Inter-Environnement Wallonie ASBL and Bond Beter Leefmilieu Vlaanderen ASBL v Conseil des ministres.
Date: 2019-07-29
62


It follows from the case-law of the Court that the definition of the term ‘project’, specifically in the context of the wording of the first indent of Article 1(2)(a) of the EIA Directive, refers to work or interventions involving alterations to the physical aspect of the site (see, to that effect, judgment of 19 April 2012, Pro-Braine and Others, C‑121/11, EU:C:2012:225, paragraph 31 and the case-law cited).
74


Furthermore, the requirement imposed by Article 2(1) of the EIA Directive is not that all projects likely to have a significant effect on the environment be made subject to the assessment procedure provided for in that directive, but only those mentioned in Article 4 of that directive, which refers to the projects listed in Annexes I and II thereto (see, to that effect, judgment of 17 March 2011, Brussels Hoofdstedelijk Gewest and Others, C‑275/09, EU:C:2011:154, paragraph 25).
75


Finally, Article 2(1) and Article 4(1) of the EIA Directive, read together, indicate that projects covered by Annex I to that directive, present an inherent risk of significant effects on the environment and therefore an environmental impact assessment is indispensable in those cases (see, to that effect, on the obligation to conduct an impact assessment, judgments of 24 November 2011, Commission v Spain, C‑404/09, EU:C:2011:768, paragraph 74, and of 11 February 2015, Marktgemeinde Straßwalchen and Others, C‑531/13, EU:C:2015:79, paragraph 20).
83


As the Court has previously pointed out, the requirement that such an assessment should precede consent is justified by the fact that it is necessary, in the decision-making process, for the competent authority to take effects on the environment into account at the earliest possible stage in all the technical planning and decision-making processes, the objective being to prevent the creation of pollution or nuisances at source rather than to counteract their effects subsequently (judgment of 31 May 2018, Commission v Poland, C‑526/16, not published, EU:C:2018:356, paragraph 75 and the case-law cited).
85


Furthermore, where national law provides that the consent procedure is to be carried out in several stages, the environmental impact assessment in respect of a project must, in principle, be carried out as soon as it is possible to identify and assess all potential effects of the project on the environment (judgments of 7 January 2004, Wells, C‑201/02, EU:C:2004:12, paragraph 52, and of 28 February 2008, Abraham and Others, C‑2/07, EU:C:2008:133, paragraph 26).
86


Where one of those stages is a principal decision and another an implementing decision which cannot extend beyond the parameters set by the principal decision, the effects which the project may have on the environment must be identified and assessed at the time of the procedure relating to the principal decision. It is only if those effects are not identifiable until the time of the procedure relating to the implementing decision that the assessment should be carried out in the course of the latter procedure (judgments of 7 January 2004, Wells, C‑201/02, EU:C:2004:12, paragraph 52, and of 28 February 2008, Abraham and Others, C‑2/07, EU:C:2008:133, paragraph 26).
105


The first condition is that the project must be adopted by a specific act of legislation that has the same characteristics as a development consent. In particular, that act must grant the developer the right to proceed with the project (see, to that effect, judgment of 16 February 2012, Solvay and Others, C‑182/10, EU:C:2012:82, paragraph 32 and the case-law cited).
106


In addition, the project must be adopted in detail, that is to say, in a sufficiently precise and definitive manner, so that the legislative act adopting the project must include, like a development consent, following their consideration by the legislature, all the elements of the project relevant to the environmental impact assessment. The legislative act must demonstrate that the objectives of the EIA Directive have been achieved as regards the project in question (see, to that effect, judgment of 16 February 2012, Solvay and Others, C‑182/10, EU:C:2012:82, paragraph 33 and the case-law cited).
107


It follows that the details of a project cannot be considered to have been adopted by a legislative act, for the purposes of Article 1(4) of the EIA Directive, if that act does not include the elements necessary to assess the environmental impact of the project or if the adoption of other measures is needed in order for the developer to be entitled to proceed with the project (see, to that effect, judgment of 16 February 2012, Solvay and Others, C‑182/10, EU:C:2012:82, paragraph 34 and the case-law cited).
108


