Opinion of the Advocate General — ECLI:EU:C:2011:651
Date: 2011-10-13
Language of the case: Greek
Subject matter: Environment;Approximation of laws;Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: Greece

summary, the answer to the fourth question is that national legislation which is enacted before the expiry of the time-limit for producing management plans or programmes of measures and which permits the diversion of water from a particular river basin to another river basin seriously affects the objectives of the Water Framework Directive if that diversion leads to water status which for a lasting period and not merely insignificantly is incompatible with Article 4 of the directive. A justification on the basis of overriding public interests is also possible in connection with the advance effects of Article 4; management plans are not necessary, but the national legislation must be adopted on the basis of sufficient data. 7. The fifth question – public participation 122. By the fifth question, the Simvoulio tis Epikratias is seeking to ascertain whether a legislative provision which is enacted by a national parliament and which approves river basin management plans is compatible with the Water Framework Directive, although the relevant national rules do not provide for a public consultation stage in the procedure before the national parliament and it is not apparent from the documents before that court that the consultation procedure that is provided for in the directive was observed by the administrative authorities. 123. The Prefectural Authority of Magnisia and DEI consider that question to be hypothetical, as the obligation to produce management plans did not yet exist when the contested law was enacted. Nevertheless, the main proceedings also concern two management plans which were adopted by Law 3481/2006 and, by all appearances, continue to be in force, that is to say after the expiry of the transitional period. Furthermore, the Simvoulio tis Epikratias possibly takes the view that those management plans were necessary under Greek law, which it wishes to apply prospectively in accordance with the procedural requirements of the directive. It cannot therefore be ruled out that an answer to this question is necessary to the decision in the main proceedings. 124. The lack of consultation could infringe Article 14 of the Water Framework Directive. That provision is intended to confer on individuals and interested parties a right to be actively involved in the implementation of the directive and, in particular, in the production, review and updating of the river basin management plans. (44) 125. To that end, Article 14 of the Water Framework Directive requires various documents to be published at certain intervals before the beginning of the period to which the plan refers. There must be published; at least three years before the plan enters into force a timetable for its production, two years before it enters into force an interim overview of the relevant water management issues, and draft copies of management plan must be made available at least one year before the plan enters into force. Other background documents must be disclosed on request. Under Article 14(2), Member States must allow at least six months to comment in writing on those documents in order to allow active involvement and consultation. 126. There is no provision for derogation from these conditions in the production of management plans. In particular, there is no exception for legislative measures like that contained in Article 1(5) of the EIA Directive. 127. Contrary to the view taken by the Prefectural Authority of Larisa, this does not constitute a legal lacuna which should be filled by applying, by analogy, the EIA Directive. (45) Rather, the Union legislature must be assumed to have consciously refrained from providing for a comparable exception for legislative processes. This is suggested in particular by the judgment in WWF and Others, (46) which had been delivered when the Water Framework Directive was adopted, and the Linster case, (47) pending at that time, which both concerned the conditions governing the exception under the EIA Directive for legislative processes and the SEA Directive, which was adopted a short time later and which makes express provision for public participation in connection with environmental assessments of legislative measures. 128. The Prefectural Authority of Larisa is also incorrect in its argument that, in the absence of an exception for legislative processes, the Member States would be prevented from adopting management plans in the form of laws. They can indeed choose that course of action if they integrate the steps provided for in Article 14 of the Water Framework Directive into their legislative process or its preparation by the administrative authorities. 129. The answer to the fifth question must therefore be that it is incompatible with Article 14 of the Water Framework Directive to produce management plans without ensuring the envisaged public participation. B – The EIA Directive 130. The sixth question concerns the EIA Directive. It seems that no new environmental impact assessment relating to the construction of dams and the diversion of water was conducted before Law 3481/2006 was enacted. Instead, reference was made to the environmental impact assessment which had already been conducted, on which the approval of the project in 2003, annulled in 2005, was based. The Simvoulio tis Epikratias asks whether this course of action satisfies the requirements laid down in the EIA Directive. 131. The Simvoulio tis Epikratias takes the view that the environmental impact assessment for the annulled authorisation contained all the information required under the EIA Directive. However, the public participation amounted only to publishing the subsequently annulled authorisation from 2003. 132. The conditions laid down in the EIA Directive are relevant only if the directive is actually applicable. Under Article 1(5), however, it does not apply to projects the details of which are adopted by a specific act of national legislation. The provision expressly states that the objectives of the directive, including that of supplying information, are achieved through the legislative process. 133. That provision accordingly exempts projects envisaged by the EIA Directive from the assessment procedure where two conditions are met. The first requires the details of the project to be adopted by a specific legislative act; under the second, the objectives of the directive, including that of supplying information, must be achieved through the legislative process. (48) 134. Thus, it is only where the legislature has available to it information equivalent to that which would be submitted to the competent authority in an ordinary procedure for authorising a project that the objectives of the directive may be regarded as having been achieved through the legislative process. (49) 135. The Court has therefore ruled that the details of a project cannot be considered to be adopted by a law, for the purposes of Article 1(5) of the EIA Directive, if the law does not include the elements necessary to assess the environmental impact of the project but, on the contrary, requires a study to be carried out for that purpose, which must be drawn up subsequently, and if the adoption of other measures are needed in order for the developer to be entitled to proceed with the project. (50) 136. Advocate General Sharpston has recently made clear that the EIA Directive is not about formalism, but it is concerned with providing effective EIAs for all major projects and with ensuring adequate public participation in the decision‑making process. (51) Provided that the legislature has the necessary material and performs its democratic function correctly and effectively, i.e. the people’s elected representatives were able properly to examine and debate the proposed project, the legislative process achieves the objectives of the EIA Directive. (52) Conversely, a legislative process that merely provides the formal rubber-stamp for an earlier administrative process which has effectively already taken the relevant decisions will not provide the same safeguards as those required by the EIA Directive. (53) 137. It must therefore be clarified in the main proceedings whether the legislature had the material necessary in the procedure under the EIA Directive and was able properly to examine and debate the environmental effects of the project. 