1. INTRODUCTION
While nuclear energy in the European Union (EU) is slowly but surely on its way out, the improved climate targets provided in the European Green DealFootnote 1 and related policy documents which aim for a full decarbonization of the EU's electricity sector by 2050Footnote 2 may lead some Member States to rethink their nuclear energy phase-out plans. Belgium, the Member State with the nuclear energy policy at the centre of Inter-Environnement Wallonie ASBL and Bond Beter Leefmilieu Vlaanderen ASBL v. Conseil des ministres (Inter-Environnement Wallonie ASBL),Footnote 3 decided to reconsider its original nuclear energy phase-out plan as early as 2015. Initially, under the Law on the Progressive Phasing Out of Nuclear Energy for the Purposes of Industrial Production of Electricity adopted in 2003 (the 2003 Law), Belgium had established a timetable for phasing out industrial production of electricity by fission of nuclear fuels in nuclear power stations on its territory. In 2015, in a veritable U-turn on its domestic nuclear energy policy, Belgium passed the Law amending the Law of 31 January 2003 on the Progressive Phasing Out of Nuclear Energy for the Purposes of Industrial Production of Electricity in order to Ensure the Security of the Energy Supply (the 2015 Law).Footnote 4 Guided by the objective of ensuring the security of Belgium's electricity supply, the 2015 Law extended the operation of the country's Doel 1 and Doel 2 nuclear power stations and allowed these to continue electricity production until 2025.
This case comment provides a critical commentary on the judgment in Inter-Environnement Wallonie ASBL. The case concerned a request made by the Belgian Constitutional Court (BCC) for a preliminary ruling in proceedings raised by two Belgian environmental protection associations challenging the legality of the 2015 Law. Essentially, the application before the BCC pertained to the environmental consequences arising from the 2015 Law and related measures, as well as the possibility that national authorities could avoid their EU law-mandated environmental impact assessment (EIA) obligations through reliance on the ‘security of electricity supply’ exemption in Article 194(1)(b) of the Treaty on the Functioning of the European Union (TFEU).Footnote 5 The issues raised in the case lie at the intersection of, on the one hand, the objective of ensuring security of energy supply as a goal realized within the framework of EU energy policy and, on the other hand, the objectives of EU environmental policy set out in Article 191(1) TFEU,Footnote 6 including the associated duty to ensure a high level of protection of the environment under Article 191(2) TFEU. The factual and legal context of the Inter-Environnement Wallonie ASBL case provides a fitting arena in which to explore the relationship of concurrence, or indeed competition, between the objective of ensuring security of electricity supply and that of environmental protection, and to examine how fulfilling one objective can sometimes (possibly inadvertently) come at the expense of the other.
This case note will survey the prior assessment requirements arising from Directive 2011/92/EU on the Assessment of the Effects of Certain Public and Private Projects on the Environment (EIA Directive)Footnote 7 and Directive 92/43/EEC on the Conservation of Natural Habitats and of Wild Fauna and Flora (Habitats Directive).Footnote 8 These Directives apply to national legislative measures, such as the 2015 Law and measures adopted pursuant thereto, the annulment of which was sought in the proceedings before the BCC. Further, the case comment will explore the potential of the ‘security of electricity supply’ justification advanced by Member States as a basis for derogating from the obligations in the EIA and the Habitats Directives. In this vein, it is important to stress that what makes this case unique is that it is thus far the only case in which the Court of Justice of the EU (CJEU) has given detailed consideration to the application of the ‘security of electricity supply’ exemption within the framework of EU environmental legislation. In particular, this is a judgment in which the CJEU balances recognition of the interests of Member States in guaranteeing the security of their electricity supply (and the associated margin of appreciation in determining when said interest is under threat) with compliance with the relevant environmental protection requirements prescribed by EU law.
