Nomarchiaki Aftodioikisi Aitoloakarnanias and Others v Ipourgos Perivallontos, Chorotaxias kai Dimosion ergon and Others.
Date: 2012-09-11
46. The Court has indeed already ruled that, by excluding from national legislation in force in September 2004 the definitions of the terms in Article 2 of Directive 2000/60 and the timescales within which the standards of water quality are to be met, as set out in Articles 4 to 6 and 8 of that directive, the obligations under Article 2, read in conjunction with those latter provisions, were not implemented with the binding force required (see, to that effect, Case C-32/05 Commission  v Luxembourg [2006] ECR I-11323, paragraphs 16, 17 and 65).
51. As regards whether the Member State concerned was already bound to comply with the environmental objectives stated in Article 4(1) of Directive 2000/60 at the time when that project was adopted, it must be observed that Article 4(1) provides that, in respect of surface waters and groundwater, Member States are to adopt appropriate measures of conservation in making operational the programmes of measures specified in river basin management plans.
52. Article 4(1) of Directive 2000/60 thereby establishes a link between the appropriate measures of conservation which the Member States are bound to adopt under that provision and the prior existence of a management plan for the river basin district concerned.
53. Consequently, Directive 2000/60 does not prohibit a priori the transfer of water from one river basin to another or from one river basin district to another before the publication of management plans for the river basin districts concerned, that publication being however required, in accordance with Article 13(6) of that directive, by no later than 22 December 2009.
54. It is common ground that, at the time when the project at issue in the main proceedings was adopted, the river basin management plans for the river basins affected by that project did not exist (see judgment of 19 April 2012 in Case C-297/11 Commission  v Greece , paragraph 17).
55. Thus, on the date when the project at issue in the main proceedings was adopted, the Hellenic Republic was not obliged to have produced the management plans for the river basin districts affected by that project. Even though the time-limit for the transposition of Directive 2000/60, as fixed in the first subparagraph of Article 24(1) thereof, had expired, the time-limit laid down in Article 13(6) of the directive for the publication of river basin management plans had not yet been reached.
56. Consequently, the project at issue in the main proceedings, as adopted by the Greek legislature on 2 August 2006, without prior production of river basin management plans for the river basins affected by that project, was not subject to Article 4 of Directive 2000/60.
57. However, it must be recalled that, in accordance with the Court’s settled case-law, during the period prescribed for transposition of a directive, the Member States to which it is addressed must refrain from taking any measures liable seriously to compromise the attainment of the result prescribed by that directive. Such an obligation to refrain owed by all the national authorities must be understood as referring to the adoption of any measure, general or specific, liable to produce such a compromising effect (see Case C-129/96 Inter-Environment Wallonie  [1997] ECR I-7411, paragraph 45, and Joined Cases C-165/09 to C-167/09 Stichting Natuur en Milieu and Others [2011] ECR I-4599, paragraph 78 and the case-law cited).
58. That obligation to refrain from taking measures is also owed by the Member States, by virtue of the application of the second paragraph of Article 10 EC in conjunction with the third paragraph of Article 249 EC, during a transitional period in which they are authorised to continue to apply their national systems, even though those systems do not comply with the directive in question (see, to that effect, Stichting Natuur en Milieu and Others , paragraph 79 and the case-law cited).
60. Accordingly, even before 22 December 2009, the date on which the period imposed on the Member States, under Article 13(6) of Directive 2000/60, for the publication of river basin management plans expired, the Member States had to refrain from taking any measures liable seriously to compromise the attainment of the result prescribed by Article 4 of that directive.
67. Consequently, consent was capable of being given to a project such as that at issue in the main proceedings, which is not subject to Article 4 of Directive 2000/60 and which would have been liable to have adverse effects on water of the kind stated in Article 4(7), at the very least if:
– all practicable steps were taken to mitigate the adverse impact of the project on the status of the body of water;
– the reasons why that project had to be carried out were specifically set out and explained;
– that project served a general interest which might consist in, inter alia, the supply of water, electricity production or irrigation, and/or the benefits to the environment and society linked to the achievement of the objectives set out in Article 4(1) were outweighed by the benefits to human health, to the maintenance of human safety or to sustainable development resulting from that project, and
– lastly, the beneficial objectives pursued by that project could not for reasons of technical feasibility or disproportionate cost be achieved by other means which would have been a significantly better environmental option.
69. In the light of the foregoing, the answer to the second, third and fourth questions is that Directive 2000/60 must be interpreted as meaning that:
– it does not preclude, in principle, a provision of national law whereby consent is given, prior to 22 December 2009, to a transfer of water from one river basin to another or from one river basin district to another where the management plans for the river basin districts concerned were not yet adopted by the competent national authorities;
– such a transfer must not be such as seriously to jeopardise the realisation of the objectives laid down by that directive;
– however, to the extent that that transfer is liable to have adverse effects on water of the kind stated in Article 4(7) of that directive, consent may be given to it, at the very least if the conditions set out in Article 4(7)(a) to (d) are satisfied, and
– the fact that it is impossible for the receiving river basin or river basin district to meet from its own water resources its needs in terms of drinking water, electricity production or irrigation is not a sine qua non for such a transfer of water to be compatible with that directive provided that the conditions listed above are satisfied.
