EN Official Journal of the European Union C 11/15

Action brought on 20 October 2009 — Commission of the European Communities v Kingdom of Spain

(Case C-404/09)

2010/C 11/26

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: F. Castillo de la Torre, D. Recchia and J.-B. Laignelot, acting as Agents)

Defendant: Kingdom of Spain

Form of order sought

— Declare that, (a) that, by giving consent to the opencast mines ‘Fonfría’, ‘Nueva Julia’ and ‘Los Ladrones’ but failing to subject that consent to an assessment in order to identify, describe and assess in an appropriate manner the direct, indirect and cumulative effects of the existing opencast mining projects, the Kingdom of Spain has failed to fulfil its obligations under Articles 2, 3 and 5(1) and (3) of Council Directive 85/337/EEC (1) of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 97/11/EEC. (b) that, from 2000, the date of classification of the ‘Alto Sil’ as a bird protection area: — by having given consent to the opencast mines ‘Nueva Julia’ and ‘Los Ladrones’ but failing to subject that consent to an appropriate assessment of the possible effects of those projects; and in any event failing to comply with the conditions under which the execution of a project is permitted, in spite of the risk which those projects represented for the capercaillie species which is one of the natural assets which justified the classification of the ‘Alto Sil’ bird protection area and in the absence of alternative solutions, namely for imperative reasons of overriding public interest and only after having notified the Commission of the necessary compensatory measures to ensure that the coherence of the Natura 2000 network is protected. — and by having failed to adopt the necessary measures to prevent the deterioration of the habitats of that species, and to prevent the disturbance of that species, which was the reason for the designation of that area as a bird protection area, caused by the ‘Feixolín’, ‘Salguero-Prégame-Valdesegadas’‘Fonfría’‘Ampliación de Feixolín’ and ‘Nueva Julia’ mines; the Kingdom of Spain has failed to fulfil its obligations in relation to the ‘Alto Sil’ bird protection area under Article 6(2) (3) and (4) in conjunction with Article 7 of Directive 92/43/EEC (2) (c) that, from January 1998, — by failing in relation to the mining operations at the ‘Feixolín’, ‘Salguero-Prégame-Valdesegadas’, ‘Fonfría’ and ‘Nueva Julia’ mines to adopt the necessary measures to safeguard the ecological interest which the proposed ‘Alto Sil’ site had at national level, — the Kingdom of Spain has failed to fulfil its obligations in relation to the proposed ‘Alto Sil’ site, pursuant to the interpretation of the Court of Justice in Case C 117/03 Dragaggi [2005] ECR I 167 and Case C 244/05 Bund Naturschutz in Bayern [2006] ECR I 8445, and (d) that, from December 2004 — by permitting opencast mining (in the case of the ‘Feixolín’, ‘Salguero-Prégame-Valdesegadas’, ‘Fonfría’ and ‘Nueva Julia’ mines) likely to have a significant impact on the natural assets which determined the designation of the ‘Alto Sil’ area as a site of Community interest but failing to make an appropriate assessment of the possible impact of those mines, and in any event failing to comply with the conditions under which the execution of those projects would be permitted, in spite of the risk which they represented to the natural assets which justified the designation of the ‘Alto Sil’ and in the absence of alternative solutions, namely solely for imperative reasons of overriding public interest and only after having notified the Commission of the necessary compensatory measures to ensure that the coherence of the Natura 2000 network is protected; — and by having omitted in relation to the above opencast mining to adopt the necessary measures to prevent the deterioration of natural habitats and the habitats of species, and the disturbances of species caused by the ‘Feixolín’, ‘Salguero-Prégame-Valdesegadas’, ‘Fonfría’, ‘Nueva Julia’ and ‘Ampliación de Feixolín’ mines; the Kingdom of Spain has failed to fulfil its obligations in relation to the ‘Alto Sil’ site of community interest under Article 6(2) (3) and (4) of Directive 92/43/EEC;

— order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The Commission became aware of the existence of various opencast coal mines, developed by the Empresa Minero Siderúrgica de Ponferrada (MSP), likely to affect the natural assets of the area proposed as the ‘Alto Sil’ site of Community interest (ES0000210), situated in the province of León in the northeast of the Autonomous Community of Castilla y León. Reports confirmed not only the existence at the same time of several open cast mines for the extraction of coal, but also that the opencast mining was to continue by means of further mines to which consent had been given or was about to be given.

As regards Directive 85/337/EEC, the Commission considers that, as regards the three mines at issue, no account was taken of the possible indirect, cumulative or synergistic effects on the most vulnerable species.

The Commission considers that, having regard to the nature of the projects at issue, their proximity and their lasting effects over time, the description of the significant effects of those projects on the environment, pursuant to what is laid down in Annex IV to Directive 85/337/EEC ought necessarily to cover ‘the direct effects and any indirect, secondary, cumulative, short, medium and long-term, permanent and temporary. effects of the project’.

As regards Directive 92/43, in relation to habitats, the species referred to by the application are mainly the capercaillie and the brown bear. The Commission considers that the consequences of the mines on those species cannot be assessed solely in terms of direct destruction of the critical areas for those species, but that account must be taken of the greater fragmentation, degradation and destruction of habitats which are potentially suitable for reconquest by those species and of the increased disturbance caused to those species, those being matters which have not been taken into account. Further there is the additional risk of a definite barrier effect as a result of the movement and fragmentation of populations.

In brief, the Commission considers that the mines at issue worsen the factors considered to be causing the decline of those species and that therefore the authorities are not entitled to conclude that the mining activities at issue have no significant effects on those species.

Consequently, the Commission considers that there has been no assessment of the possible impact on the capercaillie and brown bear species which can be considered appropriate, within the meaning of Article 6(3). The Commission considers that if such an assessment had taken place, the conclusion would have to have been, at the least, that there was not the certainty which the case-law requires that there were no significant effects for those species stemming from the projects to which consent had been given. That means that the authorities were entitled to give consent to those opencast mining projects solely after they were satisfied that the conditions of Article 6(4)were met; in other words, in the absence of alternatives, including the ‘zero alternative’, after they had identified the existence of imperative reasons of overriding public interest to justify the application of the exception to the rule contained in that article and after, as appropriate, they had determined the necessary compensatory measures.

(1) OJ 1985 L 175, p. 40

(2) 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)