Opinion of the Advocate General — ECLI:EU:C:2004:60
Date: 2004-01-29
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment
Procedure: Reference for a preliminary ruling
Origin: Netherlands

summary, the answer to the fourth question – in so far as it relates to Article 6(3) of the habitats directive – must be that an appropriate assessment must – precede agreement to a plan or project, – take account of cumulative effects, and – document all adverse effects on conservation objectives. The competent authorities may agree to a plan or project only where, having considered all the relevant information, in particular the appropriate assessment, they are certain that the integrity of the site concerned will not be adversely affected. This presupposes that the competent authorities are satisfied that there is no reasonable doubt as to the absence of such adverse effects. 2. Article 6(2) of the habitats directive 112. The fourth question concerns not only an interpretation of Article 6(3) of the habitats directive but also the possible application of Article 6(2) which would be possible if the annual authorisation of the cockle fishing were not classified as a plan or project. a) Submissions of the parties 113. As regards ‘appropriate steps’ within the meaning of Article 6(2) of the habitats directive, the Netherlands Government, PO Kokkelvisserij and Vogelbescherming conclude that account must be taken not only of the needs of the relevant site, but also of economic, social and cultural requirements and regional and local characteristics, pursuant to Article 2(3) of the habitats directive. 114. The Netherlands Government takes the view that obvious doubt as to the absence of adverse effects is required to trigger preventative measures also within the scope of Article 6(2) of the habitats directive. 115. The Commission emphasises that Article 6(2) of the habitats directive requires preventative measures to avoid deterioration and significant disturbance. b) Opinion 116. In my view, there is no need to answer the fourth question as regards Article 6(2) of the habitats directive. When a plan or project has been authorised, this provision has no function of its own in addition to Article 6(3) of the habitats directive. (32) However, if the Court should conclude that the annual authorisation of cockle fishing is not to be regarded as a plan or project, the question would arise as to which requirements on this authorisation follow from Article 6(2) of the habitats directive. 117. In this respect it should be borne in mind that where a plan or project is authorised the ascertainment – referred to in the second sentence of Article 6(3) of the habitats directive – that the integrity of the site concerned will not be adversely affected must also exclude deterioration and significant disruption under Article 6(2) of the habitats directive. (33) It would be equally unacceptable for a measure which adversely affects the integrity of a Natura 2000 site not to be regarded as deterioration or significant disruption. The substantive standard of protection provided for by subparagraphs (2) and (3) of Article 6 of the habitats directive is identical. Consequently, the appropriate steps referred to in Article 6(2) of the habitats directive must ensure that the integrity of a Natura 2000 site will not be adversely affected. 118. This obligation is permanent, that is to say even where it is necessary to take a decision on authorisation of a scheme which is not to be regarded as a plan or project. However, unlike Article 6(3) of the habitats directive, Article 6(2) contains no specific rules on how protection of the site is to be afforded in the authorisation procedure. Therefore, the competent authorities can also take measures other than those provided for in Article 6(3) of the habitats directive to safeguard the objective of protection. However, such measures may be no less effective than the procedure under Article 6(3) of the habitats directive. This standard of protection would not be provided if authorisation were granted even though reasonable doubts existed as to the absence of adverse effects on the integrity of the site concerned. 119. For the sake of completeness, it should be noted that in some circumstances the criteria set out in Article 6(4) of the habitats directive would have to apply to authorise, by way of exception, a scheme which would adversely affect the integrity of the site. Thus, pursuant to Article 2(3) of the habitats directive account could be taken of economic, social and cultural requirements and regional and local characteristics and at the same time the principle of proportionality could be given concrete expression. 