Commission of the European Communities v Italian Republic.
Date: 2007-09-20
56. Article 6(3) 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 (‘ Waddenzee ’), paragraph 34, and Case C‑239/04 Commission  v Portugal  [2006] ECR I‑10183 (‘ Castro Verde ’), paragraph 19).
57. 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 latter does not define any particular method for the carrying out of such an assessment.
58. 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 authorisation (see, to that effect, Waddenzee , paragraphs 56 and 57, and Castro Verde , paragraph 20).
59. 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 no reasonable scientific doubt may remain, those authorities having to rely on the best scientific knowledge in the field (see Waddenzee , paragraphs 59 and 61, and Castro Verde , paragraph 24).
69. It follows from all the foregoing that both the study of 2000 and the report of 2002 have gaps and lack complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the works proposed on the SPA concerned.
72. With regard to the other studies, it is sufficient to note that they cannot be considered relevant, given that they were prepared either during the works or after their completion, that is to say after grant of the authorisation of 14 February 2003.
81. That provision states that, if, in spite of a negative assessment carried out in accordance with the first sentence of Article 6(3) of the 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.
82. As the Court has pointed out in paragraphs 35 and 36 of the judgment in Castro Verde , Article 6(4) of the directive must, as a derogation from the criterion for authorisation laid down in the second sentence of Article 6(3), be interpreted strictly.
83. Furthermore, Article 6(4) of Directive 92/43 can apply only after the implications of a plan or project have been studied in accordance with Article 6(3) of that directive.  Knowledge of those implications in the light of the conservation objectives relating to the site in question is a necessary prerequisite for application of Article 6(4) 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.
92. The latter provision establishes an obligation to take appropriate protective measures, consisting in avoiding deterioration and disturbance which could be significant in the light of the objectives of Directive 92/43.
93. That obligation corresponds to the objective set out in the seventh recital in the preamble to the directive, according to which each special area of conservation must form part of a coherent European ecological network.
94. Where, as is apparent in the present case from examination of the first complaint, authorisation for a plan or project has been granted without complying with Article 6(3) of Directive 92/43, a breach of Article 6(2) in relation to a special area of conservation may be found where deterioration of a habitat or disturbance of the species for which the area in question was designated has been established.
105. In order to determine whether the complaint raised is well founded, it must be pointed out that, in accordance with established case-law, it is incumbent upon the Commission to prove the allegation that an obligation has not been fulfilled.  It is the Commission’s responsibility to place before the Court all the information needed to enable the Court to establish that the obligation has not been fulfilled, and in so doing the Commission may not rely on any presumption (see, inter alia, Case C‑434/01 Commission  v United Kingdom  [2003] ECR I‑13239, paragraph 21; Case C‑117/02 Commission  v Portugal  [2004] ECR I‑5517, paragraph 80; and Case C‑135/05 Commission  v Italy  [2007] ECR I‑0000, paragraph 26).