138. The EIA Directive does not contain any specific requirements as to how updated the material must be. However, a project’s environmental effects can be accurately assessed only on the basis of the best available information at the time when consent is given. Accordingly, Article 5(1) of the EIA Directive in particular contains indications that recent information must be submitted where this is required by the circumstances of the relevant case. 139. Thus, Article 5(1)(b) of the EIA Directive requires that the extent of the information to be supplied by the developer must be determined having regard to current knowledge. This is, as a rule, current knowledge at the beginning of an development consent procedure, since it must be decided at that time what information must be supplied by the developer. However, the extent of that information under Article 5(1)(a) of the EIA Directive also depends on whether the information is relevant to a given stage of the consent procedure and to the particular characteristics of a particular project or type of project and of the environmental features likely to be affected. 140. If, at a subsequent stage of the consent procedure, it transpires that more updated information is necessary in order to give an accurate assessment of a project’s environmental effects, that information must be requested. (54) 141. The Simvoulio tis Epikratias is therefore required to examine whether the information which was sufficient in 2003 was still sufficient in 2006 in order to assess the project’s environmental effects. If that is the case, it was permissible to re-use the relevant documents in the legislative process. 142. Particular consideration must be given to whether the material was still sufficiently updated and – as the Prefectural Authority of Aitoloakarnania and Others rightly claim – whether the project had been altered vis-à-vis the earlier assessment of environmental effects in such a way that would lead to more severe effects on the environment. (55) The Prefectural Authority of Aitoloakarnania and Others also raise the perfectly relevant question whether it is sufficient to base the assessment of environmental effects in 2006 on material which was compiled largely before 1995 and only supplemented before 2003. The Simvoulio tis Epikratias itself stresses in the order for reference that there is no reliable and updated data regarding the birds in the relevant protection areas. (56) 143. According to the submissions made by the Prefectural Authority of Aitoloakarnania and Others regarding the parliamentary procedure for the enactment of Articles 9 and 13 of Law 3481/2006, that procedure also merits closer inspection. If the representatives were not actually informed about the content of those provisions or the approved project, (57) it is extremely doubtful that they were able properly to examine and debate its environmental effects. 144. The answer to the sixth question must therefore be that an environmental impact assessment report which was placed for approval before the national parliament after the annulment by court order of the administrative measure by which it had previously been approved meets the requirements of Article 1(5) of the EIA Directive where, first, it provided the legislature with the information necessary in the procedure under the directive – i.e. sufficiently updated and comprehensive – and, second, the legislature was able properly to examine and debate the environmental effects of the project on that basis. C – The SEA Directive 145. Through questions 7, 8 and 9, the Simvoulio tis Epikratias also wishes to clarify whether Law 3481/2006 meets the conditions of the SEA Directive. To that end, it asks whether the project falls within the material and, if appropriate, also the temporal scope of the SEA Directive (see sections 1 and 2 below). If so, it wishes to know whether, in addition to the assessments under the Water Framework Directive and the EIA Directive, a separate environmental assessment under the SEA Directive is necessary (see section 3 below). 1. The seventh question – the material scope of the SEA Directive 146. By the seventh question, the Simvoulio tis Epikratias wishes to know whether the SEA Directive is applicable to a project to divert a river where that project: concerns the construction of dams and the transfer of water from one river basin district to another; falls within the field of application of the Water Framework Directive; involves works within the scope of the EIA Directive, and may have environmental effects on areas covered by the Habitats Directive. 147. In order to ascertain whether such a project falls within the material scope of the SEA Directive, it must be examined, first, whether it is a plan or programme within the meaning of Article 2(a) of that directive and, second, whether it comes under Article 3(2) to (4). a) Plans and programmes 148. Under Article 2(a) of the SEA Directive, ‘plans and programmes’ means plans and programmes which are subject to preparation and/or adoption by an authority or which are prepared for adoption through a legislative procedure and which are required by legislative, regulatory or administrative provisions. 149. It is not clear from the order for reference whether a ‘plan to divert a river’ is required by legislative, regulatory or administrative provisions. In so far as a plan is developed irrespective of any obligation, there is no need for an environmental assessment under the SEA Directive. (58) 150. According to the submissions made by DEI, it does seem possible that a diversion project may be the subject of a land-use plan provided for by Greek law. However, such a plan is not the subject of the order for reference, but, according to DEI, was not considered to be necessary by the Simvoulio tis Epikratias in an earlier decision. 151. If specific projects require development consent, an environmental assessment under the SEA Directive would likewise not appear to be necessary. Project development consent is not, in itself, a plan or programme. 152. Nevertheless, the question also concerns the management plans for the Acheloos and Pinios river basin districts, which form part of Law 3481/2006. It is beyond doubt that they are plans within the meaning of the SEA Directive. They must be established under Article 13 of the Water Framework Directive. They were also prepared by an authority for adoption, through a legislative procedure, by Parliament. b) The duty to assess management plans 153. Under Article 3(1) of the SEA Directive, an environmental assessment, in accordance with Articles 4 to 9, must be carried out for plans and programmes referred to in paragraphs 2 to 4 which are likely to have significant environmental effects. 154. Under Article 3(2)(a) of the SEA Directive, an environmental assessment must be carried out for plans which are prepared for water management and which set the framework for future development consent of projects listed in Annexes I and II to the EIA Directive. 155. The management plans set out the framework for the authorisation of such projects, e.g. for the transfer of water resources under point 12 of Annex I to the EIA Directive and dam projects under point 15 of Annex I. The primary issue is not authorisations of parts of the diversion project, since the management plans were in any case not yet binding under Union law. However, since the expiry of the time-limit for the production of the management plans any further authorisation of relevant projects must respect the framework set by them. 156. Furthermore, there is also much – in the present case at least – to support the presumption that a duty to assess exists under Article 3(2)(b) of the SEA Directive. That provision covers plans which, in view of the likely effect on sites, have been determined to require an assessment pursuant to Article 6 or 7 of the Habitats Directive. Protection areas under that directive fall within the scope of the management plans. They could be affected in the application of the plans, in particular where those plans provide for the diversion of waters to a significant degree. (59) 157. It must therefore be stated that management plans within the meaning of Article 13 of the Water Framework Directive must, in principle, be subjected to an environmental assessment under the SEA Directive. 2. The eighth question – the temporal applicability of the SEA Directive 158. It is therefore also necessary to clarify the eighth question, namely whether measures which concerned the project at issue and have been annulled with retroactive effect by court orders can be considered to be formal preparatory acts which were issued before 21 July 2004 so that there is no obligation to prepare a strategic environmental report. 159. This question concerns the first sentence of Article 13(3) of the SEA Directive, which, with reference to the period for implementation under Article 13(1), defines the general rule for the application of the directive: plans and programmes of which the first formal preparatory act is after 21 July 2004 are subject to an environmental assessment. 160. The development consents which were judicially annulled do not therefore come into question because they were the (interim) result of a consent procedure. Only steps taken to initiate the consent procedure may be preparatory. It is thus a fortiori irrelevant whether the consent was annulled with retroactive effect. 