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Document 62022CJ0434

Judgment of the Court (Ninth Chamber) of 7 December 2023.
AS 'Latvijas valsts meži' v Dabas aizsardzības pārvalde and Vides pārraudzības valsts birojs.
Request for a preliminary ruling from the Administratīvā rajona tiesa.
Reference for a preliminary ruling – Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43/EEC – Article 6(3) – Concept of ‘plan or project’ on a protected site – Intervention in a forest to protect it from fire – Need to carry out a prior assessment of the implications of that intervention for the site concerned.
Case C-434/22.

Court reports – general

ECLI identifier: ECLI:EU:C:2023:966

Provisional text

JUDGMENT OF THE COURT (Ninth Chamber)

7 December 2023 (*)

(Reference for a preliminary ruling – Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43/EEC – Article 6(3) – Concept of ‘plan or project’ on a protected site – Intervention in a forest to protect it from fire – Need to carry out a prior assessment of the implications of that intervention for the site concerned)

In Case C‑434/22,

REQUEST for a preliminary ruling under Article 267 TFEU from the administratīvā rajona tiesa, Rīgas tiesu nams (District Administrative Court, Riga Section, Latvia), made by decision of 30 June 2022, received at the Court on 30 June 2022, in the proceedings

‘Latvijas valsts meži’ AS

v

Dabas aizsardzības pārvalde,

Vides pārraudzības valsts birojs,

intervening party:

Valsts meža dienests,

THE COURT (Ninth Chamber),

composed of J.-C. Bonichot (Rapporteur), acting as President of the Chamber, S. Rodin and L.S. Rossi, Judges,

Advocate General: J. Kokott,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–        ‘Latvijas valsts meži’ AS, by M. Gūtmanis,

–        Dabas aizsardzības pārvalde, by A. Svilāns,

–        the European Commission, by C. Hermes and I. Naglis, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 13 July 2023,

gives the following

Judgment

1        This request for a preliminary ruling concerns the interpretation of 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 (OJ 1992 L 206, p. 7, ‘the Habitats Directive’).

2        The request has been made in proceedings between ‘Latvijas valsts meži’ AS and the Regional Administration of Kurzeme of the Dabas aizsardzības pārvalde (Environmental Protection Authority, Latvia) concerning the decision of the Director-General of that authority, dated 22 March 2021, requiring that company to take various measures designed to reduce the adverse effects of the felling of trees in the special area of conservation of Community importance (Natura 2000) of Ances purvi un meži (Marshes and forests of Ance), located in Latvia.

 Legal context

 European Union law

 The Habitats Directive

3        Article 1(l) of the Habitats Directive defines a special area of conservation as ‘a site of Community importance designated by the Member States through a statutory, administrative and/or contractual act where the necessary conservation measures are applied for the maintenance or restoration, at a favourable conservation status, of the natural habitats and/or the populations of the species for which the site is designated’.

4        The designation of special areas of conservation is provided for in Article 4(4) of that directive:

‘Once a site of Community importance has been adopted in accordance with the procedure laid down in paragraph 2, the Member State concerned shall designate that site as a special area of conservation as soon as possible and within six years at most, establishing priorities in the light of the importance of the sites for the maintenance or restoration, at a favourable conservation status, of a natural habitat type in Annex I or a species in Annex II and for the coherence of Natura 2000, and in the light of the threats of degradation or destruction to which those sites are exposed.’

5        The protection of Natura 2000 sites is governed, inter alia, by Article 6 of that directive, which provides:

‘1.      For special areas of conservation, Member States shall establish the necessary conservation measures involving, if need be, appropriate management plans specifically designed for the sites or integrated into other development plans, and appropriate statutory, administrative or contractual measures which correspond to the ecological requirements of the natural habitat types in Annex I and the species in Annex II present on the sites.

2.      Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.

3.      Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.

4.      If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the [European] Commission of the compensatory measures adopted.

Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest.’

 The EIA Directive

6        Under 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 (OJ 2012 L 26, p. 1, the ‘EIA Directive’):

‘For the purposes of this Directive, the following definitions shall apply:

(a)    “project” means:

–        the execution of construction works or of other installations or schemes,

–        other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources’.

 Latvian law

 Law on Special Areas of Conservation

7        The Habitats Directive was transposed into Latvian law by the likums ‘Par īpaši aizsargājamām dabas teritorijām’ (Law on Special Areas of Conservation) of 2 March 1993 (Latvijas Vēstnesis, 1993, No 5).