120. The answer to this part of the fourth question must therefore be that where Article 6(2) of the habitats directive applies to the authorisation of a scheme, such authorisation must, in substantive terms, provide the same standard of protection as authorisation granted pursuant to Article 6(3) of the habitats directive. E – Question 5: direct applicability of Article 6(2) and (3) of the habitats directive 121. Finally, the Raad van State seeks to ascertain whether, in the absence of transposition into Netherlands law, Article 6(2) and Article 6(3) of the habitats directive have direct effect in the sense that individuals may rely on them in national courts and those courts must afford them protection. 1. Submission of the parties 122. Waddenvereniging and Vogelbescherming take the view that Article 6(2) and (3) of the habitats directive are sufficiently clear and unconditional to be directly applicable. 123. Vogelbescherming further points out that the Raad van State itself already considers that Article 6(2) of the habitats directive is directly applicable by referring to the judgments in WWF (34) and Linster. (35) At any rate, it is possible to ascertain, in accordance with these judgments, that the discretion available to the Member States has been exceeded. 124. The Netherlands Government also states that the two provisions could establish a sufficiently clear obligation at least in cases in which the limits of discretion granted to Member States are reached. However, it leaves the decision to the Court. 125. The Commission considers that the direct applicability of Article 6(2) of the habitats directive is unlikely since the decision on which measures are to be taken is left to the Member States. On the other hand, Article 6(3) of the habitats directive is sufficiently clear and also unconditional, at least once a special protection area has been designated. 126. PO Kokkelvisserij considers that the two provisions are not directly applicable. This follows from the fact that the Commission has still not drawn up a list of sites of Community importance within the meaning of Article 4(2) of the habitats directive. Moreover, the two provisions grant the Member States a margin of discretion and are not sufficiently clear. Furthermore, the present case relates not to the use of the provisions in question as rights of prohibition but as grounds for entitlements. Finally, at the hearing PO Kokkelvisserij took the view that direct application would inevitably result in horizontal application to the detriment of third parties. 2. Opinion 127. The question submitted by the Raad van State requires consideration of three partial aspects. It is to be ascertained whether Article 6(2) and (3) of the habitats directive satisfy the requirements for direct application, to whom and under what conditions they may be invoked in the Member States and whether the indirect burden on the shellfish catchers precludes direct applicability. a) Direct applicability 128. As the Court has consistently held, a provision of a directive is directly applicable on expiry of the period laid down for implementation where, as its subject-matter is concerned, it is unconditional and sufficiently precise. (36) 129. Under Article 23 of the habitats directive, Member States are required to implement it within two years of its notification. The directive was notified on 5 June 1992 and therefore the period laid down for its implementation expired on 5 June 1994. (37) 130. Both provisions are unconditional, at least in respect of the Wadden Sea. Contrary to the opinion of PO Kokkelvisserij, the fact that there is no list of sites of Community importance within the meaning of Article 4(2) of the habitats directive is irrelevant. Under Article 7 of the habitats directive, Article 6(2) to (4) thereof must be applied to the Wadden Sea as a special protection area, irrespective of whether or not this list has been drawn up. (38) 131. As regards the precision of the provisions, Article 6(3) of the habitats directive lays down a body of rules made up of several stages which sets out clearly the requirements and legal consequences at each stage. Therefore, in the light of the authorising authorities’ discretion set out above, this provision is capable of having direct effect. 132. Furthermore, Article 6(2) of the habitats directive also contains clearly defined requirements, namely deterioration or significant disturbance of sites. There is, however, a margin of discretion as regards the appropriate steps to avoid such effects. 133. This discretion could preclude direct application. (39) In the view of the Commission, a judgment of the Court relating to Article 4 of Directive 75/442 on waste (40) also militates in favour of this conclusion. This provision is couched in general terms in a similar way to Article 6(2) of the habitats directive. The Court ruled that Article 4 of Directive 75/442 on waste indicates a programme to be followed and sets out the objectives which the Member States must observe in their performance of other more specific obligations imposed on them by the directive. This provision must be regarded as defining the framework for the action to be taken by the Member States regarding the treatment of waste and not as requiring, in itself, the adoption of specific measures or a particular method of waste disposal. (41) 134. However, on closer examination, Article 4 of Directive 75/442 on waste and Article 6(2) of the habitats directive are hardly comparable. Article 6(2) does not set out the objectives of the habitats directive, nor is this provision given concrete expression by other provisions. 