The fifth question
78. It follows from that provision that, where the objectives of Directive 85/337, including that of supplying information, are achieved through a legislative process, that directive does not apply to the project in question (see Case C-287/98 Linster  [2000] ECR I-6917, paragraph 51; Joined Cases C-128/09 to C-131/09, C-134/09 and C-135/09 Boxus and Others [2011] ECR I-9711, paragraph 36; and Case C-182/10 Solvay and Others [2012] ECR, paragraph 30).
79. That provision lays down two conditions for the exclusion of a project from the scope of Directive 85/337. The first requires the details of the project to be adopted by a specific legislative act. Under the second, the objectives of the directive, including that of supplying information, must be achieved through the legislative process (see Case C-435/97 WWF and Others  [1999] ECR I-5613, paragraph 57; Boxus and Others , paragraph 37; and Solvay and Others , paragraph 31).
80. The first condition entails, first of all, adoption of the project by a specific legislative act. It should be pointed out in this regard that the terms ‘project’ and ‘development consent’ are defined in Article 1(2) of Directive 85/337. Thus, a legislative act adopting a project must, if it is to come within the scope of Article 1(5) of the directive, be specific and display the same characteristics as a development consent of that kind. It must in particular grant the developer the right to carry out the project (see WWF and Others , paragraph 58; Boxus and Others , paragraph 38; and Solvay and Others , paragraph 32).
81. The project must also 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 (see WWF and Others , paragraph 59; Boxus and Others , paragraph 39; and Solvay and Others , paragraph 33). The legislative act must therefore demonstrate that the objectives of Directive 85/337 have been achieved as regards the project in question (see Linster , paragraph 56; Boxus and Others , paragraph 39; and Solvay and Others , paragraph 33).
82. It follows that the details of a project cannot be considered to be adopted by a legislative act, for the purposes of Article 1(5) of Directive 85/337, 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 WWF and Others , paragraph 62; Linster , paragraph 57; Boxus and Others , paragraph 40; and Solvay and Others , paragraph 34).
83. As regards the second condition, it is clear from Article 2(1) of Directive 85/337 that the fundamental 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 made subject to an assessment with regard to their environmental effects before consent is given (see Linster , paragraph 52; Boxus and Others , paragraph 41; and Solvay and Others , paragraph 35).
84. In addition, the sixth recital in the preamble to Directive 85/337 states that the assessment must be conducted on the basis of the appropriate information supplied by the developer, which may be supplemented by the authorities and by the people who may be concerned by the project in question (see WWF and Others , paragraph 61; Linster , paragraph 53; Boxus and Others , paragraph 42; and Solvay and Others , paragraph 36).
85. Consequently, the national legislature must have sufficient information at its disposal at the time when the project is adopted. In accordance with Article 5(3) of Directive 85/337 and Annex IV thereto, 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, and the data required to identify and assess the main effects which the project is likely to have on the environment (see Boxus and Others , paragraph 43, and Solvay and Others , paragraph 37).
86. There is however nothing to prevent the national legislature, when adopting a project, from using information gathered as part of an earlier administrative procedure and the EIA produced in that connection, provided that the EIA is based on information and knowledge that are not out of date. The EIA, which must be carried out before the decision-making process, involves an examination of the substance of the information gathered as well as a consideration of the expediency of supplementing it, if appropriate, with additional data (see Case C-50/09 Commission  v Ireland [2011] ECR I-873, paragraph 40).
88. However, a legislative act which does no more than simply ‘ratify’ a pre-existing administrative act, by merely referring to overriding reasons in the public interest, without the prior initiation of a substantive legislative process enabling the conditions stated in paragraph 79 of this judgment to be fulfilled, cannot be regarded as a specific legislative act within the meaning of Article 1(5) of Directive 85/337 and is not therefore sufficient to exclude a project from the scope of that directive (see Boxus and Others , paragraph 45, and Solvay and Others , paragraph 39).
89. In particular, a legislative act adopted without the members of the legislative body having had available to them the information mentioned in paragraph 85 of this judgment cannot fall within the scope of Article 1(5) of Directive 85/337 (see Boxus and Others , paragraph 46, and Solvay and Others , paragraph 40).
90. It is for the national court to determine whether those conditions have been satisfied. For that purpose, it must take account of both the content of the legislative act adopted and the entire legislative process which led to its adoption, in particular the preparatory documents and parliamentary debates (see Boxus and Others , paragraph 47, and Solvay and Others , paragraph 41).