The second condition laid down in Article 1(4) of the EIA Directive is that the objectives of that directive, including that of making available information, are achieved through the legislative process. It follows from Article 2(1) of that directive that the essential objective of the directive is to ensure that projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are subject to an assessment with regard to their environmental effects before consent is given (see, to that effect, judgment of 16 February 2012, Solvay and Others, C‑182/10, EU:C:2012:82, paragraph 35 and the case-law cited).
109


Consequently, the legislature must have sufficient information at its disposal at the time when the project concerned is adopted. In that regard, it follows from Article 5(3) of the EIA Directive that the minimum information to be supplied by the developer is to include a description of the project comprising information on the site, design and size of the project, a description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects, the data required to identify and assess the main effects which the project is likely to have on the environment, an outline of the main alternatives studied by the developer and an indication of the main reasons for his choice, taking into account the environmental effects, and a non‑technical summary of the above information (see, to that effect, judgments of 18 October 2011, Boxus and Others, C‑128/09 to C‑131/09, C‑134/09 and C‑135/09, EU:C:2011:667, paragraph 43, and of 16 February 2012, Solvay and Others, C‑182/10, EU:C:2012:82, paragraph 37).
110


In the present case, it is for the referring court to determine whether those conditions have been satisfied, taking account both of the content of the legislative act adopted and of the entire legislative process which led to its adoption, in particular the preparatory documents and parliamentary debates (see, to that effect, judgments of 18 October 2011, Boxus and Others, C‑128/09 to C‑131/09, C‑134/09 and C‑135/09, EU:C:2011:667, paragraph 47, and of 16 February 2012, Solvay and Others, C‑182/10, EU:C:2012:82, paragraph 41).
116


Article 6 of the Habitats Directive imposes upon the Member States a set of specific obligations and procedures designed, as is clear from Article 2(2) of that directive, to maintain, or as the case may be, restore, at favourable conservation status, natural habitats and species of wild fauna and flora of Community interest, in order to attain the more general aim pursued by that directive, which is to ensure a high level of environmental protection for the sites protected pursuant to it (see, to that effect, judgment of 17 April 2018, Commission v Poland(Białowieża Forest), C‑441/17, EU:C:2018:255, paragraph 106 and the case-law cited).
117


Article 6(3) of the Habitats Directive establishes an assessment procedure intended to ensure, by means of a prior examination, that a plan or project 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 (judgments of 17 April 2018, Commission v Poland (Białowieża Forest), C‑441/17, EU:C:2018:255, paragraph 108 and the case-law cited, and of 25 July 2018, Grace and Sweetman, C‑164/17, EU:C:2018:593, paragraph 38).
119


The first, the subject of that provision’s first sentence, requires Member States to carry out an appropriate assessment of the implications for a protected site of a plan or project when there is a likelihood that the plan or project will have a significant effect on the site. The second, the subject of the second sentence, which arises following the appropriate assessment, allows such a plan or project to be authorised only if it will not adversely affect the integrity of the site concerned, subject to the provisions of Article 6(4) of the directive (judgment of 25 July 2018, Grace and Sweetman, C‑164/17, EU:C:2018:593, paragraph 32).
120


Furthermore, an appropriate assessment of the implications of a plan or project implies that, before the plan or project is approved, all the aspects of the plan or project which can, either individually or in combination with other plans or projects, affect the conservation objectives of that site must be identified, in the light of the best scientific knowledge in the field. The competent national authorities are to authorise an activity only if they have made certain that it will not adversely affect the integrity of that site. That is so where there is no reasonable scientific doubt as to the absence of such effects (judgment of 7 November 2018, Holohan and Others, C‑461/17, EU:C:2018:883, paragraph 33 and the case-law cited).
121


Furthermore, with regard to areas classified as special protection areas, the obligations arising from Article 6(3) of the Habitats Directive replace, in accordance with Article 7 of that directive, any obligations arising under the first sentence of Article 4(4) of the Birds Directive, as from the date of classification under the Birds Directive, where that date is later than the date of implementation of the Habitats Directive (judgments of 17 April 2018, Commission v Poland (Białowieża Forest), C‑441/17, EU:C:2018:255, paragraph 109 and the case-law cited, and of 25 July 2018, Grace and Sweetman, C‑164/17, EU:C:2018:593, paragraph 27).
122


