The ineos Case and the Transnational Dimension of the Habitats Directive: in Search of a Level Playing Field in Times of Transboundary Nitrogen Wars?

Abstract The 2023 decision of the Flemish Council for Permit Disputes to quash the environmental permit for the construction of an ethane cracker by the British multinational conglomerate ineos in the port of Antwerp provoked a heated diplomatic row between the Dutch and Flemish governments. In this much-anticipated ruling, the Council sided with the arguments put forward by the Dutch authorities, who deemed the transboundary nitrogen impact on a Dutch Nature 2000 site, generated by the project located on Flemish territory, contrary to the substantive conservation duties laid down in Article 6(3) of the Habitats Directive. As a result, Dutch authorities succeeded in blocking a major development project in the Port of Antwerp, the economic engine of Belgium. This article addresses the transnational elements that arise in the context of this remarkable round of transboundary litigation, among others because of the different nitrogen standards applicable in the Netherlands, Flanders and Germany to ensure compliance with the Habitats Directive. This article argues that more intense international cooperation, as well as the development of common standards to assess the acceptability of nitrogen pollution, are crucial to ensure a level playing field and long-term solutions to the persisting nitrogen crisis in the Low Countries.