Opinion of the Advocate General — ECLI:EU:C:2018:274
Date: 2018-04-19
Language of the case: English
Subject matter: Environment
Procedure: Reference for a preliminary ruling
Origin: Ireland

summary, Article 6 of the Habitats Directive provides as follows. Article 6(1) of the Habitats Directive aims to ensure that positive steps are taken on a regular basis so that the conservation status of the site in question is maintained and/or restored, whereas Article 6(2) to (4) of that directive serves a different purpose, that of aiming to pre-empt damage being done to the site, or in exceptional cases where damage has to be tolerated, to minimise that damage. Article 6(2) imposes an overarching obligation on the competent authorities of the Member States to avoid deterioration or disturbance. Article 6(3) and (4) applies where there is a plan or project not directly connected with or necessary to site management. (25) 51. The Court has ruled that the provisions of Article 6 of the Habitats Directive must be construed as a coherent whole in the light of the conservation objectives pursued by that directive. Thus, Article 6(2) and Article 6(3) of the Habitats Directive are designed to ensure the same level of protection of natural habitats and habitats of species, while Article 6(4) of that directive constitutes a provision derogating from the second sentence of Article 6(3), (26) thereby allowing the competent national authority to authorise a plan or project despite a negative assessment under Article 6(3) in certain circumstances. 52. Article 6(3) of the Habitats Directive provides for an assessment procedure to be carried out by the competent national authorities which is intended to ensure, by means of a prior examination, that a plan or project 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. That provision thus prescribes two stages. The first stage, which is envisaged in the first sentence of Article 6(3) of the Habitats Directive, requires the competent national authorities to carry out an appropriate assessment of the implications for the protected site of a plan or project when there is a likelihood that the plan or project will have a significant effect on that site. (27) 53. Relevant to this case, the second stage, which is envisaged by the second sentence of Article 6(3) of the Habitats Directive and occurs following the abovementioned appropriate assessment, allows such a plan or project to be authorised by the competent national authorities only on condition that it will not adversely affect the integrity of the site concerned, subject to the provisions of Article 6(4) of that directive (see points 57 and 58 of this Opinion). (28) 54. Accordingly, the Court has ruled that, pursuant to the second sentence of Article 6(3) of the Habitats Directive, the competent national authorities may grant authorisation of a plan or project only if they have made certain that it will not adversely affect the integrity of the protected site which is the case when there is no reasonable doubt from a scientific point of view as to the absence of such effects. (29) The Court has additionally clarified that 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. (30) 55. Conversely, it is settled case-law that the competent national authorities must refuse to authorise the plan or project where uncertainty remains as to the absence of adverse effects on the integrity of the site. The Court has reasoned that the authorisation criterion set down in the second sentence of Article 6(3) of the Habitats Directive integrates the precautionary principle and makes it possible to prevent in an effective manner adverse effects on the integrity of protected sites as a result of the plans or projects being considered. A less stringent authorisation criterion, the Court has emphasised, could not ensure as effectively the fulfilment of the objective of site protection intended under that provision. (31) 56. The application of the precautionary principle in the context of implementation of Article 6(3) of the Habitats Directive therefore requires the competent national authorities to assess the implications of the project for the site concerned in view of the site’s conservation objectives and, moreover, taking into account ‘the protective measures forming part of that project 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 site’. (32) The measures just described denote in substance what are routinely referred to as mitigatory measures which is the term used by the referring court in the order for reference. (33) 57. The Court has so far preferred not to employ the term ‘mitigatory measures’ to denote the obligations set down in Article 6(3) of the Habitats Directive on the grounds that ‘the wording of Article 6 of the Habitats Directive contains no reference to any concept of “mitigating measure”’. (34) Moreover, the Court has emphasised that the effectiveness of the protective measures provided for in Article 6 of the Habitats Directive is intended to avoid a situation where competent national authorities allow so-called ‘mitigating’ measures — which are in reality compensatory measures — in order to circumvent the specific procedures provided for in Article 6(3) and authorise projects which adversely affect the integrity of the site concerned. (35) 