1.

The Belgian Cour constitutionnelle (Constitutional Court) has referred two questions relating to the scope of the directive on the assessment of the effects of certain plans and programmes on the environment ( 2 ) (‘the SEA Directive’, SEA standing for strategic environmental assessment). First, it wishes it to be clarified whether that directive covers only the adoption and modification of plans and programmes or whether it also includes their repeal. Second, it asks whether an environmental assessment is necessary only for the purposes of adopting plans and programmes which are required to be adopted, or whether such an assessment is also required where drawing them up is simply provided for in legislative provisions but is not compulsory.

2.

The objectives of the SEA Directive are defined, in particular, in Article 1:

‘The objective of this Directive is to provide for a high level of protection of the environment and to contribute to the integration of environmental considerations into the preparation and adoption of plans and programmes with a view to promoting sustainable development, by ensuring that, in accordance with this Directive, an environmental assessment is carried out of certain plans and programmes which are likely to have significant effects on the environment.’

3.

Plans and programmes are defined in Article 2(a):

‘For the purposes of this Directive:

4.

Article 3 determines which plans and programmes require an assessment. The relevant provisions are, in particular, Article 3(1) to (5):

‘1.   An environmental assessment, in accordance with Articles 4 to 9, shall be carried out for plans and programmes referred to in paragraphs 2 to 4 which are likely to have significant environmental effects.

2.   Subject to paragraph 3, an environmental assessment shall be carried out for all plans and programmes,

3.   Plans and programmes referred to in paragraph 2 which determine the use of small areas at local level and minor modifications to plans and programmes referred to in paragraph 2 shall require an environmental assessment only where the Member States determine that they are likely to have significant environmental effects.

4.   Member States shall determine whether plans and programmes, other than those referred to in paragraph 2, which set the framework for future development consent of projects, are likely to have significant environmental effects.

5.   Member States shall determine whether plans or programmes referred to in paragraphs 3 and 4 are likely to have significant environmental effects either through case-by-case examination or by specifying types of plans and programmes or by combining both approaches. For this purpose Member States shall in all cases take into account relevant criteria set out in Annex II, in order to ensure that plans and programmes with likely significant effects on the environment are covered by this Directive.

6. …’

5.

The relevant provisions are laid down in the code bruxellois de l’aménagement du territoire (Brussels Town and Country Planning Code (‘the CoBAT’). The Cour constitutionnelle describes them as follows.

6.

The procedure for preparing specific land use plans provides for public consultation, the consultation of various bodies and authorities and, in principle, the preparation of an environmental report (Articles 43 to 50 of the CoBAT). The provisions of the CoBAT relating to the preparation of specific land use plans are applicable to the modification of those plans (Article 52 of the CoBAT). Those provisions are not, however, applicable to the procedure for repealing specific land use plans.

7.

Articles 25 and 26 of the Order of 14 May 2009, which are challenged in the main proceedings, supplement the previous procedure for repeal by the municipal authority with a procedure which allows repeal by the Government but likewise does not provide for any environmental assessment.

8.

Article 40 of the CoBAT states that ‘each municipality in the Region shall adopt specific land use plans, either on its own initiative or within the time-limit which is imposed upon it by the Government’. That provision appears to prescribe the adoption of such plans. However, it incorporates an earlier rule, from the drafting history of which the Cour constitutionnelle infers the possibility that there is no obligation to adopt such plans. It also states that, when dealing with an application from members of the public, the municipal authority may refuse to prepare a specific land use plan (Article 51 of the CoBAT).

9.

The main proceedings are also concerned with plans for the conservation of certain historic monuments. Article 30(c) and Article 101 of the Order of 14 May 2009 introduce provisions relating to such plans. These may be required before the issue of a consent necessary under the CoBAT and are drawn up at the request of the Government or a third of the owners. An environmental assessment is not necessary.

10.

In the main proceedings, a number of non-governmental organisations — Inter-Environment Bruxelles ASBL, Petitions-Patrimoine ASBL and Atelier de Recherche et d’Action Urbaines ASBL (‘Inter-Environment Bruxelles ASBL and Others) — are contesting certain provisions of the Brussels Order of 19 May 2009, which amends the CoBAT in various aspects. They complain, inter alia, that the amendments concerning the repeal of specific land use plans and the preparation of plans for the conservation of historic monuments do not require an environmental assessment as provided for in the SEA Directive.

