Opinion of the Advocate General — ECLI:EU:C:2007:228
Date: 2007-04-19
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded
Origin: Italy

summary and evaluation of the actual scientific investigations of the impact on the environment. 40. A whole series of projects are described and studied but, with the exception of the modifications to the ski run, they are not the subject of the present proceedings. The modifications to the ski run are described briefly on p. 12. 41. The implications, for fauna, vegetation, flora and ecosystems, of all the projects assessed are discussed together on pp. 27 to 29. The authority responsible takes the view that there will be neither substantial changes to the habitats of animal species present nor fundamental changes in the availability of food and shelter for small birds and mammals. 42. As the Commission rightly points out, in this section the authors of the document took issue, however, with significant deficiencies in the investigations. They stated that, overall, account was hardly taken of the effects. The actual works were not described in full. Not all relevant species were covered. This applied in particular to the ptarmigan, whose reproduction and nesting areas had not been studied. In other respects too, the data on the animal kingdom was of low quality. For example, mention was made of the capercaillie, which no longer occurred in the area, but not of the wallcreeper, the black woodpecker, the sparrowhawk or the eagle owl. 43. On p. 38 of the document, moreover, it is stated that the modifications to the ski run should not be executed within a corridor more than 40 metres wide. Instead the corridor should be restricted to 20 metres in width. That restriction was not observed when the project was subsequently executed. Also, on p. 40 further avifauna studies were recommended, in particular in connection with felling in the forest. 44. While the Italian Government may refer to a 1994 biological study which is mentioned in the document’s sources, to other documents consulted and to opinions issued by authorities involved in the procedure, it is not clear how they contribute to the impact assessment. The assessment of alternatives which is also expressly referred to is of interest in the context of the EIA directive (16) and may also be relevant in connection with an authorisation under Article 6(4) of the Habitats Directive, but it is of no importance for the impact assessment. 45. Therefore, in the studies on the basis of which the positive environmental impact decision was made in 2000, neither all the aspects of the project nor their implications for the various protected bird species were investigated. In view of those objections, they did not allow the view to be taken that the measures to modify the ski run would not adversely affect the integrity of the SPA. They are not therefore an appropriate basis for authorisation of those works under Article 6(3) of the Habitats Directive. The study by the IREALP published in 2002 46. The study by the IREALP published in 2002 also describes the project and its effects on the environment. It deals relatively thoroughly with the implications for the hydrological regime and geomorphology and with vegetation. As regards the birds for which the SPA was designated, it simply states that the black woodpecker occurs in the area of forest concerned. (17) In connection with another subproject which is not at issue in these proceedings, mention is made of the dotterel which is listed in the standard data form from 2004. (18) 47. It could be inferred from this that other species are not affected and the study therefore dealt fully with the species affected by the various projects. Assuming that to be the case, it would, however, have been necessary to set out and evaluate the implications of the project for the black woodpecker. There is no evidence that this was done, however. 48. Furthermore, the other studies submitted by Italy, from 2003 and 2005, and a communication from Italy to the Commission in 2004 (19) raise doubts that all the relevant species affected by the project were actually covered. Mention is made there in particular of the black grouse as being affected. 49. Consequently, the study by the IREALP published in 2002 likewise did not allow the view to be taken that the measures to modify the ski run would not adversely affect the integrity of the SPA. It is therefore likewise not a sufficient basis for authorisation of those works pursuant to Article 6(3) of the Habitats Directive. The subsequent studies 50. Both in the pre-litigation procedure and in the proceedings before the Court of Justice, Italy has submitted further documents concerning the environmental impact of the contested measures. These are a study dated 1 December 2003, (20) a communication from the Italian Ministry of the Environment dated 6 August 2004 (21) and a study dated 21 December 2005. (22) Only the latter study focuses, in terms of content, on the requirements for an impact assessment since it investigates the importance of the areas concerned for the relevant species and evaluates the implications of the project in this regard. Ultimately, however, it is not necessary to consider the extent to which, from the point of view of form and content, the individual documents satisfy the requirements for an impact assessment. 