Content uploaded by Giulia Gentile
Author content
All content in this area was uploaded by Giulia Gentile on Feb 22, 2020
Content may be subject to copyright.
King’s Research Portal
DOI:
10.15166/2499-8249/125
Document Version
Publisher's PDF, also known as Version of record
Link to publication record in King's Research Portal
Citation for published version (APA):
Gentile, G. (2017). Inter-Environnement Expanded: Another Brick Out of the Wall of EU Law Supremacy?
European Papers. https://doi.org/10.15166/2499-8249/125
Citing this paper
Please note that where the full-text provided on King's Research Portal is the Author Accepted Manuscript or Post-Print version this may
differ from the final Published version. If citing, it is advised that you check and use the publisher's definitive version for pagination,
volume/issue, and date of publication details. And where the final published version is provided on the Research Portal, if citing you are
again advised to check the publisher's website for any subsequent corrections.
General rights
Copyright and moral rights for the publications made accessible in the Research Portal are retained by the authors and/or other copyright
owners and it is a condition of accessing publications that users recognize and abide by the legal requirements associated with these rights.
•Users may download and print one copy of any publication from the Research Portal for the purpose of private study or research.
•You may not further distribute the material or use it for any profit-making activity or commercial gain
•You may freely distribute the URL identifying the publication in the Research Portal
Take down policy
If you believe that this document breaches copyright please contact librarypure@kcl.ac.uk providing details, and we will remove access to
the work immediately and investigate your claim.
Download date: 22. Feb. 2020
European Papers www.europeanpap ers.eu ISSN 2499-8249
European Forum, 29 March 20 17, pp. 1-7 doi: 10.15166/2499-8249/125
Insight
Inter-Environnement
Expanded:
Another Brick Out of the Wall
of EU Law Supremacy?
Giulia Gentile*
ABSTRACT: In
Association France Nature Environnement
(judgment of 28 July 2016, case C-379/15),
the Court of Justice dealt with two issues. First, is it possible for national courts to limit the effects
of a judicial decision annulling national law contrary to EU law in the field of environmental protec-
tion? Second, are national courts obliged to make a preliminary reference to the Court of Justice in
case of doubts on the possibility to postpone the temporal effects of a judgment annulling national
law contrary to EU law? This judgment expands the
Inter-Environnement
Wallonie
case law by
granting to national courts further leeway to maintain in force the national legislation in breach of
EU law. At the same time, it also expands the
CILFIT
case law.
KEYWORDS: Art. 267 TFEU – national measures transposing EU law – Court of Justice – supremacy of
EU law – obligation to refer a preliminary ruling – Directive 2001/42/EC.
I. Introduction
The recent
Association France Nature Environnement
1 judgment departs from the es-
tablished case law on effectiveness of EU law and expands the
CILFIT
doctrine 2 on the
duty of last instance courts to refer preliminary questions to the Court of Justice. The
case originated in a preliminary reference from the French
Conseil d’Etat
during an ac-
tion seeking annulment of national law in breach of EU law. The national legislation at
* PhD Candidate, Centre of European Law, Dickson Poon School of Law, King’s College London,
giulia.gentile@kcl.ac.uk.
1 Court of Justice, judgment of 28 July 2016, case C-379/15,
Association France Nature Envi-
ronnement
. On this judgment, see also F. PANI,
L’obbligo (flessibile) di rinvio pregiudiziale e i possibili fat-
tori di un suo irrigidimento. Riflessioni in margine alla sentenza
Association France Nature Environne-
ment, in
European Papers – European Forum
,
Insight
of 29 March 2017, www.europeanpapers.eu.
2 Court of Justice, judgment of 6 October 1982, case C-283/81,
CILFIT
.
2 Giulia Gentile
issue implemented Directive 2001/42,3 which regulates the assessment of the effects of
certain plants and programmes on the environment. Notably, the questions referred by
the
Conseil d’Etat
to the Court of Justice concerned the possibility to postpone the ef-
fects of the judgment annulling the national legislation at issue, which was found to be
in breach of EU law. The
Conseil d’Etat
feared that, by annulling those national provi-
sions, a litigation flood to challenge all the measures adopted on their basis, as well as
the legal vacuum on environmental protection, would have entailed a breach of EU en-
vironmental policies.
In its judgment, the Court of Justice provided an interpretation of EU law accommo-
dating the concerns of the
Conseil d’Etat
, by allowing the latter to mitigate the temporal
effects of its annulment decision. In addition, it introduced a further hypothesis in
which preliminary ruling references are compulsory on last instance courts, such as in
case of doubts on the interpretation of the
Inter-Environnement Wallonie
case law.4
While this decision showed a remarkable example of judicial influence between su-
preme courts, at the same time, it partially overruled the case law on EU law supremacy
and the duty of last instance courts to make preliminary references to the Court of Jus-
tice. The
Association France Nature Environnement
case is therefore to be classified
among those judgments which allowed a more lenient attitude of the Court of Justice
towards national law. 5 Nevertheless, it is submitted that the lenient approach of the
Court as to national law should be used with cautiousness and supported by more de-
tailed reasoning.