11.

The Belgian Cour constitutionnelle has therefore referred the following questions to the Court of Justice:

12.

Written observations have been submitted by Inter-Environment Bruxelles and Others, the Kingdom of Belgium, the Czech Republic, the United Kingdom of Great Britain and Northern Ireland and the European Commission. With the exception of the United Kingdom, these parties also attended the hearing on 27 October 2011.

13.

I shall begin by examining the second question, since the answer to this may have a bearing on the need for the first question. The repeal of specific land use plans as referred to in the first question is capable of falling within the scope of the SEA Directive only if the preparation of such plans is also covered by that directive. The latter issue, however, forms the subject-matter of the second question.

14.

In order to answer the second question, it must be clarified whether the SEA Directive covers plans or programmes which are provided for in legislative provisions but the adoption of which is not compulsory, or whether that directive applies only where there is a legal obligation to draw up a plan.

15.

Almost all the language versions of the second indent of Article 2(a) of the SEA Directive refer to plans or programmes which must be prepared or are required. Plans or programmes which are governed by law but which do not have to be adopted would not be covered. As the United Kingdom rightly points out, that was the basis of the Court’s judgment in Terre Wallonne. ( 3 )

16.

Only the Italian version is open to a different interpretation. That version refers to plans and programmes which are ‘provided for’ (‘previsti’) by law. This might also include measures which are governed by law but which do not necessarily have to be adopted.

17.

The different language versions of a Community text must be given a uniform interpretation and hence, in the case of divergence between the language versions, the provision in question must in principle be interpreted by reference to the general scheme and purpose of the rules of which it is part. ( 4 ) However, a provision of which the language versions differ is also to be interpreted on the basis of the real intention of its author. ( 5 ) It is apparent from the drafting history of the second indent of Article 2(a) of the SEA Directive that, on the basis of the real intention of the legislature, the Italian version too is meant to include only plans and programmes that have to be prepared.

18.

Neither the original Commission proposal ( 6 ) nor an amended version of it ( 7 ) included the condition that the plans and programmes covered must be required by law. After the proposal proved unsuccessful in this regard, the Commission, supported by Belgium and Denmark, proposed that the directive should at least apply to plans and programmes ‘which are provided for in legislation or based on regulatory or administrative provisions’. ( 8 ) The legislature did not take up those proposals either, however.

19.

Instead, the Council explained the rules that were eventually adopted, to which the Parliament did not object, in a common position which stated, including in the Italian version, that only plans and programmes that are required (‘prescritti’) ( 9 ) are covered. Consequently, the Italian version of the directive must also be construed as meaning that it covers only plans or projects which are based on a legal obligation.

20.

In the light of the wording of the second indent of Article 2(a) of the SEA Directive and its drafting history, neither the general objective of European environmental policy, that is to say a high level of protection (Article 3(3) TEU, Article 37 of the Charter of Fundamental Rights of the European Union and Article 191(2) TFEU), nor the specific objective pursued by the SEA Directive, that is to say the environmental assessment of plans and programmes which are likely to have a significant effect on the environment (Article 1), ( 10 ) leads to any other interpretation. It is true that plans and programmes which are not based on a legal obligation may also have significant effects on the environment. Indeed, their effects may be even more significant than those of compulsory plans. None the less, the legislature clearly did not intend such measures to require an environmental assessment.

21.

The United Kingdom and the Czech Republic cite a logical reason for this: the risk that, because of the costs connected with an environmental assessment, the authorities would elect not to adopt such voluntary plans. It is also reasonable to suppose that voluntary plans provide a more effective means of taking environmental interests into account, and offer greater opportunity for public participation, than the alternative of not adopting such plans at all. It may well be that this appraisal will change in the future as a result of positive experiences in the use of environmental assessments, but it is not appropriate to pre-empt such a change by interpreting the SEA Directive in a way which is contrary to the documented intention of the legislature.

22.

