The energy crisis, triggered by Russia’s war of aggression against Ukraine, has forced the European Union to act quickly. To reduce dependence on fossil fuels and ensure security of supply, the Council adopted Regulation (EU) 2022/2577. This emergency regulation was intended to drastically accelerate the permitting procedures for facilities generating energy from renewable sources (RE projects).
A central provision of this regulation is the rule in Art. 3 (2), which grants RE projects “priority” when balancing legal interests. But what does this “priority” mean in concrete terms when it conflicts with other interest’s worthy of protection, such as the landscape and cultural heritage? It was precisely this question that the Advocate General of the Court of Justice of the European Union (CJEU) had to address in a recent case from Belgium, in which approval for two wind turbines was denied due to the adverse impact on the landscape and cultural heritage. The Advocate General’s Opinion now provides important guidance on how to resolve this conflict.
The first question put to the Court was whether the priority established in Art. 3 (2) of the Regulation applies only when balancing those environmental interests explicitly mentioned in paragraph 1 (i.e., within the framework of the Habitats, Water Framework, and Birds Directives), or whether it extends to any balancing of interests – including concerns such as the protection of the landscape and cultural heritage. The Advocate General proposes a broad interpretation: The priority rule is not limited to the aforementioned environmental directives. It must also be observed when balancing against other competing interests, in particular the protection of the landscape and cultural heritage. The reasoning is clear: the aim of the regulation was to comprehensively eliminate bottlenecks in the permitting process. It would be contradictory to grant renewable energy projects priority over high-ranking European environmental interests but not over other national protection interests.
The second question concerned the prerequisite for applying the priority rule: What does the wording mean that a project must be “recognised as a project of overriding public interest”? Does this require a separate administrative act, or is the presumption enshrined in the regulation itself sufficient? The Advocate General distinguishes here between the environmental directives referred to in the regulation and other legal interests that are not explicitly mentioned in the regulation. No explicit recognition is required for the directives mentioned in the regulation (including the Landscape Protection Directive, if the Member State has transposed it into national law). In such cases, the rebuttable presumption under Article 3 (1) of the Regulation applies automatically, unless it is rebutted in a specific case or its application has been restricted by the Member State. For those not explicitly mentioned in the regulation – such as the protection of cultural heritage – this automatic provision does not apply. In order to invoke this priority rule, the project’s overriding public interest must first be recognised through a case-by-case review.
The third question was whether “priority” meant an absolute priority – meaning that approval must be granted – or whether it referred to a general priority from which Member States may deviate for specific reasons. The Advocate General rejects an automatic approach. The priority is not absolute but should be understood as a general priority. The interests of renewable energy projects must be given special weight in the balancing of interests. However, a rejection remains possible. It requires a thorough examination and must be based on “specific and detailed reasons” demonstrating a significant impairment of a protected competing interest. Giving absolute priority to this would unduly undermine the Member States’ planning autonomy and their international obligations to protect the landscape and cultural heritage.
The Advocate General’s Opinion paints a clear picture: While the Emergency Regulation to Accelerate the Energy Transition provides a strong boost to renewable energy projects, it does not grant them a free pass. The priority is broad in scope, but it is not an irrefutable dogma. Authorities may still deny permits to protect the landscape and cultural heritage, but they face a heightened burden of justification in doing so. It remains to be seen whether the ECJ will follow this influential assessment. The decision will set a precedent for countless future projects and recalibrate the tension between climate policy imperatives and the protection of our environment and cultural heritage.
Opinion of Advocate General Athanasios Rantos (Case C-325/25)