II. The legal and factual background of the case
On 13 June 2012, Association France Nature Environnement brought an action before
the
Conseil d’Etat
challenging the lawfulness of Decree no. 2012-616 (the Decree),
transposing Directive 2001/42 (the Directive). By applying the Court of Justice ruling in
Seaport
,6 the
Conseil d’Etat
found that the Decree was contrary to EU law since it did
not properly transpose Art. 6, para. 3, of the Directive. This provision requires an inde-
pendent authority to issue the authorisations for environmental plans and pro-
grammes. The
Conseil d’Etat
considered that the annulment with retroactive effects of
the Decree had the risk of affecting the validity of all the measures based on it, includ-
ing not only the environmental plans and programmes, but also any other legal act hav-
ing the Decree as a legal basis. Under French administrative law, it is indeed possible to
3 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.
4 Court of Justice, judgment of 28 February 2012, case C-41/11,
Inter-Environnement Wallonie ASBL
and Terre wallonne ASBL
.
5 See
infra
.
6 Court of Justice, judgment of 20 October 2011, case C-474/10,
Seaport (NI) et al.
Inter-Environnement
Expanded: Another Brick Out of the Wall of EU Law Supremacy? 3
challenge the illegality of definitive legislative acts, such as those at issue, without tem-
poral limits. This potential scenario was deemed by the
Conseil d’Etat
as negatively af-
fecting both legal certainty and environmental protection. In the absence of a legal
framework on environmental protection, claims to obtain and/or annul environmental
licences would have been possible on the ground of the illegality of the Decree.
To avoid this situation, the
Conseil d’Etat
considered whether to make use of its
powers to adapt the temporal effects of annulment judgments and to refrain from im-
mediately setting aside the Decree as required by the settled case law of the Court of
Justice on the supremacy of EU law. By postponing the effects of the annulment judg-
ment, the adoption of new rules introducing an adequate system of administrative au-
thorities for environmental assessment would have been possible. This would have
avoided both a breach of the Directive as well as a litigation increase. Thus, the
Conseil
d’Etat
made a reference to the Court of Justice asking, first, whether a national court can
maintain in force national legislation considered in breach of EU law on the ground of
environmental protection and, second, whether national courts must make a prelimi-
nary reference whenever there is the need to determine if national provisions contrary
to EU law should be maintained temporarily in force.
III. The power of national courts to maintain in force national
provisions in breach of EU law: mitigating the supremacy of EU
law in the environmental protection sector
As established by the Court of Justice, when a national law is contrary to EU law, nation-
al courts must immediately set aside that measure to ensure the supremacy and the
full effectiveness of EU law.7 Therefore, in the case in question, the Decree should have
been immediately set aside by the
Conseil d’Etat
, in order not to damage the effective-
ness nor the supremacy of EU law.
However, relying on an extensive interpretation of the
Winner Wetten
case,8 the
Court of Justice expanded the application of the criteria established in
Inter-
Environnement
.9 Thus, it established that there are four criteria to be fulfilled by any
national measure in the field of environmental protection in order not to be immediate-
ly set aside:
i
) the provision of national law at issue must correctly transpose EU law on
environmental protection;
ii
) the adoption and coming into force of a new national leg-
islation shall not avoid the negative effects on the environmental protection arising
from the annulment of the contested provision of national law;
iii
) the annulment of the
contested national law would create a legal vacuum concerning the transposition of EU
law on environmental protection which would be more damaging to the environment;
7 For instance, Court of Justice, judgment of 5 March 1980, case C-243/78,
Simmenthal v. Commission
.
8 Court of Justice, judgment of 8 September 2010, case C-409/06,
Winner Wetten GmbH
.
9
Inter-Environnement Wallonie
, cit.
4 Giulia Gentile
iv
) the exceptional maintaining in force of the effects of the contested national law lasts
only for the period strictly necessary for the adoption of the measures remedying the
irregularity found.10 Pre-condition to apply these criteria is the existence of an “overrid-
ing consideration linked to environment protection”, having due regard to the specific
circumstances of the case.11
Hence, by considering that national courts are entitled, in extraordinary circum-
stances, to maintain into force national legislation violating EU law, the Court of Justice
has demonstrated a significant degree of openness toward the request of the
Conseil
d’Etat
. This court ultimately provided a conciliatory interpretation of national law provi-
sions with the EU law. Such judicial behaviour should be welcomed. Although it could be
judged as deferential and affecting the supremacy of EU law, it is actually able to create
a productive judicial collaboration between national courts and the Court of Justice.
