Judgment of the Court (Grand Chamber) of 7 September 2004 in Case C-127/02 (reference for a preliminary ruling from the Raad van State): Landelijke Vereniging tot Behoud van de Waddenzee, Nederlandse Vereniging tot Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en Visserij (Directive 92/43/EEC — Conservation of natural habitats and of wild flora and fauna — Concept of ‘plan’ or ‘project’ — Assessment of the implications of certain plans or projects for the protected site)
Date: 2004-10-23
Institutions: Court of Justice
Subjects: environmental protection, interpretation of the law, interpreting, management, project evaluation, protected area, protection of animal life, protection of plant life, wildlife

C 262/2

EN

Official Journal of the European Union

23.10.2004

JUDGMENT OF THE COURT

(Grand Chamber)

of 7 September 2004

in Case C-127/02 (reference for a preliminary ruling from
the Raad van State): Landelijke Vereniging tot Behoud van
de Waddenzee, Nederlandse Vereniging tot Bescherming
van Vogels v Staatssecretaris van Landbouw, Natuurbeheer
en Visserij (1)

(Directive 92/43/EEC — Conservation of natural habitats
and of wild flora and fauna — Concept of ‘plan’ or ‘project’
— Assessment of the implications of certain plans or projects
for the protected site)

(2004/C 262/03)

(Language of the case: Dutch)

(Provisional translation; the definitive translation will be published in
the European Court Reports)

In Case C-127/02: reference for a preliminary ruling under
Article 234 EC from the Raad van State (Netherlands), made by
decision of 27 March 2002, received on 8 April 2002, between
Landelijke Vereniging tot Behoud van de Waddenzee, Neder-
landse Vereniging tot Bescherming van Vogels and Staatssecre-
taris van Landbouw, Natuurbeheer en Visserij — the Court
(Grand Chamber), composed of: V. Skouris, President, P. Jann,
C.W.A. Timmermans, C. Gulmann (Rapporteur), J.-P. Puissochet
and J.N. Cunha Rodrigues, Presidents of Chambers, R.
Schintgen, S. von Bahr and R. Silva de Lapuerta,
Judges;
J. Kokott, Advocate General; M.-F. Contet, Principal Adminis-
trator, for the Registrar, has given a judgment on 7 September
2002, in which it has ruled:

1. Mechanical cockle fishing which has been carried on for many
years but for which a licence is granted annually for a limited
period, with each licence entailing a new assessment both of the
possibility of carrying on that activity and of the site where it may
be carried on, falls within the concept of ‘plan’ or ‘project’ within
the meaning of Article 6(3) of Council Directive 92/43/EEC of
21 May 1992 on the conservation of natural habitats and of
wild fauna and flora.

2. Article 6(3) of Directive 92/43 establishes a procedure intended
to ensure, by means of a preliminary examination, that a plan or
project which is not directly connected with or necessary to the
management of the site concerned but likely to have a significant
effect on it is authorised only to the extent that it will not adversely

affect the integrity of that site, while Article 6(2) of that directive
establishes an obligation of general protection consisting in
avoiding deterioration and disturbances which could have signifi-
cant effects in the light of the Directive's objectives, and cannot be
applicable concomitantly with Article 6(3).

3.

(a) The first sentence of Article 6(3) of Directive 92/43 must be
interpreted as meaning that any plan or project not directly
connected with or necessary to the management of the site is
to be subject to an appropriate assessment of its implications
for the site in view of the site's conservation objectives if it
cannot be excluded, on the basis of objective information, that
it will have a significant effect on that site, either individually
or in combination with other plans or projects.

(b) Pursuant to the first sentence of Article 6(3) of Directive
92/43, where a plan or project not directly connected with or
necessary to the management of a site is likely to undermine
the site's conservation objectives, it must be considered likely to
have a significant effect on that site. The assessment of that
risk must be made in the light inter alia of the characteristics
and specific environmental conditions of the site concerned by
such a plan or project.

4. Under Article 6(3) of Directive 92/43, an appropriate assessment
of the implications for the site concerned of the plan or project
implies that, prior to its approval, all the aspects of the plan or
project which can, by themselves or in combination with other
plans or projects, affect the site's conservation objectives must be
identified in the light of the best scientific knowledge in the field.
The competent national authorities, taking account of the appro-
priate assessment of the implications of mechanical cockle fishing
for the site concerned in the light of the site's conservation objec-
tives, are to authorise such an activity only if they have made
certain that it will not adversely affect the integrity of that site.
That is the case where no reasonable scientific doubt remains as to
the absence of such effects.

5. Where a national court is called on to ascertain the lawfulness of
an authorisation for a plan or project within the meaning of
Article 6(3) of Directive 92/43,
it can determine whether the
limits on the discretion of the competent national authorities set
by that provision have been complied with, even though it has not
been transposed into the legal order of the Member State concerned
despite the expiry of the time-limit laid down for that purpose.

(1) OJ C 16 of 29.6.2002.