51. As the Commission states, all those documents were completed after the authorisation of 14 February 2003. Under the second sentence of Article 6(3) of the Habitats Directive, however, authorisation is to be granted in the light of the impact assessment. That was not possible in this instance. For that reason alone, those documents are not an appropriate basis, for the purposes of Article 6(3) of the Habitats Directive, for the authorisation of 14 February 2003. Interim conclusion 52. The authorisation of 14 February 2003 could not be granted pursuant to Article 6(3) of the Habitats Directive since, on the basis of the studies conducted by the Italian authorities which are available to the Court of Justice, it could not be ruled out at that time beyond any reasonable scientific doubt that the project would not affect the conservation objectives of the site concerned. B – Article 6(4) of the Habitats Directive 53. However, the question arises whether the authorisation could have been granted under Article 6(4) of the Habitats Directive. Under that provision a plan or project may, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, if the Member State takes all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. 54. That provision is normally applicable only after the implications of the project have been studied pursuant to Article 6(3) of the Habitats Directive and have therefore been determined, at least in so far as such a finding is scientifically possible. Knowledge of the adverse effects on the conservation objectives is necessary for the application of Article 6(4) of the Habitats Directive, since otherwise no requirements under that derogating provision can be assessed. The assessment of imperative reasons of overriding public interest requires those interests to be weighed against the adverse effects on the area. Likewise it is possible to assess whether alternatives exist which have a lesser adverse effect on the area only by having regard to those adverse effects. Lastly, compensatory measures require knowledge of the damage to be compensated. (23) 55. Since the relevant knowledge was not available on 14 February 2003, it would not appear possible, at first sight, to base the authorisation granted on that date on Article 6(4) of the Habitats Directive. 56. However, it must also be possible, in cases of particular urgency, to authorise projects for imperative reasons of overriding public interest without previously conducting time-consuming scientific assessments. Otherwise it would be impossible, for example, to take measures to avert danger where there is an imminent threat to legal interests of paramount importance if those measures were likely to affect the conservation objectives for protection areas. 57. In such cases, for the purposes of the application of Article 6(4) of the Habitats Directive the maximum conceivable damage resulting from the action must be assumed and it must be assessed whether imperative reasons of overriding public interest – the imminent danger – require the implementation of specifically those protective measures or whether those interests can also be satisfied by alternative measures with less of an adverse effect on the SPA, for example by waiting for an impact assessment. (24) In this case the implications must be identified at least subsequently in order to be able to take the necessary compensatory measures. 58. It is not necessary to examine here whether the approaching world ski championships were capable of justifying not conducting a proper impact assessment. In particular, there is nothing to suggest that sufficient consideration was given to alternatives to the modification of the ski run. Since it is for Italy to demonstrate that the requirements governing an exception under Article 6(4) of the Habitats Directive have been met, (25) it must bear the consequences. 59. The authorisation of 14 February 2003 could not therefore be based on Article 6(4) of the Habitats Directive. 60. In summary, it must therefore be found that by authorising, in connection with the project for the extension and improvement of the Santa Caterina Valfurva skiing area (the ‘Edelweiss’ run) and for the provision of the corresponding ski facilities with a view to the holding of the 2005 World Alpine Ski Championships in SPA IT 2040044 Stelvio National Park, measures which are liable to have a significant impact on the SPA without making them subject to an appropriate assessment of their implications for the site in light of the site’s conservation objectives or assessing sufficiently the alternatives to those measures, the Italian Republic has failed to fulfil its obligations under Article 6(3) and (4), in conjunction with Article 7, of the Habitats Directive. C – Article 6(2) of the Habitats Directive 61. Under Article 6(2) of the Habitats Directive, Member States must take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species 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. 62. This plea in law raises the question whether particular activities can infringe both Article 6(2) and Article 6(3) and (4) of the Habitats Directive. In this regard I have already stated (26) that, according to the judgment in Waddenzee, Article 6(2) and Article 6(3) are both aimed at preventing the conservation objectives for a protected area from being undermined. (27) The fact that a plan or project has been authorised in accordance with the procedure laid down in Article 6(3) of the Habitats Directive renders superfluous, as regards the action to be taken on the protected site under the plan or project, a concomitant application of the rule of general protection laid down in Article 6(2). (28) On the other hand, where the authorisation procedure has not been properly conducted, both the procedural provisions of Article 6(3) and (4) and the substantive requirements relating to site protection stemming from all three paragraphs can be infringed in relation to the project. 