8        Under Article 15 of that law, entitled ‘Rules for the protection and use of areas of conservation’:

‘(1)      Rules governing the protection and use of areas of conservation may be introduced in order to ensure the protection of such areas and to preserve the natural values they contain.

(2)      For areas of conservation, there are general rules of protection and use, individual rules of protection and use, and plans for nature protection’.

9        Under Article 43 of that law, entitled ‘Special areas of conservation of Community importance’:

‘…

(4)      an environmental impact assessment must be performed on any proposed activity or planning document (with the exception of nature protection plans for conservation areas and activities proposed in such plans which are necessary for the management or restoration of specially protected species habitats, specially protected species habitats of restricted use or specially protected biotopes, or for the organisation of infrastructure for research purposes and for nature tourism accessible to the public provided for in nature protection plans for conservation areas) which, individually or in combination with other proposed activities or planning documents, may have a substantial impact on an area of conservation of Community importance (Natura 2000). …’

 Law on Fire Safety and Firefighting

10      The first paragraph of Article 10.1 of the Ugunsdrošības un ugunsdzēsības likums (Law on Fire Safety and Firefighting) of 24 October 2002 (Latvijas Vēstnesis, 2002, No 165) provides that the owner or possessor of a forest is under a duty to ensure compliance with forest fire safety requirements.

11      Article 12 of the Law on Fire Safety and Firefighting establishes that the Council of Ministers is to determine the requirements to be satisfied by natural or legal persons in order to prevent and effectively extinguish fires and mitigate their impact, irrespective of the form of ownership and the location of the object in question.

 Decree No 238

12      Article 1 of Ministru kabineta noteikumi Nr. 238 ‘Ugunsdrošības noteikumi’ (Decree No 238 of the Council of Ministers on fire prevention) of 19 April 2016 (Latvijas Vēstnesis, 2016, No 78) (‘Decree No 238’) states that that decree lays down the requirements for the prevention of risks with which natural or legal persons must comply in order to prevent and effectively extinguish fires and mitigate their impact, irrespective of the form of ownership and the location of the object in question.

13      Article 2(7)1 of that decree specifies that the following are forest fire safety infrastructures: forest paths; firebreaks; mineralised strips; natural roads; ‘water supply points’ with access used for firefighting purposes, and fire lookout towers.

14      Article 417(3) of that decree provides that, before 1 May of each year, the person responsible for the forest area concerned is to remove from forest paths and natural roads which may be used for firefighting purposes any undergrowth which may hinder the passage of firefighting vehicles.

15      Article 417(4) of Decree No 238 provides that, before 1 May of each year, the person responsible for a forest area must service the roads and the access routes to ‘water supply points’ used for firefighting purposes, and must maintain them in a condition which enables access by firefighting vehicles.

16      Article 418 of that decree states that, where the person responsible for a forest area manages a continuous area of forest of more than 5 000 hectares, that person is to prepare and implement a forest fire prevention plan for that entire forest area. That plan is to be accompanied by cartographic maps of that forest area.

 Decree No 478

17      Article 2 of the Ministru kabineta noteikumi Nr. 478 Dabas lieguma ‘Ances purvi un meži’ individuālie aizsardzības un izmantošanas noteikumi’ (Decree No 478 of the Council of Ministers laying down specific rules for the preservation and use of the protected natural area ‘Marshes and forests of Ance’), of 16 August 2017 (Latvijas Vēstnesis, 2017, No 164) (‘Decree No 478’) provides that that natural area is created to ensure the conservation of the landscape of coastal depressions and dunes characteristic of the site, and to protect specially protected biotopes and species of importance to the Republic of Latvia and the European Union.

18      Article 11 of that decree provides:

‘The following shall be prohibited in forest areas:

… 11.2.      the felling of dry trees and the removal of fallen trees, dead trees or parts thereof, the diameter of which at the thickest point is greater than 25 cm, if their total volume is less than 20 cubic metres per hectare of forest stand, with the following exceptions:

11.2.1.      the felling and removal of dangerous trees, provided the trees are left in the stand;

11.2.2.      carrying out those activities in EU priority forest biotopes: bog woodland (91D0*), swamp woods (9080*), alluvial forests on riverbanks and floodplains (91E0*), and old or natural boreal forests (9010*), where it is prohibited to fell dry trees and remove fallen trees, dead trees or parts thereof, the diameter of which at the thickest point is greater than 25 cm. …’

19      Article 23.3.3 of that decree states that, from 1 February to 31 July, forestry activities are prohibited in a seasonal natural protected area, with the exception of forest protection and firefighting measures.