At the hearing, Inter-Environment Bruxelles and Others also relied on the public participation provided for in Article 7 of the Aarhus Convention ( 11 ) and Article 2 of Directive 2003/35/EC. ( 12 ) Under that convention, the public is to be given the opportunity to participate in all plans and programmes relating to the environment, but an environmental report is not expressly required. If it were the case that the SEA Directive transposed that international law obligation in its entirety in respect of the European Union, there would be good reason to apply it above and beyond the wording of the SEA Directive, that is to say to all plans and programmes relating to the environment.

23.

However, the SEA Directive does not contain any indication that it is designed to transpose Article 7 of the Aarhus Convention. Rather, recital 10 in the preamble to Directive 2003/35 shows that, in this regard, the Convention is to be transposed only in relation to plans and programmes under European Union law — more specifically by Directive 2003/35 in relation to certain measures but, in future, by specific rules laid down in the relevant legislative act. Article 2(5) of Directive 2003/35 simply makes it clear that an environmental assessment in accordance with the SEA Directive is sufficient from the point of view of public participation. ( 13 )

24.

The objectives of Article 7 of the Aarhus Convention do not therefore justify an interpretation of the SEA Directive that is contrary to the recognisable intention of the legislature.

25.

Accordingly, it is not yet clear which plans and programmes within the meaning of the second indent of Article 2(a) of the SEA Directive are ‘required’. Although the Cour constitutionnelle does not expressly raise this issue, it cannot rule correctly on the compatibility of the contested rules with the SEA Directive unless that question too is resolved.

26.

The Cour constitutionnelle appears to assume that, in order for the SEA Directive to be applicable, an obligation under the second indent of Article 2(a) of the SEA Directive must arise every time the plan or programme in question is drawn up. On that basis, plans or programmes the preparation of which is sometimes voluntary but sometimes compulsory never have to undergo an environmental assessment.

27.

In Terre Wallonne, however, the Court has already held that the SEA Directive also covers programmes which have to be prepared only under certain conditions, ( 14 )in casu action programmes under the Nitrates Directive. ( 15 ) They have to be prepared only in the event of the existence of vulnerable zones within the meaning of that directive. If the authorities of the Member States voluntarily adopt action programmes for other areas in accordance with the criteria laid down in the Nitrates Directive, the SEA Directive would not be applicable.

28.

For the purposes of applying the SEA Directive, it must therefore be examined on a case-by-case basis whether the preparation of a plan or programme is compulsory or voluntary.

29.

In the absence of provisions of European Union law, the question whether in the present case the adoption of the relevant measures is compulsory is a matter of domestic law on which the Cour constitutionnelle alone can give a binding decision. That said, it is clear from Article 40 of the CoBAT, for example, that the Government can set a time-limit for the adoption of specific land use plans by the municipal authority. In such cases, a legal obligation to adopt the plan could exist. No such obligation appears to exist, on the other hand, where members of the public apply for the adoption of a plan. However, that provision too could be construed as meaning that, while the municipality has some discretion with respect to the time-limit for adopting the plan, it must in principle draw up such a plan. Moreover, it is not inconceivable that the circumstances of the case may severely limit that margin of discretion. ( 16 )

30.

In short, the word ‘required’ in Article 2(a) of the SEA Directive must be construed as meaning that that definition does not include plans and programmes which are provided for by legislative provisions but the drawing up of which is not compulsory. Plans or programmes which may under certain conditions be prepared voluntarily are covered by that definition only in cases where there is an obligation to draw them up.

31.

By the first question, the Cour constitutionnelle wishes to clarify whether the repeal of plans or programmes is covered by the SEA Directive.

32.

The Czech Republic takes the view that this question is no longer relevant to the main proceedings if the SEA Directive is applicable only to plans and programmes the adoption of which is compulsory. It submits that, in its second question, the Cour constitutionnelle proceeds on the basis that the adoption of specific land use plans under Article 40 of the CoBAT is not compulsory. If that is the case, specific land use plans are not covered by the SEA Directive and their repeal does not require an environmental assessment.

33.

