Case C‑300/20

Bund Naturschutz in Bayern eV

Landkreis Rosenheim

(Request for a preliminary ruling from the Bundesverwaltungsgericht)

Judgment of the Court (Grand Chamber), 22 February 2022

(Reference for a preliminary ruling – Environment – Directive 2001/42/EC – Assessment of the effects of certain plans and programmes on the environment – Article 2(a) – Concept of ‘plans and programmes’ – Article 3(2)(a) – Measures prepared for certain sectors and setting a framework for future development consent of projects listed in Annexes I and II to Directive 2011/92/EU – Article 3(4) – Measures setting a framework for future development consent of projects – Landscape conservation regulation adopted by a local authority)

Environment – Assessment of the effects of certain plans and programmes on the environment – Directive 2001/42 – Plans and programmes – Concept – National measure intended to protect nature and the landscape adopted by a local authority – Included – General and abstract nature of the measure – Irrelevant

(European Parliament and Council Directive 2001/42, Art. 2(a))

(see paragraphs 35-41)
Environment – Assessment of the effects of certain plans and programmes on the environment – Directive 2001/42 – Scope – Plans and programmes which are likely to have significant effects on the environment – Sectors referred to in Annexes I and II to Directive 2011/92 – National measure intended to protect nature and the landscape and containing rules concerning activities covered by those sectors – Included – Conditions – Measure establishing a significant body of criteria and detailed rules for the grant and implementation of projects having significant effects on the environment – Measure laying down general prohibitions and making provision for compulsory permits without laying down sufficiently detailed rules regarding those projects – Not included

(European Parliament and Council Directives 2001/42, Art. 3(2)(a), and 2011/92, Annexes I and II)

(see paragraphs 47-53, 55-70, operative part 1)
Environment – Assessment of the effects of certain plans and programmes on the environment – Directive 2001/42 – Scope – Plans and programmes which are likely to have significant effects on the environment – Measures setting a framework for future development consent of projects – Concept – Measure establishing a significant body of criteria and detailed rules for the grant and implementation of projects having significant effects on the environment – National measure intended to protect nature and the landscape by laying down general prohibitions and making provision for compulsory permits without laying down sufficiently detailed rules regarding those projects – Not included

(European Parliament and Council Directive 2001/42, Art. 3(4))

(see paragraphs 72-74, operative part 2)

Résumé

In 2013, the Landkreis Rosenheim (Rural District of Rosenheim, Germany) adopted a regulation relating to a landscape conservation area (‘the Inntal Süd Regulation’) ( 1 ) without having carried out an environmental assessment beforehand in accordance with Directive 2001/42 on the assessment of the effects of certain plans and programmes on the environment. ( 2 ) The Inntal Süd Regulation placed an area of around 4021 hectares under protection, that is to say an area around 650 hectares smaller than the area protected by the previous regulations.

Bund Naturschutz in Bayern eV, an environmental association, challenged that regulation before the Bayerischer Verwaltungsgerichtshof (Higher Administrative Court, Bavaria, Germany). After its application was dismissed as inadmissible, that association brought an appeal on a point of law (Revision) against that decision before the Bundesverwaltungsgericht (Federal Administrative Court, Germany).

That court considers that the Inntal Süd Regulation constitutes a plan or programme within the meaning of Directive 2001/42. Having doubts, however, as to whether the Rural District of Rosenheim had an obligation to carry out, in accordance with that directive, an environmental assessment prior to the adoption of that regulation, it has decided to bring that issue before the Court of Justice by means of the preliminary ruling procedure.

In its judgment, delivered by the Grand Chamber, the Court clarifies the concept of plans and programmes that must be subject to an environmental assessment in accordance with Directive 2001/42.

Findings of the Court

As a preliminary point, the Court recalls that Directive 2001/42 covers plans and programmes which, first, are prepared or adopted by an authority at national, regional or local level, and, second, are required by legislative, regulatory or administrative provisions.

