Judgment of the Court (Fifth Chamber) of 15 December 2011 – Commission v Spain

(Case C-560/08)

Failure of a Member State to fulfil obligations – Directive 85/337/EEC – Assessment of the effects of certain public and private projects on the environment – Directive 92/43/EEC – Conservation of natural habitats – Projects for the widening and/or upgrading of the M-501 road in Spain – ZEP ES0000056 ‘Encinares del río Alberche y río Cofio’ ZEP ES0000056 – Proposed SCI ES3110005 ‘Cuenca del río Guadarrama’ and proposed SCI ES3110007 ‘Cuenca de los ríos Alberche y Cofio’

1. Actions for failure to fulfil obligations – Pre-litigation procedure – Commission decision to suspend the bringing of an action before the Court of Justice – No renunciation of the unfettered discretion to bring an action before the Court (Art. 258 TFEU) (see para. 72)

2. Environment – Assessment of the effects of certain projects on the environment – Directive 85/337 – Subject-matter of the assessment – Cumulative, indirect effects of the project on the environment not taken into consideration – Failure to fulfil obligations (Council Directive 85/337, as amended by Directive 2003/35, Arts 2(1), 3, 4(2) and 5(1) and Annexes II, III and IV) (see paras 98, 100, 133)

3. Environment – Assessment of the effects of certain projects on the environment – Directive 85/337 – Ambit of the assessment – Change or extension of projects – Included (Council Directive 85/337, as amended by Directive 2003/35, Art. 4(2) and Annex II, point 13) (see paras 103, 105-106, 137)

4. Environment – Assessment of the effects of certain projects on the environment – Directive 85/337 – Duty to inform the public of the request for development consent and of the availability of the information gathered – Assessment of the effects of the projects on the environment not carried out beforehand – Failure to fulfil obligations (Council Directive 85/337, as amended by Directive 2003/35, Arts 6(2) and 8) (see paras 108-109, operative part 1)

5. Environment – Assessment of the effects of certain projects on the environment – Directive 85/337 – Duty to inform the public of the decision granting or refusing consent to carry out a project – Publication of the environmental impact statement – Insufficient – Failure to fulfil obligations (Council Directive 85/337, as amended by Directive 2003/35, Art. 9) (see para. 112, operative part 1)

6. Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Authorisation for a plan or project on a protected site – Conditions – Prior examination – Assessment of the effects of the project on the site – Appropriate assessment – No assessment suggesting that there would be no adverse effects – Failure to fulfil obligations (Council Directive 92/43, Art. 6(3)) (see paras 131-132, 139, operative part 1)

7. Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Consent given for imperative reasons relating to an overriding public interest for a plan or project on a protected site – Condition – No prior identification of the effects of that plan or project on the site – Failure to fulfil obligations (Council Directive 92/43, Art. 6(3) and (4)) (see paras 138-139, operative part 1)

8. Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Consent given for a plan or project on a protected site without the measures being taken that were necessary in order to prevent the deliberate disturbance of protected animal species living on sites of Community importance – Failure to fulfil obligations (Council Directive 92/43, Arts 6(3) and (4), 7 and 12(1)(b) and (d)) (see paras 140-142, 144, operative part 1)

Re:

Failure of a Member State to fulfil obligations – Infringement of Articles 2(1), 3, 4(1) or 2, 5, 6(2), 8 and 9 of 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) and Article 6(3) and (4), read in conjunction with Articles 7 and 12(1)(b) and (d) of 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 interpreted by the judgments of the Court of Justice of 13 January 2005 in Case C‑117/03 Società Italiana Dragaggi and Others and of 14 September 2006 in Case C-244/05 Bund Naturschutz in Bayern and Others – Projects for the widening and/or upgrading of the M-501 road – ZEP ES0000056 ‘Encinares del río Alberche y río Cofio’ – Proposed SCI ES310005 ‘Cuenca del río Guadarrama’ and proposed SCI ES3110007 ‘Cuenca de los ríos Alberche y Cofio’.

Operative part

The Court:

1. Declares that, by failing to fulfil the requirements laid down:

– by Articles 2(1), 3, 4(1) or (2), as the case may be, and 5 of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003, in relation to separate projects for widening and/or upgrading sections 1, 2 and 4 of the M-501 road;

– by Articles 6(2) and 8 of Directive 85/337, as amended by Directive 2003/35, as regards separate projects for widening and/or upgrading of sections 2 and 4 of that road;

– by Article 9 of Directive 85/337, as amended by Directive 2003/35, in relation to separate projects for widening and/or upgrading sections 1, 2 and 4 of that road;

– by Article 6(3) and (4) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, read in conjunction with Article 7 of that directive, in relation to separate projects for widening and/or upgrading sections 1, 2 and 4 of the M-501 road, as regards special protection area ‘Encinares del río Alberche y río Cofio’; and

– by Article 12(1)(b) and (d) of that directive, in relation to separate projects for widening and/or upgrading section 1 of the M-501 road, as regards proposed site of Community importance ES3110005 ‘Cuenca del río Guadarrama’, and sections 2 and 4 of that road, as regards proposed site of Community importance ES3110007 ‘Cuencas de los ríos Alberche y Cofio’,

2. the Kingdom of Spain has failed to fulfil its obligations under those provisions.

3. Orders the Kingdom of Spain to pay the costs.