European Commission v Republic of Poland.
Date: 2018-04-17
64


It should be recalled that the purpose of the pre-litigation procedure is to give the Member State concerned the opportunity to comply with its obligations arising from EU law or to present its case effectively against the complaints put forward by the Commission. The proper conduct of that procedure constitutes an essential guarantee not only in order to protect the rights of the Member State concerned, but also so as to ensure that any contentious procedure will have a clearly defined dispute as its subject matter (judgment of 16 September 2015, Commission v Slovakia, C‑433/13, EU:C:2015:602, paragraph 39 and the case-law cited).
65


In accordance with the Court’s settled case-law, the subject matter of an action under Article 258 TFEU for failure to fulfil obligations is determined by the Commission’s reasoned opinion, so that the action must be based on the same grounds and pleas as that opinion (judgments of 8 July 2010, Commission v Portugal, C‑171/08, EU:C:2010:412, paragraph 25, and of 5 April 2017, Commission v Bulgaria, C‑488/15, EU:C:2017:267, paragraph 37).
66


However, that requirement cannot go so far as to mean that in every case the statement of complaints set out in the operative part of the reasoned opinion and the form of order sought in the application must be exactly the same, provided that the subject matter of the proceedings as defined in the reasoned opinion has not been extended or altered (see, inter alia, judgment of 9 November 2006, Commission v United Kingdom, C‑236/05, EU:C:2006:707, paragraph 11).
67


In particular, the subject matter of an action for failure to fulfil obligations may extend to events which took place after the reasoned opinion was delivered, provided that they are of the same kind as the events to which the opinion referred and constitute the same conduct (see, inter alia, judgments of 4 February 1988, Commission v Italy, 113/86, EU:C:1988:59, paragraph 11; of 9 November 2006, Commission v United Kingdom, C‑236/05, EU:C:2006:707, paragraph 12; and of 5 April 2017, Commission v Bulgaria, C‑488/15, EU:C:2017:267, paragraph 43).
106


Article 6 of the Habitats Directive imposes upon the Member States a series of specific obligations and procedures designed, as is clear from Article 2(2) of the directive, to maintain, or as the case may be restore, at a favourable conservation status natural habitats and species of wild fauna and flora of interest for the European Union, in order to attain the directive’s more general objective, which is to ensure a high level of environmental protection as regards the sites protected pursuant to it (see to that effect, inter alia, judgments of 11 April 2013, Sweetman and Others, C‑258/11, EU:C:2013:220, paragraph 36, and of 8 November 2016, Lesoochranárske zoskupenie VLK, C‑243/15, EU:C:2016:838, paragraph 43).
107


In that context, the Habitats Directive has the aim that the Member States take appropriate protective measures to preserve the ecological characteristics of sites which host natural habitat types (judgments of 11 April 2013, Sweetman and Others, C‑258/11, EU:C:2013:220, paragraph 38, and of 21 July 2016, Orleans and Others, C‑387/15 and C‑388/15, EU:C:2016:583, paragraph 36).
108


For that purpose, 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 (see, inter alia, judgments of 11 April 2013, Sweetman and Others, C‑258/11, EU:C:2013:220, paragraph 28, and of 21 July 2016, Orleans and Others, C‑387/15 and C‑388/15, EU:C:2016:583, paragraph 43).
109


It should be pointed out that, so far as concerns areas classified as SPAs, obligations arising under that provision replace, in accordance with Article 7 of the Habitats 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 (see to that effect, inter alia, judgment of 24 November 2016, Commission v Spain, C‑461/14, EU:C:2016:895, paragraphs 71 and 92 and the case-law cited).
111


The first stage, envisaged in the provision’s first sentence, requires the 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 (judgments of 11 April 2013, Sweetman and Others, C‑258/11, EU:C:2013:220, paragraph 29, and of 21 July 2016, Orleans and Others, C‑387/15 and C‑388/15, EU:C:2016:583, paragraph 44).
112


In particular, having regard to the precautionary principle, where a plan or project not directly connected with or necessary to the management of a site may 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, in particular, of the characteristics and specific environmental conditions of the site concerned by such a plan or project (see, inter alia, judgments of 11 April 2013, Sweetman and Others, C‑258/11, EU:C:2013:220, paragraph 30, and of 21 July 2016, Orleans and Others, C‑387/15 and C‑388/15, EU:C:2016:583, paragraph 45).
113