161. Rather, it is of interest in the main proceedings whether the initiation of the consent procedure may be regarded as a preparatory act for the management plans or whether it may be the preparatory act for a plan to divert the Acheloos. a) The preparation of the management plans 162. The SEA Directive does not define the notion of ‘formal preparatory acts’. However, it is clearly designed to provide a reliable criterion for determining the date on which a procedure was initiated. It thereby provides for legal certainty and contributes to the effectiveness of the directive. (60) A formal preparatory act for a procedure within the meaning of the SEA Directive must thus be clearly directed to the preparation of the plan or programme which is subject to the directive. 163. In connection with the EIA Directive, the Court has therefore considered informal contacts and meetings between the competent authority and the developer to be insufficient to indicate the date of commencement of a procedure. (61) 164. Nor can it be sufficient in connection with the SEA Directive to initiate certain procedures relating to projects to which a management plan would relate, e.g. consent procedures for diversion of waters. It is not clear from such procedure that they (also) have in view a management plan. 165. Moreover, almost no management plan could be subject to an environmental assessment ratione temporis if procedures for the authorisation of the relevant projects, begun before 21 July 2004, were to be regarded as formal preparatory acts for subsequent management plans. Within the scope of each management plan there are many such existing projects to which the plan potentially relates, on account of the prohibition of deterioration and the duty to restore under Article 4 of the Water Framework Directive. 166. Lastly, in this case the chronology also contradicts the claim that initial formal preparatory acts for the management plans were produced before 21 July 2004. Objections were raised to the absence of management plans for the Acheloos and Pinios river basin districts for the first time in Judgment 1688/2005 of the Simvoulio tis Epikratias, i.e. after 21 July 2004. This suggests that the preparations for their adoption also began only after that date. b) The preparation of a plan to divert the Acheloos 167. The situation would be different if – contrary to the answer to the seventh question – there existed a plan for the partial diversion of the Acheloos, which was subject to an assessment. 168. The arrangements governing preparatory acts are intended to make it possible to conclude current procedures without impairment as a result of fundamentally new procedural conditions. They are not intended, on the other hand, to preclude the environmental assessment of plans merely because some administrative measures have been taken in the past in respect of the same subject-matter. 169. The crucial factor would therefore be whether the procedure for the authorisation of the plan was continuously in progress. The judicial decisions would not be regarded as an interruption in this connection if the competent authorities immediately took the necessary measures in order to remedy the deficiencies established by the court. The shift from an administrative procedure to a legislative procedure should also not be regarded as an interruption. 170. The initiation of the procedure for obtaining development consent for the diversion project could therefore be a formal preparatory act for the establishment of a plan relating to that project, which is subject to an assessment. 171. It should also be pointed out that a mandatory assessment under the second sentence of Article 13(3) of the SEA Directive is ruled out in this case. That comes into consideration if plans and programmes, of which the first formal preparatory act is before 21 July 2004, are adopted or submitted to the legislative procedure more than 24 months thereafter. However, according to the order for reference, the contested provisions of Law 3481/2006 were submitted to the Greek Parliament on 6 July 2006. (62) c) Conclusion on the eighth question 172. The answer to the eighth question is therefore that neither annulled consents to a project to divert a river nor the initiation of the corresponding authorisation procedure under Article 13(1) of the SEA Directive may be regarded as formal preparatory acts for river basin district management plans under the Water Framework Directive. However, the initiation of a development consent procedure could be regarded as a preparatory act for a plan to divert a river which is subject to an assessment if the consent procedure is continuously in progress without interruption. 3. The ninth question – scope of the environmental assessment 173. In view of the answer to the eighth question, the ninth question must also be answered. The Simvoulio tis Epikratias is essentially seeking to ascertain whether an autonomous strategic environmental assessment will have to be conducted if assessments have already been conducted under the Water Framework Directive and under the EIA Directive. 174. The answer follows from Article 11(1) and (2) of the SEA Directive, which has already been cited by the Simvoulio tis Epikratias. Under Article 11(1), an environmental assessment carried out under the SEA Directive is without prejudice to any requirements under the EIA Directive and to any other Community law requirements. However, for plans and programmes for which the obligation to carry out assessments of the effects on the environment arises simultaneously from the SEA Directive and other European Union legislation, Article 11(2) permits the Member States to provide for coordinated or joint procedures fulfilling the requirements of the relevant Union legislation in order, inter alia, to avoid duplication of assessment. 175. Those provisions show that the production of the various environmental assessments under European Union law need not be formalistic. Rather, the important factor is that the conditions laid down in the various rules are implemented. If this is done, it does not matter how the assessment in question is designated. (63) 176. Whether certain reports on the basis of other provisions satisfy the requirements of the SEA Directive is a question which must be examined by the national courts, having regard to the specific features of each individual case. Such reports must satisfy both the substantive and the procedural requirements of the SEA Directive. Because the EIA Directive and SEA Directive are largely parallel, this is possible, in principle, where both assessments have the same scope, i.e. if the project and the plan are largely congruent. It also would not appear to be ruled out that, if the conditions governing a management plan under Article 13(4) and Annex VII of the Water Framework Directive are satisfied, that is sufficient to meet the conditions governing an environmental assessment for the plan under the SEA Directive. 177. In the light of the comments regarding the EIA Directive, (64) however, it should be pointed out that any deficiencies in the assessment under that directive should, in all likelihood, also be regarded as deficiencies in an environmental assessment under the SEA Directive. Article 5(2) of the SEA Directive requires, in much clearer terms than the EIA Directive, that the assessment take into account current knowledge and methods of assessment. Article 8 of each directive also requires that information acquired regarding the environmental effects be taken into account in the decision. 178. The answer to the ninth question is therefore that for the purpose of Article 11(2) of the SEA Directive, if a plan simultaneously falls within the scope of that directive and within that of the Water Framework Directive and the EIA Directive which also require the environmental effects of that scheme to be assessed, no autonomous strategic environmental assessment need be conducted if the assessments which have been drawn up on the basis of the Water Framework Directive and the EIA Directive satisfy the requirements of the SEA Directive substantively and with respect to the procedure followed. D – Nature conservation 179. Lastly, it is necessary to examine several questions relating to European Union nature conservation legislation. The Simvoulio tis Epikratias asks about the temporary protection of proposed sites of Community importance (SCIs) before they have been included in the Community list (see section 1 below), the lawfulness of a development consent without knowledge of the birds affected (see section 2 below), the justification of damage to sites with reference to the aims of irrigation and drinking water supply (see section 3 below), possible measures to maintain coherence (see section 4 below) and whether it is compatible with the Habitats Directive to convert a natural fluvial ecosystem into a man-made fluvial and lacustrine ecosystem (see section 5 below). 180. The answer to those questions is heavily characterised by the fact that the development consent procedure relating to the partial diversion of the Acheloos has already been in progress for a very long time. It began before the Habitats Directive was adopted. The procedure for the ex-ante assessment of projects under Article 6(3) cannot therefore be applied, but only the prohibition of deterioration under Article 6(2). 