20      Furthermore, the protected natural area of ‘Marshes and forests of Ance’ is also the subject of a nature protection plan (Plan for 2016 to 2028, ‘the nature protection plan’), which was approved under the vides aizsardzības un reģionālās attīstības ministra rīkojums Nr. 105 (Order No 105 of the Minister for Environmental Protection and Regional Development) of 28 April 2016.

 The dispute in the main proceedings and the questions referred for a preliminary ruling

21      The protected natural area concerned is a special area of conservation of Community importance (Natura 2000) located in the municipality of Ventspils (Latvia). Covering an area of 9 822 hectares, that area was created to ensure the conservation and management of biotopes and habitats of rare animal and plant species protected in Latvia and in the European Union, as well as the landscape of coastal depressions and dunes typical of that region.

22      On 7 and 14 January 2021, employees of the Environmental Protection Authority of the Regional Administration of Kurzeme inspected the natural area concerned and found that the applicant in the main proceedings had felled trees in that area along natural roads over a distance of approximately 17 kilometres.

23      That environmental protection authority took the view that the measure concerned was not provided for either by the protection plan or by Decree No 478 and that it should have been subject, at the outset, to a procedure for the assessment of its implications.

24      By decision of 15 January 2021, that authority ordered the applicant in the main proceedings to reduce the adverse effects of the activities carried out in the protected natural area concerned and to leave in the forest stands the felled pine trees the diameter of which at the thickest point was greater than 25 centimetres, so that through their decomposition those pine trees could become a substrate conducive to the development of species of insects specially protected in that area, in particular the coniferous longhorn beetle (Tragosoma depsarium) and the great longhorn beetle (Ergates faber).  The Environmental Protection Authority also ordered the applicant in the main proceedings to replenish the amount of dead wood in the EU priority protected biotope 9010* ‘Old or natural boreal forests’, on the ground that it was insufficient.

25      The applicant in the main proceedings challenged that decision. However, the Director-General of the Environmental Protection Authority upheld that decision by decision of 22 March 2021 (‘the decision at issue in the main proceedings’).

26      The applicant in the main proceedings brought an action before the administratīvā rajona tiesa, Rīgas tiesu nams (District Administrative Court, Riga Section, Latvia), which is the referring court, seeking the annulment of the decision at issue in the main proceedings.

27      It submitted that the activities of which it was accused are required by the applicable national legislation on the prevention of the risk of forest fires, which involves maintaining forest paths and natural roads, including the felling of trees on the basis of permits issued by the Valsts meža dienests (National Forestry Service, Latvia), that those activities are not subject to the assessment procedure provided for in Article 6(3) of the Habitats Directive and that those activities were carried out in accordance with the protection plan and Decree No 478.

28      The applicant in the main proceedings also submits that the measures imposed by the decision at issue in the main proceedings have adverse effects on fire safety and firefighting in the protected natural area concerned. According to the referring court, the National Forestry Service made the same finding.

29      The referring court considers that it must determine whether the activities carried out by the applicant in the main proceedings are activities subject to the procedure for the assessment of the implications of the plans and projects envisaged in the special areas of conservation of Community importance (Natura 2000), as provided for in Article 6(3) of the Habitats Directive.

30      To that end, the referring court is of the view that it must first assess whether the activities at issue in the main proceedings constitute a ‘plan’ or a ‘project’ within the meaning of Article 6(3) of that directive, since only ‘plans’ and ‘projects’ likely to affect a special area of conservation must be subject to an appropriate assessment of their implications under that provision.

31      If that classification must be adopted in respect of the works concerned, the referring court also raises the question whether those works are directly connected with or necessary to the management of the protected natural area concerned, in so far as they are intended to preserve that protected natural area from the risk of fire. Under Article 6(3) of the Habitats Directive, the assessment of the implications for the site concerned is not required for plans or projects directly connected with or necessary to the management of that site.

32      Even in the absence of such a connection or such a need for the management of the site, the referring court asks whether an assessment of the implications of the activities at issue is nevertheless necessary, even though those activities are required by the applicable national legislation on the prevention of the risk of forest fires.