For instance, the
Conseil d’Etat
was able to avoid an increase of the litigation con-
cerning the Decree as well as a legal vacuum on environmental protection while waiting
for the legislator’s intervention. As showed also by other judgments, such as
Melki
,12 the
Court of Justice has a different approach towards preliminary rulings sent by national
supreme courts. Indeed, the Court has shown a more lenient approach in answering
preliminary ruling requests sent by national supreme courts.13 Although
Association
France Nature Environnement
has provided a positive example of judicial cooperation
between the Court of Justice and a supreme court, such as the French
Conseil
d’Etat
,
some considerations raise on the appropriateness of the reasoning adopted by the
former court in this case.
IV. The expanded application of the
Inter-Environnement
case law in
Association Nature France Environnement
In
Inter-Environnement
, the Court of Justice had to consider a request from the Belgian
Conseil d’Etat
aiming at postponing the effects of a judgment annulling national legisla-
tion partially in breach of EU law. Notably, whilst the contested legislation was in breach
of the Directive (in particular, Art. 6, para. 3) on the one hand, it was correctly imple-
menting Directive 91/676/EEC on the other hand.14 The referring court considered the
national legislation at issue as non-severable, its annulment entailing not only the re-
peal of the sections in breach of the Directive but also of those correctly implementing
10
Association Nature France Environnement
, cit., paras 38-39.
11
Ibidem
, para. 43.
12 Court of Justice, judgment of 22 June 2010, case C-188/10,
Aziz Melki and Semil Abdeli
.
13 F.X. MILLET,
How much lenience for how much cooperation? On the first preliminary reference of the
French Constitutional Council to the Court of Justice
, in
Common Market Law Review
, 2014, p. 195
et seq.
14 Directive 91/676/EEC of the Council of 12 December 1991 concerning the protection of waters
against pollution caused by nitrates from agricultural sources.
Inter-Environnement
Expanded: Another Brick Out of the Wall of EU Law Supremacy? 5
Directive 91/676. In addition, it argued that the national provisions were ultimately
compatible with EU law following a positive assessment by the Commission for different
matters.15 Furthermore, the Belgian court had asked only to postpone the effects of its
annulment judgment, and not to maintain in force legislation in breach of EU law. Due
to the peculiarity of the case, the Court of Justice ruled in favour of the possibility to
adapt the temporal effect of the declaration of the illegality in relation to the national
provision found in breach of EU law.16
In
Association France Nature Environnement
, however, the situation was different.
First, the national measure at issue in this latter case was not compliant with any other
EU legislation, while in
Inter Wallonie
the national measures at issue were yet in breach
of the Directive but correctly implementing Directive 91/676. Second, in order to justify
the maintaining in force of the national legislation at issue, the
Conseil d’Etat
brought
different arguments, such as legal certainty and the potential flood of litigation. In addi-
tion, it is worth mentioning that AG Kokott offered a partially divergent opinion on this
question. Notably, in her opinion AG Kokott drew a difference between maintaining in
force
the effects of provisions contrary to EU law
and maintaining in force
decisions
concerning plans and programmes adopted pursuant to provisions contrary to EU law
.
According to AG Kokott, it would constitute a breach of EU law to maintain in force the
effects of national measures able to exclude the possibility to bring an appeal based on
a breach of Art. 6, para. 3, of the Directive.17 On the contrary, maintaining in force the
plans and the programmes adopted pursuant to provisions contrary to EU law may be
assessed on a case-by-case basis, as per the
Inter-Environnement
case-law.18
In the light of the above, it is submitted that the extension of the
Inter-Environne-
ment
case law to
Association France Nature Environnement
is not entirely justified. Alt-
hough the difference between maintaining in force
provisions contrary to EU law
and
decisions concerning
plans and programmes adopted pursuant to provisions contrary to
EU law
would seem “artificial”, this distinction would have been useful in order to ensure
the full supremacy of EU law. Indeed, by following AG Kokott’s opinion, the Court of Jus-
tice could have better distinguished between the maintaining of the effects of the provi-
sions of national law in contrast with EU law from those (at least) partially complying with
it. Also, such a distinction would have not affected the right of individuals to obtain com-
pensation from the French Government due to its violation of EU law.
The
Association France Nature Environnement
judgment has confirmed the previ-
ous case law granting a special status to environmental protection among the policies
15
Inter-Environnement Wallonie
, cit., para. 50.
16
Ibidem
, para. 63.
17
Seaport
, cit.
18 Opinion of AG Kokott delivered on 28 April 2016, case C-379/15,
Association France Nature Envi-
ronnement
.
