Case C‑504/14

European Commission

v

Hellenic Republic

(Failure of a Member State to fulfil obligations — Environment — Nature conservation — Directive 92/43/EEC — Article 6(2) and (3) and Article 12(1)(b) and (d) — Wild fauna and flora — Conservation of natural habitats — Sea turtle Caretta caretta — Protection of sea turtles in the Gulf of Kyparissia — ‘Dunes of Kyparissia’ Site of Community importance — Protection of species)

Summary — Judgment of the Court (Fourth Chamber), 10 November 2016

1. Environment—Conservation of natural habitats and of wild fauna and flora—Directive 92/43—Special areas of conservation—Obligations of the Member States—Prohibition of deterioration of natural habitats and the habitats of species—Failure to fulfil obligations—Burden of proof on the Commission—Scope

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

2. Environment—Conservation of natural habitats and of wild fauna and flora—Directive 92/43—Special areas of conservation—Obligations of the Member States—Establishment of the necessary conservation measures—Failure to adopt provisional measures for the protection of an area pending the conclusion of court proceedings concerning a construction project having damaging effects—Failure to fulfil obligations

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

3. Action for failure to fulfil obligations—Examination of the merits by the Court—Situation to be taken into consideration—Situation on expiry of the period laid down in the reasoned opinion

   (Art. 258 TFEU)

4. Environment—Conservation of natural habitats and of wild fauna and flora—Directive 92/43—Special areas of conservation—Obligations of the Member States—Prohibition of deterioration of natural habitats and the habitats of species—Exception for projects that are justified by imperative reasons of overriding public interest—Need to examine whether there are other, less detrimental solutions and to weigh up the interests concerned

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

5. Environment—Conservation of natural habitats and of wild fauna and flora—Directive 92/43—Special areas of conservation—Obligations of the Member States—Prohibition of deterioration of natural habitats and the habitats of species—Scope—Application to both new harmful activities and existing such activities

   (Council Directive 92/43, Arts 4(2) and 6(2))

6. Action for failure to fulfil obligations—Proof of failure—Burden of proof on the Commission—Production of evidence showing failure

   (Art. 258 TFEU)

7. 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 the implications of a project for a site—Obligation not applicable where an action has been undertaken without authorisation from the Member State concerned

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

8. Environment—Conservation of natural habitats and of wild fauna and flora—Directive 92/43—Strict protection for the animal species listed in Annex IV(a)—Measures necessary for establishing a system of protection

   (Council Directive 92/43, Art. 12(1)(b) and (d) and Annex IV(a))

9. Environment—Conservation of natural habitats and of wild fauna and flora—Directive 92/43—Protection of species—Obligations of the Member States—Concept of deliberate disturbance

   (Council Directive 92/43, Art. 12(1))

1.  An activity can be considered to comply with Article 6(2) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora only if it is guaranteed that it will not cause any disturbance that is likely significantly to affect the objectives of the directive, in particular its objectives concerning the conservation of natural habitats and of wild fauna and flora. In order to find an infringement of Article 6(2) of Directive 92/43, the Commission must demonstrate to a sufficient legal standard that the Member State concerned has not taken the appropriate protective measures to prevent the operational activities of projects — in so far as these took place after designation of the site in question — from giving rise to deterioration of the habitats of the species concerned and disturbance of those species likely to have significant effects in view of the directive’s objective of ensuring the conservation of those species.

   Nonetheless, in order to establish an infringement of Article 6(2) of Directive 92/43, the Commission does not have to establish the existence of a cause-and-effect relationship between the operation of installations resulting from a project and significant disturbance caused to the species concerned. It is sufficient for the Commission to establish that there is a probability or risk that that operation might cause such disturbance. However, the fact that the Commission proves that there is such a probability or risk does not mean that it is impossible for the Member State concerned to establish that the measure in question meets the conditions laid down by Article 6(4) of Directive 92/43 and that its implications for the conservation objectives of the protected site have been assessed.

   (see paras 28-30)

2.  Although a Member State has neither authorised nor carried out the opening up of roads within a special area of conservation within the meaning of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora, confining itself (i) to bringing criminal proceedings against the executives of the company that built the roads in question and imposing administrative penalties on that company and (ii) to claiming, before the national courts, that the roads concerned are illegal and must be removed, that Member State has failed to fulfil the specific obligation imposed on it by Article 6(2) of Directive 92/43.

   By failing to take provisional measures for the protection of that area in order to restrict use of the thoroughfares at issue until the conclusion of the various pending court proceedings concerning the legality and possible closure of those thoroughfares, when there is nothing to suggest that such measures would not be possible either for practical reasons or for reasons relating to EU law, the Member State concerned has failed to fulfil its obligations under Article 6(2) of Directive 92/43.

   (see paras 54, 55, 57)

3.  See the text of the decision.

   (see para. 69)

4.  Whilst the construction on a beach within a special area of conservation of a platform designed to facilitate the movement of disabled persons may, in principle, be regarded as having been carried out for imperative reasons of overriding public interest relating to human health, for the purposes of Article 6(4) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora, such a justification requires there to be inter alia an examination of whether there are other, less detrimental solutions and a weighing up of the interests concerned, based on an assessment under Article 6(3) of the directive of the implications for the conservation objectives of the protected site. In the absence of any explanation on the part of the Member State concerned in that regard, authorisation of such a platform constitutes an infringement of Article 6(2) of Directive 92/43.

   (see para. 77)

5.  Under Directive 92/43 on the conservation of natural habitats and of wild fauna and flora, the prohibition of deterioration laid down therein is not limited to an obligation, on the part of the Member State concerned, to prohibit or bring to an end only new harmful activities. In that regard, by failing to take the appropriate protective measures in order to prevent –– from the time when a special area of conservation is placed on the list of sites of Community importance referred to in Article 4(2) of the directive –– existing street lighting from disturbing the Caretta caretta sea turtle, the Member State concerned has failed to fulfil its obligations under Article 6(2) of Directive 92/43.

   (see paras 100, 101)

6.  See the text of the decision.

   (see para. 111)

7.  Article 6(3) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora establishes an assessment procedure intended to ensure, by means of a prior examination, that a plan or project not directly connected with or necessary to the management of the site concerned but likely to have a significant effect on it is authorised only to the extent that it will not adversely affect the integrity of that site. Accordingly, that provision is relevant only when the competent national authorities grant authorisation for a project, as that authorisation must in such a case be preceded by an appropriate assessment of the implications of the project for the site concerned.

   Consequently, Article 6(3) of Directive 92/43 does not apply in respect of any action whose implementation was subject to authorisation but which was carried out without authorisation and thus unlawfully.

   (see paras 120-122)

8.  See the text of the decision.

   (see paras 140, 141, 148)

9.  See the text of the decision.

   (see para. 159)