Case C‑399/14

Grüne Liga Sachsen eV and Others

v

Freistaat Sachsen

(Request for a preliminary ruling from the Bundesverwaltungsgericht)

‛Reference for a preliminary ruling — Directive 92/43/EEC — Article 6(2) to (4) — Site included in the list of sites of Community importance after a project was authorised but before it began to be carried out — Review of the project after the site was included in that list — Rules governing that review — Consequences of the completion of the project for the choice of alternatives’

Summary — Judgment of the Court (Third Chamber), 14 January 2016

1. Environment — Conservation of natural habitats and of wild fauna and flora — Directive 92/43 — Special areas of conservation — Sites, included in national lists, eligible for identification as sites of Community importance — Protective measures — Authorisation for a plan or project on a protected site — Subsequent inclusion of the site in the list of sites of Community importance — Obligations of the Member States — Carrying out of a new environmental impact assessment — To be determined by the national court

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

2. Environment — Conservation of natural habitats and of wild fauna and flora — Directive 92/43 — Appropriate assessment of the implications of a plan or project for a site — Identification of aspects which can affect the site’s conservation objectives

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

3. Environment — Conservation of natural habitats and of wild fauna and flora — Directive 92/43 — Special areas of conservation — Sites, included in national lists, eligible for identification as sites of Community importance — Protective measures — Authorisation for a plan or project on a protected site — Subsequent inclusion of the site in the list of sites of Community importance — Carrying out of a new environmental impact assessment — Elements to be taken into consideration

   (Council Directive 92/43, Art. 6(2) to (4))

4. Environment — Conservation of natural habitats and of wild fauna and flora — Directive 92/43 — Special areas of conservation — Obligations of the Member States — Assessment of a project’s implications for a site — Carrying out of a new assessment in order to remedy errors found in the first assessment — Finding of a risk of deterioration of natural habitats or of significant disturbance of species — Review of alternative solutions — Consequences of the completion of the project for the choice of alternatives

   (Council Directive 92/43, Art. 6(2) to (4))

1.  Article 6(2) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora must be interpreted as meaning that a plan or project not directly connected with or necessary to the management of a site, and authorised, following a study that did not meet the requirements of Article 6(3) of that directive, before the site in question was included in the list of sites of Community importance must be the subject of a subsequent review, by the competent authorities, of its implications for that site if that review constitutes the only appropriate step for avoiding that the implementation of the plan or project referred to results in deterioration or disturbance that could be significant in view of the objectives of that directive. It is for the referring court to verify whether those conditions are met.

   Article 6(2) of Directive 92/43 establishes a general obligation of protection consisting of taking appropriate protective measures so as to avoid deterioration as well as disturbance which could have significant effects in the light of the directive’s objectives. That obligation is ongoing in nature. Where a probability or risk of such deterioration or disturbance might appear because a subsequent review of the implications or a plan or project for the site concerned on the basis of the best scientific knowledge was not carried out — in the form of an appropriate step within the meaning of that Article 6(2) — the general obligation of protection entails an obligation to carry out that review.

   (see paras 37, 44-46, operative part 1)

2.  See the text of the decision.

   (see paras 49, 50)

3.  Article 6(2) of the Directive 92/43 on the conservation of natural habitats and of wild fauna and flora must be interpreted as meaning that if a subsequent review of the implications for the site concerned of a plan or project which began to be put in hand after that site was included in the list of sites of Community importance proves necessary, that review must be carried out in accordance with the requirements of Article 6(3) of that directive. Such a review must take into account all factors existing at the date of that inclusion and all implications arising or likely to arise following the partial or total implementation of the plan or project on the site in question after that date as well.

   Where Article 6(2) of Directive 92/43 lays down an obligation to carry out a subsequent review of the implications for the site concerned of a plan or project, such a review must enable the competent authority to guarantee that the implementation of the plan or project referred to will not cause deterioration or disturbance which could be significant in relation to the objectives of that directive. Therefore, should a subsequent review, on the basis of that Article 6(2), prove, in the present case, to be an appropriate step within the meaning of that provision, that review must define what risks of deterioration or disturbance likely to be significant within the meaning of that provision are entailed by the implementation of the plan or project, and that review must be carried out in accordance with the requirements of Article 6(3) of that directive.

   Moreover, a review meeting the requirements of Article 6(3) of Directive 92/43 is necessary in every case where, by analogy with Article 6(4) of that directive, a project incompatible with the conservation objectives of the site concerned must be implemented for imperative reasons of overriding public interest.

   (see paras 53, 54, 56, 62, operative part 2)

4.  Directive 92/43 on the conservation of natural habitats and of wild fauna and flora must be interpreted as meaning that, where a new assessment of the implications for a site carried out in order to rectify errors identified in relation to the prior assessment conducted before the inclusion of that site in the list of sites of Community importance or in relation to the subsequent review under Article 6(2) of the Directive 92/43, even though the plan or project has already been implemented, the requirements of a check made in the context of such a review may not be amended on account of the fact that the planning decision approving that plan or project was immediately enforceable, that an application for interim measures had been dismissed and that that dismissal decision was no longer open to appeal. Moreover, that review must take into account the risks of deterioration or disturbance that could be significant, within the meaning of that Article 6(2), which may have arisen because the plan or project has been carried out.

   Should a new assessment conclude that the construction or entry into service of a structure has already caused or risks causing deterioration or disturbance that could be significant in relation to the objectives of Directive 92/43, the possibility nevertheless remains of applying Article 6(4) of that directive by analogy. However, that provision must, as an exception to the criterion for authorisation laid down in the second sentence of paragraph 3 of that article, be interpreted strictly. In that regard, Article 6(4) of Directive 92/43 must be interpreted as meaning that the requirements of the check made in the context of the review of alternative solutions may not be amended on account of the fact that the plan or project has already been implemented. However, the search for an alternative may not disregard any deterioration or disturbance caused by the construction and entry into service of the structure at issue or any advantages it offers. Therefore, the examination of alternative solutions requires weighing the environmental consequences of maintaining or restricting the use of the works at issue, including closure or even demolition, on the one hand, against the important public interest that led to their construction, on the other.

   So far as concerns the economic cost of the steps that may be considered in the review of alternatives, including the demolition of the works already completed, it is not of equal importance to the objective of conserving natural habitats and wild fauna and flora pursued by Directive 92/43. Therefore, account being taken of the strict interpretation of Article 6(4) of that directive, it cannot be accepted that the economic cost of such measures alone may be a determining factor in the choice of alternative solutions under that provision.

   (see paras 71, 73, 74, 77, 78, operative part 3)