# C_2023007EN.01000701.xml

| 9.1.2023 | EN | Official Journal of the European Union | C 7/7 |
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9.1.2023

EN

Official Journal of the European Union

C 7/7

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Judgment of the Court (Second Chamber) of 10 November 2022 (request for a preliminary ruling from the Østre Landsret — Denmark) — Dansk Akvakultur, acting for AquaPri A/S v Miljø- og Fødevareklagenævnet

(Case C-278/21) (1)

(Reference for a preliminary ruling - Environment - Directive 92/43/EEC - Conservation of natural habitats and of wild fauna and flora - Article 6(3) - Assessment of a project likely to affect a protected site - Obligation to conduct an assessment - Continuation of the economic activity of an operation already authorised at the planning stage, under unchanged conditions, where authorisation has been granted following an incomplete assessment)

(2023/C 7/08)

Language of the case: Danish

Referring court

Østre Landsret

Parties to the main proceedings

Applicant: Dansk Akvakultur, acting for AquaPri A/S

Defendant: Miljø- og Fødevareklagenævnet

Intervening parties: Landbrug & Fødevarer

Operative part of the judgment

| 1. | The first sentence 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
  must be interpreted as meaning that the continuation, under unchanged conditions, of the activity of an operation which has already been authorised at the planning stage must not, in principle, be subject to the assessment obligation laid down in that provision. However, where, on the one hand, the assessment which preceded that authorisation related solely to the impact of that project considered individually, disregarding its combination with other projects, and, on the other hand, that authorisation makes such continuation subject to obtaining a new authorisation provided for by national law, the latter must be preceded by a new assessment in accordance with the requirements of that provision. |
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1.

The first sentence 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

must be interpreted as meaning that the continuation, under unchanged conditions, of the activity of an operation which has already been authorised at the planning stage must not, in principle, be subject to the assessment obligation laid down in that provision. However, where, on the one hand, the assessment which preceded that authorisation related solely to the impact of that project considered individually, disregarding its combination with other projects, and, on the other hand, that authorisation makes such continuation subject to obtaining a new authorisation provided for by national law, the latter must be preceded by a new assessment in accordance with the requirements of that provision.

| 2. | The first sentence of Article 6(3) of Directive 92/43
  must be interpreted as meaning that, in order to determine whether it is necessary to subject the continuation of the activity of an operation which has already been authorised at the planning stage following an assessment which does not comply with the requirements of that provision to a new assessment in accordance with those requirements and, if so, in order to carry out that new assessment, account must be taken of the assessments carried out in the meantime, such as those preceding the adoption of a National River Basin Management Plan and a Natura 2000 plan, covering, inter alia, the area in which the site likely to be affected by that activity is situated, if those earlier assessments are relevant and if the findings, assessments and conclusions contained therein are complete, accurate and definitive. |
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2.

The first sentence of Article 6(3) of Directive 92/43

must be interpreted as meaning that, in order to determine whether it is necessary to subject the continuation of the activity of an operation which has already been authorised at the planning stage following an assessment which does not comply with the requirements of that provision to a new assessment in accordance with those requirements and, if so, in order to carry out that new assessment, account must be taken of the assessments carried out in the meantime, such as those preceding the adoption of a National River Basin Management Plan and a Natura 2000 plan, covering, inter alia, the area in which the site likely to be affected by that activity is situated, if those earlier assessments are relevant and if the findings, assessments and conclusions contained therein are complete, accurate and definitive.

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(1)  OJ C 278, 12.7.2021.

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