I have already explained, however, that, in certain cases, an obligation to draw up such plans might indeed exist. ( 17 ) As the Commission points out, that possibility is clear from the description of the domestic legal position in the grounds of the order for reference, even if the wording of the second question referred seems to contradict it. ( 18 ) Consequently, it cannot be definitively ruled out that the Cour constitutionnelle will after all interpret the national legislative provisions at issue as imposing a legal obligation. Furthermore, the first question is not raised in the event that the Court will give a certain answer to the second question. Irrespective of the answer to the second question, therefore, it cannot be concluded that the first question obviously bears no relation to the actual facts or subject-matter of the main proceedings or that the problem is hypothetical. ( 19 )

34.

It follows that the Court should answer the first question referred.

35.

The starting point for the first question is the fact that Article 2(a) of the SEA Directive covers ‘plans and programmes … as well as any modifications to them’, but does not expressly refer to their repeal. Belgium and the United Kingdom, in particular, take the view therefore that total repeal cannot be regarded as a modification.

36.

However, as the Cour constitutionnelle, Inter-Environment Bruxelles and the Commission argue, the concept of a modification can unquestionably be construed as including the repeal of a plan or programme. After all, in principle, any modification involves the repeal of existing rules and the establishment of new rules. ‘Pure’ repeal simply makes what was a rule a rule no longer. The rule applicable is then the corresponding more general rule. This too is a modification.

37.

Thus, the provisions of the German Baugesetzbuch (Town and Country Planning Code) concerning the lawfulness of projects within the relevant built-up areas (Paragraph 34 of the Baugesetzbuch) or in outlying areas (Paragraph 35 of the Baugesetzbuch) would apply after the repeal of German development plans. The repeal of a plan would therefore change the regulatory framework for such projects.

38.

Belgium and the United Kingdom, on the other hand, take the view that the SEA Directive applies to the establishment of new plan content. In this regard, they refer in particular to the fact that, in accordance with Article 3(2) and (4), plans and projects must undergo an environmental assessment if they set the framework for specific projects. They state that the repeal of a measure does not create such content.

39.

The interpretation of the SEA Directive should, however, be based not so much on a narrow construction of its wording as on its objective, defined in Article 1, of ensuring that an environmental assessment is carried out on plans and programmes which are likely to have significant effects on the environment. ( 20 ) It is true that the Czech Republic and the United Kingdom consider that a plan or a programme is not capable of having any effects on the environment after it has been repealed. That view is mistaken, however.

40.

In so far as plans and programmes set the framework for projects by imposing limits on them, the removal of such limits is unquestionably capable of giving rise to significant effects on the environment, as the Cour constitutionnelle rightly points out.

41.

This is illustrated by an example cited by Inter-Environment Bruxelles and Others. In that example, a specific land use plan was repealed in order to allow a 44000 square metre office building to be built, since the plan allowed the construction only of a 20000 square metre building. The framework for development consents for office buildings was thus considerably extended by the repeal of the specific land use plan. It goes without saying that the removal of such restrictions is capable of having an impact on the environment. In particular, a larger office building generates more traffic, may also occupy more land and is capable, for example, of having a greater impact on the local microclimate and the water balance.

42.

Contrary to the view taken by the Czech Republic, if the effects of such projects also fall within the scope of the EIA Directive, ( 21 ) that does not preclude the application of the SEA Directive. In particular, there is no obligation to assess a project’s environmental effects twice, since a second assessment is not necessary if its objectives have already been fully met by the first assessment. ( 22 ) If, on the other hand, the two assessments are different from the point of view of their scope or content, a second assessment is appropriate. In cases just such as that of the example mentioned above, costs can be minimised if the procedure for repealing the plan or programme is combined or at least coordinated with the procedure for approving the project.

43.

Furthermore, the environmental report prepared when a measure is repealed can be dispensed with or at least limited in scope if the measure was properly assessed at the time when it was drawn up. According to point (b) of Annex I to the SEA Directive, the environmental report covers the relevant aspects of the current state of the environment and its likely evolution without implementation of the measure. The assessment of the repeal of a measure must therefore focus essentially on the changes in the state of the environment which have taken place since the measure was adopted. Public participation cannot be dispensed with, however, since opinions on the drawing up of a plan or programme will not necessarily coincide with those on its repeal.

44.

Finally, the Czech Republic and the United Kingdom consider that the SEA Directive cannot be applied to the repeal of plans or programmes for reasons relating to the scheme of that legislation. They submit that the SEA Directive contains a number of provisions and recitals concerning the adoption and preparation of the instrument. A repeal, on the other hand, is neither adopted nor prepared.