58. Therefore, following from the obligations imposed on competent national authorities by Article 6 of the Habitats Directive as interpreted in the Court’s case-law, there is a distinction drawn between the protective measures forming part of a plan or project that avoid or reduce any direct adverse effects on the integrity of a site which may be authorised under Article 6(3) of the Habitats Directive, on the one hand, and compensatory measures that compensate for or offset the adverse effects of the plan or project on the integrity of a site within a wider framework which may be authorised under Article 6(4) of that directive, on the other. (36) This sets the backdrop for the Court’s pertinent rulings on the scope of Article 6(3) of the Habitats Directive. B. Pertinent rulings on Article 6(3) of the Habitats Directive 59. As mentioned above, the Court has already had the occasion to consider the scope of Article 6(3) of the Habitats Directive and in particular in its rulings in Sweetman, Briels, Orleans and Commission v Germany (‘Moorburg plant’). Since those rulings feature in the parties’ arguments before the Court, I will set out the Court’s reasoning in some detail. 60. The request for a preliminary ruling from the Supreme Court of Ireland in Sweetman concerned the assessment of certain measures proposed as part of a road development project that involved the permanent and irreparable loss of a part of a designated site’s limestone pavement, a priority natural habitat type specially protected by the Habitats Directive. (37) In its judgment, the Court held that in order for the integrity of a site as a natural habitat not to be adversely affected for the purposes of the second sentence of Article 6(3) of the Habitats Directive, the site needs to be preserved at a favourable conservation status; this entails ‘the lasting preservation of the constitutive characteristics of the site concerned that are connected to the presence of a natural habitat type whose preservation was the objective justifying the designation of that site’ in the list of sites of Community importance, in accordance with that directive. (38) 61. On that basis, the Court found that the site concerned was designated as a site hosting a priority habitat type because, in particular, of the presence in that site of limestone pavement, a natural resource which, once destroyed, cannot be replaced. (39) The conservation objective of the site thus corresponds to maintenance at a favourable conservation status of that site’s constitutive characteristics, namely the presence of limestone pavement. (40) The Court concluded that if, after an appropriate assessment, the competent national authority concludes that the plan or project will lead to the lasting and irreparable loss of the whole or part of a priority habitat type whose conservation is the objective that justified the designation of the site concerned, the view should be taken that such a plan or project will adversely affect the integrity of the site and cannot be authorised on the basis of Article 6(3) of the Habitats Directive.(41) 62. Briels concerned the assessment of certain measures included in a proposed road-widening project in the Netherlands which affected a site designated under the Habitats Directive to protect the natural habitat type molinia meadows, the conservation objective of which consisted in the expansion of the area of that habitat type and the improvement in the quality thereof. (42) The measures in question aimed to ensure the creation of an area of that habitat type of equal or greater size elsewhere on the same site in order to replace or augment those affected. (43) 63. In its judgment, the Court held that the proposed measures were not aimed at avoiding or reducing the significant adverse effects for that habitat type, but rather tended to compensate after the fact for those effects and thus did not guarantee that the project would not adversely affect the integrity of the site. (44) Moreover, the Court noted that ‘as a rule, any positive effects of a future creation of a new habitat which is aimed at compensating for the loss of area and quality of that same habitat type on a protected site, even where the new area will be bigger and of higher quality, are highly difficult to forecast with any degree of certainty and, in any event, will be visible only several years into the future’. (45) Accordingly, the Court held that the proposed measures cannot be taken into account at the procedural stage provided for in Article 6(3) of the Habitats Directive. (46) 64. Of note, in her Opinion in Briels, Advocate General Sharpston rejected the argument put forward by the Netherlands and United Kingdom Governments that the integrity of the site must be considered as a whole in terms of ‘net loss or benefit’, meaning that it does not matter that a particular habitat is lost in one part of the site, provided that at least an equivalent (and preferably a greater) area and quality of the same habitat is created elsewhere within the site. (47) While the Advocate General agreed that the integrity of the site should be viewed as a whole, she stressed that in all cases, Article 6(3) of the Habitats Directive requires consideration of the site’s conservation objectives, and even if a net beneficial effect is predicted, there