135. The parallels with judgments in which the Court acknowledged direct applicability in spite of the Member States’ discretion are much stronger. For example, in WWF the Court held that in national proceedings too individuals may plead that the national legislature has, in implementing a directive, exceeded the discretion granted to it by Community law. (42) Otherwise the binding effect of the directive would be undermined. 136. The implementation of Article 6(2) of the habitats directive does not necessarily involve legislative measures. However, the courts can establish a fortiori whether or not the discretion has been exceeded in selecting the appropriate measures. It is relatively easy to declare misuse of power in particular where no steps were taken to avoid imminent deterioration or significant disturbance or where no further measures were adopted despite the obvious ineffectiveness of the measures taken previously. 137. Therefore, Article 6(2) of the habitats directive is directly applicable in so far as misuse of power is claimed. b) The question whether an individual may rely on Article 6(2) and (3) of the habitats directive 138. It does not inevitably follow from the direct applicability of a provision of Community law that any individual may bring an action before the courts where there is failure to comply with it. In the present case the question arises as to whether and under what conditions individuals – or non-governmental organisations – may rely on provisions relating to the conservation of natural habitats and species. 139. According to the established case-law, wherever the provisions of a directive appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise, they may, in the absence of implementing measures adopted within the prescribed period, be relied on against any national provision which is incompatible with the directive or in so far as they define rights which individuals are able to assert against the State. (43) 140. Accordingly, the Court draws a distinction between the directly applicable provisions of a directive in terms of rights of prohibition and grounds for entitlements. Whereas rights of prohibition may be invoked against any conflicting national provision, entitlements must be laid down in the relevant provision. (44) 141. As regards the aspect of rights of prohibition, the possibility of invoking them stems from the action (contrary to Community law) which is to be prohibited. Where avenues of legal redress against such action exist under national law, all relevant directly applicable provisions of the directive must be complied with within that framework. Therefore, in this regard an individual may rely on Article 6(2) and (3) of the habitats directive where avenues of legal redress against measures infringing the abovementioned provisions are available to him. (45) 142. In so far as directly applicable provisions of a directive establish entitlements, national law is subject to minimum standards of Community law as regards the availability of legal redress. It follows from the settled case-law of the Court that although, in the absence of Community rules governing the matter, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive directly from Community law, such rules may not be less favourable than those governing similar domestic actions (the principle of equivalence) and may not render practically impossible or excessively difficult the exercise of rights conferred by Community law (the principle of effectiveness). (46) 143. However, there is no evidence to suggest that rights of an individual are established. The objective of protection laid down by Article 6(2) and (3) of the habitats directive is to conserve habitats and species within areas which form part of Natura 2000. Unlike in the case of rules on the quality of the atmosphere or water, (47) the protection of common natural heritage is of particular interest (48) but not a right established for the benefit of individuals. The close interests of individuals can be promoted only indirectly, as a reflex so to speak. 144. The answer to the fifth question must therefore be that individuals may rely on Article 6(2) and (3) of the habitats directive in so far as avenues of legal redress against measures infringing the abovementioned provisions are available to them under national law. c) Burden imposed on third parties by the direct application of Article 6(2) and (3) of the habitats directive 145. In the present case the direct application of Articles 6(2) and (3) of the habitats directive could be precluded by the disadvantages to cockle fishermen stated by PO Kokkelvisserij. 