The Dutch Nitrogen Case

- Deposition policy scrutinized by European Court of Justice -

By now the Dutch Council of State has decided that the instrument in use as a basis for granting permission for activities that can lead to an increase in nitrogen deposition on sensitive habitat types and species in Natura 2000 sites can no longer be used.

The Netherlands has a history for its nitrogen problems and has one of the highest reactive emission densities in the world. Mainly due to vehicular traffic, industry, sewage and notably the agricultural sector. One of the instruments to tackle nitrogen deposition is the so called integrated Nitrogen Approach Programme (Programmatische Aanpak Stikstof (PAS)).

Besides agricultural activities the PAS is applicable on every activity and development causing nitrogen emmisions such as housing projects, industry and infrastructure.

After proceedings were started in cases involving authorization – permits – under the Dutch Nature Conservation Act the Dutch Council of State (Afdeling bestuursrechtspraak van de Raad van State) has asked the European Court of Justice for a prelimanary ruling on whether this integrated approach is compatible with European Law, i.e. the EU Habitats Directive. The Court of Justice has been asked to decide whether this Habitats Directive allows a programme-based approach, where, as required by EU law, an appropriate assessment has to be carried out for any individual authorization for a plan or project and its implications for designated areas of conservation (Natura 2000 sites). In other words whether it is permissible to replace the appropriate assessment of an individual project by the appropriate assessment as carried out in advance under the PAS.

All PAS related procedures pending before the Council of State are adjourned. The judgment of the European Court of Justice of 7 November 2018 rules a.o. that a programme-based approach is in principle permissible however, only in so far as a thorough and in-depth examination of the scientific soundness of that assessment makes it possible to ensure that there is no reasonable scientific doubt as to the absence of adverse effects of each plan or project on the integrity of the site concerned, which it is for the national court i.e the Council of State to ascertain. 

By 29 May 2019 the Council of State gave a final decision on the permissibility of the PAS. The conclusion is that the appropriate assessment of the PAS can no longer be used. This decision has consequences for spatial developments, such as housing, the construction of infrastructure (including waterways, railways and motorways), the construction of new companies and agricultural activities. The practical consequence is that in all decisions to be made in these fields it is no longer possible to refer to the appropriate assessment made in advance but a separate ecological assessment will have to be carried out for each of these decisions.

Judgment of the European Court of Justice 7 November 2018:

Judgement of the Dutch Council of State 29 May 2019: Afdeling bestuursrechtspraak van de Raad van State, Case number: 201600614/3/R2, Via Rechtspraak.nl: ECLI:NL:RVS:2019:1603