63. The Court of Justice may find an infringement of Article 6(2) of the Habitats Directive in relation to a special area of conservation only where deterioration or disturbance within the meaning of that provision is established. In principle the Commission must set out those effects and, if they are disputed, prove them. 64. In the present case the Commission submits that around 2 500 trees were felled within the Stelvio National Park SPA, but it is unclear whether that measure has adversely affected the conservation objectives of the area. Forests cannot as such be the subject of a special protection area under Article 4 of the Birds Directive, but only in so far as they are of importance as a habitat for protected bird species. 65. Evidence of possible use of the area of forest in question by protected bird species can be found in an atlas of European breeding birds, extracts from which are submitted by the Commission. (29) According to that atlas, the area may be used in particular by the honey buzzard, the ptarmigan and the black woodpecker. Such information can give rise to an obligation, which is not disputed here, to conduct an impact assessment. However, it is not sufficient in itself to prove actual harm. 66. The only document that contains specific information on the use of the areas in question by protected species is the study of 21 November 2005, which Italy submitted with the rejoinder. (30) According to that document, most of the project’s effects are negligible or insignificant. Since the Commission has not disputed those findings, which would have been possible in the event of an oral procedure, they are to be regarded as accurate. 67. However, according to the same study, it is necessary to compensate for the loss of potential breeding grounds for the black grouse by improving habitats elsewhere. (31) It is to be concluded from the recognition of the need to compensate for the harm to the black grouse caused by Italy that the conservation objectives of the Stelvio National Park SPA have been adversely affected as far as that species is concerned. 68. It must therefore be found that by implementing, in connection with the project for the extension and improvement of the Santa Caterina Valfurva skiing area (the ‘Edelweiss’ run) and for provision of the corresponding ski facilities with a view to the holding of the 2005 World Alpine Ski Championships in SPA IT 2040044 Stelvio National Park, measures which have resulted in a deterioration of the habitats of the black grouse and thereby have adversely affected the conservation objectives for the SPA, the Italian Republic has failed to fulfil its obligations under Article 6(2), in conjunction with Article 7, of the Habitats Directive. D – Article 4(1) and (2) of the Birds Directive 69. The third plea in law concerns the legal conservation measures for the SPA required under Article 4(1) and (2) of the Birds Directive. Those provisions require, first of all, SPAs to be designated, (32) a matter which is not disputed in the present case. 70. In addition, according to the settled case-law of the Court, under those provisions the Member States must provide SPAs with a legal status protecting them that is capable, in particular, of ensuring both the survival and reproduction of the bird species listed in Annex I to the directive and the breeding, moulting and wintering of regularly occurring migratory species not listed in Annex I. (33) 71. Since Article 7 of the Habitats Directive provides that the obligations which arise, inter alia, under Article 6(2) of that directive are to replace those arising under the first sentence of Article 4(4) of the Birds Directive in respect of SPAs, the legal status protecting those areas must also guarantee the avoidance therein of the deterioration of natural habitats and the habitats of species as well as significant disturbance of the species for which those areas have been designated. (34) 72. Certain rules must therefore be adopted to guarantee sufficient protection of SPAs. 73. However, the Commission does not raise any specific objections to the general statutory provisions for the protection of SPAs in Italy or in Lombardy or to the specific provisions adopted for the protection of the Stelvio National Park SPA. Instead, it concludes from the execution of the contested project that the existing legal conservation measures are not sufficient. 74. Italy contests that conclusion by stating that infringement of conservation duties does not prove that the rules of law to guarantee protection are deficient. However, it fails to recognise that the obligations under Article 4(1) and (2) of the Birds Directive are not limited to the adoption of certain rules. The conservation measures required under those provisions must also guarantee the protection of certain areas in practice. 75. In the present case the conservation objectives of the Stelvio National Park SPA have not been met at least with regard to the black grouse. That damage indicates that not all the necessary measures were taken to guarantee the protection of the area. 76. It is true that areas may be adversely affected even though a Member State has taken all reasonable measures to avoid the damage. In such a case the damage would not establish an infringement of Article 4(1) and (2) of the Birds Directive. 77. However, in the present case the contested measures were implemented with authorisation from the competent authorities even though such authorisation would not have been justified, as an exception, under Article 6(4) of the Habitats Directive. It is therefore possible to conclude from the damage that Article 4(1) and (2) of the Birds Directive have been infringed. 