The terms ‘security of electricity supply’ and ‘energy security’ are not synonymous, despite their interchangeable use in scholarly works and relevant policy and legal documents.Footnote 9 For practical reasons this case comment will use the two terms interchangeably. Energy security has been defined by the United Nations Development Programme (UNDP) as ‘the continuous availability of energy in varied forms, in sufficient quantities and at affordable prices’.Footnote 10 The International Energy Agency (IEA) describes energy security as ‘the uninterrupted availability of energy sources at an affordable price’.Footnote 11 There is arguably an intrinsic link between the concepts of security of energy supply and environmental protection, demonstrated by the fact that some sources define ‘security of energy supply’ with reference to various aspects of environmental protection.Footnote 12 Likewise, Article 194(1) TFEU explicitly recognizes this link by stipulating that the aims of the EU policy on energy will be realized ‘with regard for the need to preserve and improve the environment’.Footnote 13
The ensuing analysis does not intend to cover all the issues raised in the preliminary reference proceedings before the CJEU. Rather, the case comment aims to examine critically the parts of the judgment that are relevant to the security of electricity supply/environmental protection nexus. Its analysis of the judgment is structured accordingly, as follows. After setting out the factual background to the case, the concept of ‘security of electricity supply’ is examined in general terms. The case comment then explores the capacity of the concept to act as an exemption that can justify derogation from the provisions of the EIA and the Habitats Directives. More specifically, the case comment considers the prior assessment requirements in these two Directives in the light of the possibility for national authorities to rely on the ‘security of electricity supply’ exemption and thereby escape the reach of impact assessment requirements. Finally, the concluding section reviews the follow-up judgment of the BCC delivered in March 2020 and critically reflects on the viability of ‘security of electricity supply’ as a derogation from EU environmental protection requirements, weighing up the legal and practical consequences sustained by the environment as a result of an unrestrained and injudicious use of such derogation. In this respect the case comment argues that the discretion granted to Member States in assessing whether the security of their electricity supply is under threat should be exercised with extreme caution and in highly exceptional circumstances only, thus precluding any possibility for abuse of discretion.
2. FACTUAL BACKGROUND AND QUESTIONS REFERRED FOR PRELIMINARY RULING
The request for a preliminary ruling in Inter-Environnement Wallonie ASBL was made in proceedings brought by the Belgian environmental protection associations Inter-Environnement Wallonie ASBL and Bond Beter Leefmilieu Vlaanderen ASBL before the BCC. The applicants sought the annulment of the 2015 Law adopted by Belgium's Council of Ministers.Footnote 14 The 2015 Law had two key effects. Firstly, it enabled the industrial production of electricity to continue for a period of almost 10 years at the Doel 1 nuclear power station (which previously had been shut down). Secondly, the 2015 Law provided for a deferral by 10 years of the date initially set for deactivation and cessation of industrial production of electricity at the (still active) Doel 2 nuclear power station.Footnote 15
In challenging the validity of the 2015 Law, the environmental protection associations essentially argued that adopting the 2015 Law and associated national measures intended to give it effect had breached the requirements for a prior impact assessment under relevant international conventions to which the EU is a party, as well as relevant EU legislation.Footnote 16 These legal instruments are the 1991 Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention),Footnote 17 the 1998 Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention),Footnote 18 Directive 2009/147/EC on the Conservation of Wild Birds (Birds Directive),Footnote 19 the Habitats Directive, and the EIA Directive.
The original 2003 Law, precursor to the contested 2015 Law, was adopted to implement Belgium's long-term plan for a progressive phasing out of the industrial production of electricity by fission of nuclear fuels. According to this plan, all Belgian nuclear power plants would be deactivated 40 years after the date on which they were brought into service for industrial purposes and could no longer produce electricity thereafter.Footnote 20 Under the 2003 Law, the Doel 1 and Doel 2 power stations, both built in 1975, were scheduled to cease operation in February and December 2015, respectively.Footnote 21 The provisions were made on the condition that the security of the country's electricity supply would not be threatened; if such a threat existed, the King of Belgium would be entitled to take the necessary measures to counteract the threat by Royal Order, deliberated upon by the Council of Ministers.Footnote 22
Subsequently, in a bid to address the risk of an imminent threat to the security of the country's electricity supply, the Belgian legislature passed the 2015 Law, which extended the operation period of the Doel 1 and Doel 2 nuclear power stations. The 2015 Law provides that the Doel 1 nuclear power station (no longer in operation at that time) could resume electricity production from the date of entry into force of the Law and that it will be deactivated and cease to produce electricity from 15 February 2025. The 2015 Law also provides for the Doel 2 nuclear power station (then still in operation) to be deactivated from 1 December 2025.Footnote 23 The extension of the operating periods of both power stations was part of a ‘rejuvenation’ investment plan worth approximately EUR 700 million, agreed between Electrabel, the owner-operator of the two nuclear power stations, and the Belgian state on 30 November 2015 (Agreement of 30 November 2015).Footnote 24
In this respect it is important to note that the Doel 1 and Doel 2 nuclear power stations are located on the banks of the river Scheldt and are in the vicinity of several Belgian sites protected under the Habitats Directive and the Birds Directive because of the presence of protected species of fish and cyclostomataFootnote 25 in the river.Footnote 26 Equally, it is necessary to stress the transboundary dimension of this case, in that these nuclear power stations are located only a few kilometres from the Belgian border with the Netherlands,Footnote 27 and are also close to a Dutch site that is protected under the Habitats Directive.Footnote 28
