Edel Grace and Peter Sweetman v An Bord Pleanala.
Date: 2018-07-25
25


Next, as regards the terms in which the question referred is couched, it should be added that Article 6 of the Habitats Directive does not contain any reference to ‘mitigating measures’ (judgments of 21 July 2016, Orleans and Others, C‑387/15 and C‑388/15, EU:C:2016:583, paragraph 57, and of 12 April 2018, People Over Wind and Sweetman, C‑323/17, EU:C:2018:244, paragraph 25).
26


In this connection, the Court has previously observed that the effectiveness of the protective measures provided for in Article 6 of the Habitats Directive is intended to avoid a situation where competent national authorities allow so-called ‘mitigating’ measures’ — which are in reality compensatory measures — in order to circumvent the specific procedures laid down in Article 6(3) of the directive and authorise projects which adversely affect the integrity of the site concerned (judgment of 21 July 2016, Orleans and Others, C‑387/15 and C‑388/15, EU:C:2016:583, paragraph 58 and the case-law cited).
27


Lastly, with regard to areas classified as SPAs, obligations arising under Article 6(3) of the Habitats Directive replace, in accordance with Article 7 thereof, 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 (judgment of 17 April 2018, Commission v Poland (Białowieża Forest), C‑441/17, EU:C:2018:255, paragraph 109 and the case-law cited).
29


Article 6 of the Habitats Directive imposes a set of specific obligations and procedures on Member States designed, as is apparent from Article 2(2) of the directive, to maintain or restore, as the case may be, at favourable conservation status, natural habitats and species of wild fauna and flora of European Union interest, with a view to attaining the directive’s more general objective, which is to ensure a high level of environmental protection as regards the sites protected pursuant to the directive (see, to that effect, judgments of 8 November 2016, Lesoochranárske zoskupenie VLK, C‑243/15, EU:C:2016:838, paragraph 43, and of 17 April 2018, Commission v Poland (Białowieża Forest), C‑441/17, EU:C:2018:255, paragraph 106).
30


In that regard, the provisions of Article 6 of the Habitats Directive constitute a coherent whole in the light of the conservation objectives laid down by the directive. Indeed, Article 6(2) and (3) is designed to ensure the same level of protection for natural habitats and habitats of species, whilst Article 6(4) merely derogates from the second sentence of Article 6(3) (judgment of 12 April 2018, People Over Wind and Sweetman, C‑323/17, EU:C:2018:244, paragraph 24 and the case-law cited).
31


The 10th recital of the Habitats Directive states that an appropriate assessment must be made of any plan or programme likely to have a significant effect on the conservation objectives of a site which has been designated or is designated in future. That recital finds expression in Article 6(3) of the directive, which provides, inter alia, that a plan or project likely to have a significant effect on the site concerned cannot be authorised without a prior assessment of its implications for that site (judgment of 12 April 2018, People Over Wind and Sweetman, C‑323/17, EU:C:2018:244, paragraph 28 and the case-law cited).
32


Article 6(3) of the Habitats Directive refers to two stages. The first, envisaged in the 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 that site. The second stage, which is envisaged in the second sentence of Article 6(3) and occurs 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 12 April 2018, People Over Wind and Sweetman, C‑323/17, EU:C:2018:244, paragraph 29 and the case-law cited).
34


In the first place, it should be noted that, in order for the integrity of a site not to be adversely affected for the purposes of the second sentence of Article 6(3) of the Habitats Directive, the site needs to be preserved at favourable conservation status; this entails the lasting preservation of the site’s constitutive characteristics that are connected to the presence of a natural habitat type whose preservation was the objective justifying the designation of that site in the list of sites of Community importance, in accordance with the directive (see, to that effect, judgments of 21 July 2016, Orleans and Others, C‑387/15 and C‑388/15, EU:C:2016:583, paragraph 47 and the case-law cited, and of 17 April 2018, Commission v Poland (Białowieża Forest), C‑441/17, EU:C:2018:255, paragraph 116).
38


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 area 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 the area (see, to that effect, judgment of 17 April 2018, Commission v Poland (Białowieża Forest), C‑441/17, EU:C:2018:255, paragraph 108 and the case-law cited).
39


The assessment carried out under that provision may not have lacunae and must contain complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the proposed works on the protected area concerned (see, to that effect, judgment of 12 April 2018, People Over Wind and Sweetman, C‑323/17, EU:C:2018:244, paragraph 38 and the case-law cited).
40


