Provisional text
JUDGMENT OF THE COURT (Fifth Chamber)
24 September 2026 ( * )
[para_4]( Reference for a preliminary ruling – Environment – Aarhus Convention – Article 6 – Public participation in decisions on specific activities – Extension of the duration of the validity of a permit to operate a wind farm – Obligation to organise a public participation phase prior to that extension )
In Case C‑151/25 [Viaudret], ( i )
[para_6]REQUEST for a preliminary ruling under Article 267 TFEU from the Conseil d’État (Council of State, Belgium), made by decision of 12 February 2025, received at the Court on 20 February 2025, in the proceedings
[para_7]F.B.
[para_8]v
[para_9]Région wallonne,
[para_10]third parties:
[para_11]Parc éolien de Leuze-en-Hainaut SA,
[para_12]e-NosVents SA,
[para_13]Electrabel SA,
[para_14]THE COURT (Fifth Chamber),
[para_15]composed of M.L. Arastey Sahún, President of the Chamber, J. Passer (Rapporteur), E. Regan, D. Gratsias and B. Smulders, Judges,
[para_16]Advocate General: L. Medina,
[para_17]Registrar: A. Calot Escobar,
[para_18]having regard to the written procedure,
[para_19]after considering the observations submitted on behalf of:
[para_20]– F.B., by J. Sambon, avocat,
[para_21]– Electrabel SA, by T. Hazard and D. Vermer, avocats,
[para_22]– the Belgian Government, by S. Baeyens, P. Cottin and C. Pochet, acting as Agents,
[para_23]– the European Commission, by I. Melo Sampaio, D. Milanowska and G. Wils, acting as Agents,
[para_24]after hearing the Opinion of the Advocate General at the sitting on 18 December 2025,
[para_25]gives the following
Judgment
[para_27]1 This request for a preliminary ruling concerns the interpretation of Article 6(1) and (10) of, and paragraphs 20 and 22 of Annex I to, the Convention on access to information, public participation in decision-making and access to justice in environmental matters, signed at Aarhus on 25 June 1998, and approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p. 1; ‘the Aarhus Convention’).
[para_28]2 The request has been made in proceedings between F.B., a person residing close to a wind farm, and the Région wallonne (Walloon Region, Belgium) concerning a decision by which the competent technical officer of the Région wallonne extended by 10 years the period of validity of a permit authorising the operation of that wind farm.
Legal context
International law
3 Article 1 of the Aarhus Convention, entitled ‘Objective’, provides:
[para_32]‘In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention.’
[para_33]4 Article 6 of that convention, entitled ‘Public participation in decisions on specific activities’, provides:
[para_34]‘1. Each Party:
[para_35](a) shall apply the provisions of this article with respect to decisions on whether to permit proposed activities listed in Annex I;
[para_36](b) shall, in accordance with its national law, also apply the provisions of this article to decisions on proposed activities not listed in Annex I which may have a significant effect on the environment. To this end, Parties shall determine whether such a proposed activity is subject to these provisions;
[para_37](c) May decide, on a case-by-case basis if so provided under national law, not to apply the provisions of this article to proposed activities serving national defence purposes, if that Party deems that such application would have an adverse effect on these purposes.
[para_38]2. The public concerned shall be informed, either by public notice or individually as appropriate, early in an environmental decision-making procedure, and in an adequate, timely and effective manner, inter alia, of:
(a) the proposed activity and the application on which a decision will be taken;
(b) the nature of possible decisions or the draft decision;
(c) the public authority responsible for making the decision;
(d) the envisaged procedure, including, as and when this information can be provided:
(i) the commencement of the procedure;
(ii) the opportunities for the public to participate;
(iii) the time and venue of any envisaged public hearing;
[para_46](iv) an indication of the public authority from which relevant information can be obtained and where the relevant information has been deposited for examination by the public;
[para_47](v) an indication of the relevant public authority or any other official body to which comments or questions can be submitted and of the time schedule for transmittal of comments or questions; and
[para_48](vi) an indication of what environmental information relevant to the proposed activity is available; and
[para_49](e) the fact that the activity is subject to a national or transboundary environmental impact assessment procedure.
[para_50]3. The public participation procedures shall include reasonable time-frames for the different phases, allowing sufficient time for informing the public in accordance with paragraph 2 above and for the public to prepare and participate effectively during the environmental decision-making.
