Changes in the case law on internal netting

On 18 December 2024, the Council of State's Administrative Jurisdiction Division (the "Division") delivered a landmark ruling changing the rules of the game for internal netting under nature permits. Simply put, internal netting can no longer be used in the pre-assessment to determine whether a nature permit is required, but only in the subsequent phase (the appropriate assessment) to determine whether a permit can be granted. This has implications for pending and future permitting procedures, as well as for activities initiated in the recent past without a nature permit or an appropriate assessment.

Main consequences

• No internal netting in the pre-assessment: in the pre-assessment – used to determine whether a nature permit is required at all – nitrogen emissions permitted under the old situation and new nitrogen emissions can, in principle, no longer cancel each other out.
• Internal netting only in the appropriate assessment: the option of internal netting will generally shift entirely from the pre-assessment to the appropriate assessment phase. This assessment involves checking whether any emission allowance under a previous permit or approval can be taken into account.
• Equal treatment of internal and external netting: the conditions for internal netting are being tightened up, making them almost the same as those for external netting.
• Immediate applicability: the new assessment framework will apply immediately to all pending and future permitting procedures and will therefore also have immediate practical implications.
• Provincial policy: because internal netting, like external netting, will give rise to a permit requirement more frequently, provinces can develop policy on this point from now on.

Reference situation and environmental approvals

Implications for projects from the recent past

Companies that applied internal netting from 1 January 2020 to 1 January 2025 without a permit may now also be subject to a permit requirement. A transitional period will apply for the activities until 1 January 2030. During this period, in which there will be no active enforcement, companies can determine whether they will need to apply for a nature permit or adjust their activities. This does not mean that provinces cannot take any enforcement measures at all until 2030. Under certain circumstances, for example, they can lay down customised instructions to prevent degradation of Natura 2000 areas.

Why this change?

The Division's ruling comes in response to recent judgments of the Court of Justice of the European Union (the "CJEU"), in which the CJEU clarified what aspects can be included in the pre-assessment. In addition, Dutch courts have given various judgments on internal netting since 2021 showing a divergence of views. The new ruling introduces more uniformity in the case law.

HOW CAN HOUTHOFF ASSIST YOUR COMPANY?

The new case law has rendered the somewhat flexible approach towards internal netting a thing of the past. Both companies and public authorities will need to revise their strategies and procedures on this point. The immediate applicability of the new assessment framework and the tightened conditions entail that projects will require more thorough substantiation and possibly additional permits. 

Please contact one of our experts from the Public Law Team if you have any questions about the implications of this ruling or need any other advice about nature conservation law.