Opinion of the Advocate General — ECLI:EU:C:2009:398
Date: 2009-06-25
Language of the case: French
Subject matter: Environment
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded
Origin: France

Summary of the Judgment 1. Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 (Council Directive 92/43, Art. 6(2)) 2. Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 (Council Directive 92/43, Art. 6(3)) 3. Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 (Council Directive 92/43, Art. 6(3)) 4. Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 (Council Directive 92/43, Art. 6(3) and (4)) 1. A national law which provides, generally, that fishing, aquaculture, hunting and other hunting-related activities practised under the conditions and in the areas authorised by the laws and regulations in force do not constitute activities causing disturbance or having such an effect, without ensuring that those activities cause no disturbance likely significantly to affect the objectives of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora, cannot be considered to be consistent with Article 6(2) of that directive. (see paras 32, 39, 76, operative part 1) 2. A Member State has failed to fulfil its obligations under Article 6(3) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora, when it systematically exempts works and developments provided for in Natura 2000 contracts from the procedure of assessment of their implications for the site, since it cannot be ruled out that, while they may have as their objective the conservation or restoration of a site, the works or developments provided for in those contracts may, nevertheless, not be directly connected with or necessary for the management of that site. Determining the conservation and restoration objectives in the context of Natura 2000 may require the reconciliation of various conflicting objectives. In order to ensure fully the attainment of the conservation objectives referred to in Directive 92/43, it is therefore necessary, in accordance with Article 6(3) of that directive, that each plan or project, not directly connected with or necessary for the management of the site, which is likely significantly to affect the site be subject to an individual assessment of its implications for the site concerned in view of the site’s conservation objectives. (see paras 51, 53-54, 56, 76, operative part 1) 3. By systematically exempting works and development programmes and projects which are subject to a declaratory system from the procedure of assessment of their implications for a site, a Member State fails to fulfil its obligations under Article 6(3) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora. (see paras 62, 76, operative part 1) 4. The appropriate assessment of the implications for a site, which must be carried out pursuant to Article 6(3) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora, implies that all the aspects of the plan or project which can, either individually or in combination with other plans or projects, affect the conservation objectives of the relevant site must be identified in the light of the best scientific knowledge in the field. Such an assessment does not therefore involve an examination of the alternatives to a plan or project. The examination of alternative solutions, which is provided for in Article 6(4) of that directive, can only be undertaken where the findings of the assessment of the implications undertaken pursuant to Article 6(3) of that directive are negative and where the plan or project must nevertheless be carried out for imperative reasons of overriding public interest. It cannot constitute a factor which the competent national authorities are obliged to take into account when they undertake the appropriate assessment provided for in Article 6(3) of that directive. (see paras 69, 71, 73)