[para_51]4. Each Party shall provide for early public participation, when all options are open and effective public participation can take place.
[para_52]5. Each Party should, where appropriate, encourage prospective applicants to identify the public concerned, to enter into discussions, and to provide information regarding the objectives of their application before applying for a permit.
[para_53]6. Each Party shall require the competent public authorities to give the public concerned access for examination, upon request where so required under national law, free of charge and as soon as it becomes available, to all information relevant to the decision-making referred to in this article that is available at the time of the public participation procedure, without prejudice to the right of Parties to refuse to disclose certain information in accordance with Article 4(3) and (4). The relevant information shall include at least, and without prejudice to the provisions of Article 4:
[para_54](a) a description of the site and the physical and technical characteristics of the proposed activity, including an estimate of the expected residues and emissions;
[para_55](b) a description of the significant effects of the proposed activity on the environment;
[para_56](c) a description of the measures envisaged to prevent and/or reduce the effects, including emissions;
(d) a non-technical summary of the above;
(e) an outline of the main alternatives studied by the applicant; and
[para_59](f) in accordance with national legislation, the main reports and advice issued to the public authority at the time when the public concerned shall be informed in accordance with paragraph 2 above.
[para_60]7. Procedures for public participation shall allow the public to submit, in writing or, as appropriate, at a public hearing or inquiry with the applicant, any comments, information, analyses or opinions that it considers relevant to the proposed activity.
[para_61]8. Each Party shall ensure that in the decision due account is taken of the outcome of the public participation.
[para_62]9. Each Party shall ensure that, when the decision has been taken by the public authority, the public is promptly informed of the decision in accordance with the appropriate procedures. Each Party shall make accessible to the public the text of the decision along with the reasons and considerations on which the decision is based.
[para_63]10. Each Party shall ensure that, when a public authority reconsiders or updates the operating conditions for an activity referred to in paragraph 1, the provisions of paragraphs 2 to 9 of this Article are applied mutatis mutandis, and where appropriate.
[para_64]…’
[para_65]5 Paragraphs 20 to 22 of Annex I to that convention, entitled ‘List of activities referred to in Article 6(1)(a)’, are worded as follows:
[para_66]‘20. Any activity not covered by paragraphs 1 to 19 above where public participation is provided for under an environmental impact assessment procedure in accordance with national legislation.
[para_67]21. The provision of Article 6, paragraph 1(a) of this Convention, does not apply to any of the above projects undertaken exclusively or mainly for research, development and testing of new methods or products for less than two years unless they would be likely to cause a significant adverse effect on environment or health.
[para_68]22. Any change to or extension of activities, where such a change or extension in itself meets the criteria/thresholds set out in this annex, shall be subject to Article 6(1)(a) of this Convention. Any other change or extension of activities shall be subject to Article 6(1)(b) of this Convention.’
European Union law
Directive 2011/92/EU
[para_71]6 Article 1(2)(a) of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’), provides:
[para_72]‘For the purposes of this Directive, the following definitions shall apply:
(a) “project” means:
[para_74]– the execution of construction works or of other installations or schemes,
[para_75]– other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources’.
7 Article 2(1) of that directive provides:
[para_77]‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’
8 Under Article 4(1) and (2) of the directive:
[para_79]‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.
[para_80]2. Subject to Article 2(4), for projects listed in Annex II, Member States shall determine whether the project shall be made subject to an assessment in accordance with Articles 5 to 10. …’
[para_81]9 Annex II to that directive lists the projects referred to in Article 4(2) of that directive. Paragraphs 3 and 13 of that annex provide:
[para_82]‘3. Energy industry
[para_83]…
[para_84](i) Installations for the harnessing of wind power for energy production (wind farms);
[para_85]…
[para_86]13. (a) Any change or extension of projects listed in Annex I or this Annex, already authorised, executed or in the process of being executed, which may have significant adverse effects on the environment (change or extension not included in Annex I);
[para_87]…’
Directive 2010/75/EU
[para_89]10 Article 2 of Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control) (OJ 2010 L 334, p. 17), entitled ‘Scope’, provides, in paragraph 1, that the directive ‘shall apply to the industrial activities giving rise to pollution referred to in Chapters II to VI’.
[para_90]11 Article 10 of that directive appears in Chapter II thereof, which contains the ‘provisions for activities listed in Annex I’. That article, entitled ‘Scope’, provides that Chapter II ‘shall apply to the activities set out in Annex I and, where applicable, reaching the capacity thresholds set out in that Annex’.
