European Commission v Hellenic Republic.
Date: 2016-11-10
28


The Court observes in that regard that an activity can be considered to comply with Article 6(2) of Directive 92/43 only if it is guaranteed that it will not cause any disturbance that is likely significantly to affect the objectives of the directive, in particular its objectives concerning the conservation of natural habitats and of wild fauna and flora. In order to find an infringement of Article 6(2) of Directive 92/43, the Commission must demonstrate to a sufficient legal standard that the Member State concerned has not taken the appropriate protective measures to prevent the operational activities of projects — in so far as these took place after designation of the site in question — from giving rise to deterioration of the habitats of the species concerned and disturbance of those species likely to have significant effects in view of the directive’s objective of ensuring the conservation of those species (see, by analogy, judgment of 14 January 2016, Commission v Bulgaria, C‑141/14, EU:C:2016:8, paragraphs 56 and 57 and the case-law cited).
29


Nonetheless, in order to establish an infringement of Article 6(2) of Directive 92/43, the Commission does not have to establish the existence of a cause-and-effect relationship between the operation of installations resulting from a project and significant disturbance caused to the species concerned. It is sufficient for the Commission to establish that there is a probability or risk that that operation might cause such disturbance (judgment of 14 January 2016, Commission v Bulgaria, C‑141/14, EU:C:2016:8, paragraph 58 and the case-law cited).
30


However, the fact that the Commission proves that there is such a probability or risk does not mean that it is impossible for the Member State concerned to establish that the measure in question meets the conditions laid down by Article 6(4) of Directive 92/43 and that its implications for the conservation objectives of the protected site have been assessed (see, to that effect, judgment of 14 January 2016, Grüne Liga Sachsen and Others, C‑399/14, EU:C:2016:10, paragraphs 56 and 57).
41


Nevertheless, as regards the buildings completed before the relevant period, namely before 19 July 2006, in view of the findings made in paragraph 35 of this judgment, an infringement of Article 6(2) of Directive 92/43 must be found, as the Advocate General has observed in points 55 and 58 of her Opinion, because the Hellenic Republic has not sufficiently circumscribed the use of those buildings (see, by analogy, judgment of 24 November 2011, Commission v Spain, C‑404/09, EU:C:2011:768, paragraphs 124, 125 and 128). Whilst that use might be justified by the principle of legal certainty, by applying the derogation laid down in Article 6(4) of Directive 92/43 mutatis mutandis, the Hellenic Republic has not advanced such a justification — which would require inter alia an examination of whether there are other, less detrimental solutions and a weighing up of the interests concerned, based on an assessment under Article 6(3) of the implications for the conservation objectives of the protected site (see judgment of 14 January 2016, Grüne Liga Sachsen and Others, C‑399/14, EU:C:2016:10, paragraph 57 and the case-law cited).
55


By confining itself (i) to bringing criminal proceedings against the executives of the company that built the roads in question and imposing administrative penalties on that company and (ii) to claiming, before the national courts, that the roads concerned are illegal and must be removed, the Hellenic Republic has failed to fulfil the specific obligation imposed on it by Article 6(2) of Directive 92/43 (see, by analogy, judgment of 9 November 1999, Commission v Italy, C‑365/97, EU:C:1999:544, paragraph 109).
69


Given that the question whether a Member State has failed to fulfil obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes, the various matters of fact put forward by the parties which post-date 1 December 2012, the date by which the Hellenic Republic was to comply with the Commission’s reasoned opinion, will not be taken into account in the Court’s assessment of the alleged failure to fulfil obligations.
77


The Commission does not dispute that the platform is intended for that purpose. Whilst the construction of a platform designed to facilitate the movement of disabled persons may, in principle, be regarded as having been carried out for imperative reasons of overriding public interest relating to human health, for the purposes of Article 6(4) of Directive 92/43, such a justification requires there to be inter alia an examination of whether there are other, less detrimental solutions and a weighing up of the interests concerned, based on an assessment under Article 6(3) of the directive of the implications for the conservation objectives of the protected site (see, to that effect, judgment of 14 January 2016, Grüne Liga Sachsen and Others, C‑399/14, EU:C:2016:10, paragraph 57 and the case-law cited). As the Hellenic Republic has failed to provide any explanation in that regard, the platform near the Messina Mare Hotel for which authorisation was given must be considered also to constitute an infringement of Article 6(2) of Directive 92/43.
101


It must therefore be found that, by failing to take the appropriate protective measures in order to prevent, as of 19 July 2006 when the Kyparissia area was placed on the list of SCIs, existing street lighting from disturbing the Caretta caretta sea turtle, the Hellenic Republic has failed to fulfil its obligations under Article 6(2) of Directive 92/43 (see, by analogy, judgment of 24 November 2011, Commission v Spain, C‑404/09, EU:C:2011:768, paragraphs 127 and 128).
111


In proceedings for a declaration of failure to fulfil obligations, it is for the Commission to prove the existence of the alleged infringement and to provide the Court with the information necessary for it to determine whether the infringement is made out (judgment of 9 July 2015, Commission v Ireland, C‑87/14, EU:C:2015:449, paragraph 22 and the case-law cited).
120


Article 6(3) of Directive 92/43 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 (judgment of 11 September 2012, Nomarchiaki Aftodioikisi Aitoloakarnanias and Others, C‑43/10, EU:C:2012:560, paragraph 110).
140


The Court has already held that the transposition of that provision requires the Member States not only to adopt a comprehensive legislative framework but also to implement practical and specific protection measures in that regard and that the system of strict protection presupposes the adoption of coherent and coordinated measures of a preventive nature (judgment of 15 March 2012, Commission v Cyprus, C‑340/10, EU:C:2012:143, paragraphs 60 and 61 and the case-law cited).
148


As the Commission has argued, a factor such as the stability of the population of the species cannot, in itself, call in question a finding that the relevant national legislative framework is incomplete (see, by analogy, judgment of 16 March 2006, Commission v Greece, C‑518/04, EU:C:2006:183, paragraph 21).
159


Given that those responsible for those disturbances at least accepted the possibility of the Caretta caretta sea turtle being disturbed during the breeding period, the condition as to deliberate action in Article 12(1)(b) of Directive 92/43 is met (see, to that effect, judgment of 18 May 2006, Commission v Spain, C‑221/04, EU:C:2006:329, paragraph 71).