Court of Justice rules on priority of ‘substantial’ v ‘procedural’ EU environmental law

28 February: Third ECJ judgment in the Terre Wallonne trilogy: can a national court temporarily uphold the effects of a national measure which, following an ECJ judgment, has been found to be illegal under the EIA Directive, with a view to avoiding the Member State being found to have violated the nitrates Directive? Those with a sense of drama pitched this as a battle between ‘procedural’ (EIA) and ‘substantial’ (Nitrates) EU environmental law (it is in this sense that this judgment is likely to have most precedent value).

Answer of the Court in Case C-41/11: YES, subject of course to conditions (including, which is a tricky assessment for the national court to make, having to find that complete annulment of the illegal measure would make the environment worse off.

One can imagine many other scenarios in almost all areas of EU law where this judgment will be called upon by those wanting to derive rights from illegal (under EU law) national measures which arguably uphold ‘higher’ ranking EU law.

Geert.

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