Constitutional Court leaves the environmental permit standing: only a single article nullified

In a decision of 6 October 2016 (no. 125/2016), the Constitutional Court ruled on a petition for nullification of 19 articles in the All-in-One Physical Aspects Permit Decree of 25 April 2014.

The Constitutional Court ultimately nullified only article 226 of the All-in-One Physical Aspects Permit Decree. Under that article, in principle no “suitable assessment” would be necessary for a mere renewal of an all-in-one physical aspects permit or in the case of conversion of an environmental permit for a term of at most 20 years into an unlimited-term all-in-one physical aspects permit. The general rule is that a “suitable assessment” must be performed if an activity, plan or programme requiring a permit might significantly affect achievement of the preservation objectives for a special protection area under the European Habitats or Birds Directives.

The Court nullified article 226 because it deemed the provision to be in conflict with the European Habitats Directive. According to the Court, it is not reasonably justified to convert to an unlimited-term authorisation without an adequate updating of the assessment. The competent permit-granting authorities can only approve a project that might have significant effects on a special protection area after having considered the conclusions of the impact assessment and after having reached certitude that the project will not affect the area.

All of the other provisions of the All-in-One Physical Aspects Permit Decree remain untouched, so in principle nothing should prevent the decree from entering into effect on 23 February 2017.

For more information on this subject, you can consult Barbara Bastiaensen (author) or Kristof Hectors (unit head).