1. The tenth question – protection of proposed sites in the enactment of Law 3481/2006 181. By the tenth question, the Simvoulio tis Epikratias is seeking to ascertain whether the areas which were included in the national lists of sites of Community importance (SCIs) and, ultimately, were included in the Community list of SCIs were covered by the protection afforded by the Habitats Directive before the publication of Commission Decision 2006/13, by which the list of protected SCIs for the Mediterranean biogeographical region was adopted. 182. The Simvoulio tis Epikratias refers to five SCIs (65) which were included in the list by that decision and are affected by the project. 183. In this question the Simvoulio tis Epikratias assumes that the relevant provisions of Law 3481/2006, Articles 9 and 13, were promulgated by the Law and entered into force on 2 August 2006, whilst Decision 2006/613 was not published until 21 September 2006. If the date of publication were relevant for inclusion of the sites concerned in the Community list, Article 6(2), (3) and (4) of the Habitats Directive would have been applicable, under Article 4(5) of that directive, only from 21 September 2006, (66) i.e. after the entry into force of Law 3481/2006. 184. However, in accordance with Article 254(3) EC, which was applicable at that time (after amendment, now the third subparagraph of Article 297(2) TFEU), Decision 2006/613 took effect upon notification to those to whom it is addressed – namely, under Article 2 of the decision, the Member States. (67) There is no need, in the present case, to decide whether site protection could be imposed on individuals before the publication of the decision. The Simvoulio tis Epikratias will have to determine the date of notification – for which the database of European Union law (EUR-Lex) gives the date of the adoption of the decision, 19 July 2006. (68) a) Temporary site protection of proposed sites 185. If it emerges that the Commission decision was notified to Greece only after Law 3481/2006 was enacted, Greece had to guarantee the temporary protection of proposed sites: under the Habitats Directive, the Member States must, as regards the sites identified with a view to their inclusion on the Community list, take appropriate protective measures in order to maintain the ecological characteristics of those sites. Member States cannot therefore authorise interventions which may pose the risk of seriously compromising the ecological characteristics of a site. This is particularly the case when an intervention poses the risk either of significantly reducing the area of a site, or of leading to the disappearance of priority species present on the site, or, finally, of having as an outcome the destruction of the site or the destruction of its representative characteristics. (69) b) Protection of sites after inclusion in the Community list 186. If, on the other hand, the Commission had already notified its decision to Greece when Law 3481/2006 was enacted, the provisions of Article 6(2), (3) and (4) were applicable in principle, under Article 4(5) of the Habitats Directive, to the sites included in the list. However, I will show below that the fact that the procedure for the authorisation of the partial diversion of the Acheloos had already been in progress for some time precludes the application of the ex-ante assessment under Article 6(3). Instead, Article 6(2) is applicable, possibly in conjunction with the conditions under Article 6(4) governing justification of possible damage to sites. The applicability of Article 6(3) of the Habitats Directive 187. It seems reasonable to require an assessment of the implications of the diversion of the Acheloos for the sites in view of the sites’ conservation objectives pursuant to the first sentence of Article 6(3) of the Habitats Directive. Under that provision, plans or projects which are likely to have a significant effect on an area of conservation are subject to appropriate assessment of the implications for the site in view of the site’s conservation objectives. 188. However, the Court has held that where a project has been authorised before the expiry of the time-limit for transposing the Habitats Directive or the procedure for authorisation was initiated prior to the date of accession of the Member State concerned to the European Union, it would not be subject to the requirements under Article 6(3) of the Habitats Directive relating to the procedure for prior assessment of the implications of the project for the site concerned. (70) It would therefore not be appropriate for the relevant procedures, which are already complex at national level and which were formally initiated prior to the date of the expiry of the period for transposing the directive, to be made more complex and time-consuming by the specific requirements imposed by the directive and for situations already established to be affected by it. (71) 189. The present case concerns neither a legally valid development consent before the expiry of the time-limit for transposing the Habitats Directive nor a consent procedure which began before Greece’s accession to the European Union. It should nevertheless be treated in exactly the same way, even though the sites concerned had already been included in the Community list when Law 3481/2006 was enacted. 190. The procedure for obtaining development consent for the partial diversion of the Acheloos began in the early 1990s – that is to say possibly before the adoption of the Habitats Directive – and was not subject to the ex-ante assessment procedure until notification of the decision on the Community list with regard to the SCIs concerned. (72) If that procedure were still to be applied shortly before Law 3481/2006 was enacted, the course of the procedure could actually be significantly complicated and delayed. 191. Furthermore, it was difficult in practice to foresee when the Commission would adopt the Community list. Under Article 4(2) of the Habitats Directive, the list was to be drawn up by 1998, and other sub-lists had been notified long before the list for Mediterranean biogeographical regions, which covers Greece. (73) Greece could not therefore necessarily expect the protective regime under the Habitats Directive to be applicable before the project was approved. 192. There was consequently no need for an assessment of the implications for the SCIs under Article 6(3) of the Habitats Directive. The applicability of Article 6(2) of the Habitats Directive 193. However, the abovementioned case‑law concerns only the procedural aspects of the protective regime under the Habitats Directive. The Court has, on the other hand, repeatedly held that the substantive requirements governing the protection of sites, laid down in Article 6(2) of the Habitats Directive, are not excluded by existing development consents. That provision prohibits the deterioration of natural habitats and the habitats of species in the special areas of conservation, as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of the directive. 194. The Court has held that application of Article 6(2) of the Habitats Directive makes it possible to satisfy the essential objective of the preservation and protection of the quality of the environment, including the conservation of natural habitats and of wild fauna and flora, as stated in the first recital in the preamble to that directive, where a plan authorised under Article 6(3) or project subsequently proves likely to give rise to such deterioration or disturbance, even where the competent national authorities cannot be held responsible for any error. (74) In addition, Article 6(2) may also require that a subsequent review of an existing authorisation be carried out; (75) accordingly, the implementation of a project authorised prior to the expiry of the time-limit for transposing the Habitats Directive falls within the scope of that provision. (76) 195. Consequently, Article 6(2) of the Habitats Directive requires Member States to take the necessary steps to avoid the deterioration and disturbance of protected areas also in relation to existing projects. The legitimate interests of the holders of authorisations must, where necessary, be satisfied by means of compensation. (77) 196. The foregoing case‑law is not at odds with the prohibition on the retroactive application of rules of law. On the contrary, a new rule of law applies, in principle, from its entry into force. While it does not apply to legal situations which have become established and definitive under the old law, it does apply to their future effects. (78) Projects which may cause the deterioration of or disturb protection areas can also therefore be authorised only in so far as they are compatible with site protection, even if their authorisation procedure was not yet subject to the procedural conditions under Article 6(3) of the Habitats Directive. (79) 197. If the Commission included the SCIs on the Community list before Law 3481/2006 was enacted, the Simvoulio tis Epikratias must therefore examine whether the law is compatible with Article 6(2) of the Habitats Directive. Justification of possible damage to SCIs 198. If the Simvoulio tis Epikratias concludes that natural habitats or habitats of species in the SCIs are damaged or disturbed as a result of Law 3481/2006, the question arises whether that damage may be justified. 