As the Habitats Directive does not define the term ‘project’, for the purposes of Article 6(3), account should be taken of the definition of ‘project’ in Article 1(2)(a) of the EIA Directive (see, to that effect, judgments of 7 September 2004, Waddenvereniging and Vogelbeschermingsvereniging, C‑127/02, EU:C:2004:482, paragraphs 23, 24 and 26; of 14 January 2010, Stadt Papenburg, C‑226/08, EU:C:2010:10, paragraph 38; of 17 July 2014, Commission v GreeceC‑600/12, not published, EU:C:2014:2086, paragraph 75; and of 7 November 2018, Coöperatie Mobilisation for the Environment and Others, C‑293/17 and C‑294/17, EU:C:2018:882, paragraph 60).
123


The Court has previously held that if an activity is covered by the EIA Directive, it must, a fortiori, be covered by the Habitats Directive (judgment of 7 November 2018, Coöperatie Mobilisation for the Environment and Others, C‑293/17 and C‑294/17, EU:C:2018:882, paragraph 65).
124


It follows that if an activity is regarded as a ‘project’ within the meaning of the EIA Directive, it may constitute a ‘project’ within the meaning of the Habitats Directive (judgment of 7 November 2018, Coöperatie Mobilisation for the Environment and Others, C‑293/17 and C‑294/17, EU:C:2018:882, paragraph 66).
127


Last, the fact that a recurrent activity has been authorised under national law before the entry into force of the Habitats Directive does not constitute, in itself, an obstacle to such an activity being regarded, at the time of each subsequent intervention, as a distinct project for the purposes of that directive, at the risk of permanently excluding that activity from any prior assessment of its implications for that site (see, to that effect, judgments of 14 January 2010, Stadt Papenburg, C‑226/08, EU:C:2010:10, paragraph 41, and of 7 November 2018, Coöperatie Mobilisation for the Environment and Others, C‑293/17 and C‑294/17, EU:C:2018:882, paragraph 77).
128


To that end, it must be determined whether, having regard in particular to the regularity or nature of some activities or the conditions under which they are carried out, they must be regarded as constituting a single operation, and can be considered to be one and the same project for the purposes of Article 6(3) of the Habitats Directive (see, to that effect, judgments of 14 January 2010, Stadt Papenburg, C‑226/08, EU:C:2010:10, paragraph 47, and of 7 November 2018, Coöperatie Mobilisation for the Environment and Others, C‑293/17 and C‑294/17, EU:C:2018:882, paragraph 78).
129


That would not be the case where there is no continuity in the activity, inter alia when the location and conditions in which it is carried out are not the same (judgment of 7 November 2018, Coöperatie Mobilisation for the Environment and Others, C‑293/17 and C‑294/17, EU:C:2018:882, paragraph 83).
133


The fact that the national authority that is competent to approve the plan or project in question is the legislature has no bearing in this matter. In contrast to the provisions of the EIA Directive, no derogation is possible from the assessment under Article 6(3) of the Habitats Directive on the grounds that the competent authority to grant consent to the project in question is the legislature (see, to that effect, judgment of 16 February 2012, Solvay and Others, C‑182/10, EU:C:2012:82, paragraph 69).
134


It follows from the Court’s case-law that the requirement of an appropriate assessment of the implications of a plan or project under Article 6(3) of the Habitats Directive is conditional on there being a likelihood or a risk that the plan or project will have a significant effect on the site concerned. Having regard to the precautionary principle, in particular, such a risk is deemed to be present where it cannot be ruled out, having regard to the best scientific knowledge in the field, that the plan or project might affect the conservation objectives for the site. The assessment of that risk must be made in the light, in particular, of the characteristics and specific environmental conditions of the site concerned by such a plan or project (see, to that effect, judgment of 17 April 2018, Commission v Poland (Białowieża Forest), C‑441/17, EU:C:2018:255, paragraphs 111 and 112 and the case-law cited).
136


In that regard, the fact that a project is located outside a Natura 2000 area is not sufficient to exempt it from the requirements under Article 6(3) of the Habitats Directive (see, to that effect, judgments of 10 January 2006, Commission v Germany, C‑98/03, EU:C:2006:3, paragraphs 44 and 51, and of 26 April 2017, Commission v Germany, C‑142/16, EU:C:2017:301, paragraph 29).
137


