Case C-379/15, Association France Nature Environnement – incompatible national law cannot be temporarily maintained [judgment 2016, ECLI:EU:C:2016:603]

If a national court finds that national law is incompatible with EU law, then must the national court make a preliminary reference to the CJEU and when doing so can the national court still keep the illegal national law temporarily in force because of an overriding consideration linked to the protection of the environment?

Background
The ‘Association France Nature Environnement’ is by recognised by French law as an organisation that can provide advice and approve plans that impact upon the environment. Their recognition in French law flows from France’s implementation of the EU’s Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment (OJ 2001 L197/30).

The Association is challenging a decision of the French State concerning regional parks which appears to exclude from environmental assessment procedures not only any need to conduct a risk assessment but also any consultation of the Association.

The Association claims that this is contrary to Article 6(3) of Directive 2001/42/EC. Article 6 of Directive 2001/42, entitled ‘Consultations’, provides:

‘1.The draft plan or programme and the environmental report prepared in accordance with Article 5 shall be made available to the authorities referred to in paragraph 3 of this Article and the public
The authorities referred to in Article 6(3) shall be consulted when deciding on the scope and level of detail of the information which must be included in the environmental report.’

The matter has been litigated up to the French Conseil d’État.

At the French Conseil d’État
The French judges consider the French regional parks law to be contrary to EU law. However, that consideration sparked further thought on whether national judges could declare the decision of the French state to be void ab initio, and thus nullify it with retroactive effect.

The musings of the judges were assisted by submissions from the parties. On the one hand, the Association said that it could see no obviously disproportionate effects to nullifying the French decision. However, if they were wrong on that, then the Association raised the extra legal point that if the French court were to decide to declare the measure void without giving its judgment retroactive effect, then the French court should make a preliminary reference to the CJEU.

On the other hand, the State claimed that a court decision with retroactive effect would have disproportionate legal consequences, not least because getting any new legislation approved would take another six months.

The judges at the Conseil d’État were bemused. They recalled the CJEU’s judgment in Case C-474/10, Seaport (NI) ECLI:EU:C:2011:681. That case also concerned Article 6 of the Directive and the act of designating an authority likely to be concerned by the environmental effects of implementing plans and programmes, and a decision to designate a separate authority.

According to the French judges, the CJEU’s judgment meant that a separate body could be consulted if it was sufficiently autonomous, and that would not be contrary to Article 6(3) of the Directive. However, that point did not seem to apply in the present case as consultation had not been granted to a body that did enjoy a real autonomy from the Assocation. Consequently, the French decision appeared contrary to EU law.

However, their conclusion generated a second set of legal doubts, namely, what should be the legal effects of that conclusion? In that context, the French court recalled the CJEU’s Grand Chamber judgment in Case C-41/11, Inter-Environnement Wallonie. The case concerned protecting waters against pollution caused by nitrates from agricultural sources. There had been a plan but no prior environmental assessment. The issue was whether the Belgian Conseil d’État could annul the plan and yet maintain the effects of the plan.

The operative part of the CJEU’s judgment in Inter-Environnement Wallonie provides:

Where a national court has before it, on the basis of its national law, an action for annulment of a national measure constituting a ‘plan’ or ‘programme’ within the meaning of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment and it finds that the ‘plan’ or ‘programme’ was adopted in breach of the obligation laid down by that directive to carry out a prior environmental assessment, that court is obliged to take all the general or particular measures provided for by its national law in order to remedy the failure to carry out such an assessment, including the possible suspension or annulment of the contested ‘plan’ or ‘programme’. However, in view of the specific circumstances of the main proceedings, the referring court can exceptionally be authorised to make use of its national provision empowering it to maintain certain effects of an annulled national measure in so far as:
– that national measure is a measure which correctly transposes Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources;
– the adoption and entry into force of the new national measure containing the action programme within the meaning of Article 5 of that directive do not enable the adverse effects on the environment resulting from the annulment of the contested measure to be avoided;
– annulment of the contested measure would result in a legal vacuum in relation to the transposition of Directive 91/676 which would be more harmful to the environment, in the sense that the annulment would result in a lower level of protection of waters against pollution caused by nitrates from agricultural sources and would thereby run specifically counter to the fundamental objective of that directive; and
– the effects of such a measure are exceptionally maintained only for the period of time which is strictly necessary to adopt the measures enabling the irregularity which has been established to be remedied.

Consequently, the French court wondered if it could temporarily maintain the effects of the illegal national measures and justify this by an overriding consideration linked to the protection of the environment?

Questions Referred
According to the Curia website, the French Conseil d’État has asked:

1. Should a national court, exercising its general jurisdiction under EU law, in all cases request a preliminary ruling from the Court of Justice of the European Union so that it can determine whether provisions held by the national court to be contrary to EU law should be maintained temporarily in force?

2. If the answer to that first question is in the affirmative, is the decision that may be made by the Conseil d’État to maintain, until 1 January 2016, the effects of the provisions of the Article 1 of the Decree of 2 May 2012 concerning the assessment of certain plans and documents having an impact on the environment, which it holds to be illegal, justified in particular by an overriding consideration linked to the protection of the environment?