Case C‑142/16

European Commission

v

Federal Republic of Germany

(Failure of a Member State to fulfil obligations — Environment — Directive 92/43/EEC — Article 6(3) — Conservation of natural habitats — Construction of a coal-fired power plant in Moorburg (Germany) — Natura 2000 areas situated upstream of that coal-fired power plant on the corridor of the Elbe river — Assessment of the implications of a plan or project for a protected site)

Summary — Judgment of the Court (Second Chamber), 26 April 2017

1. 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—Taking into account of other projects not directly connected with the site but likely to have a significant effect thereon

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

2. Environment—Conservation of natural habitats and of wild fauna and flora—Directive 92/43—Authorisation for a plan or project on a protected site—Conditions—Preliminary assessment—Assessment of the impact of a project on a site—No verification of the effectiveness of the protective measures included in the project—Failure to fulfil obligations

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

3. 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 might affect the conservation objectives of the site

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

4. 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—Taking into account cumulative effects with other relevant projects

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

1.  It is clear from Article 6(3) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora that any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon is subject to the environmental protection mechanism prescribed in that article. In that regard, the fact that a construction project is not situated in the Natura 2000 areas, but rather at a considerable distance from them, in no way precludes the applicability of the requirements laid down in Article 6(3) of Directive 92/43.

   (see para. 29)

2.  Competent national authorities may authorise an activity subject to an assessment, within the meaning of Article 6(3) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora, only if they have made certain that it will not adversely affect the integrity of the protected site. This is so when there is no reasonable doubt from a scientific point of view as to the absence of such adverse effects. In that regard, the application of the precautionary principle in the context of the implementation of that provision requires the competent national authority to take into account, inter alia, the protective measures forming part of the project at issue aimed at avoiding or reducing any direct adverse effects on the site, in order to ensure that it does not adversely affect the integrity of the protected site.

   It is at the date of adoption of the decision authorising implementation of the project that there must be no reasonable scientific doubt remaining as to the absence of adverse effects on the integrity of the site in question. Thus, a Member State fails to fulfil its obligations under Article 6(3) of Directive 92/43, where it authorises a construction project on the basis of an impact assessment which concluded there would be no adverse effects on the integrity of the Natura 2000 areas, in so far as that assessment did not contain definitive data regarding the effectiveness of a protective measure included in that project, and merely stated that its effectiveness could only be confirmed following several years of monitoring.

   (see paras 33, 34, 37, 42, 45)

3.  See the text of the decision.

   (see para. 57)

4.  Under Article 6(3) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora, national authorities are required, when assessing cumulative effects, to take into account all projects which, in combination with the project for which an authorisation is sought, are likely to have a significant effect on a protected site in the light of the objectives pursued by that directive, even where those projects precede the date of transposition of that directive. Construction projects which impact Natura 2000 areas situated on a river corridor, projects likely to cause, as a result of their combination with the project to which the impact assessment relates, deterioration or disturbance likely to affect the migratory fish present in the river and consequently result in the deterioration of the site concerned in the light of the objectives pursued by Directive 92/43, are not to be excluded from the impact assessment required under Article 6(3) of that directive.

   (see paras 61, 62)