146. It is true that, according to case-law, a directive which has not been transposed does give rise to obligations on individuals either in regard to other individuals or, a fortiori, in regard to the Member State itself . (49) This case-law is based on the fact that under Article 249 EC a directive is binding upon each Member State to which it is addressed but not upon the individual. It could be understood as meaning that any burden on citizens as a result of directly applicable directives must be excluded. 147. In this regard, it should be noted, firstly, that in any event the provisions of the relevant national law must, as far as possible, be interpreted in such a way that the purposes of Community law, and in particular of the relevant provisions of the directive, are achieved. (50) The Raad van State itself states that such an interpretation, in accordance with the directive, of Article 12 of the Netherlands Natural Conservation law is possible. Moreover, any discretion which may exist must be exercised to this effect. 148. Secondly, on closer examination the case-law does not necessarily preclude any burden on citizens resulting from directly applicable directives. The judgments rejecting direct applicability concerned, on the one hand, the application of directives in the civil law relationship between citizens, (51) and on the other, citizen’s obligations towards the State, in particular in the field of criminal law. (52) Moreover, it can be inferred from Busseni, which concerned the status of a Community claim in bankruptcy proceedings, (53) that directly applicable directives cannot undermine vested rights. 149. However, where an activity requires authorisation before it can be carried on, direct application of the provisions of a directive does not, as regards the decision on such authorisation, result in a direct obligation on individuals, nor would it encroach on vested rights. On the contrary, it merely precludes granting an advantage to an individual which would involve a State decision in his favour. This decision would be based on provisions of national law contrary to the requirements of the directive. Therefore, by adopting such a decision the Member State would be failing to fulfil its obligations under the directive. However, Member States may not adopt such a decision which grants an advantage to an individual but infringes Community law. Either the relevant provisions of national law underlying the grant of such advantage must be interpreted and applied in conformity with the directive, or – where interpretation in conformity with the directive is not possible – they must not be applied. At least as long as legal positions protected by Community law are not affected, such an indirect burden on citizens does not preclude State authorities from being bound by directly applicable directives. 150. This view can be based on other cases in which the Court permitted an indirect burden on individuals by the direct application of directives. (54) The Court recently confirmed this view when it ruled that mere adverse repercussions on the rights of third parties, even if the repercussions are certain, do not justify preventing an individual from invoking the provisions of a directive against the Member State concerned. (55) 151. In summary, the answer to the fifth question must therefore be that individuals may rely on Article 6(3) of Directive 92/43 is so far as avenues of legal redress against measures infringing the abovementioned provisions are available to them under national law. They may, under the same conditions, rely on Article 6(2) of Directive 92/43 in so far as error of assessment is claimed. An indirect burden on citizens which does not encroach on legal positions protected by Community law does not preclude the recognised (vertical) binding of State authorities to directly applicable directives. V – Conclusion 152. I propose that the Court answer the questions referred for a preliminary ruling by the Raad van State as follows: (1) The words ‘plan and project’ in Article 6(3) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora also cover an activity which has already been carried on for many years but for which an authorisation is in principle granted each year for a limited period. (2) Article 6(3) of Directive 92/43 lays down the procedure for authorising plans and projects which do not affect the integrity of protection sites, whereas Article 6(2) thereof lays down permanent obligations irrespective of the authorisation of plans and projects, namely to avoid deterioration and disturbance which could be significant in relation to