Case C‑141/14

European Commission

v

Republic of Bulgaria

‛Failure of a Member State to fulfil obligations — Directive 2009/147/EC — Conservation of wild birds — Kaliakra and Belite Skali special protection areas — Directive 92/43/EEC — Conservation of natural habitats and wild species — Kompleks Kaliakra site of Community importance — Directive 2011/92/EU — Assessment of the effects of certain projects on the environment — Temporal applicability of the system of protection — Deterioration of natural habitats of species and disturbance of species — Wind power — Tourism’

Summary — Judgment of the Court (Third Chamber), 14 January 2016

Environment — Assessment of the effects of certain projects on the environment — Directive 2011/92 — Making the projects listed in Annex II to the Directive subject to assessment — Discretion of the Member States — Limits — Taking account of the cumulative effect of a project with other projects

Actions for failure to fulfil obligations — Examination of the merits by the Court — Situation to be taken into consideration — Situation on expiry of the period laid down in the reasoned opinion

Environment — Conservation of wild birds — Directive 2009/147 — Special conservation measures — Obligation of Member States to avoid pollution and the deterioration of habitats — Non designation of the area in question as a special protection area — No effect

Environment — Conservation of wild birds — Directive 2009/147 — Special conservation measures — Obligation of Member States to avoid the deterioration of natural habitats and the habitats of species — Failure to fulfil obligations — Burden of proof on the Commission — Scope

Environment — Conservation of natural habitats and of wild fauna and flora — Directive 92/43 — Special protection areas — Obligation of Member States to avoid the deterioration of natural habitats and the habitats of species — Failure to fulfil obligations — Burden of proof on the Commission — Scope

Environment — Conservation of natural habitats and of wild fauna and flora — Directive 92/43 — Special protection areas — Obligation of Member States to avoid the deterioration of natural habitats and the habitats of species — Scope — Temporal applicability of the system of protection

See the text of the decision. (see paras 27-30)

Article 6(2) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora also applies to installations the project for which was approved by the competent authority before the protection provided for in that directive became applicable to the protection area concerned. Although such projects are not subject to the requirements relating to the procedure for prior assessment of the implications of the project for the site concerned, laid down by the Directive 92/43, their implementation nevertheless falls within the scope of Article 6(2) of that directive. The implementation of a wind-power-installation construction project and the activity generated by the installations resulting from those projects are therefore covered by Article 6(2) of Directive 92/43, even though they were authorised before the accession of the Member State in question and before Directive 92/43, and Directive 2009/147 on the conservation of wild birds, applied to those authorisations. (see paras 51, 52, 55)

An activity complies with Article 6(2) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora only if it is guaranteed that it will not cause any disturbance likely significantly to affect the objectives of that directive, particularly its conservation objectives. However, in order to establish failure to comply with that provision, the Commission does not have to establish the existence of a cause-and-effect relationship between the operation of installations resulting from a project and significant disturbance caused to the species concerned. It is sufficient for that institution to establish that there is a probability or risk that that operation might cause such disturbances. (see paras 56, 58)

As regards Article 4(4) of Directive 2009/147 on the conservation of wild birds, which requires Member States to take appropriate steps to avoid, within special protection areas, pollution or deterioration of habitats or any disturbances affecting the birds, breach of that provision must to be deemed to exist where the Commission establishes that there is a probability or risk that a project will cause deterioration to the habitats of protected species of birds or cause significant disturbance to those species. In that regard, where it is established that the operation of wind-power installations may lead to significant disturbances and deterioration of the habitats of protected bird species, the fact that such birds still use the areas in question and that, when the wind conditions are favourable, migratory birds are concentrated in the Kaliakra site does not stand in the way of that finding. The obligations to protect exist before any reduction in the number of birds has been observed or before the risk of a protected species becoming extinct has materialised. (see paras 66, 70, 75, 76)

See the text of the decision. (see para 67)

See the text of the decision. (see para 88)