[para_91]12 Chapters III to VI of that directive contain special provisions applicable, respectively, to combustion plants, waste incineration plants and waste co-incineration plants, installations and activities using organic solvents, and installations producing titanium dioxide.
[para_92]13 Annex I to that directive lists the categories of activities referred to in Article 10 thereof.
Belgian law
Decree of 23 June 2016
[para_95]14 Article 89 of the décret de la Région wallonne du 23 juin 2016, modifiant le Code de l’Environnement, le Code de l’Eau et divers décrets en matière de déchets et de permis d’environnement (Decree of the Walloon Region of 23 June 2016 amending the Environmental Code, the Water Code and various decrees on waste and environmental permits) ( Moniteur belge of 8 July 2016, p. 42773; ‘the decree of 23 June 2016’), amended Article 50 of the décret de la Région wallonne du 11 mars 1999, relatif au permis d’environnement (Decree of the Walloon Region of 11 March 1999 on environmental permits) ( Moniteur belge of 8 June 1999, p. 21114), by providing that, by way of derogation from the 20-year period granted in principle for an environmental permit, such a permit is to be granted for a maximum of 30 years if it relates to a wind turbine.
[para_96]15 According to the first paragraph of Article 109 of the Decree of 23 June 2016, that Article 89, relating to the duration of an environmental permit for a wind turbine, applies to applications for permits submitted after the entry into force of that decree, namely from 1 August 2016.
[para_97]16 Regarding permits that were valid before 1 August 2016, the second paragraph of Article 109 of the decree provides:
[para_98]‘Permits for wind turbines that were valid or under consideration before the entry into force of this decree may be extended once for the maximum intermediate duration between the maximum duration that may be granted for their activity under Article 89 of this Decree and the maximum duration of 20 years provided for in the first paragraph of Article 50(1). The Government shall lay down the detailed rules and procedure applicable to applications for extension.’
The decision of the Walloon Government of 20 April 2017
[para_100]17 The second paragraph of Article 109 of the Decree of 23 June 2016 was implemented by Articles 2 to 4 of the arrêté du gouvernement wallon du 20 avril 2017, modifiant l’arrêté du 4 juillet 2002 relatif à la procédure et à diverses mesures d’exécution du décret du 11 mars 1999 relatif au permis d’environnement et portant exécution des articles 108 et 109 du décret du 23 juin 2016 modifiant le Code de l’Environnement, le Code de l’Eau et divers décrets en matière de déchets et de permis d’environnement (Decision of the Walloon Government of 20 April 2017 amending the Decision of 4 July 2002 on the procedure and various measures for implementing the Decree of 11 March 1999 on environmental permits and implementing Articles 108 and 109 of the Decree of 23 June 2016 amending the Environmental Code, the Water Code and various decrees on waste and environmental permits ( Moniteur belge of 5 May 2017, p. 54977)).
18 Article 2 of that decision is worded as follows:
[para_102]‘An application for an extension of an environmental permit or a single permit referred to in the second paragraph of Article 109 of the Decree of 23 June 2016 … shall be submitted at least 60 days before the expiry of the environmental permit or single permit the extension of which is requested. The application shall be addressed to the technical officer referred to in Article 111 of the Decision of the Walloon Government of 4 July 2002 on the procedure and various measures for implementing the Decree of 11 March 1999 on environmental permits.
The application shall include:
1° the surname, forename and address of the applicant;
[para_105]2° if the applicant is a legal person, its name or company name, legal form, address of registered office and surname, forename, address and position of the person authorised to submit the application;
[para_106]3° the references, subject and date of the decision granting the environmental permit or single permit the extension of the validity of which is requested;
[para_107]4° the reasons for the application for extension and the duration for which it is requested.
[para_108]The application for extension referred to in subparagraph 1 shall be submitted using a form, the model for which shall be laid down by the Minister for the Environment.’
19 Under Article 3 of that decision:
[para_110]‘If he or she is not the competent authority, the technical officer shall send his or her opinion to the competent authority at first instance within 20 days of receipt of the application.’
20 Article 4 of the decision provided:
[para_112]Ԥ1. The competent authority shall send its decision to the applicant within 20 days of receipt of the opinion of the technical officer.
