Opinion of the Advocate General — ECLI:EU:C:2016:110
Date: 2016-02-23
Language of the case: Spanish
Subject matter: Environment
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded
Origin: Spain

Summary — Judgment of the Court (Fifth Chamber), 24 November 2016 1. Actions for failure to fulfil obligations — Subject-matter of the dispute — Determination during the pre-litigation procedure — Subsequent enlargement — Unlawful — Clarification of complaints — Lawfulness (Art. 258 TFEU) 2. Actions for failure to fulfil obligations — Proof of failure — Burden of proof on Commission — Presumptions — Unlawful — Production of evidence showing failure (Art. 258 TFEU) 3. Environment — Conservation of wild birds — Directive 2009/147 — Classification as a special protection area — Obligation of the Member States — Failure to fulfil obligations — Criteria for assessment — Taking into consideration the list of areas of importance for the conservation of birds in Europe — Lawfulness (European Parliament and Directive Council 2009/147, Art. 4; Council Directive 79/409, Annex I) 4. Environment — Assessment of the effects of certain projects on the environment — Directive 85/337 — Competent authorities obliged to carry out the assessment before they issue authorisation — Scope — Requirement to mention, in the assessment, the inclusion of the site in the list of areas of importance for the conservation of birds in Europe — None (Council Directive 85/337, as amended by Directive 97/11) 5. Environment — Conservation of wild birds — Directive 2009/147 — Special conservation measures — Obligations of the Member States — Area which is, or ought to be, classified as a special protection areas (SPA) — Obligation to take steps to avoid pollution or deterioration of habitats — Effects of implementation of Directive 92/43 — Duality of the regimes applicable to areas which are or ought to be, classified as SPAs (European Parliament and Council Directive 2009/147, Art. 4(4); Council Directive 92/43, Art. 6(2)) 6. Environment — Conservation of wild birds — Directive 2009/147 — Special conservation measures — Obligation of the Member States to take steps to avoid pollution or deterioration of habitats — Failure to fulfil obligations — Burden of proof on the Commission — Scope (European Parliament and Council Directive 2009/147, Art. 4(4)) 7. 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 — Burden of proof on the Commission — Scope — Requirement to establish the existence of a cause-and-effect relationship between a construction project and a disturbance caused to the species concerned — None (Council Directive 92/43, Art. 6(2)) 1. See the text of the decision. (see paras 26, 27) 2. See the text of the decision. (see para. 50) 3. The list of areas of importance for the conservation of birds in Europe, although not legally binding, can be used by the Court as a basis of reference for assessing whether a Member State has classified a sufficient number and size of areas as special protection areas. That publication provides an up-to-date list of the areas of importance for the conservation of birds in the Member State which, in the absence of scientific proof to the contrary, constitutes a basis of reference permitting an assessment to be made as to whether a Member State has classified areas of a sufficient number and size as special protection areas to protect all the bird species listed in Annex I to Directive 79/409 on the conservation of wild birds and the migratory species not listed in that annex. (see paras 51, 52) 4. However, Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, does not contain any provision requiring the environmental impact assessment to state that a site affected by a project subject to such assessment is included in a list of areas of importance for the conservation of birds in Europe. (see para. 53) 5. See the text of the decision. (see paras 70, 71) 6. See the text of the decision. (see paras 77, 83) 7. An activity complies with Article 6(2) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora only if it is guaranteed that it will not cause any disturbance likely significantly to affect the objectives of that directive, particularly its conservation objectives. In that regard, that provision requires Member States to take appropriate steps to avoid, in special protection areas classified in accordance with Article 6(1) of that directive, deterioration of habitats and disturbance significantly affecting the species for which the special protection areas have been classified. As regards a project to construct a high-speed railway line, in order to establish failure to fulfil obligations under Article 6(2) of Directive 92/43, the Commission does not have to establish the existence of a cause-and-effect relationship between that construction and significant disturbance caused to the species concerned. Rather, it is sufficient for that institution to establish that there is a probability or risk that that construction might cause significant disturbances for those species. (see paras 94, 95, 97)