be called into question because it is incompatible with EU law.

32.

The question as to the effect of national provisions that are incompatible with EU law has, however, already been largely clarified: it is for the national court, within the exercise of its jurisdiction, to apply the provisions of EU law and to give full effect to those provisions by refusing to apply any provision of national law which would lead that court to deliver a decision contrary to EU law. ( *14 ) This gives expression to the precedence of EU law. ( *15 )

33.

The question of the Council of State seeks to determine whether the effect of the overriding applicable imperative to guarantee a sufficient level of autonomy for the entities consulted can be temporarily suspended in favour of French provisions that do not require such autonomy.

34.

In this respect, only ( *16 )the Court may, exceptionally, in application of the general principle of legal certainty inherent in the EU legal order, be moved to restrict for any person concerned the right to rely upon a provision which it has interpreted, with a view to calling into question legal relationships established in good faith. ( *17 ) If, on the other hand, national courts had the power to give precedence to provisions of national law over conflicting EU law, even if only temporarily, then this would have an adverse effect on the uniform application of EU law.

35.

And even the Court itself may allow such a restriction only in the actual judgment ruling upon the interpretation sought. ( *18 ) That principle guarantees the equal treatment of the Member States and of other persons under EU law thereby fulfilling, at the same time, the rules arising from the principle of legal certainty. ( *19 )

36.

The interpretation adopted by the Court in Seaport (NI) and Others is of interest for the request for a preliminary ruling of the Council of State. However, the Court did not limit the effects of that judgment. This can no longer be rectified.

37.

The judgment in Inter-Environnement Wallonie and Terre wallonne does not justify any additional exception to the precedence of EU law. While that judgment does talk about maintaining in force certain effects of a national measure that was annulled, ( *20 ) the statement does not relate to a measure that is substantively contrary to EU law, but to one that was adopted in breach of the procedural requirements of EU law. ( *21 )

38.

It follows that it is not possible to maintain in force the effects of national implementing provisions so as to exclude the possibility of basing an appeal on Article 6(3) of Directive 2001/42/EC as interpreted by the Court in Seaport (NI) and Others against plans or programmes adopted in breach of that provision.

39.

The request for a preliminary ruling can also be understood as seeking to determine whether the Council of State can decide already today, in connection with the decision on the compatibility with EU law of French provisions implementing Directive 2001/42/EC, whether to maintain in force the relevant plans and programmes, and whether it should bring the matter before the Court to do so.

40.

The basis for that could be found in the judgment in Inter-Environnement Wallonie and Terre wallonne. According to that case, a court can be authorised exceptionally to make use of a national provision empowering it to maintain in force certain effects of an annulled plan or programme in so far as

41.

Two questions arise in this respect. On the one hand, we must clarify whether the decision to maintain in force such provisions can be made in abstracto for all relevant plans and programmes or — as France proposes — for certain categories of plans or programmes at least (see 2 below). On the other hand, we must consider to what extent that would require the matter to be referred to the Court (see 3 below). But first we must address the admissibility of the request for a preliminary ruling thus construed.

42.

If the request for a preliminary ruling is thus construed, we must first determine if an answer is necessary to dispose of the main proceedings; namely whether the request thus interpreted would be admissible. The matter before the Council of State does not address directly the issue of the validity of plans or programmes adopted in breach of Article 6(3) of Directive 2001/42/EC.

43.

The Council of State has indicated however that its finding that French implementing law is incompatible with Article 6(3) of Directive 2001/42/EC may call into question the validity of certain plans and programmes. Therefore it cannot be clearly ruled out that the Council of State in its decision might comment on the effects of such a finding on the relevant plans and programmes.

44.

As a consequence, in this case, too, the presumption applies that the questions referred for a preliminary ruling are relevant ( *23 ) and both partial questions set out above are admissible.

45.