33      In those circumstances, the administratīvā rajona tiesa, Rīgas tiesu nams (District Administrative Court, Riga Section) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Does the concept of “project” within the meaning of Article 1(2)(a) of [the EIA Directive] also include activities undertaken in a forest area to ensure maintenance of the area’s forest fire protection infrastructure installations in accordance with the fire protection requirements established in the applicable legislation?

(2)      If the answer to the first question is in the affirmative, must the activities undertaken in a forest area to ensure maintenance of the area’s forest fire protection infrastructure installations in accordance with the fire protection requirements established in the applicable legislation be deemed, for the purposes of Article 6(3) of [the Habitats Directive] to constitute a project which is directly connected with or necessary to that management, meaning that an assessment procedure for special areas of conservation of [Community] importance (Natura 2000) is not required for the activities in question?

(3)      If the answer to the second question is in the negative, does Article 6(3) of [the Habitats Directive] also require an assessment to be carried out for plans and projects (activities) which are not directly connected with or necessary to the management of the special area of conservation but which are likely to have a significant effect on conservation areas of [Community] importance (Natura 2000), but which are nevertheless undertaken in accordance with national legislation in order to satisfy forest fire protection and firefighting requirements?

(4)      If the answer to the third question is in the affirmative, is it possible to continue and complete the activity in question before carrying out an assessment procedure for special areas of conservation of [Community] importance (Natura 2000) ex post facto?

(5)      If the answer to the third question is in the affirmative, in order to avoid a possibly significant impact, are the competent authorities under a duty to require the damage to be made good and to adopt measures if the significance of the impact was not assessed during the assessment procedure for special areas of conservation of [Community] importance (Natura 2000)?’

 Consideration of the questions referred

 The first question

34      By its first question, the referring court asks, in essence, whether Article 6(3) of the Habitats Directive must be interpreted as meaning that the concept of ‘project’, within the meaning of that provision, includes activities carried out in a forest area, designated as a special area of conservation, for the purpose of ensuring the maintenance of forest fire safety infrastructure in that area, in accordance with the requirements laid down by national legislation on the prevention of the risk of forest fires.

35      As a preliminary point, it should be recalled that that provision provides that, in special areas of conservation, within the meaning of Article 1(b) of the Habitats Directive, ‘any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives’.

36      In the first place, it should be noted that the Habitats Directive does not contain a definition of the concept of ‘project’. By contrast, Article 1(2)(a) of the EIA Directive, to which the referring court expressly referred in its question, provides a definition according to which a ‘project’, within the meaning of that directive, includes the execution of construction works or of other installations or schemes, as well as other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources.

37      The Court has held that the concept of ‘project’, within the meaning of the Habitats Directive, encompasses that of ‘project’ within the meaning of the EIA Directive, so that, if an activity is covered by the EIA Directive, it must, a fortiori, be covered by the Habitats Directive (judgment of 9 September 2020, Friends of the Irish Environment, C‑254/19, EU:C:2020:680, paragraph 29 and the case-law cited).

38      In the second place, it is apparent from the Court’s case-law that a ‘project’, within the meaning of the EIA Directive, involves carrying out works or interventions involving alterations to the physical aspect of the site concerned (see, to that effect, judgment of 17 March 2011, Brussels Hoofdstedelijk Gewest and Others, C‑275/09, EU:C:2011:154, paragraph 24). In the present case, the activities at issue in the main proceedings consisted of tree felling intended to ensure the maintenance of natural roads crossing the protected natural area concerned. Therefore, they satisfy the substantive criterion of the concept of ‘project’ within the meaning of the EIA Directive.

39      By contrast, there is no legal criterion limiting that concept. That is why the fact that the tree felling works at issue were required by the applicable national legislation on the prevention of the risk of forest fires is not capable of calling into question the classification of those works as a ‘project’ within the meaning of the EIA Directive.

40      It follows from the foregoing that those tree felling works constitute a ‘project’ within the meaning of the EIA Directive and, consequently, a ‘project’ within the meaning of Article 6(3) of the Habitats Directive.

41      In the light of all the foregoing considerations, the answer to the first question is that Article 6(3) of the Habitats Directive must be interpreted as meaning that the concept of ‘project’, within the meaning of that provision, includes activities carried out in a forest area, designated as a special area of conservation, in order to ensure the maintenance of forest fire safety infrastructure in that area, in accordance with the requirements laid down by the applicable national legislation on the prevention of the risk of forest fires, where those activities alter the physical aspect of the site concerned.

