Case C-43/10

Nomarchiaki Aftodioikisi Aitoloakarnanias and Others

v

Ipourgos Perivallontos, Chorotaxias kai Dimosion ergon and Others

(Reference for a preliminary ruling from the Simvoulio tis Epikratias)

‛Reference for a preliminary ruling — Directives 85/337/EEC, 92/43/EEC, 2000/60/EC and 2001/42/EC — Community action in the field of water policy — Diversion of the course of a river — Meaning of the time limit for production of river basin management plans’

Summary — Judgment of the Court (Grand Chamber), 11 September 2012

Environment — Conservation of natural habitats and of wild fauna and flora — Directive 92/43 — Permission, in relation to sites which are part of the Natura 2000 network, for the conversion of a natural fluvial ecosystem into a largely man-made fluvial and lacustrine ecosystem — Conditions

Environment — Conservation of natural habitats and of wild fauna and flora — Directive 92/43 — Obligation of Member States, when a project adversely affecting the environment is to be carried out, to take compensatory measures — Obligation to take account of the extent of the diversion of water and the scale of the works involved in that diversion

Environment — Conservation of natural habitats and of wild fauna and flora — Directive 92/43 — Development consent for a project for the diversion of water which is not directly connected with or necessary to the conservation of a special protection area, but likely to have a significant effect on that area, in the absence of information or of reliable and updated data concerning the birds in that area — Not permissible

Environment — Conservation of natural habitats and of wild fauna and flora — Directive 92/43 — Special areas of conservation — Sites on the national lists likely to be identified as sites of Community importance — Protective measures — Obligation of Member States to take the protective measures laid down in Article 6(2) to (4) of the directive, after notification of the Commission decision adopting the list of sites of Community importance for the Mediterranean biogeographical region

Environment — Assessment of the effects of certain projects on the environment — Directive 85/337 — Interpretation — National legislation approving a project for the partial diversion of the waters of a river — Environmental impact report for that project which had served as the basis for an administrative decision adopted on the conclusion of a procedure which complied with the obligations in terms of public information and participation laid down by that directive — Lawfulness — Conditions

Environment — Community action in the field of water policy — Directive 2000/60 — Interpretation — Directive not precluding a provision of national law whereby consent is given, prior to 22 December 2009, to a transfer of water from one river basin to another or from one river basin district to another in the absence of river basin management plans — Conditions

Environment — Community action in the field of water policy — Directive 2000/60 — Obligation of Member States to produce all river basin management plans — Obligation to publish river basin management plans no later than nine years after the date of the directive’s entry into force — Obligation of Member States to refrain from taking measures in the transitional period — Obligation not to adopt any measures liable seriously to compromise the attainment of the result prescribed by Directive 2000/60

Environment — Community action in the field of water policy — Directive 2000/60 — Article 13 fixing the date of expiry of the period allowed to Member States for the publication of river basin management plans — Article24 fixing the date of expiry of the period for the transposition of the directive

Articles 13(6) and 24(1) of Directive 2000/60 establishing a framework for Community action in the field of water policy must be interpreted as respectively fixing 22 December 2009 as the date of expiry of the period allowed to Member States for the publication of river basin management plans and 22 December 2003 as the date of expiry of the maximum period available to the Member States for the transposition of that directive, in particular Articles 3 to 6, 9, 13 and 15 thereof. (see para. 47, operative part 1)

See the text of the decision. (see paras 57-60)

Directive 2000/60 establishing a framework for Community action in the field of water policy must be interpreted as not precluding, in principle, a provision of national law whereby consent is given, prior to 22 December 2009, to a transfer of water from one river basin to another or from one river basin district to another where the management plans for the river basin districts concerned were not yet adopted by the competent national authorities. Such a transfer must not be such as seriously to jeopardise the realisation of the objectives laid down by that directive. However, to the extent that that transfer is liable to have adverse effects on water of the kind stated in Article 4(7) of that directive, consent may be given to it, at the very least if the conditions set out in Article 4(7)(a) to (d) are satisfied, and the fact that it is impossible for the receiving river basin or river basin district to meet from its own water resources its needs in terms of drinking water, electricity production or irrigation is not a sine qua non for such a transfer of water to be compatible with that directive provided that the conditions listed above are satisfied. (see para. 69, operative part 2)

The fact that a national parliament approves management plans for river basins relating to large-scale projects or projects of national importance where no procedure for public information, consultation or participation has been implemented does not fall within the scope of Article 14 of Directive 2000/60 establishing a framework for Community action in the field of water policy, and in particular the scope of Article 14(1) thereof. (see para. 75, operative part 3)

Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2003/35, and in particular Article 1(5) thereof, must be interpreted as not precluding national legislation which approves a project for the partial diversion of the waters of a specific river on the basis of an environmental impact report for that project which had served as the basis for an administrative decision adopted on the conclusion of a procedure which complied with the obligations in terms of public information and participation laid down by that directive, even where that decision was annulled by court order, provided that that legislation constitutes a specific legislative act, so that the objectives of that directive can be achieved through the legislative process. It is for the national court to determine whether those two conditions have been complied with. (see para. 91, operative part 4)

A project for the partial diversion of the waters of a river, such as the project for the partial diversion of the upper waters of the river Acheloos to Thessaly, is not to be regarded as a plan or programme falling within the scope of Directive 2001/42 on the assessment of the effects of certain plans and programmes on the environment. (see para. 96, operative part 5)

The areas which were listed in the national list of sites of Community importance, transmitted to the European Commission pursuant to the second subparagraph of Article 4(1) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora, and which were then included in the list of sites of Community importance adopted by Decision 2006/613 adopting the list of sites of Community importance for the Mediterranean biogeographical region, were entitled, after notification of Decision 2006/613 to the Member State concerned, to the protection of that directive before that decision was published. In particular, after that notification, the Member State concerned also had to take the protective measures laid down in Article 6(2) to (4) of that directive. (see para. 105, operative part 6)

See the text of the decision. (see para. 107)

Directive 92/43 on the conservation of natural habitats and of wild fauna and flora, and in particular Article 6(3) and (4) thereof, must be interpreted as precluding development consent being given to a project for the diversion of water which is not directly connected with or necessary to the conservation of a special protection area, but likely to have a significant effect on that special protection area, in the absence of information or of reliable and updated data concerning the birds in that area. (see para. 117, operative part 7)

Directive 92/43 on the conservation of natural habitats and of wild fauna and flora, and in particular Article 6(4) thereof, must be interpreted as meaning that grounds linked, on the one hand, to irrigation and, on the other, to the supply of drinking water, relied on in support of a project for the diversion of water, may constitute imperative reasons of overriding public interest capable of justifying the implementation of a project which adversely affects the integrity of the sites concerned. Where such a project adversely affects the integrity of a site of Community importance hosting a priority natural habitat type and/or a priority species, its implementation may, in principle, be justified by grounds linked with the supply of drinking water. In some circumstances, it might be justified by reference to beneficial consequences of primary importance which irrigation has for the environment. On the other hand, irrigation cannot, in principle, qualify as a consideration relating to human health or public safety, justifying the implementation of a project. (see para. 128, operative part 8)

The first sentence of the first subparagraph of Article 6(4) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora provides that if, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State is to take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. For the purposes of determining the adequacy of compensatory measures, account should be taken of the extent of the diversion of water and the scale of the works involved in that diversion. (see paras 130, 133, operative part 9)