is still an adverse — possibly even irreparable — effect on the existing natural habitat and thus on the integrity of the site. (48) 65. In Orleans, the Court was confronted with the assessment of proposed measures, included as part of a port development project, which provided for the creation of an area of natural habitat type that would be put in place before any possible adverse effects on the existing habitat type occurred, but which would be completed subsequently to the assessment of the significance of any adverse effects on the integrity of the site. (49) 66. In its judgment, the Court found, first, that the adverse effects on the Natura 2000 site in question were certain since the referring court — which had found that the proposed measures would result in the disappearance of a body of 20 hectares of tidal mudflats and tidal marshes — was able to quantify them. (50) Second, the Court found that the benefits resulting from the creation of the new habitats had already been taken into account in the national authority’s assessment in demonstrating the absence of significant adverse effects on the site, even though the result of the creation of those habitats is uncertain, since it is not complete. (51) 67. Consequently, the Court considered that the circumstances of this case and Briels were similar, in so far as they involved, at the time of assessing the implications of the plan or project for the site concerned, the identical premiss that future benefits will mitigate the significant adverse effects on that site, even though the development measures in question have not been completed. (52) It followed that the negative implications of a plan or project not directly connected with or necessary to the management of a site and affecting its integrity do not fall within the scope of Article 6(3) of the Habitats Directive. (53) 68. In Commission v Germany(‘Moorburg plant’), the Commission brought infringement proceedings against Germany on the grounds, inter alia, that it had wrongly classified a certain measure as a mitigating measure under Article 6(3) of the Habitats Directive. (54) The measure concerned a fish ladder installed near the Moorburg power plant which was intended to compensate for fish killed during the operation of the cooling mechanism for the plant which drew large quantities of water from a nearby river. That river constituted a migratory route for several fish species covered by a number of Natura 2000 areas situated upstream. (55) 69. In its judgment, the Court held that the fish ladder was intended to increase migratory fish stocks by allowing those species to reach their breeding areas more quickly and thus was expected to compensate for the fish deaths near the Moorburg plant so that the conservation objectives of the Natura 2000 areas upstream of the plant would not be significantly affected. (56) However, the impact assessment carried out by the German authorities did not contain definitive data regarding the effectiveness of the fish ladder and merely stated that its effectiveness could only be confirmed following several years of monitoring. (57) It followed that at the time the authorisation was granted, the fish ladder, even though it was intended to reduce direct significant effects on the Natura 2000 areas, could not guarantee beyond all reasonable doubt that, together with other measures designed to prevent the negative effects of drawing water from the river, the plant would not adversely affect the integrity of the site within the meaning of Article 6(3) of the Habitats Directive. (58) 70. On this basis, I observe that in none of the foregoing rulings did the Court find that the measures proposed as part of the development plan or project in question were sufficient to amount to protective measures that avoided or reduced all direct adverse effects on the integrity of the site concerned on the basis of Article 6(3) of the Habitats Directive. C. Application to the circumstances of these proceedings 71. I take the view that although the circumstances at issue in the foregoing rulings are not identical to the present case, certain principles elaborated in those rulings support the finding that the measures proposed in the SHMP are insufficient to amount to protective measures that avoid or reduce the direct adverse effects on the integrity of the SPA in question on the basis of Article 6(3) of the Habitats Directive as interpreted by the Court where the SHMP excludes consideration of potential hen harrier habitat. 72. I acknowledge that the foregoing rulings were concerned with the obligations laid down in Article 6(3) of the Habitats Directive in the context of the assessment of measures proposed as part of a plan or project that had adverse effects on the integrity of a site designated for a protected habitat type under that directive. Nevertheless, I point out that starting in Sweetman (see point 60 of this Opinion), the Court has placed emphasis on the constitutive characteristics of the site as connected to the objectives justifying the designation of that site in the assessment of whether the measures proposed as part of a plan or project may be regarded as avoiding or reducing all direct adverse effects on the integrity of that site. 73. Moreover, in Briels, Orleans and Commission v Germany(‘Moorburg plant’), the Court considered in substance that measures that made up for quantified loss elsewhere on the site could not be regarded as measures that sufficiently mitigated the adverse effects on the integrity of the site concerned. Further, the Court underlined, starting in Briels, that in principle benefits stemming from the creation of new areas of habitat which are aimed at compensating for the loss of an area and quality of the same habitat on a protected site are highly difficult to forecast with any degree of certainty (see point 63 of this Opinion). 