199. Article 6(2) of the Habitats Directive – like Article 4(4) of the Birds Directive in relation to the protection of de facto bird protection areas – does not provide for a ground of justification based on overriding interests. After all, the protection of sites under the Habitats Directive is based on the idea that the deterioration or significant disturbance of protected areas must always be authorised (and, where so authorised, justified) in accordance with Article 6(3) and (4). Moreover, where such authorisation is based on an appropriate assessment of the implications for the site in question, there is in principle no scope for the application of Article 6(2). (80) 200. In the present case, by contrast, Article 6(3) and (4) of the Habitats Directive was not even yet applicable. It would, however, be unreasonable to deny to projects which, for reasons of date, are not subject to the prior assessment under Article 6(3) and (4) the possibility of being authorised by way of derogation, as provided for in Article 6(4). Those projects would be more severely restricted than later projects, to which the provisions of Article 6(2) to (4) apply in their entirety. (81) 201. In the case of old projects, therefore, the deterioration or significant disturbance of protected areas must also be permitted under Article 6(2) of the Habitats Directive where the material conditions laid down in Article 6(4) are present, that is to say imperative reasons of overriding public interest, including those of a social or economic nature, the absence of an alternative solution and compensatory measures to ensure that the overall coherence of Natura 2000 is protected. (82) 202. The conditions governing justification will be examined in detail below in connection with the answers to the subsequent questions. c) Conclusion on the tenth question 203. The answer to the tenth question is therefore that, prior to the notification of the Community list of sites of Community importance (SCIs), the Member States were required under the Habitats Directive, for the areas which were included in the national lists of SCIs and, ultimately, were included in the Community list, to take appropriate protective measures in order to maintain the characteristics of those sites. (83) Since notification, the Member States must, under Article 6(2) of the Habitats Directive, prevent deterioration or disturbance of natural habitats or habitats of species in the SCIs caused by projects whose authorisation procedure was initiated before notification, if any damage to the sites is not justified. 2. The eleventh question 204. By the eleventh question, the Simvoulio tis Epikratias would like to know whether is it possible for the competent national authorities to grant development consent for a project for the diversion of waters in the absence of reliable and updated data regarding the birds in the protection area concerned. 205. The Prefectural Authority of Magnisia objects that the Simvoulio tis Epikratias could not, under its procedural rules, establish the absence of information regarding the birds, and for that reason the question referred for a preliminary ruling is inadmissible. However, this objection cannot be accepted. In preliminary ruling proceedings, the Court is, in principle, bound by the information provided by the referring court and may not review whether the court has exceeded its powers under national law. (84) 206. The eleventh question must therefore be answered. The first sentence of Article 6(3) of the Habitats Directive would normally be relevant in this regard. However, since the authorisation procedure has already been in progress for a long time, that provision is not applicable. Article 6(2) applies instead. a) The applicability of the first sentence of Article 6(3) of the Habitats Directive 207. The ex-ante assessment under the first sentence of Article 6(3) of the Habitats Directive is relevant in principle to the authorisation of projects and the information to be consulted in this regard. Such an assessment should rely on the best scientific knowledge relating to the birds in the area concerned. (85) 208. As has already been explained, (86) the first sentence of Article 6(3) of the Habitats Directive is not applicable to the SCIs concerned, but that provision could be applied with regard to the relevant special protection areas under the Birds Directive, which have been previously identified. Under Article 7 of the Habitats Directive, Article 6(2), (3) and (4) apply to such areas as from the date of its implementation or the date of classification or recognition by a Member State, where the latter date is later. 209. The Habitats Directive became applicable upon the expiry of the implementation period in 1994. The first sentence of Article 6(3) was thus applicable at the earliest from that date and at the latest as from the subsequent identification of the relevant SPAs. 210. However, the development consent procedure for the partial diversion of the Acheloos began before 1994, as the first consents were issued in 1992. The Simvoulio tis Epikratias annulled those consents, as it did subsequent ones, but there is much to suggest that the authorising of the project was the subject of a continuous procedure up to the contested provisions of Law 3481/2006. (87) 211. The development consent procedure must therefore be regarded as having been initiated before the first sentence of Article 6(3) of the Habitats Directive was applicable. The case‑law cited above regarding development consent procedures which were initiated before the introduction of significant changes to procedural law (88) thus precludes an obligation to conduct an assessment of the implications for the site under that provision. b) Article 6(2) and (4) of the Habitats Directive 212. On the other hand, Article 6(2) of the Habitats Directive is applicable. (89) 213. The need for the application of that provision is even more evident in the case of bird protection areas than in the case of protection areas under the Habitats Directive, namely the SCIs. Bird protection areas have had to be classified in Greece since the expiry of the period for transposition of the Birds Directive, 6 April 1981. (90) Even if the necessary classification has not been made, the relevant areas have been subject to the protection provided by the first sentence of Article 4(4) since that date. (91) 214. In this case it must therefore be examined whether the approved project causes the habitats of birds, for which the SPA was identified, to deteriorate or disturbs those species in a way which could be significant in the light of the objectives of the directive. (92) 215. If such deteriorations or disturbances are established, it will also be necessary to examine whether they can be justified on the basis of the substantive criteria laid down in Article 6(4) of the Habitats Directive. As has already been explained, any justification requires a weighing up process, the examination of alternatives and compensatory measures. (93) 216. While it is true that a formal assessment of the implications for the site in question, in accordance with Article 6(3) of the Habitats Directive, is not required, the discretion enjoyed by the Member States in the acceptance of a ground of justification is none the less subject to limits. (94) 217. The Court has found that Article 6(4) of the Habitats Directive can apply only after the implications of a plan or project have been studied in accordance with Article 6(3) of that directive. Knowledge of those implications in the light of the conservation objectives relating to the site in question is a necessary prerequisite for application of Article 6(4). Without it, no condition for application of that derogating provision can be assessed. The assessment of any imperative reasons of overriding public interest and that of the existence of less harmful alternatives require a weighing up exercise against the damage caused to the site by the plan or project under consideration. In addition, in order to determine the nature of any compensatory measures, the damage to the site must be precisely identified. (95) 218. Consequently, in connection with the justification of damage under Article 6(2) of the Habitats Directive too, it is necessary carefully and impartially to examine all the relevant elements of the individual case and, in so doing, to ensure that those elements are capable of supporting the conclusions drawn from them. (96) In this connection