In 2024, the Flemish legislature introduced a regulation allowing a municipal executive or provincial executive to take decisions of its own accord in relation to projects for which the executive itself was both the originator and the applicant, on condition that the projects concerned solely required an environmental impact assessment screening. The Constitutional Court has now annulled that regulation in its judgment of 18 September 2025 (no. 122/2025).
This judgment forms the latest episode in a legal saga that has been ongoing since 2022. The discussion originally began following the so-called 'Laundry ruling' (Dutch: 'Wasserij-arrest') issued by the Council for Permit Disputes on 6 October 2022. Cassation proceedings against that ruling were then initiated before the Council of State and the Council of State, in its turn, requested a preliminary ruling from the European Court of Justice. The key question: is a municipal executive or provincial executive allowed to decide whether or not one of its own projects only requires an environmental impact assessment screening?
In its judgment (no. C-236/24), the Court of Justice replied that in applications for projects, appropriate separation must exist between conflicting functions. This also applies to projects in which only an environment impact assessment screening is required.
According to the Constitutional Court, the judgment by the Court of Justice means that the body authorised to determine whether a project must be subjected to an environmental impact assessment must actually possess real autonomy. This means that the body concerned must possess administrative resources and personnel of its own. According to the Constitutional Court, the regulation issued by the Flemish legislature "does not provide sufficient structural and organisational guarantees to ensure that municipal and provincial environmental officials would, in all cases, possess the required degree of objectivity in order to reach a decision in accordance with the memorandum regarding project-specific environmental impact assessment screening."
As a result, the Constitutional Court annulled the regulation approved by the Flemish legislature. Various projects that were granted a permit on the basis of that regulation therefore came under pressure. The Court does not see any reason to enforce the consequences of the article that was annulled, because it has not been plausibly demonstrated that the retroactive effect of the annulment would lead to a high degree of legal uncertainty. In that regard, the Court also refers to the limited material and temporal application of the regulation. On the other hand, the Court emphasises the fact that this does not detract from the ability of the Council for Permit Disputes to uphold the consequences in law of an environment permit that was enacted by applying the regulation that has now been annulled.
The Department of the Environment is currently examining the judgment and is seeking a solution. In the meantime, the Department has now made clear on its website what temporary arrangements will apply until a solution is found:
- For new applications:
If the municipal executive, an autonomous municipal company or the provincial executive is itself the applicant for a project requiring an environmental impact assessment screening, the file must first be submitted to the provincial executive or the Flemish government.
- For ongoing applications not yet declared complete:
Applications that have not yet been declared complete can be forwarded to the provincial executive or the Flemish government via the 'Omgevingsloket' (Environment desk).
- For ongoing applications already declared complete, but no decision has yet been made:
- The best option is to terminate these files and resubmit them to the competent authority, on condition that no public enquiry has yet got under way. In exceptional cases, the applicant can get in touch with the helpdesk.
- For appeal cases:
Appeal cases cannot be forwarded. The appeals body is still competent.
The Public Law team at Monard Law will be happy to assist you with all of your questions regarding the recent judgment and its impact, along with any other questions concerning environmental law.
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.
