The wind is changing for wind turbines in Wallonia

Within the context of a dispute between a private individual and the Walloon Region, the Council of State has been called upon to rule on the compliance of an order of the Walloon Government adopted without its provisions having been subject to an impact assessment procedure or to a public participation procedure in accordance with the provisions of Directive 2001/42 of June 27, 2001 on the assessment of the effects of certain plans and programmes on the environment.

The question was therefore the following: is the Order of February 13, 2014 imposing sectoral conditions on wind farms a “plan” or a “programme” within the meaning of the directive and therefore subject to an impact assessment procedure?

The Council of State has submitted the question, for a preliminary ruling, to the Court of Justice of the European Union (CJEU).

First finding of the Court: since the purpose of the directive is to guarantee a high level of protection for the environment, the provisions which delimit the directive’s scope and, in particular, those setting out the definitions of the measures envisaged by the directive, must be interpreted broadly.

Second finding of the Court: it is necessary to avoid strategies which may be designed to circumvent the obligations laid down in Directive 2001/42 and to thus reduce the practical effect of this directive.

The Court deduces from this that the notion of “plans and programmes” relates to any measure which establishes, by defining rules and procedures for scrutiny applicable to the sector concerned, a significant body of criteria and detailed rules for the granting and implementation of one or more projects likely to have significant effects on the environment.

Yet, the Court recalls that the Order of February 13, 2014 concerns, in particular, technical standards, operating conditions, the prevention of accidents and fires, noise level standards, restoration and financial collateral for wind turbines. Such standards have a sufficiently significant importance and scope in determining the conditions applicable to the sector concerned and the choices, in particular related to the environment, available under those standards must determine the conditions under which actual projects for the installation and operation of wind turbine sites may be authorised in the future.

The Court therefore answers in the affirmative the question asked by the Council of State.

This affirmative answer from the Court of Justice will undoubtedly lead to the annulment of the Walloon regulatory provision by the Council of State. Existing and future installations are therefore affected by this decision.