# C_2017293EN.01001401.xml

| 4.9.2017 | EN | Official Journal of the European Union | C 293/14 |
| --- | --- | --- | --- |

4.9.2017

EN

Official Journal of the European Union

C 293/14

---

Request for a preliminary ruling from the Raad van State (Netherlands) lodged on 22 May 2017 — Stichting Werkgroep Behoud de Peel v College van gedeputeerde staten van Noord-Brabant

(Case C-294/17)

(2017/C 293/18)

Language of the case: Dutch

Referring court

Referring court

Raad van State

Parties to the main proceedings

Parties to the main proceedings

Applicant: Stichting Werkgroep Behoud de Peel

Applicant:

Defendant: College van gedeputeerde staten van Noord-Brabant

Defendant:

Questions referred

Questions referred

| 1. | Does Article 6(2) and (3) of Council Directive 92/43/EEC (1) of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206,‘the Habitats Directive’) preclude legislation which exempts from the permit requirement projects and other operations causing nitrogen deposition which do not exceed a threshold value or a limit value, and are therefore permitted without individual approval, proceeding on the assumption that the effect of all projects and other operations taken together which could make use of the legislation, have been appropriately assessed before the adoption of the legislation? |
| --- | --- |

1.

Does Article 6(2) and (3) of Council Directive 92/43/EEC (1) of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206,‘the Habitats Directive’) preclude legislation which exempts from the permit requirement projects and other operations causing nitrogen deposition which do not exceed a threshold value or a limit value, and are therefore permitted without individual approval, proceeding on the assumption that the effect of all projects and other operations taken together which could make use of the legislation, have been appropriately assessed before the adoption of the legislation?

1

| 2. | Does Article 6(2) and (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) preclude an appropriate assessment for a programme in which a certain total amount of nitrogen deposition is assessed, being used as the basis for granting an authorisation (individual approval) for a project or other operation which causes nitrogen deposition which fits within the room for deposition assessed in the context of the programme? |
| --- | --- |

2.

Does Article 6(2) and (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) preclude an appropriate assessment for a programme in which a certain total amount of nitrogen deposition is assessed, being used as the basis for granting an authorisation (individual approval) for a project or other operation which causes nitrogen deposition which fits within the room for deposition assessed in the context of the programme?

| 3. | May the appropriate assessment as referred to in 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), which is made for a programme such as the Programma Aanpak Stikstof 2015-2021, take into account the positive effects of conservation measures and appropriate steps for existing areas of habitat types and habitats, which are taken in connection with the obligations arising from Article 6(1) and (2) of that Directive?






  3(a) | If question 3 is answered in the affirmative: can the positive effects of conservation measures and appropriate steps be taken into account in an appropriate assessment if, at the time of the appropriate assessment, those measures have not yet been implemented and their positive effect has not yet been achieved? |
| --- | --- | --- |

3.

May the appropriate assessment as referred to in 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), which is made for a programme such as the Programma Aanpak Stikstof 2015-2021, take into account the positive effects of conservation measures and appropriate steps for existing areas of habitat types and habitats, which are taken in connection with the obligations arising from Article 6(1) and (2) of that Directive?

3(a)

If question 3 is answered in the affirmative: can the positive effects of conservation measures and appropriate steps be taken into account in an appropriate assessment if, at the time of the appropriate assessment, those measures have not yet been implemented and their positive effect has not yet been achieved?

Assuming that the appropriate assessment contains definitive findings on the effects of these measures based on the best available scientific knowledge in that regard, is it important that the implementation and the results of those measures be monitored and, if it transpires that the effects are less favourable than had been assumed in the appropriate assessment, that adjustments, if required, be made?

| 4. | May the positive effects of the autonomous decrease of the nitrogen deposition which might become apparent during the period in which the Programma Aanpak Stikstof 2015-2021 applies, be taken into account in the appropriate assessment as referred to in 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)?
  Assuming that the appropriate assessment contains definitive findings on the effects of those developments based on the best available scientific knowledge in that regard, is it important that the autonomous decrease in the nitrogen deposition be monitored and, if it transpires that the decrease is less favourable than had been assumed in the appropriate assessment, that adjustments, if required, be made? |
| --- | --- |

4.

May the positive effects of the autonomous decrease of the nitrogen deposition which might become apparent during the period in which the Programma Aanpak Stikstof 2015-2021 applies, be taken into account in the appropriate assessment as referred to in 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)?

Assuming that the appropriate assessment contains definitive findings on the effects of those developments based on the best available scientific knowledge in that regard, is it important that the autonomous decrease in the nitrogen deposition be monitored and, if it transpires that the decrease is less favourable than had been assumed in the appropriate assessment, that adjustments, if required, be made?

| 5. | May restoration measures taken in the context of the Programma Aanpak Stikstof 2015-2021 and aimed at preventing a particular harmful ecological factor, such as nitrogen deposition, from having adverse effects for existing areas of habitat types or habitats, be considered protective measures as referred to in paragraph 28 of the judgment of the Court of Justice of 15 May 2014, Briels, ECLI:EU:C:2014:330, which may be taken into account in an appropriate assessment as referred to in 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)?






  5(a) | If question 5 is answered in the affirmative: Can the positive effects of protective measures which may be taken into account in the appropriate assessment be taken into account if, at the time of the appropriate assessment, they have not yet been implemented and their positive effect has not yet been achieved? |
| --- | --- | --- |

5.

May restoration measures taken in the context of the Programma Aanpak Stikstof 2015-2021 and aimed at preventing a particular harmful ecological factor, such as nitrogen deposition, from having adverse effects for existing areas of habitat types or habitats, be considered protective measures as referred to in paragraph 28 of the judgment of the Court of Justice of 15 May 2014, Briels, ECLI:EU:C:2014:330, which may be taken into account in an appropriate assessment as referred to in 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)?

Briels

5(a)

If question 5 is answered in the affirmative: Can the positive effects of protective measures which may be taken into account in the appropriate assessment be taken into account if, at the time of the appropriate assessment, they have not yet been implemented and their positive effect has not yet been achieved?

Is it important in that respect, assuming that the appropriate assessment contains definitive findings on the effects of those measures based on the best scientific knowledge in that regard, that the implementation and the results of the measures be monitored, and if that indicates that the results are less favorable than assumed in the appropriate assessment, that adjustments take place if necessary?

---

(1)  OJ 1992 L 206, p. 7.

1

---