the objectives of the directive. (3) An appropriate assessment is always necessary where reasonable doubt exists as to the absence of significant adverse effects. Any effect on the conservation objectives has a significant effect on the site concerned. (4) An appropriate assessment must – precede agreement to a plan or project, – take account of cumulative effects, and – document all adverse effects on conservation objectives. The competent authorities may agree to a plan or project only where, having considered all the relevant information, in particular the appropriate assessment, they are certain that the integrity of the site concerned will not be adversely affected. This presupposes that the competent authorities are satisfied that there is no reasonable doubt as to the absence of such adverse effects. Where Article 6(2) of Directive 92/43 applies to the authorisation of a scheme such authorisation must, in substantive terms, provide the same standard of protection as authorisation granted pursuant to Article 6(3) of the habitats directive. (5) Individuals may rely on Article 6(3) of Directive 92/43 is so far as avenues of legal redress against measures infringing the abovementioned provisions are available to them under national law. They may, under the same conditions, rely on Article 6(2) of Directive 92/43 in so far as error of assessment is claimed. An indirect burden on citizens which does not encroach on legal positions protected by Community law does not preclude the recognised (vertical) binding of State authorities to directly applicable directives. 1 – Original language: German. 2 – OJ 1992 L 206, p. 7. 3 – OJ 1979 L 103, p. 1. 4 – Case C-312/93 [1995] ECR I-4599. 5 – Managing Natura 2000 Sites. The provisions of Article 6 of the ‘Habitats’ Directive 92/43/EEC (‘the guidelines’). 6 – Case C-72/95 [1996] ECR I-5403. 7 – 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 Council Directive 97/11/EC of 3 March 1997 amending Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment (OJ 1997 L 73, p. 5). 8 – The German and Portuguese versions are exceptions. 9 – As regards the term ‘plan’, see also the Opinion of Advocate General Fenelly in Case C-256/98 Commission v France [2000] ECR I-2487, I-2489, paragraph 33. 10 – Conversely, the definition of ‘plans and programmes’ set out in Article 2(a) of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (OJ 2001 L 197, p. 20) contains no substantive clarification but limits the definition to the results of particular decision-making procedures. 11 – See Case C-360/87 Commission v Italy [1991] ECR I-791, paragraph 31, and Case C-230/00 Commission v Belgium [2001] ECR I-4591, paragraph 16, in which the Court declared tacit authorisation or refusal of requests for authorisation as incompatible with the requirement relating to examination laid down in various other directives on the environment. 12 – See Article 2(1) of the directive on environmental assessment which was introduced by Directive 97/11. 13 – This is emphasised by the fact that natural mussel beds in the Netherlands Wadden Sea have obviously declined. 14 – Cited in footnote 5 above, pp. 8, 30 and 64. 15 – Case C-117/00 Commission v Ireland [2002] ECR I-5335, paragraph 22 et seq. 16 – Cited in footnote 5 above, point 4.4.1, p. 36 et seq. 17 – Case C-355/90 Commission v Spain [1993] ECR I-4221. 18 – .Santoña judgment, cited in footnote 17 above, paragraph 36. 19 – Case C-57/89 Commission v Germany [1991] ECR I-883, paragraph 20 et seq. 20 – .Santoña judgment cited in footnote 17 above, paragraphs 44 and 46. See also Case C-96/98 Commission v France (Poitou) [1999] ECR I-8531, paragraph 39. 21 – .Santoña judgment, cited in footnote 17 above, paragraph 52 et seq. 22 – See, for example, the guidelines cited in footnote 5 and the document entitled ‘Assessment of plans and projects significantly affecting Natura 2000 sites, Methodological guidance on the provisions of Article 6(3) and (4) of the Habitats Directive 92/43/EEC’, November 2001. 23 – See, to this effect, also the Opinion of Advocate General Léger in Case C-209/02 Commission v Austria (Wörschach golf course) [2004] ECR I-0000, paragraph 40 et seq. The German version of the opinion is based, as regards paragraph 30, on the difference set out between the German version of the directive and the other language versions. 24 – Case C-157/96 National Farmers’ Union and Others [1998] ECR I-2211, paragraph 63; Case C-180/96 United Kingdom v Commission [1998] ECR I-2265, paragraph 99; and Case C-236/01 Monstanto Agricoltura Italia [2003] ECR I-0000, paragraph 111. 25 – For example, the Ministerial Declaration of the Sixth Trilateral Governmental Conference on the Protection of the Wadden Sea, Esbjerg, 13 November 1991, defined the precautionary principle as follows: ‘to take action to avoid activities which are assumed to have significant damaging impact on the environment, even where there is no sufficient scientific evidence to prove a causal link between activities and their impact.’ 