too, the weighing up exercise, the examination of alternatives and the compensatory measures must be preceded by an appropriate assessment of the effects requiring justification. (97) 219. The effects can be properly assessed only on the basis of reliable and updated data regarding the birds in the relevant areas. Otherwise, purely hypothetical adverse effects would find their way into the weighing up exercise, the examination of alternatives and the determination of compensatory measures. It would not be certain that actual damage is taken into account. c) Conclusion on the eleventh question 220. The answer to the eleventh question is therefore that it is possible, for the purpose of Article 6(2) of the Habitats Directive, for the competent national authorities to grant development consent for a project for the diversion of waters which causes a deterioration in the habitats of birds for which the SPA was identified, or disturbs those species in a way which could be significant in the light of the objectives of the directive, only if that project is justified on the basis of reliable and updated data regarding the birds in the relevant SPAs. 3. The twelfth question – imperative reasons of overriding public interest 221. By the twelfth question, the Simvoulio tis Epikratias wishes to know whether grounds for undertaking a project to divert waters that relate principally to irrigation and secondarily to drinking water supply can justify damage to a protection area. 222. The twelfth question relates to the first of the conditions under Article 6(4) of the Habitats Directive, namely imperative reasons of overriding public interest, including those of a social or economic nature. As has already been established in connection with the Water Framework Directive, irrigation and drinking water supply may be such reasons in principle. (98) 223. Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised, under the second subparagraph of Article 6(4) of the Habitats Directive, are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest. 224. Three SCIs mentioned in the order for reference host priority species or habitats: ‘Delta Acheloou, Limnothalassa, Mesologgiou-Aitolikou, Ekvoles Evinou, Nisoi Echinades, Nisos Petalas’ (GR2310001), ‘Limnes Trichonida kai Lysimachia’ (GR2310009) and ‘Aspropotamos’ (GR1440001). (99) 225. Because the Commission has not delivered an opinion in the present case, the number of possible justifying interests is severely limited by the wording of the second subparagraph of Article 6(4) of the Habitats Directive. Irrigation would not be an interest which could justify the project, as it would not be necessary either for human health, public safety, or beneficial consequences of primary importance for the environment. Drinking water supply, on the other hand, would be a consideration relating to human health. 226. However, it would be inappropriate to apply the more stringent conditions governing justification of adverse effects if the priority elements of the relevant sites are not damaged. Since the Commission has publicly expressed this position, (100) there is no need in such cases for its opinion before invoking other interests. The Simvoulio tis Epikratias must therefore ascertain whether priority elements of the sites concerned are damaged, and whether therefore more stringent conditions governing possible justification apply. 227. Furthermore, the reasons for a project are imperative and overriding only if they have greater importance than its negative effects on the areas protected by the Habitats Directive. (101) 228. The answer to the twelfth question is therefore that both irrigation and drinking water supply are imperative reasons of overriding public interest within the meaning of Article 6(4) of the Habitats Directive for a project to divert waters, if those reasons outweigh the adverse effects of that project on the sites protected by the directive. If, however, priority habitat types or species are damaged, only drinking water supply is a possible justification in the absence of an opinion delivered by the Commission. 4. The thirteenth question – measures to ensure the coherence of a Natura 2000 229. By the thirteenth question, the Simvoulio tis Epikratias wishes to ascertain whether in determining the sufficiency of the compensatory measures criteria such as the extent of that diversion and the scale of the works which the diversion entails should be taken into account. 230. This question concerns the third condition for a justification of damage to protection areas under Article 6(4) of the Habitats Directive, namely the compensatory measures necessary to ensure that, despite the damage to a site, the overall coherence of Natura 2000 is protected. Contrary to the wording of questions 13 and 14, it does not relate to the coherence of individual sites, but the coherence of the network of protection areas. 231. According to Article 3(1) of the Habitats Directive, Natura 2000 is a coherent European ecological network of special areas of conservation. This network is composed of sites hosting the natural habitat types listed in Annex I and habitats of the species listed in Annex II, and of the SPAs for the bird species mentioned in Annex I to the Birds Directive and for regularly occurring migratory species. Natura 2000 must enable the natural habitat types and the species’ habitats concerned to be maintained or, where appropriate, restored at a favourable conservation status in their natural range. (102) 232. The necessary measures can therefore be identified only in relation to the damage to the area in question. The competent authorities must establish the damaged area’s contribution to Natura 2000 that is lost as a result of the project and how that loss is to be offset so that overall the coherence of the network is maintained. (103) 233. Thus, the Court has previously found that in order to determine the nature of any compensatory measures, the damage to the site must be precisely identified. (104) With regard to the compensatory measures, the extent of the diversion of the Acheloos and the scale of the works which the diversion entails should therefore be taken into account, if they damage protection areas. 234. The answer to the thirteenth question is therefore that in determining the sufficiency of the compensatory measures which are necessary, within the meaning of Article 6(4) of the Habitats Directive, to ensure that the overall coherence of Natura 2000 is protected, criteria such as the extent of the diversion of a river and the scale of the works which the diversion entails should be taken into account if they damage Natura 2000 protection areas. 5. The fourteenth question – conversion of a natural fluvial ecosystem 235. By the fourteenth question, the Simvoulio tis Epikratias is seeking to ascertain whether the Habitats Directive, interpreted in the light of the principle of sustainable development as enshrined in Article 6 EC (now Article 11 TFEU), permits the conversion of a natural fluvial ecosystem into a man-made fluvial and lacustrine ecosystem. 236. In all likelihood, the conversion of a natural fluvial ecosystem into a man‑made fluvial and lacustrine ecosystem, i.e. a succession of reservoirs, would cause a deterioration of existing protected habitats within the meaning of Article 6(2) of the Habitats Directive. This would have to be assessed specifically having regard to the relevant conservation objectives. 237. However, any deterioration does not mean that the diversion project in question would be unlawful in any event. It might be justified on the basis of the criteria under Article 6(4) of the Habitats Directive. 238. The principle of sustainability must be taken into account in connection with the justification, that is to say in assessing the reasons of public interest, the damage and alternatives. If the project cannot achieve its objectives sustainably, or can do only partially, the weight of those objectives in the balancing of interests is reduced. Thus, merely temporary damage has less weight than sustained damage. 