6 Giulia Gentile
of EU law. A previous example of this kind of case-law may be found in the
Wells
case.19
Such decision was able to recognise a higher status to EU law over national law. With
Association France Nature Environnement
, the trend seems to be inverted, being na-
tional law able to still produce effects notwithstanding an annulment decision for
breach of EU law. It may be argued that since EU policies such as environmental protec-
tion have now become part of national legal systems, the Court of Justice is more willing
to grant prevalence to national law under certain constraints and circumstances. Also,
the Court appears more collaborative towards the national legislator, who has the duty
to repeal national law in contrast with EU law. Nevertheless, such attitude by the Court
should be used with cautiousness. While the lenient attitude of the Court towards na-
tional law has the positive effects mentioned above, the risk of affecting the uniform
application of EU law should not be underestimated.
V.
CILFIT
revisited?
The second issue arising in the context of
Association Nature
was whether a national
court must make a reference for a preliminary ruling before using the exceptional pow-
er enabling it to maintain certain effects of a national measure incompatible with EU
law. According to the Treaties, while lower courts are not subject to an obligation to
make a reference for a preliminary ruling to the Court of Justice whenever there is a
doubt on the interpretation of EU law to be applied in a pending case, 20 last instance
courts have such an obligation.21 All national courts are subject to the obligation to
make a preliminary request to the Court of Justice when there are doubts as to the va-
lidity of EU law.22 In
CILFIT
,23 the Court established that there are three situations in
which courts against whose decisions there is no judicial remedy are not obliged to
make a preliminary ruling request:
i
) when there is no reasonable doubt as to the in-
terpretation of EU law;
ii
) when the same question has been the object of a previous
judgment of the Court and
iii
) when the question is irrelevant to solve the case.
After recalling this case law, in
Association France Nature Environnement
the Court of
Justice held that courts against whose decisions there is no judicial remedy
are in principle
required
24
to make a reference for a preliminary ruling to the Court to assess whether
national measures, found to be incompatible with EU law, may be temporarily maintained
in force for overriding considerations related to environment protection. Such an obliga-
19 Court of Justice, judgment of 7 January 2004, case C-201/02,
Wells
.
20 Art. 267, para. 1, TFEU.
21 Art. 267, para. 3, TFEU.
22 Court of Justice, judgment of 22 October 1987, case C-314/85,
Foto-Frost
.
23
CILFIT
, cit.
24
Association France Nature Environnement
, cit., para. 53.
Inter-Environnement
Expanded: Another Brick Out of the Wall of EU Law Supremacy? 7
tion does not exist only when such national courts have no reasonable doubts as to the
interpretation and the application of the
Inter-Environnement Wallonie
criteria.
On the basis of this judgment, it can be inferred that the Court of Justice has intro-
duced a specific hypothesis in which national courts of last instance shall make a refer-
ence to the Court for the interpretation of EU law. The underlying reason is to be found
in the relevance attributed to the environmental protection among EU policies and in
the potential damaging effect of a ruling of last instance courts for the uniform applica-
tion of EU law. At the same time, the Court of Justice did not introduce a general obliga-
tion for national courts to make preliminary references in such a case. However, it is
submitted that this obligation should have been introduced also for other national
courts in order to preserve the uniform application of EU law.
VI. Conclusion
Association France Nature Environnement
is an example of the renewed judicial collabo-
ration between the Court of Justice and national supreme courts. It seems that the for-
mer is willing to provide an interpretation of EU law which is more accommodating to-
wards national exigencies and policies. In this case two issues arose: first, whether na-
tional courts are allowed not to immediately set aside national legislation in contrast
with EU law but to mitigate the temporal effects of the decision annulling such legisla-
tion. Second, the potential overruling of the
CILFIT
case-law concerning the obligation of
courts of last instance to make a reference for a preliminary ruling question to the Court.
In relation to the first issue, by providing an extensive interpretation of previous
case law, the Court of Justice showed significant openness toward the request of the
Conseil d’Etat
. Indeed, it ruled in favour of the possibility to postpone the temporal ef-
fects of a decision annulling national legislation in contrast with EU law. As to the sec-
ond issue, the Court reiterated the
CILFIT
case law and introduced an additional situa-
tion in which national courts of last instance must make a reference for a preliminary
ruling to the Court of Justice, i.e. when there are doubts as to the application of the
In-
ter-Environnement Wallonie
case law.
To conclude,
Association Nature France Environnement
is another decision in which
the Court of Justice has mitigated the principles of supremacy and effectiveness of the
EU. On the basis of this trend, one might wonder whether these principles will be re-
shaped by the Court of Justice case law in the coming years. The current European polit-
ical context might suggest so.