Thesis-Anne-Vos-Masters-SBR-and-EU-Law-3

establish an inpassingsplan. This is arranged in Article 3.28 of the Wro. When making such a plan,
the Minister is obliged to hear the municipality and the province. Article 3.28 does not state that the
inpassingsplan should be a necessity. The ability to use this competence lies mostly in the
question whether there are ‘national interests’ at stake. This concept is not explained in Article 3.28,
but the Memorie van Toelichting (Explanatory Memorandum) gives some explanation. It gives
examples such as complex projects with cross-border consequences, projects of high importance
for society, etc. 168 This ‘threshold’ is not expected to be very high. 169 With regard to the content, the
general rules of the Wro (concerning the municipal zoning plan) apply. However, the Provincial
Executive is not allowed to give a reactieve aanwijzing (reactive instruction). With regard to the
competence to grant certain permits (such as the building-permit) the Minister can decide in the
inpassingsplan that he will become the competent authority to decide on these permit-applications.
He has to declare this explicitly. However, not all permits are mentioned; the environmental permit
ex. Art. 2.1(1)(e) Wabo is not mentioned. In case the plan is part of the rijkscoördinatieregeling
(national coordination regulation) of Art. 3.35 Wro, the First and Second Chamber of the Dutch
Parliament have to approve the plan. The application of this regulation is not necessary.
With regard to mining activities, especially shale gas activities, the establishment of an
inpassingsplan can be very useful. In this manner, the State can control the process so that the
procedure could speed up. After all, not many municipalities shall be willing to coordinate with the
State on shale gas projects. In the last year(s) already many municipalities have declared
themselves ‘shale gas free’. 170 In order to apply this procedure generally for all shale gas projects,
the national coordination regulation should be extended. Now, Chapter 9a of the Mining Act states
that this procedure only applies to a mining work for the purpose of exploration for or production of
hydrocarbons in or under an area that is designated on the basis of Articles 10 or 10a of the
Natuurbeschermingswet 1998 (and other, not relevant grounds here), which refers to the national
protected areas. Otherwise, the Minister can also declare this per project. It then only has to prove
that a national interest is at stake, which will probably not be that difficult with regard to the
exploitation of shale gas. 171 This national interest need to be shown in policy. The usefulness of
this procedure is already visible. The province of North Brabant (where the exploration licenses
have already been granted) has adjusted its provincial environment by-law, in order to make shale
gas exploitation difficult to realise there. Such a regulation can however be set aside by the
Minister by using the national coordination regulation. Provinces and municipalities do have the
possibility to appeal against this plan. The Crisis- and Herstelwet (Crisis and Recovery Act) do not
offer this latter possibility. At this time, shale gas project cannot fall under this regulation. However,
a ‘simple’ adjustment could make this happen. 172
4.6 Other permits
4.6.1 Nature
Above, the Habitat and Bird Directives are explained. On the basis of those Directives, a coherent
European ecological network of special areas of conservation shall be set up under the title Natura
2000. The Dutch implementation of those directives lies in the Natuurbeschermingswet 1998 (Nbw).
For every Natura 2000-area an aanwijzingsbesluit (designation order) is made, in which the
different birds and species are set out (the capacity of the area). Such a designation order contains
several instandhoudingsdoelstellingen (conservation objectives). These objectives of the Natura
2000-area are protected by several instruments: by management plans, appropriate measures and
permits. These are all set out in the Nbw. Especially the management plan is an important
168
Kamerstukken II 2002/03, 28 916, nr. 3, p. 53.
169
Van Buuren et al. (2010), pp. 392-393; see also Groothuijse & Korsse (2011).
170
https://www.schaliegasvrij.nl/
171
Brans & Van den Brink (2014), p. 11.
172
Brans & Van den Brink (2014), p. 12.
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