Local authorities no longer judge and participate in their own construction projects

In Flanders, construction projects are assessed for their environmental impact. In many cases, the applicant will therefore have to provide a note identifying these impacts (project EIA screening note). This note also determines whether a so-called environmental impact assessment (EIA) is required, which is a comprehensive expert report on the environmental impact.

It is initially the municipal or provincial planning officer who assesses this screening and therefore decides whether or not a building application must be accompanied by such a screening note or EIA. This will often be the case for larger construction or infrastructure projects.

For a long time, it was assumed that if a building application was accompanied by an EIA and that application originated from a local authority, then that same authority was not allowed to rule on it (according to Article 15/1 of the Environmental Permitting Decree). In that case, a higher authority must make the decision: for municipal projects, this is the provincial council, and for provincial projects, the Flemish Government.

However, the Council for Permit Disputes recently ruled that a planning officer is not sufficiently independent to be able to judge neutrally on projects in which their own administration is a party. In other words, according to the Council, the provision in Article 15/1 of the Planning Permit Decree also applies to applications that only include a project EIA screening note. These applications must therefore also be assessed by a higher authority. In reaching this decision, the Council based its ruling on, among other things, the European EIA Directive, which explicitly requires that officials involved in the assessment of environmental impacts be free of conflicts of interest and able to perform their duties objectively – the so-called ‘no conflict of interest’ rule.

In response to this ruling by the Council, the Flemish Government decided, by (emergency) decree of April 19, 2024, that when a local authority submits a project itself and the application is accompanied only by a project EIA screening note, the assessment can still be carried out internally by the local planning officer – Article 5 of this decree.

However, after the Court of Justice of the European Union also shared the opinion of the Council for Permit Disputes, the Constitutional Court now confirms in its judgment of September 18, 2025, that the provision in Article 5 of the emergency decree does not offer sufficient guarantees for the required independence. According to the Court, a planning officer must be able to function autonomously, which means, in particular, that he must have his own administrative resources and staff. The Constitutional Court therefore annulled Article 5.

As a result, local authorities are no longer competent to decide on their own projects for which a project EIA screening note is required (which accounts for the bulk of their projects). From now on, these will also have to be assessed by a higher authority. This will not only affect the projects of local authorities themselves, but possibly also projects initiated by closely related bodies, such as autonomous municipal companies. The impact should therefore not be underestimated.

The Flemish Government had requested that the consequences of the annulled provision be temporarily maintained, for fear of legal uncertainty. However, since Article 5 was found to be contrary to EU law, the Court rejected this request. The Court does leave the door open slightly, however, pointing out that in exceptional cases, the Council for Permit Disputes may decide to temporarily maintain the legal effects of permits already granted, for example to prevent a legal vacuum.

For any further questions or assistance regarding environmental and planning law, please contact Andersen in Belgium (real estate team).

Matias Osorio Olivera