Constitutional Court annuls mandatory citizen participation in Walloon wind energy

The Constitutional Court, by its judgment no. 82/2026 of July 2, 2026 (roll no. 8450), annulled Articles 5 and 6 of the decree of the Walloon Region of April 29, 2024, which required wind energy developers to open their projects to participation by citizens and local authorities. The extract of the judgment was published in the Belgian Official Gazette of September 4, 2026, p. 48135.

The high court ruled that the obligation to issue participation offers up to 24.99% for each of the two groups — totaling 49.98% of the investment — constituted a disproportionate restriction on the freedom to conduct business and the free movement of capital.

A participation obligation deemed excessive

The decree of April 29, 2024, published in the Belgian Official Gazette on October 22, 2024, amended the decree of March 11, 1999, regarding environmental permits and inserted an Article 86bis. Article 5 required the developer of a wind project to organize a call for expressions of interest and to issue participation proposals for citizens and local authorities, up to 24.99% for each of the two groups.

Article 6 drew several consequences from this: participation became a criterion delimiting the scope of a procedure to suspend the processing of permits, and a determining selection criterion between incompatible projects. The Court considered that the combination of these provisions reserved nearly half of the investment as a priority for citizens and local authorities, to the detriment of other potential investors.

The applicants and the procedure

The application for annulment was introduced by a petition addressed to the Court by registered mail on March 28, 2025, and received by the registry on April 1, 2025. The applying parties were:

• the non-profit organization EDORA – Federation of Renewable and Alternative Energy;
• the non-profit organization Belgian Federation of Electrical and Gas Companies;
• the company Electrabel SA;
• the company Luminus SA;
• the company Storm Management SA;
• the company Ventis SA.

They were assisted and represented by Me Bruno Lombaert and Me Renaud Smal, lawyers at the Brussels bar. The Court was composed of President Pierre Nihoul, Vice-President Joséphine Moerman, and judges Thierry Giet, Michel Pâques, Yasmine Kherbache, Danny Pieters, Sabine de Bethune, Emmanuelle Bribosia, Willem Verrijdt, Kattrin Jadin, Magali Plovie, and Frank Fleerackers, assisted by the clerk Nicolas Dupont.

A return to non-binding reference frameworks

Before the entry into force of the annulled provisions, the opening of wind energy projects to citizen and local participation, up to twice 24.99%, was already provided for by the 2024 reference framework (Walloon Government circular of January 25, 2024) and, previously, by that of 2013. These frameworks were, however, not binding: they constituted a guideline from which it was possible to deviate provided there was adequate justification.

The Court noted that the annulled provisions, unlike these frameworks, were binding and provided for particularly high rates. It also recalled that the participation of citizens and local authorities is encouraged by European Union law, notably Article 15quinquies, paragraph 2, of Directive (EU) 2018/2001, but that this provision leaves a wide margin of appreciation to the Member States.

Scope of the decision

The annulment covers the entirety of Articles 5 and 6 of the decree of April 29, 2024, as their provisions are inextricably linked to one another. The Court did not examine the other grounds, as they could not lead to a more extensive annulment.

The decision has a direct impact on all wind energy developers in Wallonia: they are no longer required to issue participation offers up to 24.99% for citizens and local authorities, nor to submit to the selection procedure between incompatible projects based on the extent of this participation. The judgment, rendered in French, Dutch, and German, was signed by the registrar Nicolas Dupont and the president Pierre Nihoul.

Official source: Belgian Official Gazette of September 4, 2026, p. 48135 — Extract from judgment No. 82/2026 of the Constitutional Court of July 2, 2026, roll No. 8450.