78. It must therefore be found that by authorising, in connection with the project for the extension and improvement of the Santa Caterina Valfurva skiing area (the ‘Edelweiss’ run) and for provision of the corresponding ski facilities with a view to the holding of the 2005 World Alpine Ski Championships in SPA IT 2040044 Stelvio National Park, measures which have resulted in a deterioration of the habitats of the black grouse and thereby have adversely affected the conservation objectives for the SPA, the Italian Republic has failed to fulfil its obligations under Articles 4(1) and (2) of the Birds Directive. V – Costs 79. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. In the present case, since the Commission is successful in respect of all the pleas in law, Italy must be ordered to pay the costs. VI – Conclusion 80. I therefore propose that the Court should: (1) declare that by authorising, in connection with the project for the extension and improvement of the Santa Caterina Valfurva skiing area (the ‘Edelweiss’ run) and for provision of the corresponding ski facilities with a view to the holding of the 2005 World Alpine Ski Championships in SPA IT 2040044 Stelvio National Park, measures – which are liable to have a significant impact on the SPA without making them subject to an appropriate assessment of their implications for the site in light of the site’s conservation objectives or assessing sufficiently the alternatives to those measures, and – which have resulted in a deterioration of the habitats of the black grouse (Tetrao tetrix) and thereby have adversely affected the conservation objectives for the SPA, the Italian Republic has failed to fulfil its obligations under Article 6(2), (3) and (4), in conjunction with Article 7, of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora and under Article 4(1) and (2) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds; (2) order Italy to pay the costs. 1 – Original language: German. 2 – OJ 1979 L 103, p. 1. 3 – OJ 1992 L 206, p. 7. 4 – According to the standard data form completed by the Italian authorities, it was as early as 1988; see the annexes to the application, pp. 33 and 47. 5 – Annex to the rejoinder, pp. 24 and 54. 6 – See point 11 above. 7 – Case C-127/02 Waddenvereniging and Vogelbeschermingsvereniging [2004] ECR I‑7405 (‘Waddenzee’), paragraph 34, and Case C-239/04 Commission v Portugal [2006] ECR I-10183 (‘Castro Verde’), paragraph 19. 8 – Waddenzee (cited in footnote 7, paragraphs 56 and 59) and Castro Verde (cited in footnote 7, paragraph 20). 9 – Waddenzee (cited in footnote 7, paragraph 54). 10 – Waddenzee (cited in footnote 7, paragraph 54). 11 – Case C-166/97 Commission v France [1999] ECR I‑1719 (Seine estuary), paragraph 21; Case C-415/01 Commission v Belgium [2003] ECR I‑2081 (area maps), paragraph 15; Case C-240/00 Commission v Finland [2003] ECR I‑2187 (bird conservation areas), paragraph 16; and Case C‑209/04 Commission v Austria [2006] ECR I‑2755 (‘Lauteracher Ried’), paragraph 32. 12 – The standard data form is based on Commission Decision 97/266/EC of 18 December 1996 concerning a site information format for proposed Natura 2000 sites (OJ 1997 L 107, p. 1). 13 – See Case C-374/98 Commission v France [2000] ECR I-10799 (‘Basses Corbières’), paragraphs 47 and 57. In the case of habitat types and species which are to be protected under the Habitats Directive, but of which due account was not taken when the conservation objectives were defined, the question arises whether the temporary protection regime for proposed areas is applicable; see Case C-117/03 Dragaggi and Others [2005] ECR I‑167, paragraph 26, and Case C-244/05 Bund Naturschutz in Bayern and Others [2006] ECR I-8445, paragraph 35. In both instances, in order for the protective provision to be infringed the existence of the interests to be protected and harm to them must be proved, whilst under Article 6(3) of the Habitats Directive only the possibility of harm to conservation objectives must be proved in order for an assessment of the implications for the site to be required. 14 – Basses Corbières (cited in footnote 13, paragraph 50 et seq.). 15 – Annex 1 to the defence. 16 – 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). 17 – Annexes to the application, p. 304. 18 – Annexes to the application, p. 318. 19 – Annexes to the application, p. 80 et seq. 20 – Annexes to the application, p. 148 et seq. 21 – Annexes to the application, pp. 84 and 85. 22 – Annex to Italy’s rejoinder. 23 – See my Opinion in Lauteracher Ried (cited in footnote 11, points 83 and 84). 24 – See my Opinion in Castro Verde (cited in footnote 7, point 46 with further references). 25 – Castro Verde (cited in footnote 7, paragraphs 36, 39 and 40) and my Opinions in Castro Verde (point 41) and in Lauteracher Ried (cited in footnote 11, point 68). 26 – Opinion in Case C-418/04 Commission v Ireland [2007] ECR I-0000 (IBA Inventory 2000), point 173. 27 – Waddenzee (cited in footnote 7, paragraph 36). 28 – Waddenzee (cited in footnote 7, paragraph 35). 29 – Hagemeijer/Blair, The EBCC Atlas of European Breeding Birds, extracts from which form Annex 10 to the application. 30 – P. 6 et seq. of the annex to the rejoinder. 31 – Pp. 63 and 65 of the annex to the rejoinder. 32 – Case C-355/90 Commission v Spain [1993] ECR I‑4221 (Santoña Marshes), paragraph 20. 33 – See the references in footnote 11. 34 – Commission v Belgium (cited in footnote 11, paragraph 16).