239. The answer to the fourteenth question is therefore that a project to divert waters within a Natura 2000 area, which would convert a natural fluvial ecosystem into a man-made fluvial and lacustrine ecosystem, may be approved if the conditions under Article 6(4) of the Habitats Directive are satisfied. V – Conclusion 240. I propose that the Court give the following answers to the questions referred for a preliminary ruling: (1) Article 13(6) and Article 11(7) of Directive 2000/60/EC establishing a framework for Community action in the field of water policy do not set a time-limit for transposition of Article 4 of the directive, but merely an ultimate time-limit for the production of management plans or programmes of measures. The directive does not, however, require the application of Article 4 before the expiry of that time-limit. (2) National legislation which is enacted before the expiry of the time-limit for establishing management plans or programmes of measures and which permits the diversion of water from a particular river basin to another river basin seriously affects the objectives of Directive 2000/60 if the diversion leads to water status which is incompatible with Article 4 of the directive in a sustained and not merely minor way. A justification on the basis of overriding public interests is also possible in connection with the advance effects of Article 4; management plans are not necessary, but the national legislation must be adopted on the basis of sufficient data. (3) It is incompatible with Article 14 of Directive 2000/60 to produce management plans without conducting the envisaged public participation. (4) An environmental impact assessment which was placed for approval before the national parliament after the annulment by court order of the measure by which it had previously been approved by the administrative authorities meets the requirements of Article 1(5) of Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2003/35/EC providing for public participation in respect of the drawing up of certain plans and programmes where, first, it provided the legislature with the information necessary in the procedure under the directive – i.e. sufficiently updated and comprehensive – and, second, the legislature was able properly to examine and debate the environmental effects of the project on that basis. (5) Management plans within the meaning of Article 13 of Directive 2000/60 must, in principle, be subjected to an environmental assessment under Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment. (6) Neither measures which concerned the authorisation of an isolated project to divert a river and have been annulled with retroactive effect by court orders nor the initiation of the corresponding consent procedure under Article 13(1) of Directive 2001/42 may be regarded as formal preparatory acts for river basin district management plans under Directive 2000/60. However, they may be regarded as preparatory acts for a plan to divert a river which is subject to an assessment if the consent procedure is continuously in progress without interruption. (7) For the purpose of Article 11(2) of Directive 2001/42, if a plan simultaneously falls within the scope of that directive and within that of Directive 2000/60 and Directive 85/337 which also require the environmental effects of that scheme to be assessed, no autonomous strategic environmental assessment need be conducted if the assessments which have been drawn up on the basis of Directive 2000/60 and Directive 85/337 satisfy the requirements of the Directive 2001/42 substantively and with respect to the procedure followed. (8) Prior to the notification of the Community list of sites of Community importance (SCIs), the Member States were required under Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora, for the areas which were included in the national lists of SCIs and, ultimately, were included in the Community list, to take appropriate protective measures in order to maintain the characteristics of those sites. Since notification, the Member States must, under Article 6(2) of the Directive 92/43, prevent deterioration or disturbance of natural habitats or habitats of species in the SCIs caused by projects whose authorisation procedure was initiated before notification, if any damage to the sites is not justified.. (9) It is possible, for the purpose of Article 6(2) of the Directive 92/43, for the competent national authorities to grant development consent for a project for the diversion of waters which causes a deterioration in the habitats of birds for which the special protection area was identified, or disturbs those species in a way which could be significant in the light of the objectives of the directive, only if that project is justified on the basis of reliable and updated data regarding the birds in the relevant special protection area. (10) Both irrigation and drinking water supply are imperative reasons of overriding public interest within the meaning of Article 6(4) of Directive 92/43 for a project to divert waters, if those reasons outweigh the adverse effects of that project on the sites protected by that directive. If, however, priority habitat types or species are damaged, only drinking water supply is a possible justification in the absence of an opinion delivered by the Commission. (11) In determining the sufficiency of the compensatory measures which are necessary, within the meaning of Article 6(4) of Directive 92/43, to ensure that the overall coherence of Natura 2000 is protected, criteria such as the extent of the diversion of a river and the scale of the works which the diversion entails should be taken into account if they damage Natura 2000 protection areas. (12) A project to divert waters within a Natura 2000 area, which would convert a natural fluvial ecosystem into a man-made fluvial and lacustrine ecosystem, may be approved if the conditions under Article 6(4) of Directive 92/32 are satisfied. 1 – Original language: German. 2 – Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (OJ 2000 L 327, p. 1), as amended by Decision No 2455/2001/EC of the European Parliament and of the Council of 20 November 2001 establishing the list of priority substances in the field of water policy in (OJ 2001 L 331, p. 1). 3 – Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40), as amended by Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes (OJ 2003 L 156, p. 17). 4 – Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 (OJ 2001 L 197, p. 30). 5 – 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), as amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council of 29 September 2003 adapting to Council Decision 1999/468/EC the provisions relating to committees which assist the Commission in the exercise of its implementing powers laid down in instruments subject to the procedure referred to in Article 251 of the EC Treaty (OJ 2003 L 284, p. 1). 6 – OJ 1979 L 103, p. 1, as amended by Council Regulation (EC) No 807/2003 of 14 April 2003 adapting to Decision 1999/468/EC the provisions relating to committees which assist the Commission in the exercise of its implementing powers laid down in Council instruments adopted in accordance with the consultation procedure (unanimity) (OJ 2003 L 122, p. 36), later consolidated by Directive 2009/147/EC of 30 November 2009 (OJ 2010 L 20, p. 7). 7 – OJ 2006 L 259, p. 1. 8 – In the order for reference the code GR2310001 is given, presumably in error. 9 – http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32006D0613(1):EN:NOT, under dates. 10 – FEK A’ 280, 9 December 2003. 11 – FEK A’ 54, 8 March 2007. 12 – FEK A’ 162, 2 August 2006. 13 – The pleadings submitted by the Prefectural Authority of Magnisia are largely identical to parts of the pleadings submitted by DEI. 14 – The pleadings submitted by the Prefectural Authority of Karditsas and by the Prefectural Authority of Trikala and Others are largely identical. 15 – See below, A.6, point 97 et seq. 16 – See Case C‑32/05 Commission v Luxembourg [2006] ECR I‑11323, in particular paragraph 63, in which the validity of that period for transposing the provisions of the Water Framework Directive was not called into question. 17 – See Case C‑81/05 Cordero Alonso [2006] ECR I‑7569, paragraph 29, and Case C‑2/10 Azienda Agro-Zootecnica Franchini and Eolica di Altamura [2011] ECR I‑6561, paragraph 70. 18 – See point 27 of the section on legislative framework. 19 – See, for example, Case C‑67/96 Albany [1999] ECR I‑5751, paragraph 119; Case C‑77/02 Steinicke [2003] ECR I‑9027, paragraph 61; Case C‑144/04 Mangold [2005] ECR I‑9981, paragraph 63; Case C‑45/09 Rosenbladt [2010] ECR I‑9391, paragraphs 41 and 68, each regarding social-policy and employment-policy objectives, and in environmental law my Opinions in Case C‑188/07 Commune de Mesquer [2008] ECR I‑4501, point 125, and in Case C‑254/08 Futura Immobiliare and Others [2009] ECR I‑6995, point 58. 20 – Cf. recital 13 in the preamble to the now repealed Council Regulation (EC) No 1051/2001 of 22 May 2001 on production aid for cotton (OJ 2001 L 148, p. 3): ‘The cultivation of cotton in regions not suited to it is likely to have harmful effects on the environment as well as on the agricultural economy of those regions where this crop is important …’. See also the study by Alliance Environnement commissioned by the Commission, Évaluation des impacts sur l'environnement des mesures de la PAC relatives au coton (Evaluation of the environmental impacts of CAP measures related to cotton) (2007), http://ec.europa.eu/agriculture/eval/reports/coton/index_fr.htm, visited on 11 July 2011. 21 – OJ 1979 L 291, p. 174. 22 – See Council Regulation (EC) No 637/2008 of 23 June 2008 amending Regulation (EC) No 1782/2003 and establishing national restructuring programmes for the cotton sector (OJ 2008 L 178, p. 1), as amended by Council Regulation (EC) No 472/2009 of 25 May 2009 (OJ 2009 L 144, p. 1). 23 – See the study cited in footnote 20, p. 12. 24 – See above, point 53. 