The appropriate assessment of the implications of the plan or project for the site concerned that must be carried out under the first sentence of Article 6(3) of the Habitats Directive requires 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 site must be identified in the light of the best scientific knowledge in the field (see, inter alia, judgments of 21 July 2016, Orleans and Others, C‑387/15 and C‑388/15, EU:C:2016:583, paragraph 51, and of 26 April 2017, Commission v Germany, C‑142/16, EU:C:2017:301, paragraph 57).
114


The assessment carried out under the first sentence of Article 6(3) of the Habitats Directive may not, therefore, 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 site concerned (see, inter alia, judgments of 11 April 2013, Sweetman and Others, C‑258/11, EU:C:2013:220, paragraph 44, and of 21 July 2016, Orleans and Others, C‑387/15 and C‑388/15, EU:C:2016:583, paragraph 50).
115


The second stage, which is envisaged in the second sentence of Article 6(3) of the Habitats Directive and occurs following the aforesaid 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 that directive (judgments of 11 April 2013, Sweetman and Others, C‑258/11, EU:C:2013:220, paragraph 31, and of 21 July 2016, Orleans and Others, C‑387/15 and C‑388/15, EU:C:2016:583, paragraph 46).
116


In order for the integrity of a site as a natural habitat 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 a favourable conservation status; this entails the lasting preservation of the constitutive characteristics of the site concerned 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 SCIs, in accordance with the directive (see, inter alia, judgments of 11 April 2013, Sweetman and Others, C‑258/11, EU:C:2013:220, paragraph 39, and of 21 July 2016, Orleans and Others, C‑387/15 and C‑388/15, EU:C:2016:583, paragraph 47).
117


Authorisation for a plan or project, as referred to in Article 6(3) of the Habitats Directive, may therefore be given only on condition that the competent authorities have become certain that the plan or project will not have lasting adverse effects on the integrity of the site concerned. That is the case where no reasonable scientific doubt remains as to the absence of such effects (see to that effect, inter alia, judgments of 11 April 2013, Sweetman and Others, C‑258/11, EU:C:2013:220, paragraph 40, and of 8 November 2016, Lesoochranárske zoskupenie VLK, C‑243/15, EU:C:2016:838, paragraph 42).
118


Article 6(3) of the Habitats Directive thus integrates the precautionary principle and makes it possible to prevent in an effective manner adverse effects on the integrity of protected sites as a result of the plans or projects envisaged. A less stringent authorisation criterion could not ensure as effectively the fulfilment of the objective of site protection intended under that provision (judgments of 11 April 2013, Sweetman and Others, C‑258/11, EU:C:2013:220, paragraph 41, and of 21 July 2016, Orleans and Others, C‑387/15 and C‑388/15, EU:C:2016:583, paragraph 53).
119


The competent national authorities cannot, therefore, authorise interventions where there is a risk of lasting harm to the ecological characteristics of sites which host natural habitat types of Community interest or priority natural habitat types. That would particularly be so where there is a risk that an intervention will bring about the disappearance or the partial and irreparable destruction of such a natural habitat type present on the site concerned (see to that effect, inter alia, judgments of 24 November 2011, Commission v Spain, C‑404/09, EU:C:2011:768, paragraph 163, and of 11 April 2013, Sweetman and Others, C‑258/11, EU:C:2013:220, paragraph 43).
120


In accordance with settled case-law, 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 site in question (see, inter alia, judgments of 26 October 2006, Commission v Portugal, C‑239/04, EU:C:2006:665, paragraph 24, and of 26 April 2017, Commission v Germany, C‑142/16, EU:C:2017:301, paragraph 42).
125


It is irrelevant, in this regard, that the volume of harvestable timber provided for in the 2016 appendix is lower than the volume authorised by the forest management plans relating to the periods 1992 to 2001 and 2002 to 2011. The existence of a plan or project not directly connected with or necessary to the management of a protected site depends essentially on the nature of the intervention at issue and not just on its extent.
137


