The annulment of the lifespan extension of Doel 1 and 2: the use of measures maintaining effects by the Constitutional Court compared with the Council of State

In a judgment of 5 March 2020, the Constitutional Court annulled the act extending the lifespan of the Doel 1 and Doel 2 nuclear power plants until 2025. The prior environmental impact assessment was missing. Nevertheless, the Court maintains the effects of the annulled act until the end of 2022. A comparison with the case Inter-Environnement Wallonie and Terre Wallone, in which the Council of State had to make a similar assessment following a preliminary ruling of the Court of Justice of the European Union, reveals a number of interesting differences between the application of the technique by the Constitutional Court and by the Council of State.

The Doel 1 and Doel 2 nuclear power plants have been in operation since 1975 and were initially due to close in 2015. With the act of 28 June 2015, however, that date was postponed until 2025. The environmental organisations Bond Beter Leefmilieu and Inter-Environnement Wallonie decided to challenge this postponement before the Constitutional Court. They argued that the legislature should first have carried out an environmental impact assessment. The Constitutional Court found in their favour in judgment no. 34/2020.

The Court’s ruling does not, however, entail the immediate shutdown of Doel 1 and Doel 2. The legislature is given until 31 December 2022 to take a new decision on a possible lifespan extension. Its freedom in doing so is limited. Specifically, the new act must be preceded by an environmental impact report (EIR) within the meaning of the EIA Directive. Because Doel lies close to the Dutch border, a transboundary consultation must moreover take place. Finally, an appropriate assessment of the implications for the environment within the meaning of the Habitats Directive must also be made. In this blog post, these various components of the obligation are referred to by the general term ‘environmental impact assessment’.

In this analysis we first explain the ruling of the Constitutional Court. We then discuss the circumstances in which a court can maintain a provision that is contrary to Union law. Finally, we identify some interesting differences regarding the maintenance of the effects of a challenged norm by the Council of State on the one hand and the Constitutional Court on the other.

A surprising ruling?

The ruling of the Constitutional Court does not come unexpectedly. During the proceedings, a number of preliminary questions were referred to the Court of Justice of the European Union. The Constitutional Court asked whether an environmental impact assessment also had to take place where a mere extension of the lifespan of a project was concerned, at what stage of the decision-making process that environmental impact assessment then had to be carried out, and whether it was possible to maintain the effects of the act in the event of an annulment.

In preliminary ruling no. C-411/17 of 29 July 2019, the Court of Justice of the European Union held that the extension of Doel 1 and 2 did indeed require an environmental impact assessment. Such an assessment moreover had to take place as early as possible, and in any event before consent for the project was granted. The annulment of the lifespan extension, which had been permitted without an environmental impact assessment, was therefore written in the stars.

Maintaining the effects of a provision contrary to EU law

The Member States themselves determine what consequences they attach to the breach of a procedural requirement. The EIA Directives and the Habitats Directives do not expressly regulate this. Nevertheless, Article 4(3) of the Treaty on European Union requires the Member States to eliminate inconsistencies with Union law. Accordingly, the challenged act was annulled for violating Articles 10, 11 and 23 of the Constitution, read in conjunction with rules of European law. The Court of Justice did, however, leave room for Belgium to maintain the effects of the lifespan extension, provided the conditions it imposes for this are met. For example, in judgment no. C-41/11 of 28 February 2012, the Court of Justice allowed the Council of State to maintain the effects where there is an “overriding consideration linked to environmental protection”.

The Court of Justice in principle takes a strict view of questions of maintaining effects. In the aforementioned preliminary ruling on the lifespan extension of Doel 1 and 2, the Court of Justice of the European Union nevertheless extended its case law. It named an additional imperative reason of public interest that could justify maintaining the effects, namely safeguarding the security of electricity supply. The preliminary ruling thus provided that the nuclear power plants could remain open if there was a “genuine and serious risk” that the electricity supply would be interrupted and that insufficient electricity could be imported from abroad to make up that shortfall. According to the Constitutional Court, those conditions are met, which justifies the decision to maintain the effects of the annulled act.

Differences between the Council of State and the Constitutional Court

The interplay between national law on the one hand and EU law on the other results in a remarkable application of the technique of maintaining effects. A court can use that technique only under the strict conditions laid down by the Court of Justice. To assess whether the conditions are met, the Council of State and the Constitutional Court proceed in different ways. This is apparent from a comparison between judgment no. 225.473 of 13 November 2013 of the Council of State in Inter-Environnement Wallonie en Terre Wallone and the judgment of 5 March 2020 of the Constitutional Court (see supra). These are so far the only Belgian cases in which the Court of Justice allowed the use of a technique of maintaining effects.