74. In the present case, I note that the conservation objective of the SPA is to maintain or restore the favourable conservation condition of the hen harrier (see point 13 of this Opinion). I also consider that the constitutive characteristics of the SPA is thus to ensure sufficient habitat for the hen harrier in line with the conservation objective of the SPA. 75. As indicated in the schedule, the wind farm will result in the loss of an area taken out of the foraging habitat of the hen harrier within the SPA. This is quantified in the schedule as amounting to the permanent direct loss of 9 hectares of habitat and the unavailability of 162.7 hectares of habitat on account of the displacement effect of the turbines (see points 24 and 25 of this Opinion). As such, the wind farm will remove a portion of existing and potential habitat for the hen harrier. It is asserted that the measures proposed in the SHMP will maintain the same quantity of habitat in the SPA on the whole and thus avoid the adverse effects on the integrity of the SPA. 76. In my view, the measures proposed in the SHMP resemble those measures in Briels and Orleans because they may ensure a sufficient ‘existing’ habitat for the hen harrier, but they do not address the problem at source, that is, loss of needed lands. Also, in line with the Court’s case-law, since the benefits to be expected from the measures proposed in the SHMP are to take place over the lifetime of the project, I consider that the obligation to ensure that the measures are certain beyond all reasonable doubt to avoid all direct adverse effects on the integrity of the SPA at the time of authorisation by the competent authority is not fulfilled. 77. Further, I consider that, in the particular circumstances of these proceedings, potential habitat of the hen harrier is part of the constitutive characteristics of the SPA that contributes to the favourable conservation status of the hen harrier. Thus, the significant loss of potential habitat of the hen harrier must be taken into account in the assessment of whether the measures proposed in the SHMP are sufficient to avoid or reduce the adverse effects of the wind farm on the integrity of the SPA. Potential areas within the zone protected under EU law are nothing more than areas which have not yet been managed because the changing needs of the habitat of the hen harrier have not yet required it, or are not yet ready to support hen harriers. 78. The hen harrier is a bird species that is listed in Annex I to the Birds Directive and therefore is deserving of special conservation measures concerning its habitat, according to recital 8 and Article 4 of that directive, in order to ensure its survival and reproduction in its area of distribution.(59) As the Court has held, ‘Article 4 of the Birds Directive lays down a regime which is specifically targeted and reinforced, both for the species listed in Annex I to the directive and for migratory species, an approach justified by the fact that they are, respectively, the most endangered species and the species constituting a common heritage of the European Union’. (60) Moreover, the obligations placed on competent national authorities to protect such species exist before any reduction in the number of birds has been observed or before the risk of a protected species becoming extinct has materialised. (61) 79. The Court’s case-law emphasises the importance placed on the precautionary principle in the assessment of measures under Article 6(3) of the Habitats Directive (see points 55 and 56 of this Opinion). In my view, this applies all the more in the case of the hen harrier which has been listed in an annex to a recent Commission guidance document as a bird species considered to be particularly vulnerable to wind farms, which includes habitat displacement. (62) 80. I therefore conclude that in the circumstances of the main proceedings, measures proposed in a management plan as part of a development project which are designed to ensure that, at any given time, the amount of the site, the essential purpose of which is the provision of habitat for a protected species, which is suitable habitat for that species is not reduced and may even be enhanced, but some of the site will, for the lifetime of the development project, be excluded from having the potential to provide appropriate habitat for that species, do not meet the requirement of sufficient protective (mitigatory) measures under the Court’s case-law interpreting Article 6(3) of the Habitats Directive. VI. Conclusion 81. In light of the foregoing considerations, I propose that the Court should answer the question referred by the Supreme Court of Ireland as follows: Where (a) a protected site has as its essential