However, an assessment cannot be regarded as ‘appropriate’, within the meaning of the first sentence of Article 6(3) of the Habitats Directive, where updated data concerning the protected habitats and species is lacking (see, to that effect, judgment of 11 September 2012, Nomarchiaki Aftodioikisi Aitoloakarnanias and Others, C‑43/10, EU:C:2012:560, paragraph 115).
148


However, an appropriate assessment of the implications of the plan or project for the site concerned must precede its approval (see, inter alia, judgment of 7 September 2004, Waddenvereniging and Vogelbeschermingsvereniging, C‑127/02, EU:C:2004:482, paragraph 53). It cannot therefore be concomitant with or subsequent to the approval (see, by analogy, judgments of 20 September 2007, Commission v Italy, C‑304/05, EU:C:2007:532, paragraph 72, and of 24 November 2011, Commission v Spain, C‑404/09, EU:C:2011:768, paragraph 104).
154


Whilst, as the Republic of Poland contends, the system of protection afforded by the Habitats and Birds Directives to sites forming part of the Natura 2000 network does not prohibit all human activity within those sites, it nevertheless makes authorisation of such activity conditional upon compliance with the obligations which those directives lay down (see, to that effect, judgment of 21 July 2011, Azienda Agro-Zootecnica Franchini and Eolica di Altamura, C‑2/10, EU:C:2011:502, paragraph 40).
158


In order to establish an infringement of the second sentence of Article 6(3) of the Habitats Directive, the Commission, in the light of the precautionary principle, which, as has been stated in paragraph 118 above, is integrated into that provision, does not have to prove a causal relationship between the active forest management operations at issue and the adverse effect on the integrity of those habitats and species, it being sufficient for it to establish the existence of a probability or risk that that those operations may give rise to such an effect (see, to that effect, judgment of 24 November 2011, Commission v Spain, C‑404/09, EU:C:2011:768, paragraph 142 and the case-law cited).
188


Finally, in the fifth place, in so far as the Republic of Poland, in justifying some of the active forest management operations at issue on grounds relating to public safety or to the need to exploit the forest’s resources for economic and/or social reasons, may seek to rely on Article 6(4) of the Habitats Directive, it should be borne in mind that, whilst the main aim of that directive is admittedly to promote the maintenance of biodiversity, taking account of economic, social, cultural and regional requirements, the maintenance of such biodiversity may in certain cases require, in compliance with that provision, the maintenance, or indeed the encouragement, of human activities (see, to that effect, judgment of 11 September 2012, Nomarchiaki Aftodioikisi Aitoloakarnanias and Others, C‑43/10, EU:C:2012:560, paragraph 137).
189


However, 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) (see, inter alia, judgment of 21 July 2016, Orleans and Others, C‑387/15 and C‑388/15, EU:C:2016:583, paragraph 60 and the case-law cited).
190


Indeed, under Article 6(4) of the Habitats Directive, if, in spite of a negative assessment carried out in accordance with the first sentence of Article 6(3) of that directive, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, and there are no alternative solutions, the Member State is to take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected (see, inter alia, judgment of 21 July 2016, Orleans and Others, C‑387/15 and C‑388/15, EU:C:2016:583, paragraph 62).
191


Accordingly, knowledge of the implications of a plan or project, in the light of the conservation objectives relating to the site in question, is a necessary prerequisite for the application of Article 6(4) of the Habitats Directive, since, in the absence thereof, no condition for the 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 (see, inter alia, judgments of 24 November 2011, Commission v Spain, C‑404/09, EU:C:2011:768, paragraph 109, and of 14 January 2016, Grüne Liga Sachsen and Others, C‑399/14, EU:C:2016:10, paragraph 57).
207


First of all, it should be recalled that, pursuant to Article 6(1) of the Habitats Directive, for every special area of conservation the Member States must establish the necessary conservation measures which correspond to the ecological requirements of the natural habitat types listed in Annex I to that directive and the species listed in Annex II present on the site concerned. Under Article 4(4) of the directive, every SCI must be designated by the Member State concerned as such an area.
208