 The second question

42      By its second question, the referring court asks, in essence, whether Article 6(3) of the Habitats Directive must be interpreted as meaning that the activities carried out in a forest area, designated as a special area of conservation, in order to ensure the maintenance of forest fire safety infrastructure in that area, in accordance with the requirements laid down by the applicable national legislation on the prevention of the risk of forest fires, must be regarded as a project ‘directly connected with or necessary to the management of the site’, within the meaning of that provision, and, consequently, do not have to be subject to an assessment of their implications for the site concerned.

43      Under Article 6(3) of the Habitats Directive, although the works at issue in the main proceedings, which were carried out in accordance with the applicable national legislation on the prevention of the risk of forest fires, are directly connected with or necessary to the management of the site concerned, they did not have to be subject to an assessment of their implications for that site.

44      In the first place, it is clear from Article 1(l) of the Habitats Directive that a special area of conservation is to be designated with a view to maintaining or restoring, at a favourable conservation status, certain natural habitats or species. To that end, Member States are to establish, pursuant to Article 6(1) of the Habitats Directive, the necessary conservation measures involving, if need be, appropriate management plans specifically designed for the sites concerned or integrated into other development plans, and appropriate statutory, administrative or contractual measures which correspond to the ecological requirements of the natural habitat types in Annex I to that directive and the species in Annex II thereto present on those sites.

45      It follows from the foregoing that the conservation measures referred to in Article 6(1) of the Habitats Directive must be directly connected with or necessary to the management of the site concerned, within the meaning of Article 6(3) of that directive.

46      In the second place, as the Advocate General observed in point 37 of her Opinion, precautionary measures to prevent or combat fires may be connected with or necessary to the management of a protected site. Moreover, according to the request for a preliminary ruling, both the protection plan and Decree No 478 contain indirect information on the need to adopt measures to prevent the risk of forest fires on the site concerned.

47      However, not all measures intended to protect a special area of conservation against the risk of forest fires are directly connected with or necessary to the management of the site concerned. Those measures must also be necessary for the maintenance or restoration, at a favourable conservation status, of protected habitats or species and proportionate to those objectives, which presupposes that they are appropriate to the area concerned and are such as to enable those objectives to be achieved.

48      As regards, in the present case, the tree felling works intended to maintain natural roads in a protected area, it is necessary to evaluate whether those works affect certain conservation objectives and, if so, whether the risk of future damage by fires to the site concerned justifies those works in the light of all the characteristics of that area.

49      Such an evaluation requires an appropriate assessment of the implications of the proposed fire prevention measures pursuant to Article 6(3) of the Habitats Directive.

50      This is not the case only if those measures are already included in those adopted pursuant to Article 6(1) of the Habitats Directive and which are, as such, directly connected with or necessary to the management of the site concerned.

51      In the light of all the foregoing considerations, the answer to the second question is that Article 6(3) of the Habitats Directive must be interpreted as meaning that the activities carried out in a forest area, designated as a special area of conservation, in order to ensure the maintenance of forest fire safety infrastructure in that area, in accordance with the requirements laid down by the applicable national legislation on the prevention of the risk of forest fires, cannot, because of the mere fact that they have such a purpose, be regarded as directly connected with or necessary to the management of the site concerned and cannot therefore be exempted on that ground from the assessment of their implications for that site, unless they are among the measures for the conservation of that site already adopted pursuant to Article 6(1) of the Habitats Directive.

 The third question

52      By its third question, the referring court asks, in essence, whether Article 6(3) of the Habitats Directive must be interpreted as requiring an assessment to be carried out of the plans and projects referred to in that provision, even where their implementation is required by the applicable national legislation on the prevention of the risk of forest fires.

53      In the first place, it should be borne in mind that any plan or project not directly connected with or necessary to the management of a site, but likely to have a significant effect thereon, must be subject to an appropriate assessment of its implications for that site, a requirement which involves identifying, assessing and taking into consideration all the implications of that plan or project for that site. Such a plan or project must be subject to such an assessment where there is a probability or a risk that it will have a significant effect on the site concerned, a condition which, in the light of the precautionary principle, must be regarded as being fulfilled where the existence of a probability or a risk of significant adverse effects on that site cannot be excluded on the basis of the best scientific knowledge in the field, taking account, in particular, of the characteristics and specific environmental conditions of that site (see, to that effect, judgment of 10 November 2022, AquaPri, C‑278/21, EU:C:2022:864, paragraphs 49 and 50 and the case-law cited). It is for the referring court to assess whether the project at issue in the main proceedings is likely to have a significant effect on the site concerned, given that, as the Advocate General observed in point 45 of her Opinion, the applicable national legislation on the prevention of the risk of forest fires cannot exempt a plan or project from compliance with the requirements of Article 6(3) of the Habitats Directive.