95. It is not evident that the project concerned constitutes a measure which defines criteria and detailed rules for the development of land and which subjects implementation of one or more projects to rules and procedures for scrutiny (see, to that effect, Case C-567/10 Inter-Environment Bruxelles and Others [2012] ECR, paragraph 30).
101. Under Article 4(5) of Directive 92/43, the protective measures prescribed in Article 6(2) to (4) of that directive are required only as regards sites which, in accordance with the third subparagraph of Article 4(2) thereof, are on the list of sites selected as SCIs which has been adopted by the Commission in accordance with the procedure laid down in Article 21 of that directive (see Case C-117/03 Dragaggi and Others [2005] ECR I-167, paragraph 25).
104. That said, it must, in any event, be recalled that, even before the entry into force of Decision 2006/613, the Member States are to protect sites as soon as they propose them, under Article 4(1) of Directive 94/43, as sites eligible for identification as SCIs on the national list transmitted to the Commission (see, to that effect, Dragaggi and Others , paragraph 26). The Member States are required, under that directive, to take protective measures that are appropriate, having regard to the directive’s conservation objective, for the purpose of safeguarding the relevant ecological interest which those sites have at national level (see Dragaggi and Others , paragraph 30) and cannot therefore consent to interventions which may create the risk of seriously compromising the ecological characteristics of those sites, for example interventions which create the risk of significantly reducing the surface area of a site, of leading to the disappearance of priority species present on that site, or, finally, of having as an outcome the destruction of the site or the eradication of its representative characteristics (see Case C-244/05 Bund Naturschutz in Bayern and Others [2006] ECR I-8445, paragraph 46, and Case C-340/10 Commission  v Cyprus [2012] ECR, paragraph 44).
107. According to the Court’s settled case-law, under Article 4(1) and (2) of Directive 79/409 the Member States are required to classify as SPAs the territories meeting the ornithological criteria specified by those provisions (see, inter alia, Case C-418/04 Commission  v Ireland [2007] ECR I-10947, paragraph 36).
108. It follows from Article 7 of Directive 92/43 that Article 6(2) to (4) of that directive replaces the first sentence of Article 4(4) of Directive 79/409 as from the date of implementation of Directive 92/43 or the date of classification by a Member State under Directive 79/409, where the latter date is later (see, in particular, Case C-418/04 Commission  v Ireland , paragraph 173, and Case C-404/09 Commission  v Spain [2011] ECR I-11853, paragraph 97).
110. In that regard, it must be recalled that Article 6(3) of Directive 92/43 provides for an assessment procedure intended to ensure, by means of a prior examination, that a plan or project which is 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 Case C-127/02 Waddenvereniging and Vogelbeschermingsvereniging  [2004] ECR I-7405, paragraph 34, and Case C-304/05 Commission  v Italy [2007] ECR I-7495, paragraph 56).
111. With regard to the concept of ‘appropriate assessment’ within the meaning of Article 6(3) of Directive 92/43, it should be noted that the directive does not define any particular method for the carrying out of such an assessment ( Commission  v Italy , paragraph 57).
112. The Court has, however, held that that assessment must be organised in such a manner that the competent national authorities can be certain that a plan or project will not have adverse effects on the integrity of the site concerned, given that, where doubt remains as to the absence of such effects, the competent authority will have to refuse development consent (see Commission  v Italy , paragraph 58).
113. With regard to the factors on the basis of which the competent authorities may gain the necessary level of certainty, the Court has stated that it must be ensured that no reasonable scientific doubt remains, and those authorities must rely on the best scientific knowledge in the field (see Waddenvereniging and Vogelbeschermingsvereniging , paragraphs 59 and 61, and Commission v Italy , paragraph 59).
114. Furthermore, knowledge of the effects of a plan or a project in the light of the conservation objectives relating to a given site is an essential prerequisite for the application of Article 6(4) of Directive 92/43, 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 must be precisely identified (see, to that effect, Commission  v Italy , paragraph 83, and Solvay and Others , paragraph 74).
115. In the light of the foregoing, it cannot be held that an assessment is appropriate where information and reliable and updated data concerning the birds in that SPA are lacking.
119. Article 6(4) of Directive 92/43 provides that if, in spite of a negative assessment carried out in accordance with the first sentence of Article 6(3) thereof, 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 Commission  v Italy , paragraph 81, and Solvay and Others , paragraph 72).
121. An interest capable of justifying, for the purposes of Article 6(4) of Directive 92/43, the implementation of 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 (see, to that effect, Solvay and Others , paragraph 75).
137. According to the third recital in the preamble to Directive 92/43, as the main aim of that directive is to promote the maintenance of biodiversity, taking account of economic, social, cultural and regional requirements, the directive makes a contribution to the general objective of sustainable development. The maintenance of such biodiversity may in certain cases require the maintenance, or indeed the encouragement, of human activities.