In the judgment of 13 November 2013, the Council of State examined whether the conditions set by the Court of Justice were met. As mentioned earlier, the annulment of the administrative act had to give rise to a legal vacuum more detrimental to the environment than its maintenance. In the absence of facts proven by the parties, the Council of State concluded that it had not been established that this condition was met. The challenged decision therefore disappeared from the legal order immediately.

The Constitutional Court makes a similar assessment in its judgment of 5 March 2020. In doing so, it relied on the reports and hearings that preceded the adoption of the act, on a report of the Directorate-General Energy of the FPS Economy and on studies by the Federal Planning Bureau, Elia and CREG. Whereas the Council of State rejects the request for insufficient evidence from the party requesting the measure, the Constitutional Court proceeds differently. In its ruling, for example, it gives only brief reasons why there would be no possibilities for imports from abroad. Furthermore, the judgment devotes much attention to the element that there is a genuine and serious risk that supply would be interrupted, whereas the other possible avenue, namely that there is no genuine and serious risk, does not appear to have been examined extensively. This is remarkable, since during the adoption of the original act in the Chamber it was disputed whether there was in fact a supply problem. This is apparent, among other things, from the criticism in report no. 0967/003. The Constitutional Court thus appears to accept more readily than the Council that a measure maintaining effects is necessary.

In a general comparison, apart from the context of incompatibility with Union law, we see clear differences between the judgments of the Council of State and those of the Constitutional Court. First, the Court can apply a measure maintaining effects both of its own motion and at the request of the parties, whereas the Council of State, since the new Article 14ter of the Council of State Act, can do so only at the request of the parties. Second, the Council requires parties to provide adequate evidence regarding the necessity of the measure maintaining effects. The act moreover expressly provides for an adversarial procedure. The parties are therefore always given the opportunity to make their position on a possible measure maintaining effects known. VERSTRAELEN argues in her doctoral thesis Rechterlijk Overgangsrecht that the right to be heard before the Constitutional Court, by contrast, is not always guaranteed. She does state in her research that the courts are mostly dependent on the information provided by the parties and that it is therefore crucial that parties clearly demonstrate what the precise consequences of a possible annulment will be. In that respect, according to her, it is not surprising that the Council of State applies a high burden of proof. Finally, the Council usually gives very extensive reasons for its decision on measures maintaining effects, whereas the Constitutional Court generally remains brief. VERSTRAELEN therefore regrets that the Constitutional Court’s judgments maintaining effects are characterised by “great unpredictability and a lack of consistency”, since parties are given no clarity about the criteria the Court applies and are not encouraged to defend their position on the basis of those criteria.

VERSTRAELEN’s extensive analysis indeed shows that the Council of State applies the possibility of maintaining effects “with the necessary wisdom and caution”. The same research also shows that between 1996 and 2014 the Council of State maintained the effects of an annulled administrative act only 19 times. The Constitutional Court applied the technique more often: between 1985 and 2014 the Constitutional Court maintained the effects of an annulled provision in 83 judgments.

Conclusion

In the judgments of 13 November 2013 and 5 March 2020, the margin of appreciation of both courts with regard to maintaining the effects of unlawful or unconstitutional provisions was limited by the specific conditions the Court of Justice attached to it. It is striking that in the judgment of 13 November 2013 the Council of State did not proceed to maintain the effects of the annulled provision, despite the fact that the Court of Justice had, in its preliminary ruling, developed conditions tailored to the situation to make a measure maintaining effects possible. The Council appeared to take a restrained approach in that respect and required conclusive evidence that the measure was necessary or, as was at issue in the judgment of 13 November 2013, that the conditions of the Court of Justice of the European Union were met. In the judgment of 5 March 2020, the Constitutional Court appears to start from a less strict standard of proof and does not always give thorough reasons why the conditions were met.

Although VERSTRAELEN’s research dates from 2015, the recent judgments appear to be consistent with her earlier conclusions. The restraint we observe at the Council of State may be valuable. In her opinion in case no. C-411/17, Advocate General Kokott already argued for the utmost restraint regarding maintaining effects, as otherwise there would be a risk of circumventing Union law. Especially where an environmental impact assessment is concerned, it is important to avoid litigants being confronted with a fait accompli, because such situations “undermine the practical effect of an assessment carried out afterwards”.

