Lesoochranárske zoskupenie VLK v Obvodný úrad Trenčín.
Date: 2016-11-08
42


It should be noted first of all that, under Article 6(3) of Directive 92/43, an appropriate assessment of the implications of a plan or project for the site concerned implies that, prior to its approval, all aspects of that plan or project which can, by themselves or in conjunction 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 are to authorise an activity on the protected site 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 an effect (see to that effect, in particular, judgments of 24 November 2011, Commission v Spain, C‑404/09, EU:C:2011:768, paragraph 99, and of 14 January 2016, Grüne Liga Sachsen and Others, C‑399/14, EU:C:2016:10, paragraphs 49 and 50).
43


Article 6(3) of Directive 92/43 thus plays a part in attainment of the objective pursued by measures taken pursuant to that directive — which, as set out in Article 2(2) thereof, consists in maintaining or restoring, at favourable conservation status, natural habitats and species of wild fauna and flora of interest for the European Union — and of 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.
44


It would be incompatible with the binding effect attributed to a directive by Article 288 TFEU to exclude, in principle, the possibility that the obligations which it imposes may be relied on by those concerned. The effectiveness of Directive 92/43 and its aim, which is recalled in the previous paragraph of the present judgment, require that individuals be able to rely on it in legal proceedings, and that the national courts be able to take that directive into consideration as an element of EU law in order, inter alia, to review whether a national authority which has granted an authorisation relating to a plan or project has complied with its obligations under Article 6(3) of the directive, recalled in paragraph 42 of the present judgment, and has thus kept within the limits of the discretion granted to the competent national authorities by that provision (see, to that effect, judgment of 7 September 2004, Waddenvereniging and Vogelbeschermingsvereniging, C‑127/02, EU:C:2004:482, paragraphs 66 and 69).
45


In addition, Article 6(3) of Directive 92/43 provides that the competent national authorities, before agreeing to a plan or project as referred to in that provision, must, if appropriate, obtain the opinion of the general public. That provision must be read in conjunction with Article 6(1)(b) of the Aarhus Convention, an instrument which forms an integral part of the EU legal order.
49


It follows that an environmental organisation which, like LZ, meets the conditions specified in Article 2(5) of the Aarhus Convention derives from Article 6(3) of Directive 92/43, read in conjunction with Article 6(1)(b) of that convention, a right to participate, within the meaning specified in paragraph 46 of the present judgment, in a procedure for the adoption of a decision relating to an application for authorisation of a plan or project likely to have a significant effect on the environment in so far as, within the framework of that procedure, one of the decisions envisaged in Article 6(3) of the directive is to be adopted.
50


Next, it should be recalled that, according to settled case-law, under the principle of sincere cooperation laid down in Article 4(3) TEU it is for the courts of the Member States to ensure judicial protection of a person’s rights under EU law. In addition, Article 19(1) TEU requires Member States to provide remedies sufficient to ensure effective legal protection in the fields covered by EU law (judgment of 19 November 2014, ClientEarth, C‑404/13, EU:C:2014:2382, paragraph 52). In the case of administrative decisions adopted within the framework of Article 6(3) of Directive 92/43, that obligation also stems from Article 47 of the Charter.
51


The scope of Article 47 of the Charter, in so far as the action of the Member States is concerned, is defined in Article 51(1) thereof, according to which the provisions of the Charter are addressed to the Member States when they are implementing EU law. That provision confirms the Court’s settled case-law, which states that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law, but not outside such situations (see, in particular, judgment of 30 June 2016, Toma and Biroul Executorului Judecătoresc Horațiu-Vasile Cruduleci, C‑205/15, EU:C:2016:499, paragraph 23 and the case-law cited).
52


Where a Member State lays down rules of procedural law applicable to actions concerning exercise of the rights which an environmental organisation derives from Article 6(3) of Directive 92/43, read in conjunction with Article 6(1)(b) of the Aarhus Convention, in order for decisions of the competent national authorities to be reviewed in the light of their obligations under those provisions, that Member State is implementing obligations stemming from those provisions and must therefore be regarded as implementing EU law, for the purposes of Article 51(1) of the Charter.
56


Decisions adopted by the competent national authorities within the framework of Article 6(3) of Directive 92/43, whether they concern a request to participate in the authorisation procedure, the assessment of the need for an environmental assessment of the implications of a plan or project for a protected site, or the appropriateness of the conclusions drawn from such an assessment as regards the risks of that plan or project for the integrity of the site, and whether they are autonomous or integrated in a decision granting authorisation, are decisions which fall within the scope of Article 9(2) of the Aarhus Convention.
57