The questions that the BCC addressed to the CJEU are diverse in nature and scope. Given the considerable length of the CJEU judgment, this case comment does not examine all questions referred in the request for a preliminary ruling; rather, the analysis concentrates on select questions that are directly relevant to the relationship between security of electricity supply and environmental protection objectives. Specifically, the following sections will focus on the CJEU's responses to the questions regarding the applicability of the energy security exemption to the respective fields of application of the EIA and the Habitats Directives. The case comment will focus, firstly, on the question of whether Article 2(4) of the EIA Directive permits an exemption from the EIA requirements in Articles 2 to 8 and 11 of the Directive, so as to enable the deactivation of a nuclear power station to be postponed for overriding reasons of public interest associated with the security of a country's electricity supply.Footnote 29 The discussion will then consider the question submitted to the CJEU regarding the interpretation of the prior assessment provisions in Article 6(4) of the Habitats Directive and, in particular, whether, following these provisions and having regard to the assessments and hearings carried out in the context of the adoption of the 2015 Law, a country's electricity supply can qualify as an imperative reason of overriding public interest.Footnote 30
3. NATURE AND SCOPE OF THE ‘SECURITY OF ELECTRICITY SUPPLY’ EXEMPTION
As a complex and multi-dimensional concept, energy security has implications across a wide range of spheres – political, economic, environmental, social, and technical.Footnote 31 The dynamic and context-dependent nature of energy security is one of the main reasons why this concept has proved so difficult to define.Footnote 32 Under a narrow definition, which matches the ‘security of supply’ dimension of the concept, energy securityFootnote 33 denotes the continuous and uninterrupted availability of energy to a specific country or region.Footnote 34 As noted above, the UNDP describes energy security as ‘the continuous availability of energy in varied forms, in sufficient quantities and at affordable prices’,Footnote 35 while the IEA defines it as ‘the uninterrupted availability of energy sources at an affordable price’.Footnote 36
Authors have singled out three coexisting perspectives on energy security, based on the different policy problems and threats that each of these engage – resilience, robustness, and sovereignty.Footnote 37 All three perspectives guide the policymaking process,Footnote 38 all the while being rooted in various scientific disciplines and informed by distinct methodologies and conceptual frameworks. The measures employed to address threats and risks to energy security typically engage one or two of these perspectives. However, certain measures can have a bearing on all three perspectives.Footnote 39
Generally speaking, security of electricity supply is informed by two principal factors: (i) resource availability, which concerns the actual physical amount of a given resource available around the world (long-term security); and (ii) system reliability, which relates to the continuous supply of energy, particularly electricity, sufficient to meet consumer demand at any given time (short-term security).Footnote 40 While long-term energy security deals mainly with timely investment to supply energy in accordance with economic development and environmental needs, short-term energy security focuses on the energy system's ability to react promptly to sudden changes in the supply/demand balance.Footnote 41
Particularly relevant for the present case comment is the intrinsic connection between energy security and environmental protection, which has been recognized explicitly in a number of authoritative definitions on energy security.Footnote 42 Scholars of energy security have discerned technical feasibility, affordability, environmental protection, reliability, and security of supply as the constituent elements of the overarching concept of energy security.Footnote 43 Sustainability has also been included among the key tenets of the concept of energy security,Footnote 44 proving elemental to the claim that energy security and environmental protection are two inextricably linked goals. In the context of energy security, the importance of sustainability-related considerations is reflected in the demand for low greenhouse gas (GHG) emissions and, more generally, a minimal contribution to environmental pollution at the local, regional, and global levels.Footnote 45 In this sense it is imperative that in striving towards energy security, the underlying values of social and environmental sustainability are also considered, which in turn helps to ensure the protection of the natural environment, communities, and future generations.Footnote 46
Efforts have been made to pinpoint the scope of the concept of energy security within the unique policy setting of the EU, and particularly within the context of the EU energy policy, given the wide variety of disciplines it engages. However, the boundaries of the concept still remain fluid.Footnote 47 Article 194(1) TFEU includes security of electricity supply as one of the aims pursued by the EU energy policy, along with the following aims: ensuring the functioning of the energy market; promoting energy efficiency and energy saving; development of new and renewable forms of energy; and promoting the interconnection of energy networks. The article integrates the ‘need to preserve and improve the environment’ into the EU energy policy, thereby validating the intrinsic link between the aims pursued within the framework of EU energy and environmental policies, respectively.Footnote 48 Furthermore, Article 194(2) TFEU expressly recognizes the right of Member States to determine the conditions for exploiting their energy resources, the choice between different energy sources, and the general structure of their energy supply. Thus, it grants broad discretion to Member States, which, if not adequately framed and properly exercised, may yield unforeseeable consequences for the environment.
