Background
A Walloon ministerial decision granted a single permit in 2017 for the operation of 10 wind turbines, with the permit due to expire on 28 August 2029. In 2020, an operator, acting with the agreement of the other operators, sought a 10-year extension. The competent technical officer extended the permit through 28 August 2039 without conducting a public-participation phase, as permitted by the applicable regional procedure.
F.B., who lived near the wind farm, asked Belgium’s Conseil d’État to annul the extension, arguing that the Aarhus Convention required public participation before the operating conditions could be amended. The Conseil d’État referred questions asking whether Article 6(1) and (10) of the Convention barred legislation that categorically omitted public participation from a procedure extending by 10 years a permit initially granted for 20 years.
The Court’s Holding
The Court held that Article 6(1) and (10) of the Aarhus Convention precludes national legislation under which every procedure for such a 10-year extension of an authorization for an Annex I activity is excluded from public participation. The duration for which an activity is authorized is an operating condition, so permitting the activity to continue beyond the original term constitutes an update of its operating conditions within Article 6(10).
The Court distinguished a temporal extension from a physical change or extension under paragraph 22 of Annex I. If there were no works or interventions altering the physical aspect of the site—a matter for the referring court to verify—the decision would not fall within paragraph 22. Even so, Article 6(10) applies, and the national court must decide whether and how Article 6(2) through (9) should apply mutatis mutandis and “where appropriate,” considering the activity’s nature, the original permit term, the relative length of the extension, and the activity’s environmental effects.
Prior public participation during the original authorization process does not resolve that inquiry. Technologies and environmental conditions may change over time, and the fact that newer permits may receive longer initial terms likewise does not justify categorically excluding participation when an older permit is renewed.
Key Takeaways
- Extending the authorized operating period updates an activity’s operating conditions within Article 6(10) of the Aarhus Convention.
- National law may not categorically exclude public participation from every procedure extending an Annex I activity’s permit by 10 years after an initial 20-year term.
- The national court must assess the appropriate application of Article 6(2) through (9) case by case, and must verify whether the extension involves any physical alteration of the site.
Why It Matters
The ruling prevents authorities from treating a substantial permit extension as merely administrative solely because the underlying facility was previously approved. Continued operation can require renewed public involvement because relevant technology, environmental conditions, and environmental effects may differ from those considered when the original permit was issued.
The judgment does not declare that every renewal requires an identical, full-scale participation process. Instead, it requires a circumstance-specific assessment while invalidating legal regimes that exclude participation across the board.