As the Advocate General has noted, in essence, in point 80 of her Opinion, decisions adopted by the national authorities which fall within the scope of Article 6(3) of Directive 92/43 and do not relate to an activity listed in Annex I to the Aarhus Convention are envisaged in Article 6(1)(b) of that convention and therefore fall within the scope of Article 9(2) thereof in so far as they involve assessment by the competent authorities, before any authorisation of an activity, as to whether that activity, in the circumstances of the case, is likely to have a significant effect on the environment.
58


It is apparent from Article 9(2) of the Aarhus Convention that that provision limits the discretion available to the Member States when determining the detailed rules for the legal actions which it envisages inasmuch as that provision has the objective of granting ‘wide access to justice’ to the public concerned, which includes environmental organisations meeting the conditions laid down in Article 2(5) of the convention (see, by analogy, in respect of Article 10a of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40) as amended by Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 (OJ 2003 L 156, p. 17) (‘Directive 85/337’), which reproduces Article 9(2) of the Aarhus Convention in almost identical terms, judgment of 16 April 2015, Gruber, C‑570/13, EU:C:2015:231, paragraph 39).
59


Consequently, those organisations must necessarily be able to rely in legal proceedings on the rules of national law implementing EU environmental law and the rules of EU environmental law having direct effect (see, by analogy, in respect of Article 10a of Directive 85/337, judgment of 15 October 2015, Commission v Germany, C‑137/14, EU:C:2015:683, paragraph 92).
60


The rights on which such a non-governmental organisation must be able to rely in an action covered by Article 9(2) of the Aarhus Convention include the rules of national law flowing from Article 6 of Directive 92/43 (see by analogy, in respect of Article 10a of Directive 85/337, judgment of 12 May 2011, Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen, C‑115/09, EU:C:2011:289, paragraphs 49 and 58).
61


Thus, such an organisation must be able to challenge, in such an action, not only a decision not to carry out an appropriate assessment of the implications for the site of the plan or project in question but also, as the case may be, the assessment carried out inasmuch as it is alleged to be vitiated by defects (see by analogy, in respect of Article 10a of Directive 85/337, judgment of 7 November 2013, Gemeinde Altrip and Others, C‑72/12, EU:C:2013:712, paragraph 37).
64


Although that examination is, admittedly, in principle a matter for the referring court alone, the fact remains that the Court of Justice has jurisdiction to deduce from the provisions of EU law the criteria that the referring court may or must apply within the framework of EU law. Nor is there anything preventing a national court from asking the Court of Justice to rule on the application of those provisions in the case in point, provided, however, that the national court carries out the finding and assessment of the facts necessary for that purpose in the light of all the material in the file before it (see, to that effect, judgment of 3 December 2015, Banif Plus Bank, C‑312/14, EU:C:2015:794, paragraphs 51 and 52).
65


That having been said, it should be pointed out that, in the absence of EU rules governing the matter, it is for the domestic legal system of each Member State to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law, the Member States being responsible for ensuring that those rights are effectively protected in each case and, in particular, for ensuring compliance with the right to an effective remedy and to a fair hearing enshrined in Article 47 of the Charter (see, to that effect, judgments of 8 March 2011, Lesoochranárske zoskupenie, C‑240/09, EU:C:2011:125, paragraph 47, and of 15 September 2016, Star Storage and Others, C‑439/14 and C‑488/14, EU:C:2016:688, paragraph 46).
66


Article 6(3) of Directive 92/43 establishes a procedure, involving prior examination, that is founded on a stringent authorisation criterion which, incorporating the precautionary principle, makes it possible to prevent in an effective manner adverse effects on the integrity of protected sites due to the plans or projects envisaged, since that criterion obliges the competent national authorities to refuse authorisation for a plan or project where doubts remain as to the absence of adverse effects of those plans or projects on the integrity of such sites (see to that effect, in particular, judgments of 7 September 2004, Waddenvereniging and Vogelbeschermingsvereniging, C‑127/02, EU:C:2004:482, paragraphs 57 and 58, and of 14 January 2016, Grüne Liga Sachsen and Others, C‑399/14, EU:C:2016:10, paragraph 48).