4. THE ‘SECURITY OF ELECTRICITY SUPPLY’ EXEMPTION IN THE CONTEXT OF THE EIA DIRECTIVE
This section explores how the ‘security of electricity supply’ exemption applies with regard to the EIA requirements that flow from the EIA Directive and the Habitats Directive. As previously noted, one aspect that distinguishes the Inter-Environnement Wallonie ASBL judgment is the structured and elaborate assessment by the CJEU of the scope of application of the ‘security of electricity supply’ exemption and the breadth of discretion accorded to Member States to invoke this exemption for the purpose of derogating from their EIA obligations.
Preliminarily, it should be noted that the CJEU concluded that national measures concerning the restarting of industrial production of electricity at a nuclear power station that had previously been shut down (Doel 1) and deferral of the date initially set for ceasing industrial production of electricity at an active power station (Doel 2), including the upgrading work inextricably linked thereto, constitute a single ‘project’ within the meaning of Article 1(2)(a) of the EIA Directive.Footnote 49 Having ascertained that the Belgian measures in question fall within the ambit of the EIA Directive, the CJEU went on to investigate whether the national authorities could invoke the energy security exemption to evade the requirements of the EIA Directive regarding the duty to carry out an EIA for projects that are likely to have a significant effect on the environment. Specifically, the CJEU was asked to interpret Article 2(4) of the EIA Directive, which provides for exemptions from the Directive's EIA regime. The question turned on whether Article 2(4) permits an exemption from the requirement to conduct an EIA for a project such as that at issue, on grounds linked with the security of a Member State's electricity supply.Footnote 50
The first subparagraph of Article 2(4) of the EIA Directive specifies that Member States may in exceptional cases exempt a specific project from the provisions of the Directive, where the application of those provisions would adversely affect the purpose of the project, provided that the Directive's objectives are met.Footnote 51 This exemption applies without prejudice to Article 7 of the EIA Directive, which deals with the obligations of Member States in the territory of which a project is intended to be carried out, which would be likely to have significant effects on the environment of another Member State.Footnote 52 The second subparagraph of Article 2(4) of the EIA Directive outlines the cumulative conditions that Member States need to fulfil in order to be able to trigger the Article 2(4) exemption: firstly, they must consider whether another form of assessment would be appropriate; secondly, they have to make publicly available the information obtained under such other form(s) of assessment, as well as the information relating to the decision granting exemption and the reasons for granting it; and, thirdly, prior to granting the consent, they must inform the European Commission of the reasons justifying the exemption. Thereafter, the Commission, in accordance with the third subparagraph of Article 2(4), is required to forward the documents received to the other Member States and report to the European Parliament and to the Council annually on the application of the relevant requirements.
