Opinion of the Advocate General — ECLI:EU:C:2006:255
Date: 2006-04-27
Language of the case: Portuguese
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment
Procedure: Action for failure to fulfil obligations - successful
Origin: Portugal

Summary of the Judgment 1. Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Authorisation for a plan or project on a protected site (Council Directive 92/43, Art. 6(3)) 2. Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Special protection areas (Council Directive 92/43, Art. 6(3) and (4)) 1. Article 6(3) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora establishes a procedure intended to ensure, by means of a prior examination, that a plan or project which is not directly connected with or necessary to the management of a 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 authorisation can thus be granted only on the condition that the competent national authorities are certain, at the time they authorise the plan or project, that it will not have adverse effects on the integrity of the site concerned. The fact that, after its completion, the project may not have produced such effects is immaterial to that assessment. It is at the time 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 (see paras 19-20, 24) 2. Article 6(4) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora, which permits a plan or project which has given rise to a negative assessment under the first sentence of the same directive to be implemented on certain conditions, must, as a derogation from the criterion for authorisation laid down in the second sentence of Article 6(3), be interpreted strictly. Thus, the implementation of a plan or project under Article 6(4) of that directive is, inter alia, subject to the condition that the absence of alternative solutions be demonstrated. It follows that, where a Member State implements a project notwithstanding the negative environmental impact assessment and without having demonstrated the absence of alternative solutions, it fails to fulfil its obligations under Article 6(4) of Directive 92/43. (see paras 35-36, 40)