Council of State submits questions for a preliminary ruling to the Court of Justice of the European Union on “proactive urban and regional planning” for Antwerp port development

Council of State submits questions for a preliminary ruling to the Court of Justice of the European Union on “proactive urban and regional planning” for Antwerp port development

In two decisions of 13 July 2015, the Council of State submitted requests for preliminary rulings to the Court of Justice of the European Union concerning the compatibility of the Gewestelijk Ruimtelijk Uitvoeringsplan (GRUP - regional land use plan) "Delineation of the Antwerp seaport zone" (decisions no. 231.933 and no. 231.934) with the European Habitats Directive.

That “GRUP” provides for the expansion of the port of Antwerp on the left bank of the Scheldt river, including in areas that fall under the strict protection regime of the “fitness check” in the Habitats Directive (the so-called “special protection areas”).

In December 2013, the Council of State had already suspended an earlier version of the GRUP because the package of nature measures it provided for, more specifically the development of "robust nature" in so-called "core natural areas", was prima facie insufficient. According to the Council, the measures prima facie could not prevent the natural characteristics of the special protection areas in the plan area from being substantially affected. From the urban development rules of the GRUP, moreover, it did not appear that the realisation of the core natural area in the northern part of the left bank of the Scheldt necessarily had to take precedence over the port development (decision no. 225.676).   

The current version of the GRUP seeks to comply with this decision of the Council of State by providing for a specific phasing mechanism in its urban development prescriptions. More particularly, the actual urban development of the port area could only take place after setting up a sustainable natural habitat over the entire "core nature area", such as this is necessary for maintaining the special protection area involved.

The Council of State submitted to the Court of Justice of the European Union the question of how this technique relates to the “fitness check” in the Habitats Directive. More specifically, the question arises whether the prescriptions in question fall under the third paragraph (i.e. the determination of the possible significant consequences on a special protection area), or the fourth paragraph of the “fitness check” in article 6 of the Habitats Directive (namely, whether these regulations must be regarded as “compensating measures”, provided that the strict conditions in this article are satisfied). The answer of the Court of Justice of the European Union will be of great importance for the result in this case, given that in practice it often appears to be very difficult to meet the strict conditions of article 6.4e paragraph of the Habitats Directive.

For more information on this subject, you can consult Kristof Hectors and Barbara Bastiaensen (authors).