The CJEU accepted that ‘it is conceivable’ that a Member State's need to ensure the security of the electricity supply could ‘amount to an exceptional case’ for the purposes of the first subparagraph of Article 2(4) of the EIA Directive, and justify exempting a project from an EIA.Footnote 53 However, the Court stated that the ability to invoke the exemption would be conditional on observing the specific obligations arising from the second subparagraph of Article 2(4), as outlined above.Footnote 54 Leaving it to the referring court to determine whether Belgium had met those obligations, the Court nevertheless acknowledged that Belgium had failed as yet to inform the Commission of granting any such exemption, pursuant to the third subparagraph of Article 2(4).Footnote 55
Further, the CJEU asserted that the Member State concerned will be permitted to rely on the Article 2(4) exemption only if it can demonstrate that the alleged risk to the security of its electricity supply is ‘reasonably probable and that that project is sufficiently urgent to justify not carrying out … an assessment’.Footnote 56 In this way the Court imposed a dual condition for justifying the absence of an EIA: firstly, the alleged risk to the security of the Member State's electricity supply should be reasonably probable and, secondly, proceeding with the particular project must be sufficiently urgent. In addition, the Court indicated that the possibility of triggering the exemption does not prejudice the Member State's transboundary assessment obligations under Article 7 of the EIA Directive.Footnote 57
The Opinion of Advocate General (AG) Kokott in the Inter-Environnement Wallonie ASBL case provides a more extensive illustration of the scope of the margin of appreciation that Member States enjoy when invoking the energy security exemption. AG Kokott argued that Article 2(4) of the EIA Directive permits an exemption from the obligation to undertake an EIA concerning a project for the extension of the period of operation of a nuclear power station, where this is necessary to avert a grave and imminent peril to an essential interest of the Member State concerned, and where the public concerned and the Commission are informed in accordance with the provisions of Article 2(4).Footnote 58 AG Kokott considered that ensuring the security of the electricity supply is an essential interest of Member States, one that can serve as grounds for exemption from the obligations of the EIA Directive only in the presence of a grave and imminent peril threatening this essential interest.Footnote 59 While the CJEU and AG Kokott defined the thresholds for activating the energy security exemption somewhat differently, neither provides clear parameters for delineating in more concrete terms the scope of Member States’ discretion in assessing whether the presence of a risk is reasonably probable and whether a proposed project to counteract that risk is sufficiently urgent; or indeed, in determining whether the presence of a grave and imminent peril threatens the security of their electricity supply as an essential national interest. As a result, Member States are accorded considerable latitude in determining, on a case-by-case basis, both the reasonable probability of the risk to the security of their electricity supply and the urgency of triggering the exemption.
5. THE ‘SECURITY OF ELECTRICITY SUPPLY’ EXEMPTION IN THE CONTEXT OF THE HABITATS DIRECTIVE
In Inter-Environnement Wallonie ASBL, the applicability of the relevant provisions of the Habitats Directive to the national measures at issue was examined in the light of the fact that the Doel 1 and Doel 2 nuclear power stations are situated on the river Scheldt and in the vicinity of several Natura 2000 sites protected under the Habitats and the Birds Directives.Footnote 60 This part of the river Scheldt hosts protected species of fish and cyclostomata.Footnote 61 The CJEU stressed that the power stations being located outside a Natura 2000 area was not a sufficient reason to exempt the ‘project’ from the requirements of the Habitats Directive.Footnote 62 In fact, as indicated by the BCC in the order for reference and highlighted in AG Kokott's Opinion,Footnote 63 some of the Natura 2000 protected sites concerned host priority habitat types and it did not appear to be ruled out a priori that these might be damaged by the nuclear power stations.Footnote 64
Because the Habitats Directive does not define the term ‘project’, the CJEU applied to that Directive the definition of ‘project’ provided in Article 1(2)(a) of the EIA Directive.Footnote 65 The Court found that the measures at issue, together with the work inextricably linked thereto, constitute a distinct project that is subject to the rules of assessment set out in Article 6(3) of the Habitats Directive, which require that a project likely to have a significant effect on the site, individually or in combination with other projects, undergo an appropriate assessment of its implications for the site, having regard to the site's conservation objectives.Footnote 66 The fact that the national authority responsible for approving the project is the legislature was considered to have no bearing on the matter.Footnote 67
After bringing the measures at issue within the ambit of Article 6 of the Habitats Directive, the CJEU considered whether the ‘security of electricity supply’ exemption fell within the scope of Article 6(4) of the Habitats Directive. This provision contains a derogation from the Article 6(3) assessment requirements and applies where, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a project must nevertheless be carried out for imperative reasons of overriding public interest.Footnote 68 Thus, according to the first subparagraph of Article 6(4), Member States are responsible for taking all the compensatory measures necessary to ensure that the overall coherence of the Natura 2000 network is protected and must thereafter inform the Commission of the compensatory measures adopted. However, by virtue of the second subparagraph of Article 6(4), where the site concerned hosts a priority natural habitat type or a priority species, the only considerations related to the overriding public interest which may be raised are those linked to human health or public safety; beneficial consequences of primary importance for the environment; or, following an opinion from the Commission, other imperative reasons of overriding public interest.
