Joined Cases C‑387/15 and C‑388/15

Hilde Orleans and Others

v

Vlaams Gewest

(Requests for a preliminary ruling from the Raad van State (Belgium))

‛Reference for a preliminary ruling — Environment — Directive 92/43/EEC — Conservation of natural habitats — Special areas of conservation — Natura 2000 site ‘Scheldt and Durme estuary from the Dutch border to Ghent’ — Development of a port area — Assessment of the implications of a plan or project for a protected site — Occurrence of adverse effects — Prior but not yet completed development of an area of an equivalent type to the part destroyed — Completion subsequent to the assessment — Article 6(3) and (4)’

Summary – Judgment of the Court (Seventh Chamber), 21 July 2016

Environment — Conservation of natural habitats and of wild fauna and flora — Directive 92/43 — Special areas of conservation — Obligations of the Member States — Assessment of the implications of a project for a site — Taking into account the future creation of an area of natural habitat on the site — Excluded — Categorisation of development as a compensatory measure — Condition

(Council Directive 92/43, Art. 6(3) and (4)

Article 6(3) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora must be interpreted as meaning that measures, contained in a plan or project not directly connected with or necessary to the management of a site of Community importance, providing, prior to the occurrence of adverse effects on a natural habitat type present thereon, for the future creation of an area of that type, but the completion of which will take place subsequently to the assessment of the significance of any adverse effects on the integrity of that site, may not be taken into consideration in that assessment. Such measures can be categorised as ‘compensatory measures’, within the meaning of Article 6(4), only if the conditions laid down therein are satisfied.

The negative implications of a plan or project not directly connected with or necessary to the management of a special area of conservation and affecting its integrity do not fall within the scope of Article 6(3) of the Habitats Directive. Moreover, as regards Article 6(4) of that directive, as an exception to the criterion for authorisation laid down in the second sentence of Article 6(3) of the Habitats Directive, Article 6(4) must be interpreted strictly and can be applied only after the implications of a plan or project have been analysed in accordance with Article 6(3). In order to determine the nature of any compensatory measures, the damage to the site concerned must be precisely identified. Knowledge of those implications in the light of the conservation objectives relating to the site in question is a necessary prerequisite for the application of Article 6(4) of the Habitats Directive, since, in the absence of those elements, no condition for the application of that derogating provision can be assessed. The assessment of any imperative reasons of overriding public interest and that of the existence of less harmful alternatives require a weighing up against the damage caused to the site by the plan or project under consideration.

(see paras 59-61, 64, operative part)