The NGOs Inter-Environnement Wallonie and Bond Beter Leefmilieu Vlaanderen have introduced a demand for annulment of the federal act of 28 June 2015 concerning the gradual exit from nuclear energy for industrial electricity production with the aim to ensure security of energy supply. That act postpones the date of the deactivation and the end of the industrial electricity production of the Doel 1 and Doel 2 nuclear power plants until 2025.
The applicants complained that the contested act was not preceded by an environmental impact assessment or by a procedure allowing public participation, in violation of the principle of equality and non-discrimination and of the right to a healthy environment, which is related with different international treaties and European directives.
In its judgment no. 82/2017 of 22 June 2017, the Constitutional Court referred several questions to the Court of Justice of the European Union. That Court answered those questions by judgment of July 29, 2019, C-411/17, Inter-Environnement Wallonie and Bond Beter Leefmilieu Vlaanderen. In that judgment, the Court of Justice ruled that the project concerning the extension of the lifetime of the Doel 1 and 2 power stations should be considered entailing risks of environmental impact comparable in size to the risks that occurred during the original commissioning of the power stations. Consequently, such a project must be subject to the environmental impact assessment provided for in the EU EIA Directive. The Court of Justice also decided that an appropriate assessment of the impact of the project on the protected natural areas concerned should take place, according to the EU Birds- and Habitats Directives. Finally, the Court of Justice authorized the Constitutional Court to maintain into effect of the challenged act insofar as one seeks to avert the real and serious risk of interrupting electricity supply during the time strictly necessary to put an end to the unlawfulness.
Assessment by the Constitutional Court
The compatibility of the contested act with the EIA Directive
The Court had first to rule on the compatibility of the contested act with the EIA Directive. That directive provides for the obligation to ensure that a permit is required for projects that may have a significant environmental impact and that an assessment of its environmental impact is carried out. However, the Directive does not apply to projects that are adopted in detail through a specific act of national legislation, since the objectives of the EIA Directive, including that of supplying information, are achieved through the legislative process.
In the light of the clarifications given by the Court of Justice on the application of this exception, the Constitutional Court finds that the members of parliament have confined themselves to a vote on the extension of the power stations, but not on the modernization work that is required for this purpose. Moreover, the members of parliament did not have sufficient information. The Court concludes from this that the contested act is subject to the environmental impact assessment and public participation requirements of the EIA Directive.
According to the Court, the decision to renew the power stations is inextricably linked to their modernization work. Both are therefore a project that should be the subject of an environmental impact assessment, with public consultation, which should also be subject to a cross-border assessment procedure, as it may have significant environmental effects in another Member State. That assessment had to take place before the permit was granted.
The members of parliament had, at the time of the adoption of the contested act, the list of necessary work and an LTO draft from the operator. It was therefore possible to identify and assess all the consequences of the extension decision. With the contested act, the legislator has taken a framework decision in which the principle of the extension of the plants by ten years is laid down. The implementation of that decision and its effects on modernization and security work could be determined at the time of the adoption of the contested act. It should therefore have been preceded by an environmental impact assessment and a public consultation on the principle of the extension of nuclear power plants, as well as on the consequences of that extension on modernization and security work.
The compatibility of the contested act with the EU Habitats and Birds Directives
For the same reasons, the Court finds that the contested is a decision in principle that constitutes a permit for a project within the meaning of the Habitats Directive. It had to be the subject of an appropriate assessment of its environmental impacts. The possible impacts on the natural areas protected under the Birds and Habitats Directives could be sufficiently established and it was likely that the extension of the life of the power stations would have a significant impact on those protected areas.
Maintaining the act into force for some time
Taking into account the established violations, the Court annulled the contested law in its entirety. At the request of the Council of Ministers and of the operator, the Court examines whether it can maintain into effect the effects of the annulled law and, where appropriate, under which conditions. In accordance with the judgment of the Court of Justice, the Court examines whether there is a real and serious risk that the annulment of the contested act will result in the Belgian electricity supply being interrupted. The Court also examines whether that risk can be dealt with in any other way, in particular by importing electricity from other Member States. The Court decides that those two conditions are met and therefore decides to maintain the effects of the contested act temporally in force until 31 December 2022 at the latest. This is considered the time strictly necessary to allow the legislator to complete a legislative procedure during which the required environmental impact assessments, including public participation and cross-border consultation, can take place.
Life span extension nuclear powers plants - Necessity of EIA - Transboundary consultation and participation - Espoo Convention - Aarhus Convention - EU EIA Directive - EIA Birds Directive - EIA Habitats Directive