5.1. ‘Security of Electricity Supply’ as an ‘Imperative Reason of Overriding Public Interest’
The CJEU was required to consider whether, under Article 6(4) of the Habitats Directive, the objective of ensuring the security of a Member State's electricity supply constitutes an imperative reason of overriding public interest for the purposes of that provision.Footnote 69 Although the CJEU had dealt with the interpretation and application of Article 6(4) of the Habitats Directive in numerous earlier cases,Footnote 70 Inter-Environnement Wallonie ASBL is so far the only case in which the CJEU was required to examine the ‘security of electricity supply’ exemption as a ground for derogation from the strict conditions of Article 6(3). The CJEU responded by relying on the interpretive criteria commonly applied to all derogations explicitly provided in EU law. The Court emphasized that the derogation provisions in Article 6(4) must be interpreted strictly and may be applied only after the implications of the project have been analyzed in accordance with Article 6(3).Footnote 71 The Court held that, given the conservation objectives for the site in question, knowledge of the effects of the project was a necessary prerequisite for the application of Article 6(4). In the absence of such knowledge, no condition for applying the derogating provision could be assessed.Footnote 72 This is because the assessment of both the imperative reasons of overriding public interest and the existence of less harmful alternatives require a weighing up against the damage caused to the site by the project in question.Footnote 73
Because Member States can invoke the imperative reasons of overriding public interest only on the condition that compensatory measures be put in place, the Court stated that in order for the nature of the compensatory measures to be determined, the anticipated damage to the site must be precisely identified.Footnote 74 Importantly, it was apparent to the CJEU from the order for reference that the studies and hearings conducted in the course of the legislative procedure leading to the adoption of the contested measures made it possible for the national authorities to undertake an assessment that meets the requirements of Article 6(3).Footnote 75 In this sense the Court reiterated that all aspects of a project which can affect the conservation objectives of the protected sites should be identified in the light of the best scientific knowledge in the field.Footnote 76 It therefore tasked the referring court to verify, if necessary, whether the studies and hearings conducted in the context of the national legislative procedure yielded negative findings – Article 6(4) otherwise would not be considered applicable.Footnote 77
Regarding the issue of whether the objective of ensuring the security of a Member State's electricity supply constitutes an imperative reason of overriding public interest within the meaning of the first subparagraph of Article 6(4), the CJEU held that such an interest is one that is both ‘public’ and ‘overriding’ and capable of justifying proceeding with a project; furthermore, the interest must be of such importance that it can be ‘weighed against the Directive's objective of the conservation of natural habitats’ and wild fauna and flora.Footnote 78 Before determining whether the interest of ensuring the security of electricity supply meets the foregoing conditions, the Court referred to Article 194(1)(b) TFEU as a provision which identifies security of energy supply as a fundamental objective of the EU energy policy.Footnote 79 It then concluded that the objective of ensuring the security of electricity supply in a Member State at all times fulfils the aforementioned conditions.Footnote 80 Thus, according to the CJEU, the objective of ensuring the security of electricity supply should at all times be considered an imperative reason of overriding public interest for the purposes of Article 6(4).Footnote 81
By giving such unwavering deference to Member State discretion in evaluating the overriding nature of the public interest at stake in cases pertaining to security of electricity supply, the CJEU effectively made the objective of ensuring the security of electricity supply an imperative reason of overriding public interest ‘by default’ – namely, a reason that should be considered as a priori capable of outweighing the interest of preserving the habitats and species protected under the Habitats Directive.