purpose the provision of habitat for a specified species (b) the nature of the habitat which is beneficial for that species means that the part of the site which is beneficial will necessarily alter over time, and (c) as part of a proposed development a management plan for the site as a whole (including changes to the management of parts of the site not directly affected by the development itself) is to be put in place which is designed to ensure that, at any given time, the amount of the site suitable as habitat as aforesaid is not reduced and indeed may be enhanced; but (d) some of the site will, for the lifetime of the development project, be excluded from having the potential to provide appropriate habitat, such measures as are described in (c) cannot be regarded as protective measures forming part of that plan or project aimed at avoiding or reducing any direct adverse effects on the integrity of the site, in order to ensure that that plan or project does not adversely affect the integrity of the site under 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. 1 Original language: English. 2 See e.g. the film produced as part of the Skydancer Conservation Project (2011-2015) of the Royal Society for the Protection of Birds aimed at promoting the conservation of hen harriers in England, available at https://www.rspb.org.uk/our-work/conservation/conservation-and-sustainability/safeguarding-species/skydancer. 3 Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (codified version) (OJ 2010 L 20, p. 7). 4 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). 5 Opinion of Advocate General Kokott in Commission v Bulgaria, C‑141/14, EU:C:2015:528, point 1. See e.g. judgments of 21 July 2011, Azienda Agro-Zootecnia Franchini and Eolica di Altamura, C‑2/10, EU:C:2011:502, and of 14 January 2016, Commission v Bulgaria, C‑141/14, EU:C:2016:8. 6 See e.g. BirdWatch Ireland, ‘The bird behind the headlines: getting to know the Hen Harrier’, eWings Issue 64, January 2015, available at: http://www.birdwatchireland.ie. 7 E.g. the hen harrier is included in the IUCN (International Union for Conservation of Nature and Natural Resources) Red List of Threatened Species 2016, available at http://www.iucnredlist.org. 8 The hen harrier has been listed in Annex I to the Birds Directive since the adoption of the original Birds Directive (Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1), and even earlier starting with the Commission’s initial proposal for that directive. See Proposal for a Council Directive on bird conservation, COM(76) 676 final, Annex I. 9 See also recital 8 of the Birds Directive which provides in relevant part: ‘Certain species of birds should be the subject of special conservation measures concerning their habitats in order to ensure their survival and reproduction in their area of distribution.’ 10 S.I. No 587/2011 — European Communities (Conservation of Wild Birds (Slievefelim to Silvermines Mountains Special Protection Area 004165)) Regulations 2011, schedule 3, available at http://www.irishstatutebook.ie/eli/2011/si/588/made/en/print. 11 The order for reference indicates that the SPA comprises a total area of 20 935 hectares. See also Natura 2000 Standard Data Form for Site IE0004165, Slievefelim to Silvermines Mountains SPA, available at https://www.npws.ie/sites/default/files/protected-sites/natura2000/NF004165.pdf (‘Natura 2000 Standard Data Form’). 12 Conservation Objectives for Slievefelim to Silvermines Mountains SPA [004165], dated 15 August 2016, available at https://www.npws.ie/sites/default/files/protected-sites/conservation_objectives/CO004165.pdf. 13 Natura 2000 Standard Data Form; Site Synopsis for Slievefelim to Silvermines Mountains SPA, available at https://www.npws.ie/sites/default/files/protected-sites/synopsis/SY004165.pdf. 14 Judgment of 13 December 2007, Commission v Ireland, C‑418/04, EU:C:2007:780, paragraph 105; see also ibid., paragraphs 170 to 175. Of note, the hen harrier was also mentioned in the context of a previous infringement action against Ireland: see Opinion of Advocate General La Pergola in Commission v Ireland, C‑392/96, EU:C:1998:612, point 45; as well as against France: see judgment of 7 December 2000, Commission v France, C‑374/98, EU:C:2000:670, paragraph 16, and Opinion of Advocate General Alber in Commission v France, C‑374/98, EU:C:2000:86, point 35. 15 In their written submissions, ESB Wind Development and Coillte state that the electricity generated by the wind farm will be supplied into the national electricity network and will displace fossil fuel-derived electricity as part of the Irish Government’s commitment to combating climate change and reducing greenhouse gas emissions. 16 Generally, closed canopy forest is when the tops of the trees overlap to form a virtually continuous layer, whereas with open canopy forest, they are more widely spaced, thereby leaving open sunlit areas. See e.g. Michael Allaby, editor, A Dictionary of Plant Sciences, Third edition, Oxford University Press, 2012 and 2013. 17 According to the schedule, the SHMP has three principal objectives: (1) to restore areas of blanket bog and wet heath (the natural habitats of the area) in two specified locations within the site; (2) to provide areas of optimum habitat for hen harriers, red grouse and other wildlife within the site during the lifetime of the project; and (3) to provide a corridor linking areas of suitable bog habitat for hen harriers. 