In addition, it should be noted that Article 4 of the Birds Directive lays down a regime which is specifically targeted and reinforced both for the species listed in Annex I to that directive and for regularly occurring migratory species not listed in that annex, an approach justified by the fact that they are, respectively, the most endangered species and the species constituting a common heritage of the European Union. The Member States are therefore required to adopt the measures necessary for the conservation of those species (judgment of 13 December 2007, Commission v Ireland, C‑418/04, EU:C:2007:780, paragraph 46 and the case-law cited).
209


Those measures must be capable of ensuring, in particular, the survival and reproduction of the bird species listed in Annex I to the Birds Directive and the breeding, moulting and wintering of regularly occurring migratory species not listed in that annex. They cannot be limited to avoiding external anthropogenic impairment and disturbance but must also, depending on the situation that presents itself, include positive measures to preserve or improve the state of the site (judgment of 13 December 2007, Commission v Ireland, C‑418/04, EU:C:2007:780, paragraphs 153 and 154).
213


However, as the Commission rightly submits, and as the Republic of Poland indeed acknowledges, Article 6(1) of the Habitats Directive and Article 4(1) and (2) of the Birds Directive require, if those provisions are not to be rendered redundant, that the conservation measures necessary for maintaining a favourable conservation status of the protected habitats and species within the site concerned not only be adopted, but also, and above all, be actually implemented.
214


That interpretation is, moreover, borne out by Article 1(1)(l) of the Habitats Directive, which defines a special area of conservation as an SCI in which conservation measures are ‘applied’ and by the eighth recital of the directive, according to which it is appropriate, in each area designated, to ‘implement’ the necessary measures having regard to the conservation objectives pursued.
218


It follows that implementation of the active forest management operations at issue results in loss of a part of the Puszcza Białowieska Natura 2000 site. Such operations cannot constitute measures ensuring the conservation of that site, for the purposes of Article 6(1) of the Habitats Directive (see, by analogy, judgment of 21 July 2016, Orleans and Others, C‑387/15 and C‑388/15, EU:C:2016:583, paragraph 38).
230


Article 12(1)(a) and (d) of the Habitats Directive requires the Member States to take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) to that directive in their natural range, prohibiting all forms of deliberate capture or killing of specimens of these species in the wild and deterioration or destruction of breeding sites or resting places.
231


In order to comply with that provision, the Member States must not only adopt a comprehensive legislative framework but also implement concrete and specific protection measures. Similarly, the system of strict protection presupposes the adoption of coherent and coordinated measures of a preventive nature. Such a system of strict protection must therefore enable the actual avoidance of deliberate capture or killing in the wild, and of deterioration or destruction of breeding sites or resting places, of the animal species listed in Annex IV(a) to the Habitats Directive (see, to that effect, judgment of 9 June 2011, Commission v France, C‑383/09, EU:C:2011:369, paragraphs 19 to 21).
252


Article 5 of the Birds Directive thus requires the Member States to adopt a complete and effective legislative framework (judgments of 12 July 2007, Commission v Austria, C‑507/04, EU:C:2007:427, paragraphs 103 and 339, and of 26 January 2012, Commission v Poland, C‑192/11, not published, EU:C:2012:44, paragraph 25), by the implementation, in the same manner as provided for by Article 12 of the Habitats Directive, of concrete and specific protection measures that must enable it to be ensured that the abovementioned prohibitions, intended in essence to protect the breeding sites and resting places of the birds covered by that directive, are actually complied with. In addition, those prohibitions must apply without any limitation in time (judgment of 27 April 1988, Commission v France, 252/85, EU:C:1988:202, paragraph 9).
262


In the second place, inasmuch as the Republic of Poland contends that the bird populations at issue have remained stable, or even that they have increased, it should be pointed out that the Court has already held that such a circumstance cannot call into question the existence of an infringement of Article 4(4) of the Birds Directive, which requires the Member States to take the necessary steps to avoid deterioration of habitats or any disturbances affecting the birds, as the obligations to protect exist even before any reduction in the number of birds has been observed or before the risk of a protected species becoming extinct has materialised (judgments of 14 January 2016, Commission v Bulgaria, C‑141/14, EU:C:2016:8, paragraph 76, and of 24 November 2016, Commission v Spain, C‑461/14, EU:C:2016:895, paragraph 83).