With regard to the CJEU's interpretation of the applicability of the second subparagraph of Article 6(4) (which relates to the priority species or priority habitat types potentially affected by the measures at issue), the Court held that only the need to nullify a genuine and serious threat of rupture of a Member State's electricity supply constitutes a public security Footnote 82 ground within the meaning of that provision, such as to justify proceeding with the project.Footnote 83 Interestingly, although the BCC had noted and AG Kokott had confirmed that some of the protected areas likely to be affected by the project host priority habitat types or priority species,Footnote 84 the CJEU did not address this further and left it for the national court to establish whether the protected site likely to be affected by the project hosts a priority natural habitat type or priority species.Footnote 85 If so, this finding would activate the provisions of the second subparagraph of Article 6(4) and thus significantly shorten the list of ‘imperative reasons of overriding public interest’ that can justify proceeding with the project in question.
Regrettably, the CJEU did not provide further guidance to the national court, or other relevant national authorities, on how to proceed when determining the presence of a genuine and serious threat to the security of their Member State's electricity supply. The absence of any parameters to guide the national authorities could lead to arbitrary determinations and decisions concerning the existence of a genuine and serious threat to the security of a Member State's electricity supply.
Finally, in her Opinion in Inter-Environnement Wallonie ASBL, AG Kokott offered a unique take on the ‘security of electricity supply’ exemption as a public security ground within the meaning of Article 6(4). In AG Kokott's view, public security may be invoked as an imperative reason for overriding public interest only for the purposes of ensuring a minimum supply as opposed to the general need to ensure sufficient supply to satisfy the Member State's electricity demand.Footnote 86 AG Kokott emphasized that the distinction between the general interest in ensuring the security of electricity supply and the particular interest in securing a minimum supply is an especially important distinction.Footnote 87 In this vein she held that the BCC (the referring court) must consider whether the extension of operation of the Doel 1 and Doel 2 power stations only serves the general interest in ensuring the security of supply or whether it is in fact necessary to guarantee a minimum supply.Footnote 88 If the former, AG Kokott stated that reliance on Article 6(4) of the Habitats Directive would be possible only following a favourable opinion from the Commission.Footnote 89 She deemed the foregoing distinction to be essential in determining the ‘absence of alternative solutions’ – namely, the existence of less harmful alternatives to the project – as a derogation requirement under the first subparagraph of Article 6(4).Footnote 90 In this respect AG Kokott argued that the assessment of the absence of alternative solutions may differ depending on whether ‘the more substantial interest in ensuring a minimum supply or the less substantial general interest in security of supply’ is at stake.Footnote 91
Although formulated differently, the respective lines of reasoning offered by the CJEU and AG Kokott regarding the applicability of the energy security exemption within the context of Article 6(4) of the Habitats Directive effectively achieve the same end result: while the CJEU held that reliance on the energy security exemption is contingent on the need to nullify a genuine and serious threat of rupture of a Member State's electricity supply, AG Kokott considered the triggering of the exemption as a public security ground to be conditional on a Member State's inability to otherwise ensure a minimum electricity supply within its territory.
6. CONCLUSION
The CJEU exceptionally allowed the national court to suspend the effects of the ruling and maintain the effects of the Belgian measures, which, as the Court stated, had been adopted ‘in breach of the obligations laid down by the EIA Directive and the Habitats Directive’.Footnote 92 Maintaining the effects of those measures was considered justified in the light of the overriding considerations relating to the need to nullify a genuine and serious threat of rupture of the electricity supply in the Member State, one that cannot be remedied by any other means or alternative.Footnote 93 Furthermore, the CJEU held that the effects of the measures should be maintained for as long as strictly necessary to remedy the breach.Footnote 94
On 5 March 2020, the BCC delivered its judgment in the proceedings between the two Belgian environmental protection associations (Inter-Environnement Wallonie ASBL and Bond Beter Leefmilieu Vlaanderen ASBL) and the Council of Ministers.Footnote 95 The BCC annulled the 2015 Law, which provided for the extension of operation of the Doel 1 and Doel 2 nuclear power stations. In order to prevent the occurrence of a real and serious threat of disruption to Belgium's electricity supply and allow the national legislature to complete a new legislative procedure that would comply with the requirements for a prior EIA, public participation and cross-border consultation, the Court ruled that the effects of the annulled 2015 Law would be maintained for a time period strictly necessary to remedy the breach (until 31 December 2022 at the latest).Footnote 96
