No space for illegal development: CJEU clarifies EIA and SEA remedies

The CJEU clarified that project consents granted based on plans or programmes that bypassed the Strategic Environmental Assessment (SEA) Directive must generally be annulled, regardless of whether construction has already started. The Court reaffirmed that exceptions to this rule—such as avoiding an environmental legal vacuum or ensuring the security of energy supply—must be interpreted narrowly and cannot be used to justify the continued operation of a limited number of wind turbines.

• The CJEU confirmed that a plan or programme falls under the SEA Directive if the authority has the power to adopt it, regardless of whether there is a legal requirement to do so. In the specific case of C-24/19, a 2006 regional government order and a ministerial circular regarding wind farm conditions (including noise and shadow flicker) were deemed plans/programmes that required an SEA.
• Project consents granted based on a plan or programme that failed to undergo an SEA must be suspended or annulled to eliminate the unlawful consequences of the breach of EU law. This requirement for annulment applies even if the construction of the project has already commenced.
• The Court identified two narrow exceptions where national judges may maintain the effects of a plan or permit until an SEA is completed: when annulment would create a legal vacuum harming the environment, or when continued operation is necessary for the security of energy supply of the Member State as a whole. In the case of the Belgian wind farm, neither exception applied because annulling the consents did not create a detrimental legal vacuum, and the cessation of a limited number of turbines would not significantly impact the national electricity supply.
• The judgement serves as a warning against attempting to bypass EIA and SEA requirements by establishing 'facts on the ground' through the start of construction, noting that such practices violate EU law and may lead to penalty payments by the CJEU.

APA

Bechtel, S. (2020). No space for illegal development: CJEU clarifies EIA and SEA remedies. ClientEarth. https://www.clientearth.org/projects/access-to-justice-for-a-greener-europe/updates-annual-newsletters/no-space-for-illegal-development-cjeu-clarifies-eia-and-sea-remedies/

Chicago

Bechtel, Sebastian. No space for illegal development: CJEU clarifies EIA and SEA remedies. ClientEarth, 2020. https://www.clientearth.org/projects/access-to-justice-for-a-greener-europe/updates-annual-newsletters/no-space-for-illegal-development-cjeu-clarifies-eia-and-sea-remedies/.

Wikipedia

{{cite report |last1=Bechtel |first1=Sebastian |title=No space for illegal development: CJEU clarifies EIA and SEA remedies |publisher=ClientEarth |date=28 August 2020 |url=https://www.clientearth.org/projects/access-to-justice-for-a-greener-europe/updates-annual-newsletters/no-space-for-illegal-development-cjeu-clarifies-eia-and-sea-remedies/ |access-date=23 October 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{bechtel2020space, author = {Bechtel, Sebastian}, title = {{No space for illegal development: CJEU clarifies EIA and SEA remedies}}, institution = {ClientEarth}, year = {2020}, month = aug, url = {https://www.clientearth.org/projects/access-to-justice-for-a-greener-europe/updates-annual-newsletters/no-space-for-illegal-development-cjeu-clarifies-eia-and-sea-remedies/}, urldate = {2026-10-23}, note = {Indexed by Climate Insights Directory} }