In the present case, it is abundantly clear, given the scale of the work involved and the length of the extension granted for industrial production of electricity at the two power stations, that the project at issue in the main proceedings is likely to undermine the conservation objectives for nearby protected sites, if only because of how those power stations operate, in particular, by collecting large volumes of water from the nearby river for use in the cooling system, which are then discharged into that river, but also the risk of a serious accident (see, by analogy, judgments of 10 January 2006, Commission v Germany, C‑98/03, EU:C:2006:3, paragraph 44, and of 26 April 2017, Commission v Germany, C‑142/16, EU:C:2017:301, paragraph 30), there being no need to distinguish the two power stations.
147


As a provision derogating from the criterion for authorisation laid down in the second sentence of Article 6(3) of the Habitats Directive, Article 6(4) thereof 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) (judgment of 17 April 2018, Commission v Poland (Białowieża Forest), C‑441/17, EU:C:2018:255, paragraph 189 and the case-law cited).
148


Under the first subparagraph of Article 6(4) of the Habitats Directive, if, in spite of the findings of an assessment carried out in accordance with the first sentence of Article 6(3) of that directive being negative, 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 (see, to that effect, judgments of 20 September 2007, Commission v Italy, C‑304/05, EU:C:2007:532, paragraph 81, and of 17 April 2018, Commission v Poland (Białowieża Forest), C‑441/17, EU:C:2018:255, paragraph 190).
150


Knowledge of the effects of a plan or project, in the light of the conservation objectives relating to the site at issue, is thus a necessary prerequisite for the application of Article 6(4) of the Habitats Directive, since, in the absence thereof, no condition for 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. In addition, in order to determine the nature of any compensatory measures, the damage to the site concerned must be precisely identified (judgments of 20 September 2007, Commission v Italy, C‑304/05, EU:C:2007:532, paragraph 83, and of 17 April 2018, Commission v Poland (Białowieża Forest), C‑441/17, EU:C:2018:255, paragraph 191 and the case-law cited).
152


However, aside from the fact that it is not apparent from the documents before the Court that those studies and hearings made it possible to conduct an environmental impact assessment under the EIA Directive, the referring court would have to assess, in any event, whether such an assessment may be deemed to satisfy also the requirements of the Habitats Directive (see, by analogy, judgments of 22 September 2011, Valčiukienė and Others, C‑295/10, EU:C:2011:608, paragraph 62, and of 10 September 2015, Dimos Kropias Attikis, C‑473/14, EU:C:2015:582, paragraph 58).
153


Whatever the situation, it is necessary in particular, as noted in paragraph 120 of the present judgment, that all the aspects of the plan or project which can, either by themselves or in combination with other plans or projects, affect the conservation objectives of the protected sites concerned should be identified, in the light of the best scientific knowledge in the field (see, to that effect, judgments of 17 April 2018, Commission v Poland (Białowieża Forest), C‑441/17, EU:C:2018:255, paragraph 113 and the case-law cited, and of 25 July 2018, Grace and Sweetman, C‑164/17, EU:C:2018:593, paragraph 40).
155


As regards the question whether the objective of ensuring the security of a Member State’s electricity supply constitutes an imperative reason of overriding public interest within the meaning of the first subparagraph of Article 6(4) of the Habitats Directive, it should be noted that an interest capable of justifying proceeding with a plan or project must be both ‘public’ and ‘overriding’, which means that it must be of such an importance that it can be weighed against that directive’s objective of the conservation of natural habitats and wild fauna, including birds, and flora (judgment of 11 September 2012, Nomarchiaki Aftodioikisi Aitoloakarnanias and Others, C‑43/10, EU:C:2012:560, paragraph 121).
156


In that regard, it may be noted that Article 194(1)(b) TFEU identifies security of energy supply in the European Union as one of the fundamental objectives of EU policy in the field of energy (judgment of 7 September 2016, ANODE, C‑121/15, EU:C:2016:637, paragraph 48).
170


Nonetheless, under the principle of sincere cooperation laid down in Article 4(3) TEU, Member States are required to nullify the unlawful consequences of that infringement of EU law. The competent national authorities are therefore under an obligation to take all measures necessary, within the sphere of their competence, to remedy the failure to carry out an environmental impact assessment, for example by revoking or suspending consent already granted in order to carry out such an assessment (see, to that effect, judgment of 26 July 2017, Comune di Corridonia and Others, C‑196/16 and C‑197/16, EU:C:2017:589, paragraph 35 and the case-law cited).
171


