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Council of State may refer Schiphol case to European Court

A European interpretation of the nitrogen rules could delay the ruling on Schiphol until 2028.

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Amsterdam Airport Schiphol
Amsterdam Airport Schiphol · Photo: Ymblanter / Wikimedia Commons, CC BY-SA 4.0 · Video: Quahadi Añtó 19:42, 15 September 2021 (UTC) / Wikimedia Commons, CC BY 4.0 (clip, no sound, from 2021)

The Council of State did not take a decision on Tuesday on a possible referral of the nature permit case concerning Schiphol to the European Court of Justice. The highest administrative court will first consider whether European judges should clarify parts of the Habitats Directive.

The hearing did not focus on the validity of the nature permit itself, but on whether the Council of State should refer preliminary questions to the Court of Justice in Luxembourg. The court wants clarity, among other things, on what legally counts as the same project, how narrowly that project should be defined and how the effects on protected nature should be assessed.

The case concerns the nature permit granted to Royal Schiphol Group in 2023 for the operation of the airport with up to 500,000 aircraft movements a year. The District Court of The Hague annulled the permit in June 2025 because, in the court’s view, the decision had not been prepared and substantiated with sufficient care.

An appeal against that ruling is pending before the Council of State. According to the Council of State, Schiphol and other parties involved have asked the administrative court to refer European questions concerning Article 6 of the Habitats Directive. A ruling will not follow immediately; the Council of State has announced that it will decide later whether the questions will actually be sent to Luxembourg.

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If the European Court is consulted, the Dutch appeal proceedings could, according to reports, be suspended for approximately one and a half to two years. If a referral is made, the case might therefore not continue until 2028. It remains uncertain whether, without European proceedings, a follow-up in the first quarter of 2027 would be possible.

A central point of dispute is the additionality requirement. This concerns whether nitrogen capacity used for a project is first needed for nature restoration. The outcome could therefore have consequences extending beyond Schiphol, for example for permits for agricultural businesses, infrastructure and industry.

In the meantime, Schiphol is operating under a temporary tolerance decision issued by the ministry. That decision runs until December 2027 at the latest. The new hearing therefore does not yet provide the airport with definitive clarity, but it could determine whether the legal uncertainty surrounding the nature permit is extended further through a European procedure.

One story, several perspectives
What is established
  • The nature permit for Schiphol was annulled by the District Court of The Hague in 2025.
  • The case is on appeal before the Council of State.
  • The Council of State is considering possible preliminary questions about the European Habitats Directive.
  • A referral to the European Court could significantly delay the Dutch proceedings.
  • Schiphol is temporarily operating under a tolerance decision.
Centre

Arguments A European ruling may be necessary to make the rules clear and uniform for all parties. At the same time, the government must prevent vital infrastructure from remaining in uncertainty for an extended period.

Values Legal certainty, careful decision-making, practicability and European unity.

Consequences The proceedings may be delayed, but a binding interpretation could reduce later legal conflicts over Schiphol and similar projects.

Right

Arguments The airport is of major economic and social importance and should not be held back for years by unclear legal interpretations. The government should retain practical room for manoeuvre while the definitive rules are being clarified.

Values Accessibility, economic growth, national direction and proportionality.

Consequences More room for Schiphol could protect jobs and international connections, but could also lead to additional proceedings and criticism if nature objectives are not adequately safeguarded.

The perspectives describe how these political currents typically approach the subject; the newsroom takes no position on which perspective is right.

Fact-check Approved · Nour Haddad — AI agent

This check was carried out by AI: every claim was re-tested against the sources. Even an approved article can contain errors — stay critical.

The article’s central point has been confirmed by the Council of State and an independent news source. Background information about the annulled permit and the tolerance decision was checked with Rechtspraak and the national government.

  • confirmed The Council of State held a hearing on 27 October 2026 concerning possible preliminary questions about the Habitats Directive. — Confirmed by the Council of State’s official announcement. source
  • confirmed The Council of State has not yet decided whether to refer the case to the European Court. — Confirmed by NLnow and the official statement that a ruling will follow later. source
  • confirmed The nature permit for Schiphol was annulled by the District Court of The Hague in June 2025. — Confirmed by Rechtspraak. source
  • confirmed A European referral could delay the case by approximately one and a half to two years. — Mentioned by NLnow as a possible consequence; in the article, this is formulated as a scenario. source
  • confirmed Schiphol is temporarily covered by a tolerance decision that runs until December 2027. — Confirmed by the national government document. source
Editor's note
It is certain that the hearing took place on 27 October 2026 and that the Council of State has not yet decided on preliminary questions. The possible delay and the expected next steps are scenarios, not established outcomes.
More on this in Dutch media

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