54      That being said, and in the second place, it must be pointed out that there is no contradiction between the obligation under national law to adopt certain measures to prevent and combat forest fires and the obligation, laid down in Article 6(3) of the Habitats Directive, to make those measures subject to a prior assessment of their implications for the site concerned, where they are likely to have a significant effect on a special area of conservation.

55      First, that assessment makes it possible, on the contrary, to define the detailed rules for implementing those measures which are best suited to the maintenance or restoration, at a favourable conservation status, of the natural habitats or species for the protection of which the special area of conservation concerned was established.

56      Second, even where the assessment finds that the proposed measures have a negative effect on the site and there are no alternative solutions, Article 6(4) of the Habitats Directive provides that those measures may nevertheless be implemented where justified by imperative reasons of overriding public interest, provided that the Member State takes all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected (see, to that effect, judgment of 17 April 2018, Commission v Poland (Białowieża Forest), C‑441/17, EU:C:2018:255, paragraph 190).

57      In the third place and in any event, it must be recalled that the Court has held that Article 6(3) of the Habitats Directive cannot authorise a Member State to enact national legislation which allows the environmental impact assessment obligation for certain types of plans or projects to benefit from a general waiver (judgment of 22 June 2022, Commission v Slovakia (Protection of the capercaillie), C‑661/20, EU:C:2022:496, paragraph 69 and the case-law cited).

58      The possibility of allowing certain activities to benefit from a general waiver, in accordance with the national legislation in force, from the assessment of their implications for the protected site concerned would undermine the integrity of that site.

59      Moreover, it should be noted that, in the present case, it is apparent from the file submitted to the Court that the applicable national legislation on the prevention of the risk of forest fires does not provide for such a possibility.

60      In the light of all the foregoing considerations, the answer to the third question is that Article 6(3) of the Habitats Directive must be interpreted as requiring an assessment to be carried out of plans and projects covered by that article, even where their implementation is required by the applicable national legislation on the prevention of the risk of forest fires.

 The fourth question

61      By its fourth question, the referring court asks, in essence, whether Article 6(3) of the Habitats Directive must be interpreted as meaning that activities intended to ensure the maintenance of forest fire safety infrastructure in a forest area, designated as a special area of conservation, may be continued and completed before the implementation of the procedure for assessing their implications laid down in that provision.

62      According to the second sentence of Article 6(3) of the Habitats Directive, ‘in the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public’. Thus, no plan or project may be implemented in a special area of conservation before its implications for the site concerned have been assessed.

63      The Court has repeatedly confirmed the preliminary nature of the assessment procedure provided for in Article 6(3) of the Habitats Directive (judgments of 7 September 2004, Waddenvereniging and Vogelbeschermingsvereniging, C‑127/02, EU:C:2004:482, paragraph 34; of 11 April 2013, Sweetman and Others, C‑258/11, EU:C:2013:220, paragraph 28; and of 21 July 2016, Orleans and Others, C‑387/15 and C‑388/15, EU:C:2016:583, paragraph 43).

64      As the Advocate General stated in point 54 of her Opinion, it is also essential that the assessment of the implications of the plan or project precedes its implementation. First, an ex post assessment would not allow adverse effects on the conservation status of the site to be prevented. Second, it is often difficult to assess the extent of those implications in the absence of a prior inventory of the initial state of the site.

65      Accordingly, the Habitats Directive does not allow a plan or project to be implemented in a special area of conservation or, a fortiori, to be continued and completed before an appropriate assessment of its implications for the site concerned has been carried out.

66      That prohibition applies to activities carried out in a forest area, designated as a special area of conservation, in order to ensure the maintenance of forest fire safety infrastructure in that area, where those activities constitute a project, within the meaning of Article 6(3) of the Habitats Directive, as is apparent from the Court’s answer to the first question.

