Joined Cases C‑293/17 and C‑294/17

Coöperatie Mobilisation for the Environment UA and Vereniging Leefmilieu

v

College van gedeputeerde staten van Limburg and College van gedeputeerde staten van Gelderland

(Request for a preliminary ruling from the Raad van State)

(Reference for a preliminary ruling — Directive 92/43/EEC — Conservation of natural habitats and of wild fauna and flora — Special areas of conservation — Article 6 — Appropriate assessment of the implications of a plan or project for a site — National programmatic approach to tackling nitrogen deposition — Concepts of ‘project’ and ‘appropriate assessment’ — Overall assessment prior to individual authorisations for farms which cause nitrogen deposition)

Summary — Judgment of the Court (Second Chamber), 7 November 2018

1. Environment — Conservation of natural habitats and of wild fauna and flora — Directive 92/43 — Concept of project on a protected site — Grazing of cattle and application of fertilisers — Included

   (Council Directive 92/43, Art. 6(3); European Parliament and Council Directive 2011/92, Art. 1(2)(a))

2. Environment — Conservation of natural habitats and of wild fauna and flora — Directive 92/43 — Special areas of conservation — Obligations of the Member States — Appropriate assessment of the implications for a site arising from a plan or project — Concept of project on a protected site — Recurring activity authorised before the entry into force of the directive — Included — Conditions

   (Council Directive 92/43, Art.6(2) and (3))

3. Environment — Conservation of natural habitats and of wild fauna and flora — Directive 92/43 — Special areas of conservation — Obligations of the Member States — Appropriate assessment of the implications for a site arising from a plan or project — National programmatic legislation authorising individual projects on the basis of an assessment carried out in advance — Lawfulness — Conditions — To be determined by the national court

   (Council Directive 92/43, Art. 6(3))

4. Environment — Conservation of natural habitats and of wild fauna and flora — Directive 92/43 — Special areas of conservation — Obligations of the Member States — Appropriate assessment of the implications for a site arising from a plan or project — National programmatic legislation exempting from the requirement for approval certain projects not exceeding a certain threshold value or a certain limit value in terms of nitrogen deposition — Lawfulness — Conditions

   (Council Directive 92/43, Art. 6(3))

5. Environment — Conservation of natural habitats and of wild fauna and flora — Directive 92/43 — Special areas of conservation — Obligations of the Member States — Appropriate assessment of the implications for a site arising from a plan or project — National programmatic legislation exempting a certain category of projects from the requirement for approval and assessment — Not permissible — Limit — Objective circumstances making it possible to rule out with certainty any possibility of significantly affecting the site — To be determined by the national court

   (Council Directive 92/43, Art. 6(3))

6. Environment — Conservation of natural habitats and of wild fauna and flora — Directive 92/43 — Appropriate assessment of the implications for a site arising from a plan or project — Identification of the aspects which can affect the site’s conservation objectives — Account to be taken of certain types of measures that are not part of a programme — Condition — Certainty of the benefits of those measures at the time of the assessment

   (Council Directive 92/43, Art. 6(1), (2) and (3))

7. Environment — Conservation of natural habitats and of wild fauna and flora — Directive 92/43 — Special protection areas — Requirement to take appropriate protective measures — Scope — Measures including procedures for the surveillance and monitoring of farms and the possibility of penalties

   (Council Directive 92/43, Art. 6(2))

1.  Article 6(3) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora must be interpreted as meaning that the grazing of cattle and the application of fertilisers on the surface of land or below its surface in the vicinity of Natura 2000 sites may be classified as a project within the meaning of that provision, even if those activities, in so far as they are not a physical intervention in the natural surroundings, do not constitute a project within the meaning of Article 1(2)(a) of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment.

   (see para. 73, operative part 1)

2.  Article 6(3) of Directive 92/43 must be interpreted as meaning that a recurring activity, such as the application of fertilisers on the surface of land or below its surface, authorised under national law before the entry into force of that directive, may be regarded as one and the same project for the purposes of that provision, exempted from a new authorisation procedure, in so far as it constitutes a single operation characterised by a common purpose, continuity and, inter alia, the location and the conditions in which it is carried out being the same. If a single project was authorised before the system of protection laid down by that provision became applicable to the site in question, the carrying out of that project may nevertheless fall within the scope of Article 6(2) of that directive.

   (see para. 86, operative part 2)

3.  Article 6(3) of Directive 92/43 must be interpreted as not precluding national programmatic legislation which allows the competent authorities to authorise projects on the basis of an appropriate assessment within the meaning of that provision, carried out in advance and in which a specific overall amount of nitrogen deposition has been deemed compatible with that legislation’s objectives of protection. That is so, however, only in so far as a thorough and in-depth examination of the scientific soundness of that assessment makes it possible to ensure that there is no reasonable scientific doubt as to the absence of adverse effects of each plan or project on the integrity of the site concerned, which it is for the national court to ascertain.

   (see para. 104, operative part 3)

4.  Article 6(3) of Directive 92/43 must be interpreted as not precluding national programmatic legislation, such as that at issue in the main proceedings, exempting certain projects which do not exceed a certain threshold value or a certain limit value in terms of nitrogen deposition from the requirement for individual approval, if the national court is satisfied that the appropriate assessment within the meaning of that provision, carried out in advance, meets the criterion that there is no reasonable scientific doubt as to the lack of adverse effects of those plans or projects on the integrity of the sites concerned.

   (see para. 112, operative part 4)

5.  Article 6(3) of Directive 92/43 must be interpreted as precluding national programmatic legislation, such as that at issue in the main proceedings, which allows a certain category of projects, in the present case the application of fertilisers on the surface of land or below its surface and the grazing of cattle, to be implemented without being subject to a permit requirement and, accordingly, to an individualised appropriate assessment of its implications for the sites concerned, unless the objective circumstances make it possible to rule out with certainty any possibility that those projects, individually or in combination with other projects, may significantly affect those sites, which it is for the referring court to ascertain.

   (see para. 120, operative part 5)

6.  Article 6(3) of Directive 92/43 must be interpreted as meaning that an appropriate assessment within the meaning of that provision may not take into account the existence of conservation measures within the meaning of paragraph 1 of that article, preventive measures within the meaning of paragraph 2 of that article, measures specifically adopted for a programme such as that at issue in the main proceedings or autonomous measures, in so far as those measures are not part of that programme, if the expected benefits of those measures are not certain at the time of that assessment.

   (see para. 132, operative part 6)

7.  Article 6(2) of Directive 92/43 must be interpreted as meaning that measures introduced by national legislation, such as that at issue in the main proceedings, including procedures for the surveillance and monitoring of farms whose activities cause nitrogen deposition and the possibility of imposing penalties, up to and including the closure of those farms, are sufficient for the purposes of complying with that provision.

   (see para. 137, operative part 7)