That obligation is also incumbent on national courts before which an action against a national measure including such a consent has been brought. The detailed procedural rules applicable to such actions are a matter for the domestic legal order of each Member State, under the principle of procedural autonomy of the Member States, provided that they are not less favourable than those governing similar domestic situations (the principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the European Union legal order (the principle of effectiveness) (see, to that effect, judgment of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne, C‑41/11, EU:C:2012:103, paragraph 45 and the case-law cited).
172


Consequently, courts before which actions are brought in that regard must adopt, on the basis of their national law, measures to suspend or annul the project adopted in breach of the obligation to carry out an environmental assessment (see, to that effect, judgment of 28 February 2012, Inter-Environnement Wallonie and Terre Wallonne, C‑41/11, EU:C:2012:103, paragraph 46 and the case-law cited).
173


It is true that the Court has also held that EU law does not preclude national rules which, in certain cases, permit the regularisation of operations or measures which are unlawful in the light of EU law (judgment of 26 July 2017, Comune di Corridonia and Others, C‑196/16 and C‑197/16, EU:C:2017:589, paragraph 37 and the case-law cited).
174


However, such a possible regularisation would have to be subject to the condition that it does not offer the parties concerned the opportunity to circumvent the rules of EU law or to refrain from applying them, and should remain the exception (judgment of 26 July 2017, Comune di Corridonia and Others, C‑196/16 and C‑197/16, EU:C:2017:589, paragraph 38 and the case-law cited).
175


Consequently, in the event of failure to carry out an assessment of the environmental impact of a project required under the EIA Directive, although Member States are required to nullify the unlawful consequences of that failure, EU law does not preclude regularisation through the conducting of such an assessment while the project is under way or even after it has been completed, on the twofold condition, first, that national rules allowing for that regularisation do not provide the parties concerned with an opportunity to circumvent the rules of EU law or to refrain from applying them, and second, that an assessment carried out for regularisation purposes is not conducted solely in respect of the project’s future environmental impact, but must also take into account its environmental impact since the time of completion of that project (see, to that effect, judgments of 26 July 2017, Comune di Corridoniaand Others, C‑196/16 and C‑197/16, EU:C:2017:589, paragraph 43, and of 28 February 2018, Comune di Castelbellino, C‑117/17, EU:C:2018:129, paragraph 30).
177


It must be added that only the Court of Justice may, in exceptional cases, for overriding considerations of legal certainty, allow temporary suspension of the ousting effect of a rule of EU law with respect to national law that is contrary thereto. If national courts had the power to give provisions of national law primacy in relation to EU law contravened by those provisions, even temporarily, the uniform application of EU law would be undermined (see, to that effect, judgments of 8 September 2010, Winner Wetten, C‑409/06, EU:C:2010:503, paragraphs 66 and 67, and of 28 July 2016, Association France Nature Environnement, C‑379/15, EU:C:2016:603, paragraph 33).
178


However, the Court has also held, in paragraph 58 of its judgment of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne (C‑41/11, EU:C:2012:103), that a national court may, given the existence of an overriding consideration relating to the protection of the environment, as applied in the case giving rise to that judgment, and provided that the conditions specified in that judgment are met, exceptionally be authorised to make use of a provision of its national law empowering it to maintain certain effects of an annulled national measure. It is thus apparent from that judgment that the Court intended to afford, on a case‑by‑case basis and by way of exception, a national court the power to adjust the effects of annulment of a national provision held to be incompatible with EU law, with due regard to the conditions laid down by the Court’s case-law (see, to that effect, judgment of 28 July 2016, Association France Nature Environnement, C‑379/15, EU:C:2016:603, paragraph 34).
179


In this instance, in accordance with the case-law cited in paragraph 177 of the present judgment, it is for the Court of Justice alone to determine the circumstances in which it may be justifiable, by way of exception, to maintain the effects of measures such as those at issue in the main proceedings on account of overriding considerations relating to the security of the electricity supply of the Member State concerned. In that regard, such considerations could justify maintaining the effects of national measures adopted in breach of the obligations under the EIA Directive and the Habitats Directive only if, in the event that the effects of those measure were annulled or suspended, there was a genuine and serious threat of disruption to the electricity supply of the Member State concerned, which could not be remedied by any other means or alternatives, particularly in the context of the internal market.
181


In any event, the effects may only be maintained for as long as is strictly necessary to remedy the breach.