Concerning the second condition, it is apparent from settled case-law that plans and programmes the adoption of which is regulated by national legislative or regulatory provisions, which determine the competent authorities for adopting them and the procedure for preparing them, must be regarded as ‘required’ within the meaning, and for the application, of that directive. Thus, a measure must be regarded as ‘required’ where there exists, in national law, a particular legal basis authorising the competent authorities to adopt that measure, even if such adoption is not mandatory.

Accordingly, as the Inntal Süd Regulation was adopted by a local authority on the basis of a provision of German legislation, it constitutes a plan or programme within the meaning of Directive 2001/42. In that regard, the Court notes that the general nature of that regulation, which contains general and abstract provisions laying down general requirements, does not preclude such a classification. The fact that a national measure is to some extent abstract and pursues an objective of transforming an existing geographical area is illustrative of its planning and programming aspect and does not prevent it from being included in the concept of ‘plans and programmes’.

Next, the Court examines whether a national measure, such as the Inntal Süd Regulation, which is intended to protect nature and the landscape and, to that end, lays down general prohibitions and makes provision for compulsory permits falls within the scope of Article 3(2)(a) of Directive 2001/42. That provision lays down the obligation to carry out an environmental assessment for all plans and programmes which satisfy two cumulative conditions.

In the first place, the plans or programmes must ‘concern’ one of the sectors referred to in Article 3(2)(a) of Directive 2001/42. ( 3 ) In this instance, it appears to the Court that that first condition is satisfied, which it is, however, for the referring court to ascertain.

In that regard, the Court specifies that the fact that the main objective of a plan or programme is the protection of the environment does not mean that that plan or programme may not also ‘concern’ one of the sectors listed in that provision. Indeed, the very essence of measures of general application prepared with a view to the protection of the environment is precisely to regulate human activities having significant environmental effects, including those covered by those sectors.

In the second place, the plans or programmes must set the framework for future development consent of projects listed in Annexes I and II to Directive 2011/92 on the assessment of the effects of certain public and private projects on the environment. ( 4 )

That requirement is met where a plan or programme establishes a significant body of criteria and detailed rules for the grant and implementation of one or more of the projects listed in Annexes I and II to Directive 2011/92, inter alia with regard to the location, nature, size and operating conditions of such projects, or the allocation of resources connected with those projects. By contrast, where a plan or programme, such as the Inntal Süd Regulation, merely defines landscape conservation objectives in general terms and makes activities or projects in the conservation area subject to obtaining a compulsory permit, without however setting out criteria or detailed rules for the grant and implementation of those projects, the requirement referred to above is not met, even if that regulation may have a certain influence on the location of projects.

In the light of those considerations, the Court concludes that the Inntal Süd Regulation does not constitute a plan or programme which must be subject to an environmental assessment in accordance with Article 3(2)(a) of Directive 2001/42, in so far as it does not lay down sufficiently detailed rules regarding the content, preparation and implementation of the projects referred to in Annexes I and II to Directive 2011/92, which it is, however, for the referring court to ascertain.

Lastly, the Court rules that a national measure which is intended to protect nature and the landscape and, to that end, lays down general prohibitions and makes provision for compulsory permits without laying down sufficiently detailed rules regarding the content, preparation and implementation of projects is also not covered by Article 3(4) of Directive 2001/42, pursuant to which it is for the Member States to determine whether plans and programmes, other than those referred to in paragraph 2 of that article, which set the framework for future development consent of projects, are likely to have significant environmental effects.

( 1 ) Verordnung des Landkreises Rosenheim über das Landschaftsschutzgebiet ‘Inntal Süd’.

( 2 ) Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (OJ 2001 L 197, p. 30).

( 3 ) Namely agriculture, forestry, fisheries, energy, industry, transport, waste management, water management, telecommunications, tourism, town and country planning or land use.

( 4 ) Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), which replaced Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40).