Background
The Brussels-Capital Region adopted an order on 25 February 2021 establishing general and specific operating conditions for car parks, covering matters such as maintenance, drainage, ventilation systems, safety requirements, and parking facilities. The order did not address where car parks should be located or the maximum number of parking spaces permitted.
The Fédération belge du stationnement ASBL and Interparking SA challenged the order before the Conseil d’État (Council of State), arguing that it constituted a “plan or programme” subject to environmental assessment under Article 3(2)(a) of Directive 2001/42/EC (the Strategic Environmental Assessment Directive) before adoption. The regional government contended that the order was merely operational regulation lacking planning or programming aspects and therefore not subject to the directive.
The Conseil d’État referred the case to the CJEU for preliminary ruling on whether such operating conditions require environmental assessment and whether a national court could temporarily maintain the effects of an unlawful measure to allow the competent authority to conduct the required assessment.
The Court’s Holding
The Court held that Article 3(2)(a) of Directive 2001/42 must be interpreted broadly to require environmental assessment of national legislation laying down car park operating conditions, provided two cumulative conditions are met: (1) the legislation concerns the transport sector or town and country planning or land use, and (2) it establishes significant criteria and detailed rules for the grant and implementation of projects listed in Annexes I and II to Directive 2011/92 (including car park construction).
The Court rejected the regional government’s argument that a measure must have planning or programming aspects to qualify as a “plan or programme.” Instead, the Court emphasized that Article 2(a) of Directive 2001/42 defines “plans and programmes” solely by reference to whether they are adopted by a competent authority and required by legal provisions. The substantive requirements—including whether the measure sets a framework for project development—are assessed separately under Article 3.
Regarding potential remedies, the Court held that a national court may only temporarily maintain the effects of a regulatory act adopted without required environmental assessment if national law permits, the maintenance is necessary to ensure transposition of another EU environmental directive (such as the energy efficiency directive), and it lasts only as long as strictly necessary. The Court emphasized that the regional court must examine whether annulment would actually create a legal vacuum and whether reverting to prior practices would be feasible.
Key Takeaways
- Directives on environmental assessment must be interpreted broadly; formal planning or zoning aspects are not prerequisites for measures to be subject to assessment.
- Operating and technical regulations affecting infrastructure—including car parks—can trigger environmental assessment obligations if they establish substantial criteria and rules for project implementation.
- Car parks are recognized as essential transport infrastructure, bringing regulations affecting their operation within the scope of the transport sector.
- National courts have limited authority to maintain effects of non-compliant measures and only when necessary to prevent conflicts with other EU environmental obligations.
Why It Matters
This decision significantly expands the scope of what qualifies as a “plan or programme” requiring environmental assessment. It means that general operating regulations and technical standards can carry environmental implications requiring assessment, even when they do not directly govern siting or capacity. For cities and regions, this expands procedural obligations for infrastructure regulation and may require environmental assessment for operating conditions previously treated as routine administrative measures.
The ruling also addresses the tension between legality and administrative continuity, establishing that courts have limited discretion to cure procedural violations through temporary maintenance of unlawful measures. This reinforces that EU environmental procedures cannot be bypassed retroactively and requires public authorities to conduct required assessments before adoption of regulatory frameworks affecting environmental outcomes.