Compliance with national air emission caps under the NEC directive is not a condition for authorising the construction of new industrial installations, the European Court of Justice (ECJ) concluded in three joint rulings. EU judges were asked to interpret the 2001 directive and a related law on industrial pollution in a case brought by several environmental groups against decisions to approve the construction of three coal-fired power plants in the Netherlands. The groups complained the construction of these plants should never have been authorised, given that, according to estimates at the time, the member state was likely to exceed its emission caps for SO2 and NOx in 2010 without additional measures.
According to figures cited in the ECJ rulings, one of the plants expected to start operating in 2012 in Eemshaven will emit about 2.9 per cent of the country's emission cap for SO2 annually. In the end, the ECJ ruled member states have some flexibility as to how they decide to meet their national emission caps. A single measure such as the construction of a plant is unlikely to jeopardise their efforts. However, they must make sure that all the measures in place form a coherent policy aimed at complying with the law.
Source: ENDS Europe Daily, 26 May 2011 and European Court of Justice
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