18 See points 56 and 57 of this Opinion. 19 Judgment of 11 April 2013, Sweetman and Others, C‑258/11, EU:C:2013:220 (‘Sweetman’). 20 Judgment of 15 May 2014, Briels and Others, C‑521/12, EU:C:2014:330 (‘Briels’). 21 Judgment of 21 July 2016, Orleans and Others, C‑387/15 and C‑388/15, EU:C:2016:583 (‘Orleans’). 22 Judgment of 26 April 2017, Commission v Germany, C‑142/16, EU:C:2017:301. 23 I note that the question referred does not pertain to the potential impacts of the wind farm set out in the schedule concerning the construction activity and the collision effect (see points 26, 27 and 30 of this Opinion). Thus, I will not consider them further. 24 See e.g. judgment of 24 November 2011, Commission v Spain, C‑404/09, EU:C:2011:768, paragraph 97 and the case-law cited. 25 Opinion of Advocate General Sharpston in Sweetman, C‑258/11, EU:C:2012:743, points 41 to 45. 26 See e.g. Orleans, paragraph 32 and the case-law cited. 27 See e.g. Orleans, paragraphs 43 and 44. 28 See e.g. Orleans, paragraph 46 and the case-law cited. See also Opinion of Advocate General Sharpston in Sweetman, points 45 to 51. 29 See e.g. Commission v Germany, paragraph 33 and the case-law cited. My emphasis. See also e.g. Briels, paragraph 27 and the case-law cited, and Opinion of Advocate General Bot in Commission v Poland, C‑441/17, EU:C:2018:80, point 154. 30 See e.g. Commission v Germany, paragraph 42 and the case-law cited. 31 See e.g. Judgment of 7 September 2004, Waddenvereniging and Vogelsbeschermingsvereniging, C‑127/02, EU:C:2004:482 (‘Waddenzee’), paragraphs 57 and 58. 32 See e.g. Orleans, paragraph 54 and the case-law cited. My emphasis. 33 The term ‘mitigation measures’ is used in the literature and in EU texts, in particular the Commission guidance documents on Article 6 of the Habitats Directive, available at http://ec.europa.eu/environment/nature/natura2000/management/guidance_en.htm. 34 Orleans, paragraph 57. See also judgment of 12 April 2018, People Over Wind andSweetman, C‑323/17, EU:C:2018:244, paragraph 25. 35 Briels, paragraph 33; Orleans, paragraph 58. 36 See Briels, paragraph 29, and Opinion of Advocate General Sharpston in Briels, C‑521/12, EU:C:2014:113, points 29 to 36 and 46 to 51. See also e.g. Commission Guidance Document on Article 6(4) of the ‘Habitats Directive’ 92/43/EEC (2007/2012), available at note 33, point 1.4. Pursuant to Article 6(4) of the Habitats Directive, 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 still be carried out for imperative reasons of overriding public interest, the Member State authorities must take all ‘compensatory measures’ necessary to ensure that the overall coherence of Natura 2000 is protected and inform the Commission of the compensatory measures adopted. Thus, the national authorities may grant an authorisation under Article 6(4) only in so far as the conditions set down therein are complied with. See e.g. Orleans, paragraphs 60 to 63 and the case-law cited. 37 Sweetman, paragraphs 11 to 12 and 26. 38 Sweetman, paragraph 39. My emphasis. See also e.g. Briels, paragraph 21, and Orleans, paragraph 47. 39 Sweetman, paragraph 45. 40 Sweetman, paragraph 45. 41 Sweetman, paragraphs 46 to 48. 42 Briels, paragraphs 9 and 10. 43 Briels, paragraphs 12, 13 and 18. 44 Briels, paragraph 31. 45 Briels, paragraph 32. See also e.g. Orleans, paragraph 52. 46 Briels, paragraph 32. 47 Opinion of Advocate General Sharpston in Briels, point 40. 48 Opinion of Advocate General Sharpston in Briels, points 41 and 42. 49 Orleans, paragraphs 11 to 16, 20, 21 and 30. 50 Orleans, paragraphs 37 and 55. 51 Orleans, paragraph 55. 52 Orleans, paragraph 56. 53 Orleans, paragraph 59. 54 Commission v Germany, paragraphs 9 and 14. 55 Commission v Germany, paragraphs 6 and 7. 56 Commission v Germany, paragraph 36. 57 Commission v Germany, paragraph 37. 58 Commission v Germany, paragraphs 35 and 38. 59 See point 12 of this Opinion. See also, in this regard, Commission-funded Case studies compilation report on the Article 6.3 permit procedure under the Habitats Directive (June 2013), available at note 33, Case Study 1: Adopting a systematic approach to the screening and AA [Appropriate Assessment] of plans and projects relating to forest activities (Ireland), p. 10 (noting that the hen harrier is one of the key species found in areas where forestry-related decision-making is important and ‘continue[s] to be seriously at risk, with the [hen harrier] in decline in SPAs’). 60 See e.g. judgment of 14 October 2010, Commission v Austria, C‑535/07, EU:C:2010:602, paragraph 57 and the case-law cited. 61 See e.g. judgment of 24 November 2016, Commission v Spain, C‑461/14, EU:C:20106:895, paragraph 83 and the case-law cited. See also Opinion of Advocate General Wahl in Commission v Spain, C‑461/14, EU:C:2016:110, point 72. 62 Commission Guidance Document, Wind energy developments and Natura 2000 (2011), available at note 33, Annex II. Of note, this correlates with the recent research project ‘Windharrier – Interactions between hen harriers and wind turbines’ (2012-2014) concerning particular issues with hen harriers and wind power in Ireland, available at https://www.ucc.ie/en/forestecology/research/windharrier/.