12 April 2017

Preliminary questions on Dutch Nitrogen Approach Programme: what to do in the meantime

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.