C-567/10 Inter-Environnement Bruxelles and Others: strategic environmental assessment also in case of revocation of a plan?

The Constitutional Court of Belgium sent the following question to Luxembourg(1):
"Must the definition of 'plans and programmes' in Article 2(a) 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 be interpreted as excluding from the scope of that directive a procedure for the total or partial repeal of a plan such as that applicable to a 'plan particulier d'affectation du sol' (specific land-use plan), provided for in Articles 58 to 63 of the Code bruxellois de l'Aménagement du Territoire (Brussels Town and Country Planning Code)?"

The answer is not obvious as the SEA Directive(2) does not speak expressly of revocation or repeal of a plan or programme, but does include "any modifications to them" in the definition of the notion(3). This could obviously include a total revocation (after all, that is also a "modification"), and certainly a partial revocation (as that leaves part of the plan or program in force). On the other hand, the idea behind the SEA Directive (and environmental impact assessment in general) is to make sure that before "something" is adopted and put to life, the potential environmental effects of that "something" are assessed so that the "something" is adopted and put to life in a manner that is as environmentally-friendly as possible. If a plan or programme is revoked, nothing is put to life, i.e. there can be no environmental effects.

Or, can there be?

It seems that at least one European court thinks so. In the so-called Cala Homes judgment of 10 November 2010(4), Mr Justice Sales of the UK's High Court of Justice (Queen's Bench Division, Administrative Court) said this (para 62):
All the existing Regional Strategies were made the subject of environmental assessment before they were adopted, no doubt because of the practical impact they would inevitably have by setting part of the framework for decision-making in planning cases. I can see no sound basis for the contention (…) that revocation of Regional Strategies does not equally require at least consideration under Regulation 9 whether similar detailed environmental assessment is required. The revocation of a Regional Strategy may have as profound practical implications for planning decisions as its adoption in the first place.

Let us see what the EU Court of Justice has to say.


(1) The preliminary questions submitted by the Constitutional Court were published in OJ C 63 from 26.02.2011, p.22.
(2) 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.
(3) Článek 2 písm. a).
(4) Case No: CO/8474/2010.