Bibliography

Legislation

Verdrag van Espoo inzake milieu-effectenrapportage in grensoverschrijdend verband van 25 februari 1991.

Verdrag van Aarhus betreffende toegang tot informatie, inspraak bij besluitvorming en toegang tot de rechter inzake milieuaangelegenheden van 25 juni 1998.

Artikel 4, lid 3 VEU.

Richtlijn 91/676/EEG van de Raad van 12 december 1991 inzake de bescherming van water tegen verontreiniging door nitraten uit agrarische bronnen (Nitraatrichtlijn).

Richtlijn 92/43/EEG van de Raad van 21 mei 1992 inzake de instandhouding van de natuurlijke habitats en de wilde flora en fauna (Habitatrichtlijn).

Richtlijn 2011/92/EU van het Europees Parlement en de Raad van 13 december 2011 betreffende de milieueffectbeoordeling van bepaalde openbare en particuliere projecten (MEB-richtlijn).

Artikel 14ter RvS-wet.

Adv.Rvs nr. 57.630/3 over amendementen op het wetsontwerp ‘houdende bepalingen inzake de bevoorradingszekerheid op het gebied van energie’.

Verslag over het wetsontwerp houdende bepalingen inzake de bevoorradingszekerheid op het gebied van energie, Parl.St. Kamer 2014-15, nr. 0967/003.

Wet 28 juni 2015 tot wijziging van de wet van 31 januari 2003 houdende de geleidelijke uitstap uit kernenergie voor industriële elektriciteitsproductie met het oog op het verzekeren van de bevoorradingszekerheid op het gebied van energie, BS 6 juli 2015.

Case law

HvJ 28 februari 2012, nr. C-41/11, ECLI:EU:C:2012:103.

HvJ 28 juli 2016, nr. C-379/15, ECLI:EU:C:2016:603.

HvJ 29 juli 2019, nr. C-411/17, ECLI:EU:C:2019:622.

HvJ 29 juli 2019, nr. C-411/17, concl. A-G J. Kokott, r.o. 216, ECLI:EU:C:2018:972.

GwH 5 maart 2020, nr. 34/2020.

RvS 6 november 2006, nr. 164.368.

RvS 9 oktober 2012, nr. 220.914.

RvS 13 november 2013, nr. 225.473.

Scholarship

BORTELS, H., “De handhavingsbevoegdheid van het Grondwettelijk Hof in het prejudicieel contentieux dan toch door de bijzondere wetgever erkend”, TBP 2017, afl. 3, 166-171.

GENTILE, G., “Inter-Environnement Expanded: Another Brick Out of the Wall of EU Law Supremacy?”, European Papers 2017, vol. 2, no. 1, 321-327.

LAVRYSEN, L., SCHOUKENS, H., “Milieueffectrapportage” in CANNOOT, P., GOOSSENS, J., VANDE LANOTTE, J., e.a., Rechtsbescherming in het publiekrecht: kan er nog gebouwd worden in Vlaanderen?, Mechelen, Wolters Kluwer Belgium, 2016, 481-568.

THEUNIS, J. en VANHELLEMONT, A., “Rechtspraak in kort bestek: juli 2018 t.e.m. december 2018 (GwH – EHRM – HvJ)”, MER 2019, afl. 2, 148.

THEUNIS, J., “Handhaving van de gevolgen van een vernietigde bestuurshandeling door de Raad van State” in VAN DAMME, M., e.a., De hervorming van de Raad van State, Brugge, Die Keure, 2014, 95-124.

VANDE LANOTTE, J., GOEDERTIER, G., HAECK, Y., e.a., Belgisch publiekrecht, Brugge, Die Keure, 2015, 1594 p.

VERSTRAELEN, S., Rechterlijk overgangsrecht, Antwerpen, Intersentia, 2015, 293-335.

Miscellaneous

BAERT, D. en VERHAEGHE, N., “Vervroegde sluiting dreigt voor kernreactoren Doel 1 en 2”, VRT NWS, 5 maart 2020.

BIENSTMAN, M., “Iedereen gelijk voor de wet: Grondwettelijk Hof vernietigt levensduurverlenging kerncentrales Doel 1 en 2”, Persbericht Bond Beter Leefmilieu en Inter-Environnement Wallonie, 5 maart 2020.

Image

Public domain, Wikimedia Commons.