The competent authority at first instance shall simultaneously inform by ordinary mail:
[para_114]1° where they are not the competent authority, the technical officer and the officer by delegation;
[para_115]2° where it is not the competent authority, the municipal administration referred to in Articles 16 or 81 of the Decree;
3° the supervising officer;
[para_117]4° the authorities and administrations consulted during this procedure.
[para_118]§2. If the technical officer is the competent authority, he or she shall send the applicant his or her decision within 50 days of receipt of the application for extension. At the same time as his or her decision, he or she shall inform the delegated officer where the application concerns a single permit.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
[para_120]21 On 22 July 2008, the company Parc Éolien de Leuze-en-Hainaut SA submitted an application for a single permit, namely a permit combining an environmental permit and an urban development permit, the purpose of which was the construction and operation of a park of 13 wind turbines.
[para_121]22 By ministerial decision of 28 August 2009, the permit applied for was granted for 10 wind turbines, following which the wind farm was built and put into operation. That permit having been annulled by the Conseil d’État (Council of State, Belgium) on 16 April 2014, a new single permit for the same wind turbines was granted on 8 September 2014, which was also annulled by a judgment of the Conseil d’État (Council of State) of 25 January 2017.
[para_122]23 By ministerial decision of 6 June 2017, a new single permit was granted for the same wind turbines, for a term expiring on 28 August 2029, an action for annulment brought against that permit having been dismissed by the Conseil d’État (Council of State) on 29 March 2022.
[para_123]24 On 6 January 2020, one of the new operators of the park, in agreement with its other operators, submitted an application for an extension of the single permit for a term expiring on 28 August 2039.
[para_124]25 By decision of 2 April 2020 (‘the extension decision’), the competent technical officer extended the period of validity of the permit until 28 August 2039. That decision was displayed in the municipalities concerned. In accordance with the applicable regional legislation, however, no public participation phase was organised prior to the adoption of that decision.
[para_125]26 By application of 30 April 2021, F.B. brought an action for annulment of that decision. He submits, inter alia, in that regard, that a decision to amend the operating conditions of a wind farm cannot be taken without the prior organisation of a public participation phase, as provided for by the Aarhus Convention.
[para_126]27 The Conseil d’État (Council of State), the referring court, before which the action was brought, states that, in its opinion on the preliminary draft decision which resulted in the decision of the Walloon Government of 20 April 2017 referred to in paragraph 17 of the present judgment, the legislative section of the Conseil d’État (Council of State) had stated as follows:
[para_127]‘… The words “where appropriate” in [Article 6(10) of the Aarhus Convention] do not appear to be capable of being understood as leaving the Parties free and full choice whether or not to apply paragraphs 2 to 9 of Article 6 where the situation referred to in paragraph 10 arises. Rather, they must be understood as requiring a public participation procedure prior to the adoption of any decision to reconsider or update the operating conditions for an activity which is either listed in Annex I to the Convention or not listed therein but which must be regarded as capable of having a significant effect on the environment.
[para_128]…
[para_129]A decision which extends the duration of validity of a permit granted for an activity which is listed in Annex I to the Convention or is to be regarded as capable of having a significant effect on the environment falls within the scope of Article 6(10) of the Convention: indeed, it alters the operating conditions for that activity.
[para_130]Therefore, it must be subject to a public participation procedure in accordance with the provisions of Article 6(2) to (9) of the convention.’
[para_131]28 The referring court points out that the Walloon Government did not follow that opinion and did not provide for a fresh public participation procedure prior to a decision to extend the duration of validity of a permit relating to the operation of wind turbines, on the grounds, in essence, that (i) the non-organisation of a public participation procedure makes it possible to avoid discrimination arising between, on the one hand, permits which were valid or under consideration before 1 August 2016, which had a maximum duration of 20 years but in respect of which it was possible, on a transitional basis, to submit an application for an extension in order to benefit from the same legal regime as the permits the application for which had been examined after that date, and, on the other hand, the permits the application for which had been examined after that date, for which a maximum period of validity of 30 years is provided for; (ii) the public has already had the opportunity to express its views on the initial project irrespective of its duration, that is to say, taking into account only its potential impact over an indefinite period, and (iii) the original conditions under which the activity is carried out are not altered.
[para_132]29 Nevertheless, the referring court considers, in the first place, that the plea alleging infringement of Article 6(10) of the Aarhus Convention is admissible in so far as that provision sets out objectively the situations envisaged and the obligations on the authorities, and leaves no discretion to the Member States where an activity listed in Annex I to that convention is at issue and, consequently, has the characteristics which confer on it direct effect in the domestic legal order, at least as regards the activities referred to in Annex I.
[para_133]30 In the second place, that court finds that, in the present case, it is not disputed that the environmental permit granted for the wind farm by the ministerial decision of 6 June 2017 falls within the scope of Article 6(1)(a) of the Aarhus Convention, since it is covered by paragraph 20 of Annex I thereto as an authorisation subject, under Walloon law, to an environmental impact assessment procedure involving a public participation phase.
[para_134]31 However, that court has doubts as to the legal classification of the extension decision. In that regard, it considers that it is a decision to which Article 6(2) to (9) of the Aarhus Convention is applicable, if that decision can be classified as:
[para_135]– the authorisation of an activity listed in Annex I referred to in Article 6(1)(a) of the Aarhus Convention, or a modification or extension of that activity as referred to in paragraph 22 of Annex I to that convention; or
[para_136]– the authorisation of an activity not listed in Annex I but which may have a significant effect on the environment, as referred to in Article 6(1)(b) of that convention; or
[para_137]– a decision to reconsider or update the operating conditions for an activity referred to in Article 6(1), within the meaning of Article 6(10).
[para_138]32 In those circumstances, the Conseil d’État (Council of State) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
[para_139]‘In a legal system in which the [exercise] of an activity referred to in Annex I to the Aarhus Convention requires an operation permit granted for a maximum period of 20 years[:]
[para_140]– Must Article 6(1) and (10) [of,] and [paragraphs] 20 and 22 of Annex I to the Aarhus Convention be interpreted as meaning that a decision to extend by 10 years the [exercise] of the activity initially authorised for 20 years must be subject to a public participation phase?
[para_141]– Must Article 6(1) and (10) of the Aarhus Convention be interpreted as meaning that a legal system in which the procedure for extending the exercise of the activity by 10 years never involves a public participation phase is not compatible with that article?’
Consideration of the questions referred
[para_143]33 By its questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 6(1) and (10) of the Aarhus Convention must be interpreted as precluding national legislation under which a decision to extend by 10 years the duration of a permit for an activity listed in Annex I to that convention, initially granted for a period of 20 years, does not involve a public participation phase.
[para_144]34 As a preliminary point, it should be noted that a decision to extend the duration of validity of a permit to exercise an activity such as that at issue in the main proceedings, namely a wind farm, is not covered by either Directive 2011/92 or Directive 2010/75.
[para_145]35 First, as the European Commission observes, in essence, in its written observations, although, under Article 2(1) of Directive 2011/92, read in conjunction with Article 4(2) thereof and point (i) of paragraph 3 of Annex II thereto, wind farms fall within the scope of that directive, it is apparent from the case-law of the Court that the mere renewal of an existing permit to operate an installation listed in Annex I or II to that directive cannot, in the absence of any works or interventions involving alterations to the physical aspect of the site, be classified as a ‘project’ within the meaning of Article 1(2)(a) of that directive, with the result that such a renewal does not fall within the scope of that directive (see, to that effect, judgments of 17 March 2011, Brussels Hoofdstedelijk Gewest and Others , C‑275/09, EU:C:2011:154, paragraph 24, and of 19 April 2012, Pro-Braine and Others , C‑121/11, EU:C:2012:225, paragraph 32).
[para_146]36 Second, in so far as Directive 2010/75, in the version applicable at the time of the facts in the main proceedings, provides, in Article 2(1), read in conjunction with Article 10, that, in addition to the specific activities referred to in Chapters III to VI of that directive, the directive is to apply to the activities listed in Annex I to that directive, it is sufficient to note that the operation of a wind farm is not among the activities listed in Annex I to that directive.
[para_147]37 It is therefore exclusively in the light of the provisions of the Aarhus Convention, Article 6 thereof in particular, that it is necessary to examine, in accordance with the referring court’s request, whether a public participation phase is required prior to the adoption of a decision such as that at issue in the main proceedings.
[para_148]38 It should also be noted that, as is apparent from the case-law, the fact that Directives 2011/92 and 2010/75 do not apply to the dispute in the main proceedings has no bearing on the Court’s jurisdiction to give a preliminary ruling on the interpretation of the Aarhus Convention, the provisions of which form an integral part of the EU legal order (judgment of 8 November 2022, Deutsche Umwelthilfe (Approval of motor vehicles) , C‑873/19, EU:C:2022:857, paragraph 48 and the case-law cited).
[para_149]39 As regards the interpretation of Article 6(1) and (10) of the Aarhus Convention, it should be noted that, as regards proposed activities listed in Annex I to the Aarhus Convention, and subject to the exceptions provided for, first, in Article 6(1)(c) of that convention and, second, in paragraph 21 of Annex I thereto, Article 6 of that convention requires that the provisions of paragraphs 2 to 9 of that article be applied in four situations: (i) when deciding whether or not to authorise such activities (Article 6(1)(a) and paragraphs 1 to 20 of Annex I); (ii) when deciding whether to permit any change to or extension of activities, where such a change or extension in itself meets the criteria or thresholds set out in that Annex I (first sentence of paragraph 22 of Annex I); (iii) when deciding whether or not to permit any other change or extension of those activities which may have a significant adverse effect on the environment (second sentence of paragraph 22 of Annex I), and (iv) when a public authority reconsiders or updates the operating conditions for such an activity (Article 6(10)). In the latter connection, Article 6(10) of the Aarhus Convention specifies that the provisions of paragraphs 2 to 9 of that article are to apply ‘mutatis mutandis, and where appropriate’.
[para_150]40 In the present case, it is common ground that the decision in the ministerial decision of 6 June 2017 authorising the wind farm in the main proceedings fell within the first of the four situations set out in the preceding paragraph of the present judgment. As the referring court states, that authorisation was subject, under Walloon law, to an environmental impact assessment procedure involving a public participation phase. Consequently, it fell within the scope of Article 6(1)(a) of the Aarhus Convention, read in conjunction with paragraph 20 of Annex I thereto, which covers ‘any activity not covered by paragraphs 1 to 19 [of that annex] where public participation is provided for under an environmental impact assessment procedure in accordance with national legislation’.
[para_151]41 As regards the extension decision, it must be stated, in the first place, that, in the absence of works or interventions involving alterations to the physical aspect of the site, which it is for the referring court to verify, that decision cannot be regarded as falling within the second or third of the four situations mentioned in paragraph 39 of the present judgment. Paragraph 22 of Annex I to the Aarhus Convention relates only to physical alterations to or extensions of activities, as follows from the document ‘The Aarhus Convention: An Implementation Guide’, that is to say, the document published by the United Nations Economic Commission for Europe (Second Edition, 2014) (‘the Aarhus Convention implementation guide’) which, according to settled case-law, may be regarded as an explanatory document, capable of being taken into consideration if appropriate among other relevant material for the purpose of interpreting that convention, even if the observations in the guide have no binding force and do not have the normative effect of the provisions of the convention (judgment of 8 November 2022, Deutsche Umwelthilfe (Approval of motor vehicles) , C‑873/19, EU:C:2022:857, paragraph 55 and the case-law cited).
[para_152]42 In order to assess, in the second place, whether a decision to extend an authorisation for an activity may fall within the scope of Article 6(10) of the Aarhus Convention, it should be recalled that that provision provides that ‘each Party shall ensure that, when a public authority reconsiders or updates the operating conditions for an activity referred to in paragraph 1, the provisions of paragraphs 2 to 9 of this Article are applied mutatis mutandis, and where appropriate’.
[para_153]43 In that regard, it should be noted that the concept of ‘operating conditions for an activity referred to in paragraph 1’ in Article 6(10) of the Aarhus Convention is not defined in the convention. Similarly, it is not specified in the Aarhus Convention implementation guide.
[para_154]44 That said, in view of the fact that the words ‘operating conditions for an activity’ in that provision mean, in everyday language, the circumstances in which an activity must take place and the fact that that provision states that these are circumstances or requirements which must be reconsidered or updated by an authority, the duration for which an activity is authorised constitutes one of those conditions. Consequently, any decision authorising the exercise of that activity beyond the period initially set is equivalent to an update of the operating conditions of that activity within the meaning of Article 6(10) of the Aarhus Convention.
[para_155]45 The context of Article 6(10) of the Aarhus Convention and the objective pursued by the convention confirm that interpretation.
[para_156]46 As regards the context of that provision, the Court observes that it must be read in conjunction with paragraph 22 of Annex I to the Aarhus Convention. As the Aarhus Convention implementation guide has also emphasised, while paragraph 22 of Annex I to that convention concerns physical changes to or extensions of activities, Article 6(10) of that convention concerns changes to the operating conditions of the activities in question. The fact that the latter provision is complementary to the first provision confirms that the duration of an authorisation to exercise an activity, even if it does not form part of the physical reality of that activity, may fall within the operating conditions of that activity.
[para_157]47 Furthermore, as regards the objective pursued by the Aarhus Convention, it follows from Article 1 of that convention that Article 6 thereof is intended to contribute to protecting the right of every person of present and future generations to live in an environment adequate to his or her health and well-being.
[para_158]48 To that end, Article 6(7) of the Aarhus Convention, read in conjunction with paragraph 6 of that article, requires that the public be given the opportunity to submit any comments, information, analyses or opinions that it considers relevant in the light, in particular, of the physical and technical characteristics of the activity concerned, the significant effects of the proposed activity on the environment, the measures envisaged to prevent and/or reduce those effects, including emissions, and the main alternatives studied by the author of the application for authorisation.
[para_159]49 While it is true that, in the case of an activity falling, as in the present case, under paragraph 20 of Annex I to the Aarhus Convention, the public had the opportunity to express its views on those aspects at the time of the initial authorisation of that activity, it must be stated that, over time, both the technologies relevant for the activity concerned and the environment in which that activity is carried out are liable to have changed. More specifically, first, new technologies may be developed to reduce or even prevent the effects of that activity on the environment. On the other hand, there may be positive or negative environmental changes, whether in connection with the activity concerned or for other reasons.
[para_160]50 Thus, on expiry of the initially granted authorisation, the question whether the activity concerned may be continued under the conditions provided for by that authorisation, whether those conditions must be updated, or whether the activity must, as the case may be, be discontinued, may arise.
[para_161]51 It would therefore run counter to the objective pursued by Article 6 of the Aarhus Convention, as recalled in paragraph 47 of the present judgment, to allow a decision to renew an authorisation such as that in the main proceedings, which consists of extending by 10 years an authorisation initially granted for a period of 20 years, to be adopted in all cases without ensuring public participation.
[para_162]52 Consequently, where, as in the present case, the applicable national legislation excludes the adoption of a decision, such as that in the main proceedings, from public participation, it is for the national court hearing a dispute such as that before the referring court to assess whether it is appropriate to apply the provisions of Article 6(2) to (9) of the Aarhus Convention mutatis mutandis, taking into account the specific circumstances of each case of renewal of an operating authorisation. In the context of that assessment, it is necessary, in particular, to take account of the nature of the activity concerned, the initial duration of the authorisation granted for the exercise of that activity, the duration of the extension requested or granted in relation to that initial period, and the effects on the environment of the exercise of the activity as such.
[para_163]53 In those circumstances, first, in the light of the wording of Article 6(10) of the Aarhus Convention, which relates specifically to cases of reconsideration or updating of the operating conditions of an activity such as that in the main proceedings, the question whether there was public participation during the initial authorisation procedure should have no bearing.
[para_164]54 Secondly, circumstances such as those referred to in paragraph 28 of the present judgment, namely the fact that authorisations subject to new national legislation are, in principle, granted for a longer period than that laid down for the authorisation in question, cannot, similarly, have any bearing on such an assessment in relation to the renewal of an authorisation to exercise an activity such as that in the main proceedings. It is clear that Article 6(10) of the Aarhus Convention may apply to any reconsideration or any update of the operating conditions of an activity, irrespective of whether, depending on the choices of the national authorities, such reconsiderations or updates may take place at shorter intervals for a category of interested parties than for others.
[para_165]55 In the light of all the foregoing considerations, the answer to the questions referred is that Article 6(1) and (10) of the Aarhus Convention must be interpreted as precluding national legislation under which any procedure for a decision to extend by 10 years an authorisation for an activity listed in Annex I to that convention, initially granted for a period of 20 years, is excluded from public participation.
Costs
[para_167]56 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Fifth Chamber) hereby rules:
[para_169]Article 6(1) and (10) of the Convention on access to information, public participation in decision-making and access to justice in environmental matters, signed at Aarhus on 25 June 1998 and approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005
[para_170]must be interpreted as precluding national legislation under which any procedure for a decision to extend by 10 years an authorisation for an activity listed in Annex I to that convention, initially granted for a period of 20 years, is excluded from public participation.
[para_171][Signatures]
[para_172]* Language of the case: French.
[para_173]i The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.