25 – Case C‑129/96 Inter-Environnement Wallonie [1997] ECR I‑7411, paragraph 45, and Joined Cases C‑165/09 to C‑167/09 Stichting Natuur en Milieu and Others [2011] ECR I‑4599, paragraph 78 and the cited case‑law. 26 – Case C‑316/04 Stichting Zuid-Hollandse Milieufederatie [2005] ECR I‑9759, paragraph 42; Case C‑138/05 Stichting Zuid-Hollandse Milieufederatie [2006] ECR I‑8339, paragraph 42; and Stichting Natuur en Milieu and Others, paragraph 79. 27 – Case 316/86 Krücken [1988] ECR 2213, paragraph 22, and Case C‑62/00 Marks & Spencer [2002] ECR I‑6325, paragraph 44 and the cited case‑law. 28 – See, with regard to claims for the refund of overpaid taxes, Case C‑107/10 Enel Maritsa Iztok 3 [2011] ECR I‑3873, paragraph 39 and the cited case‑law. 29 – Case C‑162/00 Pokrzeptowicz-Meyer [2002] ECR I‑1049, paragraph 49, and Case C‑334/07 P Commission v Freistaat Sachsen [2008] ECR I‑9465, paragraph 44. 30 – See Case C‑512/99 Germany v Commission [2003] ECR I‑845, paragraph 45. 31 – Case C‑60/98 Butterfly Music [1999] ECR I‑3939, paragraph 25 and the cited case‑law; Commission v Freistaat Sachsen, cited in footnote 29, paragraph 43; and Case C‑226/08 Stadt Papenburg [2010] ECR I‑131, paragraph 46. 32 – Commission v Freistaat Sachsen, paragraph 43 and the cited case‑law. 33 – Germany v Commission, paragraph 46 et seq. 34 – Joined Cases 212/80 to 217/80 Meridionale Industria Salumi and Others [1981] ECR 2735, paragraph 9; Joined Cases C‑361/02 and C‑362/02 Tsapalos and Diamantakis [2004] ECR I‑6405, paragraph 19; and Joined Cases C‑201/09 P and C‑216/09 P ArcelorMittal Luxembourg v Commissionand Commission v ArcelorMittal Luxembourg and Others [2011] ECR I‑2239, paragraph 75. 35 – Case C‑81/96 Gedeputeerde Staten van Noord-Holland [1998] ECR I‑3923, paragraph 23, and Case C‑209/04 Commission v Austria (Lauteracher Ried) [2006] ECR I‑2755, paragraph 56 et seq., with regard to the Habitats Directive. 36 – Case C‑337/98 Commission v France [2000] ECR I‑8377, paragraph 35 et seq. 37 – Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1993 L 199, p. 84). 38 – See the judgments in Gedeputeerde Staten van Noord-Holland and Commission v Austria (Lauteracher Ried), cited in footnote 35. 39 – See, with regard to the Habitats Directive, my Opinion of 28 June 2011 in the pending Case C‑404/09 Commission v Spain (Alto Sil), point 69 et seq. 40 – See above, point 75 et seq. 41 – See above, point 72 et seq. 42 – See below, point 125. 43 – See above, point 84 et seq. 44 – Commission v Luxembourg, paragraph 80. 45 – See below, point 131 et seq. 46 – Case C‑435/97 WWF and Others [1999] ECR I‑5613. 47 – Case C‑287/98 Linster [2000] ECR I‑6917. 48 – WWF and Others, cited in footnote 46, paragraph 57. 49 – Linster, cited in footnote 47, paragraph 54. 50 – WWF and Others, paragraph 62, and Linster, paragraph 57. 51 – Opinion of 19 May 2011 in the pending Joined Cases C‑128/09 to C‑131/09, C‑134/09 and C‑135/09 Boxus and Others, point 79. 52 – Opinion in Boxus and Others, points 84 and 87. 53 – Opinion in Boxus and Others, point 88. 54 – See Case C‑50/09 Commission v Ireland [2011] ECR I‑873, paragraph 40. 55 – See Case C‑247/06 Commission v Germany (Nivelsteiner Sandwerke), not published in the ECR, paragraph 49 et seq., summary printed in [2008] ECR I‑150*. 56 – See below, point 204. 57 – Paragraph 44 of the observations submitted by the Prefectural Authority of Aitoloakarnania and Others. 58 – The question whether plans and programme which are merely provided for by legislative, regulatory or administrative provisions fall under the SEA Directive is the subject of the pending proceedings in Case C‑567/10 Inter-Environnement Bruxelles and Others. The management plans which are not yet due under Water Framework Directive could possibly be regarded as ‘provided for’ plans; this will be discussed below under (b). 59 – See, specifically with regard to the necessary assessment, my Opinion in Joined Cases C‑105/09 and C‑110/09 Terre wallonne [2010] ECR I‑5611, point 87 et seq. 60 – See, with regard to the EIA Directive, Case C‑431/92 Commission v Germany (Großkrotzenburg) [1995] ECR I‑2189, paragraph 32. 61 – Case C‑431/92 Commission v Germany (Großkrotzenburg). 62 – Paragraph 29 of the order for reference. 63 – Case C-295/10 Valčiukienė and Others [2011] ECR I‑8819, paragraph 62. See, with regard to the EIA Directive, Case C‑431/92 Commission v Germany (Großkrotzenburg), paragraph 41 et seq.; Case C‑227/01 Commission v Spain [2004] ECR I‑8253, paragraph 56; and my Opinion in Case C‑2/07 Abraham and Others [2008] ECR I1197, point 84. 64 – See above, point 141 et seq. 65 – These are listed above under point 22. 66 – Case C‑117/03 Dragaggi and Others [2005] ECR I‑167, paragraph 25. 67 – See, with regard to decisions taking effect, Case C‑18/08 Foselev Sud-Ouest [2008] ECR I‑8745, paragraph 18. 68 – See above, footnote 9. 69 – Case C-244/05 Bund Naturschutz in Bayern and Others [2006] ECR I‑8445, paragraphs 44 and 46; Stadt Papenburg, cited in footnote 31, paragraph 49; and Case C-308/08 Commission v Spain (Iberian lynx) [2010] ECR I‑4281, paragraph 21. 70 – Commission v Austria (Lauteracher Ried), paragraphs 53 to 62, and Stadt Papenburg, paragraph 48. I have already considered these ideas in the discussion of the advance effects of the Water Framework Directive during the transitional period for the establishment of management plans and programmes of measures; see above, point 107 et seq. 71 – Commission v Austria (Lauteracher Ried), cited in footnote 35, paragraph 57, with reference to the case‑law on the EIA Directive. 72 – Dragaggi and Others, cited in footnote 66. 73 – For example, the Commission adopted Commission Decision 2002/11/EC adopting the list of sites of Community importance for the Macaronesian biogeographical region, pursuant to Council Directive 92/43/EEC (OJ 2002 L 5, p. 16) on 28 December 2001. By Decision 2006/613 there had been decisions on four other biogeographical regions. 74 – Case C‑127/02 Waddenvereniging und Vogelbeschermingsvereniging [2004] ECR I‑7405, paragraph 37. 75 – Case C‑6/04 Commission v United Kingdom [2005] ECR I‑9017, paragraph 58. 76 – Stadt Papenburg, paragraph 49. 77 – See my Opinion in Case C‑404/09 Commission v Spain (Alto Sil), point 70 et seq. 78 – Case C‑428/08 Monsanto Technology [2010] ECR I‑6765, paragraph 66, and Case C‑266/09 Stichting Natuur en Milieu [2010] ECR I‑13119, paragraph 32. See also above, with regard to the advance effects of the Water Framework Directive, IV – A –6.b). Thus, for example, new rules of law on the protection of patents may restrict the scope of the protection afforded by existing patents (see Monsanto Technology, paragraph 69). 79 – See, with regard to the exercise of existing authorisations, my Opinion in Case C‑404/09 Commission v Spain (Alto Sil), point 72. 80 – See Waddenvereniging und Vogelbeschermingsvereniging, paragraph 35, and my Opinion in Case C‑404/09 Commission v Spain (Alto Sil), point 108. 81 – See my Opinion in Case C‑404/09 Commission v Spain (Alto Sil), point 110. 82 – See my Opinion in Case C‑404/09 Commission v Spain (Alto Sil), point 111. 83 – See above, point 185. 84 – WWF and Others, paragraphs 31 to 33 and case‑law cited. 85 – Case C‑304/05 Commission v Italy (Santa Caterina) [2007] ECR I‑7495, paragraph 59. 86 – See above, point 188 et seq. 87 – See above, point 169. 88 – See above, point 188 et seq. 89 – See above, point 193 et seq. 90 – Case C‑334/04 Commission v Greece [2007] ECR I‑9215, paragraph 32. 91 – See Case C‑374/98 Commission v France (Basses Corbières) [2000] ECR I‑10799, paragraphs 47 and 57; Case C‑388/05 Commission v Italy (Valloni e steppe pedegarganiche) [2007] ECR I‑7555, paragraph 18; and Case C‑186/06 Commission v Spain (Segarra-Garrigues Canal) [2007] ECR I‑12093, paragraph 26. 92 – See, with regard to such an assessment, Case C‑304/05 Commission v Italy (Santa Caterina), cited in footnote 85, paragraph 91 et seq., and my Opinion of 19 April 2007 in that case, point 61 et seq. 93 – See above, point 199 et seq. 94 – See my Opinion in Case C‑404/09 Commission v Spain (Alto Sil), point 112. 95 – Case C‑304/05 Commission v Italy (Santa Caterina), paragraph 83. 96 – See, with regard to the review of the Commission’s discretion, Case C‑326/05 P Industrias Químicas del Vallés v Commission [2007] ECR I‑6557, paragraph 77, and Case C‑405/07 P Netherlands v Commission [2008] ECR I‑8301, paragraph 55, and the case‑law cited. 97 – See my Opinion in Case C‑404/09 Commission v Spain (Alto Sil), cited in footnote 39, point 112. 98 – See above, point 83 et seq. 99 – Such sites are indicated by a star in column C in Decision 2006/613. 100 – See the Commission Guide, Natura 2000 – Managing Natura 2000 Sites, The provisions of Article 6of the ‘Habitats’ Directive 92/43/EEC, Luxembourg 2000, p. 54. 101 – See Case C‑304/05 Commission v Italy (Santa Caterina). 102 – See my Opinion in Commission v Austria (Lauteracher Ried), point 83. 103 – See my Opinion in Commission v Austria (Lauteracher Ried), point 84. 104 – Case C‑304/05 Commission v Italy (Santa Caterina).