People Over Wind and Peter Sweetman v Coillte Teoranta.
Date: 2018-04-12
23


First of all, it should be noted that 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, in particular, special areas of conservation (judgments of 11 April 2013, Sweetman and Others, C‑258/11, EU:C:2013:220, paragraph 36 and the case-law cited, and of 21 July 2016, Orleans and Others, C‑387/15 and C‑388/15, EU:C:2016:583, paragraph 31).
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According to the Court’s case-law, the provisions of Article 6 of the Habitats Directive must be construed as a coherent whole in the light of the conservation objectives pursued by the directive. Indeed, Article 6(2) and Article 6(3) are designed to ensure the same level of protection of natural habitats and habitats of species, whilst Article 6(4) merely derogates from the second sentence of Article 6(3) (see, to that effect, judgment of 14 January 2016, Grüne Liga Sachsen and Others, C‑399/14, EU:C:2016:10, paragraph 52 and the case-law cited).
25


Thus, Article 6 of the Habitats Directive divides measures into three categories, namely conservation measures, preventive measures and compensatory measures, provided for in Article 6(1), (2) and (4) respectively. It is clear from the wording of Article 6 of the Habitats Directive that that provision contains no reference to any concept of ‘mitigating measure’ (see, to that effect, judgment of 21 July 2016, Orleans and Others, C‑387/15 and C‑388/15, EU:C:2016:583, paragraphs 57 and 58 and the case-law cited).
28


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 7 September 2004, Waddenvereniging and Vogelbeschermingsvereniging, C‑127/02, EU:C:2004:482, paragraph 22).
29


As the Court has pointed out, Article 6(3) of the Habitats Directive refers to two stages. The first, 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. The second stage, which is envisaged in the second sentence of Article 6(3) 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 the directive (judgment of 21 July 2016, Orleans and Others, C‑387/15 and C‑388/15, EU:C:2016:583, paragraphs 44 and 46 and the case-law cited).
30


It should be added that Article 6(3) of the Habitats Directive also integrates the precautionary principle and makes it possible to prevent in an effective manner adverse effects on the integrity of protected sites, resulting from the plans or projects envisaged. A less stringent authorisation criterion than that set out in that provision could not ensure as effectively the fulfilment of the objective of site protection intended under that provision (judgment of 26 April 2017, Commission v Germany, C‑142/16, EU:C:2017:301, paragraph 40 and the case-law cited).
34


As regards the second condition, it is settled case-law that Article 6(3) of the Habitats Directive makes the requirement for an appropriate assessment of the implications of a plan or project conditional on there being a probability or a risk that the plan or project in question will have a significant effect on the site concerned. In the light, in particular, of the precautionary principle, such a risk exists if it cannot be excluded on the basis of objective information that the plan or project will have a significant effect on the site concerned (judgment of 26 May 2011, Commission v Belgium, C‑538/09, EU:C:2011:349, paragraph 39 and the case-law cited). 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 (see, to that effect, judgment of 21 July 2016, Orleans and Others, C‑387/15 and C‑388/15, EU:C:2016:583, paragraph 45 and the case-law cited).
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In that regard, the Court’s case-law emphasises the fact that the assessment carried out under Article 6(3) of the Habitats Directive 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 site concerned (judgment of 21 July 2016, Orleans and Others, C‑387/15 and C‑388/15, EU:C:2016:583, paragraph 50 and the case-law cited).
39


It is, moreover, from Article 6(3) of the Habitats Directive that persons such as the applicants in the main proceedings derive in particular a right to participate 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 (see, to that effect, judgment of 8 November 2016, Lesoochranárske zoskupenie VLK, C‑243/15, EU:C:2016:838, paragraph 49).