26 – Communication from the Commission on the precautionary principle of 2 February 2000 (COM/2000/0001), point 5.2.1. 27 – See Case C-6/99 Greenpeace France and Others [2000] ECR I-1651, paragraph 44 et seq., and Monsanto, cited in footnote 24, paragraph 112 et seq., both of which relate to genetic engineering rights. 28 – See, for example, Case C-233/94 Germany v Parliament and Council [1997] ECR I-2405, paragraph 54; Case C-127/95 Norbrook Laboratories [1998] ECR I-1531, paragraph 89; and Joined Cases C-27/00 and C-122/00 Omega Air and Others [2002] ECR I-2569, paragraph 62. 29 – Case 374/87 Orkem v Commission [1989] ECR 3283, paragraph 28. 30 – See paragraph 73 above. 31 – In his Opinion on Wörschach golf course (see footnote 23 above, paragraph 39) Advocate General Léger considered that the fact that the competent authorities had agreed to the project concerned even though the appropriate assessment had identified a not insignificant risk of serious disturbance constituted an infringement of the second sentence of Article 6(3) of the habitats directive. 32 – See paragraph 56 above. 33 – See paragraph 56 above. 34 – Case C-435/97 [1999] ECR I-5613. 35 – Case C-287/98 [2000] ECR I-6917. 36 – See, inter alia, Case C-62/00 Marks & Spencer [2002] ECR I-6325, paragraph 25, and the case-law cited therein. 37 – Case C-329/96 Commission v Greece [1997] ECR I-3749, paragraph 2, and Case C-83/97 Commission v Germany [1997] ECR I-7191, paragraph 2. 38 – The extent to which these provisions are to be applied to sites within the meaning of the habitats directive before this list is draw up will have to be examined in Case C-117/03 Società Italiana Dragaggi, OJ 2003 C 146, p. 19. 39 – As pointed out by Advocate General Fenelly in his Opinion in Case C-256/98, cited in footnote 9 above, paragraph 16. 40 – Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39), as amended by Council Directive 91/156/EEC of 18 March 1991 (OJ 1991 L 78, p. 32). 41 – Case C-236/92 Comitato di coordinamento per la difesa della Cava and Others [1994] ECR I‑483, paragraph 8 et seq. 42 – Cited in footnote 34 above, paragraph 69 et seq. See also Linster, cited in footnote 35 above, paragraph 32; Kraaijeveld and Others, cited in footnote 6 above, paragraph 56; and Case 51/76 Verbond van Nederlandse Ondernemingen [1977] ECR 113, paragraphs 22 to 24. See also the Opinion of Advocate General Alber in Case C-157/02 Rieser [2004] ECR I-0000, paragraph 71. 43 – Case 8/81 Becker [1982] ECR 53, paragraph 25, and Joined Cases C-465/00, C-138/01 and C-139/01 Österreichischer Rundfunk and Others [2003] ECR I-4989, paragraph 98, and the references contained therein. 44 – See Case C-441/99 Gharehveran [2001] ECR I-7687, paragraph 45. 45 – See in particular Case C-118/94 Associazione Italiana per il WWF and Others [1996] ECR I-1223, paragraph 19, relating to the birds directive and also, for example, Linster, cited in footnote 35 above, paragraph 31 et seq. 46 – Case C-276/01 Steffensen [2003] ECR I-3735, paragraph 60, and Peterbroeck, cited in footnote 4 above, paragraph 12. 47 – Case C-361/88 Commission v Germany (air quality – sulphur dioxide and suspended particulates) [1991] ECR I-2567, paragraph 16; Case C-59/89 Commission v Germany (air quality – lead) [1991] ECR I-2607, paragraph 19; Case C-58/89 Commission v Germany (surface water) [1991] ECR I-4983, paragraph 14; and Case C-298/95 Commission v Germany (shellfish waters) [1996] ECR I-6747, paragraph 16. 48 – Case 236/85 Commission v Netherlands [1987] ECR 3989, paragraph 5; Case 247/85 Commission v Belgium [1987] ECR 3029, paragraph 9; and Case 252/85 Commission v France [1988] 2243, paragraph 5. 49 – Case 14/86 Pretore di Salò v X [1987] ECR 2545, paragraph 19. See also Case C-91/92 Faccini Dori [1994] ECR I-3325, paragraph 20 et seq. 50 – Case C-106/89 Marleasing [1990] ECR I-4135, paragraph 8; Case C-334/92 Wagner Miret [1993] ECR I-6911, paragraph 20; and Faccini Dori, cited in footnote 49 above, paragraph 26. 51 – .Faccini Dori, cited in footnote 49 above, and Case 152/84 Marshall [1986] ECR 723, paragraph 48. 52 – Case 80/86 Kolpinghuis Nijmegen [1987] ECR 3969, paragraph 6 et seq., and Pretore di Salò v X, cited in footnote 49 above. 53 – Case C-221/88 [1990] ECR I-495, paragraph 23 et seq. 54 – Case C-76/97 Tögel [1998] ECR I-5357, paragraph 52; Case 103/88 Fratelli Costanzo [1989] ECR 1839, paragraph 28, both concerning public procurement; and Case C-201/94 Smith & Nephew and Primecrown [1996] ECR I-5819, paragraph 35 et seq., concerning the licensing of medicinal products. See also the Opinion of Advocate General Léger in Case C-201/02 Wells [2004] ECR I‑0000, paragraph 65 et seq., concerning the directive on environmental impact assessment. 55 – Case C-201/02 Delena Wells [2004] ECR I-0000, paragraph 57.