67      By contrast, that prohibition does not apply to activities carried out under site conservation measures adopted pursuant to Article 6(1) of the Habitats Directive. As stated in paragraphs 52 and 53 of the present judgment, those activities must be regarded, on that basis, as directly connected with or necessary to the management of the site.

68      Accordingly, if the activities involved in maintaining forest fire safety infrastructure have already been provided for by site conservation measures pursuant to Article 6(1) of the Habitats Directive, they do not have to be subject to the assessment provided for in Article 6(3) of that directive.

69      As the Advocate General observed in point 57 of her Opinion, it is also necessary to account for the case where a current or imminent risk requires the immediate completion of the measures necessary for the protection of the site. In such a situation, the prior completion of the procedure for assessing the implications of those measures for the site might not serve the objective of that procedure, namely the preservation of the site, but might, on the contrary, be detrimental to it.

70      That may be the case, in particular, for emergency measures to protect against and combat forest fires. It is for the referring court to assess whether carrying out the works at issue in the main proceedings, without prior assessment of their implications for the protected natural area concerned, could be justified on that basis.

71      In the light of the foregoing considerations, the answer to the fourth question is that Article 6(3) of the Habitats Directive must be interpreted as meaning that activities intended to ensure the maintenance of forest fire safety infrastructure in a forest area, designated as a special area of conservation, may not be initiated or, a fortiori, continued and completed before the completion of the procedure for assessing their implications laid down in that article, unless those activities are among the conservation measures for the site concerned already adopted pursuant to Article 6(1) of that directive or a current or imminent risk detrimental to the preservation of that site requires their immediate implementation.

 The fifth question

72      By its fifth question, the referring court asks, in essence, whether Article 6(3) of the Habitats Directive must be interpreted as requiring the competent authorities to adopt measures in order to remedy any significant effect of works carried out without the prior assessment provided for in that provision and to require compensation for the damage caused by those works.

73      As a preliminary point, it is necessary to consider the usefulness of the fifth question, as formulated, for the resolution of the dispute in the main proceedings.

74      By the decision at issue in the main proceedings, the Director-General of the Environmental Protection Authority ordered the applicant in the main proceedings, first, to leave in situ the felled pines with a stump which had a diameter of more than 25 centimetres and, second, to replenish the amount of dead wood in the protected priority biotope 9010* ‘Old or natural boreal forests’, which she estimated to be at an insufficient level.

75      As the Advocate General observed in points 69 and 72 of her Opinion, the first injunction seeks to prevent works carried out in breach of Article 6(3) of the Habitats Directive from continuing, and the second is a reminder of Article 11.2 of Decree No 478 requiring the removal of dead wood to be dispensed with where the quantity of it is insufficient.

76      In other words, the decision at issue in the main proceedings does not appear to be intended to remedy the effects of the works carried out by the applicant in the main proceedings or to require it to pay compensation for the damage caused by those works.

77      However, it should be recalled that it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court.

78      In the present case, it is apparent from the request for a preliminary ruling that the fifth question, like the other questions referred, concerns the interpretation of Article 6(3) of the Habitats Directive and it is not obvious that it is of no use to the resolution of the dispute in the main proceedings. The Court therefore has jurisdiction to answer it.

79      In the first place, it should be noted that the Habitats Directive, in particular Article 6(3) thereof, does not contain any provisions relating to the consequences of a breach of the obligation to carry out a prior assessment of the implications of a plan or project (see, to that effect, judgment of 29 July 2019, Inter-Environnement Wallonie and Bond Beter Leefmilieu Vlaanderen, C‑411/17, EU:C:2019:622, paragraph 169).

80      Article 6(2) of that directive merely requires Member States to ‘take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of [that] Directive’.

81      Under the principle of sincere cooperation, laid down in Article 4(3) TEU, Member States are nevertheless required to nullify the unlawful consequences of a breach of EU law (judgments of 16 December 1960, Humblet v Belgian State, 6/60-IMM, EU:C:1960:48, p. 1146, and of 7 January 2004, Wells, C‑201/02, EU:C:2004:12, paragraph 64). That obligation applies to every organ of the Member State concerned and, in particular, to the national authorities which have the obligation to take all measures necessary, within the sphere of their competence, to remedy the failure to carry out an environmental impact assessment (see, to that effect, judgment of 12 November 2019, Commission v Ireland (Derrybrien wind farm), C‑261/18, EU:C:2019:955, paragraph 75). That obligation also applies to undertakings belonging to the Member State concerned (see, to that effect, judgment of 12 November 2019, Commission v Ireland (Derrybrien wind farm), C‑261/18, EU:C:2019:955, paragraph 91).