The BCC held that ensuring the security of the electricity supply as an imperative reason of general interest was the main objective of the 2015 Law.Footnote 97 Surveying the current state of Belgium's capacities for electricity production (those of nuclear origin and others), the BCC found that any threat of disruption to its electricity supply could not be offset by any means other than those already employed.Footnote 98 The BCC accepted the reality of the risk of a threat to the security of the country's electricity supply, acknowledging that such a threat would increase in the event of an immediate shutdown of electricity production from the Doel 1 and Doel 2 nuclear power stations.Footnote 99 In order to further substantiate the seriousness of the threat, the BCC considered the option of importing electricity to secure Belgium's electricity supply,Footnote 100 but found this option to be ‘limited’ given the scope and potential of the existing energy links between Belgium and neighbouring countries.Footnote 101 The fact that there had not yet been any recorded disruption to the electricity supply did not affect the findings of the BCC concerning the reality and gravity of the threat.Footnote 102
The BCC judgment closely follows the preliminary ruling of the CJEU, which fully endorsed Member States’ discretion to determine whether a threat to the security of their electricity supply is both genuine and serious, and thereafter decide on the necessary steps to counteract it. At the same time the CJEU provided little to substantiate the broad nature of this endorsement, failing to address the tension between energy security and environmental protection in the context of the present case. Moreover, while the CJEU judgment provides a well-sustained analysis of the procedural aspects of the case as far as the application of the Habitats Directive is concerned, the Court failed to take into account adequately some of its more compelling substantive aspects – namely, that damage to the protected habitats and species concerned is likely to occur as a result of the extended operation of the nuclear power stations. The CJEU did not expand on the issue of the damage that would occur, but instead simply reverted to an oft-repeated pronouncement from its previous case law which requires that the damage to the site concerned be precisely identified prior to the adoption of the compensatory measures.Footnote 103
Notwithstanding the unquestionable merit of the arguments advanced in support of the energy security exemption, it is striking how, upon inspecting whether the conditions of the second subparagraph of Article 6(4) of the Habitats Directive had been met, the CJEU did not feel compelled to elaborate further on the second cumulative condition of the first subparagraph of Article 6(4). The foregoing relates to the duty of Member States to take all the compensatory measures necessary to ensure that the overall coherence of the Natura 2000 network is protected and thereafter inform the Commission of the measures adopted. With the issue of compensatory measures central to the application of Article 6(4),Footnote 104 the CJEU regrettably neglected to provide any guidance as to the nature and scope of the compensatory measures which can be adopted in order to offset the likely negative effects on biodiversity. Equally the BCC did not devote attention to the possible nature and scope of the compensatory measures.Footnote 105 This is highly problematic given that finding adequate compensatory measures will be a critical task for the Belgian authorities during the period preceding the adoption of the new law on the extension of operation of the Doel 1 and Doel 2 nuclear power stations. In the absence of any such guidance, the question remains unclear about the types of compensatory measure the Belgian authorities will ultimately decide to implement and whether these will be fit for purpose.Footnote 106
The above analysis demonstrates that once a project related to ensuring the security of a Member State's electricity supply passes the ‘genuine and serious threat of rupture’ test, the Member State is effectively given a carte blanche to rely on the ‘security of electricity supply’ exemption. Doubtless, the CJEU judgment in Inter-Environnement Wallonie ASBL cements the ‘imperative’ and ‘overriding’ nature of the objective of ensuring the security of electricity supply, including the right of Member States to determine the conditions for exploiting their energy resources and choose the general structure of their energy supply, as these flow from Article 194 TFEU.Footnote 107 Construed in this way, the former considerations arguably take precedence over the objectives of EU environmental policy and the duty to achieve a high level of environmental protection, enshrined in Article 191 TFEU. With the risk of experiencing a grave and serious threat to the security of their electricity supply being a real predicament for Member States, the intention of the CJEU in this judgment was to give adequate weight to the ‘security of electricity supply’ exemption – provided that the exemption is framed in accordance with the relevant environmental protection requirements. Such an approach allows for a win-win scenario for both the objective of ensuring security of electricity supply and the environmental protection objective. Still, given the shortcomings in the CJEU's reasoning identified above, and pending the future steps to be taken at the national level, in this particular case it may be that security of electricity supply wins ‘a little bit more’.
