Opinion of the Advocate General — ECLI:EU:C:2018:80
Date: 2018-02-20
Language of the case: Polish
Subject matter: Environment
Procedure: Action for failure to fulfil obligations - successful
Origin: Poland

Summary — Judgment of the Court (Grand Chamber), 17 April 2018 1. Actions for failure to fulfil obligations — Subject matter of the dispute — Determination during the pre-litigation procedure — Regard to events which took place after the delivery of the reasoned opinion — Conditions — Events of the same kind and constituting the same conduct as those referred to originally (Art. 258 TFEU) 2. 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 can affect the site’s conservation objectives — Regard to the cumulative effects which arise from that plan in combination with other relevant plans or projects (Council Directive 92/43, Art. 6(3)) 3. Environment — Conservation of natural habitats and of wild fauna and flora — Directive 92/43 — Special areas of conservation — Obligations of the Member States — Assessment of a project’s implications for a site — Authorisation for a plan or project on a protected site — Condition — No adverse effect on the integrity 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 — Special protection areas — Obligation of the Member States to avoid the deterioration of natural habitats and the habitats of species — Failure to fulfil obligations — Burden of proof on the Commission — Scope — No need to establish the existence of a causal relationship between a construction project and a disturbance caused to the species concerned (Council Directive 92/43, Art. 6(3)) 5. Environment — Conservation of natural habitats and of wild fauna and flora — Directive 92/43 — Authorisation of a plan or project on a protected site for imperative reasons of overriding public interest — Condition — Prior identification of the implications of the plan or project that arise for the site (Council Directive 92/43, Art. 6(3) and (4)) 6. Environment — Conservation of natural habitats and of wild fauna and flora — Directive 92/43 — Special areas of conservation — Obligations of the Member States — Scope — Actual implementation of the conservation measures (European Parliament and Council Directive 2009/147, Art. 4(1) and (2); Council Directive 92/43, Arts 1(1)(l) and 6(1)) 7. Environment — Conservation of natural habitats and of wild fauna and flora — Directive 92/43 — Strict protection of the animal species listed in Annex IV(a) — Scope — Requisite measures to establish a system of protection — Presence of the species in large numbers — Irrelevant (Council Directive 92/43, Art. 12(1)(a) and (d) and Annex IV(a)) 8. Environment — Conservation of wild birds — Directive 2009/147 — Requisite measures to establish a general system of protection — Obligations of the Member States — Scope — Regard to the effects on the breeding sites and resting places of the protected species (European Parliament and Council Directive 2009/147, Art. 5(b) and (d)) 1. See the text of the decision. (see paras 64-67) 2. See the text of the decision. (see paras 113, 114, 133-144) 3. Authorisation for a plan or project, as referred to in Article 6(3) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora, as amended by Directive 2013/17, may be given only on condition that the competent authorities have become certain that the plan or project will not have lasting adverse effects on the integrity of the site concerned. That is the case where no reasonable scientific doubt remains as to the absence of such effects. The competent national authorities cannot, therefore, authorise interventions where there is a risk of lasting harm to the ecological characteristics of sites which host natural habitat types of Community interest or priority natural habitat types. That would particularly be so where there is a risk that an intervention will bring about the disappearance or the partial and irreparable destruction of such a natural habitat type present on the site concerned. Active forest management operations which consist in removing and felling a significant number of trees on a Natura 2000 site may, by their very nature, cause lasting harm to the ecological characteristics of that site, since they are inevitably liable to bring about the disappearance or the partial and irreparable destruction of the protected habitats and species present on that site. (see paras 117, 119, 164) 4. In order to establish an infringement of the second sentence of Article 6(3) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora, as amended by Directive 2013/17, the Commission, in the light of the precautionary principle, which is integrated into that provision, does not have to prove a causal relationship between the operations at issue and the adverse effect on the integrity of the habitats and species, it being sufficient for it to establish the existence of a probability or risk that that those operations may give rise to such an effect. (see para. 158) 5. See the text of the decision. (see paras 188-191) 6. Article 6(1) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora, as amended by Directive 2013/17, and Article 4(1) and (2) of Directive 2009/147 on the conservation of wild birds, as amended by Directive 2013/17, require, if those provisions are not to be rendered redundant, that the conservation measures necessary for maintaining a favourable conservation status of the protected habitats and species within the site concerned not only be adopted, but also, and above all, be actually implemented. That interpretation is borne out by Article 1(1)(l) of Directive 92/43, which defines a special area of conservation as a site of Community importance in which conservation measures are applied and by the eighth recital of the directive, according to which it is appropriate, in each area designated, to implement the necessary measures having regard to the conservation objectives pursued. Active forest management operations whose implementation results in loss of a part of a Natura 2000 site cannot constitute measures ensuring the conservation of that site, for the purposes of Article 6(1) of Directive 92/43. (see paras 213, 214, 218) 7. In order to comply with Article 12(1)(a) and (d) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora, as amended by Directive 2013/17, the Member States must not only adopt a comprehensive legislative framework but also implement concrete and specific protection measures. Similarly, the system of strict protection presupposes the adoption of coherent and coordinated measures of a preventive nature. Such a system of strict protection must therefore enable the actual avoidance of deliberate capture or killing in the wild, and of deterioration or destruction of breeding sites or resting places, of the animal species listed in Annex IV(a) to Directive 92/43. It is not decisive, in that regard, that the species concerned may be present on the Natura 2000 site concerned in significant numbers. Article 12(1)(d) of Directive 92/43 prescribes a regime providing for strict protection of the breeding sites and resting places of the species listed in Annex IV(a) to Directive 92/43, regardless of their numbers. (see paras 231, 237) 8. Article 5 of Directive 2009/147 on the conservation of wild birds, as amended by Directive 2013/17, requires the Member States to adopt a complete and effective legislative framework, by the implementation of concrete and specific protection measures that must enable it to be ensured that the prohibitions listed in Article 5(b) and (d) of that directive, intended in essence to protect the breeding sites and resting places of the birds covered by that directive, are actually complied with. In addition, those prohibitions must apply without any limitation in time. That obligation is not fulfilled by a Member State that authorises itself to derogate from the protection of protected birds on a Natura 2000 site in connection with active forest management operations by adopting acts, the implementation of which would inevitably lead to deterioration or destruction of the breeding sites or resting places of the aforesaid bird species, which do not contain concrete and specific protection measures that would both enable deliberate interference affecting the life and habitat of those birds to be excluded from their scope and make it possible to ensure actual observance of the prohibitions on deliberate destruction of, or damage to, their nests and eggs or removal of their nests and on deliberate disturbance of the birds particularly during the period of breeding and rearing. (see paras 252, 255, 259)