82      In accordance with that principle, the Member State concerned is also required to make good any harm caused by the failure to carry out an environmental impact assessment of a plan or project (judgment of 7 January 2004, Wells, C‑201/02, EU:C:2004:12, paragraph 66).

83      By contrast, the mere principle of sincere cooperation, which applies only to the Member States and their organs, cannot give rise to an obligation on individuals to make good damage caused to the environment in a special area of conservation by works which they have undertaken without those works having been subject to the appropriate assessment provided for in Article 6(3) of the Habitats Directive.

84      Since the Habitats Directive does not contain any provision relating to compensation for environmental damage and, in any event, no obligation can be imposed on individuals solely on the basis of that directive, the obligation to make good damage of the type at issue in the main proceedings can arise only from Latvian law.

85      It should be added that, if such an obligation were laid down in Latvian law, which it is for the referring court to ascertain, the competent national authorities would be obliged to apply it.

86      Consequently, Article 6(3) of the Habitats Directive, read in the light of the principle of sincere cooperation, cannot require the competent authorities to require individuals to make good such damage.

87      Accordingly, that provision does not require the applicant in the main proceedings to make good the damage caused by the works it carried out without an appropriate assessment having been carried out beforehand and therefore allows the competent authorities to require that applicant to pay compensation for that damage only in the event, envisaged by the Advocate General in point 73 of her Opinion, where it should be treated as an organ of the Member State concerned. By contrast, if it is a private individual, those authorities cannot require it, solely on the basis of that provision and of the principle of sincere cooperation, to make good the abovementioned damage.

88      In the light of all the foregoing considerations, the answer to the fifth question is that Article 6(3) of the Habitats Directive, read in the light of the principle of sincere cooperation, must be interpreted as requiring the Member State concerned, in particular the competent authorities of that Member State, to adopt measures in order to remedy any significant effects on the environment of works carried out without the appropriate assessment of those effects, provided for in that provision, having been carried out beforehand and to make good the damage caused by those works. By contrast, it does not oblige that Member State to require individuals to make good such damage in cases where it is attributable to them.

 Costs

89      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Ninth Chamber) hereby rules:

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 concept of ‘project’, within the meaning of that provision, includes activities carried out in a forest area, designated as a special area of conservation, in order to ensure the maintenance of forest fire safety infrastructure in that area, in accordance with the requirements laid down by the applicable national legislation on the prevention of the risk of forest fires, where those activities alter the physical aspect of the site concerned.

2.      Article 6(3) of Directive 92/43 must be interpreted as meaning that the activities carried out in a forest area, designated as a special area of conservation, in order to ensure the maintenance of forest fire safety infrastructure in that area, in accordance with the requirements laid down by the applicable national legislation on the prevention of the risk of forest fires, cannot, because of the mere fact that they have such an purpose, be regarded as directly connected with or necessary to the management of the site concerned and cannot therefore be exempted on that ground from the assessment of their implications for that site, unless they are among the measures for the conservation of that site already adopted pursuant to Article 6(1) of that directive.

3.      Article 6(3) of Directive 92/43 must be interpreted as requiring an assessment to be carried out of plans and projects covered by that article, even where their implementation is required by the applicable national legislation on the prevention of the risk of forest fires.

4.      Article 6(3) of the Directive 92/43 must be interpreted as meaning that activities intended to ensure the maintenance of forest fire safety infrastructure in a forest area, designated as a special area of conservation, may not be initiated or, a fortiori, continued and completed before the completion of the procedure for assessing their implications laid down in that article, unless those activities are among the conservation measures for the site concerned already adopted pursuant to Article 6(1) of that directive or a current or imminent risk detrimental to the preservation of that site requires their immediate implementation.

5.      Article 6(3) of Directive 92/43, read in the light of the principle of sincere cooperation, must be interpreted as requiring the Member State concerned, in particular the competent authorities of that Member State, to adopt measures in order to remedy any significant effects on the environment of works carried out without the appropriate assessment of those effects, provided for in that provision, having been carried out beforehand and to make good the damage caused by those works. By contrast, it does not oblige that Member State to require individuals to make good such damage in cases where it is attributable to them.

[Signatures]


*      Language of the case: Latvian.

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