45.

However, that argument fails to take into account the fact that the provisions in question can also be applied to the repeal of plans and programmes. The adoption of a measure, as referred to in various provisions of the SEA Directive, includes the decision to repeal it. Moreover, the repeal of a measure also requires at least some preparation to examine the extent to which the measure is to be repealed. Contrary to the view of the United Kingdom, in this context the scope of the environmental assessment should encompass the extent to which the repeal of certain content may have an impact on the environment. If that assessment identifies possible significant effects, these can be made the subject of the monitoring required in Article 10.

46.

Moreover, contrary to the view expressed by the Czech Republic at the hearing, that conclusion is not called into question by a comparison with the judicial repeal of a measure or by the example of a fixed-term plan. As the Commission and Inter-Environment Bruxelles and Others have convincingly argued, the SEA Directive would not require an environmental assessment in either of those cases. Judicial decisions do not fall within the definition of plans and programmes contained in Article 2(a). ( 23 ) What is more, the expiry of a fixed-term measure must form part of the assessment carried out at the time when the measure is first drawn up.

47.

Total or partial repeal of a plan or programme is therefore a modification within the meaning of Article 2(a) of the SEA Directive.

48.

The Commission also raises the question whether modifications and the repeal of plans or programmes fall within the scope of the SEA Directive only if they are based on a legal obligation.

49.

The wording of Article 2(a) of the SEA Directive is not clear in this regard. In particular, the English ( 24 ) and French ( 25 ) versions of that provision can easily be read as meaning that it applies only to the compulsory modifications of plans and programmes.

50.

However, the phrase ‘which are required’ (in the German version, ‘which must be prepared’) can also be read as relating exclusively to plans and programmes; indeed, in the German version, ( 26 ) which uses the verb ‘erstellen’ (‘to prepare’), a word which does not fit with the concept of modification, this is the logical interpretation of that phrase. On that basis, Article 2(a) of the SEA Directive would extend to plans and programmes which are required, as well as to modifications to them.

51.

That difference between the language versions of the SEA Directive is again a reason for taking account of the drafting history, scheme and purpose of the rules. ( 27 )

52.

The drafting history is instructive for the purposes of this question too. According to the statement of reasons in the Council common position, the restriction to ‘plans and programmes, …, as well as any modifications to them, … which are required’ was introduced into the SEA Directive in order to make it clear that ‘only plans and programmes were covered which are required by legislative, regulatory or administrative provisions’. ( 28 ) The legislature did not therefore intend to restrict the SEA Directive’s application to modifications of those plans and programmes.

53.

Moreover, that is the only convincing reading of the SEA Directive in the light of its scheme and purpose.

54.

As the Commission submits with respect to the scheme of the SEA Directive, the modification and repeal of plans or programmes should as a rule take the same form as their drawing up. An environmental assessment should therefore be carried out when a measure is modified or repealed if such an assessment was necessary when the measure was drawn up.

55.

As the Commission explains, it is, furthermore, reasonable to assume that legal obligations to modify plans or programmes are comparatively rare, even where the instrument in question was originally drawn up on the basis of such an obligation. There is therefore a risk that the scope of environmental assessment would be considerably restricted if such assessments were confined to compulsory modifications and repeals.

56.

Such a restriction would be at odds with the objective of assessing plans and programmes which are likely to have significant effects on the environment. Such effects may result not only from the rules which are laid down when plans and programmes are first drawn up, but also from rules which are newly introduced as a result of modifications to such plans and programmes, or which become applicable as a result of the repeal of existing rules.

57.

Finally, confining environmental assessments to compulsory modifications or restrictions would also encourage Member States to circumvent the SEA Directive. A plan or programme could first be drawn up as an ‘empty shell’ containing no rules requiring an environmental assessment, with the problematic rules being introduced at a later stage in the form of ‘voluntary’ modifications which would escape assessment.

58.

In short, the answer to the first question should be that a procedure for the total or partial repeal of a plan or programme is a modification within the meaning of Article 2(a) of the SEA Directive in so far as the modification concerns a plan or programme within the meaning of that provision.

59.

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