The fact that the appropriate assessment of the implications of a plan or project for the area concerned must be carried out under that provision means 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 that area must be identified in the light of the best scientific knowledge available in the field (see, to that effect, judgment of 17 April 2018, Commission v Poland (Białowieża Forest), C‑441/17, EU:C:2018:255, paragraph 113 and the case-law cited).
41


It is at the date of adoption of the decision authorising implementation of the project that there must be no reasonable scientific doubt remaining as to the absence of adverse effects on the integrity of the area in question (see, to that effect, judgment of 17 April 2018, Commission v Poland (Białowieża Forest), C‑441/17, EU:C:2018:255, paragraph 120 and the case-law cited).
43


The Court has previously ruled, in that regard, that where a plan or project not directly connected with or necessary to the management of an area may undermine the area’s conservation objectives, it must be considered likely to have a significant effect on that area. The assessment of that risk must be made in the light, inter alia, of the characteristics and specific environmental conditions of the area concerned by such a plan or project (see, to that effect, judgments of 15 May 2014, Briels and Others, C‑521/12, EU:C:2014:330, paragraph 20 and the case-law cited, and of 21 July 2016, Orleans and Others, C‑387/15 et C‑388/15, EU:C:2016:583, paragraph 45).
47


In that regard, as the Advocate General observed in point 58 of his Opinion, it follows from Article 6(3) and (4) of the Habitats Directive and the Court’s related case-law that there is a distinction to be drawn between protective measures forming part of a project and intended avoid or reduce any direct adverse effects that may be caused by the project in order to ensure that the project does not adversely affect the integrity of the area, which are covered by Article 6(3), and measures which, in accordance with Article 6(4), are aimed at compensating for the negative effects of the project on a protected area and cannot be taken into account in the assessment of the implications of the project (see, to that effect, judgments of 15 May 2014, Briels and Others, C‑521/12, EU:C:2014:330, paragraphs 28 and 29; of 21 July 2016, Orleans and Others, C‑387/15 and C‑388/15, EU:C:2016:583, paragraph 48; and of 26 April 2017, Commission v Germany, C‑142/16, EU:C:2017:301, paragraphs 34 and 71).
50


In that regard, the Court has previously ruled that the measures provided for in a project which are aimed at compensating for the negative effects of the project cannot be taken into account in the assessment of the implications of the project provided for in Article 6(3) of the Habitats Directive (judgments of 15 May 2014, Briels and Others, C‑521/12, EU:C:2014:330, paragraph 29, and of 21 July 2016, Orleans and Others, C‑387/15 and C‑388/15, EU:C:2016:583, paragraph 48).
51


It is only when it is sufficiently certain that a measure will make an effective contribution to avoiding harm, guaranteeing beyond all reasonable doubt that the project will not adversely affect the integrity of the area, that such a measure may be taken into consideration when the appropriate assessment is carried out (see, to that effect, judgment of 26 April 2017, Commission v Germany, C‑142/16, EU:C:2017:301, paragraph 38).
52


As a general rule, any positive effects of the future creation of a new habitat, which is aimed at compensating for the loss of area and quality of that habitat type in a protected area, are highly difficult to forecast with any degree of certainty or will be visible only in the future (see, to that effect, judgment of 21 July 2016, Orleans and Others, C‑387/15 and C‑388/15, EU:C:2016:583, paragraphs 52 and 56 and the case-law cited).
53


It is not the fact that the habitat concerned in the main proceedings is in constant flux and that that area requires ‘dynamic’ management that is the cause of uncertainty. In fact, such uncertainty is the result of the identification of adverse effects, certain or potential, on the integrity of the area concerned as a habitat and foraging area and, therefore, on one of the constitutive characteristics of that area, and of the inclusion in the assessment of the implications of future benefits to be derived from the adoption of measures which, at the time that assessment is made, are only potential, as the measures have not yet been implemented. Accordingly, and subject to verifications to be carried out by the referring court, it was not possible for those benefits to be foreseen with the requisite degree of certainty when the authorities approved the contested development.
54


The foregoing considerations are confirmed by the fact that Article 6(3) of the Habitats Directive integrates the precautionary principle and makes it possible to prevent in an effective manner adverse effects on the integrity of protected areas as a result of the plans or projects being considered (see, to that effect, judgment of 15 May 2014, Briels and Others, C‑521/12, EU:C:2014:330, paragraph 26 and the case-law cited).
56


Therefore, in such a situation, the competent national authorities may grant an authorisation under Article 6(4) of the Habitats Directive only in so far as the conditions set out therein are satisfied (judgment of 21 July 2016, Orleans and Others, C‑387/15 and C‑388/15, EU:C:2016:583, paragraph 63 and the case-law cited).