Keywords
Summary

Keywords

1. Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Authorisation for a plan or project on a protected site

(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 for imperative reasons of overriding public interest

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

3. Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Special protection areas

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

4. Actions for failure to fulfil obligations – Proof of failure – Burden of proof on the Commission

(Art. 226 EC; Council Directives 79/409, Art. 4, and 92/43, Art. 6(2) to (4))

Summary

1. Article 6(3) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora provides for an assessment procedure intended to ensure, by means of a prior examination, that a plan or project which is 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. The concept of ‘appropriate assessment’ within the meaning of that provision, which does not define any particular method for the carrying out of such an assessment, must be understood in such a way that the competent national authorities can be certain that a plan or project will not have adverse effects on the integrity of the site concerned, given that, where doubt remains as to the absence of such effects, the competent authority will have to refuse authorisation.

A study on the assessments which might be considered appropriate within the meaning of Article 6(3) of Directive 92/43 which itself highlights the summary and selective nature of the examination of the environmental repercussions of the works concerned and mentions a large number of matters which were not taken into account, recommending, in particular, additional morphological and environmental analyses and a new examination of the impact of the works, in their global context, on the wild fauna in general and on the situation of certain protected species in particular in the area of forest to be felled, and taking the view that the carrying out of the proposed works, desirable from an economic point of view, must comply with a large number of conditions and protection requirements, does not constitute an appropriate assessment on which the national authorities can rely for granting authorisation for works pursuant to the said Article 6(3).

A report on the assessments which might be considered appropriate within the meaning of Article 6(3) of Directive 92/43, designed as an opportunity to introduce other proposals for improvement of the environmental impact of the operations proposed, referring to the importance of assessments to be carried out progressively, in particular on the basis of knowledge and details likely to come to light during the process of implementation of the project and, as regards the birds for which the site has been designated as a special protection area, not containing an exhaustive list of the wild birds present in that area, does not constitute an appropriate assessment on which the national authorities can rely for granting authorisation for works pursuant to the said Article 6(3).

Reports and studies which are characterised by gaps and lack complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the works proposed on the special protection area concerned cannot be regarded as appropriate assessments within the meaning of that article. Such precise and definitive findings and conclusions are essential in order that the competent authorities may gain the necessary level of certainty to take the decision to authorise the works.

(see paras 56-58, 62-71)

2. Article 6(4) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora, which provides that, if, in spite of a negative assessment carried out in accordance with the first sentence of Article 6(3) of the directive, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, and there are no alternative solutions, the Member State is to take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected, must, as a derogation from the criterion for authorisation laid down in the second sentence of Article 6(3), be interpreted strictly.

Article 6(4) of Directive 92/43 can apply only after the implications of a plan or project have been studied in accordance with Article 6(3) of that directive. Knowledge of those implications in the light of the conservation objectives relating to the site in question is a necessary prerequisite for application of Article 6(4) since, in the absence thereof, no condition for application of that derogating provision can be assessed. The assessment of any imperative reasons of overriding public interest and that of the existence of less harmful alternatives require a weighing up against the damage caused to the site by the plan or project under consideration. In addition, in order to determine the nature of any compensatory measures, the damage to the site must be precisely identified.

(see paras 81-83)

3. Activities affecting a special protection area can infringe both Article 6(3) and (4) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora, and Article 6(2) of that directive. Where authorisation for a plan or project has been granted without complying with Article 6(3) of Directive 92/43, which requires an appropriate prior assessment of the impact of that plan or project, a breach of Article 6(2), which lays down an obligation to take appropriate protective measures, may be found where deterioration of a habitat or disturbance of the species for which the area in question was designated has been established.

Such deterioration is established where, in an afforested part of a protected area, which constitutes the habitat of protected species, tree felling takes place which results in the destruction of the breeding sites of those species. Those works and their repercussions on that special protection area are incompatible with the protective legal status from which that area should have benefited pursuant to Article 6(2) of Directive 92/43.

(see paras 91-92, 94-96)

4. In proceedings under Article 226 EC for failure to fulfil obligations, it is for the Commission to prove the allegation that an obligation has not been fulfilled. It is the Commission’s responsibility to place before the Court all the information needed to enable the Court to establish that the obligation has not been fulfilled, and in so doing the Commission may not rely on any presumption.

Where the management of an area classified as a special protection area in accordance with the provisions of Article 4 of Directive 79/409 on the conservation of wild birds is subject to regulation under a number of instruments of national law, it is for the Commission to prove that the legal framework determined by those various instruments is not such as to confer an appropriate protective status on that area. Mere reference to adoption by the administrative authority of a decision giving authorisation contrary to Article 6(2) to (4) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora is not sufficient to establish the incompatibility of that legal framework with Article 4 of Directive 79/409.

(see paras 105-108)