As the Commission correctly points out, the Court has already refused in connection with the EIA Directive to remedy consents across the board where those consents had been adopted in breach of the procedural rules of that directive. ( *24 ) The criteria developed for the plans and programmes in Inter-Environnement Wallonie and Terre wallonne are along the same lines. Indeed, according to those criteria maintaining in force the effects of particular measures can be acceptable only in exceptional circumstances. ( *25 ) And at least three of the four conditions set out in that case aim at assessing each particular measure and the effects of its annulment.

46.

Thus we must examine according to the second condition whether it is necessary to maintain in force judicially or whether adequate arrangements were made by a subsequent measure adopted in the correct procedure. ( *26 ) In this regard we should note that the subsequent rectification of an error in the statutory transposition of Directive 2001/42/EC would not have been able to remedy the procedural errors made in adopting the plans or programmes. A sufficient level of autonomy of the entities consulted cannot be achieved retroactively. With regard to that condition, only the plans or programmes adopted subsequently in the correct procedure, which replace the measures adopted in breach of procedural requirements, are relevant.

47.

The third condition concerns specific detrimental effects on the environment that would result from annulling such a measure. ( *27 ) And to satisfy the fourth condition we must assess how long it would take to adopt a replacement measure in the correct procedure. ( *28 ) Both questions can be examined only in relation to particular plans or programmes.

48.

Consequently, the question of whether plans or programmes adopted in breach of the procedural rules of Directive 2001/42/EC should be maintained in force temporarily can be decided on a case-by-case basis only.

49.

The three conditions in Inter-Environnement Wallonie and Terre wallonne examined up to now do not depend on the interpretation of EU law but, essentially, on factual circumstances and on the substance of each measure. Therefore, they can be scrutinised, as a general rule, by national courts without it being necessary to submit a request for a preliminary ruling.

50.

At first glance, this applies a fortiori to the first condition set out by the Court, namely that the relevant measure must be a measure which correctly transposes the Nitrates Directive. ( *29 )

51.

However, difficulties arise from the fact that the Council of State also takes into consideration plans and programmes that do not transpose the Nitrates Directive. This leads to the question of whether national courts can maintain in force measures with other objectives also.

52.

As already argued in my Opinion in Inter-Environnement Wallonie and Terre wallonne there may be good arguments in favour of maintaining in force a plan or programme irrespective of the transposition of the Nitrates Directive even though the measure concerned had been adopted in breach of Directive 2001/42/EC. This is because abolishing such a measure would open a gap in environmental protection. ( *30 ) This applies to measures implementing environmental EU law as well as to purely national measures on the protection of the environment.

53.

I would consider a decision of the Court along those lines to be inappropriate in the present proceedings.

54.

First, there is nothing to suggest that the Council of State actually has to deal with the issue of maintaining in force individual plans or programmes in the main proceedings. It follows that a corresponding statement by the Court is not necessary for the Council of State to make a decision.

55.

Secondly, the case in Inter-Environnement Wallonie and Terre wallonne was decided by the Grand Chamber of the Court. The Grand Chamber deemed it wise to expressly limit the possibility of maintaining in force plans and programmes to the specific case to be decided, namely to maintain in force a measure to transpose the Nitrates Directive that has been adopted incorrectly. Therefore, the First Chamber of the Court should not be making statements that are much more far-reaching, when there is no need to do so.

56.

Thirdly, I find that the Grand Chamber is justified in being cautious. In the present proceedings, further-reaching statements about maintaining in force plans and programmes would have to be made without knowing anything about the conflicting interests at stake on an individual basis. At the same time, such statements could weaken the practical effectiveness of Directive 2001/42/EC and perhaps even that of procedural provisions of EU law.

57.

Accordingly, it is still unclear under EU law as it currently stands whether measures adopted incorrectly which do not aim to transpose the Nitrates Directive may also be maintained in force. A national court against whose decisions there is no judicial remedy under national law is required under Article 267(3) TFEU to bring the matter before the Court if it is considering whether to maintain in force such measures.

58.

I therefore propose that the Court answer the request for a preliminary ruling as follows: