The Dutch Council of State is in the process of requesting a
preliminary ruling by the Court of Justice on whether the Nitrogen
Approach Programme is compatible with EU law, specifically the
Habitats Directive. The programme is known in the Netherlands as
the "PAS" and is based on the Dutch Nature Conservation
Act. Activities that enhance nitrogen deposition are only allowed
if they meet the conditions in the PAS. If the Court of Justice
rules that the PAS conflicts with EU law, this would, for example,
mean that a permit under the PAS is no longer an option and that
the system of exemption for minor nitrogen deposition has to be
reconsidered. The Council of State sent its draft preliminary
questions to the parties in the PAS pilot cases for their comments
last month, and is now preparing its decision to refer. On average,
a preliminary ruling by the Court of Justice may take 15 months,
and the Council of State then needs some time to give its final
decision. All in all, it could be almost two years before clarity
can be given on the future of the PAS. To prevent uncertainty and
inequality on which nitrogen deposition enhancing activities are
allowed in the meantime, it is of great practical importance that
the Council of State clarifies in its referral decision how to deal
with the PAS during the preliminary procedure.
A lack of clarity would create a legal vacuum. For example, it
would be unclear how to deal with current permit applications,
ongoing objection and appeal procedures, and exempted projects
below the current statutory threshold (such as temporary building
activities). On the one hand, any irreversible impact on Natura
2000 areas must be prevented during the preliminary procedure. On
the other hand, it is not economically viable to put on hold all
planned activities where nitrogen deposition plays a role. Without
guidance from the Council of State, every administrative body and
court would have to use its own discretion in deciding on the
matter – causing uncertainty, inequality and extensive
litigation. It is therefore to be hoped that the Council of State
will clarify how the PAS and the granting of permits under the
Nature Conservation Act should be dealt with during the preliminary
phase. We will keep you informed on the Council of State's next
steps and on the practical consequences.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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