Belgium bitten by Aarhus – again

19 February 2012 by David Hart KC

Solvay, CJEU, 16 February 2012 read judgment

This case is a sequel to C-128/09 Boxus, CJEU, 18 October 2011, for which see my post. Boxus was a reference from the Belgian Conseil d’Etat. Solvay was a reference from the Belgian Constitutional Court, with a wide set of questions asking, in effect, whether ratification by the Walloon Parliament of various airport and railway projects got round various challenges set by the Aarhus Convention, the EIA Directive, as amended, and the Habitats Directive.

The answer was, unsurprisingly the same as that given in Boxus – not really, need to do more than send it through parliament. But we learn a few extra things. First, the uncompromising nature of the parliamentary decree:

‘Article 1. Overriding reasons in the public interest have been established for the grant of town-planning consents, environmental consents and combined consents relating to the following acts and works:

1.      Acts and works for the improvement of the infrastructure and public buildings of the regional airports of Liège-Bierset and Brussels South Charleroi, as follows..

Job done, so our Wallonian parliamentarians seem to have thought. Pity about the small matter of the various directives which require rather more than a parliamentary say-so before consent is granted. We also learn of another development underpinned,  it is said, with overriding reasons in the public interest:  “the creation of infrastructure intended to accommodate the management centre of a private company”. We are not told why the Wallonian parliament consider that this private company, whoever it may be, is so special that its proposed offices need to take over a bit of a site designated as either a Special Protection Area for birds or a Special Area of Conservation for habitats more generally.  The CJEU approached this one warily:

76      Works intended for the location or expansion of an undertaking satisfy those conditions only in exceptional circumstances.

77      It cannot be ruled out that that is the case where a project, although of a private character, in fact by its very nature and by its economic and social context presents an overriding public interest and it has been shown that there are no alternative solutions.

78      In the light of those criteria, the mere construction of infrastructure designed to accommodate a management centre cannot constitute an imperative reason of overriding public interest within the meaning of Article 6(4) of the Habitats Directive.

Short point – why do the posh offices of some company (say, a multinational whom the Walloons wanted to lure into their territories) have to be there, rather than in some place that does not threaten a habitat? Question unanswered – and unanswerable, one would have thought. There has to be a possible alternative to an office; it is hardly like some public infrastructure project that may to be in a particular place – think of a new railway to, say, Manchester, where there are only so many routes where the track can go.

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