Ljupcho Grozdanovski , 2 mars 2012

The Solvay case (C-182/10), from February 16, 2012, is somewhat unusual as the European Court of Justice (the ECJ) is asked to clarify the criteria allowing the Belgian authorities to qualify a national act as ‘legislative’, not by virtue of Belgian Law, but within the meaning of Directive 85/337, on the assessment of the effects of certain public and private projects on the environment, and the Aarhus Convention, on access to information, public participation in decision making and access to justice in environmental matters.

In 2008, the Wallon Parliament adopted a decree authorising a number of works on the Brussels airport and railway. These projects had been previously authorised by the administrative authorities. The decree merely ratified the administrative authorisations, giving them a legislative effect. By virtue of Belgian law, legislative acts such as the decree at issue, can only be subject to a review before the Constitutional Court. The review provided by the latter is less extensive than that of the Administrative Courts. Therefore, the decree enjoys a certain immunity with regard to the possibility to challenge its procedural and substantive lawfulness. An action was brought before the Belgian Constitutional Court, challenging the compliance of the decree with the Belgian Constitution, Article 9, paras 2-4, of the Aarhus Convention and Article 10 of Directive 85/337.

The referring court asked six questions to the ECJ, two of which shall be examined hereafter, namely the second and third questions. By its second question, the Belgian court essentially asks if the decree falls within the scope of Articles 2, par. 2, of the Aarhus Convention and 1, par. 5, of directive 85/337. By virtue of the former, the definition of ‘public authority’ does not include bodies or institutions acting in a  legislative capacity. By virtue of the latter, the Directive does not apply to projects the details of which are adopted by a specific act of national legislation.By its third question, the referring court essentially asks if the Aarhus Convention and Directive 85/337 are to be interpreted as precluding the right to implement a project with the adoption of a legislative act for which the Law of a Member State provides no procedure allowing to challenge its procedural and substantive lawfulness.

With regard to the second question, the ECJ is asked to clarify the nature of the decree in order to determine whether it qualifies as a ’specific legislative act’, thus falling out of the scope of the Directive, by virtue of Article 1, par. 5, of the latter. The Court emphasises that the stated Article lays down two conditions, namely, the details of the project to be adopted by a specific act of legislation and the achievement of the objectives of the Directive through a legislative process. With regard to the first condition, the Court considers that the legislative act must be sufficiently detailed, laying out all the elements of the project relevant to the assessment of its environmental impact. With regard to the second condition, the Court considers that the essential objective of the Directive is to ensure that all projects likely to have an impact on the environment are assessed, prior to the granting of the consent by the national authorities. In consequence, the legislature must have sufficient information at its disposal at the time when the project is adopted. It can thus take advantage of the information gathered during a prior administrative procedure. However, the existence of such a procedure cannot have the effect of enabling the adoption of a specific legislative act, in the sense of Article 1, par. 5, of the Directive. It is for the national Court to determine whether the conditions of stated Article have been met, while taking into account the content of the legislative act and the procedure that allowed its adoption. Therefore, a legislative act which merely ratifies a pre-existing administrative act and does not result from a substantive legislative process, cannot be considered as a specific act of legislation within the meaning of Article 1, par. 5, of the Directive.

In its response to the third question, the Court recognises that the Member States enjoy considerable procedural autonomy in implementing Article 9, par. 2, of the Aarhus Convention and Article 10 of Directive 85/337, while acting in compliance with the principles of equivalence and effectiveness. However, the Court considers that both the Convention and the Directive would lose all effectiveness if an environmental project is granted with the adoption of an act that, by virtue of the Law of a Member State, is immune to any procedure allowing to challenge its substantive and procedural lawfulness. The Court concluded on this point that if no such procedure is made available, any national Court before which an action is brought would have the task of carrying out the stated review. In the main proceeding, if the referring Court finds that the decree at issue does not satisfy the conditions of Article 1, par. 5, of Directive 85/337, and if Belgian Law provides no procedure allowing to challenge the lawfulness of the decree, the latter must be regarded as incompatible with the provisions of the Directive and the Aarhus Convention.

Reproduction autorisée avec l’indication: Grozdanovski Ljupcho, "Clarification of the notion of national legislative act by the ECJ", www.ceje.ch, actualité du 2 mars 2012.